Election Law Reports, Vol. XLI

GOVT. OF INDIA1972

PLD. 71—XL!1,000

ELECTION LAW REPORTS

Containing cases on election law decided by the Supreme Courtand the High Courts of India and opinions of the Election

Commission

Vol. XLI

EditorR. K. P. SHANKARDASS, M.A., LL.B. (Cantab.)

Advocate, Supreme Court

41 E.L.R.

Published uader the Authority of the Election Commission of Indiaby the Manager of Publications, Civil Lines, Delhi andPrinted by the Manager, Govt. of India Press, Nasik-422006

1973

CONTENTS

PAGES

I Table of Cases Reported (i)

II Table of Cases Cited . . . . . (ii)-(vii)

III Report of Cases 1-414

IV INDEX 415 426

The Mode of Citation of the Fortyfirst Volume of the Election LawReports is as follows :

41 E.L.R.

PAGE

Ambika Saran Singh v. Mahant Mahadev NandGiri (Surpeme Court) . 183

Atam Das v. Suriya Prasad (Supreme Court) . . . . . 359

Baburao v . Sidramappa and others ( M y s o r e H . C . ) . . . . . 8 3

Ghandan L a i v . Ram Dass and another ( S u p r e m e C o u r t ) . . . . 2 1 4

Dalchand J a i n v . Narayan Shankar Trivedi and anr. ( S u p r e m e C o u r t ) . 1 6 3

Devi Prasad v. Maluram Singhania and ors. (Supreme Court) . . . 335

D. R. Gwushantappa v. Abdul Khuddus Anwar and others (Supreme Court) . 153

Habibullah v. Gulam Rasool Kar and ors. (Jammu and Kashmir H, C. ) . 1

Hardwari Lai v. Pratap Singh (Punjab and Haryana H. C.) . . . 58

Kamala Prasad Upadhyaya v. Sarjoo Prasad Thiwari and others (Supreme Court) 44

Kamal Narayan Sharma v. D. P. Mishra (Madhya Pradesh H.C.) . . 369

H. V. Kamath v. Gh. Nitiraj Singh (Supreme Court) . . . . 343

Kanti Prasad Jayshankar Tagnik v. Purushottamdas Ranchoddas and others (Su-preme Court) . . . . . . . . . 1 3 2

Karamji Rahmanji Khaipa v. A.T. Kundiwala and others (Supreme Court) . 127

Lalroukung v. Haokholal Thangjom & anr. (Supreme Court) . . . 3 5

Laxman Prasad Vaidya v. Shri Gangadhar Tadaorao Tamaskar and others (Sup-r e m e C o u r t ) . . . . . . . . . . 1 5

Magraj v. Radha Krishan Birla and ors. (Rajasthan H.C.) . . . 296

Manubhai Nandlal Amersey v. Popatlal Manilal Joshi and others (Supreme

C o u r t ) . . . . . . . . . . . 2 6

Mohd. Sadiq v . Mohd. Hussain ( J a m m u a n d K a s h m i r H . C . ) . . . 1 7 0

Nihal Singh v . Rao Birendra Singh and another ( P u n j a b a n d H a r y a n a H . C . ) i g g

Raj Pal Singh v . Om Prakash Garg and ors. ( A l l a h a b a d H . C ) . . . 2 2 1

Rajaju v . Brijkishore Pateria and ors. ( S u p r e m e C o u r t ) . . . . 3 4 7

R a m N a t h v . Chajju Ram and others ( S u p r e m e C o u r t ) . . . . 3 5 4

Sakti Kumar Sarkar v . The Election Commission ( C a l c u t t a H . C . ) . . 2 0 6

Samant JV. Balakrishna etc. v. George Fernandez and others etc. (Supreme

C o u r t ) . . . . . . . . . . . 2 6 0

S h e o d h a n S i n g h v . M o h a n L a i G a u t a m ( S u p r e m e C o u r t ) . . . . 1 4 6

Pt. Shree Krishan Setol v. Shri Ram Gharan Pujari (Supreme Court) . . 50

TABLE OF CASES CITED

PAGE

Abdul Rahiman Khan v. Sadasiva Tripathi, (A.I.R. 1969 S. G. 302) 1

Abdul Majeed v. Bhargavan, (A.I.R. 1963 Kerala 18) . . . 262, 288

Australian Boot Trade Employees Federation v. Whybrow & Go.1910 11 C.L.R. 311 . . . . . . . 248

Adan and others v. Hon. E. E. Devason Gowar 1 O' Malley andHard castle 216 . . . . . . . . . 262, 286

Amar Nath v. Lachman Singh G. A. No. 717 of 1969 decided by the

Supreme Court on August 23, 1968 . . . 391

Babulal Sharma v. Brijnaiain Brajesh and others, (1958 M.P. 175 F.B.) 261, 281

Badri Narain and ors. v. Kamdeo Prasad Singh and another,(A.I.R.

1961 Patna 41) . . . . . . . . . 262, 289

Bakter v. Ah. Way (1909) 8 G.L.R. 626 245

Balwan Singh v. Laxminarayan and ors. (22 E.L.R. 273) . . . 375

Balwan Singh v. Election Tribunal (15 E.L.R. 199) . . . 261, 279

Bankabehari Das. v. Cixittaranjan Naik, (A.I.R. 1963 Orissa 83) . 85, 109

Basawaraj K. Nagar v. B.R. Shidlingappa, (12 E.L.R. 168) . 234

Bayley v. Edmunds, Buron Marshall (1894) 11 T.L.R. 537 . . 262, 289

Beal v. Smith 4 G.P. 115 261

Bhagwan Datta Shastri v. Ram Ratanji Gupta and ors., (A.I.R. i960

S.G. 200) 3 7 5

Bhikaji Keshao Joshi and anr. v. Brijlal Nandlal Biyani and others(1955) 2 S.G.R. 428/10 E.L.R. 375/ (A.I.R. 1955 S.G. 610) 375

Bhima Time Dhotre v. the Pioneer Chemical Co., 70 Bombay LawReporter 683 . . . . . . . . . 319

Bhimsenv. Gopaliandors. 22 E. L. R. 288 . . . . . 261, 281

Biresh Mishra v. Ram Nath Sharma and others, 17 E.L.R. 243 . 297, 322, 327

TABLE OF CASES CITED (ill)

PAGE

Biswanath Upadhya v. Haralal Das and others, (A.I.R. 1958 Assam

97) . . . 262, 288

Braj Bhushan v. Raja Anand Brahma Shah & ors, 22 E.L.R. 225 . 85, 108

Bruce v. Odhams Press Ltd., (1937) 1 K.B. 697 . . . 261, 279

Carbines v. Powal Vol. 36 G.L.R. p. 80 248

Garter & anr. v. Mills 9 Common Pleas p. 117 . . . 147, 150

Chandi Prasad Chokani v. The State of Bihar, (1962) 2 S. G. R.276 261, 281

Chandrasekhar Singh v. Sarjoo Prasad Singh and anr., (A.I.R.1961 Patna 189/22 E.L.R. 206) . . . . . 184, 190, 371

Dr. M. Chenna Reddy v. Ramachandra Rao and another 40 E.L.R.39° • 85, 101, 296,

308,370, 392,402,413.

Christie v. Grieve 1 O'Malley & Hardcastle 251 . . . 262, 286

M/s. Chunilal Dwaraka Nath v. Hartford Fire Insurance Go. Ltd.,and anr., (A.I.R. 1958 Punjab 440) . . . . . 8 5 , 102

Deviahv. Nagappa and others, (A.I.R. 1965 Mysore 102) . . . 261,281

Deen Dayal v. Beni Prasad and anr. .15 E.L.R. 131 . . . 261, 279

Dohray Ram Gopal v. Dr. Ladi Prasad Tandon, F. A. No. 6 of 1961

decided 16-2-1962 (Allahabad) . . . . . 2 2 1 , 244

Edward Mills Go. Ltd. v. State of Ajmer, (A.I.R. 1955 S.G. 25) . 221,245

Evans v. Hulton etc. Ltd., 1924 All E.R. 224 . . . 324Evans v. Hartlem 1937 A.G. 473 . . . . . 27,31

T. K. Gangi Reddy v. M. G. Anjaneya Reddy and others, 22 E.L.R.

261 85, 101

Ghasi Ram v. Dal Singh, (1968) 3 S.G.R. 102 . . . 36,42.. i4°> 150

D. Gopala Reddy v. Shanta Bai Talpalikar, G. A. No. 6 of 1968decided on Aug. 1 and 2, 1968 35.4I>391

Gurugobinda Basu v. Shankari Prasad Ghosal and others, (1964)4 S.C.R. 311/A.I.R. 1964 S.G. 254 84,93,154,158

Guruji Srihari v. Vithal Rao and ors. G. A. No. 1778 of 1967/40E.L.R. 178 . 37O,394»4I3

Hackney's Case, 2 O' Malley and Hardcastle 77 . . . 263, 293

(iv) TABLE OF GASES CITED

PAGE

M/s. Haji Aziz and Abdul Shakur v. The Commissioner of Income-Tax (1961) 2 S.G.R. 651 405

Hansaij v. Pt. Hariram and others C. A. No. 863 of 1966 S. C.decided on 30-10-1968 86, 120, 297,

327> 3a8.

Harishchandra Bajpai v.Tri loki Singh, 1957 S.C.R. 370 . . . 27, 29, 261,278.

Inder Lai v. Lai Singh, 1962 S.G. 1156 . . . . . 262, 283, 384,413-

Inayatulla Khan v. Diwanchand Mahajan and others, 15 E.L.R.219 263, 295

K.K.Jadav v. State Of Gujarat, A.I.R. 1966 S.G. 821 . 250

Jagan Nath v. Jaswant Singh, (1954) S.G.R. 892 . . 261, 278

Jagannath and anr. v. Narayan Uttamrao Deshmukh and another,decided on 6-12-1968 . . . . . . . 204

Jagannath Luthra v. Emperor (A.I .R. 1932 Lahore 7) . 133

fjgdev Singh Sidhinti v. Pratap Singh Daulta and others, (1964)6 S.G.R.. 750/A.I.R. 1905 S.G.183 . . . . . 3 5 , 41, 204,

37o,39i-

Dr. Jagjit Singh v. GianiKartar Singh, (A.I.R. 1966 S.G. 773) . 348, 381

Jashbhai Ghunnibhai Patel v. Anwar Beg A. Mirza, G. A. 7gg of1968 S.G. 86, 116, 378

Jayalakshmi Devamma v. Janardan Reddy, (A.I.R. 1959 A. P.272) 85, 102

Kiishore Singh v. Bhanwa^lal, 1966 M.P.L.J. 563 . . . 390, 412

H. V. Kamathv. Election Tribunal 14 E.L.R. 147 . . . 261

H. V. Kamath v. Ahmad Ishaque, (A.I.R. 1955 S.G. 233) . 206

Karnidas Sarda and anr. v. Sailaja Kanta Mitra and another,(A.I.R. 1940 Patna 683) 85

Kataria Takandas Hemraj v. Pinto Fredrik Michael, 18, E. L. R.4°3 4O9

Khader Sheriff v. Maaamwami Go-aider , A.I.R. 1955 S. G. 755/(i955) 2 S.C.R. 459 85, 107, 370,

4°3-Khilumal Topandas v. Arjun Das Tulsidas, 22 E.L.R. 404 . . 36, 42

KrishanKumarv.KrishnaGopal,(A.I.R. 1964 Raj. 21) . . 262,289

Kultar Singh v. Mukhtiar Singh, (A.I.R. 1965 S.C. 141) . . 36,42

TABLE OF GASES CITED (v)

PAUE

Kumaranand v. Brij Mohan Lai Sharma, A.I.R. 1967 S. G. 808/

{1967) 2 S.C.R. 127 261, 283, 381

397-

Lalsingh Keshar Singh Rehvar v. Vallabhdas Shankarlal Thekdiand others, (A.I.R. 1967 Guj 62). . . . . . 262,289.

Laxmipat Choraria v. State of Maharashtra, (A.I.R. 1968 S.C.938) 296,319

MadholalSindhuv. Asian Assurance Go. Limited and others . 296,318

Magan Lai Radhakrishnan Bagdi v. H. V. Kamath, (A.I.R. i960)

M.P. 362) . 85, 108

Mason v. Phelps, 48 Mic. 126, 11 N.W. 413, 837 . . . 137

Maulana Abdul Shakur v. Rikhab Chand and another . . . 154,158Macfarlane v. Hulton 1899 ( 0 Gh- 8 8 4 36.43

Mohan Singh v. Bhanwarlal and ors. (1964) 5 S. G.R. 12/AI. R.1964 S.G. 1366 A.I.R. 1964 M.P. 137 . . . . 35,41,133, 138

Sir Mohammad Yusuf and anr. v. D. and another, (A.I.R. 1968Bom. 112) 296, 318,319

Mobarik Ali Ahmed v. The State of Bombay, (A.I.R. 1957 S.G.

857) . . . . . . . . . 3 1 8

Mubarik Mazdoor v. Lai Bahadur 20 E. L. R. 176 . . . 322

M.A. Muthiah Ghettiar v. Sa Ganesan 21 E. L. R. 215 . . 323, 324

Mylapore Krishnaswamy v. Emperor I.L.R. 32 Mad. 384 . 1 3 8

Nanj Gopalaswamy v. Abdul Hamid Ghaudhury and another.(A.I.R. 1959 Assam 200/19 E.L.R. 175) . . . . 262,286

Narbada. Prasad v. Chaganlal and ors. (1969) I S. G. R. 499 . . 27,33,51,57,

134:143-

Nathu Lai v. Durga Prasad, (A.I.R. 1954 S.G. 355) • • • 296,319

Nisar Ali v. State of Uttar Pradesh 1967 S.C.R. 657 . . 184,193

Paokai Haokip v. Rishang and others (1969) 1 S. G. R. 637/A.I.R.1969 S.C. 663 . . . . . . . . 4 4 J 4 9 . 3 5 4 . 3 5 8

K. H. Patil v. K.P. Gadag and others Mic. First Appeal No. 37of 1965 (Mys.) . t . . . . . 85,101

Philips v. Phillips (1878) 4 Q.B.D. 127 . . . . 261,279

ii—4 Election/71.

(vi"1 TABLE OF CASES CITED

PAGE

Ponnuswamy v. Returning Officer, Namakkal, (A.I.R. 1932, S.G.

64) . . . . . . . . . . . . 206

Prabhudas v. Jorsang, 18 E.L.R. n o 297,322,327

Public Prosecutor v. Venkatarama Naidu, I.L.R. 1944 Madras 113 133,139

Punjabrao v. D. P. Mesbram and ors, (A.I.R. 1965 S. G. 1179) . . 396

RajDev. v. Gangadhar Mahantra, (A.I.R. i964Orissa 1) . . 184

Raj Krishna Bose v. Binod Kanungo and others, (A.I.R. 1954 S.C.202) . . . . . . . . . 221,243

Ram Dial v. Sant Lai and others, (1959) Supp. 2 S. C. R. 748/20 E.

L.R. 482 27,32,133,140

184, 190.

Ramanlal Mohanlal v. State of Bombay, (A.I.R. 1960S. G. 961) . 250

Ram Kisan v. Jaisingh G. A. No. 1949 of 1967 decided on, April 23,1968 . ' . . . . " . . . . . . 35,41.

Ram Krishna's case, G. A. No. 1949 of 1967 dated 23-4-68 . . 262,283,370

39i. 398-

Rananjaya Singh v. Baijnatb Singh and others, 10 E. L. R. I29(S.G.)/(1955) 1 S.G.R. 671 86, 120, 297,

322, 328, 331.

Revanna Subbanna v. G. S. Kageerappa, (A.I.R. 1954 S. G. 653) . 84,94,98

Roland Burrow's Words and Phrases Vol. 1 324

Rustom Satin v. Dr. Sampoornanand and others, 20 E.L.R. 221 . 262,288

Samant Balakrishna v. George Fernandez G. A. 893 and 894 of 1968dated February 18,1969 370, 390,392

397. 399.4*3-

Sarala Devi Pathak v. Bircndra Singh and others, 30 E. L. R.

275 . . . . . . . . . . . 262,288

Sarat Chandrav.Khagendranath, (A.I.R. 1961 S.G. 334) . . 262,279

Sasivarna Thevar v. Arunagiriandors., 17 E. L. R. 313 . . 261,279

SavitriDeviv. Prabhavati Misra and another, 15 E.L.R. 358 . . 164,169

R. M. Seshadri v. G. Vasantha PaiC.A. 1519 of 1968 (S.C.)/A.I.R.1969 S.C. 692 298,308,331

Shambu Nathv. State of Ajmer,(A.I.R. 1956 S.G. 404) . . 85,101

Sheopat Singh v. Ram Pratap (1965) 1 S.C.R. 175 . . . 261,281,381

TABLE OF GASES CITED (vii)

PAGE

Sheopat Singh v. Harishchandra 16 E. L. R. 103 (Raj)/ A. I. R. 297, 322, 327,i960 S.C. 1217 37°>39I>397-

Siddik Mahomed Shah v. Mst. Saran and others, (A.I.R. 1930 P.O. 57) 85, 125

Sodhi Pindi Dass and ors v. Emperor, (A.I.R. 1932 Lahore 7) . 133, 138, 139

Spencer-John Blundellv. CaarlesHarison, 3 O' Malley & Hardcastle148 . . . . . . 262.286

Shri Krishna v. Sat Narayan, C. A. No. 1321/1967 decided on22-3-1968 164,391

Sri Raj Raj Deb v. Sri Gangadbar Mohapatra and ors., (A.I.R.1964

Orissa 1.) « 192

State of Maharashtra v. R.B. Ghaudhary, (A.I.R. IQ68S .G«UV> 396

G. Subba Raov. K. Brahmananda Reddy, (A.I.R. 1907 A. P. 155J 250

Sudhir Laxman Hendre v. S. A. Dange and others, (A.I.R. i960

Bom. 249/17 E.L.R. 373) 37°>395

Surendra Nath Khoslav. Dilip Singh (1957) S.C.R. 179 . . 263,295

Taun ton's Gise, 1 O'Mil ley &Hirdcastle . . . . 181,185

Smt. TikaniBai v.Punjab State and ors., (A.I.R. 1964 Punjab 15) . 85, 99

Umar Ahir v. State of Behar, (A.I.R. 1965 S.G. 277) . . 184,193

Union of India v. H. G. Goel, (A. I. R. 1964 S. G. 364) . . . 296,319

G. Vasanta Pai v. A. Srinivasan and ors, 22 E. L. R. 221 . . . 323

Vashisht Narain Sharma v. Dev Chandra and others, (1955) 1 S. G.R.

509 44= 46>49>263,

295> 358, 37°,

390-

Velu Pillai v. Padakalingam, (A'LR. i954Travancore-Gochin 152) 85,102

N. L.Verma v. Muni Lai and others, 15 E.L.R. 495 . . . 36,42,164,169

Vidya Sagarjoshiv. SurinderNath Gautam, G. A. 863 of 1968 . 124,297,323370,403, 413,

In the matter of Vindhyachal Legislative Assembly Members (Elec-tion Commission), 4 E.L.R. 422 . . . . . 84,97

IN THE HIGH COURT OF JAMMU & KASHMIR

HABIBULLAHV

GULAM RASOOL KAR & ORS.

(ANANT SINGH, J.)

January 2, 1969

Jammu & Kashmir Representation of the People Act—Section 24(a?)—Subsisting con-tract—Constitution of Jammu & Kashmir—Section 122—Contract not signed by Contractors—•Validity in election proceedings.—Pleadings—Respondent setting up new contract revealed inevidence bvt not pleaded.—New grounds can be pleaded to support or disprove of the Order ofReturning Officer rejecting nomination.

The petitioner's nomination papers were rejected by the Returning Officer onthe ground that he had an interest in an existing contract. During the trial of theelection petition challenging the rejection of the nomination certain documents weregot proved some of which related to another contract not raised in the written state-ment of Respondent No. 1, nor in the order of the Returning Officer rejecting thenomination papers of the petitioner. Taking advantage of this, Respondent No. 1filed a petition to amend his wrilttn statement by including therein the discovery01 the new contract relating to the repair of the Panchayat House said to have beenjointly held by the petitioner along with his brother. The prayer for amendmentof the written statement was allowed. The petitioner contended that the second con-tract was never pleaded by the Returning Officer and that in any event it could notbe treated as a contract within the meaning of s.24(d) of the Jammu & Kashmir Re-presentation of the People Act, since it did not conform to the requirements of Sec-tion 122 of the Constitution of Jammu & Kashmir.

HELD :—Ths order of the Returning Officer rejecting the nomination papersof the petitioner on account of the first contract was improper but the nominationpapers were liable to be rejected because of the second contract.

(i) The work order to taKe up on contract the constructions in question wasexpressed by the Block Development Officer to have been executed in the name ofthe "Jammu & Kashmir Government". It was not disputed that the Block Deve-lopment Officer could validly enter into the contract on behalf of the Sadar-i-Riyasat.It is true that this work order of the contract was not signed by the contractors, never-theless the petitioner accepted it by consent. It may be that in the absence of anyformal agreement neither party could sue or could be sued for breach of contract,but for the purposes of election law, the position is different.

Abdul Rahiman Khan v. Sadasiva Tripathi, G.A. 1725 of 1967 dt. 15-7-66 (S.C.);referred to.

(ii) It is true that the second contract was not pleaded by the Returning Offi-cer , but it is the settled principle of election law that either party to an election pro-ceeding can plead new grounds to support or disprove of the order of the ReturningOfficer rejecting or accepting the nomination papers of any candidate. The respond-ent was therefore entitled to plead the new ground in the case.Election Petition No. 50 of 1967.T. R. Bhasin, for the petitioner.C. K. Daphtary, R. K. Garg and O. N. Tikoo, for the respondents.

11—4 Elec. Com./71

2 HABIBULLAH V. GULAM RASOOL KAR [VOL. XLI

JUDGMENT

ANANT SINGH J.—The Petitioner, Habibullah, has filed thisElection Petition, challenging the election of Respondent No. i, ShriGhulam Rasool Kar, after contest with Respondent No. 2. at the lastgeneral election of 1967, from Rafiabad Assembly Constituency, tothe Legislative Assembly of Jammu and Kashmir State.

There are six candidates, who had filed their respective nomi-nation papers from this Constituency on different dates. They werethe Petitioner, and the five Respondents. The Petitioner, and Res-pondent No. 2, were both candidates set up by the National Confe-rence Party, and Respondent No. 1 by the Congress Party. Res-pondents 3, 4, and 5 were independent candidates.

The Petitioner had filed on 20-1-67, four nomination papersexhibits numbered as 8, 9, 10 and 11 which are PW 2/1, PW 2/ia,PW 2/ib and PW 2/ic before the Returning Officer. They were allrejected by the Returning Officer, on the date of the scrutiny whichwas fixed for 23-1-1967, as invalid within the meaning of Section 24(d)of the Jammu and Kashmir Representation of People Act, as he wasfound to have held an interest in an existing contract.

The nomination papers of Respondents 3, 4 and 5 were also re-jected as invalid on different grounds. The nomination papers ofRespondents 1 and 2 alone were accepted as valid. There waseventually a contest between these two candidates. Respondent No, 1was declared elected, having secured larger number of votes.

The Petitioner, filed this Election Petition on 12th April, 1967before the Election Commission, New Delhi, characterising as improperthe rejection of his nomination papers, as also those of Respondent3, 4 and 5, and challenging the validity of the nomination papers ofRespondent No. 1 as well.

At first two Tribunals, one after the other were constituted bythe Chief Election Commissioner, for the trial of the Election Petition,but on their refusal, another Tribunal was re-constituted with ShriJustice Gopaljee Meharotra, by an order dated 22-6-67, of the ElectionCommissioner, for the trial of the Petition at Srinagar.

After due notice the petitioner, and Respondents 1 to 4 appearedbefore the Tiibunal on 11-7-67, but Respondent No. 5, did not appearin spite of service of notice on him. Respondent No. 1, filed his writtenstatement before the Tribunal on 1-9-67, repudiating the ElectionPetition. Respondents 2 and 3 filed a common written statement on7-9-67, supporting the Election Petition. Respondents 4 and 5 donot appear to have filed any written statement. 12th September,67 was fixed for framing of issues by the Tribunal, but in the meantimethe Tribunal was abolished by an Act of the Legislature, and the Elec-

E.L.R.] HABIBULLAH V. GULAM RASOOL KAR 3

tion Petition was transmitted to this High Court for disposal. It wastransferred by Hon'ble the Chief justice, to another Bench for disposalin December, 1967. It was transferred to my Bench on 28-3-1968.On 8-4-1968, the Petitioner, filed four issues pertaining to improperrejection of the nomination papers of the petitioner, and Respondents,3, 4 and 5, and to the validity of the Election of Respondent No. 1,on any other account. The three issues were accepted on behalf ofRespondent No. 1, but not the fourth which had to be deleted onaccount oi vagueness.

Trial was commenced from 24-6-68, when PW 1, Chuni Lai,Block Development Officer, was examined in part, and some docu-ments marked. On 25-6-68, the petitioner's counsel submitted thathe would not press the rejection of the nomination papers of Respondents3, 4 a^d 5 as impropei, and that he would confine his grounds to therejection of only the nomination papers of the Petitioner. Chuni Lai,as desired by ihc counsel for the Petitioner, was directed to producecertain records concerning the alleged contract of the Petitioner, andthat he would examine his witnesses the following day after the recordwas produced by Chuni Lai. On 26-6-68, however, Chuni Lai, didnot appear, and a telegram was received on his behalf that he wasill. The record called for was also not sent by him. After some cor-respondence, the record called for was sent on 31-7-68 by PW 8, JagarNath, officiating Block Development Officer, through PW 7, AbdulSalam, who had obtained it from the Village Level Worker of theGram panchayat concerned.

Chuni Lai, PW 1, appeared for his further evidence on 29-8-68,when various documents including exhibit PW 1/9 and exhibit PW1 /1 o were got proved from him on Petitioner's behalf. PW 1 /1 o Chuni Laiproved some further documents for the Petitioner on 30-8-68, whenhe was finally discharged. Another witness, the Petitioner himselfPW 2, was examined, and cross- examined in part on the same day,and his further cross- examination was adjourned to for the followingday, after a prayer of the Petitioner to call for certain more recordswas rejected on the ground that they all related to certain contractwhich had not been raised in the written statement of RespondentNo. 1, nor in the order of the Returning Officer, rejecting the nomi-nation papers of the Petitioner.

It appears as I shall have to revert to it in details that on Peti-tioner's behalf certain documents were got proved from Chuni Laion 29-8-68, some of which related to another contract, not raised inthe written statement of Respondent No. 1, nor in the order of theReturning Officer, rejecting the nomination papers of the Petitioner,and obviously taking advantage of it, on 2-9-68 counsel for RespondentNo. 1, filed a Petition to amend his written statement by includingtherein the discovery of the new contract relating to the repair of thePanchayat House at Ghajjama, said to have been jointlyheld by the Petitioner along with his brother Sona-Ullah Bhat, and one


Aziz Bhat. Though, the Petitioner was to conclude his evidence withthe conclusion of his own evidence, the prayer for amendment of thewritten statement was allowed subject to the payment of a cost of R.s.200/- since a new contract was introduced on Petitioner's behalfhimself. An opportunity, however, was allowed also to the Petitionerto file his rejoinder. The actual amendment of the written statementconfining to the second contract was filed on 4-9-68. An affidavitin support of it was filed on 5-9-68. The Petitioner filed his rejoinderto the amended written statement on 6-9-68. The parties were direc-ted to file issues in the light of the amendments by 11-9-68.

It is amusing that Respondent No. 1 filed an appeal in lettersPatent against the order permitting the Petitioner to file his rejoinderin rebuttal of the Respondents' own amendment of his written state-ment. The proceeding remained stayed for some time during thependency of this appeal, which, however, does not appear to havebeen pressed in the Letters Patent. The parties agreed to join issueson both the contracts, one pleaded in the original written statement,and the other in the amended written statement.

Although, no issue was proposed on behalf of Respondent No. 1who will be referred to here-in-after as Respondent, there has beena good deal of controversy upto the Conclusion of the trial regardingthe correctness of the Electoral part number of the petitioner and oneof his proposers. I have, therefore, since framed an issue to thateffect.

The following are the issues for decision :—

(1) Was there any discrepancy with regard to Electoral partnumber of the petitioner or any of his proposers, as enteredin his nomination papers compared to those entered in theElectoral Roll of Rafiabad Costituency.

(2) Was the petitioner disqualified in terms of the then Sub-section^) of section 24 of the Representation of the peopleAct.

(3) Were the nomination papers of petitioner improperly rejected.

(4) Whether the petitioner held a subsisting contract in respectof panchyat House, at Chajjama jointly with his brotherSona-UUah, and with one Aziz Bhat, through Block Deve-lopment Officer, Rafiabad, under allotment order No.1050-53 dated 24-11^65 or 24-11-66.

(5) Whether the record of the panchayat, and of the Block Deve-lopment Officer, respecting the above contract has beentampered with, interpolated and forged?. If so, at whoseinstance, whether at the instance of the petitioner or Res-pondent No. 1, and what would be its effect.


FINDINGSIssue jVb. i :

[After setting out the details of evidence, the Court held] :

Learned counsel, Mr. Daphtary, at the time of his arguments, didnot rightly raise this controversy, but conceded that there was nothingwrong with regard to the correctness of the part number of the Elec-toral Roll, either of the Petiticner, or any of his proposers. The issueis answered in the negative.

Issue No. 2 .'This issue is corelated only to spring work at Chajjama, which I

shall refer to here-in-after, as the first contract to distinguish it from thesecond contract, regarding repair of the Panchyat Ghar, at Chajjama,which is the subject matter of the issue No. 4, which will be dealt withseparately.

The Returning Officer, rejected the nomination papers of thePetitioner on the basis of the first contract, which was brought to hisnotice at the scrutiny by a cartificate, exhibit PW 1/1 dated 21-1-67which had been issued by the District Planning Officer, Shri P. N.Mattu, who has been examined as PW 6. The certificate mentionsthat "a contract has been allotted to Sona Ullah Bhat S/'O Ahsan BhatR/O Saripara for execution of work namely construction of a springat Chajjama, vide Block Development Officer Rafiabad work orderNo. 1029-31 dated 22-2-66. The contract is still subsisting".

Referring to this certificate, and on the basis of two affidavits swornin by the Village Numberdar, and the Chowkidar who have not beenexamined in this case, the Returning Officer, held that Sona UllahBhat, referred to in the certificate is the own brother of HabibullahBhat, the Petitioner, and that they are both jointly interested in the con-tract, which was a disqualification for the Petitioner under section 24(d)of the Jammu and Kashmir Representation of the People Act.[After considering the oral and documentary evidence the courtproceeded]

Under the Mohammedan law, the concept of joint ownershipbetween the members of one family is unknown, even if two brothersmight be living jointly, unless it can be proved by positive evidencethat in any given business the brothers or other members have jointinterest as partners. There is no evidence whatsovever that the Peti-tioner had held any share having had invested anything of his own orotherwise in this contract, having had to participate in the loss orprofit. None of the Law has to say anything to that effect. It cannottherefore, be supposed that the Petitioner had any interest of his ownin this business. It is, therefore, held that the petitioner was notdisqualified to be chosen as a member on account of this contract,relating to Chajjama Spring, and the Returning Officer, was wrongin having rejected his nomination papers on this ground. The issueis decided accordingly.


Issue No. 4 :

The relevant documents bearing on the second contract as I wouldcall it in exhibits PW 1/9, PW 1/R1, PW 1/R2, PW 1/R3, and PW1/10.

Exhibit PW 1/9 is original resolution, dated 4-9-66 of the ChajjamaGram Panchyat, and we are concerned with only item No. 4 underit. It refers to the repair work of the Panchyat Ghar at Chajjama..Exhibit PW 1/2, and exhibit PW i/Rsare both of the same thing, andthey are the estimated cost at Rs. 293/- for the repair work of PanchyatGhar, and they are both of date 15-8-66. Exhibit PW 1/R1, is anorder on the copy at first marked as X(2) for identification is a copy ofthe resolution exhibit PW 1/9, and the same had been sent by thePanchyat to the Block Development Officer, Rafiabad RW 4, Moh'dTarali. Ex. PW 1/10 is the work order dated 24-11-66 issued in thenames of Sona Ullah Bhat, Aziz Bhat, and Habib Ullah Bhat, whois the Petitioner, and it related to Panchyat Ghar at Chajjama. Itis to the following effect :—

"Jammu and Kashmir Government Office of the Block Deve-lopment Officer Rafiabad.

To1. Kh. Sona Ullah Bhat.2. Kh. Aziz Bhat.3. Kh. Habib Ullah Bhat R/O Chajjama (Saripora).

No. 1050-53 dated 24-11-66.

Refer resolution of Panchyat Chajjama dated 4-9-66 authorisingyou to take up on contract the construction of Improvement of Pan-chyat Ghar Chajjama in Panchyat halqa Chajjama you are herebyauthorised to take up the said work for execution at the estimatedcost of Rs. 293.00 which should be completed within, three monthsfrom the date of issue of the work order failing which penalty up tothe extent of Rs. 10% of the total value of the work will be imposedupon you. Please attend this office within one week for executionof the agreement with the Government.

O/cSd/-Block Dev. Officer

Rafiabad.No. 1051-53 dated 24-11-66

Copy of the above along with the espy of the sanctioned estimateforwarded to the :

(1) Accountant General Srinagar.(2) Overseer Rafiabad Block.(3) District Planning Officer, Baramulla for information and

favour of further necessary action."

E.L.R.] HABIBULLAH V. OULAM RASOOL KAR '

This work order was issued on the basis of item No. 4, in the re-solution exhibit PW 1/9, a copy of which exhibit X2 for identificationwas forwarded by the Panchyat to the Block Development Officer,Rafiabad, after the estimates, exhibit PW 1/R2 (and PW 1/R3) hadbeen prepared in the office of the Block Development Officer.

The resolution exhibit PW 1/9, and the work order exhibit PW1/10, were got proved on the Petitioner's behalf through Chuni Lai,PW 1, who wa> the Block Development Officer of Rafiabad fromDecember, 1967, when he was transferred, and the copy exhibit PW1/R1, and the estimates exhibit PW 1/R2 and exhibit PW 1/R3 weregot proved by him on Respondent's behalf. As I have already in-dicated this work was introduced in the amended written statementof the Respondent after the above documents were got proved on thePetitioner's behalf.

Now the Petitioner, would describe these documents as forgedpapers, not having been in existance at the time the petitioner hadfiled his Election Petition. It is said that no copy of the work order,exhibit PW 1/10, has been called fcr on Respondent's behalf from anyof the office to which the copy purports to have been sent. The DistrictPlanning Officer, PW 6, could not say, since he was no longer in-chargeof the office, if any such copy had been received in his office. ThePetitioner, examined an Accounts Officer, PW 5, from the office ofthe Accountant General, who replied on the basis of his letter of10-9-68, which he had sent to the XJeputy Registrar of this Court inreply to a querry, that no copy of the exhibit PW 1 /10, appears to havebeen received in his office. The Petitioner, also got proved by theSecretary of the Legislative Assembly, PW 3 an Assembly Question,exhibit PW 3/1 , dated 10th August, 67, and the list of answerer, ex-hibit PW 3/2, given on the floor of the house, which when read together,would not show the existance of this contract of repair work of GhajjamaPanchyat Ghar, nor of the first contract, in 1966-67.

The answers to the Assembly question may not be conclusive,and the non-production of the copy from the offices mentioned inexhibit PW 1/10, may also no be conclusive of the non-existance ofexhibit PW 1/10, which in its turn is also mentioned as '"O/C" meaningthe office copy retaining in the office of the Block Development Officer.I should think that exhibit PW 1/10, which bears, in original, is reallythe original kept in the office of the Block Development Officer,and only the copies thereof were sent to different persons concerned.The one copy is expected to have been sent also to the contractors.

The work order, exhibit PW 1/10 was actually issued by Moh'dTarali, RW 4, who was the Block Development Officer of Rafiabadat the relevant time. He has said that, it was on the basis of the copy,marked X(2) for identification after resolution, exhibit PW 1/9, thathe passed the order, exhibit PW 1/R1 onX(2) for issuing work orderin the names of Sona Ullah Bhat, Aziz Bhat and Habib Ullah Bhat,

8 HABIBUiXAH V. GULAM RASOOL KAR [VOL. XLI

and ultimately, issued the order in their names exhibit PW I / IO, on24-11-66. It was suggested towards the end of his cross-examinationthat he in ellusion with the Block Development Officer, Chuni La!, andRespondent No. 1, got it forged. No such suggestion was, however,made to Chuni Lai, PW 1, who proved these documents at the instanceof the Petitioner himself.

It has also been urged against RW 4, who had issued the workorder, exhibit, PW 1/10, that he is not a truthful witness, in that, asstated by PW 6, RW 4, had falsely represented to him that the firstcontract was issued by him, though, it was actually issued by MancbarSingh, his predecesser. RW 4, also influenced RW 6, in issuing thecertificate EX PW 1 invoking the respondent's position as StateMinister.

The delayed production of the proceeding book of the Panchyat,containing the relevant resolutions also came in for severe criticismby the learned counsel,, Mr. Bhasin, on behaif of the petitioner.

But all these criticism pale into insignificance, since there can beno doubt about the genuinness of the resolution exhibit PW 1/9, exceptor certain cutting in the names as I shall just now.

This resolution had been proved as I have said by PW 1, beforethe Petitioner examined himself on 30-8-68. That day, he did notchallenge the resolution as a forgery as a whole. Referring to themeeting of 4-9-66 as recorded on page 113/- under Exhibit PW 1/9,he only said that as against item No 4 Moh'd Ismail Yatoo, was shownas the authorised person to draw the bill, but the name of "SonaUllah" has since been written over the original name of Moh'd IsmailYatoo, and that the resolution does not bear his initial, nor was it written,by him. He further said, that Panchyat Chajjama had set up differentConstruction Committee for supervising various works as mentionedin the resolution, and that each work was to be allotted to the personmentioned in the 3rd column of the 'proceeding of the Panchyat'. Hedid not mention about any other over-writing.

The resolutions exhibit PW 1/9 dated 4-9-66 were adopted underthe Chairmanship of Kh. Habibullah who is also mentioned as presentin the meeting along with other members. It refers to some 4 itemsof work to be executed by different persons under "Tamiri CommitteeThikadaran" which expression occurs at two places, one in the headingin column 3 and the other in the proceeding column.

As against item 4, the work to be executed is mentioned as "MaramatPanchayat Ghar". Under the heading "Tamiri Committee Thika-daran" against this item 4, the names of (1) Sona Ullah Bhat, (2) AzizBhat and (3) Habib Ullah Bhat Chairman are mentioned. The nameof "Sona Ullah Bhat" is mentioned as the person recommended to beallotted this work and also as the person authorised to draw the billfor it as well.


It appears that in the ist line, below the name of 'Sona UllahBhat' there was written some either short half name which has beencut and cannot be deciphered and "Sona" has been written over it,bearing "Ullah Bhat" as it was to make it read now, as "Sona UllahBhat". The second "Sona Ullah Bhat" in the second line is over-written on "Moh'd Ismail Yatoo", since penned through, but can stillbe read as such. The earlier name below "Sona" could not havebeen as big as "Moh'd Ismail Yatoo, and it must have been a shorthalf name like 'Habib' or the like, and the word 'Bhe' in between thetwo, must have been written through inadvertence. The sentencesare as follows :

"Sona Ullah Bhat Ke Nam work order Diya Jawe aur IsKam Ka bill ki Rakam Bhi Sona Ullah Bhat ko Hasil Karne KiIjajat Di Jawe (since changed into) Dijati Hai."

It would appear that before overwriting, the name of Sona Ullahthe word 'Bhi' must have been written through inadvertance.

Now reading with the substituted word the recommendationunder resolution No. 4, was to allot the work to Sona Ullah Bhatauthorising him also to draw the bill, though, originally the namerecommended for the work could have been any other name than theSona Ullah, though, the person authorised to draw the bill was men-tioned as Moh'd Ismail Yatoo.

Abdul Gani Yatoo, RW 3, Sarpanch of Chajjama Panchyat,who was examined on 28-10-66, has deposed that he was present inthe meeting of Panchyat on 4-9-66, and that the Petitioner, HabibUllah Bhat, Moh'd Ismail Yatoo , and Moh'd Yatoo, Aziz Bhat werealso present in that meeting, and that "The work for Panchyat Gharwas allotted to Habib Ullah, the Petitioner, though, he could not saywho wrote the proceeding exhibit PW 1/9. He, however, said thatthe members present signed it, and the Petitioner also signed it, whosesignature is exhibit RW 1/2. He has further said that Habib UllahBhat, got a copy of the resolution prepared to be sent to the Block Deve-lopment Officer. This copy has been marked as X(2) for identifica-tion. The witness has said that Habib Ullah himself cut out his name'Habib' and changed it to 'Sona' to make it read as Sona Ullah, leavingthe original 'Ullah' as it was after the substituted name 'Sona'. Thewitness initialled the cuttings in the copy marked exhibit RW 3/1,but in the resolution it was the Petitioner who cut 'Habib' and wrote'Sona' in his place and initialled it in presence of the witness. ThePetitioner also cut 'Moh'd Ismail' and wrote Sona Ullah Bhat underhis initials in presence of the witness. The initials of the Petitionerhave been marked as exhibit RW 3/2 and RW 3/2a.

Abdul Feth Dar, RW 1 who was examined on 28-10-68 is a memberof Chajjama Panchyat. He has also deposed that exhibit RW 1/2is the signature of the petitioner on the resolution exhibit PW 1/9,

10 HABIBULLAH V. GULAM RASOOL KAR [VOL. XL1

and that the work was allotted to the petitioner under the resolutionof 4-9-66. This witness was not personally present in the meeting of4-9-66. I would, therefore omit his evidence from consideration inthis regard. The evidence of RW 3, as I have mentioned above wasnot challenged on behalf of the Petitioner, nor did he examinedhimself after his evidence, although, he has been given opportunityfor it to say whether the original name recommended for the workwas his, and that he substituted the name of Sona Ullah by himselfcutting his own name 'Habib,' and that of 'Moh'd Ismail Yatoo'.It has, therefore, to be accepted on the unchallenged testimony ofRW 3, that initially in the resolution of 4-9-66 Habib Ullah was re-commended to be given the work, and Moh'd Ismail Yatoo was re-commended as the person authorised to draw the bill but it was beforethe copy of the resolution, marked X(2) for identification was sent tothe Block Development Officer, RW 4. The Petitioner had substi-tuted the name of his brother Sona Ullah. It is the evidence of RW4, also that the copy X(2) was received by him with the cutting ex-hibit RW 3/1, which is the substituted name of Sona Ullah under thethe initial of the Petitioner. But he issued the work order in the namesof Sona Ullah, Aziz Bhat, and Habib Ullah Bhat as their names werealso recommended in the resolution. He denied the suggestion onbehalf of the Petitioner that the name of these three persons were onlymentioned as the members of the supervising Construction Committee,and not as 'Thakadaran', as is said to be mentioned in the originalresolution in a different ink, and different writing. There may besome force in this suggestion that the word 'Thakadaran' was addedafter the words 'Tamiri Committee', for otherwise it may read outof context. Be that as it may, the fact comes to this that when RW4 issued the work order, the name of Sona Ullah alone, though overwritten, was the name before him, recommended for giving the work,but he allotted the work in the names of three persons Sona UllahBhat, Aziz Bhat and Habib Ullah Bhat, the Petitioner, and did notset up to the strict recommendation of the resolution cf the Panchyat..There was nothing to debar him from doing so, but in such a case,it would be a new offer by the Block Development Officer tQ the threecontractors mentioned in the work order, and cannot be taken to bean acceptance of the recommendation of the Panchyat, which hadrecommended only one name, although, Panchyat had initiallyrecommended the name of the Petitioner for the work, the name beforethe Block Development Officer was that of Sona Ullah which hadbeen changed by the Petitioner. It seems, the Petitioner rescindedfrom the recommendation, though, behind the back of Panchyat,but he could rescind from the recommendation before it was acceptedby the B.D.O. Thus on any account, the work order exhibit PW I/IO-was a new offer by the Block Development Officer to the three contrac-tors mentioned therein, including the Petitioner.

Now, the question for consideration is whether the Petitioner oras a matter of that also the other had accepted the offer of the BlockDevelopment Officer. There is no direct evidence in this regard.It is an admitted position that no agreement was executed by the

E.L.R.] HAB1BULLAH V. GULAM RASOOL KAR 1 I

allottees to whom the contract had been offered. RW 4, has admittedthat after the issue of any work order to any contractor, an agreementis executed between him and the Government through the Block Deve-lopment Officer, and that with regard to this work order, no agreementwas executed between the contractors, and the Government, but hehas said that the agreement could not be executed, because, the con-tractor did not turn up, and that it could be executed any time beforefinalization of the work.

Any acceptance of the offer of the contractor is sought to beinferred out from the conduct of the Petitioner. Pateh DarrRW 1, has "deposed that" the petitioner had done some work of thePanchyat Ghar having collected some cement and Bajri and thenhe did not complete the work. "He deposed this after having referredto the Petitioner's signature on the resolution, exhibit PW 1/9, whichrefers to this contract. He has also deposed that the Panchyat Gharwork was allotted to the Petitioner under the resolution of 4-9-66.RW 3 after speaking to the allotment of the repair work of the Panch-yat Ghar to the Petitioner, has deposed "The Petitioner collected cementand Bajri for the repair of Panchyat Ghar. He worked througha carpenter for two days in the Panchyat Ghar, and therefore, hedid not do any work". The above mentioned evidence, given byRW 1 and RW 3 was nowhere challenged in their cross-examination.They were both examined long after the petitioner, and after theirexamination, the Petitioner was given opportunity, as I have earlierindicated, to lead his evidence in rebuttal]. But he did not choseto put himself in the witness box to deny the evidence of RWs 1 and3. It must, therefore, be held that after the offer by the Block Deve-lopment Officer in the shape of the work order in the names of thesethree persons, the petitioner made some arrangements by collectingcement and Bajri, and doing some carpentry work for two days asa step in execution of the work, though he gave up the work there-after. This conduct of the Petitioner does furnish an evidence ofhis acceptance of the offer. It is true that this particular evidenceis not mentioned in the amended written statement, but evidenceis not to be pleaded.

Learned counsel, for the Petitioner has, however, contendedthat the evidence cf RWs 1 and 3 do not connect the collection of cementand Bajri and the doing of some carpentry work with the work order.But reading their evidence as a whole in the context they do connectthese acts of the petitioner with the work order. Of course they havenot indicated the time of the collection of cement and Bajri and thedoing of the carpentry work. Learned counsel has also drawn myattention to the evidence of RW 4, who had said that this work wasnot executed in his time till December, 67 but that when he had visit-ted the Panchyat Ghar, he had found some cement and Bajri collec-ted over there. His evidence can only mean! that the work was notcompleted in his time, but it does not mean that it was not even begunby collecting cement and Bajri, and doing some carpentry work asR. Ws 1 and 3 have deposed.


It is true that RWs i & 3 have not given any idea of the timewhen these materials were collected by the Petitioner, but they weresurely after the work order, and even if they were collected after theexpiry of the period of three months for completion of the work, itwould not mean that the work had lapsed, since it had been takenup by the Petitioner. If the Petitioner collected the materials inpersuance of the offer, it would amount to an acceptance of the offerby the Petitioner by his conduct. If it was accepted at a later date,the acceptance will be deemed to have come with effect from thedate of the work order, which was 4-11-68. The work was to bedone within three months, and it would cover the period of the filingof the nomination papers by the petitioner by 20-1-67 at the latest.This work order was, therefore, existence at the relevant time.

Learned counsel, Mr. Bhasin, has, however, contended that thework order by itself, even if it was assented to by conduct by the Peti-tioner, cannot be a contract within the meaning of Section 24(d)of the Representation of the People Act. He has referred to Section122 of the Constitution of Jammu and Kashmir, which like Article299 of the Constitution of India, requires all contracts to "be expressedto be made by Sadar-i-Riyasat" and to be executed on his behalfby such persons, and in such manner as he may direct or authorise.

The work order "to take up on contract the constructions in ques-tion was expressed by the Block Development Officer, RW 4, tohave been expressed in the name of "Jammu and Kashmir Govern-ment, office cf the Block Development Officer Rafiabad ". It is notdisputed that the Block Development Officer could validly enterinto the contract, on behalf of the Sadar-i-Riyasat, since the valueof the work was only Rs. 293 which the Block Development Officercould sanction within his competence . It is true that this work orderof the contract was not signed by the contractors, nevertheless asI have shown above, the Petitioner accepted it by conduct. It maybe that in absence of any formal agreement neither party could sueor could be sued for breach of contract, but for an election matter theposition is different.

The cases of Chhatur Bhuj Bithal Dass Jaseni Vs. MoreshwarParas Ram and others 1953 SC, 817 and Laliteshwar Prasad SahiVs. Bateshwar Prasad and others, 1966 SCR 63 came up for consi-deration by the Supreme Court in Civil appeal No. 1723 of 67 AbdulRahiman Khan Vs. Sadasiva Tripathi, the Judgment of whichwas delivered by Shah J. on 15-7-66. It has been held in this latestcase, decided by the Supreme Court that :

"Undoubtedly for breach of the terms of a contract notexecuted in the manner prescribed by Art. 299 (1) a suit for reliefin a civil court will not lie, but on that account it cannot be saidthat a contract for execution of works undertaken by a personthough not executed in manner prescribed by Art. 299, but which


is treated by both the parties thereto as binding will not operateas a disqualification. In a recent judgment of this Court inLaliteshwar Prasad Sahi Vs. Bateshwar Prasad and others (2)that court held that where an agreement for execution of workhad been entered into between the State Government and a privateperson by correspondence and the State Government has ratifiedthe agreement and has treated the relation between the partiesas contractual and has accepted liability arising under the termsof agreement as if it were a pending contract, a disqualificationunder the relevant provisions of the Representation of the PeopleAct results.

As already pointed out, the appellant had commenced executionof the work but had net completed it. Payment for the workdone was not made to the appellant. The contract was not deter-mined by mutual agreement nor was it abandoned.

The contract resulting from the acceptance of his tenderthough not enforceable by suit against the State Government,because it did not comply with Art. 299, must still be regardedas disqualifying the appellant under the Respresentation of thepeople Act from standing as a candidate for election to the StateLegislature."

It has been held above that this second contract was in existenceat the relevant time. The petitioner was, therefore, in terms of Sec-tion 24.(6) of the Act not disqualified to be chosen as the member.

Mr. Bhasin has, however, contended that this work was purelya undertaking of the Panchayat, and was by no means a Governmentundertaking, so to attract the provision of Section 24 (d) of the Act.In this connection, he has referred to Village Panchayat Rules, butthey all relate to how a Panchayat has to function, and they have nobearing on this question. The District Planning Officer, PW 6, whowas examined by the Petitioner, has deposed that the Panchayat under-take to execute some unit work on their own, and also under law thework of the block plan. The Panchayat as a whole execute the workson Community basis in both type. He has then given details whatworks the Panchayat can execute, but this can be done after obtainingan approval of the Block Development Officer, and that no work ordercan be issued by the Panchayat. It can be issued by the Block Deve-lopment Officer or the District Planning Officer, and that the con-tractor will be responsible to the Panchayat, and the Block Deve-lopment Officer both. He has further said that the execution of anagreement by a contractor is necessary even in the case, when a workorder is issued by the Block Development Officer on the recommendationof a Panchayat, and such recommendation may form part of theagreement. He has further added that in case of Block Works fundsare supplied by the Government and the work which are got to beexecuted by the Block through Panchayat are Government under-

14 HABIBULLAH V. GULAM RASOOL KAR i [VOL. XLI

taking under the plan, and that no work is executed without a sanc-tioned plan, that such certain block development works are got execu-ted through the contractor by the Block Development Officer.

The Block Development Officer, RW 4, has also said the panchayatis competent to sanction work only up to Rs. 250/ and not above it,

if it is to get any work executed out of this own funds. This work orderwas to be executed out of the Government funds, and, the estimatewas Rs. 293/ for which Block Development Officer alone was compe-tent to sanction. It is clear, therefore, that the work order was Govern-ment undertaking. Thus the Petitioner held a subsisting interestin a contract under the State Government within the meaning ofSection 24.(6) of the Act.

The issue is decided accordingly.

Issue No. 4 :

It has been seen under issue No. 4 that the over-writing in thenames against item No. 4 of the resolution exhibit PW 1/9 were madeby the Petitioner, though there is no evidence one way or the otherto show who could have written the word 'Thakadaran' after the words'Tamari Committee" in the said resolution. My above findingsare inspite of these cutting or interpolations of the word 'Thokadaran'.Hence they have no effect on the decision of the case.

As for the suspected over-writing in the copy of the resolutionrelating to the first contract, there may be a strong suspicron againstthe Respondent, who alone was interested about it. But the issuein relation to the first contract has been decided against the Respondent.This issue is disposed of accordingly.

Issue No. 3 /

The order of the Returning Officer rejecting the nominationpapers of the Petitioner on account of first contract was improperbut as it has been held under issue No 4, that the nomination papersof the Petitioner were liable to be rejected on the second contract be-fore. It is true that the second contract was not pleaded by the Re-turning Officer, but it is the settled principle of election laws thateither party to an Election proceeding, can plead new groundsto support or disprove of the order of the Returning Officer, rejectingor accepting the nomination papers of any candidate. The Res-pondent was, therefore, entitled to plead the new ground in this case.It has been seen that to the good luck of the Respondent, this newground was furnished by the Petitioner himself taking advantage ofwhich the Respondent amended his written statement by setting upthis new ground. The Petitioner can himself to thank for this sameside goal.

Thus the order of the Returning Officer rejecting the nominationpapers of the Petitioner can be maintained still on a new ground,

E.L.R.] LAXHAN PRASAD VA1DYA V. SRI GANGADHAR YADAORAO TAMSKAR 15

though, not on the ground of the first contract, for, which, they hadbeen rejected.

In the ultimate result the Election Petition must fail. In thecircumstances I shall allow no cost against the petitioner, since the res-pondent adopted a delaying tactics to prolong the trial after filing hiswritten statement. The Petition is dismissed without cost.

Let the result be communicated forthwith to the Election Commi-ssion, New Delhi, and the Speaker of the Jammu and Kashmir Assemblyto be fo'lowed by a copy of the Judgment in due course of time.

Petition dismissed.

[IN THE SUPREME COURT OF INDIA]

LAXMAN PRASAD VAIDYA

V.SRI GANGADHAR YADAORAO TAMASKAR AND OTHERS

(M. HlDAYATTULLAH, C. J . AND G. K. MlTTER, J.)

January 7, 1969Representation of the People Act, 1951, Ss. 58(1X0), 5 8 J , 62, 123—Conduct of Elec-

tion Rules, 1961, r.43—Corrupt practice—proof of—Poll—closing of. Procedure to be follow-ed—proof required to hold that the palling officer disallowed voters to cast votes. Ballot box—tampering of—report by the Returning Officer—relevant only when found that the election ma-terially affected by such tempering—Recount—-request for—whether rejection proper where suffi-cient reason not shown.

The appellant, an unsuccessful candidate, challenged the election of respond-ent No. 1 alleging a number of corrupt practices, namely, bribery, publication of falsestatements regarding the personal character of the petitioner, hiring of bullock cartsto bring voters, using the official influence of public servants, etc. It was further alle-ged that the presiding officer of a polling booth had wrongfully disallowed 70 per-sons present in the booth at the time of closing the poll to cast their votes. It was alsoalleged that the lock of the ballot box in one of the polling stations was broken andopened by the presiding officer, after it was sealed. The petitioner also claimed thathis request for a recount of votes was improperly refused by the Returning Officer.The High Court rejected the petition. Dismissing an appeal to the Supreme Court.

HELD : None of the allegations in the petition alleging corrupt practices wassatisfactorily proved.

Under Rule 43 of the Conduct of Elections Rules, it is obligatory on the presi-ding officer to close the polling station at the hour fixed in that behalf under section56 of the Act; and it is not open to him to admit any elector into the polling stationthereafter. He however had to allow all electors present at the polling station beforeit was closed to cast their votes. But in the instant case, none of the electors who weresaid to have been present at closing time in the polling booth made any complaintregarding the action of the presiding officer or had come to give evidence on thatscore. In these circumstances it would be unsafe to hold that the presiding officerdisallowed any voters present to cast their votes.

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Under section 58(1) (a) of the Act it is obligatory on the Returning Officer toreport the matter forthwith to the Election Commission if any ballot box used at apolling station is found tampered with to such an extent that the result of the pollat that polling station could not be ascertained. In the present case no such reportin terms of s.58 had been made and even assuming that the presiding officer had puttwo ballot papers in the box, breaking and opening it after it was sealed, as allegedin the petition, the trial court had rightly found that this materially affected the re-sult of the election.

Unless valid grounds are shown in a petition for recount of votes, it is properfor the returning officer to reject a petition and refuse recount.

Civil Appeal No. 745 of 1968.

G. L. Sanghi, for the appellant.

Vv. S. Barlingay, for respondent No. 1.

JUDGMENT

MITTER, J.—This is an appeal from a judgement and order of the HighCourt of Madhya Pradesh dismissing a petition for declaring void theelection of the first respondent to the Vidhan Sabha seat from the Bemetaraconstituency in the general election of 1967.

The petitioner, the appellant before us, is an unsuccessful candidatewho had succeeded in the elections of 1957 and 1962 on a Congress tickets.The persons who contested the seat in the 1967 election, besides the appe-llant, are the five respondents. The successful candidate was not sponsoredby any party. His symbol in-the election was a bicycle. The symbols ofthe second and third respondents were respectively 'Rising Sun' andFlower'. In the election of 1962 the official symbol of the RamarajyaParishad was the 'Rising Sun' but in the 1967 election recognition of thatparty was withdrawn and the 'Rising Sun' became a free symbol. Thesymbol 'Rising Sun' was allotted to the second respondent in the 1967election. The total number of valid votes polled at the election was35,468; the number of invalid votes 3, 663 and tendered votes 11. Thepetitioner secured 12, 024 votes as against 12, 319 cast in favour of thefirst respondent.

In the petition filed for declaring the election void the first respondentwas charged with a number of corrupt practices. The trial Judge heldthat none of these were proved with the result that dismissed the elec-tion petition. Before this Court the learned counsel for the appellant wasmore selective and pressed only a few out of those raised in the petitionand we shall deal with them in the order in which they were canvassed.The first charge was one of bribery forming the subject matter ofparagraph io(I) of the petition. In substance, the allegation was thatthe first respondent had prevailed upon respondent No. 3, Yuvarajsinghnot to withdraw from the election by promising him theuse of a jeep for his campaign free of cost. The third respondent, it waspleaded, had lost heart because of the 'Rising sun' being declareda free symbol which he was hoping to be able to secure as a candidate forthe Ramarajya Parishad and was minded to withdraw his nomination.

E.L.R.] LAXMAN PRASAD VAIDYA V. SRI GANGADHAR YADAORAO TAMASKAR 17

The promise of a jeep was denied by the first respondent. In his oralevidence the petitioner claimed to have learnt of this corrupt practicefrom Rameshwar Singh alias Jhullu and one Dhruvkumar from whomhe also came to learn that the first respondent had gone to the houseof the third respondent in the evening of January 21, 1967 for prevailingupon him net to withdraw. He did not however know whether the firstrespondent had a jeep to offer. Rameshwar Singh who was examined asP. W. 2 stated that the first respondent had gone to the office of Rama-rajya Parishad in the evening of January 21, 1967 and enquired ofYuvarajsingh as to whether he was going to contest the election or not,and on being told by Yuvarajsingh that he had no arrangements for hiselection work the first respondent proposed that Yuvarajasingh shouldcontest the election and carry on his propaganda in the jeep which thefirst respondent was going to place at his disposal. According to this wit-ness, the other persons present at the office of Ramaraj} a Parishad at therelevant time were Dhruvkumar and Dauram. Witness admittedhowever that the third respondent did not use any jeep after the 21stJanuary but he was using a taxi. Brijraj Singh, P. W. 3, gave evidenceto the effect that during the course of a conversation he had with the thirdrespondent., the latter had told him that the first respondent had promisedto help him with a jeep or a car for the purpose of his election campaign.As against this, the first respondent stated that he never had any talk withrespondent No. 3 on January 21, 1967 as suggested by Rameshwar Singhand he had never offered any jeep to him. His positive case was that hedid not own either a jeep or a car to enable him to make such a promiseor offer. The evidence of B. B. Bajpai, D.W. 6, was that the first respon-dent had a car 5 or 6 years before 1967 but he never had any jeep. Ourattention was also drawn to the oral testimony of Sajjan Singh, D. W. 4,who had stated that he had seen the first respondent using a jeep but:he had no idea as to whether it belonged to him or to his elder brother.On this evidence, the learned trial Judge found the evidence adduced by,the election petitioner to be unreliable and we fully agree with him.

The next head of corrupt practice was again one of bribery in thatthe first respondent was charged with having paid Rs. 100/- to one Pat-wari, an influential man of the Harijan community in village Bahera forthe purpose of repairing the parapet of a well in the said village in orderto induce the Harijans of that village using that well to vote for him. Thiswas denied by the first respondent. In support of his story, the petitionerstated in the course of the oral evidence that he had come to learn fromSatnami Patwari of the said village 4 or 6 days after the election that thefirst respondent had gone to the village Bahera on February 19, 1967 tocanvass for votes of the Harijans and on being informed by Satnami Pat-wari that the Harijans would only vote for the person who would get theirwell repaired, the first respondent had not only agreed to the pro-posal but had as a matter of fact paid Rs. 100/- to Patwari Satnami.The petitioner stated further that he had also been approached by theSatnamis for getting the well repaired but he had told them that hecould not make any commitment during the election., -The main evi-dence on this head was given by Patwari (P.W. 7) who said that the first

2—4 Elec. Com./71

1 8 LAXMAH PRASAD VAIDYA V. SRI GANGADHAR YADAORAO TAMASKAR [VOL. XLI

respondent had visited his village one day before the poll in the eveningand had enquired of the Satnamis about their choice of the representativeat the election. The Satnamis told him that they would vote only forwhosoever would get their well repaired. On this the first respondentpromised to help them in return for their votes and requested thewitness to meet him alone. As a matter cf fact, the witness and oneJhulu went out to him when the first respondent gave him Rs. ioo/-for getting the well repaired. In cross-examination he said that afterthe election, the Satnamis held a meeting to decide about the repairsof the well and the witness gave Rs. 50/- to one Bhikam for purchase ofcement in connection with the work but he had nothing in writing to es-tablish this. His further evidence was that besides the sum of Rs. 1 col-lie had spent Rs.20/- from his own pocket for getting the well repaired. Theoral testimony of this witness suggests that the repair work was taken upnot at the initiative of the Satnamis but on the enquiry made by Bhikamas to when they were going to get the well repaired and on being toldthat cement was not available, it was Bhikam who had promised to pro-cure the commodity and received Rs. 50/- from the witness. The well,according to the witness, had not been repaired for nearly 20 years. Jhuluthe next witness, gave evidence corroborating that the Patwari and saidthat he was near at hand when the Rs. ioo/-note was made over to Pat-wari. According to him, however, the well had been constructed by theGovernment about 8 or 9 years back and had been out of repairs for thelast five years. The actual work of repair was said to have been executed"by some labourers as well as the witness himself, Patwari and others.At first the witness said that Rs. 50/- or Rs. 60/- had been spent on therepairs but added afterwards that in all a sum of Rs. 100/- had beenspent for the purpose. The first respondent in his evidence denied havinggone to the village Behara on the 19th February or having received anyoffer either from Patwari or anybody else regarding the repair of the wellof the Harijans. He himself had never promised any money for anysuch purpose. He even went to the length of saying that hedid not know either Patwari or Jhulu and had never seen them before theelection case. His evidence was also to the effect that he had only goneto the said village before the 5th February to Jiwanlal Tiwari's housefor attending the ceremony of death anniversary. Bajpai, D.W. 6, cor-roborated the first respondent to the extent that he had accompanied thelatter to the Village Behara to the house of one Labhram. There thefirst respondent had met a cultivator whose name the witness did not re-member and had asked him for help in the election to which the cultivatorhad agreed. The learned Judge did not accept the evidence of Patwariand Jhulu and described them as got up witnesses. In our opinion, thetestimony of the two witnesses is conflicting. Whereas according to Jhuluthe well had been constructed only eight years back by Governmentaccording to Patwari it was a 20 year old well. We also cannot accept theevidence that the first respondent would approach the Harijans only theevening before the date of the poll and there make an offer of paymentof money in the presence of a large crowd or that he would pay the moneyopenly to any one. The story about the actual repair of the well isalso unacceptable. If it had been a fact that the well was in need of

JE L.R.] LAXMAN PRASAD VAIDYA V, SS.1 GANGADBAR YADAORAO TAMASKAR 19

urgent repairs, it is difficult to see why, having got the money the Satnamisshould not proceed to do something with it immediately but would waitfor two months till Bhikam came along with his offer of procuring cement.In our opinion, the whole story was a concocted one and the trial Judgerightly disbelieved it.

The third head of corrupt practice the first respondent was chargedwith was a combination of bribery and publication of a false statementIn relation to the conduct and character of the petitioner. It was statedin paragraph io(III) of the petition that on February 20, 1967 oneHiraman belonging to the Harijan community had drawn water from awell near the polling booth at Dewada at the instance of the convassersof the first respondent, Jogiram Naik and Bulakiram which roused theanger of the caste Hindus. Taking advantage of the situation, oneRambharose Praganiha of the said village, another worker of the firstrespondent, as also Bulakiram, his polling agent and Jogiram Naikgave it out that as the first respondent had instigated Hiraman to defilethe well he would after his election tolerate the molesting of their women-folk, by Satnamis. To make things worse, Jogiram pulled out a bundleof currency notes from his pocket and displaying the same to the crowdwhich had gathered told them that the first respondent would constructanother well for them if they would vote for him. As a result of this, thepetitioner was deprived of the votes of the Hindus which he would haveotherwise got. In this written statement the first respondent deniedthat Hiraman had drawn water from the well at the instance of his can-vassers. He also denied the Rambharose Parganiha, Bulakiram andJogiram had acted in the manner pleaded in the petition. He denied thatany statement had been made by any of these persons as imputedthem in the petition or that there had been a display of cunency notes byJogiram Naik or that Jogiram had done any such thing with his consent.The eye witnesses to this alleged incident examined by 'the petitionerwere Laxminatb (P.W. 13), Damodar (P.W. 14) and Gaindlal (P.W.15).Laxminath admitted that he had worked for the petitioner in the election.According to him he tried to pacify the crowd which had taken strongexception to Hiraman drinking water out of the well reserved for the casteHindus. After about half an hour of the incident Rambharose andBulakiram appeared on the scene, when the excitement bad not abated.Jogiram stated that the people supporting the Congress had used theirwell and if the Congress candidate was returned at the election he mightget their women-folk molested by Satnamis. Jogiram also took out abundle of Rs. 100/- notes and told the people that the first respondentwould get a well constructed for the caste Hindus if they supported himat the election. The incident was narrated to the petitioner 2 or 3 daysafter the publication of the result of the election. The oral testimonyof Damodar was much to the same effect. He however stated that on Hira-man touching the well Hindu Samaj people started rebuking him as wellas Laxminath. The latter was taken to task because it was thought thatHiraman had touched the well at the instance of Laxminath. It was thenthat Jogiram, Rambharose and Bulakiram came on the scene and onbeing apprised of what had happened, Jogiram made the speech imputed

20 LAXMAN PRASAD VAIDYA V. SRI GANGADHAR YADAORAO TAMA6KAR [VOL. XLI

to him and displayed the currency notes. Gendlal's evidence was on thesame lines as that of Damodar.

In his evidence the first respondent stated that Bulakiram andJogiram were not his workers. Notwithstanding such denial Bulakirambeing a polling agent would be an agent for the purpose of s. 123 of theAct. But we have to address ourselves to the question as to whether thestory of the part alleged to have been played by the named personson the date of the poll is borne out by the evidence of unimpeachablecharacter. Jogiram, D.W.2, stated that he did not go to Dewada villageon the date of the poll; neither did he know anybody by the name ofHiraman. He had never addressed any crowd as alleged nor flourisheda bundle of currency notes nor asked people to vote for the first respondentas alleged. Rambbarose, D.W.5, professed to know both Jogiram andBulakiram. He admitted that Bulakiram was a polling agent in the vil-lage of Deweda for the first respondent but he himself did not work for thelatter. He denied that there had been any conspiracy between himselfJogiram, Bulakiram and the first respondent that Hiraman should touchthe Hindu well to spark off a dispute by caste Hindus of which advantagemight be taken. He further denied tha,t any impropriety had been im-puted to the supporters of the Congress as alleged or that Jogiram hadexhibited a bundle of currency notes to allure the caste Hindus. Thewhole ston is a fantastic one and was rightly disbelieved by the trial Judgewho remarked that if the incident had really taken place, Laxminaththe worker of the petitioner, would have made no delay in bringing it tothe notice of the presiding officer. He further accepted the evidence ofRambharose to the effect that if such a thing had happened the matterwould have been brought to the notice of the grampanchayat of whichhe was the sarpanch. The learned Judge relied on the witness's statementthat there was no private well of the Hindus at Dewada and the wellsituated in the school premises was a Government well which everybodywas free to use. He also relied en the fact that the final result of the elec-tion showed that the first respondent bad got only 139 votes from thisparticular polling booth while the petitioner had secured 180 votes. Inour view, no exception can be taken to the finding of the trial judge whichwe fully endorse.

The next head of corrupt practice charged against the first respondentwas the hiring of bullock carts for the transportation of voters from theVillage Boria on the date of polling. In paragraph io(V) of the petitionit was stated that one Rajendra Gupta of village Bhera, polling agent ofthe first respondent and Dr. C. P. Agarwal of village Berla, his electionworker, had visited the village Bori? on February 20 and RajendraGupta had given Rs. 50/- to one Halal as hiring charges for bullock-cartsto transport voters from his village to the polling centre of Bebra. It wasfurther pleaded that Halal had used his own bullock cart and procuredthose of some others for transporting about 40 voters. A further chargewas made in that Rajendra Gupta had falsely told the voters who wereproceeding on foot towards Behra that they should wait for a vehicle ar-ranged by the Congress for the purpose and that one Phoolchand who

E.L.R.] LAXMAN PRASAD VAIDYA V. SRI GANGADHAR YADAORAO TAMASKAR 21

had been given directions for the purpose found no such vehicle at Bheraand returning to Boria informed the voters that no vehicle of the Congressparty was coming to fetch them, but by the time be went there it was al-ready past 5 p.m. and people who wanted to vote were prevented fromdoing so on account of the false statement of Rajendra Gupta. It wassaid that these voters were Satnamis who in the usual course would havevoted for the Congress candidate. The whole storv was denied by thefirst respondent in his written statement. The material witnesseswho were examined to prove this were Halal (P.W. 16) and Phoolchand(P.W.i7).Halal said that he did not know either the petitioner cr the firstrespondent but that Dr. C. P. Agarwal and Rajendra Gupta had gone totheir village at about noon on a motor cycle and Rajendra Gupta hadenquired of him as to whether he was willing to give his cart on hireand whether it was possible to secure carts belonging to others and giv-ing his .answer in the affirmative had received Rs. 50/- from RajendraGupta. The carts so arranged were those belonging to Paklut, Bishambarand Phoolchand. The money was distributed equally between the cartowners and the witness had taken 10 persons in his cart to Behra to casttheir votes. In cross-examination he said that he had taken his cart toBehra at about 1.0' clock, that the distance of Behra from his village wasabout three miles and that he had returned at about 3 p.m. He did notask the voters about the choice of their representative but had heardthem saying that they would vote for the person who had bicycle for hissymbol. According to him the other three carts reached Behra after hisand many people were transported to the polling booth from his village.Phoolchand's evidence was that he had been approached by Halal atabout 12 noon and informed about the payment of Rs. 50/- by RajendraGupta for carrying voters to Behra. He also said that on reaching Sat-namipara he had found Rajendra Gupta enquiring of the Satnamis pro-ceeding on foot to Behra as to the candidate of their choice and learningof the Congress candidate being their choice asking them to wait for thetransport arranged by the Congress party. Rajendra Gupta had alsotold him at Behra to see that the Congress transport was sent to the vil-lage without delay but the witness could not find any such conveyance atBehra and when he reached his village there was no time left for Satnamisto go to the polling booth and cast their votes. In the witness box res-pondent No. 1 disclaimed all knowledge of the transporting of voters fromBoria to Behra or of payment of Rs. 50/- for the purpose. Neither hadhe any personal knowledge of Halal and Phoolchand carrying any votersto the polling booth. Rajendra Gupta gave evidence to the effect thathe had acted as a polling agent of the first respondent at Behra Pollingbooth and that he was there from 7-30 a.m. to 5 p.m. on 20thFebruary 1967 with the exception of about a quarter of an hour whenhe had gone to his house at about noon to take his meal. He denied havinggone with Dr. C. P. Agarwal to Boria on that date as alleged or havingpaid any sum of money to Halal for transporting the voters. He alsosaid that he did not know Phoolchand Satnami and had never told himthat he should go to Behra to direct any vehicle engaged on behalf of theCongress to Boria for transporting voters to the polling booth. C. P.Agarwal was not examined but on the evidence before him the trial

22 LAXMAN ERASAD VAIDYA V. SFJL GANGADJSAR YADAORAO TAMAgKAR [VOL.

Judge negatived the plea. It appears to us that the story is a whollyimprobable one. Rajendra Gupta who was acting as a polling agentwould not, in the normal course of things, be expected to rush about ar-ranging for transport of voters from a place which was three miles awayfrom the booth. It is also difficult to believe that transport of voters bybullock carts would be sought to be arianged after the mid-day from sucha distance. The evidence of Halal and Phoolchand would induce one tobelieve that the voters were only too eager to vote provided transportwas arranged for them. This is against common experience. It is alsounbelievable that pepole who had set out to walk the distance would, onbeing told about the prospect of a vehicle coming to pick them up waitby the roadside till it became too late for them to exercise their franchise.In our view, there was no substance in the pleas and no truth in the testi-mony of the witnesses who came to support the same.

Another head of corrupt practice charged in the petition was based,on allegations to the effect that the first respondent had, with the helpof one B.B. Bajpai, an advocate of Bemetara, one of the polling agents atthe election, prevailed upon a Tehsildar and Magistrate at Bemetara,Mehra by name, to use his influence over one Sajjansingh, a prominantperson of the Sikh community by showing favour to Attarsingh, a closerelative of Sajjan Singh, charged with an offence under the ProhibitionAct to work for him in the election. The particulars of the charge as laidin the petition were that Bajpai and Sajjansingh had gone to Mehra'shouse on February 8, 1967 and the Tehsildar had asked Sajjansingh notto work for the Congress candidate but to help the first respondent, as-suring him of his own help in all matters. According to the petition,Mohan Singh, a deed writer had accompanied Bajpai and Sajjansinghto Mehra's house on that date. A further instance of the influenceexercised by the Tehsildar was given in the petition to the effectthat he had asked Udayaram, the leader of a Kalars, to workfor the first respondent and desist from working for the petitioner at theinstance of Bajpai on the 7th February when a criminal case againstUdayaram was pending in the court of the said Magistrate. All this wasdenied by the first respondent in his written statement. The only evi-dence on this charge on the side of the petitioner was the oral testimony ofMohan Singh, the petitioner's evidence being hardly material on thepoint. Mohan Singh, P.W. 4, deposed to the effect that he knew Sajjan-singh, Attarsingh and B. B. Bajpai and that there was a criminal casepending against Attarsingh in the court of the Naib Tahsildar at the rele-vant time. He said that about fifteen days before the poll Bajpai hadgone to the house of Sajjansingh accompanied not only by the first res-pondent but also by the witness himself. Bajpai then requested Sajjansinghto work for the first respondent but the latter expessed his inability to doso on the ground that his relative Attarsingh was being prosecuted, where-upon Bajpai promised to help him out of the difficulty in case Sajjansinghsupported the cause of the first respondent. About three days after thistalk, Bajpai, Sajjansingh and the witness had gone to the house of theMagistrate. The witness waited outside while Sajjansingh and Bajpaiwent in and had a talk with the Magistrate and on coming out told thewitness that the Magistrate had promised to help Sajjansingh who there

3.L.R.] LAXMAN PRASAD VAIDYA V. SRI GANGADHAR YADAORAO TAMASKAR 2 3

after espoused the cause of the first respondent. All this was denied by thefirst respondent in his oral testimony and he was supported therein bySajjansingh, D.W. 4 and B. B. Bajpai, D.W. 6. It is not possible to be-lieve the evidence given by Mohan Singh. If Bajpai and the first res-pondent were minded to secure the help of Sajjansingh through theinstrumentality of the Tahsildar and Magistrate, one would not expectthem to be so unguarded and unwise as to take Mohan Singh with themwhen the latter could render them no help in the matter. One cannotalso lose sight of the fact that by such uncorroborated testimony the peti-tioner sought to establish serious charges against the Gonduct andcharacter of two respectable persons like a magistrate and an advocate.We have no hesitation in rejecting Mohan Singh's evidence agreeing withthe High Court that no such corrupt practice was committed by the firstrespondent.

Besides the above, the petitioner sought to have the election set asideon some other grounds. One of these pressed before us was to the effectthat the presiding officer at Basani polling booth had wrongfully disal-lowed 70 persons to cast their votes. The plea on this head as set out inparagraph 14(1) of the petition was that at about 4.45 p.m. on the date ofthe polling more than 100 persons had assembled in the compound of theBasani polling booth when the presiding officer asked them to secure chitsfrom the patwari and get them signed by himself before these personscould cast their votes. He however did not sign any of the chits given bythe patwari to voters and some of the voters were left without his signa-ture. When these persons went to cast their votes, an objection was raisedon behalf of respondent No. 3 whereupon the presiding officer refused toallow them to poll. The petitioner himself was present at the time andhe requested the presiding officer to allow these persons to vote. TheZonal Officer who happened to turn up at that time told the presidingofficer that anybody who had come to the booth before 5 p.m. was en-titled to exercise his franchise but he left it to the presiding officer toact according to his own judgment. The presiding officer however closedthe poll and did not allow about 70 persons to cast their votes. Seventeenof them made a written complaint to the presiding officer. The pollingagent of the petitioner, Chaitram also made a written complaint. Thesecomplaints were not accepted by the presiding officer and they were latersent by post to the Assistnat Returning Officer Bemetara. The action ofthe presiding officer was said to be in violation of the mandatory provi-sion of Rule 43 of the Conduct of Election Rules 1961 and s.62 of theRepresentation of the People Act, 1951.

Under r. 43 it is obligatory on the presiding officer to close the pol-ling station at the hour fixed in that behalf under section 56 and it wasnot open to him to admit any elector into the polling station thereafter.He however had to allow all electors present at the pollingstation before it was closed to cast their votes. The oral testimony adducedon this plea was that of Ravishankar (P.W. 19), Sunderlal (P.W.20),Janaklal (P.W. 21), and Vihay Shankar (P.W. 22) on behalf of the peti-

2 4 LAXMAN PRASAD VAIDYA V. SRI GANGADHAR YADAORAO TAMASKAR [VOL. XLI

tioner, besides the petitioner himself. The petitioner's version in the de-position was set out in the petition itself. According to Ravishankar, apolling agent of the petitioner, some chits were produced before him after7.30 p.m. at Basni polling booth which were not signed by the presidingofficer but which bore the signature of the patwari. He repeated the storyas narrated by the petitioner and said that after the Zonal Officer had goneaway the presiding officer allowed a few votes to be cast and then closedthe polling. The evidence of Janaklal, another polling agent, was to thesame effect. Vinay Shankar Awasti was the Zonal Officer of Pametaraconstituency. He deposed to having visited Basni polling station between7 and 8 p.m. on the date of the poll and noticed some excitement amongthe persons gathered. He told the presiding officer on his enquiry thatvoters who had arrived before 5 p.m. within the compound of the pollingbooth should be allowed to vote and they should be given identity chitsby the patwari and signed by the presiding officer. According to himthere was a crowd of over 50 persons gathered there at the time. Thefirst respondent had no personal knowledge about all this. The learnedtrial Judge discussed the evidence in some detail and commented on thefact that Ravishankar Misra had not stated that voters who had comebefore 5 p.m. in the polling booth compound were not allowed to vote.He was of the view that the evidence of Sunderlal, a worker of thepetitioner, was not reliable. In rejecting the plea, the Judge strongly reliedon the fact that not a single elector out of the 17 persons alleged by thepetitioner to have made a complaint came to the witness box to deposeto that fact. He accepted Ravishankar Misra's evidence; but this, asalready noted, was not of any help to the petitioner. According to theJudge the best evidence on this plea would have been that of the 17 per-sons who were said to have made complaint in writing and in the absenceof these persons from the witness box and of any proof of any complaintby them, he decided the issue in favour of the first respondent and weagree with his finding.

The petitioner also complained of the conduct of the presiding officerin Chandnu polling booth in that he had allowed one Dukhitram,Kotwar of Chandnu to put in his ballot paper in the ballot box after ithad been sealed at the instance of the polling agent of the first respondentin spite of protests, thereby violating r.43 of the Conduct of Election Rules.The evidence on this point was that of Manharanlal (P.W. 23), Dukhit-ram (P.W. 18), Ravishankar (P.W. 19) and Anjuram (P.W. 24) besidesthat of the petitioner himself. The learned trial Judge discussed the evi-dence in some detail and came to the conclusion that the petitioner hadnot proved that the ballot box at Chandnu had been tampered with asalleged or that it had materially affected the result of the election andwe see no reason to come to a different conclusion.

Another similar charge was raised in paragraph 14(111) of the peti-tion that at Barla polling station the presiding officer had broken the sealof the ballot box after 5 p.m. and had wanted the polling agents of thefirst respondent to re-affix their seals in violation of the Conduct ofElecltions Rules. On this point the oral evidence adduced was that of

E.L.R.] LAXMAN PRASAD VAIDYA V. SRI GANGADHAR YADAORAO TAMASKAR 2 5

Tanwar (P.W. 9), Bachuram (P.W. 10) and Amar Nath (P.W. 11) be-sides that of the petitioner himself. According to the testimony of Amar-nath, after the ballot boxes had been closed and sealed, the presidingofficer told him that the ballot papers of two blind persons had not beenput in and he was under the impression that they were required to besent to the returning officer; but as under the instructions given tohim they had to be put in the ballot boxes, he broke open the seal ofone box and put them in.

Under s. 58(1) (a) it was obligatory on the returning officer to reportthe matter forthwith to the Election Commission if any ballot box usedat a polling station had been tampered with to such an extent that theresult of the poll at that polling station could not be ascertained. Rule55(4) of the Rules prescribes that if the Returning Officer is satisfied thatany ballot box had in fact been tampered with, he shall not count theballot papers contained in that box and shall follow the procedure laiddown in sec. 58 in respect of that polling station. In dealing with thisissue, the trial Judge observed that no report in terms of s. 58 had beenmade and even assuming that the presiding officer had put two ballotpapers of blind voters in the ballot box as alleged, it had not affectedthe result of the election materially. The trial Judge decided the pleaagainst the petitioner and we concur with him.

In paragraph 15 of the petition it was stated that on February 22,1967 at the time of counting of votes a large number of ballot papers wererejected on grounds not covered by Rule 58-A of the Conduct of ElectionRules and many ballot papers which ought to have been rejected weretreated as valid and the petitioner applied to the Returning Officerin writing for a general recount and this was turned down without anydecision. The petitioner therefore prayed for a recount as a result ofwhich he hoped to make up the deficiency of 300 votes which was the mar-gin between him and the first respondent. In this connection, it is ne-cessary to note that in the written application presented on February 22,1967 no valid ground for recounting was made out. The only groundwhich may be noted in this connection was that :

"some seal marks were on account of wrongfolding bearingimpression of the opposite side should be treated as invalid."

The petitioner also alleged in that application that he thought thatthere was a clerical error in counting and calculating and totalling.The order made on this application shows that at the state of countingnot a single complaint or any doubt was raised in respect of the manneror the efficiency of the counting. The Returning Officer further noted thathe had supervised the counting along with the Additional Collector andother persons and doubtful ballot papers had been subjected to rigorousexamination by the Assistant Returning Officer with the help of amagnifying glass. He dismissed the application on the ground that thecandidate himself had failed to give any reasons for the recount. Thelearned Judge of the High Court held that the application had been

2 6 MANUBHAI NANDLAL AMERSEY V. POPATLAL MANILAL JGSHI [VOL. XLI

properly rejected and the learned counsel for the appellant was unableto put forward any ground for departure from the Judge's conclusion.In our view, no proper case for a recount had been made out. If wehad felt that there was any substance in the complaint raised we wouldhave ordered at least a partial recount by way of sample, but on thefacts of this case we are not inclined to take that view.

In the result, the appeal fails and is dismissed with costs.

Appeal dismissed.

IN THE SUPREME COURT OF INDIA

MANUBHAI NANDLAL AMERSEY

V.

POPATLAL MANILAL J O S H I AND ORS.

(S. M. SIKRI, R. S. BAGHAWAT & K. S. HEGDE, JJ.)

January 7, 1969

Repretentation of the People Act, 1951, Ss. 83(i)(6) , 86(5), 123(2)—Amendmentof petition—when should be allowed—when Supreme Court interferes. Corrupt practice—undueinfluence—speech on cow slaughter—otherwise legitimate—when amounts to corrupt practice.

Respondent No. 1, an elector, sought to set aside the election of the appellanton the ground that he induced the voters on the basis of a religious appeal to votefor him. The allegation in the petition was that the appellant and his election agentsinduced the electors to believe that if they voted for the Congress party candidate,they would become the objects of divine displeasure and spiritural censure; one Sham-bhu Maharaj, with the consent of an agent of the appellant, appealed to the electors,in public meetings, that if they voted for the Congress candidate, they would committhe sin of gow-hatya. During the trial, respondent No. 1 sought amendment of thepetition so as to add particulars of corrupt practices namely, that in the meetingsShambhu Maharaj induced the electors to believe that their religious head, Jagad-guru Sankaracharya, had commanded them not to vote for the Congress candidateand that certain people were threatened by saying that they would commit the sinsof gow-hatya, Brahma-hatya and sadhu-hatya if they worked for the Congi ess. TheHigh Court allowed the amendment and set aside the election of the appellant. Onappeal to the Supreme Court,

HELD :—'(By the Court) : The appeal must be dismissed.

Per Sikri and Bachawat, JJ.—Where a corrupt practice is charged against thereturned candidate, the election petition, as envisaged under Section 83(i)(b) of theAct, must set forth full particulars of the corrupt practice, so as to give the charge adefinite character and to enable the court to understand what the charge is. Thecharge must be substantially proved as laid and evidence cannot be allowed to begiven in respect of a charge not disclosed in the particulars. On a charge of tellingthe electors that by giving their votes to the Congress candidate, they would committhe sin of gow-hatya, evidence cannot be led to prove a charge of telling them thatthey would commit sins of Brahma-hatya and sadhu-hatya or the sin of disobeyingtheir religious Guru. Under Section 86(5) of the Act the High Court may allow amend-

E.L.R.] MANUBHAI NANDLAL AJplRSEY V. POPATLAL MANJLAL JOSHI 2 7

ment to amplify the particulars mentioned in the petition but shall not allow amend-ment which will have the effect of introducing particulars of a corrupt practice notpreviously alleged in the petition.

Normally an application for amendment under Section 86(5) of the Act shouldbe made within reasonable time, before the commencement of the trial. The Courthas power to allow an amendment even after the commencement of the trial, but asa rule leave to amend at a late stage should be given in exceptional cases where thepetitioner could not with reasonable diligence have discovered the new facts earlier.Leave to amend the petition in the instant case, after the commencement of the trialhas resulted in gross injustice to the appellant.

Harish Chandra Bajpai v. Triloki Singh, 1957 S.C.R. 371; referred to.

All the provisions of the Code of Civil Procedure apply to an appeal to the Sup-reme Court, under Section 116A of the Act; the whole case is within the jurisdictionof the Supreme Court. Normally the Supreme Court would not interfere with thetrial Judge's discretion in granting amendments except on grounds of law, but where,as in the present case the order has resulted in manifest injustice the Court has thepower and duty to correct the error.

Evens v. Hartlem 1937 A.C. 473, 480; followed.

Public criticism of the Congress party for not abolishing cow slaughter is per-missible and legitimate. But the criticism ceases to be legitimate if the speaker committhe corrupt practice of undue influence under Section 123(2) of the Act, that is, ifhe interferes or attempts to interfere with the free exercise of electoral right. In theinstant case the speech of Shambhu Maharaj, to the effect that those who voted tothe Congress would be visited by divine displeasure, as the Congress was permittingcow-slaughter and thereby gow-hatya, amounted to interference with the free exer-cise of franchise as envisaged under Section 123(2) of the Act.

Ram Dial v. Sant Lai and others (1959) Suppl. 2 S.G.R. 748; Narbada Prasad v .Chhagan Lai and others, C.A. 2(N.C.E.) of 1968; referred to.

Per Hegde, J. :—It cannot be said that the amendment complained of was notproperly allowed.

CIVIL APPEAL NO. 1438 of 1968.

JUDGEMENT

BACHAWAT, J.—This appeal is directed against a judgement ofa single judge of the Gujarat High Court setting aside the election ofthe appellant from the Banaskantha Parliamentary constituency. Atthe last general election to the Lok Sabha from the Banaskantha consti-tuency in Gujarat there were three contesting candidates. The appel->lant, the Swatantra Party candidate, secured 110,028 votes. Respond-ent No. 2, the Congress Party candidate secured 1,05,621 votes. Res-pondent No. 3, an independent candidate secured 14,265 votes. Theappellant was declared elected.

2 8 MANUBHAI NANDLAL AMERSEY V. POPATLAL MANILAL JOSHI [VOL. XLI

The election petition was filed by respondent No. i, an elector inthe constituency. Respondent No. i alleged a number of corrupt prac-tices on the part of the appellant or his election agents, but at the trial,he pressed only the charge of corrupt practice under s. 123(2) proviso(a) (ii) of the Representation of the People Act, 1951. In the petitionthe charge was that several persons with the consent of the appellantor his election agents induced or attempted to induce the electors tobelieve that if they voted for the Congress party candidate they wouldbecome the objects of divine displeasure and spiritual censure. In theparticulars of this charge it was alleged that in the public meetingsheld at Amirgadh, Ikbalgadh, Wav, Laxmipura, Tharad, Bhabharand other places one Shambhu Maharaj told the electors that if theyvoted for the Congress candidate they would commit the sin of cowslaughter and urged them in the name of mother cow to take a vownot to vote for the Congress candidate with the result that several mem-bers of the audience publicly took the vow.

At a late stage of the trial on March 7, 1968, the High Court gaveleave to respondent No. 1 to amend the petition by adding fresh par-ticulars of the corrupt practice. The substance of the new charge wasthat at those meetings Shambhu Maharaj induced or attempted toinduce the electors to believe that their religious head Jagadguru Shan-kracharya had commanded them not to vote for the Congress and thatcontravention of his command would be a sin and would be visitedwith spiritual censure and divine displeasure. The High Court foundthat the aforesaid corrupt practice was committed by Shambhu Maha-raj with the consent of one Punambhai, the election agent of the appel-lant, and declared the appellant's election to be void.

The appellant challenges the legality of the order passed by theHigh Court on March 7, 1968 allowing the amendment. The electionpetition was filed on April 10, 1967. The appellant filed his writtenstatement on June 1, on September 9, the High Court gave leave torespondent No. 1 to amend the petition, by adding the charge thatcertain persons were threatened that they would commit the sins ofgo-hatya, Bramha-hatya and Sadhu-hatya, if they worked for the Con-gress candidate. The order disallowed amendments seeking to intro-duce charges of appeal to voters in the name of religion under s. 123(3).The appellant filed his additional written statement on October 19.Issues were framed on November 30. Respondent No. 1 filed his listof witnesses on January 11, 1968. On February 21, the trial startedand P. W. 1, P. W. 2, P. W. 3, and P. W. 4 were examined. P. W. 4,Ram Swarup was a witness with regard to the meeting at Amirgadh.The issues were amended on March 1, so as to make it clear that therewas no charge of any corrupt practice under 5.123(3). On the samedate, respondent No. 1 was examined as P. W. 5. On March 2, P. W.6, P. W. 7, P. W. 8 and P. W. 9 were examined. P. W. 7 and P. W. 8spoke about the meetings at Palanpur and Bhabhar. P. W. 9 Bhogi-lal spoke about the meeting at Ikbalgadh. On March 4, P. W. 10 andP. W. 11 were examined and spoke about the meetings at Wav andLaxmipura. On the same day, P. W. 12 S. P. Pandya, a sub-inspector

E.L.R.] MANUBHAI JSANDLAL AMERSEY V. POPATLAL MANILAL JOSHI 2 9

of police at Palanpur, and P. W. 13, G. B. Barot, a shorthand writerwere examined. The examination of Barot was concluded on March6. Barot proved that he took short-hand notes of the speeches of Sham-bhu Maharaj at Ikbalgadh, Amirgadh, Bhabhar, Laxmipura, Wavand Tharad and sent reports of the speeches to S. P. Pandya. On Mar-ch 6, P. W. 14 and P. W. 15 were examined. On March 5, respondentNo. 1 filed an application for leave to amend the petition by addingportions of the speeches which referred to the command of Shankra-charya not to vote for the Congress and the consequences of not obey-ing the command. The application was allowed on March 7, 1968.The trial was then adjourned and started again on April 8. BetweenApril 8 and April 15, P. W. 17, P. W. 18, P. W." 1 and P. W. 2 wereexamined. The judgement was delivered on April 22 and 23.

The first question is whether the trial judge should have allowedthe amendment. Section 83(1) (b) provides that "An election petitionshall set forth full particulars of any corrupt practice that the petition-er alleges, including as full a statement as possible of the names of theparties alleged to have committed such corrupt practice and the dateand place of the commission of each such practice". The section ismandatory. Where a corrupt practice is charged against the returnedcandidate the election petition must set forth full particulars of thecorrupt practice so as to give the charge a definite character and toenable the court to understand what the charge is. The charge mustbe substantially proved as laid and evidence cannot be allowed to begiven in respect of a charge not disclosed in the particulars. On a chargeof telling the electors that by giving their vote to the Congress candi-date, they would commit sin of go-hatya, evidence cannot be led toprove charge of telling them that they would commit sin of Bramhahatya or the sin of disobeying the command of their religious leader.Section 86(5) allows amendment of the particulars. It provides that"the High Court may, upon such terms as to costs and otherwise asit may deem fit, allow the particulars of any corrupt practice allegedin the petition to be amended or amplified in such manner as may inits opinion be necessary for ensuring a fair and effective trial of thepetition, but shall not allow any amendment of the petition which willhave the effect of introducing particulars of a corrupt practices notpreviously alleged in the petition". In Harish Chandra Bajpai v. TrilokiSingh1 the Court held that though under the English law the petitionerwas not obliged to give the particulars of the corrupt practice in hispetition the difference was a matter of form and not of substance andthat under s. 83(3) as it stood before 1955 the Court could allow anamendment introducing fresh instances of the corrupt practice allegedin the petition. Referring to the English practice the Court observedat page 382 : "It is sufficient if the particulars are ordered to be fur-nished within a reasonable time before the commencement of the trial".Section 83(3) has been repealed and is now replaced by s. 86(5) whichforbids any amendment introducing particulars of a corrupt practicenot previously alleged in the petition. Assuming that the amendment

(1) 1957 S.C.R. 371: . .. • .

3 0 MANUBHAl NANDLAL AMERSEY V. POPAtLAL MANILAL JOSfil [VOL. XLI

of March 7, 1967 was permissible under s. 86(5), the question is whe-ther the High Court rightly allowed it. Normally an application foramendment under s. 86(5) should be made within a reasonable timebefore the commencement of the trial. The Court has power to allowan amendment even after the commencement of the trial, but as a ruleleave to amend at a late stage should be given in exceptional cases wherethe petitioner could not with reasonable diligence have discovered thenew facts earlier. Leave to amend will not be given if the petitioneris not acting in good faith or has kept back the facts known to him be-fore the trial started.

According to respondent No. 1 Shambhu Maharaj committedcorrupt practice at election meetings held at Ikbalgadh where P. W.9 was present, Amirgadh where P. W. 4 was present and at Wav whereone Chotaji Bhattji was present and that he came to know of the cor-rupt practices from those persons. All the meetings are referred to inthe election petition. If Shambhu Maharaj had told the electors thatSri Shankracharya had commanded them not to vote for the Congresscandidate and that disobedience of his command would be sinful, P.W. 4 and Chotaji Bhattji must have informed respondent No. 1 of thiscorrupt practice before April 10, 1967 when the election petition wasfiled. No explanation is given as to why respondent No. 1 withheldthis information in the petition. Respondent No. 1 now says that onApril 17, 1967 he applied for certified copies of the reports of C. B.Barot to the Deputy Inspector-General of Police, C. I. D., Ahmeda-bad but the application was rejected on May 14, 1967. Assuming thathe could not get certified copies of the reports, he could set forth inthe petition the substance of the charge with regard to the commandof Sri Shankracharya from the information supplied by his informants.He knew of the reports of C. B. Barot before April 17, 1967. Immediate-ly after filing the election petition he could subpeona the reports andunder orders of the Court he could inspect them long before the trialstarted. He was aware that the charge of telling the electors that they"would commit the sin of go-hatya was quite different from the chargeof telling them that they would commit the sin of Brahma hatya or thesin of disobeying the .command of their religious leader Shri Shankra-charya. On September 25, 1967, he obtained an order giving himleave to amend the petition by adding the charge with regard to thesins of Brahma hatya and Sadhu hatya, but he deliberately refrainedfrom adding the charge with regard to the sin of disobeying the commandof Shri Shankracharya. The trial commenced on February 29, 1968.On that date P. W. 4 said that at the Amirgadh meeting ShambhuMaharaj told the electors that he had brought a mandate from Jagad-guru Shankracharya. On an objection being raised by the appellant'scounsel Mr. Mehta, counsel for respondent No. 1, agreed that the sta-tement of P. W. 4 would not be treated as part oi the evidence on therecord. Thereafter the trial proceeded and n more witnesses wereexamined on the footing that respondent No. 1 would not rely on the•charge with regard to the command of Jagadguru Shankracharya.On that footing the appellant's counsel adopted a definite line of cross-

JX.R. ] MANUBHAI NANDLAL AMERSEY. V. POPATiAi MANILAL JOSHI 31

examination. On March 4, he consented to the marking of the fullreports of the speeches of Shambhu Maharaj as exhibits and on March5, he extracted an admission from Barot that the witnesshad taken verbatim notes of the speeches of Shabhu Maharaj.Counsel adopted this line of cross-examination because he took thestand that the speeches did not prove the corrupt practice allegedin the petition. The application for amendment was filed on March5 and was allowed on March 7. The order allowing the amendmenthas resulted in manifest injustice to the appellant. His counsel couldnot thereafter take the stand that the reports had been fabricatedat the instance of the Congress party. Respondent No. 1 moved theapplication for amendment in bad faith at a very late stage of the trial.He deliberately refrained from taking the new charge earlier.

Under s. 116A an appeal lies to this Court on any question whe-ther of law or fact from the order of the High Court. The procedurein appeal is regulated by s. 116C. All the provisions of the Code ofCivil Procedure including s. 105 apply to the appeal, and any errorin an order of the trial court affecting the decision of the case may betaken as a ground of objection in the appeal. In an appeal under s.116A the whole case is within the jurisdiction of this Court. Normallythe Court does not interfere with the Judge's discretion in grantingamendments except on grounds of law but where, as in this case, theorder has resulted in manifest injustice, the Court has the power andthe duty to correct the error. In Evans v. Hartlem2 Lord Atkinobserved :—

"Appellate jurisdiction is always statutory : there is in thestatute no restriction upon the jurisdiction of the court of appeal :and while the appellate court in the exercise of its appellate poweris no doubt entirely justified in saying that normally it will notinterfere with the exercise of the judge's discretion except on gro-unds of law, yet if it sees that on other grounds the decision willresult in injustice being done it has both the power and the dutyto remedy it."

We, therefore, held that the order of the trial judge allowing the amend-ment was erroneous and must be set aside.

Respondent No. 1 proved six speeches of Shambhu Maharaj.He did not rely in the trial court on the speeches at Laxmipura, Bha-bhar and Tharad. Mr. Gokhale stated that he did hot rely on thesespeeches for any purpose whatsoever. Accordingly, those speecheswere not read in this Court. There is no charge against the appellanton the ground of appeal to the electors on the ground of religion. Theonly charge against him is that in his speeches at Ikbalgadh, Amirgadhand Wav, Shambhu Maharaj with the consent of his election agentPunambhai told the electors that "if they voted for the Congress partycandidates the voter would commit the sin of cow slaughter (gaumatavadh)." Respondent No. 1 has not proved the charge that the electors

(2) 1937 A.C. 473, 480.-481.

32 MANUBHAI NANDLAt AMERSEY V. POEATLAL MANILAL JOSHI [VOL. XLI

were urged in the name of mother cow to take a vow not to vote for theCongress party candidates, with the result that several members of theaudience publicly took the vow. The Ikbalgadh speech (Ex. BI) andthe Amirgadh speech (Ex. B3) were delivered on February 8, 1967.The Wav speech (Ex. B4) was delivered on February 9, 1967. Therewas then an acute political controversy with regard to the total banon cow slaughter. Section 5(1) of the Bombay Animal PreservationAct, 1954 (Bombay Act No. LXXII of 1954) as amended by GujaratAct No. XVI of 1961, there was a total ban on cow slaughter in Guja-rat. But there was no absolute ban on cow slaughter in several otherStates. The Swatantra party was agitating for a total ban on cow slau-ghter throughout India. Public criticism of the Congress party for notabolishing cow slaughter throughout the country was permissible andlegitimate. But the criticism ceases to be legitimate if the speaker com-mits the corrupt practice of undue influence under s. 123(2), that is,if he interferes or attempts to interfere with the free exercise of elec-toral right. Under s. 123(2) proviso (a) cl. (ii) there is such undueinfluence if any person with the consent of the candidate or his elec-tion agent "induces or attempts to induce a candidate or an electorto believe that he, or any person in whom he is interested, will becomeor will be rendered an object of divine displeasure or spiritual censure."The actual effect of the speech is not material. Corrupt practice iscommitted if the speech is calculated to interfere with the free exerciseof electoral right and to leave no choice to the electors3 in the matter,see Ram Dial v. Sattt Lai & others 3.

In considering the speeches the status of the speaker and the cha-racter of the audience are relevant considerations. Shambhu Maha-raj was a kirtankar of repute and well known and respected for hislectures on Hindu religion. The audience consisted mostly of illiterateand orthodox Hindus of the rural areas, adivasis and rabaris belong-ing to the Scheduled Tribes and Scheduled Castes. In this background,let us now consider the speeches. Respondent No. 1 charges corruptpractice in respect of 4 passages in the Ikbalgadh speech (Ex. B 1),6 passages in the Wav speech (Ex. B4) and 3 passages in the Amirgadhspeech (Ex. 3). The learned trial judge found that the corrupt practicewas committed by 1st and 2nd passages in Ex. Bi, the 1st, 2nd, 3rdand 6th passages in Ex. B4 and the 1st passage in Ex. B 3.

But the learned Judge held that 3rd and 4th passages in Ex. Biand the 4th and 5th passages in Ex. B4 amounted to corrupt practiceas the electors were told that Sri Shankracharya had commanded them notto vote for the Congress and that if they disobeyed bis command theywould incur divine displeasure and spiritual censure. We have disallow-ed the amendment introducing this charge and we must therefore setaside the finding of the learned judge with regard to those passages.We find that the passages do not show any corrupt practice as allegedin the petition.

In the 2nd passage in the Amirgadh speech (Ex. B3) the speakerreferred to the ban on cow slaughter in Pakistan, Afghanistan and

(3) 1959 supp- (2) 748, 758; 76o.

E.L.R.] MANUBHAI NANDLAL AliEFLSEY V. POPATLAL MANILAL JOSHl 3 3

Madhya Pradesh and said that the Swatantra party had promised to banslaughter of cow progney and exemption of land revenue. He also said :""Sun rises and twenty two thousand cows are slaughtered.... In Ah-medabad there is a prohibition on cow slaughter but the slaughteringof calf and ox is continued. The earth took the form of a cow and ifthe said "Gaumata" or ox is slaughtered how can earth be satisfiedand so iong as the earth is not satisfied how can there be fertility in theearth". In the thiid passage (Ex. B3), the speaker said :—

"In the year 1942 sixteen lacs and in 1946 twenty four lacsand in 1947 after India became separate and at present about1 croie cows are slaughtered. You say whether to vote for Con-gress is to become partner in sin or any thing else. If you givecooperation for good cause you may get good fruit and if you co-operate in committing a sin you become a partners of sin. Whyyou become a partner of sin by giving votes to Congress ?"

He then referred to the command of Sri Shankracharya that the elec-tors should not vote for the Congress party. But even a part from thecommand of Sri Shankracharya the electors are distinctly told thatthough there was a ban on cow slaughter in Ahmedabad, the Congresswas permitting the slaughter of crores of cows elsewhere in India andwas committing the sin of gohatya and those who vote for the Congresswould be partners in the sin. The dominant theme of the speech wasthat those who commit the sin of gohatya would be visited with divinedispleasure. Having regard to the character of the audience, the speechwas calculated to interfere with the free exercise of electoral right. InNarhada Prasad v. Chhagan Lai &• orsf Hidayatullah C. J., observed :—

"It is not necessary to enlarge upon the fact that cow is vene-rated in our country by the vast majority of the people and thatthey believe not only in its utility but its holiness. It is also believedthat one of the cardinal sins is that of gohatya. Therefore, it isquite obvious that to remind the voters that they would be commit-ting the sin of gohatya would be to remind them that they wouldbe objects of divine displeasure or spiritual censure."

In Encyclopaedia of Religion and Ethics, edited by James Hastings,vol. 4, pp. 225, 226, it is stated :—

"A well known verse (Maharashtra, xiii. 74.4) says : "Allthat kill, eat and permit the slaughter of cows, rot in hell for amany years as there are hairs on the body of the cow so slain."

"Reverence for the cow has not diminished in modern times.It is well known that the Hindus of the present day are filled with'horror at the slaughter of the cow, which is therefore prohibitedin native States under treaties with the English."

(<# C;A; No. 2 (NGE) of 1968 deed, on 30-7-683—4 Elec. Com./71

3 4 MANUBHAI NANDLAL AJJERSEY V. POPATLAL MANILAL JOSRI [VOL. XLI

According to B. N. Mehta's Modern Gujarati-English Dictionary,vol. i, page 480, gohatya (go, a cow + hatya, killing) means in Guja-rat "slaughter of a cow; killing a cow, being one of the five great sinsaccording to Hindu scriptures which can be stoned for only with capi-tal punishment."

Accordingly, the offending passages in the Amirgadh speech fellwithin s. 123(2) proviso (a) (ii). We are satisfied that Shambhu Maha-raj spoke at the Amirgadh meeting with the consent of Punambhai,the election agent of the appellant. Punambhai was present at theAmiigadh meeting. He addressed the meeting before Shambhu Maha-raj spoke. Shambhu Maharaj addressed several other election meetingsof the Swatantra party. Punambhai issued a pamphlet calling oneof the meetings. P. W. 10 proved that he was asked by Punambhaito call Shambhu Maharaj for addressing another meeting as the voterswere uneducated and had deep belief in religion. Punambhai accom-panied Shambhu Maharaj from one place to another. On February8, 1967 he went with Shambhu Maharaj to the meeting at Ikbalgadhand thereafter went to Amirgadh. On February 9, he went with Sham-bhu Maharaj to the meeting at Wav. The offending passages of thespeech at the Amirgadh meeting are integral parts of the dominanttheme of the sin of cow slaughter. They cannot be regarded as straywords spoken by Shambhu Maharaj without Punambhai's consent.Punambhai did not raise any objection to the impunged speeches atthe meeting. He gave evidence in Court but did not say that he wasnot a consenting party to the offending passages. We hold that thecorrupt practice under s. 123(2) proviso (a)(ii) was committed at theAmirgadh meeting on February 8, 1967 with the consent of the elec-tion agent of the appellant.*

In the result, the appeal is dismissed. There will be no orders asto costs.

HEGDE J.—I have had the advantage of reading the judgementjust now read out by Bachawat J. I agree that the appeal should bedismissed. But I am unable to agree that the amendment complainedof was not properly allowed. The learned trial judge has given goodreasons in support of his order. In my opinion no case is made out tointerfere with that order. I am also of the opinion that each and everyone of the speeches made by Shambhu Maharaj which are the subjectmatter of this appeal, read as a whole as we should do, fall within thevice of proviso a(ii) of s. 123(2) of the Representation of the PeopleAct, 1951. Nothing so bad as those speeches I have come across inelection cases. They are fanatical outpourings and a direct challengeto the concept of a secular democracy.

Appeal dismissed*

E.L.R 1 LALROUKUNG V. HAOKHOLAL THANGJOM 35


LALROUKUNO

V

HAOKHOLAL THANGJOM & ANR.

(J. M. SHELAT AND G. A. VATDIALINGAM JJ.)

January 9, 1969

Representation of the People Act, 1951, Sections 123(2) Proviso (a), 123(3). Corruptpractice—Circumstantial evidence—proof of-—condition to be satisfied when circumstantial evi-dence is relied upon to prove corrupt practice.—Currupt practice—Organisations formed on commu-nal basis put up candidates and appeal to the members of the community to vote for him alone—issue pamphlets to that effect—whether corrupt practice.—Corrupt practice—appellant's pollingagent and supporters attacking the polling agent of respondent on polling day—deterred votersfrom coming and exercising their franchise freely—whether amounts to corrupt practice.—Amend-ment of the petition—Plea of publication of pamphlets raised in the original petition—amend-ment sought to add the plea that the appellant and his agents distributed them—amendment allowed—whether proper.

The returned candidate filed the present appeal against the order of the Judi-cial Commissioner setting aside his election on various grounds of corrupt practices.The Judicial Commissioner found, inter alia, that the following corrupt practiceswere committed by the appellant : (i) H.N.U. a Communal Organisation of theHmar Tribe, in alliance with the P.N.C., another communal organisation of the PaiteTribe, sponsored the candidature of the appellant and appealed to the members ofthe two communities to vote for the appellant alone and not for any other candidate;and for this purpose issued pamphlets and newspaper writings based on the groundof caste and community ;

(ii) on one of the polling days, the appellant's agent and supporters assaultedone of the polling agents of the respondent and this incident deterred the voters inthe area from exercising their right of franchise freely.

Dismissing an appeal to the Supreme Court, HELD :—(i) A charge of corruptpractice is in the nature of a criminal charge and its consequence is not only to rend-er the election of the returned candidate void, but in some cases to impose upon hima disqualification. The evidence in support of such practices must, therefore, be co-gent and definite and if the election petitioner, has to succeed he must establish defi-nitely to the satisfaction of the limit the charge he levels against the returned candi-date. Where, however, the charge is one of complicity in such corrupt practices, di-rect evidence cannot always be expected and in such cases circumstantial evidencecan also furnish legitimate proof. In such cases, however, the circumstances reliedon must be definitely proved and the inferences sought to be drawn from them mustpoint definitely to the complicity of the person against whom the charge is levelled.

Mohan Singh v. Bhanwarlal, 1964(5) S.C.R. I2;jagdeo Singh Sindhantiv. Pratap SinghDaulta 1964(6) S.C.R. 750; D. Gopalla Reddy v. Rai Talpalikar, C.A. No. 6 of 1968decided on August 1 & 2, 1968; Rama Kisan V. Jai Singh C, A. No. 1949 °f 1967.decided on April 23, 1968; referred to

(ii) P. N. C. and H. N. U. were purely communal organisations their member-ship being confined to the members of the two tribes, namely, Hmars and Paites only.No attempt was made to show that the membership was open to other tribes. Beingthe largest of the non-Naga Tribes in Manipur, the object of combining together wasto ensure the election of the candidates from their tribes only and to give no chanceto anyone else to succeed in the election. The appeal by these organisations was not

36 LALROUKUJJG V. HAOKHQLAL THANGJOM [VOL. XLI

made on the footing that if the appellant, a Hmar, was elected by the two tribes, hewould undertake work of general utility for the two tribes or try to redress their grie-vance?. On the other hand the appeal was to vote for the appellant, being a memberof the Hmar community and caste and fell within i.he mischief of s.123(3) of the Re-presentation of the People Act, even if a restricted meaning was to be attributed tothe word "community" in the light of the other words, namely, caste, language andreligion, used along with it in that sub-section.

Ghasi Ram v. Dil Singh, G.A. No. 1632 of 1967 Decided on 7-2-1968; JV. L. Var-ma v. Muni Lai 18 E.L.R. 495; Khilumal v. Arium Das 12 E.L.R. 404; Kultar Singhv. Muktiar Singh A.I.R. 1965 S.G. 141; distinguished.

(iii) In the light of the propaganda carried on for the success of the appellantit was impossible to view the assault on the polling agent of the respondent by theappsllant's polling agent as an isolated incident. Such rowdism at a polling stationwas bound to deter voters from coming to the polling station to exercise their franchisefreely. Therefore, the assault by the appellant's polling agent attracted 8.123(2) Pro-viso (a).

(iv) In t'as original petition the plea of publication was in fact taken and pub-lication mint n"5>sarily include and msan distribution also. Permitting the inclu-sion of a plea, by amsriding cha petition, that the appellant and with his consent hisagents distributed the publications cannot be said to be illegal.

Me Farlant v. HiUton 1899(1) Ch. 884 at 888; referred to.

Civil Appeal No. 1315 of 1968.

JUDGEMENT

SHELAT, J.—This appeal is by the returned candidate againstthe order of the learned Judicial Commissioner, Manipur, declaringhis election to the Legislative Assembly of the Union Territory of Mani-pur from Churachandpur constituency void and ordering re-poll.

In the General Elections held in 1967 Churachandpur constitu-ency had a reserved seat for scheduled castes and tribes. There werealtogether 7 candidates for that seat. Respondent 1 is a member ofthe Gangte Tribe while the appellant belongs to Hmar Tribe. OnMarch 8, 1967 the appellant was declared elected, he having recei-ved the highest votes, viz., 3558 votes as against 2654 votes obtainedby the second best. Respondent 1 received only 2643 votes. Respond-ent 1 thereafter filed the present petition alleging therein several corruptpractices on the part of the appellant. These allegations were deniedby the appellant in his written statement. The Judicial Commission-er on the rival pleadings raised a number of issues. Some of which hedecided in favour of the appellant. In this appeal we are concernedonly with issues 2, 4 and 7. These issues were :

E.L.R.] LALROUKUNG V. HAOKHOLAL THANGJOM/ 3 7

(2) "Whether the election of the ist respondent (the appellant)was illegal and is liable to be set aside for corrupt practices andundue influence ?"

(4) "Whether there was obstruction by the agents of the ist res-pondent (the appellant) and whether his election is liable tobe set aside ?" and

(7) "Whether the election of the respondent i (the appellant)is liable to be set aside for the grounds mentioned in the peti-tion ?"

At the relevant time there were two organisations in Churachandpurconstituency known as Hmar National Union (H. N. U.) and thePaite National Council (P. N. C.)- The two organisations, whose mem-bers were confined to the Hmar and Paite tribes, formed an alliancesometime before the elections with the object of ensuring the electionof candidates from the two tribes sponsored by the two organisations.The alliance, therefore, canvassed for the appellant, a Hmar by tribe,in Churachandpur area and for a Paite candidate in Thanlon areaof Churachandpur constituency, asking the Hmar and Paites livingthere to vote only for these candidates and to refrain from voting forany other candidate from any other tribe. In furtherance of this ob-jective the two organisations issued appeals by way of pamphlets andthrough a fortnightly newspaper called the "Voice of Churachand-pur". In these writings, most of which were in Paite language, thePaites of Churachandpur constituency were called upon to vote forthe appellant, though a Hmar, in consideration of the Hmar votingfor the said other alliance candidate, a Paite, in Thanlon area. Theallegation was that this appeal was made on the ground of caste andcommunity and therefore amounted to a corrupt practice within themeaning of s. 123(3) °f t n e Representation of the People Act, 1951.The second corrupt practice alleged was that on one of the voting days,i. e., February 15, 1967, P. W. 8, the polling agent of respondent 9,was assaulted by the supporters of the appellant, one of whom wasthe agent of the appellant, at Pearasmu polling station, that the assaultdeterred the voters from freely exercising their right of ballot and there-fore constituted undue influence within the meaning of proviso (a)to s. 123(2). The third corrupt practice alleged was that in furtherpursuance of the appeal to the Paites and Hmars, the P. N. C. announc-ed an award to the village which gave the maximum votes to the can-didate sponsored by the said alliance and that a cup called "the 1967Election Cup" was given away to the village Bingpilan after takingout a ceremonial procession in which the President of the P. N. C. andthe appellant took part. This, according to respondent 1, account-ed to bribery within the meaning of s. i23(i)(A)(b). The 4th corrupt

38 LALROUKUNG V. HAOKHOLAL THANGJOM [VOL. XLI

practice alleged was that during the course of the election campaignpropaganda was carried on through the said writings to the effect thatthe goal of these tribes was to set up a separate sovereign 'Chin' Stateby unifying all 'Chin' (i. e. all non-naga tribes) within Manipur andbeyond in Burma, that those who stood against the candidates spon-sored by the alliance were the enemies of the 'Chin' nation, who des-troyed the solidarity of these tribes and that they "will not be forgotten".By these writings, it was alleged, a feeling of hatred and enmity wasaroused against respondent i and other candidates who did not belongto Hmar and Paite tribe and who were not espoused by the said alli-ance. In his written statement the appellant denied these allegations,his principle stand being that he did not know of and was not privyto these writtings and did not in any event give his consent to anyone of them.

At the hearing both parties led considerable evidence, oral aswell as documentary. Some of the issues of "the Voice of Churachand-pur" and other pamphlets said to have been published and distribut-ed during the election campaign were also produced. Ex. A/7, an Eng-lish translation of the news item in Paite language from the issue of"the Voice of Churachandpur" dated January 25, 1967 announcedthe alliance between P. N. C. and the H. N. U. signed on January 18,1967 and appealed to the Hmar people in Thanlon area to vote in fa-vour of M. Goukhenpao, though a Paite, and the Paite people in Chu-rachandpur area to cast their votes in favour of the appellant, thougha Hmar. The news item declared that the alliance was between "thetwo giants" among the non-naga tribes of Manipur and therefore itwould be "awfully terrifying for others to contest as M. L. A." Ex.A/8, an English translation of an election bulletin issued by the P. N.C. and published in "the Voice of Churachandpur" announced thatthe village which votes best for the P. N. C. would be awarded "theGeneral Election 1967 Cup" by the President of the P. N. C. On Ja-nuary 31, 1967 a pamphlet was issued by the Paite College StudentsUnion at Imphal advocating solidarity amongst the Paites and warn-ing that there were several enemies of the P. N. C. who had put uprival candidates with the object of disintegrating that solidarity andexhorted that it was imperative "for the Paites and the Hmars to standunited for the creation (Unification) of 'Chin' nation. Let us workevery where we are so that their unity may bring forth diverse goodfruits. The long^cherished hope of the new generation is the unifi-cation of the Chin nation. All our equals have crossed yonder. Whatabout us ? " The leaflet further exhorted caution against the othercandidates and stated "Let us remember that these individuals andvillages who oppose the opinion of the P. N. C. and H. N. U. are thepersons who sell out our nation and country. They will never be for-gotten". Ex. A/13 is a bulletin issued by the H. N. U. announcingthat "The alliance between the H. N. U. and the P. N. C. is for thesuccess of both of us. So, this alliance which is good for the Hmarsis also meant to be good for the Paites." The issue of "the Voice ofChurachandpur" dated February 10, 1967 published a resolution of

B.L.R.] LALROUKUNG V. HAOKHOLAL THANOJOM 39

the third meeting of the Paite College Students at Imphal calling forsupport by the Paites to the candidates sponsored by the said alliance.The resolution noted that the said students had selected the delegatesnamed therein to persuade the other candidates to retire from the con-test with a message that they violated the party policy and had becometurn-coats to their nation and calling upon the leaders of the P. N. G.to be firm in their policy and threatening that those who opposed thatpolicy "are not to be spared at all".

On the basis of these writings and the oral evidence the learnedJudicial Commissioner arrived at the following findings : that thesewritings appealed to the Paites and the Hmars of Churachandpur con-stituency to support candidates sponsored by the alliance only and notto vote for belonging to other tribes, that this appeal was based oncaste and community, that as gratification for support an award of acup to the village who gave the maximum support to Hmar and Paitecandidates was announced and the President of the P. N. C. did infact gave it away on April 8, 1967 to the said village Bingpilan, thatthrough Ex. A/9 the students of the Paite college not only canvassedfor these candidates but appointed delegates to persuadeother candidates not to contest and thus not to break the solidarity ofthe Paites and the Hmars threatening those who did not support thecandidates of the alliance that they would not be forgotten nor sparedand dubbing them as the enemies of the 'Chin' nation. He also foundthat the appeal to vote only for Hmar and Paite candidates sponsoredby the said two bodies was prejudicial to the electoral chances of res-pondent 1 who belonged to Gante tribe and that this propaganda onbehalf of the appellant was clearly and beyond doubt on the basisof caste and community.

The evidence of T. Thangkhokai, F. W. 11, was that he was theeditor of "the Voice of Churachandpur" since 1965 and at the mate-rial time was also the General Secretary of the P. N. C. He admittedthat the newspaper as also Exs. A/6, A /n and A/12, the originals inPaite language whose translations in English are cited above, wereprinted at the L & R Printing Press in Churachandpur in which theappellant was a partner. The appellant himself also admitted in hisevidence that he was a partner in the said press. His denial of any know-ledge that those writtings were printed in his press was disbelieved,and in our view quite legitimately, by the Judicial Commissioner.

The question next is whether these pamphlets were printed anddistributed by or with the consent of the appellant. In that connec-tion there was the evidence of P. Ws. 1 to 7, 12 and 13 and also of res-pondent 1, who all testified that these pamphlets and some of the issuesof "the Voice of Churachandpur" were distributed at various placesamongst the voters by the H. N. U. and the P. N. C. There was alsoevidence that the appellant and his agent, K. T. Lalla, R. W. 14, mo-ved about in a jeep distributing these pamphlets. The evidence wasthat the theme of these pamphlets was that the 'Chins' living in Indi a

4 0 LALROURUNG V. HAOKHOLAL THANGJOM [VOL. XLI

and Burma should unite and form one nation, that the non-naga tri-bes of Manipur were all 'Chins' and that they should stand united toform a separate independent State, that the Paites and Hmars werethe biggest tribes against whom the other tribes could not withstand.

As against this evidence, the appellant and his witnesses deniedany knowledge of or the distribution by them of these writtings. Theappellant also denied that he was a member of the H. N. U. In cross-examination however, he was constrained to admit (ij that he was apartner in the I, & R. Press. (2) that "the Voice of Churachandpur"was printed by that press, (3) that the name of that press was printedon the said pamphlets and writtings and (4) that some of these relatedto him and the said Goukhenpao, the Paite candidate for Than'onarea sponsored by the said alliance. The Judicial Commissioner foundon this evidence that the appellant's denial of knowledge that thesepamphlets were printed in his press was unbelievable, that as againstthe evidence of so many witnesses his denial that he and with his con-sent his agents distributed them was also equally unbelievable. Hefurther found that through these pamphlets the appellant campaign-ed for this candidature on the basis of caste and community. He alsofound that P. W. 8, a polling agent of respondent 1 and voter, was as-saulted ?t Pearsonum polling station by a number of persons, thatamong these who assaulted him was the agent of the appellant, thatthe appellant was on that day at that polling station, that the attackwas a severe one in. that P. W. 8 had to remain in a hospital as an in-door patient for 12 days, that this assault must have deterred a num-ber of voters from freely exercising their right of voting and that there-fore it amounted to undue influence within the meaning of s. 123(2),proviso(a). He further found that this assault was the culminationof the campaign of threats by the Paite college students who were clear-ly working for the candidates from Hmar and Paite tribes sponsoredLy the said two organisations, and the feeling of enmity and hatredspread through the said writtings against the candidates other thanthose sponsored by the said two organisations. Lastly, he found thatthe offer of an award and the giving away of the cup to the said vill-age there having given maximum support to those candidates amount-ed to gratification within the meaning of s. 123(1)(A) read with theexplanation thereto.

Against these findings the contention of Mr. Goburdhan for theappellant was two fold : (1) that these findings were not correct, and(2) that there was not sufficient and cogent evidence establishing thecomplicity of the appellant in the preparation or the distribution ofthe said writings.

Before we proceed to deal with these contentions it is proper tobear in mind the rule that a charge of corrupt practice is in the natureof criminal charge as its consequence is not only to render the electionof the returned candidate void but in some cases to impose upon hima disqualification. The evidence in support of such practices must,

E.L.R.] LALROUKUNG V. HAOKHOLAL THANGJOM 41

therefore, be cogent and difinite and if the election petitioner has tosucceed he must establish definitely to the satisfaction of the court thecharge be levels against the returned candidate (of. Mohan Singh vs.Bhanwarlal (i) and Jagdev Singh Sidbanti vs. Pratap Singh Datilta (2) wherehowever, the charge is one of complicity in such a corrupt practice,direct evidence cannot always be expected and in such cases circum-stantial evidence can also furnish legitim?te proof. In such case*, how-ever, circumstances relied on must be definitely proved and the in-ferences sought to be drawn from them must point definitely to thecomplicity of the person against whom the charge is levelled. (See D.Gopalreddy vs. B. Rai Talpalikar (3). If, for instance, a returned candi-date has entrusted the conduct of his election to an agent and that agentpublished a poster containing matter amounting to calumny of thepersonal character of his opponent and the returned candidate seesit but does not disown or refute it, that would be sufficient to attributeto his consent to such a poster and its publication. (See Ram Kishanvs. Jni Sinqh (4) In D. Gopalreddy's case (Supra) this court also laiddown that where an appellant questions a finding of fact arrived at theby the Court of trial, he must establish how that finding is erroneousbefore he c&n call upon this Court to interfere with such finding andalthough this Court would reappraise evidence depending on the esti-mate of his truthfulness formed from observation of the witness by thetrial judge this Court would be slow to interfere.

Having ourselves gone through the oral as also the documentaryevidence along with Mr. Goburdhan and keeping in background theprinciples aforestated, we find ourselves in difficulty in accepting hiscontention that the findings of fact given by the learned Judicial Co-mmissioner are either erroneous or not in consonance with the evidenceon record. Three facts clearly emerge from this evidence : (1) that"the Voice of Churachandpur" and some of the pamphlets at any ratewere printed at the press in which the appellant was a partner, (2)that some of these writtings related to him as the candidate and (3)that the P. N. C. and H. N. U. sponsored his candidature. It mustfollow from these facts that the appellant had seen these pamphletsand must have known, therefore, that they contained appeals and ex-hortations to the members of the two tribes to support his candidatureon the sole ground that he was a Hmar and as the Hmars in Than-lon area were to support a Paite candidate the Paites of Churucband-pur should support him, though he was a Hmar. It is clear, and in-deed it is not the pppellant's case, that he ever refuted or disowned suchan appeal made by the two organisations on bis behalf. From thesethree facts the following conclusions are inescapable : (1) that he wasthe candidate of the alliance, (2) that he left the conduct of the ele-ction campaign to the two organisations, (3^ that he knew the con-tents of the aforesaid writings issued by them and (4} that he did not

(1) 1964(5) S. G. R. 12(2) 1964(6) S. G. R. 750(3) C. A. No. 6 of 1968, Dec. on Aug. 1 & 2, 1968(4) G. A. No. 1949 of 1967, Dec. on April 23, 1968

42 LALROUKUNG V. HAOKHOLAL THANGJOM [VOL. XL!

at any time disown them though he knew their contents and that hedid not do so because he adopted them as his own or at any rate hadgiven his consent. In the present case no question of indirect or impli-ed consent can arise because there was ample evidence found satisfac-tory by the judicial Commissioner to prove that he himself and/orhis agents distributed these pamphlets amongst the voters. It was,therefore, clearly futile of him to deny knowledge of these pamphletsor their having been printed and distributed among the voters.

But even if the appellant had knowledge of these writings andhe and/or his agents with his consent had distributed them as part ofhis campaign. The question still remains whether they were appealsfor support on the ground that he was a Hmar and that the Hmarsand the Paite because of the said alliance should vote for him. In otherwords, whether he campaigned on the basis of caste or community.It may in this connection be observed that the appellant never challen-ged that the Paites and the Hmars are communities distinct from theother tribes. In fact, most of the pamphlets were printed in Paite lan-guage, a language different from the language of the other tribes. Theappeal made in these pamphlets was not on the footing that if he, a Hmar,was voted by the two tribes he would undertake work of general utilityfor the two tribes or try to redress their grievances, if any, or to reducetheir economic, educational or other backwardness. If that was thebasis of his campaign it may be possible to argue that such an appealmay not constitute corrupt practice. (See Ghasi Ram vs. Dal Singh (5)and N. L. Verma vs. Muni Lai (6) . The appeal made by or on behalfof the appellant was not that being a Hmar he would be the best judgeof the disabilities of the Hmars and therefore a fit and proper personto be elected for removal of their disabilities, social, economic or edu-cational. Nor is it possible to hold that either the P. N. C. or H. N. U.was a political party as was the case in Khilumal Topandas vs Arium Das(7)and in Kultar Singh vs. Mukhtiar Sin?h (8). As aforesaid, the two organi-sations were purely communal, their membership being confined tothe members of the two tribes only. No attempt was made to show thattheir membership was open to the other tribals. Being the largest ofthe non-naga tribes in Manipur, the object of combining together wasto ensure election of the candidates from their tribes only and to giveno chance to any one else to succeed in the election. The appeal was,therefore, clearly based on the ground of community and caste andfell within the mischief of s.i23(j) even if a restricted meaning wereto be attribute to the word 'community' in the light of the other words,namely, caste, language and religion, used along with it in that sub-sections. Since, however, it was never challenged that the Paite andHmars were communities within the meaning of s. 123(3). ^ e n n das necessity of going in to that question any more. We must, therefore,confirm the finding that the appellant was guilty of corrupt practiceon this heading and that his election was, therefore, vitiated thereby.

(5) C. A. No. 163a of 1967, Dec. on Feb. 7, 1968(6) 15 E. L. R. 495, Dec. by the High Court of Punjab(7) 1 a E. L. R, 404(8) A. I. R. 1965 S. G. 141

E.L.R.] LALROUKUNG V. HAOKBOLAL THANGJOM 43

There was also clear and ample evidence corroborated by theindependent testimony of Dr. Visgtheejan Singh, P.W. 15, thatP.W. 8 was assaulted on February 16, 1967 at Peranonat polling sta-tion and that amongst those who assulted him was Hangktuan.tbe appe-llant's polling agent there. That evidence also established that theappellant was that day at that polling station but never denouncedthat assault nor disowned it nor assured the voters in that area thatthere would be no inteference with their exercise of the right of votingeven if they supported respondent 1. The absence of such denunciationor refutation by him shows that he at any rate acquised andgave implicity his name consent to that incident. Mr. Gobardhan, how-ever, argued that the assualt was only a stray incident and cannot attracts. 123(2), proviso(a). But the assult cannot be considered as an isolatedevent. As already stated, before the polling day pamphlets were issuedtherein threats were freely canvassed and exhortations made that thosewho oppose the candidates supported by the two organisationswould not be forgotten nor spared. In the light of propaganda of thisnature carried on before the polling days it is impossible to view theassault as an isolated incident nor can it be legitimately argued thatthe conclusion of the Judicial Commissioner that it was a culminationof those threats was either an unreasonable or an unwarranted conclu-sion. There can be no doubt that such rowdyism at a polling stationwas bound to deter voters from coming to the polling station to exer-cise freely their frencbise. We have no doubt that the assault by theappellant's polling agent attracted s. 123(2) proviso (a) and that alsorendered the election void. In view of our confirming these two findingsof the learned Judicial Commissioner, it is not necessary for us to gointo the question whether the promise to award a cup and the actualawarding of it constituted bribery and therefore a corrupt practice.The two contentions raised by counsel for the appellant, therefore, fail.

The third contention raised by Mr. Goburdhan was that the Ju-dicial Commissioner was in error in allowing the plea of distributionof the said pamphlets by the appellant and with his consent by his agentsby way of amendment as such an amendment was clearly time-barred.The contention has no substance. In the original petition the plea ofpublication was in fact taken and publication must necessarily includeand mean distribution also. (See Mcfarlane vs. Hultoni^). But apartfrom that no such contention was raised in the trial court nor has thatcontention been urged in the grounds of appeal before us In pointof fact the contention taken was a limited one as to the date of award-ing the cup which by mistake was originally mentioned as March 8,1967 and which was subsequently corrected to April 8, 1967. Thatobviously was not a new plea which could not be corrected by amend-ment.

For the reasons aforesaid our conclusion is that the appeal is with-out substance and is therefore dismissed with costs.

Appeal dismissed.

(9) 1899(1) Ch. 884, at 888

4 4 KAMALA PRASAD UPADHYAYA V. SARJOO PRASAD T1WARI [VOL. KLI


KAMALA PRASAD UPADHYAYA

V.

SARJOO PRASAD TIWARI & ORS.)

(J. G. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.

January 15, 1969

Representation of the People Act, 1951, s. 100(1) (rf) Constitution of India, Article 19(1)Nomination—imporper acceptance of—whether election'liable to be set aside on that count alone-result materially affected—onus of proof—whether any change after amendment in 1956.

The appellant, the defeated candidate, sought to have the election of respondentNo. 1 set aside on the ground that the election was materially affected by the improperacceptance ofthe nomination of respondent No. 2, who was holding an office of profitunder the Government at the material time. Although the trial court found that therespondent was holding an office of profit as alleged, that by itself was not enough todeclare the election of respondent void. Upholding the findings of the trial court theSupreme Court,

HELD :—It could not be said that by the arrangement ofthe provisions relating tosetting aside ofthe election by the Amending Act of 1956 in cases where there has beenimproper acceptance of nomination, any substantial modification in the law declaredby the Supreme Court in Vashisht Narayan Sarmds case was intended. The onus ofproof before the Amending Act of 1956, as well as after the amendment, lay upon theelection petittioner to establish in case of improper acceptance of any nomination,that the result of the election was materially affected thereby. In the present casethere was no reliable evidence which supported the case that if the nomination of therespondent had not been accepted the majority ofthe voters ofthe Kachhi communitywho voted for him would have voted for the appellant. How voters at an election willvote in a given situation cannot be determined with any degree of certainty. Theevidence on the record in the case on that point that the "wasted votes" would havebeen distributed in such a manner that it would have brought about the defeat ofthe returned candidate was scanty and unrealiable, and even that scanty evidence wasonly of a speculative or conjectural nature.

Vashist Narayan Sarma v. Dev Chandra and others, 1955(1) S.C.R. 509; PaokaiHaokini v. Rishan and others (1969) 1 S. G. R. 637; followed.

Civil Appeal No. 729 (NCE) of 1968.

Gopi Nath Dikshit and R. N. Dikshit for the appellant-

P. RamaReddi, S. S. Parikh and S. S. Khandujja for Respondent No. 1.

JUDGMENT

SHAH.J .— At the last general elections held on February 20, 1967the appellant and then others contested for a seat in the Madhya Pra-desh Legislative Assembly from the Lahar Constituency No. 13.The first respondent secured 8,904 votes; the appellant secured 6,109votes; the respondent No. 2—Heeralal Bahadur secured 4,227 votes.(No argument was advanced before us which necessitates reference tothe votes secured by the other candidates.) Respondent No. 1 Sarjoo

E.t.R.J KAMALA.PRASAOUPADHYAYAz;. SARJOO PRASAD TIWARI 45

Prasad Tiwari who secured the highest number of votes was declaredelected. The appellant Kamta Prasad Upadhyaya who secured thenext largest number of votes, applied to the High Court of MadhyaPradesh under the Representation of the People Act 43 of 1951, forsetting aside the election of respondent No. 1 on diverse grounds, itis necessary to refer to only one ground on which the appeal is arguedbefore us.

Respondent No. 2 Heeralal Bahadur was, it was the case of theappellant, disqualified to stand as a condidate for election under Art.19(1) fa) of the Constitution in that he held an office cf profit underthe Government of Madhya Pradesh other than an office describedby the Legislature of the State by law as not disqualifying its holder,and since his nomination was erroneously accepted bv the ReturningOfficer, the election of the returned candidate was liable to be set aside.Five issues were raised in respect of this contention. They were—

"2(a) Whether respondent No. 2 was in the service of the Govern-ment as a teacher in Primary School at Magroda districtGuna either on the date of the filing of the nomination papersor on the date of the scrutiny as alleged by the petitioner ?

(b) Whether respondent No. 2 had aheadv suomitted his resigna-tion from Government service and was accepted on 7-1-1967as alleged bv respondent No. 1 ?

[C) Whether respondent No. 2 held an office of profit under theGovernment of Madhya Pradesh and, therefore, was notqualified to contest the election to fill the se?t in question ?

(d) Whether theie has been imporper acceptance cf nominationpaper of respondent No. 1 on this account as alleged?

(e) Whether the result of the^election in so far as it concern thereturned candidate respondent No. 1 has been materiallyaffected by such improper acceptance as alleged by thepetitioner ?"

The High Court on a consideiation of the evidence bearing on theissues recorded answers in the affirmative on issues 2(a), (c) & (d),and on issue No. 2 (b) the High Court recorded an anwser "Acceptedon April 1, 1967". The High Court recorded on Issue No. 2(e) theanwser "Not Proved", and rejected the petition filed by the appellant.

Counsel for the appellant contends that after deciding. Issues Nos.2(a), (b), (c) & (d) in favour of the appellant, the High Court erredin deciding Issue No. 2(e) against the appellant. The first respondentpolled 2,795 votes more than the appellant. Respondent No. 2 HeeralalBahadure had polled 4,227 votes and since Heeralal Bahadur wasdhqallified from standing as a candidate those votes were ,'thrownaway" Counsel for the appellant, contends ..that if .the ReturningOfficer had rejected the nomination of Heeralal Bahadur, a large

4 6 KAMALA PRASAD UPADHAYA 0. SARJOO PRASAD TTWARI [VOL. XLI

majority of the voters who voted for Heeralal Bahadur would havevoted for the appellant. Cousel says that there were 6,000 votersbelonging to the Kachhi community in the constituency and the sympathyoftheKachhi community had always voted for the candidate sponsoredby the political party which had supported his candidature, but samethe members of the Kacchi community had resolved to vote solidlyin favour of Heeralal Bahadur respondent No. 2 who was a Kachhithey did not vote for him. Counsel submits that if Heeralal Bahadur'snomination had not been accepted those votes would have goneto the appellant, and in that event the total votes polled byappellant would have exceeded the votes polled by RespondentNo. 1. Counsel contends that by reason of the improper accep-tance of the nomination paper of Heeralal Bahadur the electionof the returned candidate had been materially affected, and onthat ground it is liable to be set aside under s. ioo(i)(d) of theRepresentation of the People Act, 1951.

A similar question arose for decision before this Court in VashistNarain Sharma v. Dev Chandra and Others.^} It was contendeb in thatcase that if the nomiation of one of the candidates Dudh Nath had notbeen accepted the result of the election would have been different andon that account it must be held that by reason of the improper accept-ance of the nomination paper of Dudh Nath the result of the electionwas materially affected. This Court rejected the contention observing(at p. 514):

"Before an election can be declared to be wholly void undersection IOO(I)(C), the Tribunal must find that "the resultof the election has been materially affected". These wordshave been the subject of much controversy before the ElectionTribunals and it is agreed that the opinions expressed havenot always been uniform or consistent. These words seem to usto indicate that the result should not be judged by the mereincrease or decrease in the total number of votes secured bythe returned candidate but by proof of the fact that the wastedvotes would have been distributed in such a manner betweenthe contesting candidates as would have brought about thedefeat of the returned candidate."

The Court further observed :

"The language of section IOO(I)(C), however, clearly places aburden upon the objector to substantiate the objection thatthe result of the election has been materially affected."

The onus, according to the Court, of proving that improper acceptanceof the nomination had materially affected the result of the election liesupon the peititioner who seeks to set aside the election, and that thequestion can arise in one of the following three ways :

(1) (1955) 1S.CR.509

S.L.R.] KAMALA PRASAD UPADHYAYA P. SARJOO PRASAD TIWARI 4 7

(1) where the candidate whose nominatin was improperly acceptedhad secured a smaller number of votes than the differencebetween the returned candidate and the candidate securing thenext highest number of votes :

(2) where the candidate securing the next highest number of votessecured more votes than the difference;

(3) where the person whose nomination has been improperlyaccepted is the returned candidate himself.

In the first class of cases the result of the election is not materiallyaffected, because even if all the wasted votes "were added to the votesof the candidate securing the next highest votes, it will make no diffe-rence to the result. In the third class of cases unquestionably the nomina-tion of the returned candidate being improperly accepted, the electionmust be set aside. Dealing with the second class of cases, the Courtobserved :

" we are not prepared to hold that the mere fact that thewasted votes are greater than the margin of votes between thereturned candidate and the candidate securing the next highestnumber of votes must lead to the necessay inference that theresult of the election has been materially affected. That is amatter which has to be proved and the onus of proving it liesupon the petitioner. It will not do merely to say that allor a majority of the wasted votes might have gone to the nexthighest candidate".

Counsel for the appellant however, urges that since Vashist NarayinSharma's case was decided, s. ioo of the Representation of the PeopleAct, 1951, has been extensively amended and the intention disclosedby the amendment was superseded the law declared by that case, andin any event to lighten the onus of proof which lies upon the electionpetitioner in a petition for setting aside the election on the ground ofimproper acceptance of the nomination of a candidate. [The relativeprovisions of the Act may be set out in juxtaposition :

Before amendment After amendment

"100(1) If the Tribunal is of opinion "100. Subject to the provisions(a) x x x of sub-sec. (2) if (the High(b) x x x Court) is of opinion —•(c) that the result of the election has been (a) x x x

materially affected by the improper (b) x x xacceptance or rejection of any nomina- (c) that any nomination hastion the tribunal shall declare the elec- been in properly rejected; ortion to be wholly void. (d)that the result of the election,

Explanation.— x x x in so far as it concerns a(2) Subject to the provisions of sub-sec. (3), returned candidate, has been

if the Tribunal is of opinion— materially affected—

(a) x x x (i) by the improper acceptance(b) x x x of any nomination, or

4 8 KAMALA PRASA0 UPADHYAYA V. SARJOO PRASAD TIWAR1 [VOL. XLI

(c) that the result of the election has been (ii) x x xmaterially affected by improper recep- (iii) by the improper reception,tion or refusal ofavoteorby the recep- refusal or rejection of any votetion of any vote which is void, or by or the reception of any voteany non-compliance with the provisions which is void, orof the Constitution or of this Act or ofany rules or orders made under this Act, (iv) by any non-compliance withor rules relating to the election or the provisions of the Gonstitu-by any mistake in the use of any pres- tion or of this Act or of anycribed form, the Tribunal shall declare rules or orders made underthe election of the returned candidate to this Act, (the High Court)be void. shall declare the election of

the returned candidate to be(3) X X X" void].

Under s. ioo as it stood befqre it was amended by Act 27 of 1956"the Tribunal was empowered to declare the election wholly void wherethe result of the election was materially affected by the improper accep-tance or rejection of any nomination and to declare the election of thereturned candidte void, where the result of the election was materiallyaffected on account, amongst others, of non-compliance with anyprovisions of the Constitution, or of the Act or of any rules or ordersmade under the Act or rules relating to the election, or by any mistakein the use of any prescribed form. No distinction was made betweenthe consequences arising out of improper acceptance and out of improperrejection of any nomination, provided the result of the election wasmaterially affected thereby. Under s. 100 as amended, the election isnot to be set aside in its entirety: only the election of the returnedcandidate has to be declared void. If any nomination has been im-properly rejected, irrespective of the question whether the election hasbeen materially affected thereby, the election of the returned candidatemust be set aside. Where, however, there has been improper accept-ance of any nomination the election of the returned candidate shall bedeclared void if the result of the election was materially affected bysuch improper acceptance. It is further provided that for non-compliancewith the provisions of the Constitution or of the Act or of any rules ororders made under the act the election of the returned candidateshall be declared void if the result of the election in so far as it concernsthe returned candidate had been materially affected thereby. If theresult of the election had been materially affected by the improperacceptance of any nomination under the Act before amendment,the election was wholly void. Under the amended Act the election ofthe returned candidate is to be declared void. That is the only changemade in declaring the Consequences arising from improper acceptanceof nomination. The onus of proof before the Amending Act lay uponthe election petitioner to establish in case of improper acceptance ofany nomnation, that the result of the election had been materiallyaffected thereby; even under the Act as amended, the burden remainsupon the election petitioner. We are unable to hold that by the re-arrargement of the provisions relating to setting aside of the election bythe Amending Act of 1956, in cases where there has been improperacceptance of nomination any substantial modification in the law

E.L.R.] KAMALA PRASAD UPADHYAYA V. SARJOO PRASAD TIWARI 49

declared by this Court in Vashist Marain Sharma'sQ^) case was intended.Whether in a given case the onus is discharged must depend upon thefacts of that case. We may observe that in a recent case decided by thisCourt Poakai Haokin v. Rishang2 & Others this Court has affirmed the viewexpressed in Vashist Marain's ^1

Counsel then contended that in this case there was evidence toshow that if Heeralal Bahadur's nomination had not been acceptedthe appellant would have been declared elected, because all the voteswhich were cast in favour of Heeralal Bahadur who was a Kachhi wouldhave been cast in favour of the appellant. But the following observa-tions in Vashist Marain SharmdX1) case at P. 516 clealry negative thatplea :

"The casting of votes at an election depends upon a variety offactors and it is not possible for any one to predicate how manyor which proportion of the votes will go to one or the otherof the candidates. While it must be recognized that the petitionerin such a case is confronted with a difficult situation, it isnot possible to relieve him of the duty imposed upon him bysec. IOO(I)(C) and hold without evidence that the duty hashas been discharged. Should the petitioner fail to adducesatisfactory evidence to enable the Court to find in his favouron this point, the inevitable result would be that the Tribunalwould not interfere in his favour and would allow the electionto stand."

It may be accepted that in the constituency there were 6,000 Eachvoters. But there is nothing to show that all Kachhi voters did voteat the election or that only Heeralal Bahadur obtained the votesof Kachhi or that if Heeralal Bahadur had not stood for the election, allthose voters would have voted for the appellant.

It was said that the Kachhi voteis would have voted for the appellantwho stood as a candidate of the Congress party, but for the fact thatmember of their own community-Heeralal Bahadur, was standing ata candidate, and in a caste meeting held on February 5,1967, at thevillage Amahs, it was resolved that all the Kachhis numbering about6,000 should vote for Heeralal. We have read the evidence of the wit-nesses Dine Kachhi PW 4, Mukundi Kachhi PW 5, Garibe KachhiPW 7, Hiralal Kachhi PW 8, Gangadhar Kachhi PW 12 and KamtaPrasad PW 14 and we hold that there is no reliable evidence whichsupports the case that if the nomination of Heeralal Bahadur and notbeen accepted, 6,000 voters beloning to the Kachhi community or amajority of those voters would have voted for the appillant. How themembers of the community reacted to the resolution and how far theyregarded the resolution as binding upon them is a matter of speculation,and it would be impossible to predicate that the votes cast in favourof Heeralal Bahadur or a majority of those votes would have gone tothe appellant and to no other candidate. How voters at an election

(x) CA.No. 683 of 1963 decided on Aug. 12, 1968.4—4 Elec. Com./71

5 0 PT. SHREE KRISHNA SELOT V. SRI RAM CHARAN PUJARI [VOL. XLI

will vote in a given situation cannot be determined with anydegree of certainty. It is therefore impossible to accept the assertionmade by the candiate and his supporters that on some supposed orimaginary ground of affinity—Political or communal—all or some ofthe votes would have gone to him, but for the irregularity committedby the Returning Officer in accepting the nomination of Heeralal.We agree with the High Court that the evidence on the record on thepoint that the "wasted votes" would have been distributed in such amanner that it would have brought about the defeat of the returnedcandidate is scanty and unreliable, and even that scanty evidenceis only of a speculative or conjectural nature.

The appeal therefore fails and is dismissed with costs.

Appeal dismissed.


PT. SHREE KRISHNA SELOT

V.

SHRI RAM GHARAN PUJARI

(J. G. SHAH, V. RAMASWAMIAND A. N. GROVER,JJ.)

January 21, 1969

Representation of the People Act, igtyi, ss. 123(2) (a) (ft) ioo(i)(d)(iv)—Corrupt practice—proof of—particupants in the illegal act give evidence—no independent corroboration—effect of.—Particulars of corrupt on not mentioned in the petition—interested witnesses given evidence—how

far reliable.—Progpaganda regarding coxa slaughter—whether religious in nature.—Non-com-pliance with the provisions of the Act—change of polling booth—when result materially affectedproof of.

The appellant, a defeated candidate, sought to set aside the election of the respon-dent on various counts of corrupt practices, namely, that (i) the respondent distri-buted through his polling agent Re. 1 per vote to induce them to vote for him;(2)the respondent offered a gift of a petromax lamp to the Sonnar community and infact paid Rs. 120/- to a member of that community to purchase one; and (3) he con-vened a meeting of the Jain community in their temple and appealed to them notto vote for the Congress candidate on the ground of religion saying that "if one voteis cast for the congress it is equal to the salughter of a cow". It was also alleged that thepresiding officer of a particular polling station was an old associate of the respondentin the Jan Sangh party and he violated the provisions of the Act by changing thepolling booth from one place to another favourable to the respondent. The trialcourt dismissed the petition holding that the allegations were not proved. Concurringwith the trial court, the Supreme Court,

HELD—(i) The witnesses who spoke regarding the payment of money to the voterswere manifestly participants in that illegal act and therefore unless there was someindependent corroboration of their evidence, it was not posible to place reliancethereon.

(ii) In the absence of any mention in the election petition regarding the paymentfor a petromax lamp, it was unsafe to rely solely upon the uncorroborated testiomonyof interested witnesses.

E.L.R.] PT. SHREE KRISHNA SELOT V. SRI RAM CHARAN PUJARI 51

(iii) The satement of the respndent in the meeting that "if one vote is cast forCongress it is equal to slaughter of a cow"would only amount to an allegation levelledagainst the Congress Party and there was no invocation of divine displeasure uponth e voters who chose to vote for the congress so as to fall within the definition "undueinfluence" under s. I23(2)(a)(ii) of the Act.

Narbada Prasad v. Ghhagan Pal and others; C. A. No. 2 of 1968 decided on 30-7-19-62distinguished.

(iv) According to section ioo(i)(d)(iv) of the Act if there had been any non-compliance with the provisions of the Constitution or the Act or any other rules ororders made und^r the Act, the appellant must show that the result of the election,in so far as it concerned the returned candidate, had been materially affected, inorder to get the election of the returned candidate declared void. In the instant casethere was no allegation in the petition that by the change of the polling booth by thepresiding officer, the result of the election had been materially affected.

CIVIL APPEAL No. 978(NCE) OF 1968.

Ranieshwar Nath, for the appellant.

L. S, Bighel, S. S. Parikh and S. S. Khanduja, for the respondent.

JUDGMENT

RAMASWAMI J . :—This appeal is brought under section 116-Aof the Representation of the People Act, 1951 (Act No. 43 of 1951)against the judgment of the Madhya Pradesh High Court dated 8thJanuary, 1968 in Election Petittion No. 8 of 1967 whereby the HighCourt dismissed the election petition filed by the appellant undersection 80 of that Act.

In the General Election for the Madhya Pradesh LegislativeAssembly that took place on the 20th February, 1967 in the Consti-tuency No. 1841.0. Banda Constituency in Sagar District, the appellantand the respondent besides four other persons were the contestin candi-dates. The respondent, Mr. Ramcharan Pujari, who was a candidateon behalf of the Jan Sangh party, was declared to be elected on the21 st February, 1967 having secured 12731 votes. The appellant secured11908 votes in that election. The appellant thereafter challenged theelection of the respondent on the round of various corrupt practicesalleged to have been committed in paragraphs 2 and 3 of the Electionpetittion. It was further pleaded that the Polling Officers and the otherPolling staff did not comply with the provisions of the Representa-tion of the People Act, 1951 (Act No. 43 0^951) (hereinafter calledthe Act) and the Rules thereunder or the orders made under the Act.In his written statement the respondent controverted each one of theallegations made in the election petition. After consideration of theoral and documentary evidence adduced by the parties, Mr. JusticeS. P. Bhargava held that the allegations made by the appellant werenot established. As many as 16 issues were framed in the case, but weare concerned in this appeal only with issues Nos. 12, 14, 5, 8 and 4which are reproduced below :—•

"12 (a) Whether 2 or 3 days before the polling, the responentgot distributed through his polling agent Shri Ramsing Lodhi

52 PT. SHREE KRISHNA SELOT V. SRI RAM CHARAN PUJARI [VOL. LXI

rupee one per voter to several electors of village Khaharam.suin order to induce them to vote for the respondent by affixingtheir seal on "Deepak" symbol ?

(b) Whether tthe payment of this gratification with the objectof directly or indirectly inducing the voters to vote for therespondent is a corrupt practice done with the consent orconnivance of the respondent or his agent and invalidates hiselection ?

"14 ya) Whether on 18-12-1967 the respondent offered a gift orreward to the Sounr Community of village Budhokhera onepatromax lamp and a large size 'farsh' as an inducement for ob-taining votes for himself from the voters of that community ?

(b) Whether on 23-2-1967 the respondent through his pollingagent Girjusing paid Rs. 120/- at Banda to Bijain Sounr ofBuodhakhera asking him to purchase the offered patromaxof his own choice ?

(c) Whether the offer of gift or reward as well as the payment ofgratification of Rs. 120/- with the object of directly or in-directly inducing the voters of Boodhakhera to vote for therespondent is a corrupt practice with the consent or conn-vance of the respondent or his agent invalidating his election ?

5 (a) Whether on 15-2-1967 at night time in village Baraithathe respondent with the help of his workers and supportersnamed in the petittion convened a meeting of the Jains atthe Jain Temple there and after appealing to them not to votefor the Congress canidate as the Congress was not preventingslaughter of cows and thus offending their religious beliefand feelings and thereafter made them take oath by their re-ligion not to vote for the Congress, but only for the candidateof Jan Sangh which stood for prevention of cow-slaughter?

(b) If so, does this amount to corrupt practice under Section 123of the R. P. Act, 1951 ?

6 (a) Whether Laxman Namdeo, Presiding Officer, at the Pol-ling station Mudari-Bujurg was an old associate of the res-pondent in the Rashtriya Swayam Sewak Sangh and wasdetained along with him in Jail about the year 1947-48when that association was declared unlawful ?

(b) Whether Laxman Namdeo was specifically warned by theReturning Officer not to commit breach of rules ?

(e) Whether Laxman Namdeo also underwent a training called'O. T. C in the Jan Sangh ?

(d) Whether Laxman Namdeo changed the place of polling boothof Mudari Bujurg from the place initially fixed to ano-ther about half a furlong away and also realloted the duties of

E.L.R.] PT. SHREE KRISHNA SELOT 0. SRI RAM CHARAN PUJARI. 53

the polling staff assigned to the said booth for the purpose ofhelping the respondent inside the booth ?

(e) Whether Laxman Namdeo asked the voters to vote for therespondent by putting their voting mark on "Deepak' andeven himself put such voting mark on "Deepak'in the votingpapers of some voters after taking those from them ?

(f) Whether in these ways he interfered seriously with the freeexercise of votes by the voters and furthered the propsects ofthe respondent by abusing his office contrary to the provi-sions of law ?

If so, has the result of the election been materially affected by hisalleged irregularity ?

4(a) Whether on 15-2-1967 (Wednesday) in theafternoon at theBanda Market, and on 16-2-1967 (Thursday) at village Barain the market, and on 17-2-1967 (Friday)in the night atabout 8. p. m. in Banda in a meeting addressed by him,the respondent first verbally appealed to the voters to votefor him, who was a Jan Sangh candidate, if they wantto prevent the slaugther of cows and their progency and thussave the Hindu religion and Hindu civilisation from extinc-tion and not for the Congress candidate as the Congress Partywas permitting the slaugther of cows and bullocks which areregarded as sacred by Hindu religion and thus destroyingHindu religion, and thereafter he and his workers named bythe petitioner distributed the hand-bills entitled "SavdhanApke Dharmit Bhavanaon par bhayanker vajraghat" a copyof which is filed by the petitioner ?

(b) If so, whether this amounts to a corrupt practice under Section123 of the R. P. Act, 1951 ?

Counsel on behalf of the appellant pressed his argument onlywith regard to these issues, and said that he will not challenge thefindings of Mr. Justice S. P. Bhargava with regard to other issues.

As regards issue No. 12, two witnesses Ramsingh (P. W. 41) andDhokal (P. W. 42) were examined on behalf of the appellant. RamsinghDeposed that in the last election he worked as a polling agent of theappellant at Kharmau polling station. The respondent had given himhim Rs. 35/- two or three days before the date of the polling. Therespondent had told him at that time that he should secure the votesof his acquaintances for him without any payment. If he could notsucceed in such an attempt, then he should pay Re. 1 /- to each voterand get his vote polled for the respondent. In cross-examination, Ram-singh admitted that he had not rendered any account of Rs. 35/- whichhe had received from Ramcharan Pujari. Dhokal (P. W. 42) said thathe received Re. 1 /- from Ramsingh to vote for the respondent and hiswife had also received Re. 1/- from Ramsingh. In cross-examinationhe admitted that Ramsingh straight away told him that he should vote

5 4 PT. SHREE KRISHNA SELOT V. SRI RAM CHARAN PUJARI [VOL. XLI

or "Deepak" and gave Re. i/- each to him and to his wife, Accordingto Dhokal, no attempt was at all made by Ramsingh to persuade him tovote for Ramcharan Pujari without any payment. It is manifestthat both Ramsingh and Dhokal are participants in an illegal actand therefore unless there is some independent corroboration of theirevidence it is not posible to place reliance thereon. No such corroborativeevidence was produced in this case on behalf of the apellant. The HighCourt was not hence prepared to accept the statements of either Ram-singh or Dhokal as truthful. We see no reason to differ from the HighCourt in its estimate regarding the credibility of the two witnesses.We hold that issue No. 12 was rightly decided by the High Courtagainst the appellant.

As regards issue No. 14, three witnesses Birjusingh (P. W. 47)Bajai (Vijay) Saur (P. W. 48) and Prahlad (P.W. 49) were examined onbehalf of the appellant. Birjusingh worked as polling agent of the res-pondent at Budakheda. According to this witness, the respondent cameto his village two days before the date of election and asked him as towho was the Mukhiya of that community. Birjusingh informed himthat Bijaiya (P. W. 48) was the Mukhiya. Then Birjusingh and Ram-charan and two or three other persons went to the Mukhiya. The res-pondent requested the Mukhiya that all the members of his communityshould vote for him and said that if he was declared successsful in theelection he was willing to give the community a gas lantern and a'farsh'. Birjusingh stated that he had accompanied Bijaiya Saur toBanda to get the gas lantern and the 'farsh' from Ramcharan Pujariaccording to his promise. However, Ramcharan told them that he hadno gas-lantern or 'farsh' with him and instead gave Rs. 120/- toBijaiya for the purchase of the articles. Bijaiya P. W. 48 and PrahladP. W. 49 gave evidence to the same effect and supported the versionofBijai P .W. 48. The High Court has pointed out that the time andplace of payment has not been mentioned in the election peittion, butthey were disclosed for the first time in the course of the trial. The HighCourt was not impressed by the evidence of Birjusingh and Bijai whowere participants in the illegal act. The evidence of P. W. 49 offers nomaterial corroboration to that of Birjusingh and Bijai. Counsel onbehalf of the appellant took us through the evidence of Birjusing(P. W. 47), Bijai (P. W. 48) and Prahalad (P. W. 49), but we see noreason to differ from the High Court as regards the credibility of theirevidence. We hold that this issue must be answered against the appellant.

As regards issue No. 5 the appellant has examined G. S. Chinna(P. W. 29) S. O. Baratha Sukhdin (P. W. 44) Jamuna Prasad (P.W. 45)and Bandolal (P. W. 50). The evidence of G. S. Chhina (P.W. 29)is to the effect that the respondent had convened a meeting in the JainTemple at Baratha and his workers Khubchand (R. W. 11) and Dr.Deepchand (R. W. 12) were present at the meeting. Khubchand toldthe meeting that the members of the Jain community should vote forthe Jan Singh candidate and not for the Congress candidate as theCongress was not preventing the slaughter of cows which was against


the principle of 'Ahinsa'. It is alleged that after the said appeal theJain voters were asked to take oath to vote for the Jan Sangh candidateand not for the Congress candidate. The High Court has disbelievedthe evidence of G. S. Chhina (P. W. 29) holding that there was noadequate reason why the witness should go to Jain Templeon that day for the purpose of atending the meeting. As regards Sukhdin(P. W. 44) and Jamuna Prasad (P. W. 45). the High Court observedthat the story of the oath being taken by the Jain voters was not men-tioned in the election pertition and was a subsequent development.Jamuna Prasad (P. W. 45) referred in suport of his evidence to a letterEx. P. 12 said to have been written on 16-2-1967 by the witness to hisrelation Bandolal (P. W. 50). The High Court has held that Ex. P. 12was concocted subsequently for the purpose of his case and that theevidence of Jamuna Prasad (P. W. 45) and Bandolal (P.W. 50) asregards Ex. P. 12 was false. Mr. Rameshwar Nath read the contentsof the original letter Ex. P. 12 during the course of the hearing. Thelanguage of the letter suggest that it was carefully drafted after takinglegal advice and could not have been written in the normal courseby Jamuna Prasd (P.W. 45). In our opinion the High Court has takena correct view of the evidence and this issue must be answered againstthe appellant.

With regard to issue No. 8 the finding of the High Court is thatLaxman Namdeo Presiding Officer was an old associate of the res-pondent and was detained along with him in Jail about the year 1947-48. The High Court further held that an oral warning was given toLaxman Namdeo not to compaign for Jan Sangh candidate. As regardsthe change of the polling booth at Mudari Bujurg was changed to thenew school about half a furlong away from the old school. But thereis no allegation made in the election petition that due to the changeof place of voting the result of the election so far as it concerned therespondent had been materially affected. According to section ioo(i)(d) (iv) of the Act if there had been any non-compliance with the provi-sions of the Constitution or of the Act or any rules or orders made underthe Act the apellant must show that the result of the election in so far itconcerns the returned candidate has been materially affected, if hewants the election of the returned candidate to be declared void. Thereis no evidence ort this point and even assuming that the polling boothwas first fixed to be the old school and it was subsequently changed byLaxman Namdeo without the permission of the appropriate authority,the election cannot be held to be \oid in the absence of any proof thatthe result of the election as materially affected so far it conrerned theappellant. On issue No. 8(e) the appellant examined Narhe (P.W.33),Puttobai (P. W. 34.., Mst. Parvatibai (P.W. 37) and Nanda (P.W.38)who al! stated that Laxman Namdeo had induced them to vote forthe Jan Sangh candidate inside the polling booth. The High Courtfound the evidence of these witnesses to be unreliable. Mr. RameshwarNath took us through the evidence of these witnesses and we see noreason to differ from the view taken by the High Court on this point.

With regard to issue No. 4, Mr. Rameshwar Nath confinedhis argument to the meeting of 16th February, 1967 held at village

5 6 PT. SHREE KRISHNA-SELOT V. SRI RAM CHAR.AN PUJARI [VOL. XLI

Bara. The allegation of the appellant is that the respondent and Kunjansingh had addressed a meeting in the market at Bara on 16-2-1967and distributed the hand-bills similar to Ex. P. 1 there. It is admittedby the respondent that he had addressed the meeting. But he deniedhaving made any appeal on the ground of religion and has denied that thehand-bill Ex. P. 1 had been distributed there. The appellant examinedfive witnesses, Balmakund (P.W. 18), Ghasiram (P.W. 19J, Jagnnath-prasad Jain (P. W. 20!, Motilal (P.W. 21J and Nathulal (P.W. 22),in support of bis case on this point. Except Jagannathprasad all otherwitnesses said th?t in the speech delivered by the respondentit was stated that "to cast one vote in favour of Congress was committingthe sin of killing a cow". The High Court has held that no such alle-gation was made in the election petition, and so, the evidence ofP.Ws. 18, 19, 21 and 22 on this point could not be believed. As regardsthe distribution of hand-bills, the oral evidence is conflicting to someextent. P. W. 19 and P. W.21 said that after Ramcharan Pujari andKunjansigb addressed the meeting, hand-bills similar to Ex. P. 1were distributed by the appellant. Jagannath Prased (P.W. uo) didnot say anything about the distribution of any hand-bills. Balmukand(P. W. 18) said that Ramcharan Pujari addressed the meeting butthe distribution of hand-bills was made by both the lespondent andKunjansingh. N?thulal (P. W. 21) said that only respondent hadaddress the meeting and he only ditributed the ru nd-bills. In reV.utfclof the evidence, Ramcbaran Pujari examined himself and one morewitness Hazarilal Tamrakar (R. W. 41. On scrutiny of the evidencegiven ;>y both the parties in the crse, the Hiiub Cnun ha.~ reachedthe conclusion that the evidence given on behalf of the appellant wasnot credible and there was no proof that or 16-2-1967 the respondentmade any appeal on the ground of religion in the meeting held atBara market. The High Court further held that the distribution of hand-bill similar to Ex. P. 1 was not established. We see no reason to differfrom the finding of the High Court.

But even on the assumption that the evidence adduced by theappellant is true, the case will not fall within the mischeif of section123(2) (a) (ii) and (b) of the Act, which read as follows:—

123. The following shall be deemed to be corrupt practices forthe purposes of this Act ;

(2) Undue influence, that is to say,, any direct or indirect inter-ference or attempt to interfere on the part of the candidateor his election agent, or of any other person with the consentof the candidate or his election agent, with the free exerciseof any electoral right ;


Provided that—

(a) without prejudice to trie generality of the provisions of thisclause any such person as is referred to therein who—

(ii) induces or attempts to induce a candidate or an elector tobelieve that he, or any person in whom he is interested, willbecome or will be rendered an object of divine displeasure orspritiual censure,

shall be deemed to interfere with the free exercise of the electoral rightof 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 legal right without intent to interferewith an electral right, shall not be deemed to be interferencewithin the meaning of this clause".

According to the apellant's evidence the respondent said at themeeting "Congres Government slauhters the cows. She spoils the cultureof Hindu religion. Hindu religion cannot be protected by Congress."If one vote is cast for Congress, it is equal to slaughter of a cow".(See the evidence of P. W. 18 Balmukand). In Ex. P. i it is said that"Congress wants to continue the slaughter of bullocks". It is not theallegation of the appellant that the respondent said that, "the voters willcommit the sin of cow slaughter if they vote for Congas" . Cn thecontrary the allegation is that the Congress Party was out to kill thebullocks and cows. The leaflet Ex. P. i is levelled against the CongressParty, and there is no invocation of divine displeasure upon the voterswho choose to vote f c the Congress Party. It follows that the case doesnot fall within the definition of "undue influence" under section 123(2)(a)i'iii) of the Act. Mr. Rameshwar Nath referred to the decisionof this Court in Narbada Prasad v. Chha^an Bal & Ors1. Where it was heldthat the satement "?f the voters voted for the Congress they would becommitting the sin of go-hatya", was tantamount to an attempt toinduce the voters to believe that they would become or would be rende-red an object of divine displeasure within the meaning of section 123(2)(aj (ii; of the Act. As we have already pointed out, the alleged state-ment of the respondent in the present case is different and the principlelaid down by this Court in Narbada Rrasad's case (supra) is not appli-cable. Wre hold that issue No. 4 was rightly answered against the appel-lant.

For the reasons already expressed, we hold that there is no meritin the appeal which is accordingly dismissed with costs.

(1) Civil appeal No. 2/1968 decided on 30th July, 1968.

5 8 HARDWARE LAL V. P.RATAP SINGH [VOL. XL!

IN THE HIGH COURT OF PUNJAB AND HARYANA

HARDWARI LAL

V.

PRATAP SINGH

(HARBANS SHINGH, J.)

January 21, 1969

The Representation of the People Act, 1951 sections 77,100,123(4)—Corrupt Practice—Interference by officers Proof required Two possible explanations regarding the conduct ofofficers in the election—Explanation favourable to the respondent should be accepted, publicationsderogatory of thepersonal chartar of a candidate—When amounts to corrupt practice—Weathermere knowledge of the publications wmld make one liable —-Expenses—Omission to includein the return various iteam of expenses incurred in the election—-When corrupt practice.

The petitioner, a defeated candidate, filed the present petition challengingthe election of the respondent to the Haryana Legislative Assembly, in the mind-term poll, held in 1968. The main allegations in the petition were (i) that the Policeand Executive officers of the District had acted in a partial manner which was help-ful to the respondent ; (ii) that the respondent and his agents with his conest andconnivance had printed and published posters, hand-bills and articles derogatoryto the personal charcter of the respondent and (iii) that the election expense of therespondent had exceeded the maximun limit laid down in section 77 of the Act.The petitioner, therefore , sought to have the election of the respondent declaredvoid. Allowing the petition,

HELD : (i) When officials are implicated in a petition as having committedcorrupt practice by trying to influence the voters at the instance of the respondent,it is the duty of the petitioner to establish that implication beyond reasonable doubt.If there are two possible expiations, one of which is favourable to the respondent,who is in the position of the accused, he can certainly take advantage of the same. Inthe present case, from the evidence on the record, it was not possible to hold thatthere was any interference by the police much less any interference by the Poilcemuch less any interfercence at the instance of the respondent.

(ii) Mere knowledge of some prejudicial matter having been published is notenough to make the candidate liable for the same. It must be established beyond allreasonable doubt, that such a matter was issued by the respondent or with his con-sent. The direct evidence and the circumstances surrounding the whole thing in thiscase lead only to one iressistable conclusion; that the writing in question werepublished either by the respondent or at least with his consent and as these containedallegations relating to the personal conduct and char acter of the petitioner and wereof a type which were liikely to further the prospcet of the respondent ann to preju-dice the prospects of the petitioner, the respondent was guilty of corrupt practice asdefined in sub-section (4) of Section 123 of the Act.

(iii) Even if the expenses shown in the petition which were found omitted in thereturn submitted to the Election Commission were added to the anount shownin his return as expended by the respondent in the election the total would remainwithin the maximum laid down in section 77 of the Act; as such it cannot be said thathe had committed any corrupt practice on that score.

Election Petition No. 13 of 1968

P. S. Jain, Ajit Singh Sarhadi, N. S. Bhatia, N. C. Jain, V. M. Jain, and R.K.Verma, for the Petitioner.

Rajinder Sachar, Mohinderjit Singh Sethi and J. S. Malik, for the respondent.

E.L.R.] HARDWARI LAL V. PRATAP SINGH 59

Judgement.

HARBANS SINGH J.—This election petition by Ch. HardwariLai, a defeated candidate, challenges the election of Ch. Partap Singhto the Haryana State Assembly from Bahadurgarh Constituency du-ring the last mid-term elections which took place during the month ofMay, ig68, originally, by a notification dated the ioth of April, 1968,the Election Commissioner appointed 12th of May, 1968 as the date ofthe poll in all the constituencies in Haryana State. However, by a sub-sequent notification dated the 24th of April, 1968, the date of the pollfor some of the constituencies was changed to 14th of May, 1968.

There were three contestants from this constituency; the petitionerbeing a Swantantra Party candidate, Ch. Partap Singh being a Con-gress Party candidate and the third Shri Ram Narain being an inde-pendent candidate. The petitioner had fought earlier from this veryConstituency three elections. In the General Elections of 1962, whichhe won. In the General of 1967, he contested and won on the Congressticket. He was a Minister in the Congress Ministry headed by ShriBhagwat Dayal Sharrna. There were, however, defections from theCongress ranks and the petitioner was one of them and as a result, theCongress Ministry fell and Government was formed by the SsmyuktaVidhayak Dal, beaded by Rao Birendra Singh in which Ch. Hard-wari Lai was an Education Minister. Ch. Hardwari Lai, however,resigned the seat in the Assembly and fought a bye-election in May,1967 on Samyukta Vidhayak Dal ticket which he won against thisrival Sbri Hari Singh Ratbi, who was the Congress nominee. Laterthis Ministry also fell and the Assembly was dissolved and the Presidenttook over the administration of the Haryana State. Subsequently,mid-term poll was ordered in the month of May, 1968 as stated above inwhich Ch. Hardwari Lai Petitioner was defeated.

The petitioner challenged the election of the returned candidateCh. Pratap Singh on the following grounds:—

(-1) that the change of the date of poll from 12th of May, 1968 to14th of May, 1968 was done with a veiw to give undue ad-vantage to the Congress condidate and that has materiallyaffected the result of the election ;

(2) that the police and the executive officers of the district actedin a partial manner and helped the Congress condiate aga-inst the petitioner, thus jeopardising the chances of thepetitioner;

(3) that a systematic campaing was undertaken throughoutthe Constituency by means of posters and hand-bills and bydistributions of two papers,namely, Vidrohi and Kalakar con-taining false all allegations against the petitioner's personalcharacter and these posters etc. were printed and publishedby the respondent and with his consent ; and

6 0 HARDWARI LAL V. PRATAP SINGH [VOL. XLl

(4) that huge amount was spent by the respondent during theelection days, and that this expenditure far—exceeded themaximum limit laid down in section 77 of the Representationof the People Act.

Preliminary objections were raised as to the lack of particulars etc.They were duly supplied and some parts, which had not beensupported by the material particulars, were ordered to be scoredoff" and finally amended petition was put in on 24th of September,1968.

All the allegations were controverted and it was pleaded that thechange of date was not done at the instance of the Congress Party;nor did it materially affect the result of the election; that no policeofficer did any propaganda in favour of the respondent nor anyundue pressure was brought to bear on the voters to vote in his favour.It was denied that any posters, hand-bills or issues of papers complainedof, were printed or published or in any case printed or published at theinstance or with the consent or knowledge of the respondent. Theexpenses alleged in the petition to have been incurred by the respondentand not accounted for in the return were disclaimed. As a result of thisthe following issues were settled :—

(1) Did the Station House Officer, Bahadurgarh work for therespondent by doing propaganda for him in any one or moreof the villages detailed below : —

(a) Village Mandothi on nth April, 1968, as alleged in paraV(a)

(b) Village Jakhaudah as alleged in para V(bj

(cj By speaking to Dr. Ram Lai of Bahadurh, as alleged inpara V(d)

(d) Villages Jakhaudah, Silothee and Kasar, as alleged in paraV(e).

(e) Village Mondothi on 3rd of May, 1968, as alleged in para

V(f)

(f) Village Tanda Heri, as alleged in para V(g)

(g) If so, what is the effect thereof ?{2) was the police found canvassing from door to door on 14th of

May, 1968. as alleged in para V(i)

(3) fa) Were the posters X-i to X—5 and the hand-bill X—6,or any one or more of them, published or distributed by therespondent or at his instance or with bis consent, as mentionedin para 5 ?


(b) Were the three issues of Vidrohi, dated 22nd April, 1968,6tb of May, 1968 and 13th of May ,1968, and one issue ofKalakar, dated 3rd of May, 1968, published with the consent,knowledge and at the instance of the respondent ?

(c) If so, does any one or more of the above posters of issues ofpapers contain defamatory matters relating to the personalcharacter or conduct of the petitioner ?

(d) If so, were such statements believed by the respondent to betrue or not believed by him to be false ?

(4) (0) did the respondent incur the expenses detailed in para5(vii) of the amended petition ?

(b) If so, do the expenses exceed the maximun permissible undersection 77 of the Representation of the people Act, and if sowith what effect ?

(5) Weather any irregularity was committed by changing the dateof the poll from 12th of May, 1968, to 14th of May, 1968,and if so, has the result of the election been materiallyaffected thereby ?

Issues jYo. 1 and 2 : Both these issues relate to the interferance by thepolice officers. Issue No. 1 is specific relating to the propaganda all-eged to have been done by Station House Officer, Babadurgarh in anumber of villages on different dates.

Issue No. 2 is general with regard to the police canvassing fromdoor to door on the 14th of May, 1968. With regard to the policeinterference in the free exercise of the right to vote by the voters par-ticularly the Harijan Voters, Mr. Dandekar, M.P. who appealed asP.W. 3 deposed to the fact that be found in the Constituency, whenhe visited the same on two different occasi ons that there was a feelingof oppression by the police againsst the supporter and workers of Cb.Hardwari Lai. He wrote to the Governor on 8th of May, 1968 afterbis visit to the Constituency a letter Exhibit P.W.3/3. This is a shortletter to the following effect ?

The law and other position is generally good except BahodurgarhConstituency where, strangly senough the police are terrorising theworkers and supporters of Cb. Hardwari Lai. I do not know fromwheie they got their inspiration.

But it is fact. Please can you "do something about this". A detailedreply was received by him from the Governor dated the iotb of May,1968 (Exhibit P.W. 3/4). Where he mentioned about complaint ofsome Congress workers having been beaten up by Ch. Hardwari La],Workers and that since counter—cases had been registered on both sides,there was no ground for an inpression that the police was partial. It wasalso mentioned that the Chief Election Commissioner, who toured

62 HARDWARI LAL V. PRATAP SINGH [VOL. XLI

through the Constituency. did not find anything objectionableand that he had asked the Home Secretary, who was also the ChiefElectoral Officer, to visit the area again. Mr. Dandekar was satisfiedwith this letter feeling that the Governor was doing his best and, there-fore, did not pursue this matter although there was a suggestion in itby the Governor that unless specific instances are brought to his notice onaction can be taken against the Government servants. ProfessorRanga, M. P., President of the Swatantra Party, was examined onCommission and he also made a reference to this matter and thete isalso reference in the evidence. I, however, feel that this generalevidence ha? not much bearing on the two specific issues that havebeen settled. [After considering the oral evidence, the judgementproceeded] :

On behalf of the respondent suggestion to this witness as well asto others was made, and it was otherwise brought out, that duringthe by election in 1967. Harijan voters, particularly who resided inMandhothi and Dalai villages, were not allowed to vote freely. Somewitnesses examined on behalf of the respondent went on to say thatduring the by-election, Harijans were not allowed even to go intothe polling booth and that Dalai Jat voters just took ballot papersand put the marking stamp themselves. Though it may be difficultto accept this version, yet the suggestion on behalf of the respondentis that the Administration wanted to ensure that there is no untowardincident to the constituency during this mid-term poll and that every-one should be allowed to vote in any manner he likes without anypressure or undue influence from others. It is clear, therfore, andit is not denied as a matter of fact it was clear from the statementof Mr. Ranga that some Harian voters in village Mandhothi wereaccompained by the police, but jthis may be either as alleged by thepetitioner, because they were being coerced to vote for the Congress,or as stated by the respondent only to afford protection tothem in going to the polling booth unmolested .and cast theirvote. If taere are two possible explanations one of the which isfavourable to the respondent, who is in the position of an accused,he can certainly taken advantage of the same. From the evidenceon the rercord, therefore it is not possible to hold that there wasany interference by the police much less that the interference wasat the instance of the respondent. There is no material on therecord to show to what extent this interference, even if it was there,materially affected the result of the election. Issues Nos. 1 and 2 are,therefore, found against the petitioner.

Before taking up Issues Nos.3 and 4, Issue No. 5 may bedisposed of. According to the petitioner, the Congress Party treatedthis Bahadurgarh Constituency seat as a prestige seat becauseCh. Hardwari Lai had succeeded from this seat on Congress ticketin 1967 and had earliar defeated the Congress candidate ShriHari Singh Rathi in the by-election. There were four constituenciesin Jhajjar Tehsil which adjoins Delhi. Originally in these fourconstituencies, as in all other constituencies in the state, the date of


polling was one and the same, namly, 12th of May, 1968, whichwas a Sunday. The reason given by Mr. Iswar Chandra, HomeSecretary Haryana for this change, was administrative convenience.The argument on behaldf of the petitioner was that if the changein date was made simply to ensure that the polling staff of oneconstituency be available to go to the adjoining constituency on theseccnd day because there was not sufficient staffto man all the consti-tuencies on one and the same day, the only reasonable and equitablething was to keep two of the constituencies for 12th and the re-maining two for the 14th of May. In actual practice, however,only election in Bahadurgarh Constituency was adjourned to 14thand in the remaining three constituencies of Jhajjar Tehsil, the dateof polling was 12th of May, 1968. It was suggested that this wasdone in order to give opportunity to all the Congress workers and othersto be able to be free and concentrate at Bhadurgarh to the disadvan-tage of the petitioner. The other point brought out by the petitionerwas that in the Constituency, majority of voters were of Bahadur-garh town and large number of persons from Bahardurgarh town andthe adjoining villages work at Delhi and these are mostly educatedpersons who, it was urged, were likely to support the petitioner asagainst the respondent. According to the petitioner's witnesses some2000-3000 persons go to Delhi daily in the morning for their work andreturn in the evening, These persons, it was suggested, failed to cast theirvotes. There is no material on which it could be said that any substan-tial number of voters were deprived of a chance to exercise theirright of franchise because of their preoccupation at Delhi. In factit is in evidence that the percentage of votes polled during this electionwas about the same as it was in the two previous elections. Be thatas it may, there is no material on which it could be said that personswho could not vote because 14th was not a holiday in Delhi would havevoted for Ch. Hardwari Lai. Thus, there is no material on the recordto show that this has materially affected the result of the election. Thisissue stands unproved and in fact the learned counsel for the peti-tioner, very rightly, did not lay stress on the same.

ISSUE No. 3. I his now brings me to the main issue in the case on whichthe major portion of the evidence was led and arguments addressed.The petitioner has proved on record four big posters X-i to X-4 pur-porting to have been issued by and on behalf of "voters of BahadurgarhConstituency". These posters are big sized posters which Hindiwriting on the upper part and a reproduction in Persian script in thelower part containing statements derogatory to the conduct and per-sonal character of Ch. Hardwari Lai. These four posters bear thepress line indicating that they were printed at New Bharat Press,New Delhi and Sood Litho Press, Delhi. These four posters are saidto have been printed and published before 1st of May, 1968—X-iand X-2 on 22nd of April, 1968 and the remaining two on27th of April, 1968. These were exhibited on the walls in Bahadurgarhas well as in rural areas. There is also a small hand-bill( Exhibit P.w. 3/2) in Hindi which bears the press4ine of the New Bharat Press

6 4 HA.RDWARI LAL V. PRATAP SINGH [VOL. XLI

printed in red-ink and also purports to be printed and published onbehalf of the voters. It is said to have been printed on n t h of May,1968, that is, just two days before the polling and contains inter aliaseries of allegations showing Gh. Hardwari Lai petitioner as a man ofvery low character who had been dismissed from the Provincial CivilService (and later turned out from the post of Principal) and who alsotook bribe as a Member of the Public Service Commission in thepre-reorganised Punjab etc.

There are three issues of a Hindi weekly by the name ofVidrohi published before the polling date bearing issue dates of22nd of April, 1968, 6th of May and 13th of May, 1968, whichin one form or the other reproduce, with certain additions,the defamatory material in the posters X-i to X-4 and hand-bill-Exhibit & P.W. 3/2. In addition to these three issues, which aresaid to have been distributed in the Constituency in large numberthis Vidrohi weekly published a poster in the form of a supplementaryof Vidrohi, Exhibit P.W. 3/1 (originally marked X-5). this is also inHindi and on the right half of it, there is a cartoon showing Ch. Har-dwari Lai infront of an almirah full of currency notes, faced by a largenumber of other Swantantra candidates during this Haryana mid-term election, demanding from Ch. Hardwari Lai their share of the finan-cial assistance. Rajaji, the founder of the All India Swantantra Party,is shown standing on one side in great bewilderment at the apparentmisconduct of Ch. Hardwari Lai in appropriating the entire funds pro-vided by Swatanatra Party, to himself. This issue of Vidrohi, which iswithout any date, also contains on the left hand side, an appeal purportedto have been made by Ch. Hardwari Lai to the Swatantra candidates tothe effect that in as much as the petitioner had no other means of live-lihood, they should allow the money to remain with him; and that othercandidates, younger as they are, would be able to earn otherwise.This poster is said to have been exhibited in Bahadurgarh and in ruralarea. Then we have an issue of Kalakar.(Exhibit P.W. 9/1), an Urduweekly also published from Delhi like Vidrohi, bearing the date 3rdof May, 1968. Besides containing the extracts from the speech of Smt.Indira Gandhi, the Prime Minister, at Rohtak exhorting the voters to

return the Congress candidates, it contains on the front page certainmatters derogatory to the petitioner and in favour of the respondent.This issue is also said to have been distributed in a large number.

On behalf of the respondent it was denied that these objectionablewritings or any one or more of them were ever got issued by him, at hisinstance or with his knowledge or consent. The petitioner led evidenceto prove that Ch. Partap Singh and his supporters particularly Ch. SurajMai, a transporter and big businessman of Bahadurgarh, Ch.Priyarat, elder brother of Ch. Partap Singh, Ch. Pritam Singh, workerof respondent and Jagdish Grover, Municipal Commissioner of Bahadur-garh being connected with the printing, publishing and disrtibution ofof the posters, hand-bill and the issues of these papers. Evidenceled by the respondent was the effect that none of these posters were seen.

E.L.R.] HA;R]JWARI LAL V. PRATAP SINGH 65

exhibited on the walls then the and hand-bill and the issues of thenewspaper were never distributed or came to the notice of any one inthe Constituency.

With regard to these posters and writings the questions requiringconsideration would be as follows:-

(1) Whether these posters, or hand-bill or other writings were infact printed before the date of the poll;

(2) if so, were these or any one or more of them published in theConstituency or any part thereof either by fixation onthe walls or otherwise by distribution in both manners ?

(3) If so, were these posters and other writings published bythe Respondent or with his consent and contained anyallegations relating to the personal character and conductof the petitioner, which were either belived to be false or notbelived to be true and that such statements were "reasonablycalculated to prejudice the prospects of the petitioner's elec-tion"?

The first important thing is the date of printing and publicationof the various writings. As already indicated, posters X-i to X-4were printed by the New Bharat Press and the Sood Litho Press.Dewan Sohan Lai P. W. 14 is the proprietor of the New Bharat Press.According to him, the first printing work that he did, relating to theelection in Bahadurgarh Constituency, on behalf ofCh. Pratap Singhrespondent was printing of P. W. 14/1., featuring life sketch of Ch.Partap Singh. This is in the form of a folder, having four pages and is inHindi on an front page is the photo of Ch. Partap Singh with the head-ing that he was the Congress candidate for the mid-term election tothe Haryana Assembly from Bahadurgarh Constituency. It purportsto have been issued by.the "Intelligent section of Bahadurgarh area."On the back page is an appeal to vote for Ch. Partap Singh and makehim successful with two bullocks • given as his election symbolfollowed , by the press line of New Bharat Press, New Delhi. The twoinner pages contain the college career of the respondent and the workdone by him in founding the Rohtak District Education Society andestablishing Nehru College, Jhajjar. According to this witness, themanuscript of this folder and the blocks, were given to him on the 15thof April, 19.68. He was asked to print 10,000 copies of the same. Thepaper for it was supplied by the customer and he delivered the printedcopies on 20th of April, 1968. According to him Ch. Partap Singh him-self did not come on the 15th of April, but on 20th of April, Ch. PartapSingh himself accompanied by Ch. Suraj Mai and one other person(who was pointed to and whoSe name was given as Ch. Pritam Singhand who incidentally has been assisting Ch. Partap Singh respondentthroughout the trial of this election petition) came for taking the copiesof this life-sketch. On that very day,' they brought with them manu-scripts of two posters having the caption Kaisria Libas or Sant HardwariLai and Bahadurgarh Ki Public Ke sath bhari dhoka. He produced the

5—i Elec, Com./71

6 6 HARDWARl LAL V. FRATAP SINGH [VOL. XL1

copies of the posters that were ultimately published and whichare the same as X-i and X-2 respectively. Order placed was forI,ooo copies of each poster. The paper again was supplied by thecustomer. The printing charges fixed were 50 rupees. As the poster wasto be printed partly in Urdu which could be done only on a lithopress of which there was no arrangement with the New Bharat Press,though he had an arrangement for having the material written by akatab (writer) on the yellow paper. He got this yellow paper written(which is known as mistar) from the Katab, who was available withhim, and then sent this mistar to Sood Lithe Press for actual printing.This poster was printed on 22nd of April, and apparently the deliverywas taken on that day because the cash memo. No. 63, issued byDewan Sohan Lai, for the printing charges of Rs. 50/- bears that date.We have also corresponding entries in the cash book and ledger of cashmemo. No. 63(P.W. 14/3) as P.W. 14/3/A and P.W.14/3-B.

About two days, thereafter, that is, on or about 24th of April,1968, Ch. Suraj Mai accompanied by Jagdish Grover brought themanuscripts of two other posters with the captions Sard Ji or Stuntji.(same as X-3) and Bharosa Nahi Raha (same as X-4). He got preparedthe mistar in the same manner as he had done on the earlier occasionand got it printed from Sood Litho Press, which according to ShriK. A. Aggarwala P.W. 12, the proprietor of Sood Litho press,and also according to press line upon these posters, were printedby Sood Litho Press on 27th of April, 1968. The delivery fromNew Bharat Press was taken on 30th of April. As 2,000 copies were tobe printed, the charges this time were Rs. 70/- which were received bycash memo No. 83 (P. W. 14/4) with the corresponding entries in thecash book and the ledger (P. W. 14/4—A and P. W. 14/4—B).[After considering the evidence, the court Proceeded];

In view of the above, therefore, "I am of the definite view that thepublication and distribution of the posters etc. in Bahadurgarh hasbeen proved beyond any doubt. There is also good deal of materialon which a finding can be given that the distribution and exhibitionof these posters etc. also took place in some villages included in theconstituency.

It is not disputed that the allegations in these posters, hand billsand the newspapers generally related to the personal character andconduct of the petitioner. Again it was everybody's case that theseallegations were likely to affect adversely the chances of success ofChoudhry Hardwari Lai and to promote those of respondent in theelection. Though in the issue the question whether these allegationswere false or not believed to be true by the respondent was there,yet with regard to the majority of them no suggestion was made duringthe course of evidence that they were not false and the respondentwhile giving his evidence did not make any suggestion that the allega-tions in these ten objectionable writings were believed by him to be??ue. The hand bill (Exhibit P.W. 3/2), as already mentioned,

E.L.R.] HARDWAR1 LAL V. PRATAP SINGH 67

contains very damaging allegations and more or less covers all theallegations which had appeared in other posters or newspapers.

The caption of this hand-bill is itself defamatory and runs asfollows :—

"Rishwat-khor ko vote mat do.''

It purports to have been issued from Bahadurgarh on n t h ofMay, 1968 and is in the form of a letter addressed to voters of Bahadur-garh, and had been signed b\ "Indicators of corrupt path to the voters."In view of the form in which this hand-bill is, the criticismvehemently levelled on behalf of the respondent that there was hardlyany reason for giving a date and thus making it certain that it waspublished on n th of May, 1968, loses all its force. If the hand-billwas in the form in which it is, the place of issue as well as the datewas an integral part of the hand bill. It ripens with the statementthat the very morning a letter of Choudhry Hardwari Lai, who is abogus sant, had been issued to the voters of Babadurgarh and that thisman bad been successful in falsely praising himself, and that the posterswhich the voters must have read during the last 15 or 20 days, musthave exposed the extent to which this man is worth the praise. Itthen goes on to say that it would have been better for ChoudhryHardwari Lai to have kept quiet, because in that case it would nothave been necessary for the writers to expose him further.

The second paragraph of the hand-bill then gives the details ofthe allegations regarding his personal conduct and character asfollows :—

(i) In 1951 Choudhry Hardwari Lai was removed from Govern-ment service because he accepted bribes;

(ii) Thereafter he became principal of a college, but from therealso he had soon to run away;

(iii) By playing a trick on Shri Partap :Singb Kairon,he becamea member of the Public Service Commission. There alsohe took bribe and for this very reason was removed fromthat post before the expiry of.his full term;

(iv) Now, for the last 6 or 7 years, he is struggling in the politicalfield. Because there was no money in the Congress to bedevoured, so he has joined,the Swatantra Party; and that

(v) This party, during the present election, had to help its candi-dates a great deal. However, stunt Hardwari Lai has devouredthe entire money of his other comrades.

Thereafter the poster poses the question whether the janla of Bahadur-garh would get deceived in spite of knowing all this.


The third paragraph recites that Choudhury Hardwari Laiin his letter had bragged that he does not want to throw mud at hisopponent; that if Choudhry Hardwari Lai had anything to say againstChoudhry Partap Singh during the last six or seven weeks, he shouldhave brought the same before the janta; that in fact there was nothingagainst Choudhary Partap Singh; that feeling helpless ChoudhryHardwari Lai can only say that he does not want to say anythingagainst him (Gboudhry Partap Singh), and that even then there weretwo or three days still available during which Ghaudhry HardwariLai could do whatever he liked.

It was urged that apart from other things the last paragraphleaves absolutely no doubt that this poster was in fact issued two orthree days before the date of polling, which also is the inference tobe drawn from the actual date it bears.

A suggestion was made to Choudhry Hardwari Lai, in crossexamination, that he had accepted some present or gift from SethKar or i Mai of Bhiwani at the time of the marriage of the son or daughterof the said Seth KaroriMal, which was attended by ChaudhryHardwari Lai when he was in the P.C.S. (Executive Side) and postedat Bhiwani, before his resignation in 1951, and another suggestionmade was that Chaudhary HardwariLal bad refused to issue a warrantagainst the said Seth Karori Mai when such a request was madeto him inh is official capacity. These suggestions were denied. Thereis nothing on the record to show that there is the slightest truth in theallegation that Choudhry Hardwari Lai was removed from the Pro-vincial Civil Service. Similarly there is no evidence whateverthat he was removed from the membership of Public Service Com-mission. The facts stated by the petitioner aie that he resignedin 1951 because he wanted to contest the general election, whichhe did in 1952. He contested that election, but was unsuccessful.Thereafter he become principal of Vaish College at Bbiwani and laterbecome founder principal of Seth KaroriMal college at Delhi. There-after he was asked by Mr. Partap Singh Kairon to come to Punjaband join as a member of the Public Service Commission, which heagreed to do for a year during which period hewas on leave withoutpay from Seth Karori Mai College. This leave was got extendedby him for another year, but thereafter when Mr. Kairon insistedthat he should continue as member of the Public Service Commissionand also gave him the honorary post of part-time Vice Chancellorof Kurukshetra University, he resigned from principalship of theCollege and continued working as fulltime member of the PublicService Commission and part time honorary Vice Chancellor of theKurukshetra University for another two years. When he had beena member of the Public Service Commission in this manner for fouryears the chairmanship of the Public Service Commission fell vacantarid the then Governor also persuaded the Chief Minister,Mr. Kairon. that a whole time Vice-Chancellor of Kurukshetra Uni-versity was necessary. Choudhry Hardwari Lai was given the

E.L.R.] HARDWARI LAL V. PRATAP SINGH 69/

choice of either being the Chairman of the Public Service Commissionor full time Vice Chancellor of the Kurukshetra University. Heaccepted the later post, which he occupied till he again contestedthe election.

The personal file of Choudhry Hardwari Lai summoned fromthe office of the Chief Secretary of the Punjab Government (ExhibitP.W. 45/1) shows that there is no adverse report against him throughouthis carrier throwing any doubt whatever on his integrity. The lastreport of the Commissioner, Ambala, dated 14th of November 1951,that is immediately before bis resignation is in the following terms :•—

"He is a very intelligent and capable officer-who has plenty ofcommon sense. Has done excellent work at Bhiwaniin encouraging a philanthropist to raise a hospital, a libraryand a children park. No complaint against bis integrity."

The deputy Commissioner had earlier, on 23rd of September, 1951recorded the following opinion :—

"Continuous to do well. Honest and hard-working, has effectedimprovements in the Municipal Committee, Bbiwani."

The file relating to his resignation from P.C.S. (Executive Branch)is Exhibit P.W. 45/3, in which the note of Mr. M. R. Sacbdev, whichhas been proved by P.W. 45 who was familar with his writingand which note was ultimately approved by the then Governor,makes it cleat that Choudhry Hardwari Lai resigned and wantedhis resignation to be accepted at once because he wanted to stand forthe Assembly election and the Government did not like to stand inhis way. Mr. Sachdev had kept the resignation application pending,asking Choudhry Hardwari Lai to reconsider the matter. Paragraph2 of Mr. Sachdev's note reads :—

"I am satisfied that Ghoudhary Hardwari Lai has taken bisdecision after cool and careful consideration. I suggestthat the resignation may be accepted with effect from n t hof October T95i."

Paragraph 3 of Mr. Sachdev's note no doubt mentions that there wasa complaint that Choudhry Hardwari Lai had accepted a gift fromSeth Karori Mai at the time of the wedding of the son or daughter ofthe said Seth Karori Mai. He, however, remarked that he belivedthe same to be false and that this should not stand in his way. Onething is clear that Choudhry Hardwari Lai was not turned out ofP.C.S. because of any allegation of bribery.

As regards his being removed from the membership of PublicService Commission, the position taken up by the petitioner is fullysupported by the evidence of Shri E. N. Mangat Rai, who was the


Chief Secretary of Punjab Government from 1957 to 1962. He said asfollows :—

"I recall that the chairmanship of the Public Service Com-mission was due to be filled following the exit of Dr. Anup Singh.I recall also that Mr. Partap Singh asked me to sound ChoudhryHardwari Lai member Public Service Commission and ViceChancellor, Kurukshetra University, for the chairmanship.Simultaneously, the Governor, Mr. Gadgil asked me to convincethe Chief Minister that Kurukshetra University must have awhole time Vice-Chancellor. I was able to persuade Mr. PartapSingh Chief Minister to accept the Governor's view and Mr.Partap Singh then asked me to put the choice without any kindof pressure either way to Choudbry Hardwari Lai to make aclear decision either for Vice Chancellorship or the chairman-ship"

He further stated that the chairmanship of the Public Service Com-mission remained vacant for some time pending choice to be madeby Choudhry Hardwari Lai and that Mr. Basur was appointed thechairman of the Commission "after Choudhry Hardwari Lai hadconveyed his decision in preference for Kurukshetra University."To another question he further went on to say—

"al have known Chaudhry Hardwari Lai ever since the daysof his being a student. There was, at no time, any complaintor suspicion regarding his integrity."

The reason why he left the Congress, is a question of opinionthough there is nothing on the record to suggest that the insinuationthat he left it with a view to get more money was correct. The onlyother definite allegation in this hand bill is to the effect that theSwatantra Party had given a considerable amount of money toChoudhry Hardwari Lai for being distributed amongst the Swatantracandidates during this mid-term election, but instead he had utilisedthe whole to his own use. Mr. Dandekar's statement in this respect isvery material. He was in charge on behalf of the Central Party of thismid-term poll in Haryana. He had made a definite statement thatall Swatantra candidates were given monetary assistance directlyby him as in charge of the Central Party and every candidate wasgiven the same measure of help—whether it was in the form of cash orthe use of jeeps. Apart from this some money was spent on hire of taxis,paid not to Choudhry Hardwari Lai but to the members of a committeeof which Choudhry Hardwari Lai was chairman, for going round forparty propaganda and select the candidates. In addition, Rs. 2,000per month—and that also only for six months—was paid for runningthe local office. From the above it is clear that no amount whatever—not to say a huge amount—was placed at the disposal of ChoudhryHardwari Lai for being distributed to the other Swatantra candidates,and consequently this allegation was also false and no effort has beenmade to suggest any basis on which this allegation would have been

E.L.R.] HARDWAR1 LAL V. PRATAP SINGH 71

believed to be true or not believed to be false. The only suggestionmade in the cross-examination of Mr. Dandekar was that there wasa general impression that the Swatantra Party consisted of Rajas,Maharajas and well to do people, but that is far from saying thatChoudhry Hardwari Lai was given money for being distributed amongstthe candidates which he utilised for himself.

As detailed above, the allegation in Exhibit P.W. 3/1, in whichthere is a cartoon of Choudhry Hardwari Lai was also the same. Thewhole trend.of the poster is to the effect that lakhs of rupees had thusbeen taken away by Choudhry Hardwari Lai and not given to theother candidates.

Poster (Exhibit X. I) contains mainly three allegations. Thefirst is that in the general election of 1967 Choudhry Hardwari Laireceived in the form of garlands of currency notes a large amountwhich he had promised to be utilised towards the fees of poor childrenand that lakhs of rupees were given to him by poor labourers andfarmers and that all this money had been misused. The second isthat fees have been imposed on the children of Haryana and that insteadof increasing the salaries of the teachers, Choudhry Hardwari Laihimself was thoroughly enjoying himself in the mountview hotel atChandigarh on the scale which is unprecedented in the whole of thecountry. The third allegation was that "Sentinel Weekly" wasstarted by Sant Ji in 1965-66 and subscriptions and donations werecollected from people of unaccounted amount, but after 4 or 6 monthsthe publication of the paper was stopped. Explanation should begiven as to where this money had gone and why the paper was stopped.

The petitioner denied that he ever received any money in theform of garlands of currency notes or that he ever promised to use theamount so received towards the fees of the children. He explainedthat he received some amounts otherwise from the villagers for hisown use in the election, part of which he utilised. As regards theallegation of his enjoing any luxury, in the Mountview hotel on anunprecedented scale, he explained that as a Minister he was entitledto a free furnished Government house, with malis, chowkidars andofficial guard. Instead of all this, he remained originally in M.L.A.hostel and then shifted to Mountview hotel where the Governmenthad to pay only Rs. 300 permensem as the rent, and thus causedsaving to Government not only in the furnishing of a kothi, but alsoin the salary of malis etc. So far as the third allegation is concerned,it is admitted that because he became otherwise busy the publicationof the paper was stopped.

Poster (Exhibit X. 2) has the caption "Kesaria libas aur SantHardwari Lai." This contains two allegations : (i) that ChoudhryHardwari Lai joined the Congress Ministry after being elected onCongress ticket and when he found that S.V.D.'s ministry was goingto be formed he left the Congress and for getting ministership joined


the Dal and made a statement from the stage that he would acceptonly Re. i as his salary and the balance would be utilised for children'sfees and scholarships, but in spite of all this Sant Ji had been acceptingthe entire salary and putting it to his own use and (ii) that before1967 he donned saffron clothes of a Sant and stated that he had noattachment with the world and.would serve the poor junta and thathe would give his 60 bighas of land to the Panchayat. The land isstill in the name of Sant Ji and he should have given the land to thePanchayat and should not have taken to the saffron clothes as a stunt.

The petitioner stated that he never made a statement that thewould accept only Re. 1 as his salary. On behalf of the respondent,a news item was brought on the record in the "Tribune" of 24th ofMarch 1967 (Exhibit R. 6), where some statement is attributed toRao Birendra Singh to the effect that each one of them will acceptRe. 1 as salary. The petitoiner disclaimed having subscribed tosuch a statement. Be that as it may, in view of this news item thisparticular allegation cannot be said to have been made knowing it tobe false. There may be reasons for thinking that, this was a statementmade by Choudhry Hardwari Lai. As regards the second allegationChoudhary Hardwari Lai explained that by taking the saffron clothes,he never intended to leave the world but wanted to leave attachmentwith the world. He further explained that he never made a statementthat he will give his land to the Panchayat. He wanted the land tobe sold and with the money realised, rooms added to the existingbuilding of the school in the village. In spite of best efforts, nobodycame forward to purchase the land and the land continues to be in hisname, though actual possession is with his collaterals and he hadnever bothered about the income. Some revenue documents werecalled on behalf of the respondent, apparently to show the possessionof Choudhry Hardwari Lai, but Exhibit R.W. 1/1 relate to jama-bandi of 1962-63 and has no relevancy. However, the fact that inspite of this declaration the land was still not transferrred may havegiven some reasonable basis for somebody to think that he had notcarried out what he had declared in view of the above, therefore,I feel that the poster (Exhibit X. 2) cannot be said to be objectionablein the sense that the same was issued with allegations which may nothave been believed to be false.

1 Exhibit X. 3 is captained "Sant Ji Ta Stunt Ji." Apparently thisposter tries to make capital out of the fact that Choudhry HardwariLai were saffroncoloured clothes and made a pun on "Sant Ji" bycalling him "Stunt Ji." This contains a general allegation that duringthe by-election Choudhry Hardwari Lai merely enacted a farce whenhe resigned from his M.L.A. ship and continued to be a minister andduring the by-election all ministers drew travelling allowance, etc.and lakhs of rupees of Government were spent on the byelection andthat this resignation was merely a method of collecting money andthe poor janta was robbed of the money with both hands. Thepetitioner explained that some money was given to him by the residents


of his own village and some by the Chief Minister, Rao BirendraSingh, which was presented to him in some villages of the constituency,but the total amount was to the tune of a few thousand rupees andthere was no question of people being robbed of any money. Thisposter no doubt deliberately tries to insinuate against ChoudhryHardwari Lai that he was not an honest and straight man, and thathe resigned from the M.L.A.ship to fight the by-election merely as afraud. The petitioner explained that inasmuch as he was electedon Congress ticket and he had joined the S.V.D., he thought it properas an healthy parliamentary practice that he should have fresh verdictof his constituency. It is also in evidence that Rao Birendra Singhstated that if Choudhry Hardwari Lai lost his seat, that would betaken to be an expression of no confidence of the entire State . againstthe ministry and they will all resign. There is nothing to show thatin resigning and contesting the election on S.V.D. ticket, ChoudhryHardwari Lai was moved by any improper motive. This poster is,therefore false.

The poster (Exhibit X. 4) also contains general allegations ofhis leaving the Congress and that Sant Ji (Choudhry Hardwari Lai)changed his party according to the time and to get more money thathe left the Congress ministry of Pandit Bhagwat DayaJ and joinedS.V.D. and the ministry of Rao Birendra Singh, but realising thatno money will be available from that party he left that party andjoined the Swatantra Party, which is the party of rich and Rajasand Maharajas. The explanation of the petitioner is that he joinedthe Swatantra Party because he wanted to join an All-India Partyand not to remain in a provincial party like S.V.D. The insinuationin this poster about his joining Swatantra Party for grabbing moneyis false and relates to his personal character.

So far as 'Vidrohi' issues are concerned, the same more or lesscontain repetition of what is stated in the posters and later in the handbill, with the addition that in these issues definite allegations are madethat he was removed from the Vice Chancellorship's also the allega-tion that he had built a Kothi in Rup Nagar, Delhi, suggestingthat he had built this house out of the funds given for public purposes.The petitioner explained that the Kothi was in the name of his wife,and had been constructed out of Rs. 50,000 which were given to heras a gift by Seth Karori Mai when he (Choudhry Hardwari Lai)was working as Principal. No effort was made to show that this wasnot correct. In the 'Vidrohi' issue of 13th of May, 1968, as alreadydiscussed above, there are clearcut insinuations that there are otherbad deeds worse than those already disclosed, attributable to ChoudhryHardwari Lai.

'Kulakar' also contains general allegations and those need notbe discussed.

On the whole, out of the posters the most damaging is ExhibitP.W. 3/1 suggesting that lakhs of rupees had been taken by ChoudhryHardwari Lai for and on behalf of other candidates of the Swatantra.


Party and he had utilised the amount himself. The other posters,except Exhibit X. 2 also contain derogatory allegations regardingthe character and conduct of the petitioner, for which there was nobasis for believing them to be true.

This now brings us to the main question whether one or more of theobjectionable writings were published by the respondent or by hisagent or any other person with his consent. It was vehemently urgedon behalf of the petitioner that there was ample and reliable directevidence of the fact that these posters were got published by ChoudhryPartap Singh or by his supporters with his consent. The directevidence is that of Sohan Lai (P.W. 14) discussed above, that of Mr.R. K. Shashi, editor, printer, publisher and owner of 'Vidrohi Weekly'(P.W. 10), and that of Mr. Sada Nand Verma, editor of 'KalakarWeekly' (P.W. 11). So far as Sohan Lai is concerned, his evidencehas already been discussed above. According to him, for getting thelife sketch (Exhibit P.W. 14/1) printed, somebody went to him on15th of April, 1968. On that day he told the man that the life sketchpurported to be on behalf of intelligentsia and not on behalf of anyparticular person and though he would publish that particularfolder because that did not contain anything damaging to anybodyhe would like to have either the name of the publisher or to know whowas publishing the same. On 20th of April, 1968, when GhoudhryPartap Singh and Suraj Mai came to take away the printed copiesof this folder which was printed to the extent of 10,000 copies, theybrought a letter dated 16th of April, 1968 from Mr. Shashi, editor of'Vidrohi Weekly'. This letter is Exhibit P.W. 14/7. This introducedChoudhry Partap Singh, saying that he would like to have a numberof posters printed from him and that he should oblige him by printingthe same on taking the writing of some man of his. Sohan Lai knewMr. Shashi because far time the latter had his office on the first floorof the building where the press of Sohan Lai was situated. In orderto safeguard his own interest he got the manuscript written by GhoudhrySuraj Mai and on the basis of the same he printed the posters(Exhibits X. 1 and X. 2). He produced in Court the manuscript ofone of them (Exhibit X. i/A) on the basis of which the poster (ExhibitX. 1) was published. On the second occassion, when the manuscriptof Exhibits X. 3 and X. 4 were given Choudhry Partap Singh didnot accompany Choudhiy Suraj Mai. The original manuscript ofExhibit X. 4, which was also written by Choudhry Suraj Mai in hispresence, has been produced as Exhibit X. 4/A. The other two originalmanuscripts were said to have been lost. On the last occassion,Choudhry Partap Smgh and Suraj Mai both went with a manuscript,Exhibit P.W. 3/2-B. This had already been written by somebodyand biought by these two persons. Sohan Lai, however, wantedChoudhry Suraj Mai to write it out more clearly in his presence andChoudhry Suraj Mai copied the manuscript in his own writing, whichis Exhibit P.W. 3/2-C. Sohan Lai gave this to his brother to read outto the compositor for the sake of saving time and after the matter wascomposed, he got printed some copies which were given to them aftera couple of hours and the balance of the number of 10,000 was sent


subsequently. There can be no manner of doubt that if his evidenceis believed, there would be direct connection of Choudhry PartapSingh with these objectionable writings.

The learned counsel for the respondent, however, vehementlyurged, first that it looks highly improbable that Choudhiy PartapSingh would himself go on n t h of May 1968 to the printing pressof Sohan Lai just to get these posters printed. As deposed to bythis man Choudhry Suraj Mai had already been introduced by Mr.Shashi and he could have sent Choudhry Suraj Ma] to go and getthe matter printed. n t h of May 1968 was the date on which Mr.Chavan was to come and address a meeting and Choudhry PartapSingh would have a number of arrangements to look into in thatconnection. Again it is not likely that these two persons would wastetime in Choudhry Suraj Mai re-writing the manuscript and if, asstated by Sohan Lai, he wanted some assurance about the writer orperson responsible for getting this printed, he could have just takenhis signatures. Thirdly, these two persons would not have waitedthere for two hours in order to take delivery of the posters that hadbeen got printed and that, in any case, merely the word of this man(Sohan Lai) should not be taken to prove the claim that ChoudhryPartap Singh was concerned in printing the poster (Exhibit P.W.3/2). On the other hand, it was said on behalf of the petitioner thatit is in evidence that originally Mr. Chavan was to come on 7th ofMay, for which date meeting was organised, but his visit was can-celled at the last moment. On 10th of May, a big meeting was ad-dressed by Choudhry Hardwari Lai and the top leaders of Swatantraparty and n t h of May was the last day on which a meeting could beheld because all propaganda had to stop fortyeight hours beforethe date of pell, which was the 14th of May, Choudhry Partap Singhwould, therefore, naturally be anxious to ensure that Mr. Chavanaddressed that meeting so as to counter the effect of the meeting ofChoudhry Hardwari Lai a day earlier and it was but natural forChoudhry Partap Singh tc go to Delhi to visit Mr. Chavan and totake that opportunity also to take the manuscript himself and impressupon Sohan Lai to have its printing expedited. So far as gettingthe manuscript re-wiitten by Choudhry Suraj Mai is concerned, itis stated by Sohan Lai that he just told them that he wanted a clearwriting to enable him to print it, and according to him, it took themonly about 15 minutes to write out the subject matter. So far as thequestion of waiting for two hours is concerned, that is nobody's caseand the impression left on the Court also was not that they continuedsitting at the press for two hours. After placing the order, they mighthave gone to do some other work at Delhi and on their way back theyapparently collected whatever number was available so as to be ableto distribute them at the meeting that evening. There is thus noinherent improbability in the story given by this witness.

Mr. Shashi's evidence is with regard to three issues of 'VidrohiWeekly' and poster (Exhibit P.W. 3/1). According to him, some 20or 25 days before the polling, he was sent for by Choudhry Partap


Singh, whom he knew, to his election office at Bahadurgarh, wherehe met Choudhry Priya Vrat, the elder brother of the respondent,the respondent himself and Choudhry Suraj Mai. The respondentasked him to help him in the election and this man offered his services.The respondent then gave him some matter relating to ChoudhryHardwari Lai, on the basis of which he published the three issues of22nd of April, 6th of May, and 13th of May, 1968. More or lesswere three big articles in the issue of 22nd April, and the issue of 6thof May was devoted entirely to election in Bahadurgarh and regardingthe conduct and character of Choudhry Hardwari Lai. Similarly,the issue of 13th of May, 1968 was mainly devoted to the mid-termelection and, as already indicated, it contained a challenge on behalfof the editor to Chaudhry Hardwari Lai to go to court of law andfile a defamatory suit against 'Vidrohi' for publishing articles in itas well as in Exhibit P.W. 3/1. According to him, Exhibit P.W.3/1 was specially issued at the instance of Choudhry Partap Singh,and these articles and writings were based on the material suppliedby Ch. Partap Singh and on his own enquiry. The matter was gotcleared and he agreed that the material supplied inter alias containedthe information given to him as follows :—

(i) that the Swatantra Party had given Choudhry HardwaiiLai huge money for distribution amongst its candidateswhich he had not distributed;

(ii) that some money given to him in a number of meetings inthe area for the benefit of the children was convcited tohis own use; and

(iii) that he had built a house in Roop Nagai, Delhi, out of themoney given to him for public purposes and that he hadno private source of income.

All that was stated against this witness was that he is the usualtype of cheap journalist who would offer his services to any party.It was admitted by Mr. Shashi that originally he offered his servicesto Choudhry Haidwari Lai, but he declined, and then he put theservices of his paper at the disposal of Choudhry Partap Singh asdesired by him. After the election a notice (Exhibit P.W. 42/1) wasgiven by Choudhry Hardwari Lai and a reply to that was sent by Mr.Shashi (Exhibit P.W. 10/4) giving his explanation, which is substan-tially the same as the story given in the Court, namely that he wasassured by Choudhry Partap Singh and others that the materialsupplied by them was correct and they had written proof with them.Another letter making further clarification was also sent, which isExhibit P.W. 10/6. According to this witness, he supplied 2,000copies of each of the relevant issues to Choudhry Partap Singh atthe usual rate of Re. o*io paise per copy. He also supplied 2,000copies of the poster (Exhibit P.W. 3/1) and for these and the cost ofblock, cartoon, etc. he charged Rs. 650. In all he got Rs. 2,100including the cost of some advertisements which were published inhis newspaper.


Mr. Sada Nand Verma of Kalakar went to Bahadurgarh on27th or 28th of April, 1968 in order to see how the election propagandawas going on. He went to Ghoudhry Hardwari Lai's office but hewas busy with the other Swatantra candidates and so he had no timeto talk to him. So he went to the office of Choudhry Partap Singh,Congress candidate, and had a talk with him. Mr. Verma toldChoudhry Partap Singh that if the latter could give some materialagainst the Swatantra Party and in favour of the Congress, he couldmake use of that in publishing the same in his paper. ChoudhryPartap Singh then gave him some points, which were jotted downby this witness, and Choudhry Partap Singh asked him to issue aspecial supplement of his newspaper in this respect and directed himto send 2,000 copies. Asa result of this he published Exhibit P.W.9/1 bearing the date 3rd of May, 1968 and supplied 2,000 copies toChoudhry Partap Singh for Rs. 200. Subsequently also the witnessapproached Choudhry Partap Singh if he wanted another issue to bepublished, but he declined.

The statement of Jagdish Grover P.W. 24 has also a bearing onthe question of the connection of Ch. Partap Singh with these posters.As already mentioned, according to this witness, he was incharge ofthe city election office of Ch. Partap Singh and, as such inter aliaissued the five posters as well as the issues of "Vidrohi' and 'Kalakar'for being pasted in the city of Bahadurgarh and for distribution. Thisstatement of his, if accepted, provides a direct link between Ch.Partap Singh and these posters and would be an important piece ofevidence establishing that these posters were printed and publishedat the instance and with the consent of Ch. Partap Singh. He isa respectable person, being a Municipal Commissioner, and an im-portant feature regarding this witness is that in the list of witnesses,desired to be summoned through Court, he was cited as a witness for,the respondent at serial No. 104. He was cited to support the allega-tions in the written statement regarding paragraphs 5, 6 & 7 readwith Schedules 'A' and 'B'. It may be stated that these para-. graphs 5, 6 and 7 and Schedules 'A' and 'B' contained all the allega-tions, which form the subject-matter of the issues. The allegationsabout these posters are given in paragraph 5 and this man could havegiven evidence relating to paragraph 5 and the other paragraphsincluding the expenses said to have been incurred by the respondent,only if he was intimately connected with the election work of the res-pondent. At the trial, when asked regarding this witness, Ch.Partap Singh took the position that Jagdish Grover was neutral.It is not clear how a person, who had remained neutral during thecourse of election campaign was in a position to give evidence relatingto the material facts alleged against the respondent. Accordingto the evidence of Jagdish Grover, as being incharge of the city office,it was his duty to arrange election meetings and for that purpose setthe stage, arrange for the shamianas and the loudspeakers etc. Thefact that he was to do these things, is also supported by another witnessShivdev Singh P.W. 26. He helongs to Delhi and is the proprietorcf Kamla Tent House there. According to his evidence, large

78 HARDWARI LAL V. PRATAP SlrfGH [VOL. XLI

number of Shamianas and durries etc. were arranged on hire by Ch-Hardwari Lai for the meeting convened by him on ioth of May, 1968.For this purpose, the Shamianas etc. were brought by this witnessalong with his workers on gth of May, 1968, to Bahadurgarh. There,he was contacted by Jagdish Grover (whom he identified in Court)and Ch. Pritam Singh (whom he called Pritamji and also identifiedhim as the person sitting in Court). Jagdish Grover and Ch. PritamSingh, according to Shivdev Singh, settled with him to allow theshamianas and durries to remain in Bahadurgarh for use by the Congresscandidate for the meeting to be held on n t h of May. In view of thefact that the material was already there, Shivdev Singh agreed togive them on hire for 1 ith of May, after the meeting of ioth of May,at a slightly concessional rate and charge them Rs. 300 lump sum.The tents and, shamianas admittedly were taken back to Delhi on 12thof May because we have the terminal tax receipt, Exhibit P.W. 26/1,which shows that Rs. 46 were paid as the terminal tax. This ShivedevSingh also produced his register in which entries were made aboutthe various things sent out on hire. The original register entrieswere seen and marked Exhibit P.W. 26/2, which related to hire ofshamianas etc. tc Ch. Hardwari Lai under the date 9th of May, andExhibit P.W. 26/3, which related to hire in favour of Ch. PartapSingh under date ioth of May. The copies of these entries werekept on the record as Exhibits P.W. 26/2-A and P.W. 26/3-A, under-taking having been obtained from Shivdev Singh to produce theoriginal register whenever called upon to do so. This was donebecause Shivdev Singh needed the register for his daily use. Thecash-memos issued to these two persons, namely, Ch. Hardwari Laiand Ch. Pritam Singh for the charges realised from them were noton the regular bill form but on the letter-head, which were attachedwith the bill book but not in a proper chronological order, andhis statement was criticised on this basis. I felt impressed by theevidence of this person, corroborated, as it is, by the surroundingcircumstances. As admitted by Ch. Hardwari Lai, and not deniedby the respondent, big meeting was organised by Ch. Hardwari Laion behalf of the Swatantra Party, and there was another big meetingon 1 ith of May, organised by Ch. Partap Singh in the school grounds.This meeting admittedly was held between 3 p.m. and 4 p.m. Therespondent's and his witnesses, version, however, is that only 2 or 3shamianas and 3 or 4 durries were hired locally, the durries werespread over the stage over which the shamianas were pitched to provideshade. According to some of the witnesses of the respondent, only12 persons sat on the stage. According to Ram Kanwar R.W. 5,out of the total number of persons which ran into several thousands,only a few were under the shamianas and a very small percentageof the remaining were under shade of the trees, but the majority ofthe audience was directly under the sun, sitting on the ground whichhad neither grass nor any durrie etc. to protect them either from thehot ground or from the burning hot sun of the month of May at thathour of the day. To me, this part of the story put forward by therespondent does not appeal being highly improbable. Not evento provide a shade over the heads of the audience, who had come to

E.L.R ] HARDWARI LAL V. PRATAP SINGH 79

hear the address of the last public meeting on behalf of the Congresscandidate, and who were to be persuaded to vote for Congress withintwo days thereafter, does not appeal to me at all. The evidenceof Shivdev Singh and that of Jadgish Grover, who supports him inthis connection and the circumstance of the shamianas etc. being re-turned not on n t h of May, as they would have been if used only byCh. Hardwari Lai, but on 12th seems tome most natural and proper.That being the case, it is obvious that if it was Jagdish Grover and Gh.Pritam Singh, who contacted Shivdev Singh, these persons must beactively working for the respondent. So far as Gh. Pritam Singh isconcerned, he was sitting with and assisting the respondent and hiscounsel in Court throughout the proceedings of this election petition,and, as admitted by the respondent, he was one of his important workers,but the position of the respondent was that he was utilised only forworking in the rural areas. Jagdish Grover was not put any questionin cross-examination suggesting that somebody else was incharge ofthe meeting etc. that were to be organised on behalf of Ch. PartapSingh. Later, however, Ram Kanwar Gupta was examined asR.W. 5 and he stated that there was only one office of Gh. Partap Singh,which was in the Dharamsala, belonging to their family, which waspopularly known as Ram Kanwar's Dharmasala, near the bus standand that there was no other city office of Ch. Partap Singh. Accordingto him he alone was incharge of this office and Ch. Pritam Singh orJagdish Grover was never such an incharge. He then gives evidenceof the various meetings arranged and particularly the meeting of 11 thof May. According to him, they had made arrangements originallyfor this meeting on 7th of May, but later, on hearing about thecancellation of the programme of Mr. Chavan, this meeting was post-poned and Mr. Chavan addressed the meeting on n t h of May. Itis he who gives the details of the shamianas and the durries hired locallyfor which Rs. 60 was paid as the rental.

The learned counsel for the petitioner vehemently urged thatthis Ram Kanwar Gupta has been produced to come forward as theincharge of the election office of Ch. Partap Singh as a completeafterthoughts. In the list of witnesses, desired to be summoned bythe respondent, this witness is at serial No. 5. He was "to disprovethe allegations regarding issue No. 1 in Bahadurgarh and to disprovethe publication of posters Exhibits X. 1 to X. 6". From the above,it is clear that he was never cited as a witness to disprove the expenses

. incurred by the respondent which were not shown in the return. Infact, till 12th of December, 1968 (for which date this witness hadactually been summoned and was present but could not be examinedbecause the petitioner's evidence continued even on that day) nosuggestion was made to any one of the previous witnesses of the peti-tioner, notwithstanding the fact that Jagdish Grover had been exa-mined on 9th of December, that it was Ram Kanwar Gupta, whowas the incharge of the election office of Ch. Partap Singh. Takinginto consideration the fact that Jagdish Grover was originally citedas a witness for all matters in the petition and Ram Kanwar Guptawas not so cited, along with the other circumstances, I am inclined


to agree with the learned counsel for the petitioner and that RamKanwar Gupta has been put forward as an incharge of the office onlyas an afterthought. It has to be borne in mind that Jagdish Groverwas definitely on the side of Ch. Partap Singh because in the firstinstance he is and was a Congressman; he was cited as a witness bythe respondent; and till October he had apparently very good rela-tions with Ch. Partap Singh because Ch. Priyavrat, elder brother ofCh. Partap Singh, was actually to preside over a function of the schoolmanaged by this Jagdish Grover.

Good deal of controversy ranged over the part played by Ch.Suraj Mai. As stated above, according to Dewan Sohan Lai, it wasCh. Suraj Mai who had gone for getting the posters printed either incompany with Ch. Partap Singh or otherwise and it was he who gavethe manuscripts, three of which have been produced in Court. Thereis no suggestion that the manuscripts produced are not, in fact in thehandwriting of Ch. Suraj Mai. According to the statement of Ch.Hari Singh Rathi, already discussed above, in connection with thepublication of the posters, Ch. Suraj Mai was, during the last election,actively supporting Ch. Partap Singh and was incharge of the publi-lication regarding the posters etc. The respondent now takes upthe position that Ch. Suraj Mai was neutral. It is not denied thatCh. Suraj Mai is a member of the Zila Parishad and a big transporter,having several trucks etc. That he is an important person is notdenied. He was one of the persons, who had applied for the Congressticket along with Ch. Hari Singh Rathi. His younger brother, Ch.Hari Chand is the President of the Municipal Committee, Bahadur-garh. Ch. Suraj Mai would, therefore, normally be a person whoseassistance would be sought for by a candidate who wants to get supportparticularly from Bahadurgarh town. It is admitted that Ch. PartapSingh was not a political figure in Haryana or in Bahadurgarh. Asstaged by Ch. Hari Singh Rathi, he was hardly known in the consti-tuency. He was a well to do person no doubt but his main activityalong with his brother Ch. Priyavrat, was confined to running anumber of brick-kilns and one firm manufacturing agriculturalimplements at Rohtak. Both Ch.. Suraj Mai and Ch. Hari Chandbeing congressman, Ch. Partap Singh was bound to seek and askfor their active . assistance in the election. It is, therefore,difficult to believe the respondent when he states that he just askedCh. Suraj Mai only once to help him and because he was not very muchinclined towards him, he never bothered about him thereafter. It was,however, admitted that both the brothers, namely Ch. Hari Chandand Ch. Suraj Mai and their employee Sia Ram were countingagents on behalf of the respondent. While admitting this fact, theexplanation given by the respondent was that these two brothershad gone casually to Jhajjar to find out the result of the election andjust to pamper their venity, he appointed them as his counting agents.Ch. Hari Chand was also the polling agent of Ch. Partap Singh atBahadurgarh, and according to the respondent, he was appointedas a polling agent without his knowledge; he had given some blankforms, duly signed to some of his workers, who might have filled in

.L.R.] HARDWARI LAL V. PRATAP SINGH 81

the name of Gh. Hari Chand, but he denied that he ever made arequest to him personally. It was urged on behalf of the petitionerthat it is unbelievable that an important person, like Ch. Hari Chand,President of the Municipal Committee, would not be approachedby Ch. Partap Singh personally and merely at the asking of someunknown worker of his he would agree to be put to the botherationof becoming of polling agent and sitting in the polling booth through-out the day. Then again, we have the statement of the Secretary,Congress Committee, P.W. 29 who had no reason whatever to falselydepose against Ch. Partap Singh and nothing has been brought outagainst this witness as to why he should do so. He definitely statedthat Suraj Mai was supporting the respondent during the last election.

If Ch. Suraj Mai was in fact an important person and wassupporting the respondent during the election, he could be the personwho could have taken the important part of going and getting theposters printed as is assigned to him by the petitioner's witnesses. Infact, in cross examination of the petitioner's witnesses, no where anysuggestion was made that Ch. Suraj Mai did not support Ch. PartapSingh during the elections. All that was suggested was that afterthe elections, Ch. Suraj Mai is helping Ch. Hardwari Lai. Thereason for this estrangement, as given by the respondent, is that Ch.Suraj Mai had requested the respondent to arrange for the transferof a few teachers and as the respondent could not oblige him he isout to harm him. It has to be borne in mind that Ch. Partap Singhwas merely an M.L.A. holding no particular position in the StateGovernment, much less being the Minister incharge and it is not under-stood why Ch. Suraj Mai for this little matter should go so low as tofabricate evidence against him by providing manuscripts to be producedby Dewan Sohan Lai. It was vehemently urged that, the abovementioned direct evidence produced, is sufficiently strong to enablethe Court to come to the conclusion that Ch. Partap Singh wasconnected with the publication of the objectionable writings.

Very valuable corroboration, it was urged, was afforded by thecircumstances surrounding the printing, publication and distributionof these posters. As already discussed, posters were printed anddistributed before the election. Obviously the material containedtherein was calculated to further the prospects of the respondent.These could have been issued only either by the respondent or someone interested in him. The only other possibility can be that thesewere issued by some enemy of Ch. Hardwari Lai. However, theenemy of Ch. Hardwari Lai, who is willing to do the propagandawhich was likely to help the respondent, would automatically be ahelper of Ch. Partap Singh. Here it is not a case of a solitary posterwhich an enemy of Ch. Hardwari Lai could have issued without theknowledge or consent of the respondent. It was urged that all theten writings that is, five posters, three issues of Vidrohi, one issueof Kalakar and the hand bill Exhibit P.W. 3/2 were issued in pursuancecf a systematic propaganda of vilification of Ch. Hardwari La\_

6—4 Eiec. Com./71

8 2 HARDWARI LAL V. PRATAP SINGH [VOL XLI

further more, these were all issued between 22nd of April, and 13th ofMay, 1968 with some interval between them. X. 1 and X. 2 wereprinted and published round about 22nd of April, X-3 and X-4 onor about 30th of April, Exhibit P.W. 3/1 between 1st and 5th of May,and the hand-bill Exhibit P.W. 3/2 on n t h of May, 1968. In betweenwe have got the issues of Vidrohi dated the 22nd of April,6th of May and 13th of May and the issue of Kalakar coming on 3rdof May, 1968. Even if some third person issued a poster, at his ownexpenses and without the knowledge and consent of the respondenthe would certainly convey the fact to the respondent at least to gethis thanks. In the present case, the four posters X-i to X-4 arepurported to have been issued on behalf of the "Votrans Halqa" andExhibit P.W. 3/2 is also more or less on behalf of the voters. Theconclusion, therefore, obviously is that all these are issued under theinspiration of one and the same person or source. If an outsider wasto issue such a poster he might have issued the first one or two posterswithout the knowledge of the respondent but the fact that subsequentlyalso posters were issued in a systematic manner gives reassuranceto the mind of the Court to accept the direct evidence led on the pointconnecting the respondent with the posters.

As regards the three issues and the one poster Exhibit P.W.3/1 published by Vidrohi, it has to be borne in mind that these issuesof Vidrohi and the poster were entirely devoted to the election cam-paign of this constituency and all the writings were in favour of Gh.Partap Singh and against Ch. Hardwari Lai. It is not a case of astray article in an ordinary issue of a paper but it is a case of a numberspecial issues devoted entirely to further the prospects of the electionof Ch. Partap Singh. No owner of news paper can afford to issuesuch supplements on his own. Nothing was suggested to Mr. ShashiP.W. 10 as to why he should have been inclined to write against Ch.Hardwari Lai in such a manner. He had no personal ill-will againstCh. Hardwari Lai and he was to gain nothing out of it, if it had notbeen at the instance of Ch. Partap Singh and for consideration. Thepetty journalist and owner of almost unknown paper as Mr. Shas-hi was he would be willing to publish such a material on such a scale•only if asked to do so and paid for it. As stated by him, 2,000 copiesof the newspaper and 2,000 copies of the poster were purchased for-which he got Rs. 1850, the remaining sums he got for some advertise-ments which it is not necessary to consider. The story of this personseems to be natural and in the ordinary circumstances would leadto the irresistible conclusion that these publications were with theconsent and knowledge of Ch. Partap Singh.

I am fully alive and it was greatly impressed by the counsel forthe respondent that mere knowledge of some prejudicial matter havingbeen published is not enough to make the candidate liable for theSame and that it must be established beyond all reasonable doubt,that such a matter was issued by the respondent or with his consent.As discussed above the direct evidence and the circumstances surround-

E.LJR.] BAPURAO 0. SIDRAMAPPA 83

ing the whole thing lead only to one irresistible conclusion that thesewritings were published either by the respondent or at least with hisconsent and as these contained allegations relating to the personalconduct and character of the petitioner and were of a type whichwere likely to further the prospects of the respondent and to preiudicethe prospects of the petitioner, this issue must be found in favour ofthe petitioner and respondent held guilty of the corrupt practice asdefined in sub section (4) of section 123 of the Representation of thePeople Act.

Issue Mo. 4.The only issue now remaining is that of election expenses not

shown in the return of expenses. A number of items of expenses werementioned in the schedule to the petition. It will, however, take upthe items which it was urged on behalf of the petitioner to have beenproved. [After considering the various items, the Court concluded].

All the expenses taken to have been proved as detailed above, cometo Rs. 2493.33. In the return of election expenses, the expenses shownare Rs. 3473 • 63 Paise and even if the above mentioned expenses beadded to the total of the return, the respondent's expenses remain justwithin the maximum laid down in section 77 of the representation ofthe People Act. On this issue, therefore, it is found that some expensesas detailed above, have been incurred by the respondent and not shownin the return, but no corrupt practice had been committed in this respectbecause the total expenditure still remains within the limit.

Relief :In view of my finding on Issue No. 3, the respondent must be found

to have committed corrupt practice as defined in sub section (4) ofsection 123 of the Representation of the People Act and-consequentlyhis election must be set aside, I consequently accept this petition andset aside the election of the respondent with costs.

Petition allowed.

IN THE HIGH COURT OF MYSORE AT BANGALORE

BAPURAOV.

SIDRAMAPPA AND OTHERS

(D. M. CHANDRASEKHAR, J.)

January 21, 1969.

Representation of the People Act, 1951, sections 77(1), (2), (3), 123(1)—Constitution ofIndia, Articles 101, 191, 327—Parliament {Prevention of Disqualification) Act, (10 ofI959)> '959> section 3—Mysore (Prevention of Disqualification) Act, 1956, PreambleSections 2 (a) (b), (c) 3(0"), Scope of—Whether Central Act overrides the StateAct whether ultra vires of Article 327 of the Constitution—"Compensatory Allowance"as defined in Section 2(4) of the Mysore Act, payable to Chairman or Member of a Com-mittee, as defined in section 2(0) of the Mysore Act, whether constitutes "Office of Profit"within the meaning of Article 191(1) (a) of the Constitution—Code of Civil Procedure ,

84 BAPURAO V. SIDRAMAPPA [VOL. XLI

1908, Order 8, rule 5—Scope of—Corrupt practice—Election Law—burden of Proof-failure of the returned candidate to maintain his election accounts as required under section77(1) and (2), whether can lead to inference that he has incurred expenditure in contra-vention of sub-section (3) of section 77—section 77(1)—Scope—Corrupt practice—Donationto a Muslim Fesiival by the returned candidate prior to the date of poll—Allegations thatthe donation was made with corrupt of dishonest motive to induce voters—Burden of Proof-—When such donation attracts sub-section (1) 0 /123 "I ^ie Act—Allegations of corrupt prac-tice the returned candidate under Section 77 and 123(6) without raising such a plea inthe Petition—evidence on the allegations, Whether can be considered by Court.

The petitioner challenged the election of the first respondent to the StateAssembly on the grounds that on the date of election the first respondent was dis-qualified to be chosen as a Member of the Assembly as he was holding the Officeof Directorship of the Mysore State Food Advisory Committee and the Chairman-ship of the Marketing Committee of Basawa Kalyan, which were offices of profits.It was further alleged in the petition that the second respondent was : .lso similarlydisqualified. Both the first and the second respondents were drawing certain allowanceand sitting fees, the receipt of which, constituted such Membership or Chairman-ship or Directorship, offices of profit under the Government of Mysore, and conse-quently disqualified both the first and the second respondents for being chosen asmembers of the Assembly. It was also alleged that the first respondent committedvarious corrupt practices under Section 123(1), (2), (5) and (6) of the Act. Thepetitioner, therefore, pleaded that the election of the first respondent should beheld void and that the petitioner should be declared as duly elected. The peti-tioner during the trial also raised the question of the vires 9 of the Mysore Legislature(Prevention of Disqualification) Act, 1956 (Mysore Act 4 of 1967) and the contention that the Central Act on the subject prevails over the State Act in view of theprovisions of Article 327 of the Constitution.

The first respondent contested the allegations while the second and third res-pondents did not contest the petition.

HELD : Dismissing the petition : (i) The object of the Parliament (Preventionof Disqualification) Act, 1959, is not to declare that certain offices are offices ofprofits and impose any disqualification. Article 102 of the Constitution contem-plates legislation by Parliament regarding prevention of disqualification for Membership of Parliament, while Article 191 contemplates legislation by the State Legisla-ture for prevention of disqualification for membership of the State Legislature.Thus the scope of the Central Act and that of the State Act are entirely differentand there can be no conflict between them and Central Act cannot overridethe Mysore Legislature (Prevention of Disqualification) Act, 1956. The StateAct is valid. The provisions of Article 327 of the Constitution do not cover thefield of prevention of disqualification foi membership to State Legislature.

The term "Compensatory Allowance" defined in the Central Act as well asin the State Act, is for the purpose of the respective Acts, since the scope of eachof these two Acts, is not the same. What the definition of "Compensatory Allo-wance" in section 2(b) of the State Act provides is that the allowance of sittingfee should be for the purpose of enabling the respondent to recoup any expenditurespecified in that Clause. So far as the allowance satisfies the test of being for thepurpose of such recoupment it is not necessary to establish in each individual casewhether any expenditure was, in fact, incurred, if so, what expenditure was in-curred and whether the sitting fee and or daily allowance was no more than whatwas required to recoup such expenditure. The sitting fee payable to the first res-pondent for attending each meeting of the Agricultural Market Committee orthe daily allowance or sitting fee payable to either of the respondents for attendingthe meeting of the Food Advisory Committee or District Development Councilor Mysore State Social Welfare Advisory Board or the Land Development Bankcannot be said to constitute profit and hence neither the first respondent nor thesecond respondent can be held to be disqualified for being chosen as members of theAssembly by reason of his or her being a member or a Director of any of thesaid Committee, Board or Bank.

Govinda Basu v. Sankari Prasad, A.I. R. 1964. S. C. 254. Revanna v. G. S. KaggerappaA.I.R. 1954 S. C. 653; in the matter of Vindhya Pradesh Legislative Assembly MembersElection) Commission (1953) 4 E. L. R. 422,- referred'to.

E.L.R.] BAPURAO V. SlDRAMAPPA 85

(a) There was no force in the contention of the petitioner that if a fact allegedin the plaint is within the personal knowledge of the defendant, it is not sufficientfor him to state that he does not admit that allegation, and that unless he deniesthat allegation it must be taken to have been admitted. There is nothing in thelanguage of Rule 5 of Order 8 of the Civil Procedure Code which willjustify such acontention. It is sufficient for the defendant to state that he does not admit rheallegation, and if he slates so, the plaintiff is not relived of (he necessity of provingthe allegations.

Tikani Bai v. Punjab State, A.I.R. 1964, Punjab 15; referred to.(3) The contention of the petitioner that the failure on the part of the returned

candidate to maintain account? in accordance with sub-section (1) and (2) ofsection77 of the Act, should itself lead to an inference that he had a motive to suppressor minimise the expenditure incurred by him and such failure to maintain theaccounts, wou'd itself afford substantial evidence that the returned candidate in-curred expenditure in contravention of section 77(3), is not sustainable.

To treat the charge of exceeding the maximum expenditure under section77 differently from the corrupt practice under section 123(6), in regard to the burdenof proof and the standard of proof, there are no good reasons to depart from thewell accepted principle that the charge of commission of corrupt practice by acandidate under the Election Law is in the nature of quasi-criminal charge, theonus of establishing a corrupt practice is undoubtedly on the person who sets it upand that such corruot practice must be established beyond reasonable doubf.

On a charge against the first respondent for contravention of sections 77 and133(6), the court cannot consider any evidence when such a plea was not putforward in the petition.

Gangi Reddiv. Anjaneya Reddy, (i960) 22 E.L.R. 262 at 169;K. H. Patilv. K. P. Gadag and others, Misc. First Appeal, Appeal No. 37 of

1965 (Mysore);Shambu Math v. State of Ajmer, A. I. R. 1956; S. C. 404 at 406;Dr. M. Chenna Reddy v. Romachandra Rao and anr. C.A. 1449 of 1968 (S.C.)Alls. Chunilal Dwarkanalh v. Hartford Fire Insurance Co. Ltd. and another

A. I. R. 1958 Punjab 440;Karnidas Sarda and another v, Shilaja Kanta Mitra and another, A.I.R.

1940 Patna 685;Velu Pillai v. Pramandan A. I. R. 1954, Trawancore Cochin 152 at 154;Jayalakshmidevamma v. Janardhan Reddy, A. I. R. 1959 A. P. 272 at 274;Hate Singh v. State of Madhya Bharat, A. I. R. 1963 S. C. 468 at 470;Attamohammad Shahv.Saran and others A . I .R . 1930P. C. 57;referred to.

(4) A donation for a charitable purpose made by a candidate a* the time or onthe eve of an election, may raise a strong suspicion of bribery against the donor. Inthe instant case taking into account all circumstances, the person who gave donation,the institution to which the donation was given, (he accustomed course ofcharity by the respondent and the amibiguity as to the amounts'of contribution givenin previous years, it cannot be reasonably inferred that this donation of Rs. 101/—in the year 1967, a few days prior to the date of election to the Jhela Committee forthe celebration of the Urs of Hejebux was made v/ith any corrupt or dishonestmotive of inducing directly or indirectly the electors to vote for the respondent;it must therefore be held that the first respondent did not commit the corrupt practiceof bribery under section 123(1) of the Act.

S. Khader Sheriff v. Munnuswamy, A. I. R. 1955, S. C. 775;Madan Lai Radhakishan Bagdi v. H. V. Kamath, A. I. R. 1955, S. C. 362;Braj Bhushan v. Raja Anand Biahma Shah, i960 (22 E. L. R. 225);Bankebeharidas v. Chittaranjan JVaik, A I.R. 1963 Orissa 83;Trilochan Singh v. Karnail Singh, A. I. R. 1968 Punjab and Haryana, 416;referred to.

86 BAPURAO V. SIDRAMAPPA [VOL. XLr

(5) On facts and evidence, the petitioner had failed to prove his allegationsagainst the first respondent of corrupt practices under section 123(5) that the lorryin which it is alleged that voters to the polling station were conveyed belonged to therespondent; nor was there any evidence as to who had engaged that lorry on the pollingday and there was no averment that elections were conveyed free in that lorry.Further, there was absolutely no evidence that the respondent or any of his agentspurchased petrol for the jeep shown under Exts. P. 53 (a) P-54(a) P-54(b) andthe amount spent on such purchase of petrol cannot be regarded as a part of elec-tion expenses of the respondent. The expenses incurred by first, respondent, prior tothe date of the publication of the Notification calling the election, cannot be attri-buted to the respondent's election expenses, under section 77(1) of the Act.

Joshbhai Chunnibhai Patel v> Anwar Beg A. Bfo'za, C.A. No. 799 of 1968 (S.C.);

Hansraj v. Pi. Hari Ram and others, C. A. No. 863 of 1966 S. C ;

Rananjaya Singh v. Baijnath Singh and others (1955) I, S. C. R. 671—10E. L. R. 139;

Vidya Sugar Joshi v. Surinder Nath Ganta. G.A. 863 of 1968 S.C.

referred to.

ELECTION PETITION NO. 18 OF 1967.

B. S. Patil, for the Petitioner.

A. V. Albal, for the first respondent.

ORDER

CHANDRASHEKHAR, J.—This petition under Sec. 81 of theRepresentation of People Act, 1951 (hereinafter referred tc as the R.P. Act), relates to the election of a candidate to the Mysore LegislativeAssembly from Basavakalayan Constituency in Bidar District, duringthe General Elections of 1967.

The petitioner and respondents 1 to 3 were the contesting candi-dates. The petitioner was the candidate sponsored or supported byMaharashtra Ekikaran? Samithi (hereinafter referred to as 'M.E.S').Respondent No. 2 was the candidate cf the Indian National Congressparty (hereinafter referred to as 'Congress'). Respondent No. 3 wasthe candidate of the Praja Socialist Party (hereinafter referred to as'P.S.P.') Respondent No. 1 was an independent candidate.

The polling was held on 15-2-1967. The results were announcedon 22-2-1967. The candidates secured the following numbers of votes :

Respondent No. 1. . . . . 16,115

The petitioner . . . . 10,233

x Respondent No. 2. . . . . 7,887

Respondent No. 3. . . . . i58g2

Consequently respondent No. i was declared as elected.

E.L.R.] BAPURAO V. SIDRAMAPPA 87

On 11-4-1967 the petitioner presented this Election Pestition pray-ing that :

(i) the election of respondent No. i be declared as void; and(ii) he (the petitioner) be declared as validly elected.

Respondent Ncs. 2 and 3 remained ex-paite.

Respondent No. 1 alone has contested the petition. Fcr the sakeof convenience, respondent No. 1 will hereinafter be referred to as 'therespondent'.

The grounds on which the petitioner has assailed the election cf the-respondent are that :

(i) on the date of the election the respondent(the returned Candida'te) was disqualified to be chosen as a member of the LegislativeAssembly on account of holding offices of profit under theGovernment of Mysore; and

(ii) corrupt practices set out in the petition had been committedby the respondent and/or his election agent, and/or any otherperson with the consent of the respondent and/or his electionagent.

The petitioner has claimed that he be declared as duly elected ofthe grounds that respondent No. 2 was also disqualified to be chosen asa member of the Legislative Assembly by reason of her holding officesof profit under the Government of Mysore and that respondent No. 3was also guilty of corrupt practices and has to be disqualified.

At the outset, it is convenient to state certain facts which are not incontroversy.

The petitioner is a Laywer residing at Hu'sur in BasvakalayanTaluk. He is practising at Bhalki and Basvakalayan. In his legal officeMohamed Annesuddin (P.W. 6) is a clerk.

The respondent is a resident of Basavakalayan town. He is a leadingbusinessman and proprietor of two Commission Agency (Adat) sbcpsat Basavakalayan and Gulbarga. He is a partner of a firm which isrunning oil mills at Basavakalayn. He is also engaged in road transportbusiness and owns some lorries. The office of his tiansport business isat Hyderabad. Both at Basavakalayan and at Gulbarg? be has rauueems(clerks). He has drivers for his lorries.He has telephones at Basavakalayan.Gulbarga and Hyderabad.

In the earlier General Elections held in the year 1962, respondentNo. 2 was returned from Basavakalayan Constituency and the peti-tioner, from Hulsur double member constitutency, to the Mysore Legis-lative Assembly. The respondent's wife, Subhadra Bai, who had contest-ed as the candidate of the Congress party, was defeated by the petitionerin Hulsur Constituency and the Election Petition filed by her againstthe present petitioner was dismissed.

88 BAPURAO V. SIDRAMAPPA [VOL. XL1

In the General Elections held in 1967, Hulsur was a reserved Con-stituency, and Subhadia Bai had applied for the ticket of the Congressparty in Basavakalyan Constituency, but respondent No. 2 was givensuch ticket.

The petitioner is the President of Bidar District Unit of M.E.S.whose main object is to see that predominantly Marathi speaking areas inMysore State are transferred to Maharashtra State. In Basava-kalyan Constituency a majority of the village are predominantly Ka-nada speaking and some villages are predominantly Marathi speaking.

In the general Elections of 1967, M.E.S. had sponsored or sup-ported four candidates in four different Constituencies in Bidar Districtincluding Basavakalyan Constituency. All these four candidates in-cluding the present petitioner were defeated and in ApriJ 1967 four Ele-ction Petitions (including the present one) were filed in this Court againstthe respective returned candidates in those four Constituencies. Threeof these petitions were dismissed by this Court earlier. Of them, the petitionrelating to Hulsur Constituency, had been filed by Madhave Rao (P.W.i)in the present petition, as an elector in that Constituency. He had work-ed for the candidate of M.E.S. in that Constituency.

Raje Bax Darga at Basavakalyan is an important Muslim shrinewhich has many Hindu devotees also. Urs celebrations of this Dargaheld every year will include the 'Sandal' and the 'Jhela' processions.Contributions will be collected for the Darga and for the Jhela proce-ssions and many Hindus also will give contributions. Khaja Abul HassanJagirdar (R.W. 3) is the Muthavalli of this Darga. There is a Commit-tee of management of the Darga and there is another Committee calledthe Jhela Committee.

In 1967, the Jhela procession took place on the 3rd February andthe Sandal procession, on the previous day. In 1967 the respondent gavea contribution of Rs. 101/- to the Jhela Committee; and gave a con-tribution to the Darga Committee also.

The notification calling the election to which this petition relateswas issued on 13-1-1967. The last date for presenting nomination? was21-1-1967 and the respondent presented his nomination paper on20-1-1967. The last date for withdrawal of candidatures was 23-1-1967.The respondent appointed Vaijnath Durge as his election agent. Therespondent filed his return of election expenses on 14-3-1967, in which thetotal amount of expenditure incurred by him for the election was shownas Rs. 5530-02. Under Rule 90 of the Conduct of Election Rules, 1961,the maximum permissible expenditure for a candidate in an electionto the Legislative Assembly in Mysore State, is Rs. 6,000/-.

The respondent filed his written statement on 16-6-1967. Exclu-ding the allegations of a corrupt practice, which were Jacking in suffi-cient particulars, the following issues were framed:

I. Does the petitioner prove that the 1st respondent was disqua-lified for being chosen as a member of the Mysore Legislative

1E.L.R.] BAPURAO V. SIDRAMAPPA 89

Assembly for the reason that he was on the relevant date (i)a Director of the Mysore State Food Advisory Committee and(2) Chairman of the Marketing Committee of Basavakalyan ?

II. (a) Does the petitioner prove all or any of the circumstancesrelating to the issue of food-stuffs by the Labourers and Con-sumers' Co-operative Society, Basavakalyan set out in para-graph III (F) fi)?

(b) Do the facts proved establish corrupt practice under eitheror both of sub-sections (i) and (2) of Sec. 123 of the Repre-sentation of the People Act ?

III. Does the petitioner prove that the donation of Rs. 101/- madeby the 1st respondent to the Hajabux Durga of Basavakalyanin the first week of February 1967 amounts to corrupt pra-ctice of bribery under sub-section (1) of Sec. 123 of theRepresentation of the People Act?

IV.(a) Doe? the petitioner prove that the 1st respondent hiredvehicles for conveyance of voters from Narayana Purwadi toNarayanpur Polling Station and back, from Urki to Chitta (K)polling station and back and from Hardal to Islampur PollingStation ?

•(b) Do the facts proved establish corrupt practice under sub-section (5) of Sec. 123 on the Representation of the People Act?

V.(a) Does the petitioner prove that the respondent incurred, inaddition to the expenditure set out in his return of electionexpenses, expenditure for the items and to the extent detailedin paragraph III (K) of the petition?

(b) Do the facts proved establish corrupt practice under sub-sec-tion (6) of Sec. 123 of the Representation of the People Act?

VI. Is the petitioner entitled to declaration that the election of the1st respondent is void?

VII. Is the petitioner entitled to declaration that he has been du-yelected ?

I ISSUE :

The first issue relates to the alleged disqualification of the respon-dent for being chosen as a member of the Mysore Legislative Assmebly(hereinafter referred to as the Assembly). Though the petitioner haspleaded that respondent-2 was similarly disqualified, no issue has beenframed regarding that plea as she remained ex parte. But in order toconsider whether the petitioner is entitled to the relief of being declaredas duly elected, it is necessary to pronounce on the question whetherrespondent 2 was also disqualified. I Issue and the question of disquali-fication of responclent-2 are similar and can conveniently be consideredtogether.

90 BAPURAO V. SIDRAMAPPA [VOL. XLr

The petitioner's allegation that the respondent was a member ofthe Mysore State Food Advisory Committee and the Chairman of theMarket Committee at Basavakalayan constituted under the Hydera-bad Agricultural Markets Act, 1339 F., at the time of the election, hasnot been disputed by the respondent. The petitioner's allegation thatin her capacity as the sitting member of the Assembly, respondent-2was a member of the District Development Council, Bidar, in January1967, is proved by Ex. P-2 a list of the Members of the District Deve-lopment Council, Bidar. The allegation that she was a member of theMysore State Social Welfare Advisory Board in January 1967 's alsoproved by Ex. P-21, a letter from the Chairman of the said AdvisoryBoard. That she was a Director of the Primary Land DevelopmentCo-operative Bank Ltd., Basavakalayan, in January 1967, is also es-tablished by Ex. P-22, a letter from the President of the said Bank.

The petitioner has contended that as members, Chairman or Direc-tor of those bodies, both these respondents were entitled to certain allow-ances and/or sitting fee, the receipt of which constituted such member-ship or Chairmanship or Directorship, an office of profit under theGovernment of Mysore and consequently disqualified them for beingchosen as members of the Assembly.

In his written statement, the respondent has pleaded that as theChairman of the Market Committee at Basava Kalyan is elected bythe members of that Committee, he did not hold an office of profitunder the Government of Mysore, and that even otherwise the disqua-lification, if any, by reason of is being entitled to allowances and/orsitting fees as the Chairman of the Market Committee and the memberof the Food Advisory Committee, was removed by the Mysore Act 4of 1957.

In Ex.P-i, the Government Order constituting the State LevelFood Advisory Committee, it is provided that non-official members ofthe Committee may be paid Travelling Allowance and daily allowanceat the rates which are applicable to the members of Class-A CommitteesP.W. 20 Abdul Subhan, Office Assistant of the Joint Director of Food"Supplies in Mysore, has stated in his evidence that the respondent hasbeen paid allowances and a sitting fee in accordance with Annexure-A to the Mysore Civil Service Rules, which is marked as Ex. P-67.That annexure reads :

Rate of Travelling Allowance to non-official members attendingvarious Committees :

List-A.Rs. P.

a mile.I. Railway Accommodation . . . . . First ClassII. Incidental Charges for Railway journey . 00.06III. Road mileage . . . . . . . 00.50IV. Daily Allowance (within the State) Sitting fees

wherever permissible will be allowed in lieu of DailyAllowance. 10.00

E.L.R.] BAPURAO V. SIDEAMAPPA 91

P.W. 19 Doddananjaiah, Secretary, Mysore Social Welfare Board,has deposed that according to the Manual of Welfare Extension Pro-jects, non-official members of the Board shall be entitled to travellingand halting allowance, and that respondent No. 2 was paid travellingallowance, daily allowance and incidental expenses.

In Ex. P-8o(a), the Statement of payments furnished by the TalukPrimary Land Development Co-operative Bank Ltd., Basavakalyan,it is stated that respondent No. 2 was paid Daily Allowance at the rateof Rs. 5/- for attending the meetings of the Board of Directors of thatBank.

In Ex. P. 18, the Circular dated 7-12-1960 issued by the ChiefMarketing Officer in Mysore, it is stated that for attending MarketCommittee meetings non-official members shall be paid travellingallowance, sitting fee of Rs. 5-00 per day of the meeting and daily allow-ance of Rs. 4-00 per day and that daily allowance shall not be admissi-ble in addition to the sitting fee on the day of the meeting. It is alsostated in that Circular that the Chairman residing at the place of theMarket Committee shall draw conveyance allowance for attending toadministrative work of the said Committee subject to the monthly limitof Rs. 10.

Regarding the allowances payable to members of the DistrictDevelopment Council, the peititioner has relied on Ex-P-20. the Noti-fication of the Government dated 23-9-1966, which provides that themembers shall be paid besides the Travelling Allowances, a DailyAllowance of Rs. 5-00 per day for halts at places within Mysore Stateand Rs. 8-00 per day for halts at places outside Mysore State.

The material questions are whether the allowances and/or sittingfee received by these two respondents can be regarded as profits and whe-ther they are disqualified for being chosen as members of the Assemblyby reason of their receiving them.

Art. 191(1) of the Constitution provides, inter alia, that a personshall be disqualified for being chosen as, and for being a member ofthe Legislative Assembly of a State.

(a) If he holds any office of profit under the Government of Indiaor the Government of any State, other than an office declaredby the Legislature of the State by law not to disqualify itsholder;

(b) if he is disqualified by or under any law made by Parliament.

The Mysore Legislature enacted the Mysore Legislature (Preven-tion of Disqualification) Act, 1956 (Mysore Act No. 4 of 1957). Thepreamble of that Act reads :

"Whereas it is expedient to declare that certain offices should notunder certain conditions, disqualify or be deemed to have

9 2 BAPURAO V. SIDRAMAPPA [VOL. XLI

disqualified, the holders thereof for being chosen as, or for being,members of the Mysore Legislative Assembly and the MysoreLegislative Council."

Sec. 2 (a) of that Act defines 'Committee' as meaning any Commit-tee, Commission, Council, Board or any other body of one or more per-sons whether statutory or not, set up by the Government of India or theGovernment of any State.

Clause (c) of that section defines 'Statutory Body' as any corpo-ration, board, company, Society, or any other body of one or more per-sons, whether incorporated 01 not, established, registered or formed by orunder any Central Law or the law of any State for the time being in-force or exercising powers and functions under any such law.

Clause (b) which defines 'Compensatory allowance' reads :

"'Compensatory allowance" means such sum of money as the Cen-tral Government, or the Government of any State, as the casemay be, may determine as being payable to the Chairmanor any other member of a Committee by way of travelling al-lowance, daily allowance, sitting fee, conveyance allowanceor house rent allowance for the purpose of enabling the Chair-man or other member to recoup any expenditure incurred byhim in attending any meeting of a Committee or performingany other function as a member of a Committee.

The relevant part of Sec. 3 reads:

3. Removal of certain disqualifications.—It is hereby declared thatthe following offices shall not disqualify and shall be deemednever to have disqualified, the holders thereof for being chosenas, or for being members of the Mysore Legislative Assemblyor the Mysore Legislative Council :

(d) the office of the Chairman or Member of a Committee :Provided that the holder of any such office is not in receiptof or entitled to, any remuneration other than the compen-satory allowance,

Sec. 4 of the Hyderabad Agricultural Market Act provides thatfor every market there shal! be appointed a Market Committee, whichshall consist, inter alia, of members elected or nominated from amongthe cultivators who grow agricultural produce or Cotton in the areaand members elected from among the traders.

Sec. 5(2) (c) provides that the Government may make rules for theelection of the Chairman of the Market Committee and the terms ofhis appointment for that office.

The rules, if any under the said Act providing for the election of theChairman of the Market Committees, have not been produced by eitherparty. But the respondent has produced Exhibit R-2, the letter from the

E.L.R.] BAPURAO V. SIDRAMAPPA 93'

Government to the Chief Marketing Officer in Mysore, conveying theapproval of the Government to the election of the respondent as theChairman of the Agricultural Market Committee at Basavakalyan.

Mr. A. V. Albal, learned counsel for the respondent, contendedthat as the Chairman of the Agricultural Market Committee at Basava-kalyan is elected, by the members of that Committee and not appointedor nominated by the Government, such Chairman cannot be said tohold office under the Government.

In Gobinda Basu Vs. Sankari Prasad (x) the Supreme Court saidthat the following tests are decisive to find out whether a person holdsan office of profits under the Government.

(a) The power of the Government to appoint a person to an officeof profit or to continue him in that office or to remove his ap-pointment at their discretion; and

(b) Payment from out of the Government revenues though pay-ment from a source other than the Government revenues, isnot always a decisive factor.

As the petitioner has not shown that the respondent was appointedas Chairman of the Market Committee by the Government of Mysore,or that this continuance in that office or his removal from that officewas in the discretion of the Government, or that allowances and sittingfee for the Chairman was payable from the Government revenues, theChairmanship of the Agricultural Market Committee at Basavakalyancannot be regarded as an office under the Government.

However, Mr. B. S. Patil, learned counsel for the petitioner, ar-gued that as provided under clause (d) of Art. 191 (1) of the ConstitutionSec. 3 of the Parliament (Prevention of Disqualification) Act, 1959(Central Act 10 of 1959) imposes certain disqualification for membershipof the State Legislature by declaring that the offices of Chairman, direc-tor or member of any statutory body, to be offices of profit and thenremoves such disqualification in respect of holders of such officeprovided they do not receive any remuneration other than,compensatory allowance.

As the long title of Central Act 10 of 1959 describes, the object ofthat act is to declare that certain offices of profit under the Governmentof India or the Government of any State shall not disqualify the holdersthereof for being chosen as, or for being, members of Parliament. Theobject of the act is not to declare that certain offices are offices of profitand to impose any disqualification.

The object of that Act is to prevent disqualification and such pre-vention of disqualification is only in regard to membership of Parliament.The Act neither imposes any disqualification nor prevents disquali-fication, in regard to membership of State Legislature.

C1) A.I.R. 1964 S.C. 254.


There is no merit in the contention of Mr. Patil that the officesreferred to in Central Act 10 of 1959 must necessarily be regarded aoffices of profit.

A similar question was considered by the Supreme Court in Revannavs. G. S. Kaggeerappa^). Sec. 2 of the Mysore Legislature (Preventionof Disqualification) Act, 1956, provided that a person shall not be dis-qualified for being chosen and for being a member of the Mysore Legis-lature by reason only of the fact that he holds any office of profitspecified in the Schedule to that Act. Explaining the scope of thatSection, the Supreme Court observed thus: at page 657 :

"We do not think that the implication of the provision is that theoffices mentioned in the schedule must necessarily be regardedas offices of profit, irrespective of the fact whether any profit isat all attached to them or not and that but for these provisionsthe person holding them could not have been eligible for beingchosen as members of legislature. The object of the sectionmay be to grant exemption to holders of offices of certain des-cription and the provision in substance is that they win enjoythis exemption even though otherwise they might be regardedas holders of offices of profit."

Assuming for the sake of argument that the Chairmanship of theAgricultural Market Committee at Basavakalayan is an office under theGovernment, I shall examine whether holding that office disqualifiedthe respondent from being chosen as and being a member of the MysoreState Legislature.

Mr. Patil argued that sitting fee payable to either of these two res-pondents for attending meetings of the Committees, Board or Bankcannot be regarded as compensatory allowance, for the following tworeasons :

(i) Sitting fee is not treated as compensatory allowance underthe provisions of Central Act 10 of 1959 and the provisions ofMysore Act 4 of 1957 in so far as they treat sitting fee ascompensatory allowance, are void and inoperative; and

(ii) Sitting fee is a form of remuneration and not a compensatoryallowance.

Elaborating the first reason, Mr. Patil argued that the provisionsof Mysore Act No. 4 of 1957 are repugnant to, or inconsistent withthe provisions of the Parliament (Prevention of Disqualification) Act,1959 (Central Act 10 of 1959) enacted by the Parliament and hencethe provisions of Mysore Act No. 4 of 1957 are void and inoperative.I t was also argued by Mr. Patil that when there is a Parliamentary enact

(•) A.I.R. 1954 S. C. 653.


ment covering the field of prevention of disqualification for membershipof Legislatures, it shall pievail over any legislation made by the StateLegislature in the same fields and hence the State Legislation is void.

Art. 102 of the Constitution deals with disqualification for memberhipof either House of Parliament. That Article provided, inter alia, thata person shall be disqualified for being chosen as, and for being, a memberof either House of Parliament, if he holds any office of profit under theGovernment of India or the Government of any State, other than anoffice d clared by Parliament by law not to disqualify its holder.

Thus, it is seen that Art. 102 of the Constitution contemplateslegislation by the Parliament regarding pievention of disqualificationfor membership of Parliament, while Art. 191 contemplatescorresponding legislation by the State Legislature for preventionof disqualification for member hip of the State Legislature. Central Act10 of 1959 provides for prevention of disqualification for membsrshipof Parliament and not for membership of any State Legislature: like-wise, Mysore Act 4 of 1957 provides for prevention of disqualificationfor niemberhsip of the State Legislature and not for the membershipof PaiJiament. Thus, the scope of the Central Act and that of the Stateare entirely different and there can be no conflict between them. Eventhough the Central Act is subsequent to the State Act, the former Actcannot override the latter Act. The doctrine of pith and substance reliedon by Mr. Patil, has no application to this case.

However, Mr. Patil referred to Art. 327, Entry 72 in List I ofSchedule VII to the Constitution and Entry 37 in List II of that Sche-dule. Entry 72 in List I reads : " Elections to Parliament, to theLegislatures of States ", while Entry 37 in List II reads:""Election to the Legislature of the State subject to the provisions of anyother law made by Parliament."

Art. 327 cf the Constitution reads:

"Subject to the provisions of the Constitution, Parliament may fromtime to time by law make provision with respect to all mattersrelating to, or in connection with, elections to either Houseof Parliament or to the House or either of the Legislature ofa State including the preparation of electoral rolls, the delimi-tation of constituencies and all other matters necessary forsecuring the due constitution of such House or Houses.

In view of the aforesaid provisions of the Constitution, Mr. Patilargued that the Parliamentary legislation relating to, or in connectionwith, elections to either House of Legislature of a State should haveoverriding effect over any legislation made by the State Legislature evenin regard to elections to the State Legislature, and hence Central Act10 of 1959 should prevail over Mysore Act 4 of 1957.


For the purpose of this petition, it is not necessary to decide whetherArt. 327, Entry 72 in List I and Entry 37 in List II of Schedule VIIto the Constitution, would comprise legislation for prevention of dis-qualification for membership of Parliament or State Legislature. Ishall assume that these provisions comprise such legislation also.Even so, the Central Act does not override the State Act, as the CentralAct does not cover the field of prevention of disqualification for mem-bership to State Legislatures, which is dealt with by Mysore Act No. 4of 1957.

Mr. Patil next referred to Art. 246 of the Constitution whichprovides that the Parliament shall have exclusive power to make lawrespect to the matters enumerated in List I of the Seventh Schedule, andcontended that the definition of 'Compensatory allowance' in Sec.2(b) of Mysore Act 4 cf 1957, includes sitting fee, and that it is notcompetent for the State Legislature to destory, nullify or modify whathas been defined by Cential Act 10 of 1959 as constituting compensa-tory allowance.

I think there is no substance in this contention. The term 'Com-pensatory allowance' has been defined by each of these two Acts forthe purpose of the respective Act. The Central Act does not purportto define the term 'Compensatory allowance' for all purposes. Thedefinition of thyt term in the Central Act is only for the purpose of thatAct. That the term 'Compensatory allowance' as defined in a parti-cular way for the purpose of the Central Act, does not prevent the StateLegislature from defining that teim in a diffeient way for the purposeof the State Act, especially when the scope of each of the two Actsis not the same.

Thus, I am unable to accept the contention of Mr. Patil thatthe provisions of the Mysore Legislature (Prevention of Disqualification)Act, 1956, defining compensatory allowance so as to include sittingfee, is void.

Elaborating the second reason, Mr. Patil argued that even thoughsitting fee has been included in the definition of 'Compensatory al-lowance' under Sec. 2 (b) of Mysore Act 4 of 1957, it is clear from thatvery definition chat such sitting fee must be for the purpose of enablingthe member to lecoup any expenditure incurred by him in attendingany meeting of the Committe, and that when a member resides in thesame place where such meeting is held, there is nc expenditure whichsuch member incurs and hence there is no question of any recoupmentof expenditure. According to Mr. Patil, sitting fee paid to such member,win be a form of remuneration, however small.

In particular, Mr. Patil submitted that the respondent was beingpaid 3 conveyance allowance of Rs. 10/- per month for attending to hisduties ?,s the Chairman ar,d that the sitting fee of Rs. 5/- paid to himfor attending the meeting cf the Market Committee, cannot be regardedas being for the purpose of recouping any expenditure incurred by him


for attending such meetings at Basavakalyan Town where he resided.But it is seen from Ex. P-18 that the conveyance allowance of Rs. 10/-per month paid to the respondent was for attending to administrativework and not for attending the meetings of the Market Committee.

It was also contended by Mi\ Patil that each of these respondentsshould establish that he or she did, as a matter of fact, incur expendi-ture for attending such meetings, and that the daily allowance and/or sitting fee received by him or her was no more than necessary forrecouping such expenditure and was not in excess of what was required torecoup such expenditure. In my opinion, this contention is not sound.What the definition of Compensatory allowance in Sec. 2(b) of theMysore Act 4 of 1957, provides is that the allowance or sitting feeshould be for the purpose of enabling the recipient to recoup anyexpenditure specified in that clause. So long as the allowance satisfiesthe test of being for the purpose of such recoupment, it is not necessaryto establish in each individual case whether any expenditure was, infact, incurred, if so what expenditure was incurred and whether thesitting fee and/or daily allowance was no more than what was requiredto recoup such expenditure.

In support of his contention that sitting fee or daily allowancepaid to a member who resides in the place where a meeting is held,must be regarded as profit and not compensatory allowance, Mr. Patilstrongly relied on the decision of the Chief Election Commissioner,in the matter of Vindya Pradesh Legislative Assembly Members (3). TheGovernment of Vindya Pradesh appointed as per Order No. 47 aDistrict Advisory Council for each of the eight districts in that State.The members of the Legislative Assembly representing these districtswere appointed as members for the respective District AdvisoryCouncils. Paragraph-8 of that order provided that the non-officialmembers including the members of the Legislative Assembly of theDistrict would get travelling allowance and dearness allowance (dailyallowance). The relevant part of that order provided:

8. The non-official members will get travelling allowance anddearness allowance applicable to the members of the LegislativeAssembly for the day or the days of the meetings."

Rule i(b) of the Rules to regulate travelling allowances to membersof the Vindhya Pradesh Assembly provided for payment of consolidateddaily allowance of Rs. 5/- per diem for each day of residence at theplace where the Assembly met or other business was transacted.

The Chief Election Commissioner held that by making the dailyallowance rate the same for resident and non-resident members whaare residents of the District-headquarters of the respective districts wherethe Council held their meetings and the members not resident in thoseplaces, there was certain amount of profit, though a very small profit,

(3) (i953)4 E.L.R. 422.7—4 Elec. Com./71

98 BAPUSAO V. SlDRAMAPPA [VOL. XLI

to such resident members. In that view, the Commissioner held thatmembers residing in District—headquarters towns who attend anyof the meetings of the respective District Advisory Councils, should bedeemed to have held offices of profit under the Governaient, and thereforeincurred the disqualification.

The above decision seems to support the contention of Mr. Patil.But the Supreme Court has expressed a contrary view in Ravanna Sub-banna vs. G. S. Kageerappa (2). There, it was contended that one of theMunicipal Councillors held an office of profit by reason of hisbeing a non-official Chairman of the Taluk Development Councilwhich consisted of 10 members. The Chairman had no executiveduties to perform. But he was presiding over meetings and he was entitledto a fee of Rs. 6/- per each meeting he atended. Though the SupremeCourt was considering the provisions relating to disqualification ascontained in Sec. 14 of the Mysore Town Municipalities Act, 1951,the observations of the Supreme Court are equally applicable for cons-truing the provisions of Art. 191 of the Constitution and the provisionsof the Mysore Legislature (Prevention of Disqualification) Act, 1956.B. K. Mukherjee, J., (as he then was) who spoke for the Bench saidthus at pages 656 and 657;

"The word 'profit' connotes the idea of pecuniary gain. If thereis really a gain, its quantum or amount would not be material;but the amount of money receivable by a person in connectionwith the office he holds may be material in deciding whetherthe office really carries any profit .>

From the facts stated above, we think it can reasonably be inferredthat the fee of Rs. 6/- which the non-official Chairman entitled todraw for each sitting of the committee, he attends, is not meant to bea payment by way of remuneration or profit, but it is given to him asa consolidated fee for the out of pocket expenses which he has toincur for attending the meetings of the committee. We do not think thatit was the intention of the Government which created these TalukDevelopment Committee which were to be manned exclusively bynon-officials that the office of the Chairman or of the members shouldcarry any profit or remuneration.

In the light of the aforesaid decision of the Supreme Court, thesitting fee of Rs. 5/- payable to the respondent for attending eachmeeting of the Agricultural Market Committee or the daily allowanceof sitting fee payable to either of the respondents for attending themeeting of the Food Advisory Committee or District DevelopmentCouncil or Mysore State Social Welfare Advisory Board 01 the LandDevelopment Bank, cannot be said to constitute profit, and hence,neither the respondent nor respondent No. 2 can be held to be disqualifiedfor being chosen as member of the Assembly by reason of his or she beinga member or director of any of the said Committee, Board or Bank.

(a) A.I.R. 1954 S. G. 653.

E.L.R.] BAPURAO 0. SIDRAMAPPA 99

Hence, issue No. i and the plea that respondent No. 2 was alsodisqualified for being chosen as a member of the Assembly, are heldagainst the petitioner.

Issues 2 to 5 relate to corrupt practices alleged against the respon-dent. Before dealing with these issues separately, it is convenient toconsider a few arguments of general character; advanced by Mr. Patil.He argued that several of the material allegations in the petition havenot been traversed in the written statement of the respondent and thateven where they have been traversed such traverse is vague and notspecific, and hence the respondent must be deemed to have admittedthose allegations.

Rule 3 of Order 8, C. P. G. provides that it shall not be sufficientfor a defendant in his written statement to deny generally the groundsalleged by the plaintiff, but the defendant must deal specifically with•each allegation of fact of which he does not admit the truth, exceptdamages. Rule 5 of Order 8 G. P. C. provides that every allegationof fact in the plaint, if not denied specifically or by necessary implicationor stated to be not admitted in the pleaing of the defendant, shall betaken to be admitted except as against a person under disability;provided that the Court may, in its discretion, require any factso admitted to be proved otherwise than by such admission. Thus wherethe defendant does not admit an allegation in the plaint he may eitherdeny specifically or he may state specifically that he does not admit thatallegation. Rule 5 does not state that an allegation in the plaintwhich is not denied but stated to be not admitted, must be taken tobe admitted.

However, Mr. Patil submitted that if a fact alleged in the plaintis within the personal knowledge of the defendant, it is not sufficientfor him to state that he does not admit that allegation and that unlesshe denies that allegation, it must be taken to have been admitted.There is nothing in the language of Rule 5 of Order 8 G. P. C , whichlends support to this contention of Mr. Patil. To raise an issue on cer-tain allegations in the plaint, it is sufficient fo: the defendant to statethat he does not admit those allegations, and if he states so, the plaintiffis not relieved of the necessity of proving those allegations.

As observed by Dun, J., (as he then was) in Tikani Bai Vs. PunjabState(4.). the rule of traverse according to our law of pleadings is not sostrict as to completely and absolutely disentitle the Court to require afact deemed to be admitted as a result of non-denial in explicit term?,to be proved otherwise than by such admission; and according to thegeneral prevailing practice, pleadings in this country are not strictlyconstrued and omission to traverse does not necessarily and conclusivelyamount to proof. Especially when issues have been framed on thefooting that certain material allegations in the petit'on have notbeen admitted by the respondent, it is too late for Mr. Patil tocontend that the petitioner need not prove those allgations in viewof non-traverse or defective traverse of those allegations.

(4) A.I.R. 1954 Punjab 15.

100 BAPURAO V. SIDRAMAPPA [VOL. XLT

Mr. Patil next argued that in legard to the corrupt practicespecified in Sec. 123(6) of the R. P. Act, namely, incurring or authorisingof expenditure in contravention of Sec. 77, the burden of proof, andthe standard of proof, are somewhat different than those in regard toother corrupt practices. Elaborating this conteniton, Mr. Patil sub-mitted that Sec. 77 of the Act casts a duty on every candidate at anelection to keep a separate and correct account of all the expenditureincurred in connection with the election and that such accountshall contain such particulars as the rules under the R. P. Act mayrequire. It was also submitted by Mr. Patil that unlike the Police, anelection petitioner has no power of investigation, nor the right toinspect the books of accounts or documents relating to the electionexpenses of the candidate charged with the corrupt practice underSec. 123(6) : that the standard of proof required of the electionpetitioner should only be such as is reasonably possible having regardto these limitations, and should not be such as to make it impossible toprove the corrupt practice under Sec. 123(6).

The further submission of Mr. Patil was that the expenses in-curred by a candidate in connection with the election, are facts ex-clusively within the knowledge of such candidate and that under Sec.106 of the Evidence Act when any fact is specially within the knowledgeof any person, the burden of proving that fact is upon him. Hencethe returned candidate charged with incurring expenditure in contra-vention of Sec. 77, cannot, Mr. Patil argued, ask the petitioner toprove beyond reasonable doubt that he (the returned candidate) ex-ceeded the prescribed limit of expenditure. According to Mr. Patil,it is sufficient to hold the returned candidate guilty of exceeding theprescribed maximum expenditure on proof of mere prepondei anceof probaoility, as in the trial of a civil suit, that such expenditureexceeded such maximum. The failure on the part of the returned candi-date to maintain accounts in accordance with the sub-section (1)and (2) of Sec. 77 should, itself, lead to an inference that he had amotive to suppress or minimise the expenditure incurred by him, andsuch failure to maintain the accounts, would itself afford substantialevidence that the returned candidate incurred expenditure in contraven-tion of Sec. 77(3) and that it is for the returned candidate to adduceevidence to show that he did not incur expenditure in excess of the pres-cribed maximum; so ran the argument of Mr. Patil.

Mr. Patil was not able to cite any decision in support of hisproposition that in regard to the corrupt practice coming under sub-section (6) of Section 123 of the R. P. Act, the burden of proof and thestandard of proof, are in any way different from those in regard to anyother coriupt practice. The proof of the charge of exceeding the pres-cribed maximum expenditure has the same double consequences as theproof of a charge of any other corrupt practice: the election of thereturned candidate is set aside, and he incurs subsequent disqualifica-tion as well. Hence there are no valid reasons, in my opinion, to treatthe charge of exceeding the maximum expendituie differently fromcharges of other corrupt practices, in regard to the burden of proof and

E.L.R] BAPURAO V. SIDR^AMAPPA 101

the standard of proof; there are no good reasons to depart from thewell accepted principles that the charge of commission of a corruptpractice by a candidate, is in the nature of a quasi-criminal charge,that the onus of establishing a corrupt practice is undoubtedly on theperson who sets it up, that such corrupt practice must be establishedbeyond reasonable doubt by evidence which is clear and unambiguousand that the onus is not discharged on mere proof of preponderanceof probability.

It was also argued by Mr. Patil that if the petitioner adducesevidence to show that the returned candidate is, prima facie, guilty-of corrupt practice, the burden of proof shifts to the returned candidateto estabish that he has not committed corrupt practice, and especiallywhen certain facts are within the special knowledge of the returnedcandidate, the burden of proving those facts is on him. Here again, Ithink the statement of the legal position, by Mr. Patil is not accurate.As pointed by the Supreme Court in Gangi Reddy vs. Anjaneya Reddy(^)the term, burden of proof, has two distinct meanings, viz-, (i) theburden of proof, as a matter of law and pleadings, and (ii) the burdenof proof as a matter of adducing evidence. Sec. 101 of the Evidence Actdeals with the former and Sec. 102 with- the latter. The first remainsconstant and the second shifts.

As observed by a Bench of this Court in (K. H. Patil vs. K. P.Gadag and others (6). the basic facts which institute the case of the peti-tioner, have to be proved by the petitioner himself; no part of thatTsurden can he at any time claim to shift on the respondent. If theevidence adduced by him is sufficient to carry conviction to the Court,then and there alone he can be said to have discharged the burden ofproof. The rules as to burden of proof also take note of the capacityof the person to discharge the burden and Sec. 106 of the EvidenceAct represents one of the rules which take note of the capacity of theperson to prove the fact.

Explaining the application of Sec. 106 of the Evidence Act. toa' criminal case, the Supreme Court observed in Shambhu Naih vs.Slate of Ajmeer (7) that Sec. 106 of the Evidence Act is not intended t&relieve the prosecution of its duty to prove its case beyond reasonable•doubt and that that section is designed to meet certain exceptional casesin which it would be impossible or at any rate disproportionately difficultfor the prosecution to establish facts which are especially within thespecial knowledge of the accused and which he could prove withoutdifficulty or inconvenience. I think these observations of the SupremeCourt are equally applicable to proof of corrupt practice in.-anElection .Petition, inspite of the following difference between the trial ofan election petition and a criminal trial as pointed out by the SupremeClourt in (Dr. M. Channa Reddy v. Ramachandra Rao and another (8).)

(5) (i960) 22 E.L.R. 261. (6) Misc. F.A, No. 37 of 1965 (Mysore).(7) A.I.R. 1956 S.G. 404 at 406. (8) G. A. 1949^1968.(8.0.).

102 BAPURAO V. StDRAMAPPA [VOL. XLt

In a criminal trial the accused need not lead any evidence anddoes not do so unless he sets up pleas like insanity, self-defence andalibi. But in a trial of an election petition on the charge of corruptpractice, the candidate charged with such corrupt practice invariablyleads evidence to prove his denial; it becomes the duty of the Courtto wegh the two versions and to come to a conclusion as to whethernotwithstanding the denial and the evidence in rebuttal, a reasonableperson can form the opinion that on the evidence the charge is satis-factorily established. Quite apart from the nature of the charge thetrial itself goes on as if the issues in a civil suit were being investigated.

Another proposition enunciated by Mr. Patil was that when awitness examined by the petitioner speaks to certain material factsrequired to prove a corrupt practice alleged against the returned candi-date, if the evidence of that witness on any point is not challenged inhis cross- examination, and if the respondent does not put to such witnesshis defence on that point, he cannot examine any witness in his defenceto speak to that point, and the evidence of any defence witness on thatpoint, cannot be considered by the Court.

Mr. Patil sought to derive support for his propoistion from certainobservations in some decisions. In M\s. Chuni Lai Dwarka Math vs. HartfordFire Insurance Co. Ltd., and another (9) Tek Chand, J . , observed atpage 444;

"If it is intended to suggest that a witness was not speaking thetruth upon a particular point, his attention must first be directedto the fact by cross-examination so that he may have anopportunity of giving an explanation."

In Karnidam Sarde and another vs. Sailaja Kanta Mitra and another (10)Wort, J., speaking for the Bench said at page 685:

"It cannot be too strongly emphasized that the system of adminis-tration of justice allows cross-examination of opposite party'switnesses for the purpose of testing their evidence, and it mustbe assumed that when the witnesses were not tested in that way,their evidence is to be accepted unless of course there are anyinherent improbabilities

Similar are the observations in Velu Pillai vs. Paramanandam{n)and in Jayalakshmideva vs. Janardhan Reddy (12).

I am in a respectful agreement with the above observations.But they do not lend support to the proposition of Mr. Fatil. In acriminal case the accused has several strings to his bow. He can showby cross-examination of prosecution witnesses that what they havestated in their examination-in-chief should not be accepted. Evenwhere he has not cross-examined such witnesses on material points-

(9) A.I.R. 1958 Punjab 440.(10) A.I.R. 194a Patna 683.(11) A.I.R. 1954 Travancore-Cochin 152 at 154.(12) A.I.R. 1959 Andhra Pradesh 27a at 274.

E.L.R.J BAPURAO V. SIDRAMAPPA 103

he can adduce evidence by way of defence, either to establish what theprosqcution witnesses have deposed, is not true or to throw reasonabledoubt as to the truth of the story told by them. If he adduces suchdefence evidence, the Court has to consider the cumulative effect ofthe entire evidence, the evidence of prosecution witnesses whose evidencehas not been challenged in their cross-examination and the evidenceof defence witnesses. That the evidence of prosecution witnesses hasnot been challenged in cross-examination, is only one of the factors tobe taken into account in assessing the entire evidence. If after makingdue allowance for that factor, the Court comes to the conclusion thatin the light of the defence evidence, the prosecution case cannot beheld to have been established beyond reasonable doubt, it is the duty ofthe Court to acquit the accused notwithstanding the fact that therewas no cross-examination of the prosecution witnesses on materialpoints.

I think the same principle applies in assessing the evidence inregard to a charge of corrupt practice in an Election Petition. I amunable to accept the proposition of Mr. Patil that the evidenceadduced by the returned candidate in his defence in regard to any pointrelating to a charge of corrupt practice, should be ignored becausehe had not either cross-examined the petitioner's witnesses onthat point or had not suggested his defence to those witnesses in cross-examination. The real question is whether taking the entire evidence,of the petitioner's witnesses as well as of the respondent's witnesses,the documentary evidence and the circumstances, a charge of corruptpractice is proved beyond reasonable doubt.

As pointed out by the Supreme Court in Rate Singh vs. State ofMadhya Bharat (13) even where the accused is not in a position to provethe truth of his story, his version should be accepted if it is reasonable andaccords with probabilities, unless the prosecution can prove beyondreasonable doubt that it is false. I think the same principle applies inregard to proof of a charge of corrupt practice in an Election Petition

II ISSUE:

Th'; petitioner's allegations in regard to this issue are that theLabourers Consumers Co-operative Society at Basavakalyan hadbeen entrusted with distribution of sugar, wheat, rice and jowar,that to obtain those commodities from that Society one had necessarilyto get recommendation from the members of its Managing Committeeamong whom Rachappa Theli and Vishnurao Chanalthe were theprominent canvassing agents of the respondent, and that when electorscame to that Society for obtaining commodities those two persons sentthem in the first instance to the respondent who made it a point totake promises from them to vote for him, before recommending supplyof commodities to them from the Society. It is further alleged thatthose who refused to vote for the respondent were turned away anddenied such supply.

(13) A.I. R.1963S.C. 468at470.

IJ84 BAPURAO V. SIDRAMAPPA' [V0L"; XLI

In his written statement, the respondent has denied these allega-tions. In particular, he has denied that Rachappa Theli and VishnuraoGhanalthe worked for him in the election or were his canvassing agent.

After considering the evidence on the allegations in the petition(Issues Nos. II (a) and (b),) that the first respondent, obtained promisesfrom purchasers of commodities from the Labourer's Consumer's Co-operative Society, to vote for him before they were supplied thecommodities and that this was a corrupt practice either under Section123(1) or (2), the judgment proceeded.

Thus, the petitioner has not proved the allegations in para-IllF(i) of his petition nor has any corrupt practice under either sub-section(1) or (2) of Sec. 123 of the R. P. Act been made out.

I l l Issue :

The allegations in para-III (F) (iii) of the petition are that therespondent made a donation of Rs. 101/- to the Raje Bux Darga atBasavakalyan under the cloak of charity, that the real facts Were thathe made it a condition precedent with the leaders of the said Dargathat they should secure Muslim votes for him by canvassing for himin the Muslim localities of Basavakalyan and in the villages of Basa-vakalyan Constituency wherevet they could influence Muslim voters,and that the ostensible donation was made by the respondent in thefirst week of February 1967 at the time of'Urs' ofRajebux, the saintof that Darga.

In his written statement, the respondent has put the petitionerto proof of these allegations and has also ' pleaded that there are threebig religious institutions at Basavakalyan of which Raje Bux Dargais one, that subscriptions are raised for all these institutions from peopleirrespective of religion, that he has been contributing amounts' toall these institutions every year, that sometimes contributions to these-institutions are paid directly from his shop and that there was nocorrupt motive for this donation of Rs. 101/-. He has denied that hemade it a condition with the leaders of the Darga that they shouldsecure Muslim votes for him by canvassing for him.

It is not disputed by the respondent that in February 1967 hepaid a sum of Rs. 101/- to the Jhela Committee of the Darga. He pro-duced along with his written statement the leceipt for Rs. 101/-: issued bythe Jhela Committee and that receipt has been marked as Ex. RH4.The respondent also stated that he paid a sum of Rs. 25/- to the DargaCommittee in February 1967. The petitioner has also stated in; hisevidence that the respondent paid only Rs. 25/- to the Darga during"this year". Having regard" to the context in which the term, "thisyear", is used, I think it means the year 1967.

R. W. 3 Abul Hassan Jagirdar, Muthavalli of the Darga, hasalso stated in his evidence that every year the respondent has beenpaying a contribution of Rs. 25/- to the Darga and that in the year

E.I..R.] BAPURAO V. SIDRAMAPPA 105

1967 alsp he paid a sum of,Rs. 25/- and that Ex, R. 26(a) is the counterfoilof the receipt issued to him for the sum of Rs. 25/- p^id in February

6

At one stage, an attempt was made on behalf of the petitioner toestablish that in the year 1967 the respondent paid a sum ofRs. 100/-or Rs. 101/- to the Daiga Committee. A document purporting to be areceipt issued by the Darga Committee was produced by Mr., Patil,marked as Ex. P-81 during the course of the cross-examination of R.W. 3Abul Hassan Jagirdar and was put to that witness, who no doubtstarted at first that it was a receipt; but later, at the stage of reading overhis deposition, he stated that it was not a.receipt issued by the DargaCommittee. Mr. Albal who was not present in Court when thisdocument was produced and marked as an exhibit later objected to itsproduction and to it being put to R. W. 3. Abul Hassan Jagirdarmaking it appear a.s p receipt while it was only a counterfoil.Mr. Albal particularly highlighted the feature that the perforationsin Ex. P.-81 were at its right hand edge whereas in Ex. R-26 the bookcontaining counterfoils of receipts produced by R. W. 3 Abul HassanJagirdar, perforations were also at the right hand edge of each page.The petitioner has not explained how he came by possession of thedocument, Ex. P-81. As R. W. 3 Abul Hassan Jagridar denied atthe stage of reading over bis deposition, Ex. P-81 being a receipt issuedby the Darga Committee, and as no other witness has spoken to thisdocument, it must be held that Ex. P-81 has not been proved and thatit cannot be considered in assessing the evidence.

During the course of his cross-examination, R. W. 3 Abul HassanJagridar said that he and two other persons went to the respondent'sshop and collected Rs. 101/- through bis Munim; but at the stage ofreading over his deposition be purported to correct himself and said thatonly Rs. 25/- and not Rs. 101/- were collected from the respondent'sshop.

There is no reason to doubt the genuineness of the counterfoil, Ex.R-26 (a), in which the sum paid by the reaspondent to the Darga Com-mittee is mentioned as Rs. 25/-. Having regard to Ex.R-26(a) and whatthe petitioner himself has stated in his evidence, it is reasonable to inferthat the sum of Rs. 101/- mentioned in cross-examination by R.W. 3Abul Hassan Jagirdar as the amount paid by the respondent to theDarga, Committee was an error and the sum of Rs. 25/- mentioned byhim at the stage of.rending over his deposition, was the correct amount.Hence, it must be held that the amount paid by the respondent to theDarga Committee in the year 1967 was only Rs. 25/- and not Rs. JOO/-or Rs. 101 /- as sought to be made out by the petitioner.

I shall now examine the evidence adduced by the petitioner toprove that while giving this donation of Rs. 101/- to the Jliela Com-mittee, the respondent made it a condition that the leaders of the Dargashould .secure Muslim votes for him by .canvassing among Muslimvoters.

106 BAPURAO V. SIDRAMAPPA [VOL. JtLI

After considering the evidence on the petitioner's allegation(Issue No. Ill) that the donation of Rs. 101/- made by the first respondentto the Hajabux Darga of Baswakalyan before the date of poll with aview to induce the voters amounts to corrupt practice of bribery undersub Section (i) of Section 123 of the Act, the judgment proceeded.

There is considerable force in the contention of Mr. Albal thatif really the petitioner bad seen propaganda in favour of therespondent being made in the Sandal procession, it is very unlikelythat he would have gone out of Basavakalyan on the following day whenhe should have anticipated that similar propaganda would be made inthe Jhela procession; ?nd that even if he bad gone to some villages forhis election campaign, he would have returned to Basavakalyanin the evening to see if any propaganda would be done in tne Jhelaprocession also. The petitioner has not preferred any complaint tothe Returning Officer or to any of the authorities complaining ofsuch propaganda in those processions. Moreover, it is clear from theevidence of the petitioner's witnesses themselves that Tajuddin NawazBai, who was one of the members of the Darga Committee, was activelyworking for respondent No, 2, a candidate of the Congress party. WhenTajuddin was a member of the Darga Committee, it is very unlikelythat the other members of the Darga Committee would have agreedto make use of those two processions for carrying on propaganda infavour of the respondent in consideration of a paltry sum of Rs. 101/-.

Though an attempt was made to discredit R. "W. 3 Abul HassanJagirdar, as an interested witness who was bent on deposing falselyto favour the respondent, nothing has been elicited in his cross-examina-tion to doubt his veracity. I see no reason to disbelieve his evidencethat no propaganda was made in favour of the respondert either in theSandal or in the Jhela piocessicn.

On the other hand, P. W. 1 Madhava Rao, P. W. 2 VisbambarRao, P. W. 6 Aneesuddin and P. W. 11 Tuhiram Arva are interestedwitnesses as they all worked actively for the petitioner in the election.As stated earlier the name of P. W. 12 Sangappa was not found in thepetitioner's List of Witnesses and the petitioner sought for permissionto examine him (P. W. 12- Sangappa) after a number of witnesses wereexamined.

It appears to me that this part of the petitioner's case which is notfound in the petition, is clearly an after-thought, and I have no hesita-tion in rejecting the evidence on this point by the petitioner and biswitnesses, as not creditworthy.

Though the petitioner has failed to establish that when the res-pondent donated Rs. 101/- to the Jbela Committee, there was anagreement between him and the members of the Darga Committeethat they should canvass for him and secure Muslim votes, the questionstill is whether even in the absence of such agreement, giving such,donation constituted a corrupt practice of bribery under sub-sectioa

E.Ii.R.] BAPURAO V. SIDRAMAPPA 107

(i) of Sec. 123 of the R. P. Act. As stated earlier, it is common groundtbat the said donation of Rs. 101/- vvas given to the Jhela Committeeon 3-2-1967, i.e., 12 days prior to the polling day. It was undoubtedlya gift made at the time of or on the eve of the election.

Mr. Pa til contended tbat such charity at the time, or on the eveof the election per se amounts to bribery under sub-section (i) of Sec.123 of the R. P. Act, and that in the present case such donation wasgiven with the object of inducing directly or indirectly, electors ofBasavakalyan in general, and Muslim voters in particular, to votefor the respondent.

In support of his contention that charity on the eve of the election-per se, amounts to bribery, Mr. Patil referred to the following observat-ions of the Supreme Court in S. Khader Sheriff vs. Munnuswamy (14).There, the question that arose for consideration was whether thepayment of Rs. 500/- made by the returned candidate to the NorthArcot District Congress Committee was spent for the purpose of theelection. It was contended for the returned candidate that such dona-tion was made out of philanthropic motive. Venkatarama Ayyar, J .who spoke for the Bench, observed:

"It has been frequently pointed out that while it is meritorious tomake a donation for charitable purposes, if that is made at thetime or on the eve of an election, it is open to the charge,that its real object was to induce the electors to vote in favourof the particular candidate, and that it should therefore betreated as election expense. In—'The Wigan Case', 4 O'M& H i(B), Bowen, J. observed :

' ' I wish to answer the suggestion that this wasmerely charity. Charity at election times ought to be keptby politicians in the background In truthI think, it will generally be found that the feeling whichdistributes relief tc the poor at election time, though thosewho are the distributors may not be aware of it, is reallynot charity, but party feeling following in the steps ofcharity, wearing the dress of charity, and mimicking hergait. In—'The Kingston Case' 6 O'M & H 374 (C), RidelyJ. said : 'Now assume for the moment that a man formsa design, which at the time is in prospect, for that is thepoint; yet if circumstances alter, and an election becomesimminent, he will go on with that design at his risk.".

His Lordship further said that it was a question of fact whether thispayment of Rs. 500/- by the returned candidate was a pure act of charityor was an expenditure incurred for the election purpose, that theTribunal, on a consideration of the relevant facts, held that the pay-rnlent in question could not be regarded as innocent and motivated by the

(14) A. I. R. ,955 S. C. 775.

IPS BAPURAO ZV SIDRAMAPPA [VOLifXLI

•desire to obtain the recommendation of the Congress Committee for thecandidature of the returned candidate and that no ground was shownfor differing from the conclusion of the Tribunal.

I do not think that the above observations of His Lordship canbe understood as laying down that a donation to a charitable purposemade at the time or on the eve, of an election, must necessarily consti-tute bribery, irrespective of circumstances.

Mr. Patil next referred to the decision in Maganlal RadhakishanBagdi vs. H. V. Kamath (15). There, the returned candidate had promisedto construct a well to Harijan voters if they voted for him. It is inthose circumstances that it was held that the case fell within the mischiefof Sec. 123(1) of the R. P. Act. This decision is no authority for theproposition that a gift to a charity during the time, or on the eve, ofan election, per se amounts to bribery.

In Braj Bhushan vs. Raja Anand Brahma Shah (16). The questionthat arose for decision was whether the distribution of swecti by a•candidate to children who participated in a procession and in raisingslogans in his favour, would by itself amount to a corrupt practice ofbribery. A bench of the Allahabad High Court said :

"Whatever may be the position in England, the term of Section123(1) (a) of the Act, makes it quite clear that it is the objectof the act which determines whether it amounts to 'bribery'or not. It is, therefore, the motive which is behind the charitythat should be taken into consideration in finding whetherit is a 'subtle form of Bribery' or not. If the motive is corruptand the object is to induce the voters to vote in a particularway, then it is 'bribery'. The Court has thus to find outthe motive which actuated the distribution of sweets inquestion. If it is with a benevolent motive then it cannotamount to 'bribery'.

Even in England, in several election cases it has been stressedthat elections to Parliament have never been 'intended to dry up thefountains of charity'. In order to show his public spirit the candidatefor election to parliament is expected to render financial assistance tomovements, such as child welfare, boy scouts and girls guides a ad theclubs, rendering assistance to the unemployed and ex-soldiers. Theyare even expected to render some help to the poor and needy. Cases havearisen in England too wherein it has been found difficult to find whencharity has ended and bribery begun. One of the leading cases on thepoint is East Nottingham (6 O'M&H. 262). In that case it was found thatthe election agent of the candidate who has been leturned has relievedthe necessity of several poor people in the constituency during^ theperiod of election, and the candidate made a clear admission that itwas meant to win popularity* The election was held to be valid."

(15) A. I. R. 1955S. C. 362. : ;

(i6)(ig6o)22 E.L.R. 225.

EJi.R,] BAPURAO V. SIDRAMAPPA 109

; Their Lordships took the view that the object behind the distri-bution of sweets on behalf of the returned candidate was, at the most,to make himself popular in his Constituency and that could not amountto any corrupt practice.

In Bankabehari Das vs. Chiltaranjan Naik (17), the returned candidatehad agreed to arrange for a ladio battery to a libiaiy in his consti-tuency. The question was whether this constituted a corrupt piacticeofbrioeiy. The Bench of Orissa High Couat said thus : Before the Courtis led to the conclusion that the distribution of charity in any particularcase has been used for a dishonest purpose, it must be clearJy provedthat the motive of the person so using it is dishonest and corrupt;whether it is so or not must be matter of inference to be drawn fromfacts of each particular case, and must depend upon many circumstancesinvolving those of time, place, the person by whom charity is distri-buted and Dy whom it is received; whether it has been given in pur-suance of an accustomed course, or whether it is novel and unprece-dented; whether it is moderate or immoderate in amount and speciallywhether the persons to whom it is given are proper recipients; indetermining the question whether it is or is not reasonable to concludethat an act is done with a view to influence voters, the element of timebecomes a very material one.

Their Lordships added:

"In each case the question arises whether, the distribution ofcharity was done honestly or whether it was done corruptly.We must take the whole of the evidence into consideration,and enquire whether the governing principle in the mind ofthe man who made such gifts was that he was doing some-thing with a view to corrupt the voters; or whether he wasdoing something which was a mere act of kindness or charity.It might be a doubtful question whether, assuming twomotives to exist, the one being pure, and the other with theintention to corrupt, you could exclude the corrupt intention,and rely wholly upon the pure intention. On this the Courtshave consistently taken the view that this must be rathera question of degree. In all such cases, as in the presentcase, in which this question arises, however pure the motives ofthe charitable donor may be, if he be a candidate for the consti-tuency, it is impossible to escape the conclusion that his actsof charity may, or even must, exercise some influence uponthe mind of the voters; but when no personal bribery is proved,this influence is common to all such cases in which the candi-date by his personal appearance, power of speech, manner oflife or conduct in the management of the particular election,must or may ingratiate himseif in the minds of the electors,and so obtain an advantage over the opponent."

(17) A. I. R. 1963 Orissa 83.

1 1 0 BAPURAO 0. SIDRAMAPPA [VOL. XLI

"Where the object of the candidate in promising or making a giftis at the most to make himself popular in his constituency,this cannot amount to bribery and as such does not constituteany corrupt practice though this may result in some indirectpropaganda for him".

In Tirlochan Singh vs. Karnail Singh (18) one of the questions referredto the Full Bench of the Punjab High Court was :

"Whether a gift or promise of such a gift made for a public purposedoes or does not fall within the definition of 'bribery' undersub-section (i) of Section 123"

The answer of the Full Bench was as follows:

"We are of the considered opinion, that the answer to the questionwhether a gift or promise of such a gift made for a publicpurpose does or does not fall within the definition of 'bribery'under sub-section (1) of Section 123, would mainly dependon the facts and circumstances of each case, but broadlyspeaking, it woud so fall, if it satisfies the following conditions:

(1) That it gives satisfaction or pleasure to an individual orindividuals ;

(2) The gift or promise, which is to give such a gratification orpleasure to the individual, is of some value, and lastly,

(3) The gift or promise by a candidate is made with the corruptmotive of directly or indirctly inducing the persons gratifiedto vote in his favour or to induce other electors to vote inhis favour."

From the above decisions, it can be deduced that though a dona-tion for a charitable purpose made by a candidate at the time, or onthe eve, of an election, may raise a strong suspicion that the realobject was to induce the voters to vote for him at the election, thequestion whether such donation constitutes bribery, must depend uponthe object of that donation, namely, whether it was for directly orindirectly inducing voters to vote for him at an election.

So it becomes necessary to ascertain in the present case whetherthe object of the respondent in giving the donation of Rs. 101/- tothe Jhela Committee on 3-2-1967, was out of philanthropic motive orwith a view to induce the electors in general, and the Muslim votersof Basavakalyan in particular, to vote for him at the election.

K shall now consider some of the circumstances like the person bywhom the charity was given, the person to whom it was given, whetherit was novel and unprecedented or had been given in pursuance of anaccustomed course, and whether it was modeiate or immoderate.

(18) A. I. R. 1968 Punjab & Haryana 416.

E.L.R.] BAPURAO ». SIDRAMAPPA 111

It is common ground that the respondent is a prosperous business-man having many lines of business at Basavakalyan, GuJbarga andHyderabad, and employing a considerable number of persons. R. W.i.Madhava Rao has deposed that the respondent has no issue and has beengiving donations to a number of institutions on a big scale. R. W. 5.Annappa Hugge has deposed that the respondent has given such dona-tions to institutions in Basavakalyan like Sri Basava Samithi, andAnubhava Mantap.

The respondent has stated in his evidence that he has been givingdonations since 20 years to institutions in 4 or 5 places, that he hasgiven donations of sums like Rs. 500/- and Rs. 1,000/-, that the sums ofsuch donations would vary according to the institutions, that he gavea contribution to the National Defence Fund, that about 2 or 3 yearsago he sent by Money Order Rs. 500/- to the Jrrime Minister's ReliefFund, and that he gave a donation of Rs. 51,000/- to the Collegeestablished at Basavakalyan. The receipts evidencing such donationshave been produced in evidence. Ex. R-29, relates to the donation ofRs. 1000/- to Sri Basava Samithi; Ex. R-5 is a receipt dt. 13-11 -1956for a sum of Rs. 325/-; Ex. R-6 is a receipt dt. 19-11-1967 foi a sumof Rs. 101/-; Ex. R-7 is a receipt dt. 12-11-1967 for a sum of Rs. 101/-;Ex. R-8 is a receipt dt. 14-4-1967 for Rs. m / - ; Ex. R-9 is a receiptdt. 17-1-1967 evidencing a donation of four and odd tolas of gold; andEx. R-10 is a receipt dt. 8-2-1967 for a sum of Rs. 101/-.

Some of the above receipts relate to donations to institutions outsideBasavakalyan Constituency and a few of them relate to donations toinstitutions outside Mysore State.

The above evidence gives the picture of the respondent as anaffluent man with no children and charitably disposed. His givinga donation to the Jhela Committee at the time or on the eve, of theelection does or appear to be novel or unprecedented act of charitybut appears to be in pursuance of an accustomed course-of charity.

As regards the institution to which the donation was given, R.W.3 Abdul Hassan Jagirdar has stated in his evidence that membersof the public belonging to all religions and communities visit the Dargathat Urs celebrations will be held on a large scale every year, that theexpenses of Urs celebrations will be met partly from the income of theDarga and partly from contributions from the public and the petitioner'sfather had also contributed Rs. 101/- for the Urs celebration.The petitioner has also stated in his cross-examination that though amajority of the devotees of the Darga are Muslims, there are somedevotees among Hindus also. He said that he did not know whether hisfather had given any donation to the Darga.

The respondent has stated in his evidence that contributions willbe collected for the Jhela procession, that such contributions will beused for feeding Fakirs and poor people, that he was paying contribution


to the Jhela Committee if he was asked in the Adat Bazar, that theAdat Bazar was formerly situated in the Fort (Khilla) are from whichthe Jhela procession starts and that he has away s been paying contribu-tions to the Jhela Committee and the Darga Committee.

Looking at the nature of the institution, namely, a leading religiousshrine, there is nothing unusual in a prosperous businessman givinga donation to an important religious institution in his town towardsan annual festival held on a large scale.

Even so, Mr. Patil contended that in previous years, the respon-dent was giving an annual contribution of only Rs. 25/- to the JhelaCommittee and that it was only in the year of the election, namely1967, that he suddenly increased his contribution four-fold, namelyto Rs. 101/- and that such substantial increase of the donation in theyear of the election could not be for any other object except inducingthe electors in general and the Muslim electors in particular, atBasavakalyan, to vote for him at the election.

The question whether the respondent was paying like sums to theJhela Committee in previous years or whether there was unusual increasein the amount of his donation, is of considerable significance to deter-mine whether contribution of Rs. 101/- in the year 1967, was givenwith a view to influence the electors.

In his evidence, the respondent stated:

"I paid contributions to the Jhela Committee and the Darga Com-mittee in the year of the election because I have always beenpaying such contributions."

To a question whether he had any motive for giving these contri-butions, he answered that he had none. In his cross-examination thequestion put to him was:

"Except in the year of the election, have you paid an annualcontribution of Rs. 101/- for the Urs celebration in anyother year?"

His answer was:

"About 15 years ago I had paid a sum of Rs. 500/ to the Dargafor cleaning the water in a pond of the Darga and every year Ihave been paying Rs. 25/- for the Urs celebration."

To understand the full significance of these answers, it is necessaryto bear in mind the distinction between the Darga Com-mittee and the Jhela Committee, and the distinction between thecollections made by these two bodies. R. W. 3 Khaja Abul HussanJagirdar has stated in his evidence that contributions will be collectedor the Jhele procession by a Sub-Committee of the Darga Committee,

E.L.R.] BAPURAO V. SIDRAMAPPA 1 1 3

that the receipts will be issued to persons who make contributions forthe Jhela procession, that separate receipt books are maintained forcollections made for the Darga and for the collections made for the Jhelaprocession, and that the receipt, Ex. R 4, issued to the respondent bythe Jhela Committee was signed by Haji Sheik Fareed, a leadingperson in the Jhela Sub-Committee. From the evidence of this witness,it is clear that a donation to the Jhela Committee is distinct and separatefrom donation to the Darga Committee and that separate receiptswere issued for these categories of donations.

R. W. 3 Abul Hassan Jagirdar also stated in his evidence thatevery year the respondent was giving a contribution of Rs. 25/- to theDarga Committee and was also giving contributions to the Jhela Com-mittee every year. In his cross-examination this witness stated thatexcept in the year 1967 in all the years the respondent has not paidmore than Rs. 25/- to Raje Bux Darga.

On the point as to what were the amounts contributed by therespondent to the Jhela Committee in the years prior to 1967, theevidence of the respondent could have been more specific; likewise thecross-examination of the respondent and of R. W. 3 Abul Hassan Jagirdarby the petitioner's counsel could have been more specific. But the learnedcounsel for the petitioner was content with eliciting from the res-pondent and from R. W. 3 Abul Hassan Jagirdas as to what were thecontributions made by the respondent to the Raje Bux Darga or to theUrs celebration in previous years.

The interpretation Mr. Patil sought to place on the aforesaidanswers of the respondent and of R. W. 3 Abul Hassan Jagirdar in theirrespective cross-examination, was that in the years prior to 1967 therespondent was paying Rs. 25/- only to the Jhela Committee.

Mr. Patil contended that the Jhela procession being a part of theUrs celebrations, the answers given by the respondent that every yearhe had been paying Rs. 25/- for the Urs celebration, must be held tomean that he was paying Rs. 25/- for the Jhela Committee, and thatlikewise the answer given by R. W. 3 Abul Hassan Jagirdar that inearlier years the respondent was not paying more than Rs. 25/- toRaje Bux Darga, must be understood as meaning that in previous yearthe respondent had not paid more than Rs. 25/- to the Jhela procession.

On the other hand, the interpretation sought to be placed by Mr.Albal on these two answers of the respondent and of R. W. 3 AbulHassan Jagridar, was that in the years prior to 1967 the respondentwas paying a contribution of Rs. 25/- to the Darga Committee. Mr.Abul argued that these two answers did not refer to the contributionsmade to the Jehla Committee at all, and that these two answers mustbe understood as referring to contributions to the Darga Committee andnot to the Jhela Committee in earlier years.

8^4 Elec. Gom./71

114 BAPURAO V, SIDRAMAPPA [VOL. XLI

There is considerable force in the contention of Mr. Albal thatif the interpretation sought to be placed by Mr. Patil should be accepted,it would mean that all that the respondent paid to both the Dargaand the Jhela Committees in each of the earlier years was only Rs. 25/-and not two sums of Rs. 25/- each. But it is in the evidence of R.W. 3Abul Hassan Jagirdar that the respondent was paying an annualcontribution of Rs. 25/- to the Darga Committee. It could not be thatthe respondent did not give any donation to the Jhela Committee inearlier years.

There is also considerable force in the contention of Mr. Albalthat the statement of the respondent in his evidence that he paid contri-butions to the Jhela Committee and the Darga Committee in the yearof the election because he has always been paying such contributions,would mean that in the earlier years also he was paying similar amountsas in the year of the election, namely, 1967.

The burden of proof of the charge of bribery being on the petitioner,if there is any ambiguity in the evidence as to whether the amount ofannual contribution made by the respondent to the Jhela Committeein each of the earlier years was Rs. 25/- or Rs. 100/- , it cannot besaid that it has been established that the donation given by the res-pondent to the Jhela Committee in the year 1967 was unprecedentedor excessive as compared to that in earlier years. The benefit of suchambiguity must go to the respondent and not the petitioner.

Taking into account all circumstances—the person who gave thedonation, the institution to which the donation was given, the accus-tomed course of charity by the respondent and the ambiguity as to theamounts of contribution given in previous years, it cannot reasonablybe inferred that this donation of Rs. 101/- to the Jhela Committee wasmade with any corrupt or dishonest motive of inducing directly orindirectly, the electors to vote for the respondent. In the absence ofproof of such dishonest or corrupt motive, it must be held that thecorrupt practice of bribery under Sec. 123(1) of the R. P. Act has notbeen established.

IV ISSUE:

In regard to this issue, the allegations in para -III(J) of the petition,are that the respondent hired or procured or used vehicles for conveyingthe electors on the polling day. A list of such vehicles including theirregistration numbers, have been stated in this para. It is also allegedthat though the respondent used his vehicles for conveying voters allover the Constituency, the following three instances came directly tothe notice of the workers of the petitioner and of respondent No. 2:

(i) From Narayanapurwadi to Narayanpur polling station andback;

(ii) From Urki to Chitta polling station and back; and(iii) From Handral to Islampur polling station and back.


In regard to instance No. i, it is alleged that the vehicle bearingNo. MYT. 3047 made three trips between Narayanpurwadi andNarayanpur conveying about 300 voters, and that such conveyancewas arranged under the supervision of Mallareddy of Narayanpur(R.W. 6) who was one of the polling agents of the respondent at Narayan-pur polling station and also an active worker for the respondent inthe election.

In regard to instance No. 2, it is alleged that the vehicle bearingregistration No. APT. 1923 belonging to Masthan Sab Bhagwan ofMantala, who was one of the canvassing agents of the respondent, washired and or procured by the respondent, that the said vehicle madetwo trips conveying about 100 electors and that such conveyance ofelectors was arranged and looked after by Bachappa Mali, Patel ofUrki, who was a prominent canvassing agent of the respondent through-out the election period.

Regarding the 3rd instance, it is alleged that one of the lorriesof the respondent, which was of Ley land make, was used for conveyanceof voters and such conveyance was arranged and looked after by RamaShetty Mali Patel of Rajeshwar, who was one of the prominent can-vassing agents of the respondent.

In para-IX of his written statement, the respondent has totallydenied these allegations. He has also pleaded that he had not consentedto conveyance of electors by any person.

I shall now discuss the evidence relating to the alleged conveyanceof electors between Narayanapurwadi and the polling station atNarayanpur.

After considering the evidence on the allegations that the firstrespondent committed the corrupt practice of conveyance of electorsbetwen Narayanapurwadi and the polling station at Narayanpur, thejudgment proceeded.

No doubt it has been alleged in the petition that such conveyanceof electors was done by R. W. 6 Mallareddy. But his name has notbeen mentioned either in Ex. P. 3 or Ex. P. 3(a). P. W. 5 ManickaRao did not speak of Mallareddy at all. I am not impressed by thebold statement of P. W. 4. Madhava Rao that arrangements for convey-ance of electors were done by Mallareddy, without giving any parti-culars of the part played by him (R. W. 6 MaUareddy) in conveyanceof voters. The evidence of R. W. 6 Mallareddy that he was workingas a polling agent of the respondent at one of the polling stations atNarayanpur, receives support from Ex. P. 79(23), the form appo-inting him as a polling agent. There is no reason to disbelieve theevidence of R. W. 6 Mallareddy that on the polling day he was sittingin the polling station. If he was sitting in the polling station, theevidence of P. W. 12 Sangappa that he (Mallareddy) was conveyingelectors by a lorry, cannot be true.

116 BAPURAO f. SIDRAMAPPA [VOL. XLI

No attempt has been made by the petitioner to show who wasthe owner of the lorry bearing registration No. MYY 3047. Therecords of the Regional Transport Authority relating to the owner-ship of this lorry was not summoned by the petitioner. The peti-tioner's assertion that the lorry belonged to 'Khuba Firm' is veryvague. None of his witnesses has spoken to the existence of any firmby name 'Khuba Firm'. It wa? not even suggested to the respondentthat there was any firm by name'Khuba Firm' or that he was connectedwith that firm or that he had any connection with that lorry on thepolling day. There is absolutely no evidence that the lorry belongedto the respondent. Nor is there any evidence as to who had engagedthat lorry on the polling day.

(Joshbkai Chunnibhai Patel Vs. Anwar Beg A. Mirza(iQ), analysingthe ingredients of the corrupt practice under Sub-section (5) of Sec.123 Hidayatullah, C. J. who spoke for the Bench of the SupremeCourt, said that this sub-section requires three things :

1. hiring or procuring of a Vehicle;2. by a candidate or his agent or by any person with the consent

of a candidate or his election agent; and3. for free conveyance of an elector.

His Lordship added that the requirement of the law thereforeis that in addition to proving the hiring or procuring and the carriageof the elector to and from any polling station, it should also be provedthat the electors used the vehicle free of cost to themselves.

In that case before the Supreme Court though there was proofthat vehicles were procured and used for conveyance of voters, therewas no proof as to free conveyance of voters in these vehicles. TheirLordships rejected the contention that it was difficult to prove thatvoters were conveyed free. Their Lordships said that it was not impos-sible of proof because the owner of the vehicle or the driver or thevoters conveyed in that vehicle, could be examined to show that they(the voters) had travelled free in that vehicle.

In the present case there is no satisfactory evidence as to electorsbeing conveyed in a lorry between Narayanpurwadi and Narayanpurpolling station, or as to hiring or procuring of lorty by R. W. 6 Malla-reddy, even if it is taken that R. W. 6 Mallareddy was an agent ofthe respondent. There is neither any averment nor any evidence thatsuch electors were conveyed free in that lorry.

I shall now examine the evidence relating to conveyance ofelectors between Handral and the polling station at Islampur.

After considering the evidence on the allegations that the firstrespondent committed the corrupt practice under Section 123(5,!of the Act, of conveyance of electors from Handral and Islampurpolling stations and between TJrki and the polling station at Cbitta,,the judgement proceeded.

(9) Civil Appeal No. 799 of 1968 (S.C.)-

E.XjR.] •• BAPURAO V. SIEfcRAMAPPA 117

Thus, the pentioner has not established any corrupt practiceunder Sub-Section(5) of Sec. 123 of the R. P. Act.

V. Issue . The first part of this issue in clause (a) refers to expen-diture alleged to have been incurred by the respondent on itemsdetailed in para-III(K) of the petition. In that para such itemare set out in sixteen separate sub paras. I shall deal with each ofthese such paras separately.

Sub-para (1) In this sub-para, the allegation is that the respondentincurred expenditure of at least Rs. 200/- for purchasing electoral rollsand that he had suppresed this item of expenditure in his leturn•of election expenses. Though in bis written statement the respondenthas put the petitioner to proof of these allegations, it was not deniedat the stage of evidence that he had incurred an expenditure of Rs.100/- for purchasing two copies of the electoral rolls.

Ex. P. 23 is the letter addressed by the respondent to the Tahsildarrequesting supply of two copies of electoral rolls and Ex. P. 24 isthe challan under which a sum Rs. 100/- was deposited towardscost of these two copies. The respondent admitted in his evidencehaving signed the letter, Ex. P. 23 and handing over that letter toto his election agent, Vaijnath Durga, so that the latter could obtaintwo copies of the electoral rolls. Thus there is clear evidencethat the respondent incurred an expenditure of Rs. 100/- for pur-chase of two copies of electoral rolls. But the petitioner has not adducedany evidence to show that any amount in excess ofRs. 100/- was spenthy the respondent for purchasing of copies of the electoral rolls.

It is not disputed that the respondent has not included thisitem of expenditure in his return of election expenses, Ex. R. 30. Hence,it must be held that the respondent had incurred an expenditure ofRs. 100/- for purchasing copies of electoral rolls and has omittedto include this expenditure in his return of election expenses.

The allegations herein are that the cost of translation and trans-cription of Kannada voters list into Urdu and Maratbi scripts amount-ing to about Rs. 100/- and that the cost of paper and ink used for suchlists which may come to about Rs. 50/-, have been suppressed.

In sub para(2) of Para-X of his written statement the respon-dent has pleaded that no charges have been incurred for translationand that paper, ink and stationery purchased have been shown inhis return of election expenses.

In his evidence, the petitioner (P.W. 13) has stated that at Bas-vakalyan he saw the respondents workers having a voters list inUrdu script and that in Ladvanthi area, he saw the respondent'sworkers using a voters list in Marathi script.

118 BAPURAO V, SIDRAMAPPA [VOL. XL1

After considering the evidence on the allegations (Issue No.V(a))that the first respondent had incurred some items of expenditure onthe purchases of electoral rolls and in getting them translated or trans-cribed and in purchase of nomination papers and some printing char-ges, which were not included in his election returns, the court, whileholding that the allegations has not been proved, proceeded.

The respondent bas stated in his cross-examination that he hadtold Vaijnath Durga and R. W. 5 Annappa Hugge to get pampletsprinted for his election propaganda. In view of this instruction and hav-ing regard to the circumstances that the bill Ex. P-78(a) was in posses-sion of the respondent, that payment towards that bill had been madeby R. W. 5 Annappa Hugge who was maintaining the books of accounts,and that the diary relating to the election expenses has not beenproduced, it is reasonable to infer that this expenditure of Rs. 48/-.was also incurred or authorised by the respondent for the purposeof the election.

Hence, I hold that in addition to two sums shown in the respon-dent's return of election expenditure as being incurred towards printingcharges, the respondent incurred an expenditure of Rs. 48/- towardsprinting charges.

Sub-Para(^) : In this sub-para, the petitioner's allegation is thatthe cost of petrol and diesel purchased by the jespondent for purposeof the election, from the following four Fuel Stations, has been sup-pressed and/or minimised to the extent of Rs. 2000/-.

(ij Subashchandra Khuba petrol pump at Basavakalyan;

(ii) Chidri Petrol Pump at Bumnabad;

(iii) Chuhewala's Petrol Pump at Gulbarga; and

(iv) Avinash Petrol Pump at Gulbarga.

In Sub-para (5) of Para-X of his written statement, the respon-dent has put the petitioner to proof of this allegation and has furtherstated that whatever petrol had been purchased by him for purpose ofthe election, had been shown in Ex. R-30 his return of election expenses,and that it was untrue that there has been any suppression of expenses-to the extent of Rs. 2000/- in that behalf.

I shall first deal with the petitioner's case regarding purchaseof petrol by the respondent from the Fuel Station of Chuhewale atGulbarga.

In the Pettion, no particulars have been given as to such purchase.P.W. 21 Mohamed Haneef has deposed that he was one of the partnersof chuhewala Petrol Pump at Gulbarga, that he knew that respondentwho purchased petrol from his Fuel Station between 13-1-1967 and22-2-1967, that on 20-1-19,67 the respondent purchased 1800 litre


of petrol of tbe value of Rs. 1674/- under the cash bill, Ex. P-68(a),and that he (the witness) wrote that cash bill and initialled it. Ex.P-68(a) purports to be a duplicate carbon copy of tbat cash bill. InEx. P. 68 (a) the name 'Khuba in Urdu script and the letters andthe number, 'MYP-3030', have been written. At the foot of that billis a signature in Marathi script or Modi, the first part of which readsas 'Kashappa' and the latter part of it is not decipherable.

After considering the evidence on the allegation that the cost ofextra petrol and diesel purchased by the respondent, has been suppres-sed and or minimised to the extent of Rs. 2000, the judgmentproceeded.

Even if the evidence of this witness is regarded as interested, hisevidence receives corroboration from the entry, Ex. R-32(a), in whichthe transaction of purchase of 1800 litres of petrol has been narrated Mr.Patil argued that the name of Kashappa and the serial number ofthe bill, Ex. P-68(a), have been interpolated in the entry Ex. P-32(a).Assuming for the sake of argument that there has been interpolationof the name of Kashappa and the serial number of the bill, in the entry,Ex. R-^2(e), the rest of that entrv is sufficient to establish that thepurchase of 1800 litres of petrol on 20-1-1967, under Ex. P-68(a), wasby the firm of R. W. 7 Subhaschandra Khuba and not by the res-pondent.

It was also argued by Mr. Patil that even if it is held the bookof accounts, Exhibits R-.42 and R-33, are not fabricated, no reliancecan be placed on the entries therein as R. W. 7 Subhaschandra Khubaadmitted that entries therein were not made d^y to day, but oncein a week. Mr. Patil also referred to the circumstance that in Ex.R-32 the accounts relating to purchase and sales of petrol stopabruptly on 31-3-1967 and that there are no entries subsequent to thatdate, though on 31-3-1967 there was a closing stock of 150 liters ofpetrol which was sold subsequent to that day. Though entries werenot made in Ex. R-32 day to day and though the accounts are notsatisfactory, there is no reason why an entry relating to purchase of1800 litres of petrol should have been made at Ex. R-32(e) even oneweek after such purchase unless such purchase was made by R. W. 7Subhashchandra's Fuel Station.

Mr. Patil commented on non-examination of Kashappa whois alleged to have been sent by R. W. Subbaschandra KhubT to purchasepetrol, and who is alleged to have affixed his signature to Ex. P-68(a).It is true that if Kashappa had been examined as a witness and if hesupported the version of R. W. 7 Subbaschandra Khuba that he(Kashappa) purchased petrol under Ex. P.68(a), it would have con-clusively proved that the evidence of R. W. 21 Mohamed Haneefwas false. But the candidate against whom a charge or corrupt practiceis made, need not prove conclusively that the evidence in supportof the charge, is false; even if the evidence adduced by him raisesa responsible doubt as to the truth of the evidence in support of thecharge, that is sufficient to give him the benefit of doubt.


I shall now deal with the allegations of purchases of petrol by therespondent from the Fuel Station of Subhaschandra Khuba atBasavakalyan. P. W. 17 Subhaschandra Khuba has stated in bisevidence that the bills, Exhibits P-53(a), P-54(a) and P-54(b) relateto purchases of petrol from his Fuel Station on 16-1-1967, 30-1-1967,and 12-2-1967 respectively. In all these bills, the registration numberof the vehicle for which petrol was supplied is stated as MYP-552.It is common ground that the vehicle bearing that registration numberwas a jeep, and that it was used for the election campaign of therespondent.

The respondent has stated in his evidence that that jeep belongedto his cousin, Somanathappa Khuba, that Somanathappa was some-times driving the jeep himself and that sometimes the driver of thatjeep was driving it. To a question by his counsel whether any amountwas paid to Somanathappa Kbuba for the use- of the jeep during theelection time, the respondent stated that no payment was made andthat Somanathappa was a rich man. The respondent has assertedthat he did not purchase any petrol from the Fuel Station of P. W. 17Subhaschandra Khuba at Basavakalyan during the time of theelection. All that has been elicited in his cross-examination was that

jeep came to Basavekalyan he used to get petrol put into it.

Mr. Patil argued that as this jeep was used for the election cam-paign of the respondent, the cost of petrol purchased for this jeep fromthe Fuel station of P. W. 17 Subhaschandra Khuba under ExhibitsP53(a), l>-54(a) and P-54(b) should be regarded as expenditure incurredby the respondent for the purpose of the election. But there is abso-lutely no evidence that the respondent or any of his agents purchasedpetrol for the jeep under Exhibits P-53(a), P-54(a) and P-54(b). Itis an evidence that Somanathappa was an affluent man owing acinema theatre and agricultural lands and having the business of sellingagency for motor cycles in Gulbars;a. In view of the close relation-ship between the two, the possibility of Somanathappa Khuba him-self having purchased petrol for his jeep under these bills, cannotbe ruled out.

In Hansraj vs. Pt. Hari Ram & Others(20) the question that arosefor decision before the Supreme Court was whether the hire chargeof vehicles hired by Himachal Pradesh Congress Committee, shouldbe regarded as expenses incurred by the candidate of the CongressParty. The Supreme Court said that in view of its earlier decisionin Ranavjaya Singh vs. Baijnanath Singh and others (21^ it is clear thatthe expenditure must be by the candidate himself and that anyexpenditure in his interest by others (not his agents within the meaningof the term in the election Law) is not to be taken note of. The SupremeCourt held in that case that as the Congress Committee was not anagent of the candidate, the amount spent by the Congress Committeecould not be taken as an amount which must compulsorily be includedjn the expenditure over the election by the candidate.

(20) Civil Appeal No. 863 of 1966 (S. C.)(2>) ('955J 1 S. C. R. 671-10 E. L. R. 129.

EX.R.J BAPURAO V. SIDRAMAPPA 121

As it is not shown who paid for petrol purchase under the billsExhibits P-32(.a), .P-54(a) and P-54(b) and that the person who sopurchased it was the agent of the respondent, the amount spenton such purchase of petrol cannot be regarded as a part of election•expenses of the respondent.

.P. W. 17 Subhaschandra Khuba has also deposed that the bills,Exhibits P-55(3.) and P-55(bj, relate to sales of petrol on 8-2-1967 and12-2-1967 respectively. In this bills the registration number of thevehicle for which petrol was sold, is stated as MYP-101. The caseof the petitioner is that the car bearing that registration number wasused by the respondent for his election campaign. But the respon-dent asserted that that car neither belonged to him, nor was hiredby him nor was used by him for his election compaign.

P.W. 1 Madhava Rao deposed that the vehicle bearing registra-tion number MYP-101 was one of the four vehicles used by the res-pondent for his election campaign. He denied the suggestion thatthe respondent did not use any car other than his Fiat car.

P. W. 2 Vishwambar Rao deposed that the respondent hadtwo cars bearing registration numbers MYP-9/8 and MYP-101. Inhis cross examination he admitted tnat he bad not maintained anyrecord of the registration numbers of the motor vehicles used by therespondent for the purpose of the election.

P .W. 11 Tulshiram Arya has deposed that the respondent hada touier car which was used for the election and that its registrationnumber was 101. In his cross-examination this witness stated thathe saw twice the vehicle bearing registration number 101, that therewas no particular reason Jbr him to remember the registration numberof vehicles used by the respondent and that he saw those number£>s the vehicles were moving about during the election pericd.

P. W. 12 Sangappa deposed that one of the cars used by therespondent for his election campaign bore the registration numberMYP-101. In bis cross-examination he admitted that he had notnoted down the registration numbers of any motor vehicle other thanMYY-3047.

The petitioner also stated in his evidence that, the respondentused besides his own car, an old model car bearing registration numberMYP-101.

On the other hand, the evidence of R. W. 1 Madhava Rao is tothe effect that the respondent was using for his election campaignonly one car of Fiat make and one jeep, and was not using any othermotor vehicle. R. W. 5 Annappa Hugge has also stated in his evidencethat the respondent used one car and one jeep for his election cam-paign and that that car was his (the respondent's) own and a small

122 BAPURAO V. SIDRAMAPPA [VOL. 3X1

one. The respondent has also stated in his evidence that it was nottrue that as suggested by the petitioner he used another car bearingregistration number 101.

The petitioner has not produced in evidence the records to showwho was the owner of the car bearing registration number M Y P - I O I ,nor has he adduced any evidence as to whether the respondent hiredthat car or whether the owner of that car had spared that car for beingused by the respondent. As stated earlier P. W. i Madhava Rao, P.W. 2Vishwambar Rao and P. W. 11 Tulshiram Arya were close associatesof the petitioner in the election and are highly interested witnesses,,and P. W. 12 Sangappa was thought of as a witness long after the com-mencement of the recording of evidence. Even leaving aside the evidenceof the respondent and R. W. 5 Annappa Hugge, there is no reasonwhy the evidence of R. W. 1 Madhava Rao that the respondent usedonly one car, namely his own car of Fiat make, should not be believed.

Thus the petitioner has not satisfactorily established that therespondent used for his election campaign the car bearing registra-tion number M Y P - I O I . Assuming for the sake of arguments that hiscar was so used, there is absolutely no evidence that purchases of petrolfor that car from the Fuel Station of P. W. 17 Subhaschandra Kbubaunder Exhibits P-55(a; and P-55(b), were made by the respondentor his agent. Hence the amount shown in Exhibits P-55(a) and P-55(b)cannot be regarded as election expenses of the respondent.

In Sub-para (5) of para-IIIK of the petition it is also allegedthat the cost of diesel purchased by the respondent from the afore-said four Fuel Stations had also been suppressed. In support of thisallegation the petitioner sought to adduce evidence about purchaseof diesel by the respondent from these Fuel Stations for some lorries.Some evidence on that point was sought to be adduced, the respon-dent's counsel raised an objection as to the relevancy of such evidence.Mr. Albal contended that in the petition the allegation was only tothe effect that on the polling day the respondent used certain lorriesand other motor vehicles for conveying electors to and from pollingstations and that there was no allegation that any of these lorries wereused prior to the polling day for election propaganda. I uphold theobjection of Mr. Albal and gave a ruling that in the absence of an allega-tion in the petition that the respondent, who was engaged in transportbusiness, used his lorries for his election campaign, evidence could notbe adduced about purchase of diesel by the respondent for his lorries.The petitioner did not seek to adduce any evidence regarding purchaseof diesel by the respondent for any motor vehicle other than lorries.

It was next contended by Mr. Patil that the respondent shouldhave included in his return of election expenses the value of petrolpurchased by him in January 1967 from the Fuel Station of Avinash& Co. at Gulbarga. The quantities of petrol purchased by the respon-dent from this Fuel Station in January 1967 from the Fuel Station-

E.L.R.] BAPURAO V. SIDRAJtAPPA

of Avinash & Co. at Gulbarga. The quantities of petrol purchasedby the respondent from this Fuel Station in January 1967 have beenstated thus in the evidence of P. W. 18 Avinash Borgoankar :

Date Quantity

9-1-1967 . . 62 litres18-1-1967 . . 2 5 litres19-1-1967 . . 21 litres24-1-1967 . . 25 litres28-1-1967 . . 4 litres29-1-1967 . . 10 litres

. . 25 litres

Mr. Albal argued that as the respondent had his Adat shop atGulbarga, he was going by car from Basavakalyan to Gulbarga tolook after his shop at Gulbarga and that the aforesaid quantities ofpetrol purchased by him at Gulbarga should be attributed to his busi-ness expenditure and not to his election expenditure. The respondenthas stated in his evidence that he used to visit his shop at Gulbargatwice a week, that he used his car to go to Gulbarsra and that sometimeshe used to go to Gulbarga in any of his lorries.

Except the quantity of 62 litres purchased on 9-1-1967, all otherquantities purchased in January 1967 from the Fuel Station of Avinash& Co. are small and they can reasonably be attributed to the businesspurpose for which the respondent was using his car. It is in evidencethat till December 1967 the Fuel Station of P. W. 17 SubhaschandraKhuba had only a diesel pump and was not ordinarily selling petrol.Of the quantity of 62 litres of" petrol purchased on 9-1-1967, a partof it might have been carried for being used by the car for making a fu-ture trip from Basavakalyan to Gulbarga. Moreover the quantity of62 litres of petrol was purchased four days prior to 13-1-1967, the dateon which the notification calling the election from BasavakalyanConstituency was published.

However, Mr. Patil argued that if a person holds himself out asa candidate even prior to the date of the publication of the notificationcalling the election, then the expenditure incurred by him from thedate he so holds out, should be regarded as the expenditure contem-plated under Sec. 77 of the R. P. Act. But there is no evidence thatthe respondent held himself out as a candidate on 9-1-1967. Onthe other hand the respondent has stated in his evidence that he returnedto Gulbarga on 8-1-1967 from a tour of North India, that severalpeople urged him to contest the election, that he said that he woulddecide the mattei after assessing the public opinion, thatfrom 12-1-1967he visited some villages and ascertained whether people would supporthim if he contested the election and that after ascertaining the opinionof people in villages, he decided on 19-1-1967 to contest the election.

1 2 4 BAPUR-AQ V. SIDRAMAPPA [VOL.

.R. W. 5 Annappa Hugge stated in his evidence that people toldthe respondent in December 1966 that they would support him andthat he need not seek the ticket of the Congress party and thatthere was no election propaganda prior to the date of the respondentfiling his nomination paper, but the respondent and his associatesapproached some people and requested them to support the respon-dent in the election. From the statement of this witness that peopletold the respondent in December 1966 that they would support him,Mr. Pa til wanted to make out that the respondent held himself outas a candidate even in December 1966. I think there is no warrantfor such an inference.

Moreover, under Sec. 77(1) of the R. P. Act, a candidate needmaintain the account of the expenditure incuried, only between thedate of the publication of the notification calling the election and thedate of declaration of the result of the election. As stated by the SupremeCourt in Vidya Sagar Joshi vs. Surinder Nath Ganta (22; the questionof commencement of the candidature is now obviated by prescribingthe two terminii between which the expenses is to be counted.

Hence the cost of purchase of 62 litres of petrol on 9-1-1967 cannotbe attributed to the respondent's election campaign and cannot betreated as a part of the election expenses as contemplated by Sec. 77of the R. P. Act.

Thus the petitioner has not established that the respondent hadincurred more expenditure than shown in bis return of election expenses,for purchase of petrol or that any expenditure was incurred for purchaseof diesel for the purpose of the election.

Sub-para(6) : The allegation in this sub-para is that the respondentsuppressed and/or minimised from his return of election expenses thesalaries and allowances paid to the munims, servant* and driversof various vehicles which might amount to Rs. 500/-.

In sub-para(6) of para X of his written statement, the respondenthas pleaded that no salaries or allowances bad been paid to Munims,servants and drivers and denied that Rs. 500/- had been incurred forthat purpose.

After considering the evidence on the allegations under issue Isio. V(a) that the first respondent had suppressed or minimised his expenseson account of the salaries paid to Munims, servants and drivers, rentspaid for his election offices, feeding of his workers, telephone bills, hirecharges for loud speakers, repair bills, on cars etc., the court, whileholding the allegations as not proved, proc eeded.

Thus the expenditure alleged in this sub-para has not been proved.Hence it is unnecessary to consider whether any expenditure evenif incurred for servicing a motor vehicle used for the election campaign,•can be regarded as an item of election expenditure.

(22) G. A. No. 853 of 1968. (S. C). ~ [

E.L.R.] BAPURAO Vt SIDRAMAPPA 125

Sub-para(i^) : The allegation in this sub-para is that the respon-dent minimised and/or suppressed the amount of Rs. 101/- paid toRajebux Darga at Basavakalyan. In sub-para (15) of para-X of thewritten statement, it is stated that this amount of Rs. 101/- even ifproved, was not an election expenditure and hence need not havebeen shown (in the return of election expenses).

My finding on III issue is that the donation of Rs. 101/- by therespondent to the Jhela Committee of Raje Bux Darga, was not givenwith any corrupt or dishonest motive of inducing, directly or indirectly,electors to vote for the respondent. In view of this finding, Rs. 101/-given by the respondent to the Jbela Committee cannot be regardedas a part of election expenses.

Sub-para(i6) : In this sub-para it is alleged that the respondenthas suppressed monies spent by him to the electors of Basavakalyanfor purchase of commodities from the Labourers' Consumers' Co-operative Society at Basavakalyan. This allegation has been deniedin sub-para ( i n of para-X of the written statement.

The petitioner has not adduced any evidence in support of thisallegation and during the course of his argument Mr. Patil did notpress this point either.

Considerable evidence has been adduced by the petitioner to theeffect that the respondent incurred expenditure on several other itemslike holding of election meetings, propaganda writings on walls,"translation of voters' lists, and use of Holkunde Bus service for theelection propaganda by the. respondent's wife and other members ofMahila Mandal. But in the absence of any pleading in that behalf inthe petition, such evidence cannot be looked into. As stated by the PrivyCouncil in Atta Mohamad Shah vs. Mr. Saran and others (23) no amountof evidence can be looked into upon a plea which was never put for-ward. The mere fact that such evidence had not been objected toby the respondent and was not disallowed by me at the stage of recordingevidence will not justify my considering such evidence.

Clause {b) of V issue : The next question is whether the facts provedestablish the corrupt practice under sub-section (6) of Sec. 123 ofthe R. P. Act.

As stated earlier the only items of expenditure which are provedto have been incurred or authorised by the respondent and whichhe has omitted to include in Ex. R-30, his return of election expenses,are : Rs.

(i) Purchase of two copies of electoral roll . . ioo#oo(ii) Purchase of forms for filing nomination, and

for appointing polling agents and countingagents; and 15*00

(iii) Balance of printing charges paid to Joythi Press,Sholapur 48*30

Total . . . . 163-30

A. I. R. 1930 P. G. 57.


In Ex. R. 30, the respondent's return of election expenses, thetotal amount of expenditure incurred by him is shown as Rs. 5530*02Even adding the aforesaid three items of expenditure amounting toRs. 163-30, the total expenses do not exceed the prescribed maximumof Rs. 6000.

Hence I hold that the respondent has not incurred expenditurein contravention of Sec. 77 of the R. P. Act and that the corrupt prac-tice under sub-sec. (6) of Sec. 123 of the R. P. Act has not been esta-blished.

VI Issue : As the petitioner has neither established that the res-pondent was disqualified for being chosen as a member of the MysoreLegislative Assembly nor proved the corrupt practices alleged againstthe respondent, I hold that the petitioner is not entitled to a declarationthat the election of the respondent (the ist respondent) is void.

VII Issue : As the election of the respondent (the 1 st respondent),the returned candidate, is not declared to be void, the petitioner isnot entitled to a declaration that he has been duly elected.

Even if the election of the respondent (the ist respondent) hadbeen declared as void and even if the second respondent was held tohave been disqualified for being chosen as a member of the MysoreLegislative Assembly, the petitioner could not have been declaredas being duly elected. Though the petitioner alleged in his petitionthat the 3rd respondent was also guilty of corrupt practice, no par-ticulars of such corrupt practice, has been stated in the petition, norhas the petitioner adduced any evidence regarding such corrupt practice.Even if the election of the ist respondent were held as void and evenif the 2nd respondent was held to have been disqualified for beingchosen as a member of the Mysore Legislative Assembly, there is noknowledge how many votes the petitioner and the 3rd respondentwould have secured respectively if the contest was onry betweenthem.

In the result, this election Petition fails and is dismissed withcosts.

I am beholden to Mr. B. S. Patil and Mr. A. V. Albal, learnedcounsel, for their valuable assistance in this case. In particular, theyhave carefully analysed the large volume of evidence in the course oftheir elaborate agruments.

(31-1-69I In this election Petition the recording of evidence wasdone on 60 days and agruments were heard on 16 days.

Mr. B. S. Patil, learned Counsel for the petitioner, submittedthat according to the table in clause (v) of Rule 5 in Chapter XVI-Aof the Mysore High Court Rules, the maximum Advocate's fee pres-cribed for an election case is Rs. 1,000. But it is seen that Rule 3 inthis Chapter provides that costs shaM, unless the Court otherwise direct,

B.L.R.] KARAMJI REHMANJI CHAIPA V. A. T. KUNDIWALA 127

he calculated according to the rules contained in this chapter. Thoughordinarily the Advocate's fee should be fixed within the limits specifiedin clause (v) of Rule 5, the Court may, in special cases fix higher feethan the maximum specified in that Rule.

As stated earlier the recording of evidence and the argumentshave occupied 76 days of hearing, and in the circumstances, I thinkthis is an appropriate case in which a higher Advocate's fee than themaximum stated in clause (v) of Rule 5 should be fixed. AccordinglyI fix Rs. 2,000 as the Advocate's fee in this Election Petition.

Petition Dismissed.


KARAMJI REHMANJI CHAIPA

V.

A. T. KUNDIWALA AND OTHERS

(S. M. SIKRI, R. S. BACHAWAT & K. S. HEGDE, J. J.)

January 23, 1969Representation of the People Act, 1951, « . 11, 77, 123, 130—Conduct ojElections Rules,

1961 Rule go—Corrupt Practice-Canvassing of votes inside polling booth-proof of. Expensesin excess of prescribed limit-proof of.

The appellant, a defeated candidate, challenged the election of respondent No. 1on the ground, inter alia, thai a Police Officer on duty openly canvassed for res-pondent No. 1. It was also alleged that the respondent incurred expenses beyondthe limit of Rs. 8,000 prescribed under the Act and the rules made thereunder; anexpenditure of Rs. 3,233.17 incurred by respondent No. 1 in the election on accountof an order placed on an electrical company was not shown in the returnfiled before the Election Commissioner. The trial court rejected the petition. Dis-missing an appeal to the Supreme Court,

HELD : (1) It is a cognisable offence under s. 130 of the Act to canvass voteswithin a distance of ioo meters of the Polling Booth. If anybody violated the provisionsof the Act, a written complaint by the person Who is said to have objected to suchan act, is ordinarily expected. In the absence of such a written complaint, andespecially when the witness- giving evidence about the incident spoke in contradictoryterms, it could not be said that the allegation about the police officer canvassing votesfor the respondent No. 1 had been proved.

(ii) There was no positive proof that the order on the electrical company wasplaced by Respondent No. 1 for their bill showed "for work done for Gujarat Swa-tantra Party". Moreover, the appellant had failed to discharge the burden of esta-blishing beyond doubt that respondent No. 1 authorised his brother to give instruc-tions regarding the work of illumination and to incur the expenditure by placingan order with the said electric company.

CIVIL APPEAL NO. 1562 OF 1968.

128 KARAMJI REHMANJI CHAIPA V. A. T. KUND1WALA [VOL. XLI

JUDGEMENT

SIKRI j.—This appeal under s. 116-A of the Representation ofthe People Act, 1951, is directed against the judgement and orderof the High Court of Gujarat dismissing the election petition filed bythe appellant against the election of respondent No. 1, AbdulrahimTajjuji Kundiwala, to the Gujarat State Legislative Assembly fromJamalpur constituency. The appellant, a Congress candidate, wasdefeated by the first respondent, a Swatantra Party candidate, theappellant securing 13600 votes and the first respondent securing 14023votes.

A number of points were raised in the election petition. Someof those points were not pressed before the High Court and were notthe subject matter of issues framed by the High Court. Although sixissues were framed by the High Court on the allegations in the petitionand two on the allegations in the Recriminatory Statement, we arenow only concerned in the appeal with two issues, issues Nos. 1 and 5as the learned counsel for the appellant has only pressed these issuesbefore us. They read as follows :

"(1) Does the petitioner prove that P.S.I. Madhavsing JalamsingJhala, was on duty as Police Officer at the polling boothin Jamalpur Constituency on the date On election as al-leged ?

Whether the said police officer in the presence of and withinthe hearing of respondent No. 1 continuously made propa-ganda and asked voters to vote in favour of the symbol of"Star" as alleged ?

(5) Does the petitioner prove that the respondent No. 1 incurredexpenses beyond the limit of 8000/- prescribed by Rule 90of the Conduct of Elections Rules read with S. 77 of theRepresentation of the People Act, 1951, as alleged ?

Under issue No. 5 only one item of Rs. 3233 • 17 has been debated.In brief, it is alleged that this expenditure was incurred or authorised byrespondent No. 1 and had not been entered in his account books or men-tioned in the statement filed by him.

A few preliminary facts may be set out in order to appreciatethe points raised before us. On January 13, 1967, a notification wasissued calling upon the voters of this Constituency to elect a candidate;on February 21, 1967, polling took place in the Constituency and theresult was announced on February 23, 1967. On March 24, 1967,respondent No. 1 filed his statenment of election expenses amountingto Rs. 5255.20. On April 7, 1967, the election petition was filed.

On issue No. 1 the case of the appellant is that P.S.I. Jhala wason duty at the Polling Booth at Villages Mahajan-vanda and Saiyadvadaon February 21, 1967, and he canvassed voters to vote for res-pondent No. 1. The appellant produced five witnesses, Farid Jamalji

E-L.R.] KARAMJI REHMANjI CHAIPA V. A. T. KUND1WALA 129

Rollwala, P. W. 5; Mohmad Shariff Kasamji Ravawala, P. W. 7;Police Inspector Ansari, P. W. 6, Deputy Superintendent PoliceSaiyad, P. W. 8, and Jamalbhai Suleman Kakkuwala, P. W. 9. Thelearned counsel has taken us through their evidence and we are unableto agree with him that the High Court has come to a wrong conclu-sion.

The evidence of P. W. 5, in brief, was that he went to the PollingBooth at Mahajan-vada at about 10-30 of 10-45 a-m- anc^ joined thequeue of voters; while he was in the queue he saw the first respondentand P.S.I. Jhala there canvassing votes; he complained to P.S.I. Jhalawho told him : "You attend to your own affairs, go away from here";he then went back to the queue but P.S.I. Jhala again carried on thepropaganda and he again protested to P.S.I. Jhala who gave thesame reply as before; he then left the Polling Booth and met MohmadShariff Kasamji Bavtawala, P. W. 7, to whom he narrated the entireincident; in the meantime Police Inspector, Ansari P. W. 6 came nearthe Polling Booth whereupon he narrated to him all that had happenedAnsari went up to Jhala and told him something and then told themthat he had asked Jhala and the first respondent not to carry on pro-paganda in the manner in which they had been carrying on; in spiteof the instructions given by Ansari, Jhala continued to carry on thepropaganda as before and thereupon Ansari told him something again.

The High Court found various difficulties in accepting this version.First, Police Inspector Ansari had denied that Farid, P. W. 5, hadcomplained to him. According to Police Inspector Ansari, it wasMohmad Shariff Bavtawala who had complained to him at the timeof the visit to Mahajan-Vada Polling Booth at about 10-30 a.m.Similarly, at about 11-30 a.m., when he again visited Mahajan-VadaPolling Station, the complaint was by Mohmad Shariff and one boyishlooking person. Secondly, according to Police Inspector Ansari, MohmadShariff did not make any allegation against the first respondent andthe only allegation made was against P.S.I. Jhala. Thirdly, it is acognizable offence to canvass within a distance of 100 metres of thePolling Booth (vide s. 130 of the Act) and it would have been ordinarilyexpected that Farid, P. W. 5, or Mohmad Shariff, P. W. 7, wouldfile a written complaint.

We agree with the criticism made by the learned Judge. Theevidence of Mohmad Shariff is similar. There is no-allegation againstrespondent No. 1 and, as we have stated, no written complaint wasfiled by Mohmad Shariff. Further, there is discrepancy between P. W.5 and P. W. 7 whether Ansari remained there all the time or only forhalf an hour. The High Court also noticed that no departmentalaction had been taken against P.S.I. Jhala. As a matter of fact, therewas no mention in Ansari's diary about this complaint and the onlyaction which seems to have been taken against Jhala was to send himto Polling Booth Saiyad Vada from 10-30 a.m. onwards.

9—4EIec. Com./71

130 KARAMJI REHMANJI CHAIPA V. A. T, KUNO1WALA [VOL. X U

The evidence of Police Inspector Ansari is really damaging tothe case of the appellant. Apart from the fact already mentioned thatit was Mohmad SharifF who complained to him, regarding the com-plaint of convassing at Polling Booth Mahajan-Vada, Ansari statedin cross examination :

"On both the occasions that Mohmad SharifF met me atMahajan Vada, I had asked thim to file a written complaint.Till to-day Mohmad SharifF has not lodged a written complaint.After Mohmad SharifF complained to me for the first time, Ihad asked people waiting in the queue as to whether P.S.I. Jhalahad carried on propaganda near the Polling Station. Nobodywas willing to give such a statement. Even on the second occasionwhen Mohmad SharifF complained to me about the allegedactivities of P.S.I. Jhala, I had made enquiry from people standingin the queue and at the time nobody had stated to me that P.S.I.Jhala was carrying on election propaganda near the booth."

He expressly stated that "on neither of the two occasions that MohmadSharifF complained to me on Feb. 21, 1967, had he made any allega-tions against the first respondent."

The evidence of P. W. 9, Jamalbhai, who was working as a PollingAgent of the appellant at Saiyadwada Polling Booth, as held by theHigh Court, is not satisfactory. He does not involve the first respon-dent and he filed no written compalint. Police Inspector Ansari hasstated that when he went to Saiyadwada, he asked this witness to givehim a written complaint or to allow him to take down the complaintin writing but the witness declined to give a written complaint orto permit Police Inspector Ansari to reduce the complaint intowriting.

We have gone through the evidence of these witnesses carefullyand we are satisfied that the High Court came to the correct conclusionthat it has not been proved that any canvassing was carried on byP.S.I. Jhala, and that, in any event, there is no proof that this wasat the instance of respondent No. 1 or that respondent No. 1 was inany way responsible for this.

Coming to issue No. 5, there is no doubt that I. K. Radio Co.did some work in connection with the election campaign of respon-dent No. 1 and they prepared a bill amounting to Rs. 3233/17 p. Thisbill was in respect of supply of electric tubes, wires and installationof "star" which is the symbol of Swantantra party. It is commonground that Abdul Karim, brother of the appellant, approached I.K.Radio Co. and made arrangements for carrying on illumination workas the election officer of the first respondent and several other places.He told Keshavlal, a partner in I. K. Radio Co., that instructions forilluminations at other places would be communicated by telephone.Both oral and written instructions were given for this work. The writteninstiuctions were filed in the Court and some of these notes have been

H.L.R. KARAMAJI REHMANJI CHAIPA P. A. T. KUNDrWALA 131

admitted to be in the handwriting of the first respondent himself.The cash book of the firm shows that on February 10, 1967, Rs. 500were received in cash towards electrical work done for Abdul KarimTajuji, and it further shows that on February 16, 1967, another Rs.500/- were received towards electrical work done for Abdul KarimTajuji. Later on, under the first entry the following words werewritten :

"Received in advance from Gujarat Swatantra Party".Under the entry dated February 15, 1967, the following words werewritten later :

"For work done for Gujarat Swatantra Party."

P.W. 2, Keshavlal, partner of the firm I. K. Radio Co., in his evidencestates that both these sums of Rs. 500/- each were paid by Abdul Karimin the first respondent's factory. It is remarkable that at the time ofpreparing the bill the firm did not know in whose name to prepareit. The firm sent Mehtaji to find out and in accordance with the ins-tructions received the bill was prepared in the name of Gujarat SwatanraParty. As apart from Rs. 1000/- the rest of the bill had not been paidthe firm demanded payment from Abdul Karim and on some occasionstheir representative talked to the first respondent on telephone. Itis strange to say that "our employee had gone to the office at Nadiawadand inquired as to in whose name the bill should be made out becauseit is our usual practice to make such inquiries from our customersparticularly when the bill is for a large amount." P. W. 2 admittedthat "at the time when Abdul Karim gave us instructions in the firstinsance he had not told us in whose name we should make entriesin our records or in whose name we should prepare the bill." It appearthat reven the amount of the bill is being disputed.

The High Court also considered the evidence of P. W. 3, Umakantwho was working as Mehtaji with the firm. He merely proves thebill and the entries. Natwarlal, P. W. 4, proves the receipt of Rs. 1000/from Abdul Karim. He states that when Abdul Karim paid him themoney he stated that he would give instructions as to in whose namethe regular entries should be made.

In this state of evidence the High Court was tight in holding thatit cannot be said that the appellant has discharged the burden ofestablishing beyond reasonable doubt that it was the first respondentwho had authorised Abdul Karim to give instructions regarding thework of illumination. Further we agree with the High Court that ithas not been established beyond reasonable doubt that theappellant had authorised Abdul Karim to give these instructions.

In the result the appeal fails and is dismissed with costs.

Appeal Dismissed.

132 KANTI PRASAD JAISHANKAR YAGNIK V. [VOL.PURUSHOTTAMDAS RANCHHODDAS PATEL


KANTI PRASAD JAYSHANKAR YAGNIK

PURUSHOTTAMDAS RANGHODDAS AND OTHERS

(S. M. SIKRI R. S. BAGHAWAT AND K. S. HEGDE, JJ.)

January 24, 1969

Representation of the People Act 1951, s. 123(2) and (3)—Corrupt practice—appeal tovoters to vote in the name of religion and on basis of candidate's caste—that vote for a party wouldbe in favour of cow slaughter and incur divine displeasure—if corrupt practice. Evidence Act, 1872s. 160—Reports of Police Officers made from notes taken down at meetings—if admissible—weightto be attached to such reports.

The appellant's election to the Gujrat Assembly in 1967 was challenged by thedefeated candidate mainly on the ground that one Shambhu Maharaj, addressed publicmeetings in the constituency where he exercised undue influence by threatening divinedispleasure and addressed an appeal on the basis of religion and the candidate's caste;that the appellant was present at the meetings and did not dissociate himself therefrom;and that he had thus committed corrupt practices under s. 123(2) and (3) of the Act.The allegations were sought to be proved with reports compiled by Police Constablesfrom notes made by them at the meetings. The High Court allowed the petition holdingthat certain passages in his speeches whereby Shanbhu Maharaj :

(i) appealed to the Hindu voters not to vote for the Congress Party lest theymight be betraying their religious leader Jagadguru Sankaracharya of Puri whohad fasted for 73 days in the cause of preventing cow slaughter;

(ii) called upon the voters to vote for the Swatantra Party on the basisyof religion and claimed that a direct relationship existed between the slaughterof 33,000 bullocks every day and natural calamities like famine and flood;

(iii) asked his voters to vote for the appellant because he was a Brahmin;and

(iv) stated that if anyone voted for the Congress who were responsible for 24-crores of cows being slaughtered then God would be displeased; contravenedthe provisions of s. 123(2) and (3). Dismissing an appeal to the SupremeCourt,

HELD(1) The reports of the Police Officers were properly used under s. 160 of the Evi-

dence Act, 1872, and were admissible in evidence. Before the written reports could beused under s. 160 of the Evidence Act, two conditions had to be satisfied :

(a) that the witness has no specific recollection of the facts themselves; and(b) the witness says that he is sure that the facts were correctly recorded in the do-cument. It is not necessary that the witness should specifically state that he has nospecific recollection of the facts and that he is sure that the facts were correctly re-corded in the document before the document can be used under s. 160. It isenough if it appears from the evidence of the witness that those conditions are es-tablished.

In the present case the witnesses were giving their testimony in Court after thelapse of 9 months after the speeches were made and it is implict that they could have nospecific recollection of the speeches, especially when they attended and reported manysimilar meetings as part of their duty during the election campaign. It could therefore

E.I.R.] KANTI PRASAD JAISHANKAR YAGNIK V. 133PURUSHOTTAMDAS RANCHHODDAS PATEL

be implied from the circumstances that the conditions of s. 160 were satisfied. Thesecond requirement is also satisfied because, the witnesses made notes on the spot and.made out reports from those notes when the speeches were fresh in their memory. Thereports are, strictly, not substantive evidence as such and could only be used as part ofthe oral evidence on oath. The reports should therefore have been read out in court andnot marked as exhibits. But the practice of making such a report as an exhibit is wellestablished and avoids the useless formal ceremony of reading it out as part of the oralevidence.

Wigmore on Evidence (Third Edition , Vol. I l l pp. 97-98;)

Mylapore Krishnaswami v. Emperor, 32 Mad. 384. 395;

and

Mohan Singh Laxman Singh v. Bhanwarlal Rajmal Nahata, A.I.R. 1964 M. P. 137-146, referred to.

Public Prosecutor v. Venkatarama Naidu, I.L.R. (1944) Mad. 113; approved.

Jagannath v. Emporer, A.I.R. 1932 Lahore 7; & Sodhi Pindi Das v. Emporer,A.I.R. 1938 Lahore 629; disapproved.

(2) While it is true that the exact words spoken by Shambhu Maharaj were nottaken down by the various pjlice constables, the reports had a lemarkable similarityof approach, appeal and attack on the Congress party; and in those circumstances itmust be held that the palice constables correctly reproduced the substance of thespeeches. It is not necessary that the exact words must be reproduced before a speechcan be held to amount to corrupt practice.

(3) (•) (Per Sikri and Bachawat, JJ.) : The first set of statements did not amount tocorrupt practice, because there was no proof that the Jagadguru was the religious headof the majority of the electors in the constituency or that he exercised great influenceon them; it could not therefore be held that an ordinay Hindu voter of the constituencywould feel that he would be committing a sin if he disregarded th« alleged directive of theJagadguru.

Ram Dial v. Sant Lai (1959), Supp. 2 S.G.R. 748 distinguished

{Per Hegde, J. dissenting) : The statement amounted to corrupt practice. What s.123(2) requires is to induce or attempt to induce "an elector"—which means even asingle elector—that he will be rendered an object of spiritual censure if he exercisesor refused to exercise his electoral right in a particular manner. Whether a particularstatement comes within the sub-section or not depends on various factors such as thenature of the statement, the pei son who makes it and the parsons to whom it is addresse d.Therefore, when a respected religious preacher induces or attempts to induce the illi-terate and superstitious voters who form the bulk of the voters that they will become ob-jects of divine displeasure if they do not exercise their franchise in a particular manner,though his statements are not supported by religious books and he himself may not bia religious head of the majority of the electors, the statements may yet amount to a cor-rupt practice in law.

(ii) (per Sikri and Bachawat, JJ.) : There is no bar to a candidate or his supportersappealing to the elctors not to vote for the G ingress in the name of religion, or appealingto them to vote for the Swantantra Party because the people in that party are fond oftheir religion. What s. 123(2) of the Act bars is that a candidates or his agent should ap-peal to the voters to vote or refrain from voting for any person on the ground of hisreligion, that is the religion of the candidate. The statements complained of did notamount to corrupt practice within s. 123(2) proviso (a)(ii), because the law does notplace any bar on describing a party as irreligious or saying that because that politicalparty is irreligious natural calamities had resulted on account of its disregard of reli-gion.

134 KANTI PRASAb JAlSHANKAR YAGNIK tf. [ VOL. XL IPURUSHOTTAMDAS RANCHHO0DAS PATEL

(iii) Asking the voters to vote for the appellant because he was a Brahmin, feltwithin the mischief of s. 123(3).

(Per Hedge, J. dissenting) : When he stated that there should be at least one Brah-min Minister in the Cabinet Shambhu Maharaj was merely giving expression to thefact that communal and regional representations in our political institutions have cometo stay and was not appealing to the voters to vote on the basis of the appellant's caste.

(by theFullCourt) : (iv) As this statement constituted an attempt to induce the elec-tors to believe that they would become objects of divine displeasure if they voted for theCongress and thereby allow cow-slaughter to be continued, and as in circumstances ofthe case, it must be deemed to have been made with the appellant's consent, the appel-lant was guilty of corrupt practice within the meaning of s. 123(2) Proviso (a)(ii),

Narbada Prasad v. Chhagan Lai, 1969 1 S.C.R. 499 followed.CIVIL APPEAL NO. 979 of 1969.S. T. Desai, A. K. Verma, A. L. Barot and J. B. Dadachanji, for the appellant.

Purshottamdas Trikamdas and I. N. Shroff, for the Respondent No. 1.

JUDGMENT

Sikri. J.—This appeal under S.116-A of the Representation of thePeople Act, 1951, is directed against the judgment and order of the HighCourt of Gujarat in Election Peition No. 3 of 1967, setting aside the elec-tion of Kanti Prasad Jayshanker Yagnik, appellant before us, to theGujarat State Assembly from Mehsana State Assembly Constituencyunder s. 123(2), s. 123(3) an-d S.IOO(I) (b) of the Representation of thePeople Act, 1951-hereinafter referred to as the Act.

The High Court held that certain speeches made by ShambhuMaharaj, with the consent of the Appellant, amounted to 'corrupt prac-ces' within the meaning of ss. 123(2) and 123(3) of the Act. Since weare in agreement with some of the conclusions arrived at by the HighCourt it is not necessary to deal with all the speeches made by ShambhuMaharaj, but only with the speeches which the High Court held to amountto 'corrupt practices' within the meaning of ss. 123(2) and 123(3).Before we set out the impugned passages from the speeches we maygive a few preliminary facts.

The poll for the election was taken on February 21, 1967. andthe result of election declared on February 22, 1967. PurshottamdasRanchhodas Patel the petitioner in the High Court andrespondent before us, secured 16159 votes whereas the appellant se-cured 23055 votes. The other candidates, who were respondents to thepetition secured 720 votes, 1017 votes and 454 votes, respectively. Thepetition out of which this appeal arises was filed on April 5.1967, and the petition prayed for the relief that the election o:the appellant be declared void and further prayed that he be declarecduly elected to the Assembly. Various grounds were urged in the petition but we need only deal with the ground that the appellant and hiagents arranged public meetings of Shri Shambhu Maharaj on Februar18, 1967, at various villages which were part of the Mehsana Asserablconstituency, and Shambhu Maharaj made a systematic appeal in hispeeches to a large section of the electors to vote for the appellant OJ

E.L.R.] KANTI PRASAD JAISHANKAR YAGNlK V. 135PURUSHOTTAMDAS RANCHHODDAS PATEL

ground of religion caste and community, and the electors were told thatit would be an irreligious act to vote for the petitioner who was a Congresscandidate as Congress allowed slaughtering of cows and bullocks.It was also alleged that Shri Shambhu Maharaj had used undueinfluence and interfered with the free electoral rights of electors byinducing or attempting to induce them to believe that they wouldbecome object of divine displeasure or spiritual censure by his speeches.

The petitioner sought to prove the speeches by producing member,of the Police Force, as witnesses, who had under instructions of Govern-ment taken down notes of the speeches and reported them to their offi-cers. The High Court relied on the reports of these members of the Po-ke Force and held that their reports were correctly rceorded and fairlyrepresented the speeches made by Shambhu Maharaj. In this connection,the High Court discarded the testimony of the petitioner's witnesses(P.W. s 25 to 33) on the ground that it would be safe not to accept theevidence of partisan witnesses unless it was corroborated by independentwitnesses.

The learned counsel for the appellant, Mr. S. T. Desai, contendsfirst, that the reports made by the members of the Police Force arenot admissible in evidence, and secondly, that in the circumstances of thecase no weight should be attached to these reports. We may first deal withthe question of the admissibility of the evidence before we set out thedeseches.

The learned counsel contends that under the Indian Evidence Actwritten reports of speeches can only be used in two ways; one, to refresha witness's memory under s. 159, and secondly, under s. 160 after satis-fying two conditions, (1) that the witness has no specific recollection ofthe facts themselves, and (2) the witness says that he is sure that the factswere correctly recorded in the document. He urges that in this case thereports were not used to refresh any witness's memory, and that the con-ditions requisite under s. 160 had not been satisfied. It is true that thesereports have not been used for the purpose of refreshing the memory ofany witness under s. 159, but these have been used under s. 160.

We may here set out ss, 159, 160 and 161 of the Indian EvidenceAct.

"S. 159. A witness may, while under examination, refreshhis memoi\ by referring to any writing made by himself at the timeof the transaction concerning which he is questioned, or so soonafterwards that the Court considers it likely that the transaction wasat that time fresh in his memory.

The witness may also refer to anv such writing made by anyother person, and read by the witness within the time aforesaid,if when he read it he knew it to be correct.

136 KANTI PRASAD JAISHANKAR YAGNlK V. [VOIi. 3ELIPURUSHOTTAMDAS RANCHHODDAS PATEL

Whenever a witness may refresh his memory by reference toany document, he may, with the permission of the Court, refer toa copy of such document;

Provided the Court be satisfied that there is sufficient reason forthe non-production of the original.

An expert may refresh his memory by referecne to professionaltreatises.

s.160. A witness may also testify to facts mentioned in any suchdocuments as is mentioned in section 159, although he has no spe-cific recollection of the facts themeslves, if he is sure that the factswere correctly recorded in the document.

s.161. Any writing referred to under the provisions of the twolast preceding sections must be produced and shown to the adverseparty if he requires it; such party may, if he pleases, cross-examinethe witness thereupon."

In this case it is clear that the reports were written by the witnessesthemselves at the time of the speeches or soon afterwards when thespeeches were fresh in their memory. It seems to us that it is not neces-sary that a witness should specifically state that he has no specificrecolletion of the facts and that he is sure that the facts were correctlyrecorded in the document, before the document can be used unders. 160. It is enough if it appears from his evidence that these conditionsare established. In this particular case the witnesses were giving theirtestimony in Court after a lapse of nearly nine months and one wouldhave to have super-human memory to speficially recollect the detailsof the speeches, especially when the witness may have attended andreported many similar meetings as a part of his duty during the electioncampaign. It may be implied in this case that the witnesses had nospecific recollection of the facts.

The second requirement would be satisfied if the Court comes tothe conclusion that the witness was in a position to correctly recordthe facts in the document. Are then the requirements of s. 160 satis-fied in this case ? As an example we may consider the evidence ofP.W. 7, who testified regarding the speech, Ex. J., delivered at villageMotidav. He stated that Shambhu Maharaj addressed the meeting atMotidav at about 5^30 p.m. on February 18, 1967, and the appellantwas present at that meeting ; Magnanlal A. Patel was also present atthe time when Shambhu Maharaj was speaking; while the speecheswere being delivered he was making notes of what was being spoken;in this manner he had written out a report regarding all that had hap-pened at the meeting ; after returning to Mehsana he submitted hisreport of the meeting to P. S. I. Choudhary. He was shown two reportsabout the meetings at Motidav, and he stated ;

"Both these reports, part of "X", are in my handwriting. I wroteout the contents of these two reports at Motidav when the meetings

E.L.R.] KANTI PRASAD J AISHANKAR YAGNIK V. 137PURUSHOTTAMDAS RANCHHODDAS PATEL

were going on." (The two reports put in and marked Ex. "J"collectively).

In cross-examination questions were directed to establishing thatthe reports were not exact reports. He stated that he was taking downall the speeches of Shambhu Maharaj who was speaking at Mediumpace and he wrote whatever Shambhu Maharaj spoke. He furtherstated that he was writing down from momory immediately after thewords were spoken by Shambhu Maharaj. He admitted that "it istrue that every word spoken by Shambhu Maharaj was not taken downby me in my report but what I have taken down was in fact spoken byhim." He, however, added that "it is not true that what I have writtenout in Ex. "J" was not written down at Motidav village.

On this evidence it seems to us that it is quite clear that both theconditions required by s. 160 have been complied with. While thespeech was delivered on February 18, 1967, he was giving his evidenceon November 7, 1967. It is implicit that he had no specific recollec-tion of the speeches, and the second condition is also satisfied becausehe made notes and then made out the report from his notes. It maybe that the counsel would have been well-advised to have read out Ex.'J' rather than produce it as an exhibit, but this is apparently done insome Indian Courts to save time and it is now too late in the day to con-demn such practice, specially as it is a difference without any substance.It is true the report is, strictly speaking, not substantive evidenceas such and the document can only be used as a part of the oralevidence sanctified by the oath.

The position seems to be the same in some States in U.S.A. videWigmore on Evidence (Third Ediction; vol III ; pp. 97-98), extractedbelow :

"1871, 21 Oh. St. 653; "The entry Per Curiam, in Moots v. State inthe book and the oath of the witness supplement each other.The book was really a part of the oath, and therefore admissiblewith it in evidence."

1879, Earl, J., in Howard v. Mchanough77 N. Y. 592 : "After the witness has testified, the memoran-

dum which he has used may be put in evidence, not as provinganything of itself, but as a detailed statement of the items testifiedto by the witness. The manner in which the memorandum insuch a case may be used is very much in the discretion of thetrial judge."

1882, Golley, J., in Mason v. Phelpa,,

48 Mich. 126, n N.W. 413,837 :

"After she had testified that she knew it to be corrcet, shemight have read the entries or repeated themas her evidence. Showing the book was no more than this."

138 KANTI PRASAD JAISHANKAR YAGNIK V. [VOL. XLIPURUSHOTTAMDAS RANCHHODDAS PATEL

1886, Smith G. J., in Brvan v. Moring,

94 N. G. 687 "The memorandum thus supported and identi-fied becomes part of the testimony of the Witness, just as if withoutit the witness had orally repeated the words from memory."

There is much to be said for the modern doctrine in some of theStates in the United States, which "seems to be that such documentsare admissible evidence and that the Court will not go through the uselessceremony of having the witness read a document relating to a fact ofwhich he had no present recollection except that he knew it was correctwhen made." {see McGormick on Evidence ; p. 593 ; footnote 3).

The learned counsel relied on the dissenting judgment of Sankaran-Nair, J., in Mylapore Krishnasami v. Emperor(i) where he observed :

"If therefore the constable has not recorded correctly the wordsused by the speaker but only his impression, then the noteswould be inadmissible under section 160 of the Indian EvidenceAct to prove the words used. They may be admissible to provethe impression created in the mind of the constable, whichis very different."

We are unable to appreciate how this passage assists the appel-lant. If it is proved that the constable did not correctly record thewords, a fortiori one of the conditions of s. 160 has not been satisfiedand the writing cannot be used to prove the words.

The learned counsel also referred to the decision of the MadhyaPradesh High Court in Mohansingh Laxmansingh v. Bhanwarlal RajmalNahata.{2) The High Court seems to have held that on the facts,the statements prepared by the witness in that case did not becomeprimary evidence of the speech said to have been delivered by the speakerand cannot be used as such. Later on the High Court seems to haveheld that the notes were taken down for a particular purpose, to wit,for an election petition, and raised a reasonable suspicion that whatthe witness recorded was not a correct record of the speech. If theCourt meant to say that Ex-P-12 (the notes in that case) could notbe used under s. 160 we must hold that the case was wrongly decided,but if the High Court meant to say that there was suspicion that thespeech was not a correct record then nothing can be said against thedecision on this point.

Blacker, J., in Sodhi Pindi Das v. Emperor (3) held, replying onJagan Nath v. Emperor (4) that it is essential that the witness must stateorally before the Court that although he had no specific recollectionof the facts themselves, he was sure that the facts were correctly recorded

(1) 32. Mad 384; 395

(2) A. I. R. (2164) M. P. 138; 146.

(3) A. I, R. (1938J Lah. 629(4) A. I. R. (1932) Lah. 7.

.3UR.] KANTI PRASAD JAISHANKAR YAGNIK V. 139PURUSHOTTAMDAS RANCHHODDAS PATEL

in the document. We are unable, to agree with this interpretation.As we have already stated, if the requisite conditions can be satisfiedfrom the record, the lack of an express declaration by witness doesnot make the evidence inadmissible.

In Public Prosecutor v. Venkatram Naidu Mockett, J., rightly dissentedfrom the judgment of the Labour High Court in Sodhi Pindi Das v.Emperor. (3)

In England the Law of Evidence has been changed and many ofsuch documents made directly admissible (see Phison on Evidence, TenthEdition, Gh.22).

It seems to us that on the facts the report, Ex. J., was properly usedunder s. 160 of the Indian Evidence Act. The question of the weightto be attached to the various reports of the speeches is another matterand we wil) deal with the question presently.

The High Court has found three speeches to consitute "Corruptpractices". The following three passages in Ex. 'J'—speech deliveredby Shambhu Maharaj at village Motidav on February 18, 1967—werecomplained of by the learned counsel in the High Court :

"(1) I will say one fact and that is that at present the Congressis stating everywhere nobody else will make the people happyexcept themselves. But I say that apart from God no otherGovernment either Congress or Swatantra Party can makepeople happy. An Agriculturist may have one bigha of land(about half an acre) and he might have sown wheat butif there is heavy frost or locusts or if one bullock worth Rs.1,000 dies, Government may give him money, may give himbullock, but I do not think that man can be happy ; but naturecan make him happy. Today in our India, everyday 33,000cows are being slaughtered throughout the country. Tento eleven lacs of bullocks are being slaughtered during theyear and in Ahmadabad Town alone 10,000 bullocks areslaughtered.

(2) This unworthy Congress Government has cut the nose of HinduSociety. Sant Fathesingh, the religious preceptor of the Sikhs,fasted for 10 days; whereas Jagadguru fasted for 73 days, stillthis Government is not even thinking of opening negotiations.This unworthy Government accepted the contention of theSikhs after the fast of 10 days; whereas in spite of the penanceundertaken by Jagadguru by his fast of 73 days, the Govern-ment has not considered any topic in this connection. YourJagadguru had full confidence that, except for ten croreswho are the followers of the Congress, twenty to thirty croresfrom the Hindu Society would help him.

(1) I. L. R. (1944) mad 113.

140 KANTI PRASAD JAISHANKAR YAGNIK V. [VOL X UPURUSHOTTAMDAS RANGHHODDAS PATEL

(3) For example, if any Maulvi from Mucca had fasted for 73 daysand had given such a mandate to our muslim brothers, thenwould they have voted for the Congress. That you haveto consider. In the same manner, if Fateh Singh, the reli-gious leader of Sikhs, had fasted for 73 days, would they (Sikhs)have voted for the congress ? In the same manner if there,were Parsis or Christians, then they also would vote for theirreligious preceptor. This is what you have to consider. TheMandate of your religious preceptor is that do not cast yourvote for anyone, the mandate of the Jagadguru is that letcows be slaughtered, let bullocks be slaughtered. In GujaratState though there is ban, still bullocks are allowed to beslaugthered, the bullcoks which give every individual happinessthroughout the life. This Government asks for votes in thename of the bullocks (the Congress Party election symbolbeing a pair of bullocks with yoke on) and I am, therefore,having an experience. Do not vote for the Congress andby putting the mark of vote on the symbol of bullocks amountsto cutting the throat of a bullock by a knife symbolized byyour vote. It is my mandate that you should not do thisdastardly Act."

The High Court did not find the first two passages to constitute"corrupt practices". The third passage was held by the High Courtto constitute "corrupt practice" on the ground that "though thereis no proof that Shankaracharya had any religious following as such inthis particular constituency, there is no mandate in writing from theJagadguru and there is no direct address to his followers the Jagad-guru, Shambhu Maharaj has clearly appealed to the Hindu voters assuch not to vote for the Congress Party lest they might be betrayingtheir religious leader particularly when he had fasted for 73 days in acause which had some basis in the religious beliefs of the Hindus."

We are unable to agree with the High Court in this respect. Thedecision of this Court in Ram Dial v. Sunt Lai (6) is clearly distingui-shable because there it was held by this Court that Shri Sat Guru yieldedgreat local influence among the large number of Namdharis who werevoters in the Sirsa constituency. In the present case there is no proofthat Jagadguru Shankacharya of Puri was the religious head of themajority of the electors in this constitutency or exercised great influenceon them. It cannot be held on the facts of this case that an ordinaryHindu voter in this constituency would feel that he would be com-mitting a sin if he disregarded the alleged directive of the Jagadguru.

One other ground given by the High Court is that "there can beno doubt that in this passage (passage No. 3) Shambhu Maharaj hadput forward an appeal to the electors not to vote for the Congress Partyin the name of the relgion." In our opinion, there is no bar to a candidate

(1) (i959) Supp. & S.G.R. 748

»,IrtR.]. . I KANTI PRASAD JAISHANKAR YAGNIK V. 141PURUSHOTTAMDAS RANCHHODDAS PATEL

or his supporters appealing to the electors not to vote for the Congressin the name of leligion. What s. 123(3) bars is that an appeal by acandidate or his agent or any other person with the consent of thecandidate or his Election agent to vote or refrain from voting forany person on the ground of his religion, i.e., the religion of the candidate.

The following four passages in Ex. K, a speech delivered by Shambhu]Vlaharaj at Kherwa after midnight of February 18, 1967, were objectedto :

(1) The Congress says that it has brought happiness and willgive happiness in future ; but even a father cannot give hap-piness to his son, nor can son give happiness to his fatherGiving happiness rests in the hands of God. But God giveshappiness where there is religion. He does not give happinessto the irreligious.

(2) Formerly there were no famines. Possibly once in 100 yearsthere might be one famine. As against that nowadays everyyear there is some natural calamity like a famine. Eitherthere is no rain or there is frost or there is visitation of locustor there is some disease in the crops and some calamity of theother is constantly visiting us. The reason for this is thatCongress permits slaughter of 33,000 bullocks everyday.When slaughter of cows is banned, bullocks are allowed tobe slaughtered. In Gujarat 12,000 bullocks are being slau-ghtered.

(3) Nobody would sit till 12-30 at night to listen to any talks bythe Congress-walas. But I have come to tell the public,which is fond of its religion, to elect the Swatantra Party, sothat the slaughter of bullocks might be stopped and all peoplewho are fond of their religion are also keeping away till12—30 at night."

(4) Vijaykumarbhai has gone. A Brahmin minister must bethere and hence Kantilalbhai is goingto be a minister, hencevote for him. We must have at least one minister who is aBrahmin. Hence vote for Kantilalbhai. At the same timevote for Bhaikaka and H. M. Patel by putting your votingmark on the star."

The High Court held the first two passages read together to con-stitute "Corrupt practice"on the ground that "they amounted to inter-ference with the free exercise of the elctoral right of the voters by holdingout threats of divine displeasure and spiritual censure." The HighCourt held that in these passages there was a direct causal relationshipbetween the cow slaughter and the natural calamities and this clearlyshowed that the voters were told that if they did not want such naturalcalamities to visit them they should not vote for the Congress Partyand thus avoid the divine displeasure which was responsible for thesenatural calamities. It seems to us that this is not a fair reading of

H2 KANTI PRASAD JAISBANKAR YAGNIK U. [VOE~ XX.FPURUSHOTTAMDAS RANCHHODDAS PATEL

these two passages. Cow slaughter is not mentioned in these passagesexcept to say that cow slaughter is banned in Gujarat. The causalrelationship, if any, exists between slaughter of 33,000 bullocks everyday and natural calamities. This, in our view, cannot amount to con-stitute "corrupt practice" within s. 123(2) proviso (a)(ii). The lawdoes not place any bar on describing a party as irreligious or sayingthat because that political party is irreligious natural calamities haveresulted because of its disregard of religion.

We do not find anything objectionable in the third passage becausehere again it is only an appeal to elect the Swatantra party becausethe people in that party are fond of their religion.

The last passage in Ex. 'K' clearly fell within the mischief of s.*23 (3)' The High Court in this connection observed :

"The reference to Vijaykumarbhai is to Vijaykumar Trivedi,who was a Brahmin and was a minister in the Gujarat Governmenttill March 1967, and when this speech was delivered. Thereference to Kantilalbhai is to the first respondent, who is also aBrahmin and the reference to Bhaikaka is to Bhailaklbhai Patel,leader of the Swatantra Party and H.M. Patel is another leaderof the Swatantra Party and what Shambhu Maharaj was askingin this connection was that it was necessary that there should beone Brahmin in the Gujarat State Ministry and if one Brahmin,Vijaykumar Trivedi, was to leave the ministry, another BrahminMinister, viz-, the first respondent should be first elected so that hemight get a seat in the legislature and thereafter becomea minister, and thus it is clear that in the passage, Shambhu Maharajwas asking the People to vote for the first respondent because he wasa Brahmin by caste. It has been stated as a categorical statementthat there must be at least one Minister, who was a Brahmin.Under S. 123(3) of the Act, an appeal by any person to vote forany person on the ground of his caste or community is a corruptpractice, provided, of course, that such person has made suchappeal with the consent of the candidate concerned. I will cometo the question of consent a bit later on, but it is clear that in thisparticular passage an appeal was being made to the electors tocast their votes for the first respondent because the first respondentis a Brahmin and also because of the promise, which had beenput forward in this passage, that there should be at least oneBrahmin Minister in the Ministry. I may point out that so faras the Petitioner is concerned, the petitioner is a Patidar and it isin the context of this background that an appeal is made in thename of caste of the first respondent and the people are asked tovote for the first respondent because he was a Brahmin."

It seems to us that the High Court is correct in drawing the inferencethat Shambhu Maharaj was asking his voters to vote for the first res-pondent because he was a Brahmin.

E.i .R. ] KANTI PRASAD JAISHANKAR YAONIK V, 143PURUSHOTTAMDAS RANCHHODDAS PATEL

Shambhu Maharaj is reported to have adopted the same themein Ex. 'P ' when he said that ''Vijaykumarbhai had gone out and Kanti-lalbhai is going to be the Minister."

Following three passages were objected in Ex. T ' , a speech madeat Dangarwa :

"(i) The time of election has arrived. The Congress Party iscarrying on it? propaganda desparatelv but what I want tosay is that if Swatantra Party comes into power then it willnot turn your roof-tiles into gold. Only Gcd gives happiness.There is frost, there is rust in the crops, there is excess of rains,there is a famine all these are due to the working of God.Every day twenty four crores of cows are being slaughtered,then how God will tolerate that and how will you get happiness?

(2) Look at the Congressmen who are destroyers of Hindu Religion*

(3) Every year we get one or the other natural calamity like ex-cessive rain, or failure of rain or earthquake. This happensbecause they ask for votes in the name of live bullocks, whereas they get the bullocks slaughtered. The symbol should beof butcher and except ruthless and hard-hearted Congressnobody else will get bullocks slaughtered."

It seems to us that the first and the third passages, read together,constitute an attempt to induce the electors fo believe that they wouldbecome oojects of divine displeasure if they voted for the Congressand thereby allowed cow slaughter to be continued.

Hidayatullah, C. J., in Narbada Prasad v. Chhagan lal obserevd :

"It is not necessary to enlarge upon the fact that cow is vene-rated in our country by the vast majority of the People and thatthey believe not only in its utility but its holiness. It is also believedthat one of the cardinal sins is that of gohatya. Therefore, it isquite obvious that to remind the voters that they would be com-mitting the sin of gohatya would be to remind them that they wouldbe objects of divine displeasure or spiritual censure."

In the first and third passages of Ex. 'P', therefore, there is clearimplication that if you vote for the Congress who are responsible for 24crores of cows being slaughtered then God will be displeased: in otherwords there will be divine displeasure and the voters will notget happiness.

The second passage does not seem to be objectionable and theHigh Court has not found it to be so.

The learned counsel for the appellant contends that very littleweight should be attached to the speeches because the reports werenot taken in shorthand but from notes and it is very difficult to be

(7) Civil Appeal No. 2 of 1968, decided on July 30, 1968.

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certain of what were the exact words used by Shambhu Maharaj. TheHigh Court examined the speeches, Exs. T , 'J', 'K', 'B', and 'P', in con-nection with this question and came to the conclusion that commontopics, common language and common approach existed in all thespeeches, and this indicated that Shambhu Maharaj did deliver thespeeches. Further, according to the High Court, the reports weresubmitted by different constables at different times and to differentPolice Stations, and the learned judge found that there could possiblybe no consultation between the various police constables who took downthe statements, and that the totality of the effect emerging from differentreports made the reports credible.

We agree with the conclusions arrived at by the High Court. Itis true that the exact words were not taken down by the various Policeconstables, but the similarity of approach, appeal and the attack onthe Congress is remarkable and in these co-circumstances, it must beheld that the Police constables correctly reproduced the substanceof the speeches. It is not necessary in these cases that exact words mustbe reproduced before a speech can be held to amount to "corruptpractice."

The learned counsel fuither contends that the appellant's consentto these speeches had not been proved. We agree with the High Courtthat there is no force in this contention. The High Court observed ;

"As shown in the handbill setting out the programme the manu-script of which was written out by the first respondent himselfin consultation with Maganlal Abram Patel, thi? tour programmehad been arranged to bring success to the first respondent in hiselection contest. Shambhu Maharaj was touring these villages speci-fically so that the first respondent might succeed in his contest. Fur-ther it would be natural on the part of the first respondent to takeadvantage of being seen in the presence of a good speaker likeShambhu Maharaj. Some of the meetings of Shambhu Maharajappear to have been well-attended. It is highly probable thatthe first respondent accompanied Shambhu Maharaj. To mymind, therefore, it is clear that the first respondent had accompaniedShambhu Maharaj and was present in each of the meetings atMoti-Dav, Kherwa and Dangerwa when Shambhu Maharajdelivered speeches at these three villages. .In.the instant case also, the first respondent, according to the conclusionthat I have reached, was present at the meetings which wereaddressed by Shambhu Maharaj at Moti-Dav, Dangerwa andKherwa and in each of these three meetings at least, accordingto the conclusions reached by me, Shambhu Maharaj in thecourse of his speeches had committed breaches of the provisionsof s. 1231 2) and s. 123(3) °f t n e Act under these cir-cumstances, it is clear to my mind, judging by the manner inwhich the first respondent was touring with Sambhu Maharaj,the manner in which tour programme was arranged and judging

E.L.R.] KANTI PRASAD JA1SHANKAR YAGKIK V. 145PURUSHOTTAMDAS RANCHHODDAS PATEL

from the fact that this tour was specially arranged to bring successto the first respondent, that the first respondent did consent to thecommission of the breaches of the proviso of s. 123(2) and s. 123(3)of the Act by Shambhu Maharaj."

We may add that many police witnesses depose that the appellantwas present and it had not been shown to us that he dissociated himselfwith any of the remarks in the speeches.

In the result the appeal fails and is dismissed with costs.

JUDGMENT

HEGDE J.—-I agree that the statements contained in Exh. P amountto a corrupt practice under s. 123(2) of the Representation of the PeopleAct and also agree that those statements were made with the consentof the returned candidate. Hence this appeal has to be dismissedbut I am unable to agree that before a statement can be consideredas an attempt to induce an elector to believe that he will be renderedan object of spiritual censure if he acts in a particular manner thatstatement must have been made by a person who is a religious headof the majority of the electors in the constituency concerned. What s.123(2) requires is to induce 01 attempt to induce "an electoi"—whichmeans even a single elector—that he will be rendered an object ofspiritual censure if he exercises or refuses to exercise his electoralright in a particular manner. But undoubtedly the inducement oran attempt to induce complained of should be such as to amount to<a direct or indirect interference or attempt to interfere with the freeexercise of electoral right. Whether a particular statement comeswithin s. 123(2) or not depends on various factors such as the natureof the statement, the person who made it and the persons to whom.it is addressed. No doubt the nature of the statements in question isof utmost importance. They may exploit well accepted religiousbeliefs but that is not the only thing that comes within the mischief!"of s. 123(2). A respected religious preacher may induce or attemptto induce the illiterate and superstitious voters who form the bulk ofour voters that they will become the object of divine displeasure if theydo not exercise their franchise in a particular manner. His statementsmay not have any support from the religious books but yet they mayamount to a corrupt practice in law. I see no justification to cut down.the scope of s. 123(2). It will not be in public interest to do so.

I am unable to agree that the appeal to vote (in Exh. K) for theappellant on the ground that he is likely to be a Minister as accordingto Shambhu Maharaj there should be at least one Brahmin Ministerin the Cabinet is an appeal to vote on the ground of the appellant'scaste. There is no use hiding the fact that communal and regional:representations in all our political institutions have become a must.Shambhu Maharaj merely gave expression t<: that fact from public

10—4 Elec. Com./71

146 SHEODHAN SINGH V. MOHAN LAL GAUTAM . [VOL. XLI

platforms. One may not appreciate his campaigning for that pointof view but I am unable to agree that his statements in that regardamount to corrupt practice under s. 123(3). Those statements cannotbe considered as an appeal to vote on the basis of the appellant's caste.The caste of the appellant has come into the picture incidentally.

Appeal Dismissed.


SHEODHAN SINGH

V.

MOHAN LAL GAUTAM

^S. M. SiKtu, R. S. BACHAWAT AND K. S. HEGDE, JJ.)

January 24, 1969

Election Petition—Whether abates on dissoultion of legislature—Presentation by Advor. ZXK Sclerk in petitioner's presence—If proper presentation.

The respondent's election to the U. P. Legislative Assembly in February, 1967,was challenged by the appellant in an election petition on various grounds includingallegations of corrupt practices. The respondent raised two preliminary objections be-fore the High Court, namely : (i) the petition was not maintainable as it was not pro-perly presented; and (ii) the petition ceased to be maintainable as a result of dissolutionof the U. P. Legislative Assembly by virtue of the President's proclamation of April 15,1968, under article 356(1) of the Constitution issued during the pendency of the ele-tion petition before the High Court. These preliminary objections were rejected by theHigh Court, which also dismissed the petition on the merits. On an appeal to theSupreme Court,

HELD:—(i) The High Court was right in holding that the requirements of lawas to the presentation of a petition were fully satis fied as the election petition was pre-sented to the Registry by an Advocate's Clerk in the presence of the petitioner. Thepetitioner, in substance though not in form, himself presented the petition.

(ii) There was no force in the contention that the petition had become infructuousIn view of the dissolution of the Legislative Assembly.

The question for consideration was not only the validity of the election but also theallegations of corrupt practices which if established, would involve the respondentincurring certain electoral disqualifications.

It is clear from the provisions of Chapters III and IV of Part VI of the Representa-tion of the People Act, 1951, that the contest in an election petition is really between theconstituency and the person or persons complained of. Once the machinery of the Act

moved by a candidate or an elector, the carriage of the case does not entirely rest withthe petitioner. The reason for these provisions is to ensure to the extent possible that thepersons who offend the election law, are not allowed to avoid the consequences of theirmisdeeds.

E.L.R.] SHEODHAN SINGH"V. MOHAN LAL GAUTAM 147

The law relating to withdrawal and abatment of election petitions is exhaustivelydealt with in Chapter IV of Part VI of the Act. In deciding whether a petition has abat-ed or not it was not possible to travel outside the provisions contained in that Chapter.The Act does not provide for the abatement of an election petition either when the re-turned candidate whose election is challenged resigns or when the assembly is dissolved.

Carter and Another v. Mills, 9. Common Pleas p. 117; distinguished.Ghasi Ram v. Dal Singh and another (1968) 3 S.C.R. 102; followed.

(iii) On the facts, the High Court had rightly dismissed the petition.

CIVIL APPEAL NO. 1564 OF 1968Danial Latifi, S. J. Hyder, Rajindra Singh and M. I. Khowaja, for the appellant.Veda Vyasa, K, K. Jain, H. K. Puri, G. N. Dikshit, R. N. Dikshit, S. N. Sinha,K. C. Sharma and M. K. Garg, for the respondent.

JUDGMENT

HEGDE, J.—This appeal under s. 116A of the Representation ofthe People Act 1951 arises from the decision in Election Petition. No.40 of 1967 on the fi!e of the High Court of Judicature at Allahabad.In that petition the appellant challenged the election of the respondentto the U. P. Legislative Assembly from Iglas Constituency in the generalelection held in February, 1967. In that election the appellant, therespondent and four others contested. The respondent secured 10,605votes more than the appellant. Other candidates secured less votesthan the appellant. The appellant challenged the electior of therespondent on verious grounds, most of which were given up eitherin the trial court or in this Court. The High Court dismissed the elec-ion petition. Against that order the appellant has come up in appeal.

Before going into the merits of the appeal, it is necessary to dealwith the preliminary objections to the appeal, taken by the respondent.The first objection taken was that the petition was not maintainableas it was not properly presented. The second objection was that thepetition ceased to be maintainable as a result of the dissolution of theU. P. Legislative Assembly as per President's Proclamation of April15, 1968 under Ait. 356(1) of the Constitution. That Proclamationwas issued during the pendency of this election petition before the HighCourt.

The High Court rejected both those contentions but those conten'tions were again pressed for acceptance at the hearing of this appeal.

The High Court has found as a fact that the election petition waspresented to the registry by an advocate's clerk in the immediate pre-sence of the petitioner. Therefore, in substance though not in form,it was presented by the petitioner himself. Hence the requirement ofthe Jaw was fully satisfied.

We are unable to accept the contention of Mr. Veda Vyasa, learnedCounsel for the respondent that the petition must be held to have becomeinfructuous in view of the dissolution of the assembly. In this proceeding

148 SHEODHAN SINGH -V. MOHAN LAL GAUTAM [VOL. XLt

we aie considering the validity of the election of the respondent and notwhether he is continuing as a member. If the contention of the appe-llant that the respondent was guilty of corrupt practices during the electionis found to be true then not only his election will be declaredvoid, he is also liable to incur certain electoral disqualifications. Thepurity of elections is of utmost importance in a demorcratic set up.No one can be allowed to corrupt the course of an election and getaway with it either by resigning his membership or because of the for-uitous circumstance of the assembly having been dissolved. Thepublic are interacted in seeing that those who had corrupted the courseof an election are dealt within accordance with law. That purposewill stand defeated if we accept the' contention of Mr. Veda Vyas.

The election petitions in this country are solely regulated byStatutory provisions. Hence unless it is shown that some statutoryprovision directly or by necessary implication prescribes that the pendingelection petitions stand abated because of the dissolution of the Assembly,the contention of the respondent cannot be accepted.

Section 80 provides that no election shall be called in questionexcept by an election petition presented in accordance with the provisionsof the Act. Section 81(1) says that an election, petition calling inquestion any election may be presented on one or more of the groundsspecified in sub-s.(i) of s. 100 and S.IOI to the High Court, by anycandidate at such election or any elector. Section 84 prescribes thata petitioner may, in addition to claiming a declaration that the electionof all or any of the returned candidate is void, claim a further declarationthat he himself or any other candidate has been duly elected. ChapterIII of Part VI deals with the trial of election petitions. Section 86(1)prescribes that the High Court shall dismiss an election petition whichdoes not comply with the provisions of s. 81 or s. 82 or s. 117. Section87(1) says that subject to the provisions of the Act and of any rulesmade thereunder, every election petition shall be tried by the HighCourt, as nearly as may be, in accordance with the procedure applicableunder the Code of Civil Procedure, 1908 to the trial of suits. Section97(1) provides for filing recrimination.

Section 98 reads :

"At the conclusion of the trial of an election petition the High Courtshall make an order :

(a) dismissing the election petition ; or(b) declaring the election of all or any of the returned candidates

to be void ; or(c) declaring the election of all or any of the returned candidates

to be void and the petitioner or any other candidate to havebeen duly elected."

Section 99(1) is important for our present purpose. It says :

"At the time of making an order under s. 98 the High Court shallalso make an order

SHEO&HAN SINGH V. MOHAN EAL ©AUTAM 149

(a) where any charge is made in the petition of any corrupt practicehaving been committed at the election, recording—

(1) a finding whether any corrupt practice has or has notbeen proved to have been committed at the election and the natureof that corrupt practice ; and

(ii) the names of all persons, if any, who have been provedat the trial to have been guilty of any corrupt practice and thenature of that practice "

(emphasis supplied)

Chapter IV of Part VI deals with withdrawal and abatement of electionpetitions. Section 109 stipulates that an election petition may be with-drawn only by the leave of the High Court and where an applicationfor withdrawal is made notice thereof fixing a date for the hearingof the application shall be given to all other parties to the petition andshall be published in the official gazette. Section 112 says :

"(1) An election petition shall abate only on the death of a solepetitioner or of the survivor of several petitioners.

(2) Where an election petition abates under sub-s. (1) the HighCourt shall cause the fact to be published in such manner as itmay deem fit.

(3) Any person who might himself have been a petitioner maywithin fourteen days of such publication, apply to be substitutedas petitioner and upon compliance with the conditions, if any, asto security, shall be entitled to be so substituted and to continuethe proceedings upon such terms as the High Court may deemfit."

Section 116 reads :"If before the conclusion of the trial of an election petition

the sole respondent dies or gives notice that he does not intend tooppose the petition or any of the respondents dies or gives suchnotice and there is no other respondent who is opposing the petition,the High Court shall cause notice of such event to be publishedin the Official Gazette, and thereupon any person who mighthave been a petitioner may, within fourteen days of such publica-tion, apply to be substituted in place of such respondent to opposethe petition, and shall be entitled to continue the proceedings uponsuch terms as the High Court may think fit."

From the above provisions it is seen that in an election petition,the contest is really between the constituency on the one side and theperson or persons complained of on the other. Once the machineryof the Act is moved by a candidate or an elector, the carriage of thecase does not entirely rest with the petitioner. The reason for theelaborate provisions noticed by us earlier is to ensure to the extentpossible that the persons who offend the election law are not allowedto avoid the consequence of their misdeeds.

150 SHEODHAN SINGH V. JJOHAN LAL GAUTAM [VOL. XU

The law relating to withdrawal and abatement of election petitionsis exhaustively dealt with in Chapter IV of Part VI of the Act. Indeciding whether a petition has abated or not we cannot travel outsidethe provision contained in that Chapter. There is no provision pro-viding for the dropping of an election petition for any reason other thanthose mentioned therein. The Act does not provide for the abate-ment of an election petition either when the returned candidate whoseelection is challenged resigns or when the assembly is dissolved. Asthe law relating to abatements and withdrawal is exhaustively dealtwith in the Act itself no reliance can be placed on the provisions ofthe Civil Procedure Code nor did the learned Counsel for the respondentbring to our notice any provision in the Civil Procedure Code underwhich the election petition can be held to have abated.

In support of his contention that the petition has abated great dealof reliance was placed by Mr. Veda Vyas on the decision in Carteand am vs. Mills (i). Therein a pending election petition was allowedto be withdrawn on the dissolution of the Parliament. In doing soColaridge, C. J. Observed thus :

"I am, of opinion that this application should be granted.The Queen having been pleased to dissolve Parliament, of whichfact the Court must take judicial cognizance, a case has arisennot expressly provided for in the Act ; and under these circum-stances we must guide our proceedings by the old parliamentarypractice on the subject. It is common knowledge, that accordingto the old practice the petition abated or dropped in such a case.We think the result is the same now, and that we therefore haveauthority, and ought to make an order for the return of the deposit."

Keating, J., the other judge agreed with the learned Chief Justice. Wedo not know the facts of that case. It is not known whether theelection of the returned candidate was challenged on the ground ofany corrupt practice. The decision in that case rested solely on 'theold parliamentary practice on the subject'. We have no such practicein this country. That being so that decision is of no assistance for ourpresent purpose. In Ghasi Ram vs. Dal Singh and others, (2) this Court pro-ceeded on the basis that the dissolution of the assembly does not put anend to the election petition. For the reasons already mentioned wethink that the High Court was right in its conclusion that the electionpetition had not abated.

This takes us to the merits of the case. As mentioned earlier theelection of the respondent was challenged on numerous grounds. Onthe pleadings as many as 10 issues were raised. At present we areconcerned only with issues Nos. 7, 8 and 10.

The only question arising under issue No. 7 is whether Exh. 7,was got printed and published by the respondent. So far as the questionof getting it prepared and printed is concerned, the evidence principally

(1), 9, Common Pieas P. 117.

(2) A.I.R. 1968 S.C. 1191.

E.L R.] SHEODHAN SINGH fl. MOHAN LAL ' GAUTAM 151

relied on is that of P.W. 16 Mohan Singh.-' We are in agreement withthe High Court that Mohan Singh is a wholly unreliable witness.According to him he was a signatory to that pamphlet and he took activepart in getting it printed which means that he was a party to thepublication of false statements. He appears to have been on the sideof the respondent at one stage and walked over to the side of the appel-lant at a later stage, not uncommon during election time. His evi-dence does not carry conviction. On his own showing he can be astooge.

In support of the evidence of P.W. 16 reliance was placed onExh. D-23, one of the vouchers submitted by the respondent along withhis return of election expenses. That voucher relates to the printingof two pamphlets on behalf of the respondent. It shows that one ofthe pamphlets mentioned therein was printed on both sides of the paper.Exh. 7 is also printed on both sides of a paper. From that we are askedto conclude that the voucher in question refers to printing of pamphletslike Exh. 7. Such an inference would be a far fetched one. Accord-ing to the respondent D-23 relates to pamphlets similar to Exh. A-154and A-155. The High Court has not accepted that contention. Thebasis on which the High Court rejected that contention does not appearto us to be correct. It is not necessary to go into that question as weare of opinion that there is no satisfactory evidence to show that anyentry in Exh. D-23 relates to pamphlets similar to Exh. 7. We arealso unable to attach any weight to Exh. 3, the complaint given by theappellant to the Returning Officer. The appellant has considerableexperience of filing election petitions. This was the third election peti-tion filed by him. Even as the election was going on he appearsto have been preparing fdr the election petition. The evidence of P.W.7, Narayan Singh Bodh throws a great deal of light on this aspect.

Large number of witnesses were examined to show that eitherrespondent himself distributed pamphlets like Exh. 7 or he got themdistributed through others. Their evidence has been considered bythe High Court in detail and rejected. We have been taken throughthat evidence and we were not impressed by the same. We aresatisfied that the High Court has correctly assessed that evidence.

Generally, this Court accepts the findings of fact arrived at bythe High Court. Election petitions are tried by experienced judgesof the High Court. They had the benefit of observing the witnesseswhen they gave evidence. Hence their appreciation of evidence isentitled to great weight. We have not been shown any good reasonfor departing from that rule.

Now coming to issue No. 8 which relates to the complaint of theappellant that the respondent, his agents and workers had hired severalvehicles for conveyance of the voters to and from the polling stations.In the petition, particulars of as many as twelve vehicles which weresaid to have been used for conveying voters were given. But the appel-lant's learned Counsel confined his arguments to three vehicles onlyi.e. Truck No. USK 503, Bus No. RJL 9729 and a Tractor.

3 52 SHEODHAN SINGH V. MOHAN LAL GAUTAM [VOL. XLI

So far as Truck No. USK 503 is concerned, the witnesses who were•examined are P.Ws. 37, 40, 41, 45 and 48. Among them the mostimportant witness is P.W. 45 Sukhbir Singh. He claims to haveworked for the respondent and transported voters to the polling stationin the truck in question. Further he deposed that he hired that truckfrom "Achaltar truck operators' Union" Hathras. It is now definitelyestablished and that evidence was not challenged before us that inHathras there was no concern bearing that name. Hence it is obviousthat the evidence of this witness is wholly false. We are unable toaccept the contention of Mr. Latin, learned Counsel for the appellantthat the name of concern in question was wrongly mentioned by thewitness due to some confusion. The fact that P.W. 45 at one stageworked for the respondent is not of much significance. Changingsides during election is nothing unusual. Once the evidence of P.W.45 is proved to be false very little basis remains for the evidence of otherwitnesses who spoke to the user of a truck in question. It is commonknowledge that in the trial of election petitions there would be nodearth of witnesses. The factious spirit generated during electionprojects itself during the trial of election petition that follows. Muchvalue cannot be attached to the complaint given by the appellant's agentto the polling officer (Exh. 18). That document has several suspiciousfeatures which were noticed by the High Court.

Now coming to the tractor, its registration No. was not spoken toby any witness. There is no evidence about its hiring. The witnesseswho speak to its user are P.Ws. 33 and 34. The evidence of P.W. 33is extremely vague. He deposed that a worker from the villages to theelection booth is unable to give the details of the tractor. P.W.34 is an omnibus witness. The evidence relating to owner of that tractoris conflicting. The evidence of P.Ws. 33 and 34 does not carry con-viction. It was rightly not relied on by the High Court.

Now coming to the hiring of Bus RJL 9729, according to the peti-tion that bus was owned by one Babu Lai of Jaipur. That Babu Laihas not been examined. The evidence of P.Ws. 30, 31 and 32 who soeakto the conveyance of the voters in that Bus to the polling stations is farfrom satisfactory. Their evidence did not commend itself to the trialcourt. We agree with the High Court that it is unsafe to rely on theirevidence.

This takes us to issue No. 10 which relates to the complaint of theappellant that the election expenses incurred by the respondent hadexceeded the prescribed limit. In this connection various items ofexpenses said to have been omitted in the return were particularisedin the petition but most of them were not pressed at the hearing.

The evidence relating to the expenses said to have been incurredin procuring and hiring vehicles for conveying voters to the pollingbooths has to be rejected in view of our earlier findings. Large numberof witnesses were examined to show that considerable quantity of wheat,atta, sugar and ghee had been purchased by the respondent for feeding

E.L.R.] D.R. GURUSHANTAPPA U. ABDUL KHUDDUS ANWAR 153

his workers and the expenses incurred for that purpose had not beenincluded in the return of expenses. Their evidence has not been beli-eved by the trial court. We have been taken through the evidenceand we do not think it is credit worthy nor are we able to place anyreliance on the documents produced in that connection.

In the result this appeal fails and the same is dismissed with costs.

Appeal Dismissed.

(IN THE SUPREME COURT OF INDIA)

D. R. GURUSHANTAPPA

V.

ABDUL KHUDDUS ANWAR & ORS.

(J. M. SHELAT, V. BHARGAVA AND C. A, VAIDIALINGAM, JJ.)

January 27, 1969

Representation of the People Act, 1951, s. \o—elected cindldate employed at the releva it timein a company owned by Government—If disqualified—Constitution of India Arts. 102(1) and 191(1)—Scope of.

The appellant who was an unsuccessful can lid^te, chiUenged the first respondent's•election to the Mysore Legislative Assembly.

The first respondent was appointed in an undertaking for the manufacture of steelstarted and managed by the State Government, as its own concern. Later a company,the Mysore Iron & Steel Works, Ltd., was registered and it took over the undertaking.All the shares in the company were held by the Government though some were heldin the name of its officers. The Directors of the Company were appointed by the Go-vernment. With regard toihe general working of the company, Government had thepower to issue directions to the Directors which were to be carried out by them. Whenthe concern was taken over from the Government by the Cjmpany> the services of thefirst respondent were continued by the company and on the date of scrutiny of nomina-tion papers, he was employed as a Superintendent in the Steel Works. It was contendedfor the appellant-petitioner that the first respondent was thus a government servant onthe material date or, alternatively, was holding an office of profit under the Government.The High Court rejected the petition. Dismissing an appeal to the Supreme Court.

HELD :—The first respondent was not holding an office of profit under the StateGovernment.

(i) When the undertaking was taken over by the company as a going concern, theemployees working in the undertaking were also taken over and since, in law, the com-pany had to be treated as an entity distinct and separate from the Government, the emp-loyees, as a result of the transfer of the undertaking, became employees of the companyand ceased to be employees of the Government. Furthermore, after the undertaking-was taken over by the Company, the employees, who were workmen, were no longergoverned by the State's Civil Service Regulations. Their conditions of service were de-termined by the Standing Orders of the Company which were certified under the In-dustrial Employment (Standing Order) Act, 1946.

' D-R- GURUSHANTAPPA V. ABDUL KHUDDUS ANWAR [VOL. XLI

(11) The fact that the Government had control over the Managing Directorsana otner Directors as well as the power of issuing directions relating to the working oftrie company could not lead to the inference that every employee of the company wasunder die control of the Government. The power to appoint and dismiss the first res-pondent or to fix his remuneration or to give directions as to the manner of performanceolms duties did not vest in the Government or in any Government servant but in theomcers ol the Company. In the case of election as President or Vice-President his dis-qualification arises even if the candidate is holding an office of profit under the local orany other authority under the control of the Central Government or the State Govern-ment, wnereas, l n the case of a candidate for election as a Member of any of the Legisla-tures, no such disqualification is laid down by the Constitution if the Office of profit isheld under the local or any other authority under the control of the Government and notdirectly under any of the Governments. The mere control of the Government over theauthority having the power to appoint, dismiss, or control the working of the officeremployed by such authority does not disqualify the officer from being a candidate forelection as a Member of the Legislature in the manner in which such disqualification,comes into existence for being elected as the President or Vice-President.

B Y I ! ' !?.ot:the Representation of the People Act, the disqualification is limited to aperson holding the office of a managing agent, manager or secretary of a Company inthe capital of which the Government has not less than 25% share, and the disqualifica-tion does not apply to other employees of the company. This gives two indications as tothe scope of the disqualification laid down in Arts. 102(1) (a) and 191(1) (a) of theConst .union. One is that the holding of an office in a Company, in the capital of whichthe Government has not less than 25% shares, is not covered by the disqualifications laiddown sn Arts. 102(1) (a) and 191 (1) (a), as otherwise, this provision would be redundant.The second is that even Parliament, when passing the Act, did not consider it necessaryto disqualify every person holding an office of profit under a Government company,but limited the disqualification to persons holding the office of managing agent, manageror secretary of the company. The fact that the entire share capital in the company inthis case is owned by the Government, does not make any difference.

Gurugobinda Basu v. Sankari Prasad Ghosal & Ors. (1964) 4 S.C.R. 311 and MaulanaAbdulShakur v. Rikhab Chand (1958) S.C.R. 387; referred to

CIVIL APPEAL NO. 718 OF 1968

S. V. Gupte, Shyamala Pappu, S. S. Javali and Vineet Kumar, for the appellantLily Thomas, for respondent No. 1

JUDGMENT

BHARGAVA, J.—This appeal under section 116A of the Representa-tion of the Peoples' Act 1951 (No. 43 of 1951) (hereinafter referred to as"the Act") has been filed by one of the unsuccessful candidates for electionto the Mysore Legislative Assembly from No. 152, Bhadravati Consti-tuency, against the judgment of the High Court of Mysore dismissinghis election petition for setting aside the election of the successful can-didate, respondent No. 1. After the nomination papers had beenfiled, the scrutiny of the nomination papers took place on the 21st January1967 and five nomination papers were declared as valid. They werethe nomination papers of the appellant, respondent No. 1 and res-pondents Nos. 2 to 4. The polling for the Constituency took place on15th February, 1967, and after the counting of votes, the results weredeclared on 22nd February, 1967. Respondent No. 1 received 15,862votes, while the appellant received 13,350 votes. The other three-candidates, respondents 2 to 4, were also unsuccessful having received

E.L.R.J 0.R. GURUSHANTAPPA V. ABDUL KHUDDUS ANWAR 155

much smaller number of votes. On 5th April, 1957, the appellantfiled the election petition challenging the election of respondent No. 1on a number of grounds, out of which we need mention only one singleground, as the appeal in this Court is confined to that ground alone.It was pleaded that respondent No. 1 was disqualified under Article191(1) (a) of the Constitution from being chosen as a member of theLegislative Assembly, because he was holding an office of profit underthe Government of the State of Mysore on the date of scrutiny. Thisground, as well as other grounds taken by the appellant for challengingthe validity of the election of respondent No. 1 were all rejected bythe High Court and the election petition was dismissed. Consequently,the appellant has come up in this appeal to this Court. Though, inthis appeal, a number of grounds were raised, Mr. S. V. Gupte, counselfor the appellant, confined the case to this sole ground of disqualificationof respondent No. 1 on the date of scrutiny.

The facts relevant for deciding this issue may now be stated. Onthe date of scrutiny, respondent No. 1 was employed as Superintendent,Safety Engineering Department in the Factory run by the Mysore Iron& Steel Works Ltd., Bhadravati. His salary was more than Rs. 500per mensem. The past history of the service of respondent No. 1 wasthat he was appointed in the year 1936 in the Mysore Iron & SteelWorks, Bhadravati, which was started by the Government of Mysoreand was being managed by the Government as its own concern. Hecontinued to be a servant of the Government of Mysore when, in theyear 1962, a private limited Company was registered under the nameof Mysore Iron & Steel Limited, Bhadravati (hereinafter referred toas "the Company") under the Indian Companies Act, 1956, and thisCompany took over the Mysore Iron & Steel Works from the Govern-ment. Respondent No. 1 had first joined service as a daily workerin 1936, but was promoted as Chargeman, Asstt. Foreman, Foremanand thereafter, as Assistant Superintendent which was the post heldby him in the year 1962 at the time when the concern was taken overby the Company. Subsequently, he was promoted as Superintendentin the year 1964 and was working on that post at the time of the electionin 1967. It was also the common case of the parties that the shares ofthe Company were held cent per cent by the Mysore Government, thoughsome of the shares were shown in the names of some of the Officersin the service of the Mysore Government. Under the Articles ofAssociation of the Company, the first Directors of the Company werethe Minister-in-Charge of the Industries Portfolio in the Mysore Govern-ment, the Secretaries to the Mysore Government in the Finance De-partment, and in the Commerce and Industries Department, the Manag-ing Director of the Mysore Iron & Steel Ltd., and the Chief Conservatorof Forests of the Mysore Government. The Governor of Mysore wasentitled to appoint all or a majority of the members of the Board ofDirectors so long as the Government of Mysore held not less than 51per cent of the total paid-up capital of the Company or so long as theGovernor continued to be interested in any fiduciary capacity. TheBoard of Directors could also co-opt one or more individuals as Direc-tors. Thus, the State Government had considerable control in

156 D.R. GURUSHANTAFPA V. ABDUL KHODDUS ANWAR [VOL. XLI

appointment of Directors of the Company as well as in the appointmentof the Managing Director who was to be appointed by the Governor fromamongst the Directors nominated by him. The Governor was alsoentitled to appoint from amongst the nominated Directors, a Chairmanand Vice-Chairman of the Board of Directors. Even the Secretaryof the Company had to be appointed by the Board of Directors afterobtaining approval of the Governor. In respect of other employeesof the Company, recruitment and services conditions had to be inaccordance with the rules which may be prescribed by the Governorfrom time to time. When the concern was taken over from theGovernment by the Company, the services of respondent No. i werenot terminated and he was continued in the same post by the Companywhich he was holding when the concern was being run by the Govern-ment. There was no fresh contract entered into between him and theCompany. On these facts, two alternative contentions were raisedby Mr. Gupte to urge that respondent No. i was disqualified underArt. 191(1) (a) of the Constitution. The first argument was thatrespondent No. 1, when initially appointed to a post in the MysoreIron & Steel Works in 1936, was a government servant and, even afterthat concern was taken over by the Company, he continued to be inthe service of the Mysore Government. In the alternative, the secondcontention was that, even if respondent No. 1 ceased to be a govern-ment servant, he still continued to hold an office of profit under theGovernment of Mysore though, technically, he was in the employment•of the Company.

So far as the first point is concerned, reliance is placed primarilyon the circumstance that, when the concern was taken over by theCompany from the Government, there were no specific agreementsterminating the government service of respondent No. 1 or bringinginto existence a relationship of master and servant between the Companyand respondent No. 1. That circumstance, by itself, cannot lead tothe conclusion that respondent No. 1 continued to be in governmentservice. When the undertaking was taken over by the Company asa going concern, the employees working in the undertaking were alsotaken over and since, in law, the Company has to be treated as an•entity distinct and separate from the Government, the employees, asa result of the transfer of the undertaking, became employees of theCompany and ceased to be employees of the Government. Thisposition is very clear at least in the case of those employees who werecovered by the definition of workmen under the Industrial DisputesAct in whose cases, on the transfer of the undertaking, the provisionsof section 25 FF of that Act would apply. Respondent No. 1 was aworkman at the time of the transfer of the undertaking in the year1962, because he was holding the post of an Assistant Superintendentand was drawing a salary below Rs. 500 per mensem. As a workman,he would, under s. 25 FF of the Industrial Disputes Act, become anemployee of the new employer, viz-, the Company, which took overthe undertaking from the Mysore Government which was the previousemployer. In view of this provision of law, there was, in fact, no need

E.L.R.] D.R. GURUSHANTAPPA V. ABDUL KHDDDUS ANWAR 157

for any specific contract being entered into between the Mysore Govern-ment and respondent No. i terminating his government service, norwas there any need for a fresh contract being entered into betweenthe Company and respondent No. i to make him an employee of theCompany.

This position is further clarified by the circumstance that, afterthe undertaking was taken over by the Company, the employees, whowere workmen, were no longer governed by the Mysore Civil ServiceRegulations. Their conditions of service were determined by theStanding Orders of the Company which were certified under theIndustrial Employment (Standing Orders) Act, 1946. These StandingOrders even referred to certain employees as "lent Officers". Thereference was obviously to persons who continued to be in the Goverr-ment service, but whose services were lent to the Company. It wasconceded in the present case that respondent No. 1 was not a let officeras envisaged by that expression used in the Standing Orders.

Respondent No. 1 further came to be governed by the WorksService Rules. It is true that, under the Articles of Association, the Gover-nor had the power to lay down conditions of service of the employees ofthe Company ; but that cannot mean that the employees of the Companycontinued to be in the service of the Government. Reliance in thisconnection was also placed on behalf of the appellant on the fact thatthe name of respondent No. 1 appeared in the Mysore Civil List underthe heading "Iron and Steel Ltd., Bhadravati" from which an inferencewas sought to be drawn that respondent No. 1 must have continuedin government service, as, otherwise, his name would not have beenincluded in the Civil List. The mere inclusion in the Civil List of thename of a person cannot be held to prove that that person is in theservice of the Government, unless evidence is tendered to show thecircumstances under which the name was included in the Civil Listand to exclude the possibility of names of persons other than those ingovernment service being included in the Civil List. No such evidencewas given in this case. On the other hand, the same Civil List showsthat even the names of certain employees of the Universities in theState are also included in it, and on the face of it, University employeescould not be held to be in government service. The Civil List reliedupon clearly is not confined to names of persons in Mysore Governmentservice only, so that this piece of evidence relied on by the appellantalso does not establish that respondent No. 1 continued to be in govern-ment service after the undertaking was taken over by the Company.

Finally, there is the circumstance that it is not shown that, afterthe undertaking was taken over by the Company, respondent No. 1continued to hold a lien on any Government post. In fact, the post,,which he was holding while the concern was being run by the MysoreGovernment, ceased to be a Government post on the transfer of theundertaking to the Company and become a post under the Company,so that respondent No. 1 ceased to be in government service by conti-nuing in that post. The first contention raised on behalf of the appellant,,therefore, fails.

1158 D,R. GURUSHANTAPPA V. ABDUL KHUDDUS ANWAR [VOL. XLI

On the second contention that, even if respondent No. i was notholding a government post, he must be held to be holding an officeof profit under the Government, Mr. Gupte relied on the principles laiddown by this Court in Gurugobinda Basu V. Sankari Prasad Ghosal andOthers.^) The Court in that case brought out the distinction betweenan office of profit under the Government and a post in the service ofthe Government by stating :—

"We agree with the High Court that for holding an officeof profit under the Government, one need not be in the service ofGovernment and there need be no relationship of master and servantbetween them. The Constitution itself makes a distinctionbetween 'the holder of an office of profit under the Government'and 'the holder of a post or service under the Government' ; seeArts. 309 and 314. The Constitution has also made a distinctionbetween the 'holder of an office of profit under the Government'and 'the holder of an office of profit under a local or other authoritysubject to the control of Government' ; see Art. 58(2) and 66(4)."

The Court then proceeded to consider the earlier decision in the caseof Maulana Abdul Shakur V. Rikhab Chand and Anr.2 and held :

"It is clear from the aforesaid observations that in MaulanaAbdul Shakur's case (supra) the factors which were held to bedecisive were (a) the powers of the Government to appoint a personto an office of profit or to continue him in that office or revokehis appointment at their discretion, and (b) payment from outof Government revenues, though it was pointed out that paymentfrom a source other than Government revenues was not alwaysa decisive factor."

After this reference to Maulana Abdul Shakur's case (supra), the Courtproceeded to apply the principles to the facts of the case before it. Inthat case, the question was whether the appellant was holding an officeof profit under the Government of India. It was pointed out that theappointment of the appellant as also his continuance in office restedsolely with the Government of India in respect of the two Companiesfor which he was employed as an Auditor. His remuneration wasalso fixed by the Government. The Court assumed for the purposesof the appeal that the two Companies were statutory bodies distinctfrom Government, but noted the fact that, at the same time, they wereGovernment Companies within the meaning of the Indian CompaniesAct. Emphasis was laid on the circumstances that in the performanceof his functions, the appellant was controlled by the Comptroller andAuditor-General who himself was undoubtedly holder of an office ofprofit under the Government, though there were safeguards in theConstitution as to the tenure of his office and removability therefrom.Under Art. 148 of the Constitution, the Comptroller & Auditor-Generalwas appointed by the President and he could be removed from office

(0 (1964) 4 S. G. R. 311(•) 1958 S.G.R. 387

sE.L.R.] D.R. GURUSHANTAPPA V. ABDUL KHUDJDUS ANWAR 159

in like manner and on the like grounds as a Judge of the SupremeCourt. The salary and other conditions of service of the Comptroller& Auditor General were to be such as might be determined by Par-liament by law and, until they were so determined they were to beas specified in the Second Schedule to the Constitution. Other pro-visions relating to the Comptroller and Auditor General were also takennotice of and an inference was drawn from these provisions that theComptroller and Auditor General is himself a holder of an office ofprofit under the Government of India, being appointed by the Presi-dent, and his administrative powers are such as may be prescribed bythe rules made by the President, subject to the provisions of the Con-stitution and of any law made by Parliament. The Court then held :

"Therefore, if we look at the matter from the point of viewof substance rather than of form, it appears to us that the appel-lant, as the holder of an office of profit in the two Governmentcompanies, the Durgapur Projects Ltd., and the Hindustan SteelLtd., is really under the Government of India ; he is appointedby the Government of India; he is removable from office by theGovernment of India ; he performs functions for two Governmentcompanies under the control of the Comptroller and Auditor-General who himself is appointed by the President and whoseadministrative powers may be controlled by rules made by thePresident."

Thereafter, the Court proceeded to hold :—

"In view of these decisions, we cannot accede to the submissionof Mr. Chaudhury that the several factors which enter into thedetermination of this question—the appointing authority, theauthority vested with power to terminate the appointment, theauthority which determines the remuneration, the source fromwhich the remuneration is paid, and the authority vested withpower to control the manner in which the duties of the office aredischarged and to give directions in that behalf must all co-existand each must show subordination to Government and • that itmust necessarily follow that if one of the elements is absent, thetest of a person holding an office under the Government, Centralor State, is not satisfied. The cases we have referred to speci-fically point out that the circumstances that the source from whichthe remuneration is paid is not from public revenue is a neutralfactor—not decisive of the question. As we have said earlier,whether stress will be laid on one factor or the other will dependon the facts of each case. However, we have no hesitation insaying that where the several elements, the power to appoint,the power to dismiss, the power to control and give directions asto the manner in which the duties of the office are to be performed,and the power to determine the question of remuneration aie allpresent in a given case, then the officer in question holds theoffice under the authority so empowered."

150 D.R. GURUSHANTAPPA V. ABDUL KHUDDUS ANWAR [VOL. XLI

Mr. Gupte, from these views expressed by the Court, sought todraw the inference that the primary consideration for determiningwhether a person holds an office of profit under a Government isthe amount of control which the Government exercises over that officer.In the present case, he relied on the circumstance that all the sharesof the Company are not only owned by the Mysore Government, butthe Directors of the Company are appointed by the Government—a Minister was one of the first Directors of the Company; the appoint-ment of the Secretary to the Company is subject to approval of theGovernment ; and, even in the general working of the Company,Government has the power to issue directions to the Directors whichmust be carried out by them. It was urged that respondent No. iwas directly under the control of the Managing Director who is himselfappointed by the Government and may even be a 'lent officer' holdinga permanent post under the Government. Respondent No. i, thusmust be held to be working under the control of the Government ex-ercised through the Managing Director.

We are unable to accept the proposition that the mere fact thatthe Government had control over the Managing Director and otherDirectors as well as the power of issuing directions relating to theworking of the Company can lead to the inference that every employeeof the Company is under the control of the Governement. The powerof appointment and dismissal of respondent No. i is vested in the Mana-ging Director of the Company and not in the Government. Eventhe directions for the day-to-day work to be performed by respondentNo. i could only be issued by the Managing Director of the Companyand not by the Government. The indirect control of the Governmentwhich might arise because of the power of the Government to appointthe Managing Directors and to issue directions to the Company in itsgeneral working does not bring respondent No. i directly under thecontrol of the Government. In Gurugobinda Basil's case (supra), theposition was quite different. In that case, the appellant was appointedby the Government and was liable to be dismissed by the Government.His day-to-day working was controlled by the Comptroller andAuditor General who was a servant of the Government and was not inany way an office-bearer of the two Companies concerned. In fact,the Court had no hesitation in holding that the appellant in that casewas holding an office of profit under the Government, because theCourt found that the several elements which existed were the powerto appoint, the power to dismiss, the power to control and give directionsas to the manner in which the duties of the office are to be performed,and the power to determine the question of remuneration. All theseelements being present, the Court did not find any difficulty in findingthat the appellant was holding an office of profit under the Govern-ment. In the case before us, the position is quite different. Thepower to appoint and dismiss respondent No. i does not vest in theGovernment or in any government servant. The power to controland give directions as to the manner in which the duties of the officeare to be performed by respondent No. i also does not vest in the Govern-ment, but in an officer of the Company. Even the power to determine

E.L.R.] D.R. GURUSHANTAPPA »» ABDUL KHUDDUS ANWAR 161

the question of remuneration payable to respondent No. i is not vestedin the Government which can only lay down rules relating to the con-ditions of service of the employees of the Company. We are unableto agree that, in these circumstances, the indirect control exercisableby the Government because of its power to appoint the Directors andto give general directions to the Company can be held to make the postof Superintendent, Safety Engineering Department, an office of profitunder the Government.

In this connection, a comparison between Arts. 68(2) and 66(4)and Arts. 102(1) and 191(1)(a) of the Constitution is of significanthelp. In Arts. 68(2) and 66(4) dealing with eligibility for election asPresident or Vice-President of India, the Constitution lays down thata person shall not be eligible for election if he holds any office of profitunder the Government of India or the Government of any State orunder any local or other authority subject to the control of any of thesaid Governments. In Articles 102(1) (a) and 191(1) (a) dealing withmembership of either House of Parliament or State Legislature, thedisqualification arises only if the person holds any office of profit underthe Government of India or the Government of any State other thanan office declared by Parliament or State Legislature by law not todisqualify its holder. Thus, in the case of election as President or Vice-President, the disqualification arises even if the candidate is holdingan office of profit under a local or any other authority under the controlof the Central Government or the State Government, whereas, in thecase of a candidate for election as a Member of any of the Legislatures,no such disqualification is laid down by the Constitution if the officeof profit is held under a local or any other authority under the controlof the Government and not directly under any of the Governments.This clearly indicates that in the case of eligibility for election as amember of a Legislature, the holding of an office of profit under a cor-porate body like a local authority does not bring about disqualificationeven if that local authority be under the control of the Government.The mere control of the Government over the authority having thepower to appoint, dismiss, or control the working of the officer employedby such authority does not disqualify that officer from being a candidatefor election as a member of the Legislature in the manner in whichsuch disqualification comes into existence for being elected as the Pre-sident or the Vice-President. The Company, in the present case, nadoubt did come under the control of the Government and respondentNo. /i was holding an office of profit under the Company ; but, inview of the distinction indi rated above, it is clear that the disquali-fication laid down under Art. 191(1) (a) of the Constitution was notintended to apply to the holder of such an office of profit.

It also appears to us that it was in view of this limited applicationof the disqualification laid down in Arts. 102(1) (a) and 191(1) (a) ofthe Constitution that Parliament made an additional provision in sec-tion 10 of the Act by laying down that "a person shall be disqualifiedif, and for so long as, he is a managing agent, manager or secretary of anycompany or corporation (other than a co-operative society) in the

11—4Elec. Com./71

162 D.R. GURUSHANtAPPA V. ABDUL KHUDDUS ANWAR [VOL. XLl

capital of which the appropriate Government has not less than twenty-five per cent share." It is to be noted that the Parliament, in enactingthis section, limited the disqualification to a person holding the office ofa managing agent, manager or secretary of a company, and not to otheremployees of the Company. This provision, thus, gives two indicationsas to the scope of the disqualification laid down in Arts. 102(1) (a) and191(1) (a) of the Constitution. One is that the holding of an officein a company, in the capital of which the Government has not lessthan 25 per cent share, is not covered by the disqualifications laid downin Arts. io2(i)(a) and igi(i)(a), as, otherwise, this provision wouldbe redundant. The second is that even Parliament, when passingthe Act, did not consider it necessary to disqualify every person holdingan office of profit under a Government Company, but limited thedisqualification to persons holding the office of managing agent, manageror secretary of the Company. The fact that the entire share capitalin the Company in the case before us is owned by the Governmentdoes not, in our opinion, make any difference. Under the Articles ofAssociation, it is clear that, though, initially, all shares were held bythe Government, it is possible that private citizens may also hold sharesin the Company. In fact, there are provisions indicating that sharesheld by certain shareholders can pass by succession to members of theirfamily or can even be transferred by gift to them. The Articles ofAssociation lay down that the Company shall be a private limited Com-pany within the meaning of the Indian Companies Act, 1956, and,though the shares in the capital of the Company are under the controlof the Board of Directors, they have been given the liberty to allot,grant option over or otherwise dispose of the shares at such time and tosuch persons, and in such manner and upon such terms as they maythink proper. Under this power, the Directors can allot shares toprivate individuals. It is under Art. 34 of the Articles of Associationthat a shareholder is given the power, by way of gift or for or withoutany pecuniary consideration, to transfer any share in the capital ofthe Company to the wife or husband of such member, or to a son,daughter, father, mother, grandson, grand-daughter, brother, sister,nephew or niece of such member or the wife or husband of any personstanding in such relationship to the transferring member. Devolu-tion of shares, consequent to the death of a member, on his heirs is alsorecognised by the Articles of Association. In these circumstances,the principles which will apply to the Company will be on a par withthose applicable to other Government Companies or Companies inwhich the Government holds more than 25 per cent of the share capital.The Company cannot, therefore, be treated as either being equivalentto the Government or to be an agent of the Government, so that thecontrol exercised by its Directors or the Managing Director over res-pondent No. 1 cannot be held to be control exercised by the Govern-ment.

Mr. Gupte, in this connection, also urged that we should piercethe veil of the Company being a separate juristic and legal entity, apartfrom the Government which owns all the shares in the Company, and

E.L.R.] DALGHAND JAIN V. NARAYAN SHANKAR TRIVEDI 163

hold that, in fact, the Company should be equated with the Govern-ment of Mysore itself. In our opinion, in the present case, no questionof piercing the veil can arise in view of the provisions of section 10 ofthe Act which specifically deals with disqualification for membershipof persons holding offices under a Company in which a Governmentholds shares. That section limits the scope of disqualification to holdersof three particular offices only and in companies in which the share-holding of the Government is .not less than 25 per cent. This provisionclearly indicates that, for purposes of determining disqualification forcandidature to a Legislature, it would not be appropriate to attempt tolift the veil and equate a Company with the Government merely becausethe share-capital of the Company is contributed by the Government.The discussion of the relevant Constitutional provisions above alsosupports this view. In the present case, therefore, respondent No. 1cannot be held to be holding an office of profit under the Governmentof Mysore and was not disqualified from being chosen as a member ofthe Assembly of the State.

The appeal fails and is dismissed with costs.

Appeal dismissed.


DALGHAND JAIN

V.

NARAYAN SHANKAR TRIVEDI AND ANR.

(S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.)

January 30, 1969

Representation of the People Act, 1951, Ss. 98, 99, 11Q-A, 123(4), I 23(6), 124(4)—corrupt practice—publications derogatory of the personal character of a candidate—no director circumstantial evidence to show complicity of the elected candidate—whether election vitia-ted—Printing replica of national flag along with the appeal of a candidate—whether corruptpractice.—Expenses—submission of incorrect return of election expenses—effect of.

Appeal—person found guilty of corrupt practices along with the appellant—whether nece-ssary parties in appeal to the Supreme Court.

The appellant, the successful candidate, filed the present appeal against the orderof the trial court setting aside his election on the ground that he had committed variouscorrupt practices. In the election petition filed by the respondent, it was allegedthat : (i) with the consent of the appellant, statements of fact which were false andwhich he did not believe to be true in relation to the personal character and conductof Respondent No. 2, were published in papers and the same were distributed athis instance ; and (ii) the appellant used the National Flag for furthering his electionprospects by publishing a replica of the flag with his appeal in the papers.

164 DALCHAND JAIN V, NARAYAN S.HANKAR TRIVEDl [VOL. XLI

It was also alleged that the appellant failed to include several items of expenditurein his return of election expenses, thus contravening section 77 of the Act. On appealto the Supreme Court, reversing the order of the Trial Court.

HELD : (i) There was no direct evidence to show that the alleged publicationwere made at the instance of the appellant. The circumstantial evidence relied onby the respondent did not conclusively establish that the publications were the appe-llant's consent. The omission on the part of the appellant to raise any objectionregarding the publication did not establish his consent. Similarly, the evidence asto the distribution of the papers at the appellant's instance was not convincing.

(ii) In the absence of reliable evidence that the replica of the National Flagwas printed in the papers along with his appeal at the appellant's instance, it couldnot be held that the appellant used the national flag for furthering his election pros-pects.

(iii) Section 123(6) of the Act lays down that the incurring or authorising ofexpenditure in contravention of Section 77 of the Act is a corrupt practice. Butevery contravention of s.77 does not fall within s.123(6). S.123(6) is related to 8.77(3)only. If the candidate incurs or authorises expenditure in excess of the prescribedamount in contravention of 5.77(3) n e commits a corrupt practice under section 123(6).

. The contravention of s.77(1) and (2) or the failure to maintain correct accounts andparticulars does not fall within s.i23(6). Moreover, as section 124(4) has been deleted

( by the Amending Act of 1956, the submission of an incorrect return of expenses isno longer a corrupt practice.

Sri Krishna v. Sat Narayan, G. A. No. 1321/1967 decided on 22-3-1968 ; SavitriDevi v. Prabhawati Misra, 15 E.L.R. 358, 369 ; N. L. Verma v. Muni Lai, 15 E. L.R. 495, 499 ; Narasimhan v. Natesan, A.I.R. 1959 Mad. 514, 517-518 ; referredto.

The persons declared guilty of corrupt practices along with the appellant undersections 98 and 99 of the Act need not necessarily be parties in an appeal to the SupremeCourt under Section 116-A of the Act. As the person aggrieved by the order the appe-llant alone can file an appeal against that order.


S. V. Gupte, Rameshwar Nath & Mahinder Narain, for the appellant.

Y. S. Dharmdhikari, K. C. Sharma, S. K. Dhingra & M. S. Gupta, for RespondentNo. 1.

JUDGMENT

BACHAWAT, J.—This appeal is directed against a judgment ofa single judge of the Madhya Pradesh High Court setting aside theelection of the appellant to the Madhya Pradesh legislative assemblyfrom the Sagar city constituency.

At the last general election to the legislative assembly from theSagar City constituency there were six contesting candidates. Theappellant, the congress candidate, secured 17,068 votes, respondentNo. 1, the P. S. P. candidate secured 12,193 votes, four other candidatessecured much lesser number of votes. The appellant was declaredelected. Respondent No. 1 filed an election petition and alleged anumber of corrupt practices on the part of the appellant. The Highcourt found that the corrupt practice under s. 123(4) was proved andset aside the election. The High Court found that the other chargeswere not proved.

E.L.R.] DALCHANB JAIN V. MARAYAN SHANKAR f RTVEDI 165

The charge against the appellant under s. 123(4) is t n a t with hisconsent statements of fact which were false and which the appellantdid not believe to be true in relation to the personal character or conductof respondent No. 2 calculated to prejudice the prospects of his electionwere published in Hindi in the issues of New Rocket Times dated the6th, 9th, 10th, 13th, 18th and 19th February, 1967 (Exs. P6, P5, P4,P3, P2 and Pi respectively) and the issues of Agami Kal dated the 4th,19th, and 20th February (Exs. P7, P9 and Pio respectively). Thelearned Judge held that the publications were made with the appe-llant's consent and that the papers were distributed at his instanceon the eve of the election. We are unable to agree with this finding.

In the petition the charge was that both the papers were financedby the appellant and that the editors of New Rocket Times and AgamiKal were his benamidars. In his examination-in-Chief, respondentNo. 1 said that PW 43 Bakar Mia, told him that the entire expensesof the publication of the New Rocket Times were borne by the appe-llant. In cross-examination he said that he was informed by P. W.36 Ghanshyam Das, sometime before the election that the appellantpaid Rs. 1,000 to the editors of each of the papers for his advertisements.P. W. 36 Ghanshayamdas, the editor of the paper "Denik Rahi" saidthat a press conference called by the appellant on January 20, 1967at the residence of Sri Krishna Selot and attended by PW 36, PW 35Madansingh, editor of Sagar Times, RW 23 Jai Narain, editor of AgamiKal and CW 1, Badalsingh, editor of New Rocket Times, the appe-llant stated that RW 33 and GWI had agreed to publish in their papersall his advertisements as also all articles to be supplied by RW 34 Laxmi-narayan Trunkwala for the entire election at a settled remunerationof Rs. 1,000 each and that the appellant had also agreed to purchase1,000 copies of each of the papers. The story appears to us to be false.If the bargains had already been made with RW 23 and GW 1 it wasnot necessary to call them at the conference. Nor was it necessary tomake a public announcement of the bargain at a press conference.The charge that such an agreement was made with the editors of thetwo papers was not made in the petition and is an after thought. P.W.36 also said that on January 20, the appellant agreed to pay him Rs.1,000 for issuing advertisements in his paper as remuneration andaccordingly he published advertisements in his paper from January 24to February 16, that a week after the agreement the appellant sentRs. 300 to Shri Krishna Selot through R.W. 11 Sunderlal and desiredthat the money be paid to him (P.W. 36), but that he refused to acceptthe money, and insisted on full payment. We do not believe this story.Had there been such a dispute in the Jast week of January P.W. 34would not have continued to publish the advertisements till February16. P.W. 36 did not make any demand on the appellant in writingfor Rs. 1,000 nor file any suit against him. R.W. 11 denied thathe brought Rs. 300 from the appellant. P.W. 35 did not supportP.W. 36 and did not speak of any admission made by the appellantat the press conference with regard to his alleged bargains with theNew Rocket Times and the Agami Kal. P.W. 43 Bakar Mia, themanager of Nisi Printing Press proved that R.W. 34 gave the

166 DALCHAND JAIN V. NARAYAN SHANKAR TRIVEJD1 [VOL. XLI

manuscripts for the articles, but R.W. 34 denied that he wrote themat the appellant's request. P.W. 43 said that the appellant's servantstook away all the copies of the papers in the appellant's car. But R.W.32 Narendranath Purohit, the owner of the Nisi Printing Press deniedthat the appellant's car or jeep ever came to collect the copies. Wedo not believe P.W. 43. There is evidence to show that only 500 copiesof the New Rocket Times and 800 copies of Agami Kal used to be printed.This fact proved by R. W. 32 and C.W. 1 belies the story of P. W. 36that the editors of the two papers agreed to supply 1,000 copies to theappellant. The learned Judge held against the appellant mainly onthe strength of the evidence of Ghanshyamdas. As we do not accepthis testimony there is no direct evidence to show that the pub'icationswere made at the appellant's instance.

The circumstantial evidence relied on by respondent No. 1 doesnot conclusively establish that the publications were with the appe-llant's consent. The appellant read the papers but his omission toraise any objections does not establish his consent. His photos andappeals were published in the New Rocket Times and Agami Kal;but they were also published in other papers. The financial positionof the two papers were shaky and their publication shot up duringthe elections; but the editors of these mushroom papers might havehit upon the plan of making money by publishing sensational articleon the eve of the election.

The evidence as to the distribution of the papers at the appellant'sinstance is not convincing. Out of the 13 distributors named in thepetition respondent No. 2 called only P.W. 23, P.W. 24, and P.W. 30.They do not identify the papers distributed by them. We do not acceptthe statement of P.W. 24, and P.W. 30 that they got Rs. 50 each asremuneration from the appellant. P.W. 30 said that the appellantpaid him Rs. 50 at the rate of Rs. 5 per day in the presence of his brotherR.W. 25 Ratiram, but R.W. 25 denied that the appellant settled P.W.30's remuneration in his presence. P.W. 6 said that the papers weredistributed from the 4th or 5th of February, but actually the paperswere published from the 9th February. P.W. 20 said that he got fromthe appellant Rs. 100 as remuneration for distributing the papers andthat he used to distribute the papers through R.W. 21 Babulal andanother person, but R.W. 21 said that he did not know P.W. 20 and thathe never received any copy of the papers for distribution. We donot believe P.W. 20. P.W. 8 said he got a copy of the New Rocket Timesfrom R.W. 30 Pannalal Patel, but this was denied by R.W. 30. P.W.29 and P.W. 31 said that one Ram Charan used to distribute the papersbut Ram Charan was not examined. C.W. 1 and R.W. 23 deniedthat the papers were distributed free of cost. We do not accept thestory that the papers used to be distributed free cf cost at the appellant'sinstance.

It is not established that the issues of the New Rocket Times andthe Agami Kal were distributed with the appellant's consent. Inview of this conclusion, it follows that the appellant was not guilty of

E.L.R.] DALCHAND JAIN V, NARAYAN SHANKAR TRIVEDI 167

any corrupt practice under 5.123(4). There is force in the appellant'scontention that the statements in the publications were not in relationto the personal character or conduct of respondent No. 1. But wedo not find it necessary to express any opinion on this question.

The learned Judge held against respondent No. 2 on all the othercharges. His counsel has pressed before us the charge under issues 7»28, 31(0) and 34. Issue No. 7 relates to payment of Rs. 200 as bribeto P.W. 16 Bashir Mohammad, the Secretary of the Gopalganj TrustCommittee. He said that on February 19, the appellant gave him adonation of Rs. 200 in the presence of P.W. 41 and that he spoke ofthis donation to P.W. 19. He was corroborated by P.W. 41 and P.W.19. In support of his statement P.W. 16 proved entries in his cashbook, Ex. P79. Exhibit P79 shows a credit of Rs. 500 as donationfrom the appellant on February 19 and a debit entry of Rs. 200 throughHazi Ahmad for fencing of iron bars for Kabristan on the same day.There is force in the appellant's contention that a convenient crossentry was made on the same date so that the cash balance carriedforward in the book might not be disturbed. P.W. 16 said that hesent the accounts for the year ending March 31, 1967 to the WaqfCommittee in the month of April 1967. But R.W. 26 Nazir Ahmed,the Secretary of the Madhya Pradesh Waqf Board said that no suchaccount was received and none was to be found in his office. In agree-ment with the learned, trial Judge we are unable to accept the testimonyof P.W. 16 and the supporting witnesses.

Issue No. 28 relates to the charge that the appellant used the nationalflag for furthering hh election prospects by publishing a replica of theflag with his appeal in the New Rocket Times. R.W. 32, proved thathe printed a replica of the flag in the paper at his own instance for doingpropaganda work. There is no reliable evidence to show that he didso at the appellant's instance. The learned Judge rightly repelledthis charge.

Issue No. 3i(b) relates to the publication of a statement of thewithdrawal of the candidature of P.W. 10 Manmohan Patel in theSagar Mitra one day before the election in Ex. P69 by one NanhuramVyas. P.W. 10 said that Nanhuram Vyas was a paid servant of theappellant. Nanhuram was not examined by respondent No. 1. Thepetition did not allege that the appellant got the statement publishedthrough his agent Nanhuram. In agreement with the learned Judgewe hold that it is not established that the statement was published atthe appellant's instance.

Issue No. 34 relates to the charge that the appellant incurred orauthorized expenditure in contravention of s. 77. It is said that theappellant did not include several items of expenses in his return ofelection expenses. Item (i) relates to the purchase of congress flagsworth Rs. 1,227'05 !*• We are concerned only with the expensesincurred or authorised in connection with the election after January 13,1967 which was the date of publication of the notification calling the

168 DALCKAND JAIN V. NARAYAN SHANKAR TRIVEDI [VOL. XLI

election. The cash memos for the period before January 13, 1967are not relevant and may be left out of account. With regard to thecash memos Exs. P 120, P 121 and P 122, RW 7, RW 11 and RW 20have given cogent and convincing explanation as to how they cameto purchase the flags for other persons. Even if the explanation givenby RW 39 with regard to Ex. P 129 be rejected there is no reliableevidence that the expenses covered by the cash memos were incurredor authorised by the appellant. With regard to Items (iii) and (iv)the learned Judge held that the appellant omitted to mention in hisreturn Rs. 2000/- paid by him to the editors of New Rocket Timesand Agami Kal. We are unable to agree with this finding. As al-ready stated respondent No. 1 failed to prove that the appellant paidany money to the editors of the two papers. Item No. (xiii) relatesto the items of 2000 Gandhi caps and sunshades. This charge is notproved. The appellant said that he spent Rs. 225/- only for theGandhi caps and that this was shown in his return. RW 2 BalendraSharma Proved that he sent only 750 Gandhi caps at the cost of Rs.225/- He was not cross-examined. It is not established that theappellant obtained more than 750 caps. RW 15 proved that thesunshades were supplied by him for distribution free of cost. Withregard to Item (xv) the learned Judge held that the appellant paidRs. 100/- to PW 20 and Rs. 50/- each to PW 24 and PW 30. Asalready stated, we do not believe PW 20, PW 24 and PW 30. Weset aside the finding of the learned Judge that the appellant paidRs. 200/- to them. Item (xvii) relates to an expenditure of Rs.4000/- in respect of portraits fitted on motor vehicles with an auto-matic device. The petition charged that two station-wagons wereused in the election. But in his deposition respondent No. 1 spokeof only one station wagon. PW 6, PW 8, PW 11 and PW 45 spokeof two station-wagons, but we do not believe them. RW 6 KanchanlalDhruv proved that he sent the station wagon from Indore free of charge.He is corroborated by the appellant and RW 13. The learned Judgerightly held that the charge under Item (xvii) was not proved. Item(xviii) relates to an expenditure of Rs. 1000/- for constructing aplatform for a meeting. The charge is not proved. There is convincingevidence to show that the expenses for the platform was met by theDistrict Congress Committee. The relevant receipt is Ex. P 142.Item (xxi) relates to the payment of Rs. 1400/- as printing chargesto the Patel Printing Press. The charge is not established. Weaccept the statement of RW 32 that the Nagar Congress Committeeplaced the order and paid for the printing. Item (xxii) relates to pay-ment of Rs. 2200/- to Adarsh Press. Respondent No. 1 examinedP.W. 37, P.W. 38, P.W. 21 and P.W. 34 to prove the charge. P.W. 37,the manager of the press tried to prove the bill Ex. P89 and the workorders Ex. P90, P91 and P92. But P.W. 38, the printer, stated thatentries in Ex. P92 were false entries written by him at the instanceof P.W. 37. P.W. 21 said that he personally got Rs. 2,850 for thebill from the appellant, but in the petition the charge was that theappellant spent only Rs. 2,200. The evidence of P.W. 34 does notcarry the matter any further. The entries in Exs. P90, P91 and P92

DALGHAND JAIN V. NARAYAN SHANKAR TRIVED1 169

are not reliable and cannot be acted upon. The charge under itemno. (xxiii) is not proved. The learned Judge has adequately dealtwith the charges with regard to items (vi), (vii), (xvi), (xx), and hasrightly rejected them for cogent reasons. The charges with regardto the other items were not pressed.

The learned Judge held that the appellant incurred an expenseof Rs. 200 under Item (v) and Rs. 230 under items (xix) and (xxiii)and that it was not included in the return of election expenses. Weagree with this finding.

Counsel for respondent No. 1 contends that as the appellant didnot keep correct account under 8.77(1) and as his return of electionexpenses is false in material particulars the appellant committed thecorrupt practice under s. 123(6). We are unable to accept this con-tention.

Section 123(6) lays down that "the incurring or authorizing ofexpenditure in contravention of section 77" is a corrupt practice. Everycontravention of s. 77 does not fall within s. 123(6). Section 77 con-sists of three parts.

Section 77 sub-s. (1) requires the candidate to keep a separateand correct account of all election expenses incurred or authorised byhim within certain dates. Section 77 sub-s. 2 provides that the accountshall contain such particulars as may be preocribed. Section 77 sub-s.(3) requires that the total of the said expenditure shall not exceed theprescribed amount. Section 123(6) is related to s. 77(3). If thecandidate incurs or authorises expenditure in excess of the prescribedamount in contravention of 8.77(3) n e commits corrupt practice unders.i23(6). The contravention of s.77 sub. ss.(i) and (2) or the failureto maintain correct accounts with the prescribed particulars does notfall within s.i23(6), see Shri Krishna v. sat Narain.1 The same opinionhas been expressed in several decisions of the High Courts, see SavitriDevi v. Prabhawati Misra (2) N. L. Varma v. Muni Lai, (3) Narasimhan v.Natesa* and the cases referred to therein.

Section 124(4) a s ^ stood before its amendment by Act XXVIIof 1956 provided that the making of any return which was false in materialparticulars was a minor corrupt practice. That provision has now beendeleted and the submission of an incorrect return of expenses is nolonger a corrupt practice.

In his return of expenses the appellant stated that he spent Rs.4,145'04 P. We have found that he spent the additional sum ofRs. 430/- He thus spent in all Rs. 4,575*04?. The authorised limit

(1) 32 Mad. 384, 395. (1) C.A. No. 1321/67 decided on 22-3-1968.(23) A.I.R. 1930 P. G. 57. (2) 15 E.L.R. 358, 369(2) 1964(6) S.C.R. 750. (3) 15 E.L.R. 495, 499(3) G.A. No. 6 of 19G8, dec. on Aue. (4) A.I.R. 1959 Mad. 514, 517-18.

1 & 2,1968.

1 70 MOHD SADIQ, V. MOHD HUSSAIN [VOL. X U

of expenses was Rs. 7,000. It follows that the appellant did not incuror authorise expenditure in contravention of ?. 77, and the case doesnot fall within s. 123(6). We hold that there is no ground for settingaside the appei] ant's election, and the petition filed by respondent No. 1must be dismissed.

While making the order under s. 98(b) the learned Judge passedan order under s. 99 declaring that the appellant as also JainarainDube, Laxminarain Trunkwala and Badalsingh were guilty of the corruptpractice under s. 123(4). The present appeal has been filed by theappellant against the orders under sees. 98(b) and 99. Counsel forthe respondent contended that the appeal was not maintainable asJainarain Dube, Laxminarain Trunkwala and Badal Singh were notimpleaded as respondents. We find no merit in this contention. Theappellant as a party aggrieved by the order against him under ss. 98and 99 is entitled to file the appeal under s. 116A. He is the only personaggrieved by the order under s. 98 and he alone can maintain the appealagainst that order. As the person aggreived by the order under s..99 he is also entitled to maintain an appeal against it. The other personsagainst whom the order under s. 99 was made are not necessary partiesto the appeal.

In the result, the appeal is allowed, the orders of the High Courtunder ss. 98(b) and 99 are set aside and the election petition is dismissed.Respondent No. 1 will pay to the appellant the costs in this Court and.in the High Court.

Appeal allowed.

[IN THE HIGH COURT OF JAMMU & KASHMIR]

MOHD SADIQ,

V.

MOHD HUSSAIN

(MIAN JALAL UD-DIN J.)

February 3, 1969

Nomination Papers—Scrutiny of-—Petitioner and proposer need not be present—Jammuand Kashmir Representation of the People Act—Section 47.

The petitioner challenged the respondent's election on the ground that his ownnomination paper was improperly rejected by the Returning Officer for the reasonthat he was not present at the time of scrutiny. Allowing the petition,

E.L.R.] MOHD SADIQ, ». MOHD HUSSAIN 171

HELD : It is not necessary that at the time of scrutiny the petitioner or his pro-poser must himself be present. The law requires that a candidate, his election agent,proposer and one other person duly authorised in writing by such candidate, mayattend. This is precisely provided by Section 47 of the Representation of the PeopleAct. It is therefore not mandatory that the petitioner and the proposer must bepresent at the time of scrutiny.

In the present case inspite of the absence of the petitioner at the time of scrutiny,the Returning Officer who satisfied himself about the genuineness of the signature orthe nomination paper after comparing the same with the Oath Form could haveaccepted it as there was no legal flaw in its acceptance. The Returning Officer couldonly reject the nomination paper on the grounds mentioned in s.47 °f t n e J a t I u n u

& Kashmir Representation of the People Act which includes spurious signatureof the candidate, but that was not the case here.


D. D. Thakur and R. N. Kaul, for the Petitioner.V. S. Malhotra and B. L. Suri, for the Respondent.

ORDER

MIAN jALAL-UD-DrN J.—This Election Petition has been filed byMohd Sadiq the petitioner whereby he seeks to set aside as void theelection of the respondent from Darhal Assembly Constituency to theJammu and Kashmir Legislative Assembly at the last General Electionof 1967.

In his petition the petitioner averred that he is a permanent residentof the State and that he filed his four nomination papers within theprescribed period duly completed in prescribed manner before theReturning Officer. The petitioner complied with all the requirementsof statutory provisions of Election law and the Constitution of the State.At the time of the presentation of the nomination papers the petitionersatisfied the returning officer with regard to the correction of entriesand genuineness of signatures in the nomination papers. Before thepetitioner filed his nomination papers he was pressed by the respondentnot to contest the election and not to file nomination papers. Notonly the respondent but even some other persons approached the peti-tioner for this purpose. The petitioner, however, did not agree to thisand after filing his nomination papers he was directed by the returningofficer to be present for scrutiny on 23-1-67. Preceding the dayof scrutiny the petitioner was however, approached by Mr. MohdDin Bandey who glibly talked to him and persuaded him to cometo see the returning officer. The petitioner believed him. When thepetitioner was on his way back home he was caught hold of by threepersons including Mr. Mohd Din Bandey. He was overpowered andwas physically thrown in the Jeep No. 502 J.K.N. which stood near by.They succeeded in whisking off the petitioner to Jammu where he wasconfined at the official residence of Shri D. P. Dhar the then EducationMinister who was incharge of Congress party Election Machinery inJammu province in those days. There also the petitioner was per-suaded by the said Minister not to contest the election but the peti-tioner refused. It was therefore not possible for the petitioner to be

172 MOHD SAD1£D..JHOHD HUSSAIK [VOL. X U

present on the day of scrutiny in Rajouri at the Head quarters oi' theReturning Officer. The petitioner was informed in the house of ShriD. P. Dhar that his nomination paper had been rejected. Howeveron 26th January 1967 the petitioner succeeded in contacting a partyfriend of his on telephone and in the same evening he made good hisescape. The action of Shri D. P. Dhar, it is alleged, constitutes a graveelectoral offence by having worked and campaigned for the congressparty for its electoral success in this way. The election of the respondentis void because the basis of the same was laid by deprivation of the peti-tioner's electoral rights. The petitioner, because he was confinedcould not be present at the time of scrutiny, but his proposers and otherson his behalf including the lawyer were present at the time of scrutiny.The rejection of the nomination paper by the returning officer, was,therefore, improper.

In his written statement the respondent denied the allegations madeby the petitioner. It was further stated that the nomination papersof the petitioner were validly and correctly rejected.

It may be stated here that this Election Petition originally was sentto one man election Tribunal (District Judge, Poonch) constitutedunder section 94 of the Jammu and Kashmir Representation of PeopleAct. Thereafter the Representation of the People Act was amendedand the petition was sent to the High Court for disposal. Mr. JusticeAnant Singh, an ad hoc Judge of this court, was seized of this case forsome time when on 17-7-1968 the petition was transferred to the file ofthe undersigned.

Issues were originally framed by the Election Tribunal. After-wards when the petition was transferred to the High Court, my learnedbrother Anant Singh J. on 28-2-68 recast issues when on 4-3-68 counselfor the petitioner filed the issues which were accepted by him and theparties were directed to file their respective list of witnesses. Theissues are as follows :

" 1 . Was the petitioner approached by the respondent beforeand after filing of his nomination papers, at first not to file hisnomination papers and later to withdraw the same in considerationof the offer of payment of money to him or procuring a lucrativegovernment job and was the petitioner whisked away from the placewhere he was putting up on the night between 22nd and 23rdJanuary 1967 by subterfuge and intimidation and confined inthe residence of Shri D. P. Dhar on the failure of the heretoforementioned inducements of the respondent as alleged by the peti-tioner in order to prevent him from being present at the time ofscrutiny of the nomination papers with a view to get the same re-jected by the Returning Officer ? O. P. P.

2. Were the petitioner's proposers and his counsel present atthe time of the scrutiny of the nomination papers of the petitioner ?O.P.P.

E.I.R.] MOHD SADIQ, V. MOHD HUSSAIN 1 73

3. Had not the Returning Officer at the time of the presenta-tion of the nomination papers by the petitioner satisfied himselfas to the entries in the nomination paper regarding the name,number and description of the petitioner andthe signatures of the petitioner on the nomination paper ? Inview of the fact that the oath of allegiance had been read andsubscribed too by the petitioner before and in the presence of theReturning Officer and the petitioner having signed the said oathform in his presence and the tallying of the signatures on thenomination papers and on the oath form ? O. P. P.

4. Was the nomination paper of the petitioner rejected im-properly ? O.P.P.

5. Was not the petition presented by the proper and dulyauthorised person in accordance with section 89 Representationof the People Act ? O.P.R.

6. Is the verification in the petition defective and not in accor-dance with O"6 R 15 C.P.G., if so what is its effect on the conti-nuance of the petition ? O.P.R.

7. Is not the affidavit attached to the petition according tolaw and with the provisions of the Representation of PeopleAct ? If not, what is its effect on the petition.

8. Was the presence of the petitioner necessary at the time ofscrutiny ? O.P.R.

9. Was the petitioner a public servant at the time of filing andscrutiny of the nomination papers ? O.P.R.

The petitioner examined Sat Lai Kaul P.W. 1, Returning Officerhereinafter to be called, R.O., Newab Ali P.W. 2, S. Manna SinghP.W. 3, Gharag Ali P.W. 4, Mohd Hafiq P.W. 5, Shah John P.W. 6,Gulzar Ahmad P.W. 7, Mohd Aslam P.W. 8 and the petitioner has alsoappeared as his own witness. In his statement, the petitioner producedthe tape record a'leged to have contained the dialogue between thepetitioner, the respondnent and one third person. The tape recordhas been preserved and forms part of the record.

On behalf of he respondent the statements of Sita Ram R.W. 1Manzur Hussain Iv W. 2, Shah Wali R.W. 3, Kh. Mohd Din BandeyR.W. 4 were recoded. The respondent also appeared as his ownwitness.

I have heard he arguments of the learned counsel for the partiesand have also gone through the file.

Issues Ms. 5, 6 md 7 have not been pressed and are therefore decidedagainst the respondent.

174 MOHD SADIQ, V. MOHD HUSSAIN [VOL. XLI

Issue jVo. i :

This is a composite issue. On the one hand it involves the consi-deration and determination of the question whether the petitioner wasdissuaded by the respondent from filing his nomination papers andcontesting the election by making approaches to him and by offeringhim pecuniary and other advantages, and on the other hand, the factof the petitioner's having been kidnapped a day before the date of scrutinyand confined in the house of Shri D. P. Dhar, the then Minister for Edu-cation, with a view to prevent him from being present at the time ofscrutiny of the nomination papers.

So far as the first part of the issue is concerned, there is very littleevidence on the record to show that the petitioner was approached bythe respondent not to contest the elections, or that a promise was heldout to him that in case he withdrew from elections he would be com-pensated in the alternative. Barring the statement of the petitioner thereis no other evidence to this effect. Of course, in his statement the peti-tioner has adverted to the dialogue which according to him, took placebetween him, the respondent and one other gentleman in Srinagaron 20-6-67. The petitioner has produced a tape record of the dialoguein which it is reported that the respondent asked the petitioner to with-draw from the contest and not to pursue the election petition and thatthe respondent would be offered a suitable Government job; buthas not been proved that the talk recorded in the tape is that of therespondent. The respondent has categorically denied this aspect ofthe matter and has stated that the portion of the talk .reported in thetape record is not his sound at all and that he had never, in fact, anydialogue with the petitioner on the relevant date. The petitioner wasgiven a number of opportunities to prove the fact that the talk recordedin the dialogue was that of the respondent in which he is reported to havemade certain admissions, but this was not done. The petitioner wasasked to make arrangements for making the original tape recordedavailable so that the tape record in the court could be played in pre-sence of an urdu shorthand knowing man who would reproduce thedialogue in the form of a written document. Thereafter the respondentwould be asked to repeat the contents of the dialogue by referring tothe written document. This was the only method to compare the twosounds. It also appeared from the dialogue that three men had takenpart in the dialogue and it was essential to divorce the portion of theutterances alleged to have been made by the respondent from others.The counsel for the petitioner promised to produce the original taperecorder and to do the needful, but this was never done. Nor wasthe third gentleman who was present at the time of the dialogue andwho also participated in it produced and examined in the court.

In the face of this, it must, therefore, be held that the talk in thetape record attributed to the respondent is not established to be liiatof the respondent. Thus we are left with the bare uncorroboratedstatement of the petitioner, and it is difficult to believe this. Thereforethe allegation of the petitioner, that he wa^ offered inducements by the

E.L.R.] MOHD SADiq 0. MOHD HUSSAIN 175

respondent not to file the nomination papers or to withdraw from the•election, is found not established.

The other portion of the issue relating to the story of kidnappingand detention of the petitioner on the day of scrutiny is not alfo establi-shed. The petitioner, in order to prove this allegation, has producedS. Mana Singh and Mohd. Aslam and he also appeared as his ownwitness. In his statement the petitioner has referred to publicationof the News item appearing in "THE PATRIOT" dated 31st January1967,'THE STATESMAN" dated 30th January, 1967, "THE EVENINGNEWS" dated 1-2-67 and "THE PATRIOT" dated 1-2-67. S. MannaSingh stated that he belonged to National Conference party and wasposted in the General Office of the Party at Jammu in the days ofelection when on 23rd of January 1967 he received a telegram sent byone Mr. Aslam from Rajouri intimating that the petitioner, who wasa candidate to the Legislative Assembly from Darhal Constituency,was missing. The witness directed his party workers to make a searchfor the petitioner in the Jail and at the residences of different Ministers.He was informed by his workers that they had seen the petitioner atthe residence of Shri D. P. Dhar, who was the Minister of Jammu andKashmir State, and was also Incharge of the Election Campaign ofthe Congress Party. The witness further stated that he received atelephonic call from the petitioner on 26th January 1967 and recognizedhis voice on telephone. The petitioner asked the witness to meet himat the residence of Shri D. P. Dhar at 7 P.M. on the same day. Whenthe witness reached there he found the petitioner standing on the secondstorey of the residence of Shri D. P. Dhar. The witness waited forhim in the waiting room. The petitioner came from the back door andbeckoned the witness to come out. The petitioner wore a sleepingsuit and had covered himself with a blanket. The petitioner at hisrequest was taken to the office of the National Conference where henarrated the story of kidnap. The petitioner had told the witness thathe was forcibly thrown in the Jeep JKN 502 at Rajouri by Shri MohdDin Bandey and his other associates and was whisked away to Jammuto remain confined in the house of Shri D. P. Dhar. Mohd AslamP.W. stated that on the morning of the day of scrutiny (which the witnesswrongly stated was 23rd of February) he came to know that the. petitionerhas been kidnapped and in this connection he sent telegram to the PrimeMinister, the Home Minister of India and the Party Chief P. B. GhulamMohd complaining against the act of kidnapping. In cross examinationthe witness stated that all the proposers had come to the office of theReturning officer on the day of scrutiny. The respondent raised anobjection that the proposers were not present and on this objectionthe returning officer put questions to the proposers. The witness furtherstated that at the time of scrutiny all the candidates were present, thuscontradicting his earlier statement. The petitioner in his statementmade reference to the story of kidnapping. He stated that he wasnot present at the time of scrutiny. The reasons for his absence werethat he was kidnapped at the instance and with the assistance of ShriMohd Din Bandey, the then M.L.C. now Deputy Minister in the Jammu

1 76 MOHD SADIQ, V, MOHD HUSSAIN [VOL. XL1

Kashmir State. He was brought to Jammu in Jeep bearing No.JKN 502 on the night intervening 22nd of January 1967 and was con-fined in the house of Shri D. P. Dhar. There were two persons on theJeep including the driver Munshi Ram. He was detained in the houseof D. P. Dhar uptill 26th of January 1967 upto 7 P.M. He was placedin the custody of the personal guard of Shri D. P. Dhar who did notallow him even to move out of the room and thus he could not contactany body even on telephone or personally. However, on 26th Januarywhen Shri D. P. Dhar proceeded towards Rajouri in connection withthe celebration of the Republic Day he found an opportunity to givea telephonic call to one Sardar Manna Singh, a party comrade of theNational Conference. The petitioner related the story of confinementto him on telephone. Immediately he succeeded in leaving the houseof Shri D. P. Dhar. He drove straight to the house of B. K. GhulamMohd and narrated him the whole stoiy of kidnapping. Ihe witnessalso addressed a Press Conference on the subject and this news gotpublicity in papers "THE PATRIOT", "THE STATESMAN" and"EVENING NEWS" which have been marked Ex. P.A. Ex. P.B.,Ex. P.C. and Ex. P.D. Extracts of these have been produced in thecourt. On his return, from Rajouri the petitioner enquired from hisproposers about the proceedings of the scrutiny held by the ReturningOfficer. The witness further stated that before he was forcibly thrownin the Jeep at Rajouri and carried away to Jammu he was contactedby Shri Mohd Din Bandey in the house which the petitioner occupiedin Rajouri town and there Shri Mohd Din Bandey persuaded the peti-tioner to accompany him to the house of the Returning Officer so thatthe mistakes in his nomination papers could be set right. Believing himthe petitioner accompanied him to the house of the Returning Officer.It was mid night but the Returning Officer was not there. On hisreturn he found a Jeep nearby standing when he was over poweredand thrown in the Jeep and carried away during the dark hours of thenight. The witness further stated that in the month of June, 1968,when his petition was pending disposal in the court, the respondentapproached him at Srinagar and asked him to withdraw the ElectionPetition in consideration of some pecuniary advantage. This dialoguewas tape recoided and in this dialogue the fact of the petitioner's havingbeen kidnapped on the night preceding the date of scrutiny and sub-sequent detention at the residence of Shri D. P. Dhar appeared. Thetape recorder was fixed up in the room where the petitioner, the res-pondent and one Mohd Rashid Malik the Congress President ofDarhal participated in the dialogue. The record was played in theopen court and it forms part of the record.

To rebut this evidence the respondent has examined Kh. MohdDin Bandey, Deputy Minister of Jammu and Kashmir State, Sita RamStamp Vendor, Manzooi Hussain, Sbab Wali and the respondent alsoappeared as his own witness.

Kh. Mohd Din Bandey stated that he was practising as a lawyerin District Poonch in the year 1967 and appeared as a counsel for therespondent before the Returning Officer of Darhal Constituency at

E.L.R.] MOHD SAOIQ, V. MOHD HUSSAIN 177

Rajouri. The peitioner was not present at the time of scrutiny. OneSardar Vakil appeared on behalf of the petitioner and argued the case.The Vakil produced his power of attorney Ex. P X/B. The witnessdenied that he persuaded the petitioner to accompany him to Jammuon the night preceding the date of scrutiny or he ever went to his placeat Rajouri. Nor did the witness approach the petitioner and askedhim to accompany the witness to the Returning Officer for findingout defects in the nomination papers. It was entirely false that thewitness brought the petitioner in the Jeep from Rajouri to Jammu andkidnapped him. Nor was this a fact that the petitioner was detainedin Jammu in the house of Shii D. P. Dhar. The witness further statedthat on a comparison of 'he signature? on the power of attorney Ex.P X/B with the fignature of the nomination paper of the petitioner thewitness challenged the genuineness of the signatures on the nominationpapers. On this ground the Returning Officer rejected the nominationpapers of the petitioner. The witness examined the nomination papersEx. P. W. 2/1, Ex. P.W. 4/A, Ex. P.W. 6/A and Ex. P.W. 5/A and statedthat on none of these nomination papers the signatures of the peitionerwere genuine because these signatures did not tally with the signaturesof the power of attorney. At the time of scrutiny none of the proposersfor the petitioner was present. In cross-examination the witness statedthat he was incharge of electioneering on behalf of the Congress forthe constituencies of Rajouri and Darhal. The witness never requestedthe petitioner to withdraw from the contest, and that he would becompensated by a moie lucarative job than that of a Forest Ranger.

Another witness Manzoor Hussain R. W. stated that he knewthe petitioner from his childhood. On 24th of January 1967 he andthe petitioner travelled together in a Bus from Rajouri to Jammu andthe petitioner stayed at Jammu. On the way the petitioner told thewitness that his nomination papers had been rejected and that he wasgoing to Jammu to seek advice from the party leader.

Shah Wali has also been produced to depose in the same terms.Sita Ram R. W. is the Stamp vendor who stated that the petitionerpurchased stamps for power of attorney valuing rupee one. Thesewere sold by the witness under numbers 533 and 534 on 231 d of January1967. The petitioner had himself come in the morning time for pur-chasing these stamps. The witness identified the stamps Ex. PX/Baffixed on the Vakaltnama as the same which he had sold to the peti-tioner and beai his signature. The witness further stated that thestamps were pasted by the petitioner in bis presence on the power ofattorney and the relevant entries on the power of attorney had alreadybeen filled in by him. The stamp register has been produced by thewitness and forms part of the record.

After a careful scrutiny of the evidence led on either side thereappear strong doubts in the story that the petitioner was kidnappedand detained in the house of Shri D. P. Dhar at Jammu on the day ofscrutiny and thereafter upto 26th of January. It is a matter foi con-sideration that right from Rajouri upto Jammu there is a distance ©f

12—4Elec. Com./71

178 MOHii SADIQ, V. MOHD HUSSAIN [VOL. XLI

ioo miles and there are a number of Military check posts on the roadside. If the petitioner was forcibly carried away to Jammu againsthis will and consent it is difficult to believe that he would not have evencomplained of this fact at these military check posts where during thenight time Ihere is thorough checking of the vehicles. There are aswell bars and pillars placed on the way to prevent an easy pa?s of thevehicles. At these check posts the driver has to come down from thevehicle and report to the I/C M. P. Check Post about his destination.That the Jeep stopped in the way on these M. P. Check posts andthe driver reported at these posts, is not denied. When the vehiclestopped near the M. P. Posts the petitioner had time to raise hue and cryand attract the attention of the Incharge M. P. personnel. How can thenthis carry conviction that the petitioner was kidnapped in the Je<*p andhe did not even murmur or protest or complain against the action ofthe inmates of the Jeep. Nor has the petitioner examined any of theM. P. personnel detailed on duty at various check posts from Rajourito Jammu on the relevant night so that it could be corroborated fromthe military record that the Jeep bearing No. 502 JKN Jiad reallyplied from Rajouri to Jammu on that night. Again, Rajouri is a bigtown inhabited by about 4000 to 5000 men. It cannot be believedthat the petitioner should have been physically thrown in the Jeepand that he should not have raised any hue and cry or protested atthat time inviting the attention of the public at large. Moreover nobodyfrom Jammu excepting S. Manna Singh has been examined by the peti-tioner to prove that he was confined in the house of Shri D. P. Dhaiupto 26th of January. It is true that in the Newspapers the fact ofdetention of the petitioner was given publicity after three days when apress conference, was addressed in Delhi on 29th January. But thisin itself if not a positive proof of the fact of detention. It may be saidto be an after thought or mere figment of the imagination of the peti-tioner. The standard of proof required for establishing this must beof high order. The burden lies heavily on the petitioner to prove thisfact and it must be proved beyond any shadow of doubt by convincingand unimpeachable evidence. Now the evidence adduced by thepetitioner in regard to this aspect of the matter consists of his own state-ment coupled with the talk in the tape record and the statement ofSardar Manna Singh. The talk in the tape record, as has been pointedout above, has not been proved to be that of the respondent. Theadmissions alleged to have been made by the respondent in the tapewould have been valuable piece of the evidence had it been provedthat the utterances in the dialogue were of the respondent and thatthis was his voice. This not having been done we are left with the barestatements of the respondent and Manna Singh which do not carryconviction at all. This evidence does not lend any credence as it istoo meagre and appears tainted as well. Apart from the fact that theproof available is scanty there appear serious doubts about the varacityof this allegation. The story is contradicted by another piece of evidenceon the record that is the statement of Sita Ram, Stamp vendor. Thiswitness' has produced the original stamp register. He stated that hesold stamps to the petitioner on the morning of 23-1-1967 i.e., the day of

E.I-B.] MOHD SADIQ, V, MOHD HJJS&AIN 179

scrutiny. In the stamp register and on the stamps the name of thepetitioner appears. Nothing has been shown as to why the statementof the stamp vendor should be discredited. The Register producedby him has been maintained in proper and regular way. The entriesare in mid register and are normal. There are no erasures in theregister. From the perusal of this register it appears that the name ofMohd. Sadiq to whom the stamps for power of attorney Ex. PX/Bwere sold appears therein. This proves that the petitioner was not inJammu on the morning of 23rd of January. The fact that Kirpal SinghVakil counsel for the petitioner in the scrutiny proceedings has not beenexamined by the petitioner raises an adverse presumption against him.He was an important witness to have been examined by the petitioneras he was his counsel and had acted on the power of attorney Ex. PX/Bbefore the Returning Officer. The mere fact that the petitioner hasnow denied in his statement that Ex. PX/B is not the same power ofattorney which he had executed in favour of Kirpal Singh is of no con-sequence as the same is established by the Returning Officer and KirpalSingh has not been produced to disprove this. In view of all what hasbeen stated above it is held that the story of kidnapping from Rajourito Jammu and confinement of the petitioner at the house of Shree D. P.Dhar is not found established.

Issue No. 2

The petitioner filed four nomination papers Ex. P. W.2/1, Ex. P.W;4/a, Ex. P.W. 5/a and Ex. P.W. 6/a before the Returning Officer.His proposers, according to this statement, were Mohammad HafizShah Johan, Newab Ali and Ghirag AH. The petitioner has admitted,in his statement, that S. Kirpal Singh was his counsel who appearedon his behalf at the time of the scrutiny. Gulzar Ahmad anotherwitness of the petitioner stated that on the date of scrutiny Cbirag Aliand Mohd. Hafiz were present and that the Returning Officer enquiredfrom the said proposers whether they had proposed the name of thepetitioner for his candidature from Darhal Assembly Constituencyand these proposers had admitted having done so. However, Mohd.Aslam another witness of the petitioner has stated that all the 4 pro-posers of the petitioner were present at the time of the scrutiny and S.Kirpal Singh was also present. However, among the proposers onlyNewab Ali P.W. has admitted that he was the proposer of the petitionerto the nomination paper Ex. P.W. 2/1 and that he was present at thetime of the scrutiny. The remaining three proposers i.e. Chirag Ali,Mohd. Hafiz and Shah Johan PWs denied the fact that they had pro-posed the name of the petitioner as a candidate. These witnessesalso did not state that they were present at the time of the scrutiny.All these witnesses have been declared hostile. Mr. Sat Lai Kaul is theReturning Officer. He has stated that on the day of scrutiny neitherthe petitioner nor his proposers were present. S. Kirpal Singh, apleader, represented the petitioner. The respondent, in his statement,,has also denied the presence of the proposers before the ReturningOfficer. Among all the witnesses produced on this issue the statement

1 8 0 MOHD SADIft V. MOHD HUSSAIN [VOLl XLI

of Returning Officer carries weight. He has definitely stated that noneof the proposers of the petitioner was present on the day of scrutiny.

It is, therefore, held that only Sardar Kirpal Singh counsel forthe petitioner was present at the time of scrutiny and none of his pro-posers was present. The issue is answered accordingly.

Issue No. 3

The Returning Officer, in his statement, has stated that the signatureon the oath form was affixed in his presence by the petitioner, after theoath was read by the petitioner and this has been endorsed by him.The endorsement on the oath form was signed by the witness on 20thJanuary 1967 when the petitioner presented before him the 4 nominationpapers. The entries in the nomination papers were compared withthe corresponding entries in the Electoral Rolls and they were foundcorrect.

From this evidence it is established that the Returning Officersatisfied himself regarding the entries in the nomination papers res-pecting the name, number and description of the petitioner and alsothe signature of the petitioner on the nomination papers. This wasdone at the time when the oath of allegiance was read by the petitioneron 20th January 1967 in presence of the Returning Officer.

Issue No. 4

This is a material issue in the case and, in fact, on this hinges thefate of the case. The Returning Officer, in his statement, has statedthat he rejected the nomination papers of the petitioner on the groundthat the petitioner was not himself present nor any of his proposers waspresent at the time of scrutiny and the signature of the petitioner onthe Vakaltnama Ex. P. X/B which Kirpal Singh produced before himas counsel did not tally with the signatures on the four nominationpapers of the petitioner. He, however, stated that he had comparedthe signature of the petitioner from the nomination paper with the oneon the oath form which the petitioner had signed in presence of theReturning Officer earlier on 20th of January 1967 and those signaturestallied with one another, but they did not tally with the signatures onthe Vakaltnama. The grounds of rejection have been recorded by theReturning Officer at the back of four nomination papers Ex. P.W. 2/1,Ex. P.W1: 4/a, Ex. P.W. 6/a and Ex. P.W. 5/a.

It is worth while to deal with the four nomination papers separatelyand to see if all of them have been improperly rejected by the ReturningOfficer. The four nomination papers on the record, as already stated,are : Ex. P.W. 4/a, Ex. P.W. 5/a, Ex. P.W. 6/a and Ex. P.W. 2/1.

Now in so far as the first three nomination papers i.e. Ex. P.W.• 4/a, Ex. P.Wr. 5/a and Ex. P.W. 6/a are concerned the proposers namely,Mohd. Hafiz, Shah Johan and Chjrag Ali, who have appeared as wit-nesses for the petitioner, have not supported the petitioner. They have

E.L.R.] MOHD SADIQ_ V. MOHD HUSSAIN 181

clearly stated that they never proposed the name of the petitioner as acandidate for the Darhal Assembly Constituency and that their sig-natures on these nomination papers were taken when they were madeto believe that they had to sign forms of membership. These threeproposers never appeared before the Returning Officer at the time ofthe scrutiny. Had they appeared they would have probably statedbefore the Returning Officer something which they have stated beforethis court. Thus when the very proposers have backed out and havedefinitely stated against the petitioner that they were not his proposersat all in respect of the above three nomination papers, it cannot be saidthat these three nomination papers were rejected improperly. It isfutile for our purposes to proceed further to examine the question ofthe genuineness of the signature of the petitioner on these nominationpapers because even assuming that the signatures of the petitioner onthese three nomination papers are genuine that would not improvehis case in view of the fact that his proposers which is mandatory re-quirement of law of election have backed out.

As regards the fourth nomination paper Ex. P.W. 2/1 the case isotherwise. Newab Ali is the proposer of this nomination paper. Hehas stated before this court that he proposed the name of the petitioneras a candidate for the Darhal Assembly Constituency and that thenomination paper Ex. P.W. 2/1 bears his signature. This witness hasstuck to his original position and has supported the petitioner in allrespects. The Returning Officer has rejected the nomination paperon the ground that he was satisfied that the signature on the nominationpaper of the petitioner was not genuine as he had compared it with thesignature on the Vakaltnama. (Ex. P.W. X/B), but the Returning Officerin the same breath has stated that he had compared the signature ofthe petitioner from the nomination paper with the one on the oath formwhich the petitioner had signed in his (Returning Officer) presenceon 20th of January 1967 and those signatures tallied with one another.The Returning Officer, it is clear, has clearly contradicted himself onthe question of the genuineness of the signatures on the nominationpaper. The petitioner, it is admitted by him, signed the oath formin his presence on 20th of January 1967. Thus there is no disputewith regard to the genuineness of the signature of the petitioner on theoath form. The Returning Officer clearly stated that he comparedthis signature on the oath form with those on the nomination papersand he found that these signatures tallied with each other, meaningthereby, that the signatures on the oath fo"m and on the nominationpapers were of one and the same man. He stated that he rejectedthe nomination paper on. the ground that he became doubtful withregard to the genuineness of the signatures of the candidate on thenomination paper as they did not tal'y with the signature on the Vakalat-nama Ex. P.W. DX/B. Needless to say that it was not the genuinenessof the signature on the Vakalatnama that was in dispute and about whichhe had to opine, nor could the Returning Officer assume the role of anexpert and compare the signature on the Vakalatnama with those onthe nomination papers when he had categorically stated that the two

182 MOHD SADIQ, V. MOHD HUSSAIN [VOL. XU

signatures i.e. on the oath form and on the nomination papers wereidentical. It follows that he was satisfied with regard to the genuine-ness of the signature on the nomination paper and thus there was noreason for him to have held that the signatures on the nomination paperswere not those of the petitioner. The Returning Officer has givenno plausible reason for rejecting the nomination paper when he saysthat he became doubtful whether the signatures on the nominationpaper were those of the petitioner inspite of the fact that those signaturestallied with the one on the oath form..

Another reason given by the Returning Officer while rejectingthe nomination paper that neither the petitioner nor his proposers werepresent. Now it is not necessary that at the time of scrutiny the peti-tioner or his proposer must himself be present. The law requires thata candidate, his election agent, proposer and one other person dulyauthorised in writing by each candidate, may attend. This is pre-cisely provided by section 47 of the Representation of People Act. Itis, therefore, not mandatory that the petitioner and the proposer mustbe present at the time of the scrutiny. The Returning Officer statedthat on the day when the nomination papers were presented beforehim by the petitioner he compared the entries in the nomination paperwith the corresponding entries in the Electoral Rolls and found themcorrect.

In my opinion inspite of the absence of the petitioner at the time ofscrutiny the Returning Officer who satisfied himself with the genuine-ness of the signatures on the nomination paper after comparingthe same with the oath form could have accepted the same as therewas no legal flaw in its acceptance. The returning officer could onlyreject the nomination paper on the grounds mentioned in section 47 ofthe Jammu and Kashmir Representation of the People Act which includesspurious signature of the candidate, but that was not the case here.

It is also pertinent to observe that during the course of the trialof the Election Petition the respondent made an application to thiscourt that the signature of the petitioner on the nomination papersbe got compared by a hand writing expert. On this application thecourt observed that this would be considered on the due date fixed inthe case. Thereafter the respondent did not examine any expert anddid not send the impugned signature for examination to an expert.He last of all made an application that he did not want to do it. Thiscircumstance is also worth to be taken into consideration. This showsthat the respondent himself had no serious doubts about the genuine-ness of the signatures on the nomination papers in question. Had itbeen so he would have definitely pursued the application and insistedon sending the signatures to the expert for comparison.

For all what has been said above, I, therefore, hold that the ReturningOfficer has improperly rejected the nomination paper Ex. P.W. 2/1.This also disposes of issue No. 8 as it has been answered in the negativethat the presence of the petitioner in person was not necessary at the timeof the scrutiny.

E.L.R.] AMBIKA SARAN SINGH V. MAHANT MAHADEV NAND GIRI 183

Issue No. 9

The respondent has not led any evidence to show that the petitionerwas a public servant at the time of filing and scrutiny of the nominationpapers. It is true that the petitioner was a Forest Ranger before he filedhis nomination papers but he had resigned the job already and there isa letter of attestation from the Conservator of Forests to this effect. Itis on the record. The respondent has not adduced any evidence to showthat the petitioner has any subsisting interest in Government service.The issue is, therefore, decided against the respondent.

The result is that the petition is accepted and the election of therespondent is set aside as void. In view of the peculiar circumstances ofthe case I make no order as to costs. Let the result of this petition becommunicated forth-with to the Election Commission, New Delhi andSpeaker of the Jammu and Kashmir Assembly to be followed by a copyof the judgment to each of them under rules. The judgment will alsobe published in Jammu and Kashmir Government gazette.

Petition allowed.


AMBIKA SARAN SINGH

V,

MAHANT MAHADEV NAND GIRI

( J. M. SHELAT & V. BHARGAVA)

February 4, 1969

Representation of the People Act, 1951, section 123(3) an<l (7)—-Bribery—Canvassingof votes on communal basis—proof of—where canvassing is widespread whether particularsnecessary.

Witnesses—-testimony of interested witnesses—reliability. Obtaining the Assistance ofGovernment servants—proof of.

The Respondent, a defeated candidate, by an election petition sought to havethe appellant's election set aside on the ground that he had committed various corrupt-practices namely, that he distributed money to Harijan voters in various villages asbribery ; that he, and with his consent, his agents, canvassed on the basis of his casteand that he procured the assistance of 4 gazetted officers, all of whom, except one, beingin the Department of Commercial Taxes, which was under the charge of the appel-lant who was a Minister of State at the relevant period. The trial court found theappellant guilty of all the three charges and set aside his election. In appeal, con-curring with the trial court, the Supreme Court

184 AMBlKA SARAN SINGH V. MAHANT MAHADEV NAND G1RI [VOL. XLI

HELD : (i) If the appellant wanted to challenge a finding of fact arrived atby the High Court it would be for him to show the reasons establishing its incorrect-ness. An electoral campaign on the lines of caste and community is destructive of thecountry's integration and the concept of secular democracy which is the basis of ourconstitution and it is this which is reflected in section 123(3) of the Representationof the People Act. But there is a possibility of the danger of a frustrated candidatemustering a number of his followers to testify falsely in a vague manner that hisopponent had campaigned on the basis of his caste or community. Therefore, beforesuch an allegation is accepted the Gxrrt mist be on guard against such a pVisibilityand must demand adequate particulars. A witness deposing to such an allegationmust point out when, where and to whom such an appeal is made. But where theallegation is that such canvassing was widespread and at several places it would beimpracticable to call upon the election petitioners to give the names of persons allegedto have been approached with such au appeal and the actual words spoken to eachof them. In short the question as to the extent of particulars which the Court woulddemand depends on the circumstances of each case, the nature of the charge allegedand the quality and reliability of evidence before it. The absence of any documentaryevidence, for instance, at least a complaint to that effect to the election authorities tocorroborate the oral evidence of witnesses would not be treated as a ground to negativethe allegations contained in the petition.

Ram Dial vs. Sant Lai (1959) Supp. S.C.R. 748 Chandrasekhar Singh v. Sarjoo PrasadSingh A.I.R. 1961 Pat. 189 ;

Raj Dev v. Gangadhar Mahantra, A.I.R. 1964, Orissa 1, 5 ;distinguished

Tae testimony of a witness, even if he is an interested one, such as an electionagent or polling agent cannot be rejected only for that reason. At the most thecourt in such a case would scrutinise his testimony closely and demand corroborationbefore acting upon it. In the case of a witness, part of whose testimony has not beenaccepted, it does not follow that his entire testimony must be discarded.

UmarAbirv. State of Bihar, A.I.R. 1965 S.C. 277 ; NisarAliv. State of Uttar Pradesh1967, S.C.R. 657, 651;

referred to

(2) When there is suffic'ent proof both oral and documentary to show that theofficers in the Department of Cimmerical Taxes canvassed and raised money forthe appellant, the absence of particulars regarding the names of those who'were ap-proached or the amount collected from them would not, in the circumstances of thecase, make the offence of procuring the assistance of Government servants for electionless serious.

CIVIL APPEAL NO. 1516 OF 1968

JUDGMENT

SHELAT, J.

This appeal is against the order of the High Court of Patna declaringthe appellant's election from Barhara Assembly constituency, Biharvoid under S. 100(1) of the Representation of the People Act, XLIIIof 1951.

At the time of the general election in February 1967 the appellantwas the Minister of State in the Finance Department of the Stateof Bihar. There were in all 8 candidates contesting from Barhara


constituency. The poll day was February 15, 1967. Having obtained21791 votes against 20243 votes obtained by respondent 1 (the electionpetitioner), the appellant was declared elected.

In the election petition filed by respondent thereafter, he madea number of allegations of diverse corrupt practice giving particularsthereof in more than 10 schedules. In his written statement theappellant denied all these allegations and also filed a recriminatorypetition under s. 97 of the Act. On these pleadings the High Courtraised as many as 13 issues. The parties examined 292 witnesses inall besides producing documentary evidence. In an elaborate judgment,the High Court after examining the voluminous evidence led by theparties held the appellant guilty of 3 corrupt practices, namely, ofdistributing money to Harijan voters in various villages as bribery,of having canvassed on the basis of his caste, namely, Rajputs and ofhaving obtained or procured the assistance of 4 gazetted officers,namely, R. Ws. Sheo Bachan Singh, Muni Lai, R.S. Prasad andBhupender Narain Singh, all of whom except Muni Lai being in theDepartment of Commercial Taxes which was under charge of theappellant. The High Court declined to uphold the rest of the al-legations on one ground or the other. The recriminatory petitionfiled by the appellant was not pressed and was accordingly dismissed.Consequently, we are concerned in this appeal with the aforesaid3 alleged corrupt practices held by the High Court established. Thequestion for determination is therefore whether the High Court wascorrect in holding the appellant guilty of the said three corruptpractices.

3. 100(1) of the Act inter alia provides that subject to the provi-sions of sub-s. 2, if the High Court is of opinion that any corrupt prac-tice has been committed by a returned candidate or hi« election agent•or by any other person with the consent of a returned candidate orhis election agent or that tit. result of the election, in so far as it con-cerns a returned candidate, has been materially affected by anycorrupt practice by an agent other than his election agent, it shalldeclare tne election of the returned candidate to be void. S. 123 enu-merates various corrupt practices including bribery, appeal by acandidate or hi? agent or by any other person with the consent of thecandidate or his election agent tc vote or refrain from voting for anyperson on the ground of his caste or community for the furtheranceof the prospects of the election of that candidate or for prejudiciallyaffecting the election of any candidate, and the obtaining or pro-curing by a candidate or his agent or by any other persons with theconsent of a candidate or his election agent any assistance other thanthe giving of vote for the furtherance of the prospects of that candi-date's election from any person in the service of the Government andbelonging inter alia to the class of gazetted officers.

On the question of bribery to Harijan voters the evidence fellinto two categories : one alleging that money was distributed amongstthe Harijans in the presence of the appellant, and the other alleging

186 AMBIKA SARAN SINGH V. MAHANT MAHADEV NAN0 GIRI [VOL. XLI

distribution by Ram Bilas Singh, the appellant's election agent andhis other agents. As regaids the first category of evidence, there wasonly one witness, P.W. 111 of Barhara who deposed that it was in thepresence of the appellant and the gram sevak of Barhara that the ap-pellant's agent Tapsahwar, R.W. 67, distributed money to certainHarijans of Barhara. Against the said Ram Bilas Singh and otheragents there were however a number of witnesses from different villagesalleging that those agents paid various amounts in their presenceto the Harijans of those villages. Against Ram BilJas Singh therewas evidence of 7 witnesses from villages Chhinegaon, Sohra, Rampur,Noorpur and Jagatpur. All these witnesses deposed that they sawRam Bilas Singh going to the Harijan quarters of these villages andpaying Rs. 2 to each Harijan residing there. Ram Bilas Singh wasexamined by the appellant as R.W. 32 and he denied in general theallegation of bribery but no specific questions in relation to the evidencecf these witnesses was put to him or any denial taken. TapeshwarSingh, R.W. 24 worked as the appellant's agent. Against him therewas evidence of 9 witnesses from villages Keshopur, Mohanpur,Basantpur, Lauhar, Ekawha, Babura, Daulatpur and Barhara. Evi-dence of distribution of money to Harijans against another agentSheo Bachan Singh, R.W. 51, who was then the Assistant Superin-tendent of Commercial Taxes at Chaibasa consisted of the testimonyof P. Ws. 85, 98, 102 and 118 of villages Babhanagwan, Puna andRampur. Against Ram Sunder Singh, the uncle of the appellant,here was the evidence of P.Ws. 47 and 114 of villages Ghoradei andHematpur. As against this evidence the appellant examined himselfand the said Ram Bilas Singh, Tapeshwar Singh, Ramchandra Singh,Sheo Bachan Singh and Ram Sunder Singh and all of them deniedhaving given any money to the Harijans as bribe. The High Courtaccepted the evidence of the witnesses of respondent 1 and rejectingthe denials of the appellant and his witnesses and held that briberywas given by the appellant, his election agent and with his consentthe other agents to Harijans voters of the aforesaid villages witha view to induce them to vote for him.

On the question of appeal on the ground of caste, the allegtionwas contained in para 23 of the petition and Sch. VI thereto. Theallegation was that between the 12th and the 14th of February 1967the appellant, his said election agent and other agents canvassed votesfor him on the basis that the appellant was a Rajput, that if he waselected he would become a minister, that one Satyendra NarainSingh, also a Rajput, would become the Chief Minister and thatwith the two of them in the cabinet they would establish Rajput Rajin the State and advance the interests of Rajputs. In support of thecharge, Respondent 1 produced in all 71 witnesses from differentvillages where the appellant and his agents were said to have can-vassed on the aforesaid basis. These witnesses were both Rajputsand non-Rajputs and expressly gave the names of the appellant andhis canvassers who included Kalika Singh, Jai Narain Singh, the saidMuni Lai, the said Sheo Bachan Singh and one Dinesh Singh. The


learned Trial Judge, however, excluded evidence against these fivepersons from consideration on the ground that their names did notappear in Sch. VI. The aforesaid witnesses came from villages Chat-tar, Bhadeyan, Keshopur, Sanjoya, Sinha, Chinnegaon, Milky, Mo-hanpur, Tola Acharajlal, Rasantpur, Gaziapur, Purshotampur, Keotia,Karari, Veria, Farhada, Fuhana and Feveral other villages. Theirevidence was that the appellant, the said Ram Bila? Singh, Tapesh-war Singh, Ram Chandra Singh, Avdesh Kumar Singh, DwarkaSingh and Chandrika Prasad Singh, all agents of the appellant, cam-paigned on the basis that the appellant was a Rajput and that theRajput voters in these villages should therefore vote for him. TheTrial Judge examined the evidence of each of these witnesses sepa-rately in the light of the criticism offered against it on behalf ofthe appellant and the evidence given by him and his agents andaccepted it holding that he found no valid reasons why so manywitnesses should come forward to falsely depose against the appellantand his agents and held that corrupt practice to have been proved.

The allegations that the appellant obtained or procured assis-tance from gazetted officers to further his electoral prospects is tobe found in paras 16 to 19 of the petition and Sch. IV thereto. Theappellant denied the allegation in paras 29 to 45 of his written state-ment. The evidence in support of the allegation came from 43 witnesseshailing from about 26 villages. Apart from the oral testimony of thesewitnessess there was evidence that even before February 15, 1967respondent 1 had sent a telegram Ex. 4/X to the Chief Minister of theState complaining that the Assistant Commissioner and the AssistantSuperintendent, Commercial Taxes, Arrah were collecting moneyand under threats from bussinessmen to assist the appellant andsoliciting action. The Government thereupon ordered on February 15,1967 that a detailed report regarding the said allegation should besent to it. Thereafter the Personal Assistant to the Collector ShahabaArrah sent a lettei Ex. 4/Y dated February 17, 1967 calling uponrespondent 1 to furnish particulars. The I rial Court observed thatas polling had already taken place by this time respondent did notpursue the matter any more. Besides the telegram, respondent 1had also written letters to the relevant authorities complainingagainst the Assistant Commissioner, The Assistant Superintendent,Commercial Taxes, Arrah and R.S. Prasad, R.W. 58 as havingcanvassed for the appellant and requesting that these and otherofficers from the department of Commetcial Taxes should not beentrusted with the work of counting of votes as he had serious appre-hension about their bonafides. The allegation consisted of canvassingand collecting an election fund for the appellant by (1) the said SheoBachan Singh, (2) Muni Lai, the Deputy Collector on probation,(3) Bhupender Narain Singh, the Assistant Commissioner, CommercialTaxes, Arrah and (4) R.S. Prasad, an Accounts Officer in theDepartment of Commercial Taxes, Arrah.

There is no dispute that all these officers were gazetted officersand that officers 1, 3 and 4 were serving at the time in the Department

1 8 8 AMBIKA SARAN SINGH V. MAHANT MAHADEV NAND GIJRI [VOL. JCLI

of Commercial Taxes which was under the charge of the appellant.I he purport of the evidence was that these officers had gone to thevillages of these witnesses a few days before the polling day andthreatened the shop-keepers there that if they did not vote for theappellant they would be examined by the appellant and all of them deniedallegations made against them. The High Court, however, foundthat besides the testimony of these witnessess there was documentaryevidence corroborating the witnesses and therefore rejected the denials ofthese officers and held the charge proved especially as there was nothingto show why so many witnesses should have deposed against theappellant and these officers. Thus, according to 'respondent i, thestrategy employed by the appellant was to garner as many sectionalvotes as possible (a) by bribing Harijan voters, (b) by making acaste appeal to the Rajputs and (c) by coercing the shop-keepersthrough these officers, thus polluting the purity of the electoral processby a three-pronged effort.

To dispute the correctness of the findings of the High Court onthese three charges, counsel for the appellant took us to the evi-dence of a large number of witnesses examined on behalf of the appel-lant and respondent i. Ultimately, however, he told us that thepattern of the evidence of these witnesses on all the three questionsboth in their examination-in-chief and * in cross-examination wasconcern. Therefore, it is not necessary for us to burden this judgmentwith the details of the evidence of each of these withnesses.

Of the three corrupt practics upheld by the trial court we proposefirst to take up for consideration these relating to appeal on the basisof caste and obtaining or procuring the assistance of gazetted officersby the appellant for the furtherance of his electoral prospects, for,if we are satisfied that respondent i has succeeded in establishingeither of these two charges and the appellant has not been able todislodge the findings on them by the High Court it would not becomenecessary for us to go into the charge of bribery to Harijan voters.As held by this Court on more than one occasion if the appellantwants to challenge a finding of fact arrived at by the High Courtit would be for him to show the reasons establishing its incorrectness.

The principal contention of counsel for the appellant was thatit would be very easy for a defeated candidate to collect a numberof witnesses from different villages to depose in general terms thatthe returned candidate had made an apppeal to the voters on the basisof caste and if that were done it would become difficult for such anopponent to refute such general evidence. The only thing that re-turned candidate m such circumstances can do is to answer such generalevidence by an equally general denial, which the appellant and thoseof his agents who were charged of appealing on the basis of caste havedone. He submitted that being the position the trial court was inerror in acting upon such evidence. He also submitted that neitherin para 23 nor in Sch. VI to the petition had respondent 1 attributed

E.L.R.]" AMBIKA SARAN SINGH V~. MAilANT MAHADEV NAND G1RI 189

to the appellant any particular village oV villages where he cam-paigned on the basis cf his caste although in Sch. VI he had ascribedcertain villages to his election agent and other agents, that inSch. VI thename of each of these agents has been set out against a particular villageor villages which meant that each of them was charged with carryingon caste-v\ise campaign in that village or village only. The trialcourt, therefore, was in error in admitting evidence relating to villasesother than these as named thereby prejudicing the appellant's op-portunity to refute such evidence. He also argued that of the 8 candi-dates in this constituency the appellant, respondent i and two othercandidates were Rajputs. An appeal on the basis that the appellantwas a Rajput could, therefore, hardly be effective as even then theRajput vote would be divided. The Barhara constituency, he argued,being a composite constituency consisting of Rajputs and non-Rajputs,it was highly improbable that an appeal to the Rajputs on the basisof caste could have been considered appropriate as non-Rajput votersin the result would be alienated against the appellant. Besides, theevidence of witnesses examined under this charge was, according tohim, vague and general in the sense that none of them spoke of theactual words used by each of the agents or gave names of the Rajputvoters to whom they were addressed. There was also no documentaryevidence in support of ihe testimony of these witnesses such as a pamp-phlet or a leaflet issued by the appellant or his agents. He furtherargued that of the 71 witnesses examined by respondent 1 on this chargequite a number of them were interested witnesses in that they wereeither his polling agents or had expressed a dislike for the appellantand a corresponding predilection for respondent 1. Lastly, he arguedthat from amongst the agents in respect of whom the charge was made,Sheo Bachan Singh, R.W. 51 and Muni Lai atleast could establishthat from the 13th to 15th February, 1967 they were working in theirrespective offices at Chaibasa and Bhagalpur both the places beingfar away from this constituency and therefore their evidence negativedthe charge made against the appellant.

Before we proceed to consider these submissions we may observethat there is evidence to diow that there are a number of villages inthis constituency where Rajputs from a considerable section of thepopulation. Thus, P. Ws. 6, 33, 34, 50, 108, 118, 121, 140, 145, 158,32, 65, 128 and 138 have deposed that in their respective villages theRajputs population is considerable. Ram Bilas Singh, R.W. 32,has deposed that in this constituency the Rajput population would befrom 20 to 25% of the total population. Likewise, R. Ws. 4, 17, 20,30, 35, 40 and 55 have ail deposed that in villages Pipra, Keshopur,Gundi, Lauhar, Hemantpur, Chattar and Ekwan the Rajputs forma predominant or at any rate a fair section of the population.

Indian leadership has long condemned electoral campaigns onthe lines of caste and community as being destructive of the country'sintegration and the concept of secular democracy which is the basisof our Constitution. It is this condemnation which is reflected ins. 123(3) of the Act. Inspite of the respeated condemnation,

1 9 0 AMBIKA SARAN SINGH V. MAHANT MAHADEV NAKD GIRI [VOL. XLI

experience has shown that where there is such a constituency it has been-unfortunately too tempting for a candidate to resist appealing tosectional elements to cast their votes on caste basis. The contentionof counsel, however, was that there was on the other hand the dangerof a frustrated candidate mustering a number of his followers to testifyfalsely in a vauge manner that his opponent had campaigned on thebasis of his caste or community. Therefore, before such an allegationis accepted, the Court must be on guard against such a possibility andmust demand adequate particulars. A witness deposing to such anallegation must point out when, where and to whom such anappeal was made. That, said counsel, was not done and thereforethe evidence of witnesses howsoever numerous should not have beenaccepted.

But where the allegation is that such canvassing was widespreadand at several places it would be impracticable to call upon the electionpetitioner to give the names of persons alleged to have been approachedwith such an appeal and the actual words spoken to each of them.If such an appeal is made, for instance, at a meeting it would be diff-cult for a witness to name those to whom such an appeal is made.It is for this reason that courts in England have made a distinctionbetween bribery to voters and treating them. In the latter classof cases, names of persons treated by the candidate have not beendemanded though the election petitioner would be ordered to specifythe character and extent of the alleged corruption. This is so eventhough the English law of elections emphasises the individual aspectof the exercise of undue influence, whereas what is material underour law is the commission of an act which constitutes corrupt practice,[see Halsbury's Laws of England, (3rd ed.) Vol. 14, p. 278]. A com-mand by a religious head to his followers that it was their primary dutyto support a particular candidate was held sufficient to vitiate theelection and it was not considered necessary to have the names of thepersons to whom the command was addressed. [ cf. Ham Dial vs.Sant Lal(i)]. The case of Chandrashekhar Singh vs. Sarjoo Prasad Singh,(2) relied on by Mr. Verma, is clearly distinguishable as the allegationthere was of intimidation and assault of certain workers and voterswho as a result of injuries inflicted on them has to be admitted ina hospital. The incident there was a single one where particulars werepractical and not of a corrupt practice alleged to have been committedin respect of fairly large groups of persons at different places. Thequestion as to the extent of particulars which the Court would demanddepends on their circumstances of each case, the nature of the chargealleged and the quality and reliability of evidence before it. In theinstant case the dates, places and the persons by whom the appeal onthe ground of caste was made and even the contents of such an appealwere furnished in the pleadings as also in the evidence. In somecases the witnesses deposed that they themselves were approachedto vote for the appellant on the ground that he was a Rajput by caste,

(1) (19.59) Supp. S.C.R. 748(2) A.I.R. 1961 Pat. 189

E.L.R.] AMBIKA SARAN SINGH V. MAHANT MAJtADEV NAND GIRI 191

that if elected he would be a minister and in collaboration with thesaid Satyendra Narain Singh, who would become the Chief Minister,Rajput interests would be consolidated in the State. In the circums-tances we cannot agree that merely because the witnesses did notgive the names of voters to whom the appeal was made their evidencecould not or should not have been accepted. The Trial Judge thoughtit in the circumstances of the case to be sufficient even in the absenceof those names and we do not feel compelled to come to the conclusionthat he was in error in doing so.

Contentions 2 and 3 of Mr. Verma arise clearly as a resultof a misunderstanding of para 23 of the petition and Sch. VI. Theargument was : (1) that though it was alleged that the appellant cam-paigned on caste basis and though villages where his workers cam-paigned in the like manner were set out in the said para no particularvillage was mentioned in relation to the appellant, and (2) thatcertain villages were set out against the name of each of the said agent'sevidence against them should have been confined with reference tothose villages only and not in respect of other villages. Para 23 inexpress terms contains the averment that the appellant and his workersnamed therein carried on propaganda on the basis of caste in variousvillages mentioned therein. It is wrong to read in that para that thosevillages were set out with reference to his workers only and not withreference to him also. Sch. VI refers to the appellant's workers onlywho conducted the said campaign and therefore it did not mentionthe appellant. It contains three columns, the first of them gives dateswhen the said appeal was made, the second the names of the appel-lant's agents who made it and the third the villages where it was made.It is wrong to read the second and the third columns of the Scheduleas if certain villages were set out against such of the said agents. Thecontention that evidence in respect of villages other than those set outagainst the said agents was wrongly admitted cannot therefore besustained.

Contention 4 was that of the 8 candidates in the constituencythe appellant, respondent 1 and two others being Rajputs, an appealon the basis of the appellant being a Rajput was scarcely probableas such an appeal on the contrary would divide the Raiput vote. Wethink there is no substance in this contention because even if thereare more than one contestant belonging to a particular caste, oneof them may appeal on the basis of his caste and the others may not.In such a case the voters from that caste are likely to be induced tovote for the one who campaign on the sectarian basis and promises toadvance their interests rather than for the others who do not so appealand induce, Respondent 1 is admittedly a sadhu and the evidence showsthat though several allegations were made against him in respect ofhis activities he was doing work for special and educational advance-ment. His case was that he had renounced his caste and severedhis connection with his family right from his childhood. It is importantto bear in mind the fact that none of the appellant's witnesses deposedthat either respondent or the other Rajput candidate appealed to

192 AMBIKA SARAN SINGH V. MAHANT MAHADEV NAND GIRI [VOL. XL1

the voters on the basis of caste. As aforesaid, Rajput vote in this cons-tituency would be divided only if the other candidates also were toappeal on the basis of caste but not otherwise. Further, the appealon behalf of the appellant that the said Satyendra Narain Sinha willbe the Chief Minister and "Rajput Raj" will be established was notavailable to the other Rajput candidates. The fact, therefore, thatthere were other Rajput candidate cannot mean that Rajput votewould necessarily be divided and therefore the contention that it wasimprobable that the appellant would indulge in such an appeal doesnot seem to be correct.

The next argument was that Barhara constituency was a compositeone and therefore if the appellant and his agents were to campaignon caste basis those belonging to the other castes would be alienatedagainst him and consequently such an appeal instead of advancinghis cause would prove detrimental. In the first place, such a pro-paganda would be restricted to the members of his caste and not tothose of other castes. The propaganda would be stealthily done and notopenly as- the candidate must know that it would have an adverseeffect on others and also that it would be used against him as a corruptpractice. In the second place, Rajputs ?s testified by the appellant'selection agent formed 20 to 25% of the total population. It is notimpossible that a candidate inclined to campaign on the caste basiswould concentrate on his caste votes and at the same time leave hisparty propaganda machine to campaign amongst the rest of thepopulation. It would not, therefore, be correct to say th?t such acampaign would be improbable and therefoie evidence that suchcanvassing was conducted should have been rejected.

But the contention which counsel emphasised most was that theevidence under this bead being vague, it should not have been actedupon unless it was corroborated by some documentary evidence andthat such documentary evidence would have been available if respondent1 bad lodged a complaint with the relevant authorities immediatelywhen he came to know that caste appeal w?s made by the appellantand bis agents. But when we asked counsel who would be the relevantauthority before whom such a complaint could have been lodged,though he named the returning officer, the chief election officer ofthe State and even the election commission he had to concede thatnone of these authorities could have taken any preventive action.He conceded that at best such a complaint would have served as evi-dence of respondent having protested at the earliest opportunity.On the other hand, it would also be possible for his opponent to urge-that having realised that he had lost the contest he was preparing evi-dence for ? future election petition. There being thus no preventiveremedy and the alleged campaign having been carried on the eveof the polling day, counsel, in our view, was not justified in seekingto m?ke a point that no complaint was immediately lodged by respondent1. Reliance, however, was placed on Sri Raj Rat Dev vs. Sri GangadharMahantra. (3) It is not necessary to decide whether that case was

(3) A.T.R. 1964 Orissa 1, 5.

E.L.R.] AMBIKA SARAN SINGH V. MAHANT MAHADEV NAND OIRI 193

correctly decided as the decision in that case is clearly distinguishable.As some of the corrupt practices there alleged constituted offencesunder ss. 171 C, 171 F and 508 of the Penal Code and the electionpetitioner was a lawyer be was criticised by the High Court for notlodging a complaint at once. Though the High Court conceded thatprior sanction under s. 196 of the Code of Criminal Procedure wasnecessary for the prosecution of such offences and such sanction wouldnot have been forthcoming before the polling day, nonetheless, it heldthat absence of a contemporaneous complaint threw considerabledoubt on the truth of his allegations. In the present case there is noquestion of respondent 1 having bad to file a first information reportfor any offence under the Penal Code. As we shall presently pointout wherever preventive or punitive action was available he did infact lodge such a complaint and did all he could in the circumstances.

Counsel next argued that though there were as many as 71 wit-nesses deposing against the appellant and his agents, there were quitea l?rge number of them whose testimony the High Court should nothave implicately accepted. His criticism in this respect was two fold:firstly, he would eliminate witnesses (a) who admitted having workedas polling agents of respondent 1 and (b) those, who, in the course oftheir evidence admitted that they had wished the success of respondent1 and the defeat of the appellant and secondly, all these whose evidencewas not relied on by the High Court on the question of distributionby the appellant of hand pumps at various places as an inducementto the resident thereof to vote for him. The High Court did notrely on the evidence of these witnesses under that charge as it cameto the conclusion that those pumps were installed much earlier andthat these witnesses, to bring in the allegation within the definitionof bribery, had attempted to bring down the said distribution to datesjust before the polling day. We do not in the present case have todecide whether a person acting as a polling against or a counting agentor a person wishing the success of a particular candidate is necessarilyan inteiested witness. Assuming that be is, his evidence cannot berejected only for that reason. At the most the court in such a casewould scrutinise his testimony closely and demand corroborationbefore acting upon it. In the case of? witness, part of whose testi-mony bi's not been accepted, it does not follow that his entire testi-mony must needs be discarded. The maxim Falsus in no felsus inconibus has been held even in criminal cases to be neither a sounderule of law. nor a rule of practice, (see Umar Abir vs. The State ofBihar (4)). It is at best a rule of caution, (see Niser AH vs. The Stateof Uttar Pradesh (5)) and such witnesses would require corroborationbefore their evidence is acted upon.

But, even if we were to eliminate the witnesses who accordingto Mr. Verma would fall into his two categories they would number34 and there would still remain 37 out of 71 witnesses, whose evidencewould have to be considered untainted and unblemished and

(4) A.T.R. 1965 S.C. 277.(5) 1967 S.C.R. 657, 651.

13—4 Eke. Com.J71

194 AMBIKASARAN SINGH V. MAHANT MAKADEV NAND GlRI [VOL. XLI

against which the appellant could not assign any reason for rejection.The evidence of those 37 witnesses can legitimately be said to corro-borate the evidence of those 34 witnesses even if we were to treat themas interested witnesses. The result then is that if the High Courtaccepted that evidence as satisfactory and came to its finding, therewould hardly be any justification for interferring with it. That evi-dence shows that the campaign on the basis of caste was carried onat numerous places, at some places by ?ppellant himself and at someplaces by others in his presence ?nd at others by several workers ofthe appellant including bis election agent. It is impossible to thinktb?t the appellant was not ;ware of it and yet there was not evena whisper in his evidence or in that of any of his witnesses that be eitherdisowned it or endeavoured to brevent it. The conclusion, there-fore, is inevitable that it was done with his consent direct or implicit.The High Court consequently was right in its conclusion that the,-appellant was proved to have committed the corrupt practice fallingunder s. 123(3).

The finding by 'the High Court that besides appealing to thevoters on the basis of caste the appellant also committed anothercorrupt practice, that of obtaining and procuring the assistance offour gazetted officers to further his electoral prospects, rested onocular testimony as well as documentary and circumstantial evidence.The allegation was that those four officers not only canvassed for butby threats and intimidation also collected election fund for theappellant from the shop-keepers of several villages. There were 8witnesses from Gundi, Suraiym, Keshopur, Udaipur, Bahura, JopabriDhanw?ha Bazar, Lacbaipur and Cbattar who deposed to the saidBhupender Narain Singh, P.W. 49, having canvassed for and collec-ted election fund for the appellant. In respect of the said SheoBacban Singh, R.W. 51, there were as many as 21 witnesses fromChatiar, Chiran, Keshopur, Meerganj, Lauhar, Babhangwan, Funhan,Babura, Rampur, Mohanpur and Bhedkura deposing to his havingcanvassed for the appellant on the basis of caste. Against Ram SunderPrasad, R.W. 58, there were two witnesses, P. W. 61 from Dularpurand P.W. 65 from Ratanpur, and against Muni Lai, R.W. 66, therewere 12 witnesses from Gyanpur, Bhagalpur, Piparpanti, Khawna,Kundi, Babura, Paleri and Jagatpur. AH these witnesses testifiedto their having seen those four officers canvassing and Bhupender Singhcollecting funds from shop-keepers in their respective villages. Thesefour officers denied having either done the canvassing or collectingfunds as alleged by those witnesses. Sbeo Bancban Singh and MuniLai claimed that they were ?t their respective officers at Chaibasaand Bhagalpur and therefore the allegations against them were untrue.The Trial Judge, howeyer, felt that it was highly improbable thatso many witnesses from so many villages should give false evidenceagainst such highly placed officers without any reason and acceptedtheir evidence discarding the denials of those officers especially asthat evidence was supported by documentary as also circumstantialevidence.

E.L.R.j AMBI&A SARAN SINGH 0. MAHA8T MAHADBV NA*N0 QlRI 195

Counsel for the appellant challanged the veracity of those wit-nesses on the following grounds (i) that there was no evidence of theappellant h?ving obtained or procured the assistance of these officers(2) that the evidence was vague as none of the witnesses gave thenames of the shop-keepers whom those officers approached for can-vassing and for funds not had they given the amounts collected fromthem, (3) that the evidence showed that Sheo Bachan Singh and MuniLai were at Cbaibasa and Bha^alpur and that therefore the evidenceagainst them was false, and (4) that the evidence of several of thosewitnesses could not be acted upon for the two reasons given by him.

As regards the first contention, it is true that there is no directevidence of the appellant having requisitioned the services of theseofficers. Such direct evidence, however, can hardly be expectedon a charge such as getting the officers to work for him. The fact,however, is that three out of them belonged to the Department ofCommercial Taxes which was directly in charge of the appellant.If the evidence of those witnesses were to be accepted there wouldbe no difficulty in comming to the conclusion that it was highlyimprobable that without the consent of the appellant those officerswould move about in so many villages on their own for canvassingand collecting funds on behalf of the appellant. It is true that thewitnesses did not give the names of those who weie approached northe amount collected from them. But such particulars could hardlybe expected for such canvassing and collection could not have beendone in the presence of others and the shop-keepers,.were hardly likelyto disclose the amounts they paid for fear that they would be victi-mised by the officers. The failure of those witnesses to give thoseparticulars cannot therefore be over-emphasized and on that groundalone their evidence discarded. However, it is not as if the chargewas solely founded on oral testimony.

As early ?s July 1966, one Jagat Narain Tiwari, a CongressM.L.A., published a hand-bill and sent a copy thereof to the PrimeMinister complaining therein against the officers of the CommercialDepartment at Arrah collecting an election fund on behalf of theappellant. He also alleged in that band-bill that two or three caseshad come within his personal knowledge but "the poor businessmenmay not say anything out of fear to anybody". Tiwari was not exa-mined but the printer of the hand-bill proved his printing chargesand the hand-writing of Tiwari on the manuscript given to him forprintings. Even then the contents thereof could not have been onrecord as proved but no objection was taken to the hand-bill goingon record and exhibited as Ex. 9. There was evidence also that 300copies of this hand-bill were printed and freely distributed. Thoughthe band-bill was brought on record and though its author was anM.L.A. from his own party, the appellant did not testify that hebad at any time refuted the serious charges made therein againsthim. In the case of any other ordinary person if the allegations were

false it might be that he might view the band-bill with indifference.JB ut here was a minister against whom very serious charges were

196 AMBIKA SARAN SINGH 0. MAHANT MAHADEV NAND GIRI [VOL. XLI

made in connection with the officers of his department. It can hardlybe believed that if the allegations were totally false a person in thepetition of the appellant, charged by his own party nun befoie thePrime Minister and the public, would remain alient and not refutethe allegations.

There was next the telegram by respondent i to the ChiefMinister complaining against the Assistant Commissioner of Commer-cial Taxes, Arrah, i.e., Bhupinder Narain Singh, and the AssistantSuperintendent of Commercial Taxes, Arrah. The telegram must havebeen sent before February 15, 1967 as there is a letter on record datedFebruary 15, 1967 by a Deputy Secretary to the Government to theDistrict Magistrate, Shahabad asking for a report. The P.A. to theCollector thereupon by his letter of February 17, 1967 called uponrespondent 1 to furnish particulars regarding his complaint. No suchproof was given by respondent 1 and that fact was made a ground for thecontention that had there been any truth in the complaint respondent 1was bound to give proof and pursue the matter further. No such con-clusion must follow for the time respondent 1 received the letter, thepolling day had already gone by and if there was truth in his allegationthe mischief had already been committed. Besides, neither the DistrictMagistrate nor the Chief Minister nor the election authorities couldhave taken any preventive action. It is, therefore, not surprising thatrespondent 1 did not pursue the matter then and reserved the changetill he filed the election petition. Even after the polling day, respondentby his letter Ex. i/a of February 22, 1967 requested the DistrictReturning Officer not to appoint the said Bhupinder Singh and R. S.Prasad as counting officers as he had fears about their bona fides. Thusit was not as if respondent 1 remained altogether quite.

So far as Bhupinder Singh was concerned, besides the evidencementioned above, there w?s the further evidence of two trunk-call

of January 3 and one of January 23, 1967 between him and theappellant. The first two calls were at his office and the third at hisresidence at Arrah and they were calls made from the residential tele-phone of the appellant. These calls were duly proved by the tele-phone bill Ex. 7. Ordinarily, not much importance could be givento those telephone calls but for two facts, one, that when faced withthe bill Bhupinder Singh tried to evade the issue by stating that hedid not remember the two telephone numbers and therefore couldnot say whether he had talks with the appellant, and the secondthat a minister was hardly likely to have a direct conversation ontelephone with a subordinate officer on official matters. If he wantedto give any official instructions, they would ordinarily be conveyedthrough his secretary or at any rate through the head of the depart-ment. When faced with this bill, this officer did not explain the oc-casion for the telephones or their subject matter but instead tried totake shelter behind his failure to remember his telephone numbers.That was impossible to believe as he was at Arrah for z\ years, hadused the two telephones during all that period and was transferred


from that place only 7 months before he gave evidence. In the cir-cumstances we agree with the Trial Judge that the appellant and thisofficer had talks at least on those 3 occasions on trunk calls and theirconversation could not be in respect of any official work but was withrespect to the election.

The other officer, Sheo Bachan Singh, R.W. 51, is a Rajput bycaste and at the time of the election held the post of Assistant Superin-tendent of Commercial Taxes at Chaibasa. His own village didnot fall within Barhara constituency and Chaibasa is far away fromBarhara. But his wife came from Rampur which is only i\ milesaway from Barhara and through his own village is not within thisconstituency, it is only 7 miles away from Barhara. Though thetelegrams and letters referred to above mentioned the Assistant Superin-tendent of Commercial Taxes, Arrah they really mean this officer,Arrah having been mentioned therein through mistakes 21 witnessesdeposed that being a Rajput by caste this officer canvassed to the ap-pellant on the ground of caste in various villages. His case was thathe could not have done the things attributed to him as he was on thedates alleged by the witnesses at Chaibasa working in his office. Butthe documentary evidence falsifies his case. Exs. 4(5), 4(3)(5), 4(Z)(6) and 4(Z)(7) show that on February 4, 1967 he received aletter appointing him as the Presiding Officer for the election atIchgarh. Almost at the last moment, i.e., on February 11, 1967he applied to the Deputy Commissioner that he had high fever andfeared that he would have an attack of small-pox and therefrom shouldbe relieved from election duty. The Deputy Commissioner conse-quently had as an alternative arrangement to appoint one Sinha inhis place. Ex. 4(Z)(5) shows that he was not exempted or relievedfrom election duty and yet he did not report for election duty. Noorder relieving him from election duty was issued. The excuse under whichbe tried to get rid of the election duty was obviously untrue becauseaccording to him he worked in his office at Chaibasa from February13 to February 15, 1967. That part of his evidence also does not ap-pear to be true because though he said that he maintained a dailydiary of work done by him at Chaibasa he did not produce it in sup-port of his case that he had worked during those days at Chaibasa.Apart from the diary, he could have worked and passed orders. Fromthe evidence of witnesses examined by respondent 1 he must haveknown that he was charged of being deeply involved in the appel-lant's prove his being at Chaibasa if he were to produce his diary orbetter still the said files. One cannot help thinking that if that evi-dence was there it is impossible that he would fail to produce it. Theinference is inescapable that he abstained from performing electionduty at Ichagarh as he was anxious to be free to do the canvassing workwith which the witnesses charged him. In the absence of any orderfrom the Deputy Commissioner relieving him from that duty he wouldnot have ventured not to report on duty unless he was certain thatTie would be protected by the appellant if any steps were taken againstMm. The evidence clearly indicates that his application and thereasons given therein for being relieved from duty could not be true.

198 AMBIKA SARAN SINGH 0. MAHANT MAHADEV NAND GlBl [VOL, XLI

P. S. Prasad, R. W. 58, was at the material time the accountsofficer in the Department of Commercial Taxes. Besides the Com-plaint, Ex. 1 (a), against the officers of this department there was clearallegation, by respondent 1 that he had canvassed for the appellantand bring therefore his worker he should not be entrusted with thework of counting votes. Against Muni Lai it must be said that therewas no documentary evidence. Thus, except in the case of MuniLai there was against the three other officers both documentary aswell as circumstantial evidence to support the oral evidence of thewitnesses.

It is true that some of the witnesses who gave evidence againstthese officers had acted as polling agents of respondent 1, the evidenceof some of them was not accepted by the Trial Judge under the chargeof distribution of hand-pumps and some of them had during theirevidence admitted a liking for respondent and a corresponding dis-like for the appellant. Even if we were to eliminate the evidenceof these witnesses from consideration on the ground that they wereinterested witnesses there would still remain against each of theseofficers witnesses against whose evidence no blemish could be pointedout by Mr. Verma. Their evidence together with the documentaryand circumstantial evidence would go to corroborate the evidenceof the witnesses whom Mr. Verma called interested witnesses. Therewas, therefore, sufficient evidence on which the learned Trial Judgecould legitimately base his finding against at least 3 officers, namely,Bhupinder Singh, Sheo Bachan Singh and R.S. Prasad. Since thereis no documentary or circumstantial evidence against Muni Lai andhe was not under the direct control of the appellant we do not pro-pose to hold as a matter of abundant caution that his services wereobtained or procured by the appellant. In our view Mr. Verma hasfailed to establish any substantial reason for disagreeing with theaforesaid conclusion arrived at by the Trial Judge.

In the view that we have taken in respect of these two corruptpractices it is not necessary, as already stated, to go into the questionof the third corrupt practice, namely, of bribery to the Harijan voters.The Trial Judge, in our view was right, in view of this aforesaid findings,in declaring the said election void.

The appeal therefore fails and is dismissed with costs.

Appeal Dismissed.

E.L.R.] NIHAL SINGH V. RAO BtRBNBfcA SINGII

IN THE HIGH COURT OF PUNJAB AND HARYANA

NIHAL SINGH

V.

RAO BIRENDRA SINGH & ANR.

(D. K. MAHAJAN, J.)

February 4, 1969

Representation of the People Act, 1951 Ss. 123(3), (4)> (5) an<^ I0°—Corrupt practice-—Proof-—Similar to criminal charges—No conslusiue proof of corrupt practice — whether elec-tion can be set aside on probabilities.

Law reform —Law should provide for copy of poster—Printed to be sent to ElectionCommission by printer—Power to Presiding Officer to note conveyance of voters and holdsummary enquiry.

The first respondent was declared elected to the Haryana Legislative Assemblyin the mid-term election held in 1968. The petitioner sought to have his electiondeclared void and prayed that the first respondent should be disqualified fromcontesting elections for having committed corrupt practices Viz. (1) that his agentwith his consent and connivance had printed and published posters before the polling,day derogatory of the person of the petitioner and appealing for votes on thebasis of caste; and (2) that the electois were carried from the village to the polling,stations and back in trucks and made to vote for him. Dismissing the pstition.

HELD : The charges of corrupt practices in an election petition are charges oversimilar to criminal charges and cogent evidence is needed to sustain them. It is notpossible to decide election cases on mere preponderance of probabilities. As theevidence in the present rasefalls short of proving t t a i the posters in question werereally issued before the poll'ng date the election cannot be set aside for corrupt practiceon grounds envisaged under Section 123(3) a n ^ (4) of the Act.

Obiter : There is a tendency to manufacture evidence for the purposes of theelection petition and, it is , therefore , desirable that there should be a mandatoryprovision in law that any posttr printed should be sent to the Election Commissionby the printer and in any case, by candidate, who would ultimately base himself on;that poster, with a notice to the person who is allaged to have printed that poster..There should also be a provision in law that if any vehicles are used by any candi-date to carry electors, this fact should be noted by the Presiding officers and theyshould hold a summary enquiry on any complaint made in this behalf and recordtheir finding in the Diary which they have to maintain.


Rajindar Sachar, Dr. A. S. Anand, G. P. Jain and and S. P. Jain, for the Pe-titioner.

H. L. Sibal, Puran Chand, B. P. Prashad and M. R. Sharma, for the Respon-dents.

JUDGMENT

MAHAJAN, J.—The State of Haryana was called upon to electits representatives to the Vidhan Sabha on the 10th of April, 1968,This step was taken after the Haryana Vidhan Shaba had been dis-solved after the 1967 General Elections. The poll out of which this elec-tion petition has arisen is. commonly called the mid-term poll. This;

200 NIHAL SINGH V, RAO BlRENDRA SINGH [VOL. XLI

mid-term poll was sheduled for 14th of May, 1968. The contestingcandidates from the Ateli Constituency, with which this petition is con-cerned, were Shri Nihal Singh, petitioner (Congress), Rao BirendraSingh, respondent No. 1 (Vishal Haryana Party) and Shri ManoharRespondent No. 2 (Independent). The result of the poll was declaredon 15th of May, 1968 and Rao Birendra Singh, respondent No. 1 wasdeclared as the returned candidate. He secured 23,673 votes, whereashis .aval, the Congress candidate, secured 15,937 votes. The thirdcandidate only secured 455 votes.

The Congress candidate Rao Nihal Singh has filed the presentpetition under sections 80, 81 and 100 and various other sections ofChapter II, part 6 of the Representation of the People Act, 1951 (here-inafter referred to as the Act) calling in question the election of thereturned candidate. A large number of grounds were taken in thepetition, but at the time of the arguments, the learned counsel forthe petitioner restricted himself to three principal grounds namely,

(1) That the respondent No. 1 Rao Birendra Singh is guilty ofcorrupt practices under section 123(3) a n c l (4) °f the Act.It is stated that one Raghbir Singh printed and publishedwith the consent and connivance of Rao Birendra Singh aposter Exhibit P. W. 20/1 depicting the petitioner as a can-didate unworthy of their votes on the ground of caste. Itis further stated that the poster contained false, defamatory,malicious and dirty type of allegations concerning the personalcharacter and conduct of the petitioner. The translation ofthe relevant part of the poster is set out below:—

the other hand, every member of the Ahir community knowsthat due to Nihar Singh, who uptil now played the role ofpon of Mr. Kairan and the purchased-slave of Mr. BhagwatDayal and who is the Jai Chand (traitor) of Ahir com-munity, we, the Ahir brethren are being put to test again andnone can forget it.

Except creating party faction in villages making right or wrongrecommendations to the officers after taking money from thepublic and collecting money by taking bribe in a wrongfulmanner, he did not do any other work for your welfare.

(2) that a corrupt practice within the meaning of section 123(2)of the Act was committed inasmuch as "the Harijan electorswere not permitted to exercise their right of franchise freely.Undue influence and pressure was brought to bear upon themto desist from taking part in the poll ; and

-E.L.R.] NIHAL SINGH V. RAO BIRENCRA SINGH 201

(3) that a corrupt pratice within the meaning of section 123(5)of the Act was committed inasmuch as with the consent andconnivance of Rao Birendra Singh, electors were carried fromthe village to the polling stations and back in trucks. Variousinstances on this part of the case are set out in the petitionand they will be discussed at the proper stage.

The first respondent Rao Birendra Singh has denied these alle-gations. On the pleadings of the parties four issues were framed, but onlythree of them are set out because issue No. 4 has not been pressed bythe learned counsel for the petitioner :

(1) Whether respondent No. 1 is guilty of corrupt praciticesas alleged iri paragraph 6 (A) within the meaning of section

( ) d (4) °f t n e Act ?

(2) Whether respondent No. 1 his workers and agents with theconsent of respondent No. 1 have committed the corruptpractice of directly or indirectly interfering with the freeexercise of electoral right as alleged in the petition withinthe meaning of section 123(2) of the Act ?

(3) Whether respondent No. 1 has committed the corrupt prac-tice of hiring or procuring the Vehicles for the free convey-ance of electors as detailed in paragraph 6(f) within themeaning of section 123(5) of the Act ?

ISSUE JVO.(i)—This issue related to two corrupt practices undersection 123(3) a n c ' I23(4) °f the Act. The evidence on both of themis, more or less common. The Grawamen of the charge are, that anappeal was made to the electors on the ground of caste and that alle-gations of fact, which are false and which the respondent believed tot e false and did not believe to be true, in relation to the personal cha-racter of the petitioner were made in the poster, Exhibit P. W. 20/1and repeated in speeches delivered in election meetings held invarious villages. In arguments, the learned counsel for the res-pondent concerned that if it is proved that the poster was printed andpublished by the respondent, his agent or any other person with hisconsent, the charges under section 123(3) anc^ 23(4) would stand proved.In order to succeed, it has to be established in the first instance, that—

' ;The poster was published by the respondent, or his agent or anyother person, and if it was not published by the respondent, ithas further to be proved that it was published by his agentother than the election agent or any other person with hisconsent. T'he position of the election agent is the same as thatof the candidate. "

And if this is not proved, neither the charge under section 123(3) n o r

under section 123(4) would be established. It is common, ground that

2 0 2 NIHAL SINGH V. RAO B1RENDRA. SINGH [VOL. XLIC

the poster was not printed by the respondent. The allegation of thepetitioner is that the poster was printed by the agent of the respondentwith his consent and even if it is held that Ragbbir Singh, who printedthe poster, is not the agent of the respondent be will fall within thecategory of any other persons", and that the evidence led in the casediscloses that the poster was printed by Raghbir Singh with theconsent of the respondent. Even if it is not proved that the poster wasprinted with the consent of the respondent, it is maintained thathe did publish it.

The stand taken up by the respondent is that the poster was notprinted by him or with his consent by his agent or any other person. Ithas been printed after the declaration of the result and for the purposeof the present election petition. It is also maintained that there is noevidence on the basis of which it could be held that the poster was printsted or published by Raghbir Singh with the consent of the respondent.Thus the issue narrows down to two question of fact :—

(i) Was the poster printed before or after the poll? and (2)whether the poster was printed or distributed with the consentof the respondent ?

If on the first point, it is found that the poster was printed after the de-claration of the resiilt, the second point will not arise. The second pointwould only arise if it is found that the poster was printed on the dateas alleged in the election petition, namely the 4th of May, 1968.

The respondent has denied any connection with the poster or withits author. It may be mentioned that Raghbir Singh denied that he wasthe polling agent of the respondent. The polling agent's Form in whichRaghbir Sing is shown as ths polling agent of the respondent, admittedly,does not bear the signature of the respondent, thought it purportsto have been signed by the respondent. The respondent has also deniedthat any speeches were delivered in which the subject-matter of theposter was reiterated or the poster was read or that he was present inthose meetings.

Mr. Rajinder Sachar, learned counsel for the petitioner vehemen-tly, urged that the evidence conclusively proved that the poster wasprinted by Raghbir Singh ; and Raghbir Singh being the polling Agentof the respondent, it must be assumed that he printed it with the consentof the respondent. He further stresses that the distribution of the posterin the election meetings of the respondent and speeches on its linesmade in those meetings, establish that the poster was printedand published with the consent of the respondent. He further empha-sised the fact that the evidence discloses that the respondent was present:in those meetings where the poster was distributed ; and, therefore^there is every warrant for the inferrence that it was published with the;consent of the respondent.

E.L.R.] NIHAL SINGH V. RAO BIRENBRA SINGH 203

Mr. H. L. Sibal, learned counsel for the respondent, on theother hand contends that these are a large number of circumstances-which militate against the publication of the poster as a'leged. Thefiling of the poster in Deputy Commissioner's office is a clever attemptat fabricating evidence; and this was done in connivance with KrishanChand Chopra, who was, at one time suspended on a charge relatingto Khasra Grrdawaris. According to the learned counsel, this posterwas printed after the declaration of the result and for purposes ofthe present election petition.

After the learned counsel for the parties, I am of the view thatthere is no sufficient material, on the basis of which I can come to adefinite conclusion that the poster was printed on the 4th of May1968. The indications on the other hand, are that this poster wasprinted after the poll and only for the purposes of the presentelection petition.

I now proceed to state my reasons for holding that the poster,Exhibit P.W. 20/1, was not printed on the 4th of May, 1968, buthas been brought into existence after the poll and for the purposesof the present election petition. [The Court discussed the evidenceand proceeded] :

After considering the entire story of the printing of the poster andthe evidence led thereon, it is not possible for me to hold that the posterwas printed on the 4th of May, 1968, as alleged or that it could bedistributed in the meetings. The evidence led to support the distri-bution of the poster has not impressed me as truthful. It is, moreor less of a partisan character, though it has been given the garh ofbeing independent evidence. The conduct of the petitioner nottaking serious steps to counterpart this type of propaganda also speaksvolumes. After giving the matter my careful consideration, I amconstrained to hold that it is not proved that the postei was printedbefore the poll and that it was distributed in the various meetingsheld by the respondent, as alleged. In passing, I may also mentionthat theieisno cogent evidence regarding the holding of the meetingsby the respondent in which the poster was distributed.

This brings me to the second part of the argument, namely,whether the poster was printed with the consent of the respondent.In view of my decision that the poster was not printed or distri-buted, as alleged, this question does not arise. But even if I had heldto the contrary, 1 would have found it extremely difficult to hold that thepetitioner has been able to prove that the poster was printed ordistributed with the consent of the respondent. There is no cogentevidence connecting the petitioner with the printing of the poster,,excepting the evidence of a few witnesses that the poster was dis-tributed in certain meetings held by the respondent. In the firstinstance, there is no positive proof that those alleged meetings wereheld by the respondent and, in the second place, it is not provedthat the respondent was present in those meetings. My experienc

' 2 0 4 NIHAL SINGH V. RAO BlRENDRA SINGH [VOL. XLI

of the Elections petition is that normaly, oral evidence led is whollyundependable and it is not safe to rely on it, unless it is corroboratedby either circumstantial evidence or documentarv evidence.

The main burden of the argument of Mr. Rajinder Sachar,learned counsel for the petitioner, was that I should go b ; -heprobabilities of the case and also by the fact that the respondentwas a stranger to this Constituency ; and thus would leave no stoneunturned to get elected. It is likely that he did indulge in the corruptpractice which form the subject matter of this issue. This contentionloses sight of the fact that the result of an election is not to belightly interfered with. It is also a settled rule of law that thecharges of corrupt practice in an election petition are charges verysimilar to ciiminal charges and cogent evidence is needed tosustain them. It is not possible to decide election cases on merepreponderance of probabilities. In this connection, reference maybe made to observations quoted below from. various decisions ofthe Supreme Court. Reference in this connection may first be madeto the observations of Mittar J. of the Supreme Court in CivilAppeal No. 1895 (NCE) of 1967, decided on the 8th of August1968, quoted below:—

"In examination the evidence, it must be borne in mind thatthe charge of corrupt practice is something very similar toa criminal charge and must be established by cogent andreliable evidence beyond any reasonable doubt. The personsseeking to establish the commission of a corrupt practiceagainst a candidate must bring before the Court unimpeachableevidence which would justify the Court in coming to the con-clusion that a charge of corrupt practice had been provedin such a way that there could be no reasonable doubtabout the commission thereof in the mind of any person".

In Civil Appeal No. 159 (NCE) of 1968—Jagannath and another V.. Narayan Uttamrao Deshmukh and another, decided on the 6th of December1968, Chief Justice, Hidavatullah, observed:—

"We cannot make it too easy for the election petitioners to bringa charge on such flimsy evidence and succeed thereby.We must be satisfied that the evidence stands all scrutinyand cannot bear the stigma of having been manipulated.In elections as in war, everything seems fair and we had to beastute all the time to see that there had not been foul practice".Similar observations were made by the Supreme Court.

In Jagdev Singh Sidhanti V. Partap Singh Daulta, A.I.R. 1965Supreme Court 183; and the relevant part of the same is asunder:

" In the trial of an election petition, the burden of provingthat the election of a succeesful candadite is liable to be set asideon the plea that he was responsible directly or through his

E.L.R.] NIHAL SINGH V. RAO BIRENDRA SINGH 205 '

agents for corrupt practices at the election lies heavily upomthe applicant to establish his case, and unless it is establishedin both of its branches, i.e. the commsision of acts which thelaw regards as corrupt, and the responsibility of the successfulcanditate directly or through his agents or with his consent;for its practise not by mere preponderance of probabilitybut by cogent and reliable evidence beyond any reasonabledoubt the petition must fail. The evidence mav be examinedbearing this approach to the evidence in mind ".

For the reasons recorded above, I would hold that issue No.(i) is not proved.

ISSUE NO. (2)—This issue relates to the corrupt practice undersection 123(2). The gramen of the charge is that electors otherthan Ahirs were threatened with dire consequences if they came tovote at the Mid-term poll. The court discussed the evidence andproceeded.

After considering the entire evidence, I am constrained to holdthat the evidence falls short of proving this issue. Thus this issuedecided against the petitioner.

ISSUE NO. (3)—• So far as this issue is concerned, the allegationsare contained in paragraph 6(F) of the petition and the variousinstances c f the electors being carried by trucks from their villages tothe polling stations have been set out thereunder. In all, theyare five. The learned counsel has merely confined himself to fourinstances out of five namely 1 to 3 and 5. No arguments have beenadvanced on instance No. 4. I will take up all the four instances oneby one. [Discussion of the detailed evidence omitted. Ed.]

After considering the evidence led on the four instances, onwhich reliance has been placed in E.P. 11 of 1968, arguments, Ihave come to a definite conclusion that it is not established thatthe respondent used the Trucks to carry electors to the pollingStations, as alleged by the petitioner. It is also not established thattheie was any arrangement by the respondent which has been proved,whereby he employed Trucks to carry electors. I have already re-produced the statement of the petitioners that 70'} 2 "Vehicleswere used for the purpose. The petitioner was touring the cons-tituency on the date of the poll. No complaint was made by him toany person regarding the use of the Trucks. Out of 70-72 vehicles,evidence regarding five has been led. What appears to me is thatbecause of the two challam, the entire story of the use of the Truckshas been spun for the purpose of the present election petition ; and Ihave no hesitation in discarding this story as a pure concoction.

Before parting with this judgment, I wish to bring it to the noticeof the Election Commission that there is a tendency to manufactureevidence for the purposed, of the election petition and it is, therefore,desirable that there should be mandatory provision in law that any

' 2 0 6 SAKTI KUMAR S A R K A R B. THE ELECTION COMMISSION [VOL. XLI

poster printed should be sent to the Election Commission by thePrinter and, if any case, by a canditate, who would ultimately basehimself on that poster, with a notice to the person who is alleged tohave printed that poster. There should also be a provision in law thatif any vehicles are used by any canditate to carry electors, this factshould be noted by the presiding officers and they should hold asummary enquiry on any complaint made in this behalf and record theirfinding in the Diary, which they have to maintain.

E. P. ii of 1968.

For the reasons recorded above, I find all the issues againstthe petitioner and dismiss the petition with costs which are assessed atRs. 500./-

Petition dismissed.

IN THE HIGH COURT AT CALCUTTA

SAKTI KUMAR SARKAR

V.

THE ELECTION COMMISSION

(A. K. SINHA, J.)

February 5, 1969

Constitution of India—-Article 226—-Writ Jurisdiction—Any act forming part of election'process cannot be challenged by writ proceedings—Article 32g(£)—"Election"—meaning of.

The petitioner moved a petition under Article 226 of the Constitution for a writin the nature of mandamus directing the respondent not to hold mid-term election forthe Legislative Assembly of the State of Bengal or, in the alternative, a writ of cer-tiorari to quash all notices and notifications relevant to such mid-term election.The broad ground alleged was that the ensuing mid-term election was entirely illegalunauthorised and ultra vires as there is neither any provision for such election nor

"is it otherwise permitted under the C3astitution of India.

HELD : The writ petition under Article 226 is not maintainable.

Sub Article (b) of Article 329 provides that "no election to either House of Parlia-ment or to either House of the Legislature of a State shall be called in question exceptby an election petition presented to such authority and in such manner as may beprovided for by or under any law made by the appropriate legislature". Theword "election" in the sub-Article is used in a comprehensive sense as includingthe entire process of election and terminating with the declaration of election ofa candidate. An application under Article 226 challenging validity of any of theacts forming part of that process would be banned.

Ponnusway v. Returning Officer, Nrnnakkac, A.I.R. 1952 5.G. 64; Hari Vishnuw. Ahmad Ishaque, A.I.R. 1955 S.G. 233 referred to.

3E.L.R.] SAKTI KUMAR SARKAR V. THE ELECTION COMMISSION 2 0 7

•CR NO. 6899(W) OF 1968.

Bireswar Bhattacharjee and Bhupati Bushan Dalai for the petitioner.Chittatosh Mukherjee, for the respondent.

JUDGMENT

SINHA, J.—In this Rule the petitioner prays for a writ in the natureof mandamus directing the only respondent 'Election Commission'not to hold mid-term election for the Legislative Assembly of theState of West Bengal, before 1972 or in the alternative, for writ inthe nature of certiorari and to quash all notices, and notificationsrelevant to such mid-term election.

The present writ petition was at first moved by Sakti Kr. Sarkarthe only petitioner who is an intending candidate in the said mid-termelection. Thereafter, one Dr. Sudhin Kumar Ghosal upon his applica-tion was added as a party petitioner by an order of B. C. Mitra, J.dated December 19, 1968 (hereinafter referred to as the petitionerNo. 52). At the hearing of the Rule it was stated by JMr. Bhattacharya,learned Advocate for the petitioners that Sakti Kumar Sarkar, thefirst petitioner was no longer interested in prosecuting the writ petitionbut the petitioner no. 2 was. Therefore, he was pressing the petitionand the Rule should be heard and disposed of.

Before I enter into the questions raised, it is necessary to statehe facts set out in the petition which, briefly, are as follows :

Mr. Sakti Kumar Sarkar is a voter enrolled in the territorial consti-tuency of Jadavpur in the District of 24-Parganas and as intendingcandidate for the ensuing mid-term election of the Legislative Assembly.He is also the Secretary of "Paschim Bangal Krishak Samaj" whichis an organisation for the protection and advancement of interests ofthe cultivators of West Bengal.

The petitioner no. 2 is a voter of the West Bengal LegislativeAssembly from the constituency of Khardah in the District of 24-Parganas.

The Election Commissioner, the sole respondent, as a matterof common knowledge, is threatening to hold an illegal and unlaw-ful election for the said Legislative Assembly in the whole of WestBengal within some month in violation of the provisions of theConstitution of India before proper time after dissolution of the As-sembly in or about January, 1968. The respondent in furtheranceof such illegal and unconstitutional election is also taking diversesteps which are also matter of common knowledge. The first petitioner,though has a good chance of being elected in the next lawful GeneralElection would be seriously prejudiced in the matter of his franchiseand the opportunities of being so elected if the mid-term election beallowed to be held in violation of the Constitution. Further, due to

2 0 8 SAKTI KUMAR SARKAR V. THE ELECTION COMMISSION [VOL. XLE

widespread flood all over West Bengal including the said territorial*constituency of Jadavpur most of the voters will not be able to casttheir votes if the election is held until the situation improves. Forthe very same reason it is alleged that the mid-term election wouldmerely be a colourable show of election instead of real election andcontrary to the requirements of democratic structure of Indian Re-public as enjoined by the Constitution. The poor cultivators, it isfurther alleged, will suffer most as they will have to made throughmud for miles for casting their votes and thus lose many man-hoursof their own labour. The relief works would be suspended as thePublic Officers of the flood affected State will be devoted to the workof election. The mid-term election will not thus conduce to anypublic interest of the State but will really be a matter of luxury forthe politicians. That is how the petitioners felt aggrieved and cameup to this Court and obtained the present Rule.

Upon these facts several grounds were taken. The sum andsubstance of these grounds raises a broad point and that is, the ensuingmid-term election is entirely illegal, unauthorised and ultra viresas there is neither any provision for such election nor it is otherwisepermitted under the Constitution of India.

At this stage I must observe that although in the petition certainallegations were made regarding the hardships and prejudice of thecultivators in the flood affected areas of the State in case of holdingthe mid-term election, no specific ground was taken questioningthe legality to hold such, election from this aspect. So these mattersfor the present purpose are not at all relevant and need not be con-sidered at all.

Now, before I deal with the point raised on merits I must noticethat there are more than one hurdle in the way before the petitionerscan successfully press the point on merits.

The first is section 15 of the Representation of the People Act,1951 (referred to herein as the Act) which provides :

"15. Notification for general election to a State LegislativeAssembly—(1) A general election—shall be held for the purposeof constituting a new Legislative Assembly on the expiration ofthe duration of the existing Assembly or on its dissolution.

(2) For the said purpose, (The Governor or Administrator,as the case may be), shall be one or more notifications publishedin the Official Gazette of the State on such date or dates as maybe recommended by the Election Commission, call upon allAssembly constituencies in the State to elect members in accordancewith the provisions of this Act and of the rules and orders madethereunder :

Provided that where a general election is held otherwisethan on the dissolution of the existing Legislative Assembly

E.L.R.] SAK.TI KUMAR SARKAR V. THE ELECTION COMMISSION 2 0 9

no such notification shall be issued at any time than sixmonths prior to the date on which the duration of that Assemblywould expire under the provisions of clause (i) of Article 172(or under the provisions of section 5 of the Government of UnionTerritories Act, 1963, as the case may be).

From the above provision it is quite clear that the general electionshall be held for the purpose of reconstituting the Legislative Assemblyof the State either 'on the expiration of the duration of the existingAssembly or on its dissolution'. In sub-section (2) the power is con-ferred upon the Governor to issue one or more notifications to bepublished in the Official Gazette of the State on the recommendationof the 'Election Commission' calling upon the Assembly constituenciesin the State to elect members in accordance with the provisions ofthe Act and the rules or orders made thereunder. These one ormore notifications as the case may be, contained in proviso to sub-section (2) must be published in case where such general election isheld on the dissolution of the existing Legislative Assembly.

In the present case, Legislative competence of the Parliament toenact such a law in absence of any appropriate provision in the Consti-tution has not been challenged. So, even assuming that theremay be some substance in the point raised by the petitioner as to lackof constitutional sanction to hold another general election on thedissolution of the State Legislature, I cannot go into such questionwithout deciding at the same time its resultant effect on section 15of the Act. In other words, if this section is allowed to remain in theStatute Book as it is, then, I should better not decide the question atall. Now, the question is whether in the present frame of the petitionI can go into the question of 'vires' of section 15 of the Act inabsence of the Union of India. The only answer must be in the nega-tive. It is well settled that in a case as the present one is, I cannotenter into or decide such question in either way in its absence. Forit cannot be denied that the Parliament of Union of India is mostinterested and it must be given proper opportunities and allowedto defend its own Act or enactment before any judicial pronouncementis made on questions affecting its competency to legislate such a law.It is well settled that a writ petition is incompetent unless the necessaryparty is joined see, Udit Narayan Singh v. Board of Revenue, A.I.R.1963 S.C. 786. That being so, it is impossible to decide the questionin controversy in the instant case effectively in absence of Union ofIndia is a necessary party.

The second, Article 329 of the Constitution. As is contendedby Mr. Mukherjee on behalf of the respondent, I think rightly,this article is itself a bar to such writ petition. The relevant Sub-Article (b) of Article 329 provides :

"(b) no election to either House of Parliament or to theHouse or either House of the Legislature of a State shall be called

14—4 Elec. Com./71

2 1 0 SAKTI KUMAR SARKAR V, THE ELECTION COMMSS1ON [VOL. XLI

in question except by an election petition presented to such autho-rity and in such manner as may be provided for by or under anylaw made by the appropriate Legislature."

In one of the earliest decision on the Supreme Court reportedin A.I.R. 1952 S.C. 64, N. P. Ponnuswami v. Returning Officer,Namakkal on construing the word "Election" under the above sub-article, it was held that the term "election" was used in part XV ofthe Constitution in the "Wide sense" and was intended to be taken"cto embrace the whole procedure which consists of several stagesand embraces many steps whereby the elected member is returnedwhether or not it be found necessary to take poll". It was also heldthat petition under Article 226 to challenge the validity of such electionwas not maintainable.

Substantially the same view was adopted in the later decision ofthe Supreme Court. See A.I.R. 1955 S.G. 233, Hari Bishnu v.Ahmed Inshaque. In view of these decisions of the Supreme Courtthe question as to maintainability of writ petition is no longer open.The word "election", therefore, under Article 329 (b) must be heldto have been used m a comprehensive sense as including the entireprocess of election and terminating with the declaration of electionof a candidate. An application under Art. 226 challenging thevalidity of any of the acts forming the parts of that process wouldbe a bar.

Mr. Bhattacharjya, however, argued that this entire processcould not be equated or mixed up with the question of competenceof the Election Commission to hold such election in violation of theprovisions of the Constitution. So, the petition under Art. 226 wasmaintainable to shake the entire foundation on the basis of whichelection was going to be held. I cannot agree. Art. 329 Sub-Art, (b) itself has imposed such limitation on the powers of the HighCourts under Art. 226 of the Constitution. Even assuming that itis not so, then also the petitioner cannot be heard to raise such aquestion in view of the amended provisions of the Act as contained inSec. 80 (A) of the Act which provides :

"80-A. High Court to try election petitions (1) The Courthaving jurisdiction to try an election petition shall be the Highcourt.

(2) Such jurisdiction shall be exercised ordinarily by a singlejudge of the High Court and the Chief Justice shall, from time totime, assign one or more Judges for that purpose;

Provided that where the High Court consists only of one Judgehe shall try all election petitions presented to that Court.

(3) The High Court in its discretion may, in the interestsof justice or convenience, try an election petition wholly or partly,at a place other than the place of seat of the High Court."

E.L.R.] SAK.TI KUMAR SARKAR V. THE ELECTION COMMISSION 2 1 1

So, whatever might have been the position on earlier enactment, now,in view of the above provisions this point pales into insignificance.The High Court in trying the election, petition I have no doubt, can•very well go into all questions involving interpretation of the Consti-tution in trying an election petition to see if hoi ding of such an electionis at all peimitted.

The third is that the State of West Bengal is not a party in thepresent writ proceedings. It is quite clear from the provisions ofsection 15(2) of the Act that in case of holding a general election onthe dissolution of the Legislative Assembly, the Governor or the Ad-ministrator, as the case may be, is required to publish one or more noti-fications in the Official Gazette of the State calling upon assemblyconstituencies in the State to elect members of the Assembly. Thereis no dispute in the present case that such notification or notificationshave already been published in accordance with the provisions of sub-section (2) of section 15 of the Act. If that be so, it cannot be deniedthat such notifications have got to be cancelled in case it is foundthat such a general election on dissolution of legislative assembly isnot permitted under the provision of the Constitution. Necessarily,therefore, in the event of such an order being made, the interest ofthe State will no doubt be affected. Such being the position itcannot but be held that State of West Bengal also is a necessary partyand no effective adjudication of the question in controversy can bemade in its absence.

From the above discussion it follows that the petitioners have failedto steer themselves clear out of the manifold difficulties which standin their way before they can successfully pursuade the Court to decidethe points raised in the present writ petition. In that view of thematter, the instant writ petition under Art. 226, it must be held,is not maintainable.

On merits, however, it was argued that only one general electionis contemplated under the Constitution at a span of every five years.This proposition, however, is one of construction and not of expressprovision. For this purpose, reliance was placed in Art. 172(1)part VI Chapter III which provids :

"172. (1) Every Legislative Assembly of every State, unlesssooner dissolved, shall continue for five years from the date ap-pointed for its first meeting and no longer and the expiration ofthe said period of five years shall operate as a dissolution of theAssembly :

Provided that the said period may, while a Proclamationof Emergency is in operation, be extended by Parliamentby law for a period not exceeding one year at a time and notextending in any case beyond a period of six months afterthe Proclamation has ceased to operate."

It was argued that from the above provision it was clear thatevery Legislative Assembly of every State shall continue for five years

2 1 2 SAKTI KUMAR SARKAR V. THE ELECTION COMMISSION [VOL. XLI

from the date appointed for its first meeting unless sooner dissolved.So, thore is no provision for re-constitution of another LegislativeAssembly for covering the broken period. In such a situation thequestion cf holding another general election for re-constitution of theLegislative Assembly in continuation of the rest of the period wasnot permitted under the Constitution. This is one aspect of the matter.

The second aspect is that even assuming that such a generalelection is held on dissolution of the Legislative Assembly, theinevitable consequence will be that it will come ultimately in conflictwith the provision of Art. 81 read with Art. 82 being the provisionfor composition of the House of the People and also Art. 54 and 55of the Constitution containing the provision for election of the Residentand thus upset the number of proportional representation in the Parlia-ment and the allocation of seats of members in the Parliament for theState of West Bengal as well as the election of the President of India.For, it was contended that once such a general election is held it mustcontinue for a period of five years under Article 172(1) of the Consti-tution from the date of its first meeting unless sooner dissolved. Suchdissolution can only be made by the Governor who may or may notdissolve the assembly at the expiration of the rest of current period offive years. Necessarily, therefore, it must be presumed that theassembly will continue for another five years from the date of its firstmeeting. Thus, there will not be any simultaneous election of theState Assembly and House of People which undoubtedly is the principleindicated in the Constitution for ensuring uniform democratic re-presentation in both the Houses. Even assuming that it was not so,then also on account of territorial readjustment of constituencies on thebasis of census as contained in the provision for the purpose of reconsti-tution of the Assembly and the Parliament at some point of time, sayafter 30 years, this kind of election which would continue to be held atinterval of period of five years quite different from the period of electionin House of Parliament is bound to come in conflict with the democraticset up for effective representation of the people in both the Asemblyand the Parliament and thus create a deadlock in the Constitution.So, Mr. Bhattacharjya contended that those provisions of the Consti-tution if properly read only indicate by necessary intendment or implica-tion that one general election could be held at an interval of five yearsof both the State Legislative Assembly and the Parliament simultaneouslyto maintain effectively the proportional 1 epresentation of the Statein both the Houses and for harmonious functioning of the democraticmachinery set up in the Constitution.

To all these complicated arguments Mr. Mukherjee on behalfof the respondent firstly gave a simple answer and that is, there wasno provision in the Constitution for holding general election at all.All that is contained in Part XV of the Constitution is that Parliamentis authorised to make laws as to how, when and in what manner electionwill be held. Mr. Mukherjee secondly contended that under Article356 read with sub-article (4) proclamation would cease to operate onthe expiration of six months from the date of the passing of the resolu-

E.L.R.] SAKTI KUMAR SARKAR V. THE ELECTION COMMISSION 213

tion approving the proclamation under sub-articJe (3). So, on theexpiration of six months it was open to the State Government on therecommendation of the Election Commission to issue necessary notifica-tion for holding election for the purpose of reconstitution of theLegislative Assembly. It is true, Mr. Mukherjee argued that underproviso to sub-article (4) such a proclamation could remain in forceup to maximum limit of three years on extension of six months basispassed with the approval of the Parliament but that is merely an excep-tion to the genera! provision.

Mr. Mukherjee also relied on paragraph 10 of the affidavit-in-opposition wheie in support of the stand taken by the ElectionCommission in the matter of holding election certain quotations fromMay's Parliamentary Practice (Seventeenth Edition) at page 277were also referred to as follows :

" the principle of the unbroken continuity of Parlia-ment is for all practical purposes secured by the fact that the sameproclamation which dissolved Parliament provides for the elec-tion and meeting of a New Parliament."

It was also submitted that the moment it was decided by thePresident and the Government of India not to continue the President'sRule under Art. 356, the Election Commission being the Authority•charged with the election was constitutionally and legally bound tohold the election for constituting the new Legislative Assembly forthe State. The election to Lok- Sabha, it was further stated, wasdirectly from the territorial constituencies and the only relationshipbetween the territorial constituencies of Assembly and Lok Sabhawas the fixed multiple throughout.

Mr. Bhattacharjya, however, conceded that at the present momentit could not have such an impact. Ultimately, it would have the un-avoidable repercussion on election (.(both the Houses because of terri-torial adjustment of the Constituencies on the basis of census. Itis very difficult to follow this argument of Mr. Bhattacharjya onsuch hypothetical questions. In absence of proper facts, figuresand necessary particulars with specific averments in the petition, itis neither feasible nor desirable to proceed to construe these provisionsof the Constitution which I have no doubt, if decided in either way,may have a far reaching consequence. For, it is well settled that thepresumption is always in favour of the constitutionality of enactmentwhich in the present case is the "Representation of the People Act"conferring power on the Election Commission to hold general electionon dissolution of the State Legislative Assembly. The burden, toshow that it is not so is on the petitioner. In the present case it must.be said that on raising merely speculative questions on vague assump-tion and apprehension, that burden cannot be surely discharged.This apart, I cannot help noticing that enough power is conferredupon the Governor of the State to constitute or reconstitute LegislativeAssembly either on its expiration or dissolution. The Governor,

214 CHANDAN LAL V. RAM DASS [VOL. X U

again, is constitutionally under a duty to exercise such power not inderegation but on impletion of the true meaning and purport of provisionand spirits enshrined in the Constitution. This power, I have littledoubt, may be so exercised before uncertainties of things to come passinto reality in yet hazy horizon of distant future. Any way, I do notthink it will be profitable to pursue these discussions for, in the viewI have already taken of the questions on the maintainability of thepresent writ petition, it is unnecessary to examine the correctness oithe contention of either Parties for a decision on the point raised,on merits and I am not expressing any opinion on it, 1 leave the questionopen.

The result is, the petition fails. The Rule is discharged, Butthere will be no order as to costs.

Petition Dismissed.


CHANDAN LAL

V.

RAM DASS AND ANOTHER

(J. M. SHELAT AND V. BHARGAVA, JJ.)

February 7, 1969

Jamrnu and Kashmir Representation of the People Act, 1957—Section 24(8); Constitutionof Jamnw and Kashmir—Section 69; Nomination—Rejection of-—appointment order notserved on the candidate on the date of scrutiny—whether holding office of profit—a conditionalorder of appointment—when takes effect.

Nomination : rejection of-—-facts in existence on the date of scrutiny only relevant—whetherfacts coming into existence subsequently affect the propriety of the order of rejection ofnomination.

Contract : Study loan taken by the candidate executing a bond to accept service under theGovernment—whether amounts to a share of interest in a contract.

The election of the appellant was set aside by the trial court on the ground thathis election was vitiated because of the improper rejection of the nomination of oneSalooh, by the returning officer as he was found holding an office of profit under theGovernment on 23rd January, 1967, the day fixed for scrutiny of the nominations.Tn 1962, Salooh had taken a study loan from the Government on condition that hewould serve the Government for 7 years after the completion of his studies. Inpursuance of this, an order appointing him as Agricultural Assistant was signed on19th January 1967 with a direction to report to the Director of Agriculture at Jammu.Salooh got the order of appointment after the 23rd January 1967. The trial courtheld that on 23rd January 1967, the day fixed for scrutiny of nominations, Saloohwas not holding any office of profit and his nomination was improperly rejected.Dismissing an appeal to the Supreme Court.

E.L.R.] CHANDAN LAL V. RAM DASS 215

HELD : A person cannot occupy an office until he enters upon the office andthe entry upon that office is not necessarily simultaneous with the appointment tothe office. In the present case though Salooh was appointed as an AgriculturalAssistant at the Government Agricultural Farm, Talab Tale, Jammu, he was askedto report immediately to the Director of Agriculture. Therefore the appointmentof Salooh was a conditional order which would only become effective if he firstcomplied with the condition of reporting to the Director of Agriculture. Therewas no evidence on record t.o show that before the scrutiny Salooh reported to theDirector of Agriculture as required.

The contention that Salooh anyhow became disqualified after 3rd February1967 cannot hold good. A rejection of the nomination paper by the ReturningOfficer on the date of scrutiny could only be justified if it was based on facts existingat the time of the scrutiny. Facts which did not at all exist on that date and cameinto existence subsequently cannot be taken into account in order to consider thepropriety of the rejection of nomination.

The agreement of 196^ under which Salooh was under an obligation to acceptservice in the Government is not a case where it can be said that he had any share orinterest in a contract for the performance of any services undertaken by the Govern-ment as envisaged in s. 24(d) of the Jammu and Kashmir Representation of thePeople Act, 1957.


JUDGMENT

BHARGAVA, J.—This appeal under the Jammu & KashmirRepresentation of the Peoples Act No. 4 of 1957 (hereinafter referredto as "the Act") is directed against a judgment of the High Courtof Jammu & Kashmir allowing an Election Petition filed by therespondents. Respondent No. 1, the appellant, and one Chajju RamSaloch were the three candidates who filed their nomination for electionto the Jammu & Kashmir Legislative Assembly from the RamnagarScheduled Caste Constituency. On the date of scrutiny which was23rd January, 1967, the nomination paper of Saloch was rejected bythe Returning Officer on the ground that he was holding an office ofprofit under the Government of Jammu and Kashmir which disqualifiedhim from being a candidate for election to the Legislature unders. 69 of the Constitution of Jammu & Kashmir. Thereafter, therewas a straight contest between the appellant and respondent No. r.The appellant, having secured a larger number of votes, was declaredelected. An election petition was then filed by respondent No. 1challenging the election of the appellant. Respondent No. 2, who wasa voter, joined respondent No. 1 in filing this election petition. Theelection of the appellant was challenged as void under s. 108(1) (c)of the Act on the ground that the nomination of Saloch had beenimproperly rejected.

The Returning Officer rejected the nomination paper of Salochon the ground that he happened to be in government service and was,thus holding an office of profit as was clear from Agricultural OrderNo. 20/E dated 19th January, 1967, copy of which was produced beforehim by the counsel for the appellant. The other candidates requestedfor adjournment on the 23rd January, 1967 when this obje clion wa

2 1 6 CHANDAN LAL B. RAM DASS [VOL. XLI

taken at the time of the scrutiny and, as prayed by them, the hearingof the objection was adjourned till n O'clock of 24th January, 1967.The Returning Officer noted that, even on the next hearing, Salochfailed to produce any documentary proof from the Agriculture De-partment or any other proof of not being in service, though he hadbeen asked to produce a certificate from the Agriculture Departmentto rebut the objection. He having failed to do so, his nominationwas rejected. In the election petition, the plea taken was that thisrejection of the nomination paper was not justified as, in fact, Salochwas not holding any office of profit under the Jammu & KashmirGovernment on 23rd January, 1967, which was the date of scrutiny.In contesting the election petition the appellant supported the rejec-tion of the nomination of Saloch not only on the ground mentionedby the Returning Officer, but, in addition, on two other pleas. These,two pleas were that Saloch was below the prescribed age of 25 yearsat the relevant time, and that he failed to comply with the provisionsof sections 44 and 45 of the Act. These two new grounds need notdetain us, as learned counsel for the appellant arguing the appealdid not urge them before us. He confined his submissions to thedisqualification under s. 69 of the Constitution of Jammu & Kashmirand urged that the nomination was rightly rejected by the ReturningOfficer on that ground. The High Court did not accept this defenceof the appellant, held that the rejection of the nomination paper ofSaloch was not justified, and declared the election of the appellantvoid. This decision of the High Court is impugned in this appeal.

The facts, on the basis of which the question has to be decidedas found by the High Court, are not in dispute. On the 12th ofOctober, 1962. Saloch took a loan from the Government of Jammu& Kashmir to meet expenses for studying for the B. Sc, AgricultureDegree at Ranchi, and executed an agreement, one of the conditionsof which was that, on completion of his training, it would be obligatoryon the loan-scholar to serve the Jammu & Kashmir Government, ifcalled upon to do so, for a period of at least seven years on such emolu-ments and terms and in such capacity as the Government may deter-mine from time to time, though the Government was under no obliga-tion to appoint Saloch in the government service. Saloch completedhis studies and in September, 1966, he applied for appointment toa post in the Agriculture Department of the Government. On 19thJanuary, 1967, an appointment order was issued in the followingterms :—

"Agriculture Order No. 20/E dated Jammu 19th January,1967. Shri Chajju Ram Saloch, B.Sc, Agriculture, son of ShriAvtar Chand R/o Basant Garh Tehsil and Post Office Ramnagaris hereby appointed as temporary Agricultural Assistant in thegrade of Rs. 250—500 and posted at Government Agriculture Farm,Talab Tilco, Jammu. He should report immediately to theundersigned.

Sd/- B. S. JOGDirector, Agricultural Camp, Jammu."

E.L.R.] CHANDAN LAL V. RAM DASS 217

Saloch did not receive the appointment letter until after the date ofscrutiny, though he stated during the trial of the election petitionthat he was told by his friends about his appointment, so that heapproached the Director of Agriculture to join the service. Heactually took charge of the post on 3rd February, 1967, and did notserve anywhere earlier than that date. It was after joining theDepartment that he actually saw the appointment order in the officeof the Director of Agriculture. At the time of scrutiny, Salochhad filed an affidavit before the Returning Officer stating thathe has not joined any government service, that he was not performingany government duty, and that he had not received any appointmentorder.

On the basis of these facts, the principal argument advancedby learned counsel for the appellent was that an appointment orderhaving been made, as reproduced above, Saloch must be held tobe holding as office of profit under the Government from the date ofissue of that order. According to learned counsel, when this orderof appointment was issued, there was completion of a contract ofservice between the Government and Saloch, Saloch had made theoffer by applying for appointment in September, 1966. That offerwas accepted by the Government and the order of appointment issuedon the basis of that acceptance completed the contract of service.According to him, therefore, it should be held that, from the momentthis appointment order was made, Saloch was holding the officeto which he was appointed. The High Court has taken the viewthat, since Saloch did not join the post to which he was appointed tillafter the date of the scrutiny, it cannot be held that he was holdingthat office on the date of scrutiny. In support of the principleenunciated by learned counsel for the appellant, he referred usprincipally to the view taken in England in respect of similar dis-qualification from membership of the House of Commons. In hisbook "Parliamentary Elections", A. Norman Schofield, discussingthe provisions of the House of Commons Disqualification Act, 1957,mentions the procedure that is usually adopted when a Member-wishes to resign his seat either permanently, or to test the confidenceof his Constituency, or to stand as a candidate for another constituency.According to him, the usual method is by application for some officeunder the Grown which will disqualify the Member for sitting andvoting in the House, because there is no provision in England forresigning the membership of the House of Commons by a direct letterof resignation. He adds that :

''The offices which are usually sought are the office of stewardor bailiff of the Three Chiltern Hundreds of Stoke, Desboroughand Burnham, Bucks, and of the Manore of East Hendred,Yorks, Northstead and Hempholme, or the escheater of Munster.A member seeking so to resign may be appointed to those officesby means of a warrant signed by the Chancellor of the Exchequerand witnessed. As soon as this warrant is signed, the office holderceases to be a Member of Parliament, but may be re-elected."

2 1 8 CHANDAN LAL V. RAM DASS [VOL. XLI

Erskine May, in his book "Parliamentary Practice", dealing withthe same subject, states :—

"It is a settled principle of parliamentary law that a Memberafter he is duly chosen, cannot relinquish his seat; and, in orderto evade this restriction, a Member who wishes to retire acceptsoffice under the Grown, which legally vacates his seat and obligesthe House to order a new writ. The offices usually selectedfor this purpose are the office of steward or bailiff of Her Majesty'sThree Chiltern Hundreds of Stoke, Desborough and Bumham,or that of the steward of the Manor of Northstead, which wereundoubtedly offices or places of profit in former times; and thelegal fictions of their existence and of their disabling effect onMembers have been carefully preserved in the various statutesrelating to disqualification."

Anson in his book "Law and Custom of the Constitution" says :—

"But office held under the Crown does not always disqualifythe holder for a seat in the House, and we may divide officesinto groups, having regard to the extent or the existence of thedisqualification."

He then proceeds to classify the offices in three groups as follows :—

(a) The first group comprises those offices the acceptance of whichis wholly incompatible with a seat in the House of Commons;

(b) The second group comprises those offices, the acceptance ofwhich vacates a seat, but leaves the holder eligible for re-election ; and

(c) There are certain offices the acceptance of which thoughthey are concerned with the administration of departmentsof State, does not disqualify from sitting or necessitate re-election.

The offices mentioned by Schofield and Erskine May, referred toby us above, fall under the category (b) envisaged by Anson. Itis on the analogy of these offices where the signing of a warrant ofappointment has been stated by Schofield to be sufficient to disqualifya person from continuing as a member of the House of Commonsthat learned counsel for the appellant urged that we should also holdthat, on the issue of a letter of appointment to a post under the Govern-ment in India, that person becomes disqualified from being a Memberof a House of Legislature, which implies that he holds the post fromthe time that the order of appointment is passed.

We are not inclined to accept this submission made by learnedcounsel. It is to be noted that the particular posts mentioned bySchofield and May have been specially preserved for the purpose

E.L.R.] CHANDAN LAL V. RAM DASS

of enabling Members of the House of Commons to resign from member-ship which they are otherwise not permitted to do. The House ofCommons proceeds on the basis that the moment a warrant ofappointment to any of those posts is signed, the appointment becomeseffective without any further act on the part of the person so appointed.We do not know the exact nature of those posts or the manner in whicha person appointed to those posts can start functioning as a holder ofany of those posts. The position in India seems to be different. Theprovisions of the Constitution of Jammu & Kashmir are parallel tothose of the Constitution of India. In the Constitution of India itself,a provision exists in respect of a number of offices that a personappointed has to take a particular step before he can enter upon hisoffice. Thus, under Art. 124(6), a person appointed to be a Judgeof the Supreme Court, and, under Art. 219, a person appointed tobe a Judge of a High Court has to make and subscribe an oath oraffirmation before he enters upon his office. Under Art. 148(2),every person appointed to be the Comptroller and Auditor-Generalof India has to make and subscribe an oath or affirmation beforehe enters upon his office. There is a similar provision in Art. 159in respect of" a person appointed as Governor under Art. 155 of makingand subscribing an oath or affirmation before entering upon his office.In the shorter Oxford Dictionary, the word "hold" used in connec-tion with "position, office or quality" is equated with the word"occupy". On the face of it, a person cannot occupy an office untilhe enters upon the office, and the entry upon an office is not necessarilysimultaneous with the appointment to the office. In these circumstanceswe find it very difficult to accept the submission made by learnedcounsel on the basis of the practice adopted by the House of Commonsin England in respect of a few particular offices which have beenspecially preserved so as to enable a Member of the House to bringinto effect his resignation from the membership by seeking an appoint-ment to one of those offices.

However, in the present case, it appears to us that we need notexpress any final opinion on this point, because we are of the viewthat the order of appointment in the case of Saloch relied upon bythe appellant was not an unconditional order and could not, therefore,take immediate effect. It may be that, as a result of the order, acontract of service may have come into existence but Saloch, underthat order, was required to report himself immediately to the Directorof Agriculture, even though he had been appointed to a post at Govern-ment Agriculture Farm, Talab Tilco, Jammu. Thus, before takingover the appointment in this post, Saloch was required to report tothe Director of Agriculture at a different place. Suppose, Salochdid not report to the Director of Agriculture for five years; can itbe held that he would have continued to hold the office of AgriculturalAssistant at the Farm at Talab Tilco, Jammu during all those fiveyears ? The answer must obviously be in the negative. It seems tous that this order of appointment could only become effective if Salochfirst complied with the preliminary condition of reporting to the

2 2 0 GHANDAN LAL V. RAM DASS [VOL. XLI

Director of Agriculture; and it is not the case of any party that, beforethe date of scrutiny, Saloch reported to the Director of Agriculturein order to comply with this pre-condition. In these circumstances,we must come to the conclusion that the High Court was right inits decision that Saloch was not ho ding a post under the Jammuand Kashmir Government on the date of the scrutiny.

Saloch, according to the findings of fact, reported to the Directorof Agriculture later when he went to his office and, thereafter, he joinedthe post on 3rd February, 1967. On the basis of these further facts,learned counsel for the appellant urged an alternative ground thatat least on 3rd February, 1967 Saloca became disqualified to be electedas a candidate and, if so, the rejection of his nomination paper by theReturning Officer must be held to be justified. This submissionhas to be rejected, because a rejection of the nomination paper bythe Returning Officer on the date of scrutiny could only be justifiedand proper if it was based on facts which existed at the time of scrutiny.Facts, which did not exist at all on that date and came into existencesubsequently, cannot be taken into account in order to consider thepropriety of the order of rejection of nomination. This alternativeground also, therefore, has no force at all.

In the High Court, a feeble attempt was made on behalf of theappellant to justify the order of rejection on one other alternativeground, viz., that Saloch was disqualified under s. 24(d) of the Act.Under that provision, a person is disqualified from being chosen asa member of the Legislature if, whether by himself or by any personor body of persons in trust for him or for his benefit or on his account,he has any share or interest in a contract for the supply of goods to,or for the execution of any works or the performance of any servicesundertaken by the Government. The agreement of 1962, underwhich Saloch was under an obligation to accept a service under theJammu and Kashmir Government for a period of seven years, wasclearly not a case where it can be held that he had any share or interestin a contract for the performance of any services undertaken by theGovernment. In fact, that agreement did not relate at all to anyservice undertaken by the Government of Jammu and Kashmir andonly laid down an obligation on Saloch to accept an employmentunder the Government in case the Government decided to appointhim.

In these circumstances, none of the grounds urged by learnedcounsel 1o support the rejection of the nomination paper of Salochby the Returning Officer has any force, so that the High Court wasright in its decision that the nomination paper of Saloch was improperlyrejected and in declaring the election of the appellant void. Theappeal fails and is dismissed with costs.

Appeal dismissed.

E.L.R.] RAJ PAL SINGH V. OM PRAKASH GARG 22 1

IN THE HIGH COURT OF ALLAHABAD

RAJ PAL SINGH

V.

OM PRAKASH GARG AND ORS.

(MAHESH CHANDRA, J.)

October 30, 1968 and February 10, 1969

Conduct of Election Rules, 1961—Rule 40A—If u l t ra vires the Corstitution and the Act.Representation of the People Act, 1951—Section 123(1) (b) and (A)—Bribery—Proofof Necessity of particulars—Section 123(2)—Undue influence—Contract Act, s. 16,difference between.

The petitioner challenged the election of respondent 5 on the grounds that about400 voters who were literate, took companions along with them and voted forrespondent No. 5 in violat:on of rule 40A of the Conduct of Election Rules,1961, and the provis'ons of the Representation of the People Act, and further thatthe respondent was guilty of the corrupt practice of bribery; and that thesematerially affected 'he result of the election. Respondent No. 2 supported thepetition and alleged in his written statement that Rule 40A was ultra viresthe Constitution and the Act. Respondent No. 5 denied the allegations of corruptpractice and alead^i that these allegations were vague and devoid of particularsand were liable to be struck off- So far as the plea of Respondent No. 2 that Rule40A was ultra vires of'he Act and the Constitution was concerned it was contendedon behalf of respondent 5 that there being no such plea in the petition, no issueshould be framed on the plea; that the written statement of respondent No. 2 had beenfiled beyond the period of limitation prescribed under the Act and no issue could btstruck also because Respondent No. 2 had not furnished any security.

HELD: (1) It is clear from clause (b) of Article 329 that the only mannerin which an election fo either House of the Legislative Assembly of a State can becalled in question is by an election petition and not by any other means. Evidentlyit cannot be challenged by a written statement which does not amount to a petition-The result of reading \' ;cle32g(b) of the Constitution and Section 81(1) of the Acttogether is that the e!ec ion can be calledin question onlyif an election petition is pre-sented to the High Court within a period of 45 days. In order that the respondent maybe able to challenge an election he should satisfy the provisions regarding the pre-sentation of the pe':i''on to the specified authority within the time fixed by law. Thewritten statement of ve^pondent No. 2 ts not a petition presented in accordance withthe law made by the Legislature under Art. 329 of the Constitution.

There is no provVon in the Constitution regarding secrecy of votes. It cannottherefore be said that "R. lie 40 A which enables even a blind or infirm person or onewho ;s unable to rea 1 he ballot paper to vote with ths help of a companion ts ultravires^h.e Constitution- "''lor ;s the rule ultra vires the Act.

Raj Krishna Bosev. Jiiod Kanungo, A.I.R. 1954 S.C. 202 Bohray Ram Gopal v. Dr.Ladi Prasad Tandon, F.A. No. 6o f ig6 i decided 16-2-1962 (Allahabad); EdwardMills v-State of Ajmer A.I.R. 1955 S.C. 25; referred to.

(11) It is not estab' shed that any bribe was paid by Respondent No. 5 or by any-body on his behalf.

To bring the horn" charge of corrupt practice under Clause (B) of s. 123(1) to thecandidate his part in 'ie receipt of the bribe has to be considered. In case of receiptal thatwillbe necessary is to prove that the bribe flows from the candidate directly or

222 RAJ PAL SINGH V. OM PRAKASH GARG [VOL. XLI

through his election agent or any person with his consent. I t will not be necessary toprove specifically whether the bribe was actually given by the candidate or by anyother person. In a case covered by clause (A) however, it will be necessary to show as towho actually made the gift offer or promise to a particular person—whether it was thecandidate himself or his agent or any other person with his consent.

In the state of allegations as they aiu contained in the petition no evidence can bepermitted to be led on the payment of bribe by a particular person to anotherspecified person.

(lii) The provisions of sub-section 20 of s. 123 relating to undue influence aredifferent from those of s. 16 of the Contract Act. There is no reference in sub-section(2) of section 123 to the position to dominate the will of another. There is thus noquestion of the burden shifting on to the person who is said to have exercised undueinfluence.

It would be necessary in the pleading to show the nature of the undue influenceexercised by the candidate concerned. In the absence of any such particulars no evi-dence can be looked into or permitted to be led on a point which has not been allegedin the pleadings.

ELECTION PETITION NO. 2 OF 1968

JUDGMENT

MAHESH CHANDRA, J.—This is a petition by an elector Raj PalSingh to call in to question the election of Shri Dau Dayal KJianna,respondent no. 5, to the Uttar Pradesh Vidhan Parishad from the Mo-radabad Local Authorities Constituency. The petitioner Raj Pal Singhalso prayed that respondent No. 2 should be declared a duly electedcandidate.

The polling took place on the 28th of April, 1968. There weresix contesting candidates. The result of the election was declared on29th of April, 1968. Shri Dau Dayal Khanna, respondent no. 5, wasdeclared elected having received 1105 votes. Kunwar Kaushal SuryaInder Singh, Respondent no. 2, secured the next highest number ofvotes, which were 794 in number.

The election of Shri Dau Dayal Khanna is challenged by the pe-titioner on the following grounds :—

1. About 400 voters, who were literate, took companions alongwith them and voted for respondent no. 5 Shri Dau DayalKhanna in violation of rule 39-A of the Conduct of ElectionRules, 1961 and the provisions of the Representation of thePeople Act. A list of ninety three of such alleged voters isgiven in schedule A attached to the petition. If these 400votes are deducted from the votes said to have been securedby respondent no. 5, respondent no. 2 and not respondentno. 5 would be the duly elected candidate.

2. This illegality was resorted to by respondent no. 5 for the rea-son that he had bribed those 400 electors including thosementioned in column 3 of schedule A. The bribe was saidto have been paid by respondent no. 5 himself and by the

E.L.R.] RAJ PAL SINGH V. OM FRAKASH GARG 223

so called companions with his consent at the places mention-ed in schedule A. The object was to induce the electors tovote for him. In this way, the respondent no. 2 is alleged tohave committed the corrupt practice of bribery.

3. Respondent no. 5 interferedswith the free exercise of the elec-toral right of the 400 electors including those mentioned inSchedule A by undue influence and thereby prevented themfrom voting for the candidate of their choice. Respondentno. 5 accordingly was said to have thereby committed thecorrupt practices of undue influence.

4. Respondent no. 5 had the vote of one Kundan Lai deceasedcast although he is said to have died long before the date ofthe polling.

5. Respondent no. 5 also had the vote of one Munshi Singh casttwice—one by the companion, viz. Lala Ram and againthrough a companion named Ram Autar.

These alleged illegalities have, according to the petitioner mate-rially affected the result of the election of respondent no. 5. It is fur-ther alleged that but for these corrupt practices committed by himrespondent no. 5 would have secured less votes than respondent no. 2.

Kunwar Kaushal Surya Inder Singh, respondent no. 2, supportedthe petition and alleged that rule 39-A mentioned in the petition wasreaily rule 40-A added by a notification of the Government of Indiapublished in the Gazette of India dated 25th of April, 1968 and thatit was ultra vires of the Constitution and the Act.

Om Prakash Garg, respondent no. 1, filed a written statementsupporting the petitioner and also taking some pleas, but after thedate of issues absented himself from the proceedings.

Tufail Ahmed, respondent no. 6, also filed a written statementsupporting the petition and taking other pleas, but absented himselffrom the proceedings after the issues on recriminatory petition hadbeen framed.

Shri Dau Dayal Khanna, respondent no. 5, denied the allegationof the petitioner and pleads that the allegations made in paragraphs 6 and7 are too vague and devoid of material facts and particulars and are assuch liable to be struck off. He further pleads that the allegations madein paragraph 8 are without any foundation and in any case do notamount to any violation of any provisions of the Representation of thePeople Act, and the rules and orders made thereunder and are as suchliable to be struck off. He contends that votes cast in favour of theanswering respondent with the help of companions are all valid andstrictly in accordance with the terms of rule 40-A of the Conduct of

2 2 4 RAJ PAL SINGH V. OM PRAKASH GARG [VOL. XLI

Election Rules and the provisions of the Representation of the People Actand the rules and the Orders made thereunder. He further pleadsthat there was no violation of the secrecy of ballot papers and the alle-gations made in paragraphs 9 and 10 are incorrect and misconceived.Besides, denial of the allegations regarding bribery as false, malicious,baseless and imaginory and connected for the purpose of the case, healso pleads that the allegations made in paragraphs 12, 12(a) and13 of the petition are vague and devoid of material part:culars anddo not constitute a corrupt practice at all and are, consequently, lia-ble to be struck off. The allegations regarding undue influence werealso denied. It is further pleaded by respondent no. 5 that these alle-gations are also vague and devoid of particulars and do not constitutethe alleged corrupt practice of undue influence and are also liable tobe struck off. As regards the alleged vote of Kundan Lai deceased,respondent no. 5 contends that really it was Chhuttan Singh who wasentered at serial no. 134 and that no vote of Kundan Lai at serial no.134 was cast at all. Similarly, the allegations regarding the vote ofMunshi Singh being cast twice was also denied. According to respond-ent no. 5, there was no violation by him or his agents or workers of theprovisions of the Representation of the People Act or the Rules madethereunder. He p;eaded further that the petitioner had failed to makethe security deposit in accordance with law and the petition was, con-sequently, liable to be rejected. According to him, the petition wasalso liable to be rejected on the ground of laches and violation of Rules3 and 4 of Chapter XII of the Rules of the Court. It was alleged thatrespondent no. 5 and his election agents took all reasonable meansfor preventing the commission of any corrupt practice at the electionand the respondent no. 5 also issued directives and orders throughnotices circulated to all his agents, workers and supporters prohibitingthe commission of any corrupt practice and that the election was freefrom any corrupt practice on the part of respondent no. 5, his electionagents or any of his other agents. He also prayed for special costs.

So far as the plea of respondent no. 2 that rule 40-A was ultravires of the Act and the Constitution was concerned, it was contendedon behalf of respondent no. 5, that there being no such a plea in thepetition, no issue should be framed on that plea, that the written sta-tement of respondent no. 2 had been filed beyond the period of limita-tion prescribed under the Act and that no issue could also be struckbecause respondent no. 2 had not filed any security.

Respondent no. 5 also filed a recriminatory petition alleging ter-rorisation of voters by respondent no. 2 and his associates with his con-sent to vote for respondent no. 2 and not to vote for respondent no. 5.It was also alleged by respondent no. 5 that respondent no. 2 had ob-tained and procured the assistance of Shri Ram Chandra Singh, Sta-tion Officer, Police Station Bahjoi, who threatened Shri Kalyan Singh,voter to stop supporting and voting for the respondent no, 5 and tosupport and vote for respondent no. 2. Similar assistance from the Con-solidation Officer Dilari and four Assistant Consolidation Officers Jai-pal Singh, Brijnandan, Vijaipal and Megh Singh for the furtherence

Eil».R.] RAJ PAL SINGH V, OM FRAXASH GARG 2 2 $

©f the prospects of the election of respondent no. 2 was alleged to havebeen obtained by him. According to respondent no. 5, corrupt prac-tice contemplated by sub-sections (2) and (7) of section 123 were thuscommitted by respondent no. 2 and the result of the election in so faras respondent no. 2 was concerned had been materially affected onaccount of the corrupt practice committed by him.

In respect of these allegations it was pleaded on behalf of the pe-titioner and respondent no. 2 that the allegations made in the recri-minatory petition were vague and contrary to one another and shouldfoe deleted. They were also denied.

The following issues were originally framed on the pleas of theparties :

1. Has the petitioner failed to make the security deposit in ac-cordance with the law as alleged by respondent no. 5 ? Ifso, its effect.

2. Is the election petition liable to be rejected on grounds of lachesand violation of rules 3 and 4 of Chapter XII of the Rulesof Court as alleged by respondent no. 5.

3. Did the literate voters mentioned in Schedule A of the petitionvote through their companions in violation of the provisionsof the Representation of the People Act, 1951 and the Rulesframed thereunder as alleged ? If so, its effect.

4. Are the allegations in respect of other illiterate voters votingthrough their companions vague and devoid of material factsand particulars ? If so, its effect.

5. Do the allegations made in paragraphs 6 to 8 of the petitionamount to violation of any of the provisions of the Representa-tion of the People Act or the rules framed thereunder ? Ifso, are they liable to be struck off ?

6. Has the result of the election so far as it concerns respondentsnos. 2 and 5 been materially affected as alleged in the peti-tion ?

7. Did respondent no. 5 himself or through the alleged companionswith his consent bribe the electors mentioned in column 3of Schedule A of the Election Petition as alleged in paragraph12 of the Election Petition ?

8. Were the alleged companions mentioned in column 3 of Sche-dule A of the Election Petition agents of respondent no. 5 ?

9. Are the allegations made in paragraph 12, 12A and 13 of thePetition too vague and devoid of material particulars to con-stitute a corrupt practice cf bribery and are therefore liableto be struck off ?

10. Whether Kundan Lai is dead and whether his vote was castfor him through Bhup Singh as alleged in paragraphs 16 and17 of the Petition ? If so, its effect.

15—4 Elec. Com./71

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11 . Was the vote of Munshi Singh cast twice, once through hiscompanion named Ram Lai and again through Ram Autaras alleged in paragraph 18 of the petition ? If so, its effect.

12. Did respondent no. 5 himself through his alleged agents withhis consent as mentioned in column 5 of Schedule A of theElection Petition commit the corrupt practice of undue in-fluence as alleged in paragraph 14 of the petition ?

13. Do the allegations made in paragraphs 14 and 15 of the elec-tion petition not amount to any of the allegations of corruptpractice and as such are liable to be struck off ?

14. Has the result of the election in so far as respondent nos. 2and 4 are concerned been materially affected by the illega-lity alleged in paragraphs 16 and 17 and 18 of the electionpetition ?

15. Whether no ground is disclosed by the election petition forelimination of votes cast in favour of respondent no. 5 ? Ifso, its effect ?

16. Did respondent no. 5 and the election agent take all reason-able means for preventing the commission of the corruptpractice as alleged in paragraph 28 of the written statementof the respondent no. 5. If so, its effect ?

17. Is the election petitioner liable to pay special costs to respon-dent no. 5 ?

18. To what relief, if any, is the petitioner entitled ?

19. Whether during the election respondent no. 2 and his bro-thers and associates with his consent terrorised voters to votefor respondent no. 2 and not to vote for respondent no. 5,the returned candidate as alleged in paragraph 5(a)(i), (ii),(iii) and (iv) of the statement attached to the recriminatorypetition and the respondent no. 2 thereby committed thecorrupt practice contemplated by section 123(2) of the Re-presentation of the People Act ?

20. Whether respondent no. 2 obtained and procurred the assi-stance of Shri Ram Chandra Singh, Station Officer, P. S.Bahjoi and whether Shri Ram Chandra Singh threatened, ShriKalyan Singh, voter to stop supporting and voting for therespondent no. 5 and to support and vote for respondentno. 2; respondent no. 2 thereby committed the corrupt prac-tice contemplated by sections 123(7) °f t n e Representationof the People Act, 1951 ?

2i. Whether the respondent no. 2 obtained the help and assi-stance from the then Consolidation Officer, Dilari and fourAssistant Consolidation Officers—Jaipal Singh, Brijnandan,Vijaipal and Megh Singh—for the furtherance of the prospects

E.fc.R.] RAJ PAL SINGH 0. OM PRAKASH GARG 227

of the election, of respondent no. 2 as mentioned in para-*graph 5(b) of the Recriminatory Statement, and therebycommitted the corrupt practice contemplated by section 123(7)of the Act ?

22. Whether the result of election in so far as respondent no. 2is concerned has been materially affected on account of cor-rupt practice as mentioned in paragraphs 5(a)(i), (ii), (iii),(iv) and 5(b) of the Recriminatory Statement ?

23. Whether the allegations detailed in paragraphs 5(a) and (b)and 6 of the recriminatory petition are vague ? If so, to whateffect ?

24. Did respondent no. 5 himself and other persons with his con-sent bribe the electors as mentioned in Schedule A of the elec-tion petition and thereby commit the corrupt prectice of bri-bery as contempleted by section 123(1) of the Representatioaof the People Act ? If so, its effect ?

25. Is rule 40A ultra viers of the Act and the Constitution as alle-ged in the written statement of respondent no. 2 ? If so, itseffect ?

26. Does issue no. 25 not arise and is it not to be tried in this forthe reasons alleged by the counsel for respondent no. 5 in hisstatement today ? If so, its effect ?

FINDINGS

Issue No. 1.—This issue was decided as a preliminary issue andwas found in the negative by my order dated 30th October, 1968.

Issue No. 2.—This issue was also decided as a preliminary issueand found in the negative by my order of the same date i. e. 30th Octo-ber , 1968.

Issue No. 5.—This issue was also decided as a preliminary issue andit was held in my order dated 30th October, 1968 {See Annexure at theend of this Judgement) that there was no allegation that any one of the400 persons mentioned in paragraphs 6 to 8 were able to read the ballotpaper or to record the vote thereon and that in the absence of any suchallegation it could not be said that these votes were cast in violationof any of the provisions of the Act or the Rules made thereunder andthat these allegations, could not be a ground for declaring the electionof respondent no. 5 to be void. No issue was, therefore, held to be neces-sary on the allegations contained in paragraphs 6 to 8 of the petitionas they then stood. Issues 2, 4 and 6 were held liable to be struck off.

Issues Nos. 3, 4 and 6.—In view of the findings on Issue 5 mention"cd above issues 3, 4 and 6 were struck off.

Issue No. 9.—This was also decided as a preliminary issue by myorder dated 30-10-1968 before the application for amendment wasfiled. It was held therein that in the state of allegations as they then

2 2 8 RAJ P&L SINGH P. OM PRAKASH GARG [VOL. j t l j

stood no evidence could be permitted to be led on the payment of bribeby a particular person to any specific person. It was further held thatthe question of giving consent by the respondent no. 5 would only arisewhen it has been considered which person paid the bribe to whom,for it is only then that it can be said that that particular person paidthe bribe with the consent of respondent no. 5. This was because theallegations in the petition as they then stood did not make out whichperson paid the bribe to whom.

The plea of respondent no. 5 was that paragraphs 12, 12A and13 of the petition should be struck off, but when it was stated by thelearned counsel for the petitioner that he would apply foi the amend-ment of the petition within a week and that the striking, off of the alle-gations in the petition may be left over till then, issues nos. 7 and 8 wereonly ordered to be struck off on the basis of the pleadings a? they thenstood.

Issues 7 and 8.—In view of this finding on preliminary issue no.9, issues 7 and 8 were struck off. A fresh issue no. 24 was, however,framed on the same point on 18-12-1968 after the petition had beenamended.

Issues 10, 11 and 14.—These issues were not pressed vide statementof the learned counsel for the petitioner dated 6th January, 1969. Theseissues are, consequently, found in the negative.

Issue No. 13. —This issue was also decided as a preliminary issueby my order dated 30th October, 1968. It was held in that order "Thereis no allegation in paragraphs 14 and 15 of the petition of any threator any creation of belief regarding displeasure or spiritual censure".It is true that undue influence is not confined to cases of threat andcreation of such a belief, but if there is an allegation of this kind andthe person threatening or creating the belief shall be deemed to inter-fere with the free exercise of electoral right. In the absence of such anallegation it would be necessary in the pleadings to show the natureof the undue influence exercised by the candidates concerned, for whenwe come down to the level of proof we will have to see what kind ofundue influence is proved. "It was also held that the question of lead-ing evidence to prove a particular instance of exercise of undue influ-ence would arise and that then no evidence could be looked into orpermitted to be led on a point which had not been alleged in the plead-ings. Issue no. 12 was also, for the reasons mentioned in that order of30th October, 1968 ordered to be struck off, but so far as the questionof striking off paragraphs 14 and 15 was concerned it was at the timeleft over in view of the statement of the learned counsel for an amend-ment of the petition."

Issue No. 12.—In view of this order issue no. 12 was struck off theapplication for amendment was considered in my order dated 29-11-1968,but no amendment in the question of undue influence was permittedfor the reasons given in that order.

E.L.R.] RAJ PAL SINGH V. OM PRAKASH GARG 229

Issues 19 to 22. —On 21-1-1969 at the close of the case the learn-ed counsel for respondent no. 5 stated that he would not lead any evi-dence on the recriminatory petition. There being no evidence on theseissues, all of them i.e. Issues 19 to 22 are found in the negative.

Issue No. 23. —No finding is necessary on this issue in view of thefact that no evidence had been led on issues 19 to 22 and they havebeen found in the negative.

Issue 710.26,—'Three questions are to be considered under this issue:—

1. Whether such a pica can be considered in an election petitionif it has been raised by respondent no. 2 on^y ?

2. Whether such a plea was raised by the petitioner also in hispetition ?

3. If no plea was raised in the petition can the petitioner be per-mitted to take up this plea in arguments as a purely legalplea ?

I shall deal first with the question whether such a plea can beconsidered in a petition when it has been raised by respondent no. 2only.

Article 329 of the Constitution runs as follows :—Bar to inter-ference by courts in electoral matters, 329 notwithstanding anythingin this Constitution—

(a) The validity of any law relating to the delimitation ofconstituencies or the allotment of seats to such constituencies,made or purporting to be made under article 327 or article 328,shall not be called in question in any court.

(b) No election to either House of Parliament or to the Houseor either House of the Legislature of a State shall be called in ques-tion except by an election petition presented to such authorityand in such manner as may be provided for by or under any lawmade by the appropriate legislature.

It will be clear from clause (b) of Article 329 that the only manner inwhich an election to either House of the Legislative Assembly of aState can be called in question is by an election petition, and not by anyother means. Evidently then, it cannot be challenged by a writtenstatement which does not amount to a petition. It is necessary thatthe petition calling in question any election to a House of a LegislativeAssembly of a State shall be presented to the specified authority and inthe specific manner provided for by or under a law made by the appro-priate Legislature. The Representation of the People Act is the lawmade by the appropriate Legislature in this connection.

2 3 0 RAJ PAL SINGH 8. OM PRAKASH GARG [VOL.

Section 81 of the Representation of the People Act prescribes theauthority to which the petition is to be presented and also the mannerof presentation. Section 81 of the Act runs as follows :—

"81. Presentation of petitions.—(i) An election petitioncalling in question any election may be presented on one or moreof the grounds specified in sub-section (i) of section i oo and sec-tion 101 to the High Court by any candidate at such election orany elector within forty five days from, but not earlier than, thedate of election of the returned candidate, or if there are morethan one returned candidate at the election and the dates of theirelection are different, the later of those two dates.

Explanation.—In this sub-section, 'elector' means a per-son who was entitled to vote at the election to which the electionpetition relates, whether he has voted at such election or not.

(2)

(3) Every election petition shall be accompanied by as manycopies thereof as there are respondents mentioned in the petitionand every such copy shall be attested by the petitioner underhis own signature to be a true copy of the petition."

Clearly, the authority to which the petition is to be presented is theHigh Court. It has to be presented within 45 days from the date of theelection of the returned candidate. If there are more than one returnedcandidate and the dates of their election are different than forty fivedays may be counted from the later of those two dates. It is also pro-vided in sub-section(i) of section 81 that the petition may be presentedeither by a candidate or by an elector. The provisions regarding thetime within which the petition is to be presented and the person bywhom it is to be presented give the manner of presentation.

The result of reading Article 329(b) of the Constitution and sec-tion 81(1) of the Representation of the People Act together is that theelection can be called in question only if an election petition is present-ed to the High Court within a period of 45 days. In order that the res-pondent may be able to challenge an election he should satisfy the pro-visions regarding the presentation of the petition to the specified autho-rity within the time fixed by the law. There is no doubt that the writ-ten statement has also been presented to the High Court, but it doesnot satisfy the other requirement that the written statement of respon-dent no. 2 was filed within 45 days of the declaration of the result. Theresult was declared on 29th of April, 1968 and the written statementof respondent no. 2 was filed on 25th of September, 1968 long afterthe expiry of the period of 45 days since the declaration of the result.It is, consequently, not a petition presented in accordance with thelaw made by the supporting Legislature under Article 32g(b) of theConstitution.

Section 83 of the Act provides for contents of the petition.It runs as follows :—

"83. Contents of petition.—(1) An election petition—


(a) Shall contain a concise statement of the material facts on whichthe petitioner relies,

(b) Shall set forth full puiticulars of any corrupt practice thatthe petitioner alleges, including as full a statement as possi-ble of the names of the parties alleged to have committedsuch corrupt practice and the date and place of the commis-sion of each such practice, and

(c) Shall be signed by the petitioner and certified in the mannerlaid down in the Code of Civil Procedure, 1908 (5 of 1908),for the verification of pleadings :

Provided that where the petitioner alleges any corrupt practice,the petition shall also be accompanied by an affidavit in theprescribed form in support of the allegation of such corruptpractice and the particular thereof.

(2) Any schedule signed by the petitioner and verified inthe same manner as the petition."

This clause (a) uses the phrase "on which the petitioner relies.'Clause (b) uses the phrase "any corrupt practice that the petitioneralleges". Clause (c) also uses the phrase "signed by the petitioner".Similary, sub-section (2) of section 83 also uses the phrase "signedby the petitioner". Respondent no. 2 is certainly not that petitioner,and his written statement as it stands is not a petition.

Again, section 86 deals with the trial of election .petition. Itdeals with the power of High Court to dismiss an election petitionon preliminary grounds.

Sub-section (1) of section 86 runs as follows :—

"(1) The High Court shall dismiss an election petition whichdoes not comply with the provisions of section 81 or section 82 orsection 117.

Explanation.—An order of the High Court dismiss an elec-tion petition under this sub-section shall be deemed to be an or-der made under clause (a) of section 98."

Clearly, the petition is liable to be dismissed if it does not com-ply with the provisions of section 81 or section 117. Section 81, wehave already seen, deals with the provisions that the petition mustbe presented to the High Court within 45 days of the election. Sec-tion 117 provides for the security for costs. Thus, the petition could bedismissed by the High Court, if it did not comply with either of thoseprovisions, even without issuing a notice to the respondents and thewhole proceedings would come to end. In view of the explanation, thisorder of dismissal would be deemed to be an order under clause (a) ofsection 98 which is a final order giving rise to an appeal to the SupremeCourt under section 116-A. It is true that under section 86(3) there canbe more than one election petition. They have to be referred for trial to

2 3 2 RAJ PAL SINGH 0. QM PRAKASH GARG [VOL. 2E£.T

the same judge. When so referred for trial to the same Judge, they maybe tried separately or in one or more groups. So, a petition could alsobe filed by respondent no. 2 as a candidate even after the petitionerhad filed his petition. As such a petition by respondent no. 2 would notbe prohibited under law and he can challenge the election of respon-dent no. 5 by that petition, but then he would have to satisfy the require-ments of sections 81 and section 117, otherwise the petition of his wouldbe liable to be dismissed by this court. He cannot challenge the elec-tion of respondent no. 5 in view of the express provision of Article 329(b)without filing a petition in the manner prescribed by law i. e. the Re-presentation of the People Act framed by the Legislature. He cannot,therefore, challenge it by a written statement filed more than 45 daysafter the declaration of the result of the election.

Sub-section (4) of section 86 makes out the distinction betweenpetitioner and a respondent.

It runs as follows :—•"(4) Any candidate not already by a respondent shall upon

application made by him to the High Court within fourteen daysfrom the date of commencement of the trial and subject to anyorder as to security for costs which may be made by the High Court,be entitled to be joined as a respondent.

Explanation.—For the purposes of this sub-section and/orsection 97, the trial of a petition shall be deemed to commenceon the date fixed for the respondents to appear before the HighCourt and answer the claim or claims made In the petition."

The explanation clearly shows that the claim is made in the pe-tition, and the respondent when lie appears is to answer the claim orclaims made thereunder. A date has to be specifically fixed for theappearance of those persons who arc to appear and answer the claims,and these persons are respondents. It is thus beyond doubt that a can-didate even though he is entitled to challenge the election must challen-ge it through a petition presented in the manner provided by law.

Sub-section (5) of section 86 provides for amendment of a peti-tion regarding particulars of corrupt practice, but it lays down therestriction that no amendment will be permitted which will have theeffect of introducing particulars of a corrupt practice not previouslyalleged in the petition. Clearly, this is a departure from the rules ofamendment followed in civil courts. Section 87(1) applies the rulesof the Civil Procedure Code, but expressly make the application sub-ject to the provision of the Act which are contrary to the Civil Proce-dure Code.

In a civil court, it is possible to have a conflict inter se betweenthe defendants, but under the Representation of the People Act therespondent is only to answer the claim made in the petition. If he wantsto take the position of the petitioner he has naturally to come as a pe-titionei to the Court in the manner specified by the Representation of

E.L.R.] RAJ PAL SINGH V, OM PRAKASH GARG 233

the People Act. Because of the use of words "subject to the provisionsof this Act and of any rules made thereunder" in sub-section (i) ofsection 87, unfettered application of the Civil Procedure Code is clear-ly ruled out.

There is, in fact, only one provision in the Representation of thePeople Act which may be considered an permitting a respondent totake the position of the petitioner. This is the power of recriminationgiven by section 97 of the Act. Section 97(1) runs as follows:—

"97. Recrimination when seat claimed.—(1) When in anelection petition a declaration that any candidate other than thereturned candidate has been duly elected is claimed, the returnedcandidate or any other party may give evidence to prove thatthe election of such candidate would have been void if he had beenthe returned candidate and a petition had been presentedcalling in question his election :

Provided that the returned candidate or such other partyas aforesaid shall not be entitled to give such evidence unless hehas, within fourteen days from the date of commencement ofthe trial, given notice to the High Court of his intention to do soand has also given the security and the further security referredto in sections 117 and 118 respectively."

The power to file a recrimination under this sub-section is given tothe returned candidate and also to any other party. It would includerespondent no. 2 also, but: this power is granted only when a declara-tion is claimed that any candidate other than the returned candidatehas been duly elected. The power is also limited to the specific purposeof providing that the election of that candidate would have been voidif he had been the returned candidate. In such a case also he has togive a written notice to the High Court of his intention to do so. Thiswritten notice itself cannot be given at any time, but must be givenwithin fourteen days from the date of the commencement of the trial.The respondent in that case has also to furnish security under section117, if necessary.

Secondly, under sub-section (2) of section 97 of the Act, notice hasto be accompanied by the statement and particulars required by section83 in the case of an election petition. The statement has also to besigned and verified in the same manner as an election petition is sign-ed and verified. It is thus also clear that the requirement of section83 have to be satisfied. It is only if a respondent had satisfied in fullthe requirements of section 97 that he can be said to have become moreor less a counter petitioner and then the statement occupies the posi-tion approaching to that of a counter claim under Civil ProcedureCode.

Section 117(1) provides for the deposit of a sum of Rs. 2,000/-by the petitioner as security for the costs of the petition. Sub-section(2) of that section further provides that during the course of the trial

2 3 4 RAJ PAL SINGH V. OM PRAKASH GARG [VOL. XL1

the petitioner may be called upon to give such further security for costsas the court may direct. This shows that unlike the plaintiff, the pe-titioner in an election petition is called upon by law to deposit securityfor costs from the very beginning. He is also liable to be asked to de-posit further costs if the Court considers necessary. Naturally, thelegislature would have made some provision for costs inter se betweenrespondents, if it had in mind that a respondent could also change hisposition to that attack on his correspondent in a case other than thatcovered by section 97 of the Act. Under that section in particular theprovision for such costs has been specifically mentioned by sub-section(2). The Legislature, in fact, attaches so much importance to this pro-vision for claim for costs that it provides in section 86 that an electionpetition shall be dismissed if it does not comply with the provisions ofsection 117- Clearly then, the respondent no. 2 is not entitled underthe Constitution and the Act to challenge the election by a written sta-tement in the form it exists. Nor is such a challenge contemplatedby law.

This matter had arisen earlier before the election tribunals. Asimilar view has been taken in this country by the tribunals by whomelection petitions were then triable vice Rattan Singh v. Devendra Singhand others ( n Election Law Reports p. 167) and Banswaraj K. Nagar v.B. R. Shidlingappa (12 Election Law Reporters p. 168).

The answer to the first question, therefore, is that the respondentno. 2 cannot take the position of the petitioner by taking such a pleain the written statement in the manner he has done.

So far as the second and third questions are concerned, there isno doubt that there is no plea in the petition itself to the effect thatrule 40A was ultra vires of the Constitution. It was, however, allegedin paragraph 10 of the petition that the procedure mentioned in theearlier paragraphs was in violation of the provisions of the Represen-tation of the People Act and the Rules made thereunder, and also vio-lated the secrecy of the ballot papers.

Shri Vijai Bahadur Singh, learned counsel for the petitioner, con-tends that by this paragraph 10 he meant that the procedure adoptedviolated the provisions of the Representation of the People Act andthat this plea of his would hold good even if they do not violate therules. He further contends that he has also pleaded that the procedureviolated the secrecy of the ballot papers and its seciecy, accordingto his contention, is provided for in the Representation of the PeopleAct. He urged that once he has pleaded the facts which only are re-quired to be stated under the Indian Law of pleadings he should notbe debarred from taking a legal plea based on those facts in the trialof the case itself. His content is that purely legal pleas are permittedeven in second appeals. Paragraph 10, as it stands ^even though this isa stretched interpretation) may be stretched to mean what the counselfor the petitioner contends. Moreover, so since the question raised in

E.L.R.] RAJ PAL SINGH V. OH PRAKASH OARO 2 3 5

issue 25 is a purely legal question I consder it proper to discuss it indetail under that issue, even though respondent no 2 himself cannottake up this plea. This issue is found accordingly.

Issue no. 25.—Chapter XV of the Constitution deals with elec-tions and consists of only six articles. Article 324 only provides thatthe superintendence, direction and control of election has to be vestedin the Election Commission. Article 325 provides that no person isto be included in any special electoral roll for any such consti-tutency on grounds only of religion, race, caste, sex or any of them.

Article 326 provides for adult suffrage and runs as follows :—

"326. The election to the House of the People and to theLegislative Assembly of every State shall be on the basis of adultsuffrage : that is to say, every person who is a citizen of India andwho is not less than twenty-one years of age on such date as maybe fixed in that behalf by or under any law made by the appro-priate Legislature and is not otherwise disqualified under thisConstitution or any law made by the appropriate Legislature onthe ground of non-residence, unsoundness of mind, crime or cor-rupt or illegal practice, shall be entitled to be registered as a vo-ter at any such election."

This Article positively provides that so far as the House of People andthe Legislative Assembly is concerned every adult person not less than21 years of age shall be entitled to be registered as a voter. The onlygrounds on which a person may be disqualified are those of no-resi-dence, unsoundness of mind, crime or corrupt or illegal practice. Theappropriate legislature is permitted to make a law for disqualificationon these grounds only. No other ground can be added by the legisla-ture to disqualify an adult from exercising his vote. Evidently, theConstitution lays great emphasis on adult suffrage and provides thatthe election to the house of people and to the Legislative Assembly ofevery State shall be on the basis of adult suffrage. It does not permitdisqualification of any person on the ground of blindness or infirmityor inability to read the ballot paper. The Constitution guaranteesthe right of vote to every adult including even such persons. It is onlyopen to the appropriate Legislature to fix the date on which the per-son is not to be less than 21 years of age. Constitution having guaran-teed such a right, any provision or anything having the effect of de-priving such a person of his right to vote against the provisions of thisarticle will be ultra vires of the Constitution.

Article 327 provides for power of Parliament to make provisionswith respect to election to Legislatures, but this power of the Parlia-ment is subject to the provisions of the Constitution itself as is evidentfrom the opening words of Article 327. Similarly, Article 328 givespower of Legislature of a State to make provision with respect to elec-tions to such Legislature, but this power is also subject to the provi-sion not only of the law made in that behalf by the Parliament, but

2 3 6 RAJ PAL SlrJGH V. OM PRAKASH GARG [vqL^ 3SLI

also to the provisions of the Constitution. It is, consequently, not opento the Parliament or to the Legislature of a State to go against the pro-:visions of Article 326 providing for adult suffrage. Any provision di-rectly or even indirectly disentitling such a person to vote againstthe provisions of Art. 326 will as already mentioned be ultra vires ofthe Constitution. The Parliament and the Legislature have, there-fore, to see that nobody is deprived of this right to vote except ongrounds mentioned in Article 326. There is no provision in the Con-stitution regarding secrecy of votes. It cannot, therefore, be said thatrule 40A, which enables even a blind or infirm person or one who isunable to read the ballot paper to vote with the help of a companionis ultra vires of the Constitution. On the contrary, it would not be cor-rect for the Parliament or the Legislature of any State to make a lawwhich make it impossible for such a infirm or blind or illiterate personto exercise his right to vote.

Now, let us see what rule 40A specifically provides and whetherit is ultra vires of the Representation of the People Act. Rule 40A ofthe Conduct of Election Rules runs as follows :—•

"40A. Recording of votes of illiterate, blind or infirm- elec-tors,—(1) If an elector is unable to read the ballot paper or torecord his vote thereon in accordance with rule 37A by reasonof illiteracy, blindness or other infirmity, the Presiding Officershall, on being satisfied about such illiterary, blindness or infirmity,permit elector to take with him a companion of not leis thantwenty one years of age who is able to read the ballot paper andrecord thereon on behalf of, and in accordance with wishes of theelector and if necessary, to fold the ballot paper so as to concealthe vote and insert it into the ballot box :

Provided that no person shall be permitted to act as the com-panion of more than one elector at any polling station on the sameday :

Provided further that before any person is permitted to actas the companion of an elector on any day under this rule, theperson shall be required to declare that he will keep secret the voterecorded by him on behalf of the elector and that he has not al-ready acted as the companion of any other elector at any pollingstation on that day.

(2) The Presiding Officer shall keep a record in form 14Aof all the cases under this rule.

(3) The Presiding Officer shall, when he is so requested bythe companion of an elector, explain to him the instructions forthe recording of votes. In plain words this rule permits a personwho is unable to read the ballot paper and record his vote becauseof blindness or any other disability to take with him a companionto record the vote on the ballot paper in accordance with the wishesof the elector. The only limitations are : , , ,

Svl.Ri} . | RAJ PAL SINGH V. OM PRAKASH GARG 1237

(1) That the Presiding Officer should be satisfied of the blind-ness or infirmity of the voter or his infirmity to read theballot papers.

(2) That the companion has not acted as a companion for anyother elector at any polling station on the same day.

(3) Before the companion is permitted to act as such he has todeclare that he would keep secret the vote recorded byhim on behalf of the elector and that he had not alreadyacted as the companion of any other elector on that day.

The basis of the Indian democracy is adult franhise. It is, consequent-ly, essential that statutes and rules should be so framed as not to goagainst this basis of Indian democracy and to deprive a person on hisright to vote if he is otherwise entitled to vote and is not disqualifiedon any of the grounds mentioned under Article 326 of the Constitution.

The first contention of the learned counsel for the petitioner isthat this rule violates secrecy and that the act enjoined secrecy. Thequestion, however, is what kind of secrecy is enjoined by the Act and•whether that kind of secrecy is violated by these rules. Learned counselfor the petitioner in this connection referred to sections 59, 62, 94, 128and 169 of the Act. It would be useful to examine each one of thesesections.

Section 59 runs as follows :—

"59. Manner of voting at elections.—At every election wherea poll is taken votes shall be given by ballot in such manner asmay be prescribed, and no votes shall be received by proxy."

This section uses the word "ballot" and not secrecy. The obvious rea-son for making the provision for voting by ballot is that the votermay be able to cast his vote without any kind of fear of even dis-pleasing a friend of his for whom he may not have voted and votedfor a person whom the voter's friend would not like him to vote. Then thesection says that the vote shall be given by ballot. "In such manneras may be prescribed" which means prescribed by Rules. The Actitself no where says that the voter if he wants himself to disclose hisvote shall not disclose it.

Emphasis was laid on the use of the word the vote shall be receivedby proxy. These words cannot by any stretch of imagination meanthat a blind person will not be entitled to have vote cast in accordancewith his own wishes by another person of his choice in his presence.The very idea of proxy implies absence of the voter himself. In Eng-land, there is a provision for voting by proxy. For instance, a personon seas is permitted to vote by proxy, because being on seas in the serviceof the country he is not able to exercise the*jvote personally at the pollingstation. England had to make provision for such vote because it wasmaritime nation, and at one time, a vast empire. A number of Britishcitizens were liable to be on seas out of England. It did not consider

2 3 8 RAJ PAL SINGH V. OM PRAKASH GARG [VOL. JU4

it correct that those persons who are on duty for the Crown and thenation should be deprived of that valuable right to vote. The num-ber of such persons would be very large. India, on the contrary, isnot a maritime nation of that kind and the Constitution has permittedthe appropriate Legislature to disqualify a person from voting on theground of non-residence. Consequently, it is not surprising or uncon-stitutional for the Act to provide that no vote shall be received by pro-xy, but, as mentioned above, this provision does not exclude the re-cording of vote of a person unable to vote because of blindness or otherdisability if the vote is cast according to his wishes by a person of hischoice in his presence. By no stretch of imagination, therefore, rule40A should go against the follows :—


"62. Right to vote.—No person who is not, and except asexpressly provided by this Act, every person who is, for the timebeing entered in the electoral roll of any constituency shall beentitled to vote in that constituency.

(2) No person shall vote at an election in any constituencyif he is subject to any of the disqualifications referred to in sec-tion 16 of the Representation of the People Act, 1950 (43 of 1950).

(3) No person shall vote at a general election in more thanone constituency of the same class, and if a person votes in morethan one such constituency, his votes in all such constituenciesshall be void.

(4) No person shall at any election to vote in the same con-stituency more than once, notwithstanding that his name mayhave been registered in the electoral roll for that constituencymove than once, and if he does so vote, all his votes in that consti-tuency shall be void.

(5) No person shall vote at any election if he is confined ina prison, whether under sentence of imprisonment or transpor-tation or otherwise, or is in the lawful custody of the police :

Provided that nothing in this sub-section shall apply to a per-son subjected to preventive detention under any law for the timebeing in force."

Sub-section (1) of section 62 expressly provides that every person whois for the time being entered in the electoral roll of any constituencyshall be entitled to vote in that constituency. Thus, the pre-requisitefor the right to vote is the entry of the person in the electoral roll of theconstituency, for this sub-section also provides that no person not soentered shall be entitled to vote in that constituency. Then there aresome disqualifications mentioned in this section. Sub-section (2) spe-cifically provides that if the person is subject to any of the disqualifi-cation referred to in section 16 of the Representation of the People Acthe shall not be entitled to vote, nor will a person be entitled to vote

E.L.R.] RAJ PAL SINGH 0. OM PRAKASH GARG 2 3 9

more than once even though his name may be entered to more thanone constituency nor will he be entitled to vote more than one in the sameconstituency. Similarly, a person who is confined in a prison or undera sentence of imprisonment or transportation or otherwise or is in lawfulcustody of police shall not be entitled to vote, but even therethis provision is not be entitled to vote, but even there this provisionis not to apply to a person subjected to preventive detention underany law for the time being in force. This provision itself will show thatthe Act in providing for disqualification had to keep in mind the pro-visions of Article 326 of the Constitution which mean crime or corruptor illegal practice as a ground of disqualification, but not mere preven-tive detention. This is another instance of the necessity for disabledpeople to exercise their valuable right to vote. Rule 40A does not goagainst the provision of this section. On the other hand, it carried outthe purpose of this section.


"94. Secrecy of voting not to be infringed.—No witness or otherperson shall be required to state for whom he has voted at an elec-tion."

The heading is certainly of secrecy, but let us see what kind of secrecyit provides. All that it says is that no person shall be required to statefor whom he has voted at an election and even a witness cannot beasked that question in court. In other words, if he does not want tosay so, he cannot be asked to disclose the person for whom he has vo-ted. There is nothing in section 94 itself which says that he cannotgive it out if he himself wants to do so. As already mentioned the pur-pose of secrecy is that voting is to be free and without fear, for personswho are in a position to compel others may exercise compulsion. Thiscompulsion is to be avoided. This is exactly what the section provides,but it goes no further. Section 94 by itself does not restrict the volun-tary act of the person. In other words, the secrecy section is partialand is not absolute. It is partial in the sense enjoined by this sense thatit is confined to the requirement that a person shall not be asked forwhom he has voted. What is then there against the Act in the ruleif it permits blind or infirm voters or one who is unable to read to takea companion with him to record a vote in accordance with his wishesin his presence ? Obviously, they cannot cast their votes themselvesand they have to take the help of either the Presiding Officer or some-body else. Any help of the Presiding Officer may, in fact, amount some-times to a requirement to disclose the vote to another person. The per-son himself may be willing to disclose even to the Presiding Officerthe name of the person for whom he is going to vote, but when he hasa companion of his own choice, there is no question of compulsion.Rule 40A does not at all go against section 94.


"(1) Every officer, clerk, agent another person who per-forms any duty in connection with the recording or counting ofvotes at an election shall maintain, and aid in maintaining, the

2 4 0 RAJ PAL SINGH V. OM PRAKASH GARO [VOL. XLI

secrecy of the voting and shall not (except for some purpose) autho-rised by or under any law communicate to any person any in-formation calculated to violate such secrecy.

(2) Any person who contravenes the provisions of sub-sec-tion (1) shall be punishable with imprisonment for a term whichmay extend to three months or with fine or with both."

The framers of this section had the benefit of English law and confinedthe restriction to persons who had to perform duty in connection withthe recording or counting of votes at an election. AH such persons havebeen restrained by section 128—This will apply even to a companion,but it is he who is prohibited from communicating to any person anyinformation calculated to violate the secrecy. It does not apply to thevoter himself. It is thus the companion who is restrained and not thevoter himself. This part of the restraint on the companion is providedfor in rule 40A also by the proviso that before he is permitted to actas companion he is required to declare that he would keep secret thevote recorded by him on behalf of the elector. It may be that for thesame purpose the Presiding Officer has also to keep the record in form14A of all the cases under this rule. Rule 40A does not, therefore, goagainst this section.

Sub-section (1) of section 169 runs as follows :—

169. Power to make rules.—(1) The Central Governmentmay, after consulting the Election Commission, by notification inthe Official Gazette, make rules for carrying out the purpose ofthis Act.

The use of the words "for carrying out the purpose of thisAct" is significant. The policy in election matters is laid downfirst by the Constitution and then by the Act. In the Act the re-levant sections are 59, 62, 92 and 128. The purpose of the Actand the policy as laid down in the Act is that even infirm, blindand illiterate voters should not be deprived of the right to vote.The rules had, therefore, to make provision for carrying out thispolicy and purpose of the Act. We find clause (c) of sub-section(2) of section 169 in these terms.

(2) In particular, and without prejudice to the generalityof Ihe foregoing power, such rules may provide for all or any ofthe following matters, namely :

(c) the manner in which votes are to be given both generallyand in the case of illiterate voters or voters under physicalor other disability.

The Act itself, therefore, contemplates a provision in the Rules to pro-vide for the manner in which the votes of blind person or infirm orvoters under physical or other disability is to be exercised provided


that they are not disqualified by law m accordance with the Consti-tution. It will be interesting in this connection to note here that thewords used are "under physical or other disability". Thus, this dis-ability is not confined to physical infirmity alone so far asthe provision of the Act goes and it will include not merely illiteracybut also the inability to read the ballot paper and to record the vote.

This power to make rules is a delegation of power to the CentralGovernment, but that power has to'be;exercised under the general super-intendence of the Election Commission and not arbitrarily. This isclear from the use of the words "after consulting the Election Commi-ssion". The provision for the general superintendence over elections bythe Election Commission is provided for in Article 324 of the Consti-tution itfelf. Consequently, the consultation of the Election Commi-ssion is necessary and has been specifically provided for in section 169,so that the exercise of the power of the Central Government in mak-ing rules is not arbitrary. Moreover, sub-section (3) of section 169further provides that every rule made under the Act has to be laid,as soon as may be after it is made, before each House of Parliament.If both Houses agree that the rule should be either modified or annu-lled, the rule shall thereafter have effect only in such modified form orbe of no effect if it is annulled. The power to be exercised in makingthe rule is, therefore, not arbitrary. It has first to be made in consul-tation with the Election Commission and then the Rule framed is sub-ject to the wishes of the Houses of the Legislature. By no stretch ofimagination can, therefore, the rule 40A be said to be against the Actor the Constitution. Such a provision was, in fact, called for when theprovision for single transferable vote made the process of voting com-plicated and a person who was not able to see or read the ballot paperor record the vote had to be provided for with some help to cast hisvote. Such a provision only carries out the purpose of the Act and doesnot go against it.

Objection has been taken to the use of the phrase "on being satis-fied" IN RULE 40. It was urged the rule should have provided inwhat manner the Presiding Officer was to satisfy himself. It wouldnot be correct for the rules to enumerate the methods of satisfaction.For such enumeration is likely to handicape the real and correct satis-faction of the Presiding Officer, for the method mentioned may beone more md quite anothe equally import-.nt method of satisfaction.Nor would it be correct t<> lay down elaborate rules for recordingevidence about the capacity of the person to ead the ballot paper andrecord his vote. The whole procedure would take so much time asto make it impossible for a n imber of voters to record their votes with-in the time fixed for polling. If such a method of taking evidence hadbeen provided for, it would have only ended in confusion. It cannot,therefore, be said that the power given by rule 40A is in any way un-determined or uncanalised

It is wholly incorrect to say that any Legislative power has beengiven to the Presiding Office. He was merely exercising a power topermit a vote to be cast with the help of companion on behalf of the16—4 Elec. Com./71


voter in the voter's presence and not exercising any kind of Legislativepower. The very fact that there has been no modification in these Ru-les since 25th of April, 1968 by Legislature shows that the Legislaturedoes not disapprove of this rule.

It would be also useful to consider the slate of law as it existedbefore the present rule 40A. In 1951 rule 26 of Conduct of ElectionRules related to the voting for the Legislative Assembly. The head-ing was. the recording of vote of infirm electors. In the body of therule what was mentioned was that if an elector is unable to read thesymbol on the ballot box because of blindness or other infirmity andwas physically incapacitated to put the ballot paper into ballot boxphysically the Presiding Officer could help him. The purpose was tohelp blind or infirm electors. The only difference from 40A is thatat that time the Presiding Officer helped him instead of any other per-son. Rule 61 corresponds to the rule and was for the election to theCouncil. It provided for a physical incapacity resulting in the inabi-lity to read the ballot paper or to make mark thereon. Clearly, theintention was to make the provision for help of an elector through thePresiding Officer in a case where there was an inability to read a ballotpaper and to make a mark. It appears that the wording of this rulewas not very happy, because it confined the application of the rule toan elector who was unable to read the ballot paper, or to make a markhereon, because of physical incapacity. May be, it was because of thislacuna in the rule that a change became necessary.

This position of 1951 was modified in 1956. In 1956 rule 32 cor-responds to rule 26 of 1951 in respect of the Legislative Assembly.Here also the help of the Presiding Officer was provided for. It wasnot necessacy to go to the question of inability to read the ballot paperin assembly elections because the voting there could be by symbols.It is rule 78 which corresponds to rule 61 in respect of council elections.Here, illiteracy was also brought in to add to the blindness or otherphysical infirmity contained in the earlier rule 1951. This rule againdid not enjoin absolute secrecy, for the voter had to disclose to thePresiding Officer the person for whom he was casting his vote. Theserules continued till 12-10-1964. In that year, rule 40 was framed forthe purpose of voting in the Assembly and the provision for help wasconfined to persons unable to vote because of blindness or other phy-sical infirmity for an election for the Assembly. Illiteracy was not im-portant in view of the use of the symbols. Then this rule 40 after 12-10-1964 permitted assistance by a companion. This was consideredan improvement on the provision for help by the Presiding Officerbecause of the practice in India of the Ministry of not resigning beforethe elections. It may have been considered as open to objections forthere may be an objection against disclosure of the vote to a Govern-ment servant acting as a Presiding Officer. Consequently, assistancefrom a person of the voter's choice to cast the vote on his behalf mayhave been considered better. That may or may not be so, but that isthe reason which the learned counsel for the respondent no. 5 givesfor the change. The suggested reason cannot he lightly brushed aside,


but whatever the reason may have been for the change inasmuch asit was not modified or annulled by either House of Parliament. Rule70 applied this rule 40 to the Council election also. There was no mo-dification of rule 40 in respect of inability to read for any reason otherthan blindness or other physical infirmity. In fact, rule 40 even madeuse of the words "unable to recognise the symbols". Such a rule wasapplied to the Council election also. This was a lacuna. It, consequent-ly became necessary to make an amendment and the amendment wasmade by rule 40A. This is evident from the fact that in rule 40A wefind inability to read placed first. Even the word "Physical" has beentaken out beforee the word "inability". In fact, as already mentionedsection 169 has used wider words "infirmity".

This history of the rules would show the desire on the part of theframers of these rules to act according to the directions of section 169and to carry out the provisions of the constitution provided for by Arti-cle 326. The rules framed were, therefore, amended from time to timeto remove the lacuna, whenever there was found to be one.

It would be interesting to note that, as mentioned in the powers,duties and liabilities of an election agent and of the Returning Officerin England by Parker, fifth edition at page 177 he had said that it isenough if the voter declares orally that he is unable to read. In con-nection with blind voters and companions on p. 178 it is mentioned thatif the Presiding Officer is satisfied that the voter is so incapacitated andis also satisfied by a written declaration made by the companion inform no. 49 that the companion is a person qualified to assist the voterand is not previously assisted more than one blind person to vote atthe election then taking place he shall grant the application. The words"if the Presiding Officer is satisfied" carry the same meaning as the"if the Presiding Officer is satisfied" carry the same meaning as thewords "on being satisfied" in India. This has stood the test of time inEngland also. It would not, therefore, be correct to say that the pro-vision "on being satisfied" gives undetermined and uncanalised discre-tion to the Presiding Officer.

On the contrary, a person cannot be deprived of his right of vot-ing, which is a valuable right, merely because he is blind, infirm orunable to read. In fact, rule 40A is in accordance with the provisionsof the Act and the Constitution.

In Raj Krishna Bose vs. Binod Kanungo (A.I.R. 1954, S.C. p. 202)speaking of the government servants Das, J. Observed :—

"They cannot be compelled to disclose the fact and any im-proper attempt to obtain such an information would be a corruptpractice, but equally, they are not compelled to keep the fact sec-ret if they do not wish to do so nor is the candidate."

Thus; law, according to the Supreme Court enjoined secrecy, but notan unlimited secrecy, so, the person who is blind, infirm, unable toread the ballot paper could tell the Presiding Officer formerly and can


now tell his companion for whom he wants to vote. The voter him-self is not compelled to keep his vote secret by the Act or the Consti-tution. In England, as we have already seen, a blind or a person suffer-ing from disability has the choice to take the assistance of either thePresiding Officer or his companion. In India, the assistance of thecompanion has been substituted for the former assistant bv the Presi-ding Officer. It would be a question for consideration by the ElectionCommission whether it would be better to give in India also choicein the case of Council elections to have his vote recorded either bythe Presiding Officer or by a companion, but it cannot be said thatrule 40A providing assistance for such voters by a companion of thevoters own choice when the companion acts according to the wishesof the voter is against the Act or the Constitution.

In an unreported decision Bohr ay Ram Gopal vs. Dr. Ladj PrasadTandon (E-A-no. 6 of 1961 decided on 16-2-1962 by this Court) a ques-tion arose with regard to the election of the Upa Nagar Pramukh of theAgra Nagar Mahapalika. There was a difference of opinion betweenthe two Hon'ble judges of this Court and the appeal was then referredto Brother Bishambhar Dayal, J. Section 12(3) of the Uttar PradeshNagar Mahapalika Adhiniyam provides :

"The Nagar Pramukh and the Upa Nagar Pramukh shallbe elected by the members in accordance with the system of pro-portional representation by means of the single transferable voteand the voting at such election shall be by secret ballot."

Section 540(4) of the Adhiniyam provides :—

"AH rules made under this shall be laid for not less than four-teen days before each house of the State Legislature as soon asthey are made and shall be subject to such modifications as theLegislature may make during the session they are so laid."

Thus, there is a similar provision in this Act for laying of the rules be-fore the Houses of the Legislature. Similarly, the Act also provides forthe modification of the rules as the Legislature may make during thesession they are so laid*

Rule 23(6) framed under this Adhiniyam runs as follows :—

"If owing to physical incapacity or illiteracy a member isunable to record his preferences en the ballot paper or to readit, the Nirvachan Adhikari shall, on being so requested by themember, record the vote in the ballot paper according to the di-rection of the member. The member shall then himself or withthe assistance of the Nirvachan Adhikari put the ballot paperfolded up into the ballot box. The Nirvachan Adhikari shall havethis done with as much secrecy as is feasible and shall keep a briefrecord of each such instance without indicating the manner inwhich the vote has been cast."


Thus, even though there is a provision of ballot in the Act rule 23 (6)provided for assistance to a person unable to record his preference onthe ballot paper to read it because of physical incapacity or illiteracy.B. Dayal, J. observed :—

"Secrecy of vote is primarily for the protection of the voter.If an individual voter deliberately discloses in whose favour he isvoting to any particular individual, it cannot be said that theresult of the election is, in any way, affected by it, nor can it besaid that the vote so given is a vote not properly received."

Brother Bishambhar Dayal then quoted the observation, mentionedalready, of the Supreme Court in Bohray Ram GopaPs case {supra)and then went on to say :—

"It is therefore, quite clear that the violation of the secrecyof vote voluntarily by the voter by itself has no effect on the vote.If, however, violation is forced upon a voter, that would be a di-fferent matter. That question however, is not before me, viz. whe-ther in the circumstances of this case, these 9 voters were forcedto disclose their vote to the Returning Officer."

The only question in the present petition also is whether secrecyof a vote could or could not under the Act be voluntarily violated bythe voter himself. Clearly, as held in first Appeal no. 6 of 1962 secrecyis primarily for the protection of the voter, and disclosure by the voter tohimself at his own instance, particularly in order to enable him casthis vote, is not prohibited by the Act. In fact, I would go further andsay that: in view of the provisions of the Constitution, it should not beprohibited by the Act when lie would otherwise be not able to exer-cise his valuable right of vote at all.

So far as the delegation of Legislative power is concerned, a legis-lature has inherent power to exercise the essential functions in respectof legislation on a particular subject and discharges the primary dutyof law making, but to carry out effectively the purposes of the enact-ment it may delegate as a subsidiary or an ancillary measure the powerof the appropriate Government to frame the desired rules. Ordinarily,even in respect of these rules power is reserved for the Houses of theLegislature to make such modifications as may be necessary after therules framed have been laid before the Houses.

In Edward Mills Co. Ltd. vs. State of Ajmer and another (A.I.R. 1955S.C. p. 25) Mukherjee, J. speaking for the court observed :—

"As was said by O'Connor, J. in the above case* when a Legis-lature is given plenary power to Legislate on a particular subjectthere must also be an implied power to make laws incidental tothe exercise of such power. It is a fundamental principle of Con-stitutional law that everything necessary to the exercise of a power

* Baxter vs. Ah. Way (1909) 8 CLR 626 at p. 637 (AUST) (A).


is included in the grant of the power. A Legislature cannot cer-tainly strip itself of its essential functions and vest the same onextraneous authority. The primary duty of law making has to bedischarged by the Legislature itself, but delegation may be resortedto as a subsidiary or an ancillary measure."

In the present case, the Legislature is this delegation of the powerto make rules is only resorting to it as a subsidiary or an ancillary mea-sure. The legislative policy itself h there laid down in different sec-tions of the Act. The power of the Central Government to frame rulesis determined and canalised by section 169(2) (c) and other provisionsof the Act itself. Rule 40A is, therefore, not ultra vires of the Act or theConstitution.

Learned counsel for the petitioner contended that rule 39 pro-vided for maintenance of secrecy of voting by electors with pollingstation and voting procedure.

Sub-rule (1) of rule 39 runs as follows :—

"Every elector to whom a ballot paper has been issued un-der rule 38 or under any other provision of these rules, shall main-tain secrecy of voting within the polling station and for that pur-pose observe the voting procedure hereinafter laid down."

Sub-rule (2) of Rule 39 then provides :—

"The elector on receiving the ballot paper shall forthwith : —

(a) proceed to one of the voting compartment ;

(b) there make a mark on the ballot paper with the instru-ment supplied for the purpose on or near the symbol of the candi-date for whom he intends to vote;

(c) fold the ballot paper so as to conceal his vote;

(d) if required, show to the presiding officer the distinguish-ing mark on the ballot paper;

(e) insert the folded ballot paper into the ballot box; and

(f) quit the polling station."

Sub-rules (3) and (4) run as follows :—

"(3) Every elector shall vote without delay.

(4) No elector shall be allowed to enter a voting compart-ment when another elector is inside it."

Sub-rule (5) runs as follows :—•

"If an elector to whom a baliot paper has been issued, refuses*after warning given by the presiding officer, to observe the pro-cedure as laid down in sub-rule(2), the ballot paper issued to

R.L.R.] RAJ PAL SINGH V. OM PRAKASH GARG 247

him shall, whether he has recorded his vote thereon or not, betaken back from him by the Presiding Officer or a Polling Offi-cer under the direction of the Presiding Officer."

Sub-section (6) provides for the endorsement on the ballot paper sotaken back. Sub-section (7) provides as to how the ballot paper sotaken back shall, be kept in a separate cover.

Sub-section (8) then runs as follows :—

"Without prejudice to any other penality to which an ele-ctor from whom a ballot paper has been taken back under sub-rule (5), may be liable the vote, if any, recorded on such ballotpaper shall not be counted."

Read as a whole, Rule 39 certainly says that the elector shall main-tain secrecy of the voting, within the polling station, but it goes on tosay that for that purposes he will observe the voting procedure here-inafter daid lown. Sub-rule (5) provides for the taking back of the ballotpaper, but this is to be done only if the elector to whom a ballot paperhas been issued refuses after warning to observe the procedure as laiddown in sub-rule (2). Thus, all the subsequent sub-rules relate to theconsequences of the refusal to observe the procedure laid down in sub-rule (2). But what is the voter to do if because of blindness or physicalinfirmity he is unable to mark on the ballot paper with an instrumentsupplied for the purpose on or near the symbol of the candidate for whomhe intends to vote. In that case, it would not be a refusal, on his partto observe the procedure laid down in sub-rule (2), but a disability be-cause of which he cannot observe the procedure. For the disability hemay or may not have been responsible, but once the disability is therehe is not responsible for the inability to follow the procedure providedfor in sub-rule(2). By no stretch of imagination can it be called refu-sal on his part to follow that procedure. Thus, the subsequent rule40 provided for assistance to such a blind or disabled voter.

Evidently, sub-rule(2) relating to marking with the instrumenton. or near the symbol of the candidate for whom he intends to votecannot apply to voting for the Council for in the first place there is nosymbol. Secondly, it is a case of single transferable vote. Even themethod of voting is different from that provided for in clause (b) of sub-rule (2). The procedure is much more complicated. For that even adisability of the voter because of his inability to read the ballot paperor to record his vote thereon is to be taken into consideration. Con-sequently, a provision had to be made for such inability to read theballot paper and to record the vote thereon in the case of Council ele-ctions. Rule 39 cannot, therefore, be said to be contradicted by rule40A, moreover a rule may be said ultra vires of the Act or the Consti-tution and not of the preceding rule, for the question may then arisewhether the preceding rule itself is intra vires or ultra vires of the Act,We are not here concerned with the vires of the preceding rule, but weare cert; linly concerned with the vires of rule 40-A. For the reasonsalready mentioned, it is not ultra vires of the Act or the Constitution


The argument of the learned counsel for the petitioner in factgoes against the view of the Supreme Court laid down in Raj Krishna'scase (supra) to the effect that while the voter cannot be compelled todisclose the fact, the Act or the Constitution does not compel him tokeep it secret. The contention of the learned counsel for the petitioneris thus without force.

The next contention of the learned counsel for the petitioner isthat rule making authority may complement but not supplement agranted power. For this he relied on the observations of Dwivedi, J.in the State of U. P. vs. Murtaza Alt (1961 A.L.J. p. 287).

Dwivedi, J. himself had relied on the observation oi Carbines vs. Powall(Vol. 36, C. L. R. p. 80). It was, in fact, a quotation by Isaacs, J. inthat case from an earlier observation of the same Judge in AustralianBoot Trade Employees Federation vs. Whybrow and Co. (1910 t i C. L. R.311 at p. 338). Isaac, J . himself had in that case said the authoritymust be taken as it is created, taken to the full but not; exceeded".

It is thus clear that what is meant by the phrase that a grantedpower may be complemented but not supplemented by the rule mak-ing authority is that the rule making authority cannot exceed the grant-ed power. It can take it "to the full". We have already seen that therule making power had not been exceeded in rule 40A. Section 169gave it the power to make rules for carrying out the purpose of theAct and specifically provided under clause (c) of sub-rule (2) the man-ner of giving votes generally and in the case of illiterate voters or votersunder physical or other disability. In other words it made a distinctionbetween votes which are given generally and the votes which are givenin the case of voters under physical or other disability. The inabilityto read the ballot paper and to record vote thereon is clearly coveredby the phrase "other disability". The rule in respect of it under rule40A has been made for carrying out the purpose of the act by givinghim a companion of his own choice to cast his vote in accordance withhis wishes.

The contention of the learned counsel for the petitioner and alsoof the learned counsel for the respondent no. 2, who supported thepetitioner in these matters, is thus without force. The rule is neitherultra vires of the Act nor of the Constitution. I find this issue in thenegative.

Issue No. 24 .— This is the main issue in the case and deals withthe question of bribery.

[The Court discussed the evidence and proceeded].

All the three witnesses Salamatullah (P.W. 1), Ram Swarup(P.W. 2) and Kashi Ram (P.W.-4) are accomplices. P.W. 1 Salamatu-llah and Kashi Ram (P.W. 4) state contrary to the petitioner's affida-vit and even his statement. There are contradictions in Ram Swarup's


statement, which make his statement fully unreliable. I do not consi-der it proper to rely oil such uncorroborated statement. They are inthe nature of accomplices. It is true that section 157 of the IndianEvidence Act provides that;

"In order to corroborate the testimony of a witness, any form-er statement made by such witness relating to the same fact, ator about the time when the fact took place, or before any autho-rity legally competent to investigate the fact, may be proved."

But it has not been satisfactorily established here that the former sta-tement of these witnesses relating to the allegations regarding briberywas made to any person at or about the time when the incident tookplace. There is no question of this being made before any authoritylegally competent to investigate the fact. Such a statement was notmade even to the Presiding Officer, who was at the polling station.

, Section 133 of the Indian Evidence Act provides :

"Accomplice.—An accomplice shall be a competent is notillegal merely because it proceeds upon the uncorroborated testi-mony of an accomplice."

The statements of these witnesses who are really accomplice can-not therefore be and is not rejected as inadmissible. These statementsare certainly admissible, but the question is what weight is to be attach-ed to them. Illustration (b) of section 114 of the Indian Evidence Actruns as follows :

""The Court may presume—

(b) That an accomplice is unworthy of credit, unless he iscorroborated in material particulars."

This is only a rule of prudence and must be kept in mind in weighingthe evidence. As pointed out by the Supreme Court in Rameshwar•Kalyan Singh, vs. State of Rajasthan (A.I.R. 1952 S.C. p. 54) in wei-ghing the evidence and basing the conviction there on the necessityof corroboration as a matter of prudence, except where the circum-stances make it safe to dispense with it, must be present, to the mind•of the Judge, Bose J. speaking for the courts observed :

"the rule which according to the case has hardened into oneol law, is not that corroboration is essential before there can beconviction but that necessity of corroboration, as matter of pro-duce, except there the circumstances make it safe to dispense withit, must be present to the mind of the Judge and injury cases, mustfind place in the charge before a conviction without corroborationcan be sustained."

There is thus no rule of practice that there must in every case be corro-boration before a conviction can be allowed to stand. Nor is it the con-tention of the learned counsel for the respondent no. 5, what he contends

250 RAJ PAL SINGH V. OM PRAKASH GARG [VOL. XLJ

is that if we look to the nature of the evidence itself it is such evidenceof accomplice as is unworthy of credence without corroboration eventhough conviction on the basis of an uncorroborated evidence of accom-plice will not by itself be illegal.

In C. Subba Rao vs. K. D. Reddy (A.I.R. 1967 Ap p. 155) it washeld that the receiver of a bribe is in relation to the giver an accom-plice. This being so, taking of a bribe for casting a vote is as much anoffence as the giving of a bribe for the purpose. With respect, I agreewith the views of Manohar Prasad, C. J. and Kumarayya, J. who de-cided the case.

Learned counsel for the petitioner Shri Vijai Bahadur Singh con-tended on the basis of the case of K. K. Jadav vs. State of Gujarat (A.I.R.1966 S.C. p. 821) that even circumstances may corroborate the stategment of an accomplice, Kapur, J. speaking for the Court observed :—

"The corroboration need not be direct evidence of the commitssion of the offence by he accused. If it is merely circumstantialevidence of his connection with the crime it will be sufficient andthe nature of the corroboration will depend on and vary with thecircumstances of each case."

There is no doubt that as held by their Lordships of the Supreme Court,the evidence of an accomplice may be corroborated even by circum-stantial evidence, but here the circumstantial evidence does not helpthe petitioner. It is not sufficient to prove only that the witness costhis vote. Nor is it. sufficient to prove that he cast it with a helper. Boththese circumstances, do not go against the casting of the vote by thevoter with a helper of his own choice in accordance with his own wish-es without any payment or acceptance of a bribe. On the contrary,there are many circumstances in this case, which as already mentioned,go against the case of the petitioner.

Learned counsel for the petitioner then relied on Ram Lai vs.State of Bombay (A.I.R. i960 S.C. 961) in which it was held that it wassufficient if it was a merely circumstantial evidence of the connectionsof the accused with the crime. This decision does not help the petition-er, for in the present case, the presence of the witnesses for casting then-votes or the use of helpers does not connect the respondent no. 5 withthe crime. Considering the statements of Salematullah (P.W. 1), RamSwarup (P.W.2), Kashi Ram (P.W. 4) and Rajpal Singh (P.W. 12)regarding the allegations of bribery alleged to have been committedat Baniya Khera block I find that it has not been established that sucha bribe was given to any one of the voters there.

[The Court continued the discussion of the evidence and held].

On a consideration of the entire evidence on this issue it has notbeen established that any bribe was paid by respondent No. 5 or any-body on his behalf. The issue is, therefore, found in the negative.

E.L.K.] RAJ PAL SINGH V. OM PRAKASH GARG 251

Issue No. 15.—In view of my findings on issues 5, 9 to r i , 13 and14 no ground has been made out for elimination of any vote cast infavour of respondent No. 5. This issue, therefore, is found against thepetitioner.

Issue No. 16.—On this issue respondent No. 5 has produced a num-ber of notices and appeals, copies of which he summoned from the Dis-trict Election Office, Moradabad. Some of the copies of appeals andnotices were also filed by D.W. 1 S. P. Mehrotra, Ext. D.W. 1/A-1 isthe manuscript of the request to all the workers of respondent No. 5asking them that they should not do anything during the election com-paign which may be against law. Ext. D.W. 1/A-2 is the manuscriptof the instructions for the polling agents, the proof of this notice is Ext.D.W. 1/A-3 and D.W. 1/A-4. Ex. D. W. 1/A-5 is the final print of thisnotice and Ext. A.i is the printed copy of this notice received fromthe District Election Office. None of these notices contain the nameof Pratibha Press. Learned counsel for the petitioner contends thatthese cast a serious doubt on the notice having been printed by ShriS. P. Mehrotra (D.W. 1). That might or might not be so, but respond-ent No. 5 as D.W. 8 has identified his signatures on this manuscriptof which Ext. A-1 is a printed copy. Since this copy was received fromthe Election Office, it cannot be said that this notice was not issued.It cannot be ascertained with certainly as to how many persons actu-ally received this notice. Ext. A-3 has been received from the DistrictElection Office and Ext. A-4 has been filed by the respondent No. 5himself. This bears the name of the Pratibha Press, Moradabad whereit was printed. There is no doubt that it was-also sent to the Dis-trict Election Office, and since it contains many directions for the poll-ing agents helpful to the polling itself it may have been sent to all thepolling agents. These directives are, however, immaterial, for thealleged bribery is said to have been committed not by the polling agents,but by respondent. No. 5 or the companions of voters. In any case,whether these notices or directives had or had not been widely circu-lated it will not affect the question of bribery if it had been proved tohave been committed by the evidence adduced in the case. I find thisissue accordingly.

Issue No. 17.—It is true that the petitioner in the beginning of thecase made a number of allegations alleging non-compliance with theprovisions of the Rules and the Acts and challenging even the viresof rule 40 A. But I do not consider it necessary for that reason to awardany special costs to respondent No. 5. The petitioner is liable to paycosts to respondent No. 5 in view of his failure in the petition and Iassess the costs at Rs. 1500/-. Respondent No. 5 in also liable to paycosts to the petitioner in respect of the recriminatory petition whichhe cou'd not substantiate. I assess the costs payable by respondentNo. 5 to the petitioner at Rs. 500/-.

Issue No. 18.—In view of my findings on issues Nos, I to 17 and 19,to 26, the petition is liable to be dismissed.


ORDER

The petition is dismissed. So is (he recriminatory petition. Thepetitioner shall pay Rs. 1500/- as costs to respondent No. 5 in. respect ofthe petition. Respondent No. 5 shall also pay Rs. 500/- costs to thepetitioner in respect of the recriminatory petition.

Petition dismissed.

ANNEXUREOrder dated the §oth October 1968, on preliminary issues: This is an ele-

ction petition filed by Rajpal Singh challenging the election of SriDau Dayal Khanna, respondent No. 5, as a member of the Lttar Pra-Pradesh Vidhan Parishad. The petition is by an electoin respect of anelection, which took place on the 28th of April, 1968. As a resu't ofcounting done on the 29th of April, 1968, Sri Dau Dayal Khanna,respondent No. 5, was found to have secured 1105 votes. Kr. KushalSurya Inder Singh, respondent No. 2 secured 794 votes. The totalvotes cast were 2176. Sri Dau Dayal Khanna was accordingly decla-red elected. The prayer in the petition are that the election of Sri DauDayal Khanna, respondent No. 5, be set aside and that respondentNo. 2 be declared to be duly elected candidate. Issues were framedon 8-10-1968 on the main case, and issues nos. 1, 2, 5, 9 and 13 havebeen fixed for disposal today as preliminary issues. Additional issuesregarding recriminatory statement accompanying the notice of recri-mination were framed on 25th October, 1968, but none of these addi-tional issues had been fixed for disposal as preliminary issues. Theissues for consideration today as preliminary issues are as follows : -

1. Has the petitioner failed to make the Security deposit in accord-ance with the law as alleged by respondent No. 5 ? If so itseffect.

2. Is the election petition liable to be rejected on grounds of lach-es and violations of rules 3 and 4 of Chapter XII of theRules of Court as alleged by respondent No. 5.

5. Do the allegations made in paragraphs 6 to 8 of the petitionamount to violation of any of the provisions of the Represent-ation of the People Act, or the rules framed thereunder ?If so, are they liable to be struck off ?

9. Are the allegations made in paragraph 12, 12A and 13 of thepetition too vague and devoid of material particulars to con-stitute a corrupt practice of bribery and are therefore liableto be struck off ?

13. Do the allegations made in paragraphs 14 and 15 of the ele-ction petition not amount to any of the allegations of corruptpractice and as such are liable to be struck off ?

E.L.E.] RAJ PAL SINGH V. OM PRAKASH GARG 2 5 3

FINDINGS

Issue No. i.—The security money was deposited in the High Courton 13th June, 1968, when the petition was filled. The objection is thatthe security deposit was made in the High Court in contravention ofthe Government order No. E-14237-C-E-0377-66, Lucknow datedOctober 27, 1967, and was consequently in accordance with law.

Section 117(1) of the Representation of the People Act, 1951 (here-inafter referred to as the Act) relating to security for costs reads asfollows :—

"117, Security for costs, (1) At the time of presenting an ele-ction petition, the petitioner shall deposit in the High Court inaccordance with the rules of the High Court a sum of two thou-sand rupees as security for the costs of the petition."

Evidently, the Act provides that the petitioner shall deposit the sumof Rs. 2,000/- as security for costs in the High Court, and that depo-sit has to be made in accordance with the Rules of the High Court.There are no rules framed by the High Court for the deposit of themoney. The order of the Deputy Registrar cannot take the place ofthe rules. So when the money has been deposited in the High Courtin time on the date the petition was filed the deposit cannot be saidto be against law, and the election petition cannot consequently berejected for the reason. The issue is found in the negative.

Issue No. 2.—The order for issue of notice to the respondents inthe election petition was made by the Court on n t h July, 1968. Un-der rule 3 of" Chapter XII of the Rules of Court the petitioner shouldhave supplied the requisite process fee or costs and notices duly filledin within seven days from the date of that order, i. e. by 18-7-1968.It was not deposited until 23rd of July, 1968. The case was, therefore,put up for orders before the Court on that date and the Court permit-ted twenty four hours' time for supplying the process fee or costs andnotices. This was done by the petitioner. It is, true that in Rule 4 thecase shall in such a circumstances be listed for dismissal and shall bedismissed as against the persons who have not been served on accountof default. Unless on the case being called an application signed bythe party or his Advocate or brief-holder together with the requisiteprocess-fee cost or notices, as the case may be, is presented to the Courtand the Court deems fit to grant it. But special provisions relating totrial of election petitioner have been framed by this Court and havebeen added as Chapter 15-A to the Rules of Court. Rule 6(c) of Chap-ter XV-A provides that the Bench may reject the election petitionunless for sufficient cause it grants further time. Thus, the special pro-visions framed for the purpose of election petitions permit grantingof further time by the Court. It is these provisions which will applyto the election petitions. There is consequently, no question of rejec-tion of the petition now on the ground of laches or violation of the pro-visions of Rules 3 and 4 of Chapter XII. This issue is also found in thenegative.


Issue No. 5.—Paragraph 6 of the petition says that about 757 voteswere cast with the help of companions who were along with the ele-ctors, and recorded vote on behalf of the electors on the plea that thevoters were illiterate and were entitled to take companions, who wereto vote on their behalf. Paragraph 7 goes on to say that 500 of these757 voters were literate and that consequently no companion couldgo with them in order to cast a vote on their behalf. Paragraph 8, saysfurther that 400 out of these 500 voters who were actually literate andtook companion along with them have voted for respondent no. 5 SriDau Dayal Khanna in violation of Rules 39-A of the Conduct of Ele-ction Rules, 1961 and the provisions of the Representation of PeopleAct and the rules dealing with the maintenance of secrecy.

The contention of the learned counsel for the respondent No. 5is that the allegations made in paragraphs 8 of the election petitiondo not amount to violation of any of the provisions of the Represent-ation of the People Act and the Rules and orders made thereunderand are consequently liable to be struck off. Rule 39-A mentionedin the petition does not really relate to the recording of votes for theVidhan Parishad. The relevant rule is Rule 40A. It runs as follows :—

"40A. Recording of votes of illiterate blind or infirm elect-ors.—(1) If an elector is unable to read the ballot paper or torecord his vote there in accordance with rule 37-A by reason ofilliteracy, blindness or other infirmity, the presiding officer shall,on being satisfied about such illiteracy, blindness or infirmity,permit the elector to take with him a companion of not less thantwenty one years of age who is able to read the ballot paper andrecord the vote thereon on behalf of, and in accordance with thewishes, of, the elector and, if necessary to fold the ballot paperso as to conceal the vote and insert it into the ballot box :

Provided that no person shall be permitted to act as the com-panion of more than one elector at any polling station on the sameday :

Provided further that before any person is permitted to actas the companion of an elector on any day under this rule, theperson shall be required to declare that he will keep secret the voterecorded by him on behalf of the elector and that he has not al-ready acted as the companion of any other elector at any pollingstation on that day.

(2) The Presiding Officer shall keep a record in Form 14Aof all the cases under this rule.

(3) The Presiding Officer shall, when he is so requested bythe companion of an elector, explain to him the instructions forthe recording of votes."

The substantial portion of the provision "if an elector is unable to readthe ballot paper or to record his vote thereon in accordance with rule37-A." The reason Why he is unable to do so may be illiteracy blind-ness or other infirmity. From mere fact that a person is illiterate does

E.L.R.] RAJ PAL SINGH V. OM RRAKASH GARG 255

not necessarily follow that he is able to read the ballot paper or to re-cord his vote for he may not know the language in which the ballotpaper is written and if he cannot read the names of the candidates hewill not be able to record his vote. It has not been alleged in the peti-tion that these 400 voters were unable to read the ballot paper or torecord their votes. All that was alleged was that they were literate.Mere literacy would not disentitle them from taking companions withthem if they were unable to read the ballot paper or to record the vote.

The word '"'illiteracy" has to be interpreted in accordance withwhat precedes it. Since the substance is the infirmity to read the ballotpaper or to record the vote, the word "illiteracy" will have to be giventhe narrower meaning that he does not know the language or the scriptin which the ballot paper is written and is thereby unable to read theballot paper. For instance, a literate man belonging to the South andunable to read Hindi at all and would not thereby be de-prived of the right to vote through a companion taken with him undersection 40A of the Act. In the absence of" any allegation that any oneof the 400 persons mentioned in paragraphs 6 to 8 were able to readthe ballot paper or to record the vote thereon it cannot be said thatthese votes were cast in violation of any of the provisions of the Actor the Rules made thereunder and the allegations cannot be groundfor declaring the election of respondent No. 5 to be void. No issue is,therefore, necessary on the allegations contained in paragraphs 6 to 8as they now stand. Issues 3, 4 and 6 are, therefore, struck off.

Issue No. 9.—This issue relates to paragraphs 12, 12A and 13 ofthe petition They run as follows :—

"12. That the above-mentioned illegality was resorted toby the respondent No. 5 for the reasons that he had bribed those400 electors, the names of some of whon are mentioned in column3 of the Schedule 'A' either himself or through the so-called com-panions mentioned in column 5 of the Schedule 'A' who wereactually his agents and the bribe was paid at the places mention-ed in column 1 of Schedule 'A', on the polling day. Even in casesin which the bribe was not actually handed over by the, respondentNo. 5 but by his agents, this was done with the consent of therespondent No. 5.

12-A. That this bribe was given by the respondent No. 5and his agents with his consent with the object of inducting these400 electors to vote for him, who actually allowed the so-calledcompanions to vote for the respondent No. 5, on their behalf thoughactually they were literates and could not take companions with-in the provisions of Rule 39-A of the Conduct of Election Rules,1961.

13. That in this way the respondent No. 5 himself and throughhis agents with his consent committed the corrupt practice of bri-bery as defined in section 123(1) of the Representation of PeopleAct, 1951."

256 KAJ P A L SINGH V. OM PEAKASH GARG [VOL. XLI

The first contention of the learned counsel for the respondentNo. 5 is that paragraphs 12, 12-A and 13 (do not give) the form ornature of bribery or gratification. This contention is without force.So far as the form or the nature of gratification is concerned it appearsfrom paragraph 12 that the bribe was alleged to have been paid atthe places mentioned in column 1 of Schedule A on the polling day.The contention of the learned counsel for the petitioner is that the word"paid" clearly shows that the bribe was paid in cash and there is noquestion of any other form of gratification. This contention is not with-out force and the word "paid" shows that the amount, whatever itmay have been, was paid in cash.

The other objection of respondent no. 5 which is more .materialis that it is not clear from any one of the paragraphs 12, 12-A and 13,as to which persons paid bribe to whom. It is true that 400 voters aresaid to have been bribed. It is also true that some of them arc allegedto have been mentioned in column 3 of schedule A, which shows thatall those mentioned in column 3 of schedule A are alleged to have beenbribed, but it is not clear from any one of the paragraphs as to whichperson bribed which voter. The words used in paragraph 12 are"either himself or though the so-called companions mentioned in column5 of Schedule 'A'. The use of the words "either" and "for" impliesexclusion. The petitioner goes on to say in paragraph 12 that evenin cases in which the bribe was not actually handed over by the res-pondent No. 5 but by his agents it was done with the consent of therespondent No. 5. Indefiniteness thus remains. It is not possible to saywhether a particular elector mentioned in Schedule A was bribed bythe respondent himself or by any one of the companions mentionedin column No. 5. As between the companions themselves it is notpossible to infer from the allegations in paragraph 12 which particularperson was bribed by which persons mentioned amongst companions.For what has been alleged in this paragraph is that the persons men-tioned in column 3 of Schedule A were bribed either by the respondentNo. 5 himself or "through the so-called companions mentioned in co-lumn 5 of Schedule A". It is not alleged that a particular elector wasbribed by a companion mentioned against him in column 5 of Sche-dule A. Nor is it alleged that he was bribed by the companion whowent with him. On the contrary what is alleged is "so called com-panions" mentioned in column No. 5 of Schedule A." Thus, the re-ference is to the whole set of persons mentioned in column No. 5. Infact, the use of the words "so called" shows that really the referenceis to all the companions mentioned in column 5 and not to the onlycompanion mentioned against the name of the elector.

The learned counsel for the petitioner contends that paragraph12-A shows that bribe was given by respondent No. 5 and his agentsand thus both together are mentioned as the givers of the bribe. Thiscontention is without force. For paragraph 12-A has to be read alongwith paragraph 12. particularly in view of the phrase "this bribe wasgiven1'. From the use of this phrase it would naturally follow that thebribe referred to is the bribe mentioned in paragraphs 12 and given


either by respondent himself or through the so called companions men-tioned in column no. 5 of Schedule A. The allegation in paragraph12-A will, therefore, relate not specifically to the person who gave thebribe, but to the object with which the bribe was given, and the ob-ject mentioned therein is that of inducing these 400 electors to votefor the respondent no. 5 through companions. Paragraph 13 onlyshows that "in this way" meaning thereby "in the way referred to inparagraphs 12 and 12-A" & respondent no. 5 himself and through hisagent with his consent committed the corrupt practice of bribery. Thecorrupt practice of bribery has been defined in sub-section (1) of sec-tion 123 of the Act. This sub-section consists of two clauses (A) and(B).

Under clause (A).—(1) the bribery consists of a gift, offer or pro-mise of any gratification.

(2) the gift, offer or promise or gratification must be by a can-didate or his agent or by any other persons with consent of the can-didate.

(3) the object of the gratification must be to induce directly orindirectly a person to stand or not to stand as, or to withdraw or notto withdraw from being, a candidate at an election, or an elector tovote or refrain from voting as alleged, or, as a reward to a person forhaving so stood or not stood, or for having withdrawn or not havingwithdrawn his candidature, or an elector for having voted or refrain-ed from voting.

Clause (B) of sub-section (1) relates to the receipt of or agree-ment to receive any gratification by the candidate or by the elector,in the case of a candidate, the receipt of a gratification or agreementto receive gratification may be as a motive or a reward for standingor not standing as or for withdrawing or not withdrawing from be-ing a candidate. In the case of any other person it may be as a motiveor reward for himself or any other person to vote or refrain from votings

It will be evident that in respect of clause (B) of sub-section (1)the person by whom the bribe was actually is not important. We havethen to refer to section ioo(i)(b) of the Act which runs as follows :—

"ioo(i)(b) —That any corrupt practice has been committedby a returned candidate or his election agent or by any other per-son with the consent of a returned candidate or his election

- agent."

So to bring home the charge of corrupt practice under clause (B) ofS. 123(1) to the candidate his part in the receipt of the bribe has to beconsidered. It is apparent that in case of receipt all that will be neces-sary is to prove that the bribe flows from the candidate directly orthrough his election agent or any person with his consent. It will notbe necessary to prove specifically whether the bribe was actually givenby the candidate or by any other person. In a case covered by clause

17—4 Elec. Gom./71


(A) however, it will necessary to show as to who actually made thegift, offer or promise to a particular person—whether it was the can-didate himself or his agent or any other person with his consent.

The contention of the learned counsel for the respondent No.5 is that the allegations contained in paragraphs 12 to 13 attemptedto make out a case of bribery contemplated by Clause (A) of sub-sec-tion (1). This is correct. The allegations are that of payment or giv-ing of bribe and not of receipt of bribe as contained in clause (B) ofsubjection (1). Consequently, it is important and necessary to men-tion the name of the person who paid the bribe as well as the personto whom ihe bribe was paid. When we took for the person who paidthe bribe to a particular person, we find ourselves in the realm of con-jectures and surmises, for paragraphs 12 to 13 do not at all tell us whopaid the bribe to them. Surely, the allegation is not that the bribewas paid by the respondent himself to all the persons mentioned incolumn 3 of Schedule A. Nor is there any specification of the personto whom the bribe is alleged to have been paid by the respondent no.5 himself. Even when we came to the case of other who might havepaid the bribe, we do not know which person paid the bribe to whom.In the administration of justice we have to come down from the realmof conjectures and imagination to the level of proof. Proof needs evi-dence—oral or documentary. It is well established that no evidencecan be looked into or be permitted to be led on a point, which is notalleged in the pleadings. We cannot arrive at a finding regarding thepayment of bribe unless it is proved. Who paid the bribe to whom.The result is that in the state of allegations as they are contained inthe petition, no evidence can be permitted to be led on the paymentof bribe by a particular person to another specific person. The que-stion of giving consent by the respondent No. 5 will only arise whenit has been considered which person paid the bribe to whom for it isonly that it can be said that particular person paid the bribe with theconsent of respondent No. 5. The result is that the issues nos. 7 and 8will have to be struck off.

The learned counsel for the respondent no. 5 contends that aspleaded by him in the written statement, paragraphs 12, 12-A and 13of the petition being too vague and lacking in material particulars toconstitute a corrupt practice of briber should themselves be struckoff. It is however, pointed out by the learned counsel for the petition-ers that he would apply for amendment of the petition within a week,and that this matter may be left over till then. The question of strik-ing off those paragraphs from the petition is, therefore left over for thepresent, but so far as the issues are concerned, we have to be guidedby the allegations as they exist in the petition. The written statementof respondent No. 5 was filed on n t h September, 1968. The petition-er was aware of the objection of respondent No. 5 regarding the vague-ness of the allegations in the petition as early as n t h September, 1968.The issues were also framed on 8-10-1968. Even then no applicationfor amendment has been filed so far. Th£ date for hearing itself is fix-


ed as n t h November, 1968. According to the provisions of the sta-tute the petition itself has to be decided ordinarily within six monthsof its presentation. The petition was filed on the 13th of June, 1968,more than 4-1/2 months and till to-day no application for amend-ment has been made. When an application is actual'y made, it wouldbe a matter for consideration whether the amendment itself can beallowed under law, and if it is allowed whether it should be allowedsubject to the condition of payment of costs—heavy or otherwise—inview of the delay, and then the further question may be of paymentof those costs before the amendment is actually made in the petition.We cannot afford to be in the realm of uncertainties. Issues 7 and 8will have to be, and are, therefore, ordered to be struck off on the basisof the pleadings as they exist.

Issue Mo. 9 is decided accordingly.

Issue Mo. 13.—Paragraphs 14 and 15 of the petition relates to un-due influence. The nature of undue influence exercised is not at allmentioned in these paragraphs. Nor are the place, date or time men-tioned. It is also not clear in what manner undue influence was exer-cised. Even in civil cases where undue influence is pleaded, it is essen-tial that particulars of undue influence with dates and items must bestated in the pleadings. A greater strictness has to be exercised in ele-ction petitions where a particular candidate is to be charged with com-mission of the corrupt practice of undue influence.

Under the Contract Act, a contract is to be said to be induced byundue influence where the relations subsisting between the partiesare such that one of the parties is in a position to dominate the willof the other and uses that position to obtain an unfair advantage overthe other. Under Sub-section (3) of section 16 of the Contract Actwhere a person who is in a position to dominate the will of anotherenters into a contract with him, and the transaction appears, on theface of it or on the evidence adduced, to be unconscionable, the bur-den of proving that such contract was not induced by undue influencelies upon the person in a position to dominate the will of the other.The provisions of sub-section (2) of section 123 relating to undue influ-ence are different from those of section 16 of the Contract Act. Thereis no reference in sub-section (2) of section 123 to the position to domi-nate the will of another, nor is there any question of a contract beingunconscionable. There is no question of the burden shifting on theperson who is raid to have exercised undue influence. It is true thatproviso A provides for cases in which a particular person will be deem-ed to have inteifered with free exercise of the electoral right of suchcandidate or elector within the meaning of that clause. But that provisorefers to the threat to the candidate, or elector or any person, in whom3 candidate 01 elector is interested, with injury of any kind includingsocial ostracism and ex-communication or expulsion from any casteor community. It also refers to the creation of a belief in a candidateor an elector that he or any person in whom he is interested will be-come or will be rendered an object or driven displeasure or spiritual

260 SAMANT N. BALAKRISHNA V. GEORGE FERNANDEZ [VOL. XIJ

censure. There is no allegation in paragraphs 14 or 15 of the petitionof any threat 01 any creation of belief regarding displeasure or spiritualcensure. It is true that undue influence is not confined to cases of threatand creation of such a belief, but if there is an allegation of this kind theperson threatening or cieating the belief shall be deemed to interferewith the free exercise of electoral right. In the absence of such an alle-gation it would be necessary in the pleadings to show the nature of theundue influence exercised by the candidate concerned, for when wecome down to the level of proof we will have to see that kind of undueinfluence is proved. Again, the question of leading evidence to provea particular instance of exercise of undue influence will arise. As al-ready mentioned no evidence can be looked into or permitted to beled on a point which has not been alleged in the pleadings. Issue no.12 ha? therefore to be struck off. The question of striking off paias14 & 15 will be considered later on for the same reasons as mentionedregarding the strickinp oft the paras 12, 12A & 13.

Issue No. 13 is found accordingly.

The result is that issues 3, 4, 6, 7, 8 and 12 are struck off.


SAMANT N. BALAKRISHNA ETC.

V.

GEORGE FERNANDEZ & ONS. ETC.

(M. HlDAYATULLAH, C.J. & G.K. MlTTER, J.)

February 12, 1969

Representation of the People Act, 1951, ss. 81, 83, 86(5), I O O ( I ) ( 4 ) , ioo(i)(d)(i)and 123(4.)—Election Petition—nature of amendments permissible after the period of limita-ion—ss. 100(1) (b) and ioo(i)(d)(ii)—Difference in requirements of-—Necessity of pro-of candidate's consent to specific corrupt practice—Newspaper publishing attacks on characterof candidate—if editor can be deemed to be agent of rival candidate—knowledge, if sufficientproof of consent—statements in newspapers, weight of—requirements of proof that result of ele-ction was materiallv affected—burdon ef proof.

The first respondent's election to Parliament in February 1967 from Bombay-south Constituency was challenged by the appellant, an elector in the constituencyon the ground that various corrupt practices were committed. The principal allegationconcerned corrupt practices under s. 123(4) of the Act. It was alleged that agentsof the first respondent, with the consent and for the benefit of the first respondent,made false statements, casting aspersions on the character and conduct of the secondrespondent, and that those and other false statements were published as news itemin the daily news-paper "Maratha". Extracts from the newspapers were annexed.It was also stated that similar false statements were published in some other issuesof the newspaper. There was no averment that the first respondent believed the state-

E.L.R.] SAMANT N. BALAKRISHNA V. GEORGE FERNANDEZ 261

ments to be false or did not believe them to be true. After the period of limitation,a number of applications for amendment were made. The High Court allowed variousamendments in the petition whereby : (a) speeches attributed to the first respondentand a speech at a meeting where the first respondent presided, casting aspersions onthe second respondent, were included among the corrupt practices; (b) an allegationin respect of an Article in the "Blitz" written by the first respondent defamatory of thesecond respondent was allowed to be included in the list of corrupt practices; (c)an averment that the editor of the newspaper "Maratha" and the first respondentbelieved the impugned statements to be false or that they did not believe them to betrue and (d) an averment that the editor of the newspaper and two others were theagents of the first respondent, were also included. The second respondent who wasthe unsuccessful candidate, supported the petitioner. The High Court, however,rejected the election petition. Dismissing appeals to the Supreme Court by the peti-tioner and the second respondent.

HELD : (i) The amendments relating to the speeches of the first respondentand his article in the "Blitz" could not be allowed; but the amendment relating tothe agency of the editor of the "Maratha" and two others, and the one seeking to in-corporate the averments about the lack of belief of the editor of the "Maratha" andthe first respondent could be allowed.

In the petition as originally filed, the agency of the editor of "Maratha" and twoothers was the basis of the charge and the first respondent was left out, if it was intendedthat the first respondent should be held responsible then the allegation should havebeen what statement he made and how it offended the election law. There was,however, no refeience to any statement by the first respondent himself throughoutthe petition as it was originally filed. Therefore the amendments which has the effectof introducing new corrupt practices relating to the candidate himself which had notbeen pleaded earlier could not be allowed as that kind of amendment sought after theperiod of limitation, is prohibited under the law. But the allegation that in publi-shing the statements in the "Maratha" its editor acted as the agent of the first res-pondent, that the statements were false or were believed to be false by the first res-pondent and the editor, and that they were calculated to prejudice the second res-pondent's chance and did so prejudice could be allowed. They were merely parti-culars to be added for completing the cause of action relating to a corrupt practicealready alleged.

Section 83 required that the petition must contain a concise statement of the ma-terial facts on which the petitioner relies and the fullest possible particulars of the cor-rupt practice alleged. "Material facts" and "particulars" may overlap but theword "material" shows that the ground of corrupt practice and the facts necessaryto formulate a complete cause of action must be stated. The function of the parti-culars is to present as full a picture of the cause of action as to make the opposite partyunderstand the case he will have to meet.

Jagan Nath v. Jaswant Singh,"(1954; S.C.R. 892-895;—Bhimsen v. Gopali (i960)22 E.L.R. 288 (S.G.);—Chandi Prasad Chokani v. State of Bihar, (1962) 2 S.C.R. 289—Sheopat Singh v. Ram Pratap (1965) 1 S.C.R. 175—and Kumara Nand v. Brij Mohan(1967 ) 2 S.C.R. 127 followed—Harish Chandra Bajpai v. Triloki Singh (1957) S.C.R.370 explained.—Din Dayai v. Beni Prasad 15 E.L.R. 131—Balwant Singh v. ElectionTribunal 15 E.L.R. 199—Sasivarna Thevar v. Arunagiri, 17 E.L.R. 313—Hari VishnuKamath v. Election Tribunal, 14 E.L.R. 147—Devisah v. Nagappa, A.I.R. 1965 Mys.—102—Babulal Sharma v. Brijnarain Brajesh, A.I.R. 1958 M.P. 175 (F.B.)—Beal v. Smith4 C.P. 115—Bruce v. Odhams Press Ltd. (1936) 1 K.B. 697 and Phillips v. Phillips (1878)4 Q.B.D. 127 referred to.

(2) In view of the activities of the editor of the "Maratha" and his own personalhostility to the second respondent, every act of the editor cannot be attributed to thefirst respondent. The editor's fieled of agency must be limited to what he said as theagent of the first respondent and would not embrace the field in which he was actingas editor of bis newspaper unless the first respondent's consent to the corrupt practiceswas established.

262 SAMANT N. BALAKRISHNA V. GEORGE FERNANDEZ [VOL. XLI

Consent need not be directly proved and could be inferred from circumstantialevidence, such as a consistent course of conduct of the chandidate. But the circum-stances must point unerringly to the conclusion and must not admit of any other ex-planation. Although an election petition is tried in accordance with the CivilProcedure Code, a corrupt practice must be proved in the same way as a criminalcharge is proved. English cases dealing with illegal practices in which the candidateis held responsible for the acts of his agent, are not a proper guide because Englishlaw unlike Indian law makes a distinction between "illegal practices" and "corruptpractices". Further, the consent of the candidate must be specific and must be pro-ved for each corrupt practice. If every act of an agent is presumed to be with theconsent of the candidate there would be no room for the application of the extra con-dition laid down by s. ioo(i)(d), namely, the material effect on the result of the ele-ction, because, whenever agency is proved either directly or cirmcumstantially, thefinding about consent under s. ioo(i)(b) will have to follow.

In the present case, though the newspaper ran a special column as an electionfront of the first respondent, no article or comment in that column was relied on forproving a corrupt practice. It was not even suggested that the first respondent wroteany article for the "Maratha". The statements which were relied on as corrupt pra-ctices were made by the editor of the newspaper in the normal course of running anewspaper, as news items or in the editorial. They stated the policy of the newspaperand its comments upon the events. Many of the news items appeared in more thanone paper. If it could not be said that the editors of each of those papers acted asan agent for the first respondent, there was no reason for holding that the editor ofthe "Maratha" along acted as such agent. It was not as if the matter was left entirelyin the hands of the editor who acted as a wholetime agent or solely as the agent of thefirst respondent nor is it a case of some persons setting up the first respondent as acandidate and sponsoring his cause. The editor did not publish any propagandamaterial such as leaflets or pamphlets. Therefore, though the editor was a supporterand agent of the first respondent, it could not be said that the first respondent consentedto each publication as it appeared or even generally consented to the publica-tion of the items defaming the character and conduct of the second respondent. Evenif he had knowledge, it would not be sufficient because the law requires some concreteproof, direct or circumstantial, of consent, and not merely knowledge or connivance.Further, no such inference regarding the first respondent's consent could be drawnfrom the comments and speeches attributed to the first respondent by the "Maratha"and other newspapers or from any similarity of ideas or language, because news itemswhen published are garbled versions and cannot be regarded as proof of what actuallyhappened or was said without other acceptable evidence through proper witnesses.

As regards the other two persons, even evidence regarding their agency was non-existent and there was no material on which the first respondent's consent to theirstatements could be presumed or inferred.

Therefore since the consent of the candidate to the corrupt practice was not provedthe case would have to be judged under s. ioo(i)(d)(ii) and not under s. ioo (i)(b).

Rama Krishna's case C.A. No. 1949/67 dated 23-4-1968—Inder Lai Tugal Kishorev. Lai Singh A. I. R. 1961 Raj. 122—Gopal Swami v. Abdul Hamid Choudhury A.I.R.1959 Assam 200—Adamav. Hon. E.F. Leveson Gower, 1 O' Malley and Hardcastel 218—Chistie v. Grieve 1 O'Malley and Hardcastle 251— Spencer—John Blundell v. CharlesHarrison, 3 O'Malley & Hardcastle 148—Biswanath Upadhyaya v. Harilal Das, A.I.R.1958 Assam g7—Abdul Majeed v. Bhargavan A.I.R. 1963 Kerala 18—Rustom Satin v.Dr. Sampoornanand 20 E.L.R. 221—Sarala Devi Pathak v. Birendra Singh 20 E.L.R. 275—Krishan Kumar v. Krishna Gopal, A.I.R. 1964 Raj. 21—Lai Singh v. Vallabhdas,A.I.R. 1967 Guj. 62,—Badri JVarayan v. Kamdeo Prasad, A.I.R. 1961 Patna 41—SaratChandra v. Khagendranath A.I.R. 1961 S.C. 334 and—Tauntoris case 1 O'Malley &Hardcastle 181, 185,; referred to Bayley v. Edmunds, Buron & Marshall (1894) 11T.L.R. 537; distinguished.

(3) To bring a case under s. 100(1) (d) (ii) it is not sufficient to prove that a personacted as an agent with the consent of the candidate. The petitioner must establisr

E.L.R.] SAMANT N. BALAKRISHNA V. GEORGE KERNANDEZ 263

that the conditions required by s. (ioo)(i)(d)(ii) and s. 123(4) are satisfied, that is :(a) that a false statement was made by an agent, (b) that the first respondent did notbelieve the statement to be true or believed it to be false; (c) that it related to thepersonal character and conduct of the second respondent; (d) that it was reasonablycalculated to harm the chance of the second respondent and (e) that it in fact materiallyaffected the result of the election in so far as the first respondent was concerned.

Conditions (a), (b) and (c) were admitted by the first respondent and since thearticles cast violent aspersions on the second respondent and showed a deliberateattempt to lower his character, condition (d) was also satisfied. But as condition(e) was not satisfied the election petition had to be dismissed.

Even after considering the nature of attacks made on the second respondentthe frequency and extent of publicity, the medium of circulation and the kinds ofissues raised before the voters it could not be said in the circumstances of this case thatthe result of the election in so far as the first respondent was concerned was materiallyaffected. The matter could not be decided on possibilities or on a reasonable judi-cial guess, because the law requires proof, and though s. ioo(i)(d) casts a difficultburden on the election petitioner, that burden must be successfully discharged by him.

There was a large difference (about 30,000) between the votes received by thetwo rival candidates, namely, the first and second respondents; and as many as 38,565,votes were cast in favour of the remaining candidates; it is impossible to say how muchthe second respondent lost or first respondent gained by reason of the false statements.

Vashisht Narain Sarma v. Dev Chandra (1955) 1 S.G.R. 509—-Surendra Nath Khosla v.Dilip Singh (1957) S.G.R. 179 and Inayatullah v. Diwanchand Mahajan 15 E. L.R. 219, 235, 236, fallowed Hackney's case, 2 O'Malley and Hardcastle 77, referred to;CIVIL APPEALS NO. 895 and 896 of 1968.

R. Iethamalani and H. N. Hingorani and K. Hingorani for the appellant inC.A. 895 of 1968.

C. K. Daphtary, A. K. Sen, K. S. Cooper and K. Hingorani for the appellantin C. A. No. 896 of 1968.

A. S. R. Chari, Porus A. Mehta, S. B. Naik, Kumar Mehta, R. Nagarathnamand K. Rajendra Choudhuri for Respondent No. 1 in Both the appeals.

JUDGMENT

HIDA-YATULLAH, G. J.—In the last General Election to Parlia-ment from the Bombay South Parliamentary constituency eight candi-dates had offered themselves. The answering respondent Mr. George Fer-nandez seemed 1,47,841 votes as against his nearest rival Mr. S. K.Patil who secured 1,18,407 votes. The remaining candidates secureda few thousand votes between them. The result of the poll was declaredon February, 24, 1967 and Mr. George Fernandez was returned. Anelection petition was filed by Mr. Samant N. Balakrishna, an electorin the constituency. It challenged the election of Mr. Fernandezand was ostensibly in the interest of Mr. S. K. Patil. The election pe-tition was keenly contested and Mr. S. K. Patil gave his full supportto the petition. The election petition failed and it was dismissed withan order for costs against the election petitioner and Mr. S. K. Patil.Two appeals have now been filed against the judgment of the BombayHigh Court, one by the election petitioner and the other by Mr. S. K.Patil. They have been heard together and this judgment will disposeof both of them.

2 6 4 SAMANT N. BALAKRISHNA V. GEORGE FERNANDEZ [VOL. XLI

The petition was based on numerous grounds which were set outin paragraph 2 of the petition. These grounds were shown separatleyin sub-paragraphs A to J. Sub-paragraphs A to D dealt with the in-validity of the election for non-compliance with s. 62 of the Representa-tion of the People Act and Arts. 326 and 327 of the Constitution. Theseconcerned the secrecy of ballot (A), registering of some voters in twoconstituencies (B), comission of qualified voters from electoral rolls(C) and impersonation by persons for dead or absent voters (D). Thesefour grounds were given up in the High Court itself and we need notsay anything about them. Sub-paragraphs E to J contained allegationsof corrupt practices. The petition was accompanied by four annexuresNos. A to D which were extracts from newspapers on which the chargeof corrupt practices was based. The grounds may now be noticed indetail.

Sub-paragraph E dealt with statements made at a meeting datedFebruary 16, 1967 at Shivaji Park by Jagadguru Shankaracharyacharging Mr. S. K. Patil with complicity in arson of Novembei 7,1966 at New Delhi and attack on the residence of the Congress Presi-dent with injuries caused to people. In these article? from the 'Maratha'and 'Blitz' extracts of which were quoted and annexed as Annexure 'A'Mr. Patil was described as hypocrite, insincere and dishonest. Similarspeeches by Mr. Madhu Limaya, (another candidate of the S.S.P.by which party Mr. Fernandez was sponsored) were releid upon. Thestatements of Jagadguru Shankaracharya and Mr. Madhu Limayawere said to be "inspired by Mr. Fernandez" and "with his consentand for his benefit". It was said that they amounted to a corrupt pra-ctice under s. 123(4) 0I% the Representation of People Act.

In Sub-paragraph F. a statement of Jagadguru Shankaiacharyaon cnw slaughter was made the ground of attack. It was to the effectthat Mr. S. K. Patil on'y pretended to support the anti-cow-slaughtermovement but had done nothing in furtherance of it. It was contendedthat the cow was used a? a religious symbol and the speeches offendedagainst the Election Law as stated in section 123(3). These statementswere also said to be inspired by Mr. Fernandez and were made withhis consent and for his benefit.

Sub-paragraph G referred to speeches of Mr. Fernandez and hisworkers with his knowledge and consent. In those speeches Mr. Fer-nandez is said to have described Mr. S. K. Patil as the enemy of Muslimsand Christians who only professed to discourage slaughter of cowsand he was charged with interfering with the articles of faith of the Muslimand Christians and seeking expulsion of Muslims to Pakistan. Thiswas said to offend against s. 123 (3A) of the Representation of PeoplesAct.

In sub-paragraph H it was alleged that the 'Maratha' publisheda false statement to the effect that Mr. S. K. Patil had paid rupees15 lacs to Mr. Jack Sequeira to undo the efforts of Maharashtrians


for incorporation of Goa in Maharashtra. The extracts from the 'Ma-ratha' of Januaiy 25, 1967 was annexed as EX. B. The speech of Mr.H. R. Gokhale who published a similar statement, was also referred to.These were made the grounds of complaint under s. 123(4) of the Re-presentation of the People Act.

In Sub-paragraph I four issues of the 'Maratha' of the 5th and 31stJanuary, 1967 and 5th and 8th of February, 1967 were exhibited asEx. C. It was stated in the first two that the Shiv Sena supported theMaharashtra traitor Sadoba Patil and that the Shiv Sena was reallySadoba Sena. A cartoon showning Mr. S. K. Patil as Vishwamitraand the leader of Shiv Sena as Menka with the caption "Sadoba deniesthat he has no connection with Shiv Sena like Vishwamitra Menkaepisode", was the third. The last of these articles was headed "haras-sment from Gondas of Sadoba Patil Shiv Sena in the service of Sadhashiv(S. K. Patil)". These statements were said to be false and made by the'Maratha' in favour of respondents other than respondent No. 2 (Mr.S. K. Patil) or at any rate on behalf of Mr. Fernandez. These weresaid to prejudice the minority communities and thus to offend section123(4) °f t n e Representation of the People Act. The statements weresaid to be made with the knowledge the consent of Mr. Fernandez andfor his benefit.

In Sub-paragraph J three issues of 'Maratha' of the 24th, 28thand 31st December, 1966 were referred to. In the first it was statedthat "Shri S. K. Patil will go to Sonapur in the ensuing election. Fer-nandez says in his Articles Patil mortgaged India's Freedom with Ame-rica by entering into P. L. 480 agreement and Mr. Pat'l had no devotion,love, respect for this country at ail. ' In the second Mr. Patil was des-cribed as Nagibkhan of Maharashtra. The third was a cartoon in whichShankaracharya was depicted as saying "Cow is my mother. Do not"kill her" and Pati] S. K. as saying "Pig is my father". These extractswere annexed as Ex. D. Then followed a paragraph in which wassaid : "Similar false statements in relation to Respondent No. 2's chara-cter and conduct were published in several issues of Maratha Daily"from December 12, 1966 to February 21, 1967 and 33 issues were men-tioned by date. These were also said to be Ex. D.

This was the original material on which the petition filed on April7, 1967 was based. Mr. Fernandez filed his written statement on June14, 1967 and Mr. S. K. Patil on July 4, 1967. Later five amendmentswere asked for. By the first amendment, which was orally asked andallowed, reference to the 33 articles was altered and they were said tobe contained in Ex. E instead of Ex. D. Ex. E was then introduced andgave the list of 33 articles in the 'Maratha' and one article in the Blitz,and the extracts on which reliance was placed. On July 4, 1967 anapplication for amendment was made seeking to add to Sub-paragraphs2-K and 2-L. 2-K is not pressed now and need not be mentioned.By 2-L the petitioner asked for addition to the list of corrupt practicesof a reference to an article dated November 5, 1966 in the Blitz. Thisarticle was written by Mr. Fernandez. On September 12, 1967, an


application was made for seven additions to paragraph 2J. Sevenincidents were sought to be included. Of these four were ordered bythe Court to be included in 2-J on September 15, 1967 as Sub-sub-para-graphs (i) to (iv) and three were rejected. In the first of the Sub-sub-paragraphs so included, a speech at a public meeting at Shivaji Parkby Mr. Fernandez on January 31, 1967 was pleaded in which Mr. Fer-nandez is said to have made a statement that even God could not defeatthe second respondent (Mr. S.K. Patil) because unlike the second respon-dent God was not dishonest. It was also alleged that Mr. S. K. Pati! wonelections bv "tempering with the ballot boxes or substituting the same".These statements were said to be made by Mr. Fernandez deliberatelyand maliciously and that he believed them to be false or did not believethem to be true. The report of the speech was quoted from the 'Maratha'of February 1, 1967 and was included as part of Ex. E. In the secondSub-sub-paragraph a Press Conference at Bristol Grill Restaurant onFebraury 9, 1967 addressed by Mr. Fernandez was referred to. Atthat Conference Mr. Fernandez charged Mr. S. K. Patil with "unfairand unethical electioneering practices" and as illustrations of his methodsmentioned the release of 70 dangerous characters from jail on paroleand the suspension of externment orders against some and the allowingof some other externed persons to return, were alleged. It was alsosaid that these persons were being used by Mr. Patil in this compaign.Extracts from the issues of the 'Maratha' of the 10th and n t h February,1967 were referred to. At that meeting, it was alleged, Mr. Fernandezdescribed Mr. Pati] as an "American Agent, Dada of Capitalists andCreator of Shiv Sena. All these statements were said to be false andto reflect upon personal character and conduct of Mr. Patil and thusto be corrupt Practices under s. 123(4) of t n e Representation ofPeople Act. In the fourth paragraph a meeting of January 8, 1967at Chowpati, presided over bv Mr. Fernandez was referred to. Mr.Madhu Limaya was said to have addressed that meeting and referredto the incident of November 7, 1966 These statements were also saidto be false and to materially affect the prospects of Mr. Patil. In thiSub-sub-paragraph it was also alleged that Mr. P. K. Atre, Editor andProprietor of the 'Maratha'. Jagadguru Shankaracharya and Mr.Madhu Limaye were agents of Mr. Fernandez and had made thesestatements in his interest and with his consent.

The petitioner also asked for addition of three other grounds of cor-rupt practices, which the Court did not allow to be included. Paragraph2-L to which we have referred was an article by Mr. Fernandez. Itwas captioned as a fight against "political thuggery" and included thefollowing passage which was made the basis of the following charge:

"These men (including the 2nd Respondent) from the hardcore of the coterie which control the destinies of the nation, evendecides who should be the Prime Minister and who should not be,hounds out the few honest Congressmen from Public life. Propsup the Aminchand Pyarelal and Chamanlal and supports themin all their misdeeds and puts a premium on dishonest businessmen,and industrialists."


This allegation was said to sugge, dishonesty in Mr. Patil. Theother amendments which were disallowed referred to a speech at Dr.Vigas Street on February 27, 1967, a speech by Dr. Lohia at Chowpation January 1, 1967 published in 'Andolan' of January 9, 1967 and aPress Conference by Mr. Madhu Limaye at Bristol Grill Restaurant onDecember 10, 1966.

Prior to the application foi amendment certain events had happenedto which it is necessary to refer. On April 7, 1967 the office objectedthat the originals of Exs. A, B, G and D had not been filed. The remarkof the office is as follows :—

"Exhibits A, B, C, D are mere repetitions of what is mentionedin the body of the petition. Is it not necessary to annex the ori-ginal copies of the said newspaper".

Mr. Kanuga, one of the Advocates for the petitioner replied to theobjections as follows :—

"We undertake to file the original issues and official transla-tions later as the same is (sic) with the Chief translator, High CourtBombay before the service of Writ of Summons".

Till July 3, 1967 no effect seems to have been made to file theoriginals, On that date the 'Rozanama' read as follows :—•

"Mr. Jathmalani applies for leave to amend the petition bypointing out that 'D' in Jast sentence of paragraph 2 on page12 of the petition be corrected and read as 'E' and to annex reportsin original P. C. leave to amend granted."

The issues were settled on the same day and particulars were askedfor. On July 7, 1967 the 'Rozanama' read as follows :—

"Mr. Gurushani tenders the original of the exhibits a (Coll)mentioned in para 2J of page 11 of the petition."

A chamber summons was taken out because the particulars werenot supplied and on August 4, 1967 the particulars were furnished.It was then on September 12, 1967 that the application for seven amend-ments was made, four of which were allowed and three were rejected.This was by an order dated September 15, 1967.

Before dealing with this appeal it is necessary to clear the questionof the amendments and whether they were properly allowed. Thisquestion consists of two parts; the first is one of fact as to what was exhi-bited with the petition as materials on which the petition was based.The case of the petitioner before us is that in support of 2J copies ofrelevant newspapers were filed with the petition. This is denied ofbehalf of the answering respondent.


Mr. Daphtary's contention is that if the originals of the 'Maratha'had not been filed an objection would have been taken in the courtand none was taken. Even witnesses were examined and cross-exa-mined with reference to the statements and the originals must havebeen in court. This in our opinion, is not decisive. The first witness tobe examined was the petitioner himself. Evidence commenced onAugust 25, 1967. The petitioner proved the copies of the newspapersand they were marked as exhibits. By that date the copies of the 'Ma-ratha' had already been filed and the petitioner in his evidence referredto all of them. The cross-examination therefore, also referred to thesedocuments. Nothing much turns upon, the want of objection because(as is well-known) objection is not taken to some fatal defect in the caseof the other side since the party, which can take the objection, wantsto keep it in reserve. It is true that if the objection had been takenearlier and had been decided the petitioner would have had no caseto prove on the new allegation and might not have led some evidence.But we cannot hold from this that any prejudice was caused him.After all it was his responsibility to complete his allegations in the peti-tion by inclusion of the copies of the 'Maratha' and other side cannotbe held to have waived it objection since that c bjection was in factraised and has been answered in the High Court. The Rozanamasclearly show that the copies of 'Maratha' were not filed with theelection petion but much later and in fact beyond the period of limi-tation. Mr. Daphtary characterises the Rozanamas as inaccuratebut the internal evidence in the case shows that the Rozanamas werecorrectly recorded.

The petition quoted some of the affending statements in the news-papers and exhibited them as Exs. A to D. In the petition these 10extracts are to be found in sub-paragraphs 2E, H, I and J. The changeof Exs. D to E and the filing of E show that the extracts which werewith the translator were referable to those extracts already mentionedin the petition and not those mentioned in the last paragraph of 2J.It will be noticed that that paragraph refers to 33 members of the 'Ma-ratha'. Extracts from these were furnished only on July 3, 1967 whenEx. E was separately filed and according to the Rozanama, the originalswere filed on July 7, 1967. Mr. Kanuga could not have referred toall the 33 issues of the 'Maratha'. Only 10 extracts from the 'Maratha'were in Exs. A to D and of these eight are included in the list of 33 num-bers of the 'Maratha' in the last paragraph of 2J. If they were alreadyfiled Mr. Kanuga would have said so and not promised to file themlater. He mentions in his note that they were with the translationdepartment and would be filed later. If all the 33 issues of the 'Maratha'were already filed there would be no occasion for the office objectionand the reply of Mr. Kanuga could apply to two numbers only. Theywere the issues of 25th January and 5th February, 1967. The officenoting shows that not a single original was fil;d with the petition. Thisappears to us to be correct. We are satisfied that 10 issue of the'Maratha' from which extracts were included in' the petition in Exs.A to D were the only numbers which were before the translator.Mr. Kanuga's remark applies to these 10 issuse. The other issues which


were mentioned in the last paragraph of 2J numbering 33 less 8 wereneither in the translator's office nor exhibited in the case. Hence theamendment of the second reference from D to E and the request tofile original issues.

It seems that when the petition was filed a list was hurriedly madeof all the issues of the 'Maratha' to which reference was likely and thatlist was included in the last portion of 2 J. But no attempt was madeeither to specify the offending portions of the newspapers or to file theextracts of the original issues. All this was done after the period oflimitation. No incorporation of the contents of the articles by referencecan be allowed because if a newspaper is not exhibited and only thedate is mentioned, it is necessary to point out the exact portion of theoffending newspaper to which the petition refers. This was not done.We have to reach this conclusion first because once we hold that theissues of the 'Maratha' or the extracts referred to in the petition werenot filed, the plea as to what was the corrupt practice is limited to whatwas said in the body of the petition in paragraph 2J and whether itcould be amended after the period of limitation was over. The attempttoday is to tag on the new pleas to the old pleas and in a sense to makethem grow out of the old pleas. Whether such an amendment is allow-able under the Election Law is therefore necessary to decide.

Mr. Daphtary arguing for the appellant contends that he wasentitled to the amendment since this was no more than an amplificationof the grounds of corrupt practice as defined ins. 123(4) and that thecitation of instances or giving of additional particulars of which sufficientnotice already existed in 2J as it originally stood, is permissible. Ac-cording to him, under s. 100 the petition has to show giounds and unders. 83 there should be a concise statement of material facts in supportof the ground and full particulars of any corrupt practice alleged. Hesubmits that under s. 83(5) particulars can be amended and amplified,new instances can be cited and it is an essence of the tria) of an electionpetition that corrupt practices should be thoroughly investigated. Herefers us to a large body of case law in support of his contention.

On the other hand, Mr. Chari for Mr. Fernandez contends thatthere was no reference to the speeches by Mr. Fernandez in the petition.The cause of action was in relation to the publication in the 'Maratha'and not in relation to any statement of Mr. Fernandez himself and thatthe amendment amounts to making out a new petition after the periodof limitation.

To decide between these rival contentions it is necessary to ana-lyse the petition first. Paragraph 2J as it originally stood read asfollows :—

"The petitioner says that false statements in relation to charac-ter and conduct of the Respondent No. 2 were made by the 1stRespondent and at the instance and connivance of the 1st Res-pondent, Maratha published the following articles, as set out herein


after. The petitioner says that the said allegations are false andhave been made with a view to impair and affect the prospectsof Respondent No. 2's elections to Lok Sabha. Some of the ex-tracts are : etc." (Emphasis added).

Here three issues of the 'Maratha' of 24th, 28th and 31st December,1966 were referred to. Of the extracts, the last two make no referenceto Mr. Fernandez. The first spoke thus :

"Maratha dated 24-12-66. Pages 1 and 4. "Sbri S. K.Patil will go to Sonapur in the ensuing election. Fernandez saysin his Articles Patil mortgaged India's Freedom with Americaby entering into P. L. 480 agreement and Mr. Patil had no devo-tion, love, respect for this country at all."

Then followed this paragraph :

"Similar false statements in relation to Respondent No. 2character and conduct were published in Maratha Daily dated12th December, 1966, 17th December, 23rd December, 24th De-cember, '28th, 29th and 31st December issues, January issues dated4, 5, 7th, 10th, i8tb, 20th, 21st, 28th, 30th and 31st. Februaryissues, 1st, 2nd, 3rd, 6tb, 7th, 8th, 10th, n th , 14th, 15th, 16th,17th, 18th, 19th, 20th, 21st These reports in originalare filed and true translation are marked Ex. D to the petition".

We have already held that the newspapers mentioned in the lastparagraph were not filed with the petition but on April 7, 1967 afterthe period of limitation was over. The allegations thus were tb-it Mr.Fernandez made the false statements and they were published in the'Maratha' at bis instance and with his connivance. There is no mentionof any speech at Shivaji Park, or at Sabu Siddik Chowk or at Dr. VigasStreet or the press interview at Bristol Grill Restaurant. All thesestatements which are now referred to were said to be made by Mr.Fernandez himself. By the amendment a charge of corrupt" practicewas sought to be made for the first time in this form. In the originalpetition (sub-paragraph 2J) there was no averment that Mr. Fernandezbelieved these statements to be false or that he did not believe them tobe true and this was also sought to be introduced by an amendment.It may, however, be mentioned that in an affidavit which accompaniedthe election petition this averment was expressly made and the appellantsdesire us to read the affidavit as supplementing the petition. By anotherapplication for amendment the petitioner sought to add a paragraphthat the 'Maratha', Jagadguru Sbankaracharya and Mr. Madhu Limayewere agents of Mr. Fernandez within the Election Law. By yet anotherapplication reference to an article in the 'Blitz' was sought to be includedas Sub-paragraph 2L.

At the conclusion of the arguments on this part of the case weannounced our decision that the amendment relating to the speechesof Mr. Fernandez at Shivaji Park, Sabu Siddik Gbowk and Dr. VigasStreet and his Press Conferences at Bristol Grill Restaurant and the


article in the 'Blitz' ought not to have been allowed but that the amend-ment relating to the agency of the 'Maratha' etc. and that seeking toincorporate the averment about the lack of belief of Mr. Fernandezwere proper. We reserved our reasons which we now proceed to give.

The subject of the amendment of an election petition has beendiscussed from different angles in several cases of the High Courts andthis Court. Each case, however, was decided on its own facts, thatis to say, the kind of election petition that was filed, the kind of amend-ment that was sought, the stage at which the application for amendmentwas made and the state of the law at the time and so on. These casesdo furnish some guidance but it is not to be thought that a particularcase is intended to cover all situations. It is always advisable to lookat the statue first to see alike what it authorises and what it prohibits.

Section 81* of the Representation of the People Act, 1951 enablesa petitioner to call in question any election on one or more of the groundsspecified in s. 100(1) and s. 101 of the Act. The petition must be madewithin 45 days from the date of election. Sections 100 and 101 enumeratethe kind of charges which, if established, lead to the avoidance of theelection of a returned candidate and the return of some other candi-date. The first sub-section of 100** lays down the grounds for declaring

*"8i. Presentation of petitions.

(t)An election petition calling in question any election may be presented on oneor more of the grounds specified in sub-section (1) of section^ 100 and section1 o 1 to the High Court by any candidate at such election or any elector withinforty-five days from, but not earlier than, the date of election of the returnedcandidate, or if there are more than one returned candidate at the electionand the dates of their election are different, the later of those two dates.

Explanation.—In this sub-section, "elector" means a person who was entitled tovote at the election to which the election petition relates, whether he hasvoted at such election or not.

(2) * * * * * *

(3) Every election petition shall be accompanied by as many copies there ofas there are respondents mentioned in the petition and every such copy shallbe attested by the petitioner under his own signature, to be a true copy ofthe petition." . . . • .

**"ioo. Grounds for declaring election to be void.

(i) subject to the provisions of sub-section (2) if the High Court is of opinion.—•

(a) that on the date of his election a returned candidate was not qualified,or was disqualified, to be chosen to fill the seat under the Constitutionor this Act or the Government of Union Territories Act, 1963, or

(b) that any corrupt practice has been committed by a returned candidateor his election agent or by any other person with the consent of a returnedcandidate or his election agent; or

(c) that any nomination has been improperly rejected ; or

(d) that the result of the election, in so far as it concerns a returned candi-date, has been materially affected.

(i) by the improper acceptance of any nomination, or

272 SAMANT N. BALAKRISHNA V. GEORGE FERNANDEZ [VOL. XLI

an election to be void. These include corrupt practices committedby the candidate, bis election agent and any person with the consentof the returned candidate or his election agent. The second sub-sectionlays down an additional condition which must be satisfied before theelection can be declared to be void even though the corrupt practiceis committed by an agent other than the election agent. Section 101***sets forth the grounds on which a candidate other than the returnedcandidate may be declared to have been elected. Section 101 actuallydoes not add to the grounds in s. ioo and its mention in s. 81 seems some-what inappropriate. Sections ioo and 101 deal with the substantivelaw on the subject of elections. These two sections circumscribe theconditions which must be established before an election can be declaredvoid or another candidate declared elected. The heads of substantiverights in s. 100(1) are laid down in two separate parts; the first dealing

(ii) by any corrupt practice committed in the interests of the returnedcandidate by an agent other than his election agent, or

(iii) by the improper reception, refusal or rejection of any vote or thereception of any vote which is void, or

(iv) by any non-compliance i with the provisions of the Constitutionor of this Act or of any rules or orders made under this Act, theHigh Court shall declare the election of the returned candidateto be void.

(2) If in the opinion of the High Court, a returned candidate has been guiltyby an agent, other than his election agent, of any corrupt practice but theHigh Court is satisfied

(a) that no such corrupt practice was committed at the election by the candi-date or his election agent, and every such corrupt practice was committedcontrary to the orders, and without the consent of the candidate orhis election agent;

(c) that the candidate and his election agent took all reasonable means forprevsnting the commission of corrupt practices at the election, and

(d) that in all other respects the election was free from any corrupt practiceon the part of the candidate or any of his agents,

then the High Court may decide that the election of the returned candidate isnot void."

***"IOI . Grounds for which a candidate other than the retunred candidate maybe declared to have been elected.

If any person who has lodged a petition has, in addition to calling in questionthe election of the returned candidate, claimed a declaration that he himself or anyother candidate has been duly elected and the High Court is of opinion.—•

(a) that in fact the patitioner or such other candidate received a majority of thevalid votes ; or

(b) that but for the votes obtained by the returned candidate by corrupt practicesthe petitioner or such other candidate would have obtained a majority ofthe valid votes,

the High Court shall after declaring the election of the returned candidate to be voiddeclare the petitioner or such other candidate, as the case may be, to have been dulyelected."

E L R.] SAMANT N. BALAKRISHNA V. GEORGE FERNANDEZ 2 7 3

with situations in which the election must be declared void on proofof certain facts, and the second in which the election can only be declaredvoid if the result of the election in so far as it concerns the returnedcandidate, can be held to be materially affected on proof of some otherfacts. Without attempting critically to sort out the two classes we maynow see what the conditions are. In the first part they are that thecandidate lacked the necessary qualification or had incurred disquali-fication, that a corrupt practice was committed by the returned candi-date, his election agent or any other person with the consent of a returnedcandidate or his election agent or that any nomination paper was im-properly rejected. These are grounds on proof of which by evidence,the election can be set aside without any further evidence. The secondpart is conditioned that the result of the election, in so far as it concernsa returned candidate, was materially affected by the improper acceptanceof a nomination or by a corrupt practice committed in his interestby an agent other than an election agent or by the improper reception,refusal or rejection of votes or by any non-compliance with the provi-sions of the Constitution or of the Representation of the Peoples Actor rules or orders made under it. This condition has to be establishedby some evidence direct or circumstantial. It is, therefore, clear thatthe substantive right to make an election petition are defined in thesesections and the exercise of the right to petition is limited to the groundsspecifically mentioned.

Pausing here, we may view a little more closely the provisionsbearing upon corrupt practices in s. 100. There are many kinds ofcorrupt practices. They are defined later in s. 133 of the Act and weshall come to them later. But the corrupt practices are viewed separa-tely according as to who commits them. The first class consists of cor-rupt practices committed by the candidate or his election agent or anyother person with the consent of the candidate or his election agent.These, if established, avoid the election without any further conditionbeing fulfilled. Then there is the corrupt practice committed by anagent other than an election agent. Here an additional fact has tobe proved that the result of the election was materially affected. Wemay attempt to put the same matter in easily understandable language.The petitioner may prove a corrupt practice by the candidate himselfor his election agent or someone with the consent of the candidate orhis election agent, in which case he need not establish what the resultof the election would have been without the corrupt practice. Theexpression "Any other person" in this part will include an agent otherthan an election agent. This is clear from a special provision later inthe section about an agent other than an election agent. The law thenis this : If the petitioner does not prove a corrupt practice by the candi-date or his election agent or another person with the consent of thtreturned candidate or his election agent but relies on a corrupt practicecommitted by an agent other than an election agent, he must additionallyprove how the corrupt practice affected the result of the poll. Unlesshe proves the consent to the commission of the corrupt practice on thepart of the candidate or his election agent, he must face this additionalburden. The definition of agent in this context is to be taken from

18—4 Elec. Com./71


123 (Explanation) where it is provided that an agent"includes a*) elec-tion agent, a polling agent and any person who is held to have actedas an agent in connection with the election with the consent of the candi-date ". In this explanation the mention of "an election agent" wouldappear to be unnecessary because an election agent is the alter ago ofthe candidate in the scheme of-the x\ct and his acts are the acts of thecandidate, consent or no consent on the part of the candidate.

Having now worked out the substantive rights to the making of thepetition, we may now proceed to see what the corrupt practices are.Since we are concerned only with one such corrupt practice, we neednot refer to all of them. For the purpose of these appeals it is sufficientif we refer to the fourth sub-section of s. 123. It reads :

"123. The following shall be deemed to be corrupt practicefor the purposes of the Act :—

* * *

(4) The publication by a candidate or his agent or byany other person, with the consent of a candidate or his elec-tion agent, of any statement of fact which is false, and whichhe either believes to be false or does not believe to be true,in relation to the personal character or conduct of any candi-date, or in relation to the candidature, or withdrawal, of anycandidate, being a statement reasonably calculated to pre-judice the prospects of that candidate's election.

* * *

This corrupt practice may be committed by :

(a) the candidate

(b) his agent, that is to say—

(i) an election agent(ii) a polling agent(iii) any person who is held to have acted as an agent in connection

with the election with the consent of the candidate.

(c) by any other person with the consent of the candidate or biselection agent.

We are concerned in this appeal with (a) and (b) (iii) mentioned inour analysis. In the original petition the allegations were made on thebasis of corrupt practices committed by a person alleged to have actedas an agent with Mr. Fernandez's consent. In the amendment appli-cation the allegation is that the candidate himself committed the cor-rupt practice under this sub-section.

As we pointed out earlier the difference between the original peti-tion and the amendments will lie in the degree of proof necessary toavoid the election. If the corrupt practice is charged against an agent


other than the election agent, a further burden must be discharged,namely, that the result of the election was materially affected. Ifhowever, the corrupt practice is charged against the candidate per-sonally (there is no election agent involved here), this further proofis not required. Another difference arises in this way. In s. 100(1)(b) the word 'agent' is not to be found. Therefore an agent otherthan an election agent will fall to be governed by the expression 'anyother person'. To get the benefit of not having to prove the effectof the corrupt practice upon the election the consent of the candidate orhis election agent to the alleged practice will have to be established.

Again for the establishment of the corrupt practice under s. 123(4),from whatever quarter it may proceed, the election petitioner mustestablish

(a) publication of a statement of fact, and(b) the statement is false or the person making it believes it to be

false or does not believe it to be true, and(c) that the statement refers to the personal character and conduct

of the candidate, and(d) is reasonably calculated to prejudice the candidate's pros-

pects.

It appear, therefore, that it is a question of different burdens of proofas to whether the offending statement was made by the candidate him-self or by an agent other than an election agent.

Having dealt with the substantive law on the subject of electionpetitions we may now turn to the procedural provisions in the Repre-sentation of the People Act. Here we have to consider section 81,83 and 86 of the Act. The first provides the procedure for the presenta-tion of election petitions. The proviso to sub-section alone is materialhere. It provides that an election petition may be presented on oneor more of the grounds specified in sub-section (1) of s. 100 and s. 101.That as we have shown above creates the substantive right. .Section83 then provides that the election petition must contain a concise state-ment of the material facts on which the petitioner relies and further

Section 83 : (1) An election petition—•(a) shall cantain a concise statement of the material facts on which the

petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioneralleges, including as full a statement as possible of the names of theparties alleged to have committed such cerrupt practice and the date andplace of the commission of such practice ; and

(c) shall be signed by the petitioner and verified in the manner laid down inthe Code of Civil Procedure, 1908 for the verification of pleadings;

(provided that where thz petitioner alleges any corrupt practice, the peti-tion shall also be accompanied by an affidavit in the prescribed form in support ofthe allegation of such corrupt practice and the particulars thereof.

(2) Any schedule or annexure to the p;tition shall also be signed bythe petitioner and verified in the same manner as the petition)


that he must also set forth full particulars of any corrupt practice thatthe petitioner alleges including as full a statement as possible of the namesof the parties alleged to have committed such corrupt practice and thedate and place of the commission of each such practice. The sectionis mandatory and requires first a concise statement of material factsand then requires the fullest possible particulars. What is the differencebetween material facts and particulars? The word 'material' showsthat the facts necessary to formuate a complete cause of action mustbe stated. Commission of a single material fact leads to an incompletecause of action and the statement of claim becomes bad. The functionof particulars is to present as full a picture of the cause of action withsuch further information in detail as to make the opposite party under-stand the case he will have to meet. There may be some overlappingbetween material facts and particulars but the two are quite distinct.Thus the material facts will mention that a statement of" fact (whichmust be set out) was made and it must be alleged that it refers to thecharacter and conduct of the candidate that it is false or which the re-turned candidate believes to be false or does not believe to be true andthat it is calculated to prejudice the chances of the petitioner. Inthe particulars the name of the person making the statement, with thedate, time and place will be mentioned. The material facts thus willshow the ground of corrupt practice and the complete cause of actionand the particulars will give the necessary information to present a fullpicture of the cause of action. In stating the material facts it will notdo merely to quote the words of the section because then the efficacyof the words 'material facts' will be lost. The fact which constitutes-the corrupt practice must be stated and the fact must be correlated toone of the heads of currupt practice. Just as a pJaint without disclosinga proper cause of action cannot be said to be a good plaint, so also anelection petition without the material facts relating to a corrupt prac-tice is no election petition at all. A petition which merely cites thesections cannot be said to disclose a cause of action where the allega-tion is the making of ? false statement. That statement must appearand the particulars must be full as to the person making the statementand the necessary information. Formerly the petition used to be intwo parts. The material facts had to be included in the petition andthe particulars in a schedule. It is inconceivable that a petition couldbe filed without the material facts and the schedule by merely citingthe corrupt practice from the statute. Indeed the penally of dismissalsummarily was enjoined for petitions which did not comply with therequirement. Today the particulars need not be separately includedin a schedule but the distinction remains. The entire and completecause of action must be in the petition in the shape of material facts,the particulars being the further information to complete the picture.This distinction is brought out by the provisions of section 86 althoughthe penalty of dismissal is taken away. Sub-section (5) of that sectionprovider* :

(5) "The High Court may, upon such terms as to costs andotherwise as it mty deem fit, allow the particulars of any corruptpractice alleged in the petition to be amended or amplified in such


manner as may in its opinion be necessary for ensuring a fair andeffective trial of the petition, but shall not allow any amendmentof the petition which will have the effect^of introducing particularsof a corrupt practice not previously alleged in the petition."

The power of amendment is given in respect of particulars but thereis a prohibition against an amendment "which will have the effect ofintroducing particulars of a corrupt practice not previously alleged inthe petition". One alleges the corrupt practice in the material factsand they must show a complete cause of action. If a petitioner hasomitted to allege a corrupt practice, he connot be permitted to give par-ticulars of the cofrupt practice. The argument that the latter part•of the fifth sub-section is directory only cannot stand in view of the con-trast in the language of the two parts. The first part is enabling andthe second part creates a positive bar. Therefore, if a corrupt practiceis not alleged, the particulars cannot be supplied. There is howevera difference of approach between the several corrupt practices. Iffor example the charge is bribery of voters and the particulars give afew instances, other instances can be added : if the charge is use of vehi-cles for free carriage of voters, the particulars of the cars employed maybe amplified. But if the charge is that an agent did something, it cannotbe amplified by giving particulars of acts on the part of the candidateor vice versa. In the scheme of election law they are separate corruptpractices which cannot be said to grow out of the material facts relatedto another person. Publication of false statements by an agent is onecause of action, publication of false statements by the candidate is quitea different cause of action. Such a cause of action must be alleged inthe material facts before particulars may be given. One cannot underthe cover of particulars of one corrupt practice give particulars of anew corrupt practice. They constitute different cause of action.

Since a single corrupt practice committed by the candidate, byhis election agent or by another person with the consent of the candi-date or his election agent is fatal to the election, the case must be specifi-cally pleaded and strictly proved. If it has not been pleaded as part ofthe material facts, particulars of such corrupt practice cannot besupplied later on. The bar of the latter part of the fifth sub-section tos. 86 then operates. In the petition as originally filed the agency ofJagadguru Shankaracbarya, Mr. Madhu Limaye and the Maratha(or Mr. Atrey) was the basis of the charge and the candidate Mr. Fer-nandez was left out. The allegation was personally made against him.The only allegations against him personally were contained in paragraph2G. There it was said that Mr. Fernandez had made certainspeeches to the effect that Mi. Patil was against the Muslims and Christins.No evidence was led and they were not even referred to the hearingbefore us. The next reference in 2J is to statements of Mr. Fernandezand published by the Maratha. These were specified and only threesuch statements were included. Since the gist of the election offecnceis the publication of false statements, the charge is brought home to thecandidate through the publication by the Maratha. It is to be remem-bered that even the allegation that in doing so the Maratha acted as

278 SAMANT N. BALAKRISHNA B. GEORGE FERNANDEZ [VOL. XL

the agent of Mr. Fernandez, itself came by way of an amendment whichwe allowed as it completed the cause of action and is permissible. Thebar of section 86(5) (later part) does not apply to it and under OrderVI rule 17 of the Code of Civil Procedure which is applicable as far asmay be, such an amendment can be made. Similarly the allegationsthat such statements were false or were believed to be false or were notbelieved to be true by the Maratha {i.e., Mr. Atrey) and that they werecalculated to prejudice Mr. Patil's chances and did so, were allowedby us to be added as completing the cause of action relating to a corruptpractice already alleged. But we declined to allow to stand the amend-ments which had the effect of introducing new corrupt practices relatingto the candidate himself which had not been earlier pleaded. Thiskind of amendment is prohibited under the law when the amendmentis sought after the period of limitation.

The learned judge in the High Court did not keep the distinctionbetween material facts and particulars in mind although the languageof the statute is quite clear and makes a clear cut division between thetwo. He seems to have been persuaded to such a course by a readingof the rulings of this Court and the High Courts. These same rulingswere presented before us and we may now say a few words about them.

The learned Judge in the High Court has relied upon Harish ChandraBajpai v. Triloki Singh (*) and deduced the proposition that where thepetition sets out the corrupt practice as a ground, instances of the corruptpractices may be added subsequently and even after the period of li-mitation of riling the petition is over. Following that case the learnedJudge has allowed the amendments as corrupt practice under s. 123(4)was alleged in the original petition. We shall come to that case lastof all. It seems to have played a great part in moulding opinion inIndia on the subject of amendment of pleadings in the Election Law.

To begin with it must be realised that as is stated in Jagan NatkVs. Jaswant Singh and others 2) the statutory requirements of the law ofElection in India must be strictly observed. It is pointed out in thatcase that an election contest is not an action at law or a suit in equitybut a purely statutory proceeding unknown to common 'aw and thatthe court possesses no common law power. Although the power ofamendment given in the Code of Civil Pracedure can be invoked becausesection 87 makes the procedure applicable, as nearly as may be to thetrial of election petitions, the Representation of the People Act, itselfenacts some rules which override the Civil Procedure Code. Generalpower of amendment or the power derived from the Code of Civil Pro-cedure must be taken to be overborne in so far as the election law provides.In a large number of cases it has been laid down by the High Courtsin India that the material facts, must make out a charge and it Is onlythen that an amendment to amplify the charge can be allowed or new

(1657) S.C.R. 370.

(1954) S.C.R. 892-895.15 E.L.R. 131

E.L.R.] SAMANT K. BALAKR1SHNA V. GEORGE FERNANDEZ 2 7 9

instances of commission of corrupt practice charged can be given. Ifno charge is made out in the petition at all the addition of particularscannot be allowed to include indirectly a new charge. This was laiddown in Din Dayal Vs. Beni Prasad and another,(f) Balvan Singh Vs. ElectionTribunal Kanpur and others^) by the Allahabad High Court, in T. L.Sasivarna Thevar Vs. V. Arunagiri and others (5) by the Madras High Courtand in Hari Vishnu Kamath Vs. Election Tribunal, Jaipur and another (6)bythe Madhya Pradesh High Court. AH these cases rely upon HarishChandra Bajpai's case to which we have referred. Harish Chandra Bajpai'scase was based on an English case Beal vs. Smith. In that case it washeld that under the Parliamentary Election Act of 1968 it was enoughto allege generally in the petition that "the respondent by hinifelf andother persons on his behalf was guilty of bribery, treating and undueinfluence before, during and after the election". A summons was takenout calling upon the petitioner to deliver better particulars of "otherpersons". Willes J. after consulting Martin B and Blackburn J.ordered better particulars. It was contended that the petition shouldbe taken off the file since the particulars were lacking. Section 20of that Act only provided that an election petition should be in suchforms and shouid state such matters as may be prescribed. Rule 2pi escribed that the petition should state (i) the right of the petitionerto petition and (ii) and should state the holding and result of the ele-ction and then should briefly state such facts and grounds relied on tosustain the prayer. Rule 5 prescribed, the form which required factsto be stated. Bovill C. J., said that the form of the petition was properand it was quite useless to state anything further. But in Bruce V. OdhamsPress Ltd. the Court of Appeal distinguished 'material facts' from 'parti-culars' as they occurred in Order XIX of the Rules of the SupremeCourt of England. The words there were material facts and parti-culars and the distinction made by Scott L. J . bears out the distinctionwe have made between 'material facts' and 'particulars' as used in s.83 of our statute. The same view was also expressed in Phillips Vs.Phillips. The observations of Brett L. J . in that case also bear out thedstinction which we have made.

It appears that this distinction was not brought to the notice ofthis Court in Harish Chandia Bajpai's case. The rules on the subject ofpleadings in the English statute considered in Beal's case were different.We have in our statute an insistance on a concise statement of materiasfacts and the particulars of corrupt practice alleged. These expressionswe have explained. However, it is not necessary to go into this questionbecause even on the law as stated in Harish Chandra Bajpai's case theamendment allowed in this case cannot be upheld. We shall now noticeHarish Chandra Bajpai's case a little more fully.

4. 15E.L.R. 1995. 17 E.L.R. 3136. 14 E.L.R. 1457. L.E.& G.P.i 158. (1936) 1 C.B 697.

9 . (i878)4Q..B. D. 127


In that case the material allegation was that the appellants "couldin the furtherance of their election enlist the support of certain govern-ment servants" and that the appellant No. i had employed two personsin excess of the prescribed number for his election purposes. No list ofcorrupt practices was attached. Thereafter names were sought to beadded. The amendment was allowed by the Tribunal auer the periodof limitation and the addition was treated as mere particulars. Itwas held by this Court that an election petition must specify "groundsor charges" and if that was done then the particulars of the groundsor charges could be amended and new instances given but no newground or charge could be added after the period of limitation. Thereason given was that the amendment 'introducing a new charge"altered the character of the petition. Venkataraman Iyyer J. emphasisedover and over again that new instances could be given provided theyrelated to a 'charge' contained in the petition. The result of the dis-cussion in the case was summarised by the learned Judge at page 392as follows :

"(1) Under s. 83(3) the Tribunal has power to allow parti-culars in respect of illegal or corrupt practices to be amendedprovided the petition itself specifies the grounds or charges, and thispower extends to permitting new instances to be given.

(2) The Tribunal has power under G IV, r. 17 to order amend-ment of a petition, but that power cannot be exercised so as to per-mit new grounds or charges to be raised or to so alter its characteras to make it in substance a new petition, if a fresh petition enthose allegations will then be barred.

What is meant by 'ground or charge , was not stated. By "ground"may be meant the kind of corrupt practice which the petitioner allegesbut by the word "charge" means inclusion of some material facts tomake out the ground. Applying the same test (although without statingit) the learned Judge pointed out that the charge made in the petitionwas that the appellants 'could' in furtherance cf their election enlistthe support of certain government servants and it meant only an abilityto enlist support but the 'charge' which was sought to be levelled againstthe candidate later was that he had in fact enlisted the said support.The learned Judge observed at page 393 as follows :

"the charge which the respondent sought to level against theappellants was that they moved in public so closely with high digni-taries as to create in the minds of the voters the impression thatthey were favoured by them. We are unable to read into the alle-gations in para 7(c) as originally framed any clear and categoricalstatement of a charge under s. 123(8), or indeed under any of theprovisions of the Election law".

The allegation in the statement was described as worthless andfurther it was observed at page 395 as follows :

"But even if we are to read "could" in para 7(c) as meaning"did", it is difficult to extract out of it a charge under s. 123(8).

E. L.R.] SAMANT N. BALAKRISHNA V. GEORGE FERNANDEZ 281

The allegation is not clear whether the Government servants wereasked by the appellants to support their candidature, or whetherthey were asked to assist them in furtherance of their election pros-pects, and there is no allegation at all that the Government ser-vants did, in fact, assist the appellants in the election. On theseallegations, it is difficult to hold that the petition in fact raised acharge under s. 123(8). It is long jump from the petition as ori-ginally laid to the present amendment, wherein for the first timeit is asserted that certain Mukhias—no Mukhias are mentionedin the petition—assisted the appellants in furtherance of theirelection prospects, and that thereby the corrupt practice mentionedin s. 123(8) had been committed. The new matters intr®ducedby the amendment so radically alter the character of the petitionas originally framed as to make it practically a new petition, andit was not within the power of the Tribunal to allow an amendmentof that kind."

I t would appear from this that to make out a complete chaige the factsnecessary mu.it be included in relation to a 'ground' as stated in the Act.Merely repeating the words of the statue is not sufficient. The peti-tioner must specify the gorunds i.e. to say the nature of the corruptpractice and the facts necessary to make out a charge. Althoughit has been said that the charge of corrupt practice is in the nature ofquasi criminal charge, the trial of an election petition follows the pro-cedure for the trial of a civil suit. The charge which is included in thepetition must, therefore, specify the material facts of which the truthmust be established. This is how the case was understood in numerousother cases, some of which we have already referred. In particularsee J. Devaish v. Nagappa and others, 1965 Mysore, 102 and BabulalSharma v. Brijnarain Braiesh and others 1958 Madhya Pradesh 175 F. B.

Three other cases of this Court were also cited. In Cliandi PrasadChokhani v. State of Bihar (10) it was held that the powers of amendmentwere extensive but they were controlled by the law laid down in theRepresentation of the People Act. It was again emphasised that a newground or charge could not be made the ground of attack as that madea new petition. In Bhim Sen vs. G.opali and others (u) the scope ofHarish Chandra Bajpai's case was considered and its narrow applica-tion was pointed out. Indeed in that case the observations in HarishChandra Bajpai's case were not followed to the utter most limit. In Sheo-pat Singh vs. Ram Pratap (12) the only allegation was that the appellant(Hariram) got published through him and others a statement but therewas no allegation that Hariram believed the statement to be false ordid noi believe it to be trule. It was held that in the absence of suchaverment it could not be held that there was an allegation of corruptpractice against Hariram. The publication with guilty knowledge

10. (1962) 2 S.G.R. 289.

11. 22 E.L.R. 288.

12. (1965) 1 S.C.R. 175.


was equated to a kind of metis rea and this was considered a necessaryingradient to be alleged in the petition.

From our examination of all cases that were cited before us weare satisfied that an election petition must set out a ground or charge.In other woids, the kind of corrupt practice which was perpetrated to-gether with material facts on which a charge can be made out must bestated. It is obvious that merely repeating the words of the statutedoes not amount to a proper statement of facts and the section requiresthat material facts of corrupt practices must be stated. If the materialfacts of the corrupt practice are stated more or better particulars of thecharge may be given later, but where the material facts themselvesare missing it is impossible to think that the charge has been made orcan be later amplified. This is tantamount to the making of a freshpetition.

Reverting therefore to our own case we find that the allegationin paragraph 2J was that Mr. Fernandez made some statements andthe 'Maratha' published them. Extracts from the 'Maratha' werefiled as Exhibits. Since publication of a false statement is the gistof an election offence the charge was against the "Maratha'. If itwas intended that Mr. Fernandez should be held responsibile for whathe said then the allegation should have been what statement Mr. Fer-nandez made and how it offended the election law. In 2J itself onlythree statements were specified and two of them had nothing to do withMr. Ferniandez and the third was merely a news item which the 'Maratha'had published. There was no rererence to any statement by Mr. Fer-nandez himself throughout the petition as it was originally filed. Infact there was no charge against Mr. Fernandez which could have broughtthe case within s. ioi(b) of the Act. The attempt was only to makeout the case under s. ioifd) against the 'Maratha' (or Mr. Atrey) plea-ding Mr. Atrey as agent of Mr. Fernandez. That too was pleaded inthe amendments.

The result is that the case gets confined to that of a candidateresponsible for the acts of his agent. In the argument before us Mr.Chari for Mr. Fernandez conceded the position thet Mr. Atrey couldbe treated as the agent of Mr. Fernandez. We are therefore relievedof the trouble of determining whether Mr. Atrey could be held to bean agent or not. The trial Judge was also satisfied that Mr. Atrey couldbe held to have acted as the agent of Mr. Fernandez. The case asoriginally pleaded fell within s. ioi(d) with the additional burden.Although Mr. Daphtary was content to prove that the consent of Mr.Fernandez was immeterial as the corrupt practice of his agent was equallyfatal to the election and attempted to prove his case under s. ioo(i)(d)of the Act, Mr. Jethamalani who took over the argument from him con-tended that the case fell to be governed by s. ioo(b) i.e. to say of anyperson who did the act with the consent of Mr. Fernandez. Itis therefore necessary to pause here to decide whether Mr. Atrey hadthe consent of Mr. Fernandez to the publications in his newspaper.


The difference between Mr. Daphtary's argument and that ofMr. Jethamalani lies in this. In the later the consent of the candidatemust be proved to each corrupt practice alleged, in the former thereis only need to prove that a person can be held to have acted as an agentwith the consent of the candidate. An agent in this connection is notone who is an inter middler but one acting with the consent, expressor implied, of the candidate. According to Mr. Jethamalani when anagent works regularly for a candidate the consent to all his acts mustbe presumed and he contends that the court was wrong in requiringproof of prior consent to each publication. On the other hand, Mr.Chari's case is that when Mr. Atrey acted as an agent and when he didnot act as an agent, is a question to be considered in respect of eachpublication in the 'Maratha'. According to him it is not sufficientmerely to say that Mr. Atrey was an agent because Mr. Atrey was alsoeditor of the newspaper and in running his newspaper his activitieswere his own and not on behalf of Mr. Fernandez. Mr. Jethamalanirelies strongly upon the case of Rama Krishna (G. A. No. 1949 of 1967decided on April 23, 1968) and Inder Lall Tugal Kishore vs. Lai Singh.Ram KrisharCs case was decided on its special facts. There the agentwas one who had been employed regularly by Rama Krishna not onlyin the last election but also in two previous elections. Rama Krishnastated that the arrangements for his election were completely left inthat agent's hands. The agent had got printed some posters whichhad defamed the candidate and these posters were exposed on the walls.Rama Krishna admitted that he had seen these posters and also thathe had paid for the posters when the bill was presented to him. Infact he included the amount in his return of election expenses. It wasfrom these combined facts thlat the consent of Rama Krishna to thecorrupt practice of making false and defamatory statements was heldproved. The case therefore is not one in which the person while actingin a different capacity makes a defamatory statement.

In the case from Rajasthan the rule laid down was that the asso-ciation of persons or a society or a political party or its permanentmembers, who set up a candidate, sponsor his cause, and work to promotehis election, may be aptly called the agent for election purposes.In such cases where these persons commit corrupt practice unless theexception in s. 100(2) apply the return candidate should be held guilty.We shall consider this question later.

Before we deal with the matter further we wish to draw attentionto yet another case of this Court reported in Kumara Nand vs. BrijmohanLai Sharma. (14) In that case s. 123(4) was analysed. It was held thatthe belief must be that of the candidate himself. The word "he" in thesub-section where it occurs for the first time was held to mean the candi-date. This Court observed as follows :

"The sub-section requires : (i) publication of any statementof fact by a candidate, (ii) that fact is false, (iii) the candidate

13. A.I.R. 1961 Rajasthon 122

14. 1967 (2) S. C. R. 127


believes it to be false or does not believe it to be true, (iv) the state-ment is in relation to the personal character or conduct of anothercandidate; and (v) the said statement is one being reasonablycalculated to prejudice the prospects of the other candidate'selection : (See Shetpat Singh vs. Ram Pratap.) This case thuslays down that the person with whose belief the provision is con-cerned is ordinarily the candidate who, if we may say so, is res-ponsible for the publication. The responsibility of the candidatefor the publication arises if he publishes the thing himself. Hein equally responsible for the publication if it is published by hisagent. Thirdly he is also responsible whether the thing is publishedby any other person but with the consent of the candidate or hiselection agent. In all three cases the responsibility is of the can-didate and it is ordinarily the candidate's belief that matters forthis purpose. If the candidate either believes the statement to befalse or does not believe it to be true he would be responsible unders. 123(4). In the present case the poem was not actually read bythe appellant, but it was read in his presence at a meeting at whichhe was presiding by Avinash Chander. In these circumstancesthe High Court was right in coming to the conclusion that therecitation of the poem by Avinash Chander at the meeting amountedto the publication of the false statement of fact contained in it byanother person with the consent of the candidate, and in this caseeven of his election agent who was also present at the meetings.But the responsibility for such publication in the circumstancesof this case is of the candidate and it is the candidate's belief thatmatters and not the belief of the person who actually read it withthe consent of the candidate. What would be the position in a casewhere the candidate had no knowledge at all of the publicationbefore it was made need not be considered for that is not so here.It is not disputed in this case that the statement that the respondentwas the greatest of all thieves, was false. It is also not seriouslychallenged that the appellant did not believe it to be tiue. Thecontention that Avinash Chander's belief should have been provedmust therefore falls."

From this case it follows that to prove a corrupt practice in an agentis not enough, the belief of the candidate himself must be investigatedwith a view to finding out whether he made a statement which he knewto be false or did not believe to be true. When we come to the factsof the case in hand we shall find that most of the statements were madeby a newspaper editor in the normal course of running a newspaper.Some of the passages which are criticised before us were made as newsitems and some others were put in the editorial. It is to be rememberedthat the newspapers ran a special column called "George Fernandez'sElection Front". No article or comment in that column has been broughtbefore us as an illustration of the corrupt practice. A newspaper publi-shes news and expresses views and these are functions normal to a news-paper. If the same news appeared in more than one paper, it cannotbe said that each editor acted as agent for Mr. Fernandez and by parityof reasoning a line must be drawn to separate the acts of Mr. Atrey in

E.L.R.] SAMANT N. BALAKRISHNA V. GEORGE FERNANDEZ 2 8 5

running his newspaper and in acting as an agent. Mr. Atrey wasnot a wholetime agent of Mr. Fernandez so that anything that he saidor did would be treated as bearing upon the belief" of Mr. Fernandezas to the truth of the statements made by Mr. Atrey. Therefore, everyact of Mr. Atrey could not be attributed to Mr. Fernandez so as to makethe lattei liable. We have therefore to analyse these articles to findout which of them answers the test which we have propounded here.But the fact remains that the case was pleaded on the basis of corruptpractices on the part of an agent but by the amendment the candidatewas sought to be charged with the corrupt practices personally. Asthere was no such charge or ground in the original petition and as theapplication for amendment was made long after the period of limita-tion was over the amendment could not be allowed. Accordinglywe ruled out the amendments concerning the persona] speeches of Mr.Fernandez and the article in the 'Blitz'.

After we announced our conclusion about the amendments Mr.Daphtary with the permission of the Court left the case in the hands ofMr. Jethamalani and the argument to which we have already referredin brief was advanced by him. As pointed out already Mr. Jethamalaniattempted to prove that the case would be governed by s. 100(1) (b)i.e. to say that the statements in the 'Maratha' were published withthe consent of Mr. Fernandez. Mr. Jethamalani deduced this from thecourse of events and argued that on proof of the corrupt practices com-mitted by the 'Maratha', Mr. Fernandez would be personnally liable.He based himself on the following facts. He pointed out that Mr.Fernandez had admitted that he desired that the newspapers shouldsupport his candidature and therefore must have been glad that the'Maratha' was supporitng him, and the articles in the 'Maratha' wereuniformly for the benefit of Mr. Fernandez. Sampurna MaharashtraSamiti, was also supporting the candidature of Mr. Fernandez and the'Maratha' had made common cause with the Sampurna MaharashtraSamiti, the offices of both being situated in the same building whichwas also Mr. Atrey's residence. Mr. Atrey was the editor of the 'Maratha'and Chairman of the Sampurna Maharashtra Samiti. Mr. Atreywas also a candidate supported by the Sampurna Maharashtra Samiti.Mr. Fernandez an Mr. Atrey had a common platform and they support-ted each other in their respective constituencies. The 'Maratha' car-ried a column "George Fernandez's Election Front" wnich was intendedto be a propoganda column in favour of Mr. Fernandez. He contendedthat Mr. Fernandez could not be unaware what Mr. Atrey was doing.He pointed out several statements of Mr. Fernandez in which he sometimeunsuccessfully denied the knowledge of various facts. He contendedlastly that Mr. Fernandez had social contacts with Mr. Atrey and couldnot possibly be unaware that Mr. Atrey was vociferously attacking Mr.Patil's character and conduct. Mr. Jethamalani therefore argued thatthere was knowledge and acquiescence on the part of Mr. Fernandezand as there was no repudiation of what the 'Maratha' published againstMr. Patil. Mr. Fernandez must be held responsible. The learned trialJudge in his judgement has given a summary of all these things at page695 and it reads :


"To sum up, it is clear from the above discussion that res-pondent No. i is a prominent member of the SSP that the SSPis a constituent unit of the SMS, that both Acharya Atre and res-pondent No. i partictipated in the formation of the SMS that theyboth participated in the inauguration of the election campaignby the SMS, that the SMS, carried on election propeganda forcandidates supported by it including respondent No. i., thatAcharya Atre was the president of the Bombay Unit of the SMSand was a prominent and a leading member thereof, that eachof them addressed a meeting of the constituency of the other tocany on election propaganda for the other, that Acharaya Atrethrough the columns of his newspaper Maratha carried on intensiveand vigorous campaign for success of candidates supported by theSMS including respondent No. i., that Acharya Atre started aspecial feature in Maratha under the heading "George FernandezElection Front". These factors amongst others show that AchayraAtrey had authority to canvass for respondent No. i, that he madea common cause with respondent No. i., for promoting his election,that to the knowledge of respondent No. i and for the puipose ofpromoting his election, he (Atrey) canvassed and did various thingsas tended to promote his election. This in law is sufficient to makeAcharya Atre an agent of respondent No. i., as that term is under-stood under the election law".

Mr. Jathamalani contended in further support that there was aclear similaiity in the statements and utterances of Mr. Fernandez andMr. Atrey. He inferred a high probability of concert between them.In this connection he referred in particular to the speech of Mr. Fernan-dez at Shivaji Park and the conduct of Shanbhag, one of his workers,in following up what Mr. Fernandez had said. We shall refer to thislast part later on which a considerable part of the time of the Courtwas spent, although we had ruled out the amendment with regard tothe speech at Shivaji Park. Mr Jethamalani referred to the followingcases among others in support of his contention that consent in suchcircumstances may be assumed : Nani Gopal Swami v. Abdul HamidChoudhury and another. (14) Adan and others v. Hon. E. E. Devason Gowar. (15)Christie vs. Grieve (16) and W. F. Spencer : John Blundell vs. Charles Harrison.(17). There is no doubt that consent need not be directly proved anda consistant course of conduct in the canvass of the candidate mayraise a presumption of consent. But there are cases and cases. Evenif all this is accepted we are of opinion that consent cannot be inferredThe evidence proves only that Mr. Atrey was a supporter and that per-haps established agency of Mr. Atrey. It may be that evidence is tobe found supporting the fact, that Mr. Atrey acted as agent of Mr.Fernandez with his consent. That however does not trouble us becauseMr. Ghari admitted that Mr. Atrey can be treated as an agent of Mr.

J4- '959 Assam 20015. i o - Malley and Hardcaslbs 216.16. i o - Malley and Hardcaslbs 251.

17. 30 - Malley and Hardcaslbs 148.

E/L.R.] SAMANT N. BALAKRISHNA V. GEORGE FERNANDEZ 287

Fernandez. It is however a very wide jump from this to say thatMr. Fernandez had consented to each publication as it came or evengenerally consented to the publication of items defaming the characterand conduct of Mr. Patil. That consent must be specific. If the matterwas left entirely in the hands of Mr. Atrey who acted solely as agent ofMr. Fernandez, something might be said as was done in Rama Krishna'scase (Supra) by this Court. Otherwise there must be some reasonableevidence from which an inference can be made of the meeting of theminds as to these publications or at least a tacit approval of the generalconduct of the agent. If we were not to keep this distinction in mindthere would be no difference between s. ioo(i)(b) and ioo(i)(d) in sofar as an agent is concerned. We have shown above that a corrputact per se is enough under s. ioo(i)fb) while under s. ioo(i)(d) the actmust directly affect the result of the election in so far as the returnedcandidate is concerned. Section ioo(i)(b) makes no mention of anagent while s. ioo(i)(d) specifically does. There must be some reasonwhy this is so. The reason is this that an agent cannot make the candi-date responsible unless the candidate has consented or the act of theagent has materially affected the election of the returned candidate.In the case of any person (and he may be an agent) if he does the actwith the consent of the returned candidate there is no need to prove theeffect on the election. Therefore, either Mr. Jethamalani must provethat there was consent and that would mean a reasonable inference fromfacts that Mr. Fernandez consented to the acts of Mr. Atrey or he mustprove that the result of the election was seriously affected. If everyact of an agent must be presumed to be with the consent of the candi-date there would be no room for application of the extra condition laiddown by s. ioo(i)(d), because whenever agency is proved either dire-ctly or circumstantially, the finding about consent under s. ioo(i)(b)will have to follow. We are clearly of opinion that Mr. Jethamalani'sargument that s. ioo(i)(b) applies can only succeed if he establishesconsent on the part of Mr. Fernandez.

We have already pointed out that Mr. Atrey was also the editorof a newspaper which, as Mr. Patil has himself admitted, was alwaysattacking him, Mr. Atrey had opened a column in his newspaper tosupport Mr. Fernandez's candidature. Although nine articles appearedin the column between December 3, 1966 to February 2, 1967, not asingle false statement from this column has been brought to our notice.There was not even a suggestion that Mr. Fernandez wrote any articlefor the 'Maratha' or communicated any fact. It is also significantthat although Mr. Atrey addressed meetings in the constituency of Mr.Fernandez, not a single false statement of Mr. Atrey was proved fromhis speeches on those occassions. The petitioner himself attended onesuch meeting on February 4, 1967, but he does not allege that therewas any attack on his personal character or conduct. The learnedtrial Judge has also commented on this fact. We think that regard"being had to the activities of Mr. Atrey as editor and his own personalhositlity to Mr. Patil on the issue of Sumpurna Maharashtra Samiti,we connot attribute every act of Mr. Atrey to Mr. Fernandez. Mr.dhari is right in his contention that Mr. Atrey's field of agency was


limited to what he said as the agent of Mr. Fernandez and did not em-brace the field in which he was acting as editor of his neswpaper.It is also to be noticed that Mr. Atrey did not publish any article ofMr. Fernendez, nor did he publish any propaganda material.

The meeting at Shivaji Park about which we shall say somethingpresently, was not held in Mr. Fernandez's constituency. The similarityof ideas or even of words cannot be pressed into service to show consent.There was a stated policy of Sampurna Maharashtra Samiti whichwanted to join in Maharashtra all the areas which had not so far beenjoined and statements in that behalf must have been made not only byMr. Atrey but by several other persons. Since Mr. Atrey was not appoint-ted as agent we cannot go by the similarity of language alone. Itis also very significant that not a single speech of Mr. Fernandez wasrelied upon and only one speech of Mr. Fernandez nemely, that atShivaji Park was brought into arguments before us came by an amendmentwhich we disallowed. The best proof would have been his ownspeech or some propaganda material such as leaflets or pamphlets etc.but none was produced. The 'Maratha' was an independent news-paper not under the control of the Sampurna Maharashtra Samitior the S.S.P. which was sponsoring Mr. Fernandez or Mr. Fernandezhimself. Further we have ruled out news items which it is the functionof the newspaper to publish. A news item without any further proofof what had actually happened through witnesses is of no value. Itis at best a second-hand secondary evidence. It is well-known thatreporters collect information and pass it on to the editor who edits thenews item and then publishes it. In this process the truth might getperverted or garbled. Such news items cannot be said to prove them-selves although they may be taken into account with other evidenceif the other evidence is forcible. In the present case the only attemptto prove a speech of Mr. Fernandez made in connection with the ShivajiPark meeting. Similarly the editorials state the policy of the news-paper and its comment upon the events. Many of the news itemswere published in other papers also. For example Free Press Journal,the Blitz and writers like Welles Hangens had also published similarstatements. If they could not be regarded as agent of Mr. Fernandezwe do not see any reason to hold that the 'Maratha' or Mr. Atrey cansafely be regarded as agent of Mr. Fernandez when acting for the news-paper so as to prove his consent to the publication of the defamatorymatter. We are therefore of opinion that consent cannot reasonablybe inferred to the publications in the 'Maratha". We are supportedin our approach to the problem by a large body of case law to whichour attention was drawn by Mr. Chari. We may refer to a few caseshere :

Bishwantah Upadhaya vs. Haralal Das and others(18) AbdulMajeed vs. Bheguan [Krishna) and others (l9) Rustom Satin vs. Dr. Sam-poornannand and others,^0) Sarla Devi Pathak vs. Birendra Singh and others,

18. 1958 Assam 97.19. A.l.R. 1963 Kerala 18.20. 20 E.L.R. 221.


(21) Krishan Kumar vs. Krishna Gopal (22), Lalsing Keshrising Dehvarvs. Vellabhadas Shankarlal Thekdi and others, (23) Badri narain Singh andothers vs. Kamdeo Prasad Singh and another (24) and Sarat Chandra Rabbavs. Khagendranath Nath and others (25). It is not necessary to refer tothese cases in detail except to point out that the Rajasthan case dissentsfrom the case from Assam on which Mr. Jethamalani relied. Theprinciple of law is settled that consent may be inferred from circumstan-tial evidence but the circumstances must point unerringly to the conclu-sion and must not admit of any other explanation. Although the trialof an election petition is made in accordance with the Code of CivilProcedure, it has been laid down that a corrupt practice must be provedin the same way as a criminal charge is proved. In other words, theelection petitioner must exclude every hypothesis except that of guilton the part of the returned candidate or his election agent. Sincewe have held that Mr. Atrey's activities must be viewed in two compart-ments, one connected with Mr. Fernandez and the other connectedwith the newspaper we have to find out whether there is an irresistableinference of guilt on the part of Mr. Fernandez. Some of the Englishcases cited by Mr. Jethamalani are not a safeguide because in Englanda distinction is made between "illegal practices" and "corrupt practices".Cases dealing with "illegal practices" in which the candidate is heldresponsible for the acts of his agent are not a proper guide. It is to benoticed that making of a false statement is regarded as "illegal practice"and not a "corrupt practice" and the tests are different for a corruptpractice. In India all corrupt practices stand on the same footing.The only diflference made is that when consent is proved on the partof the candidate or his election agent to the commission of corruptpractice, that itself is sufficient. When a corrupt practice is committedby an agent and there is no such consent then the petitioner must gofurther and prove that the result of the election in so far as the returnedcandidate is concerned was materially affected. In Baldev v. Edmunda,,Byron and Marshall (26) strongly relied upon by Mr. Daphtary the publi-cation in the newspaper was not held to be a corrupt practice but theparagraph taken from a newspaper and printed as a leaflet was heldto be a corrupt practice. This is not the case here, Mr. Patil's ownattitude during the election and after is significant. During the electionhe did not once protest that Mr. Fernandez was spreading falsepropaganda, not even when Mr. Fernandez charged his workerswith hooliganism. Even after the election Mr. Patil did not attributeanything to Mr. Fernandez. He even said that the Bombay electionwas conducted with propriety. Even at the filing of the election petitionhe did not think of Mr. Fernandez but concentrated on the 'Maratha'.

Mr. Daphtary sought to strengthen the inference about consent fromthe inter connection of events with the comments in the 'Maratha'..

2 1 .

2 2 .

23-24.

25-26.

19

20 E.L.R. 275.A.I.R.A.I.R.A.I.R.A.I.R.(i394)

—4Elec

1964 Rajasthan 21.1967 Gujarat 62.1961 Patana 41.1961 S.C. 334.

11 T.L.R. 537.. COID./7I

2 9 0 SAMANT N. BALAKRISHNA D. GEORGE FERNANDEZ [VOL. XLI

He refers to the news item appearing in the 'Times of India' of February10, 1967 in which the letting loose of bad characters was alleged tohe commented upon by Mr. Fernandez. He connected this with theactivities of Shanbhag who wrote to the Election Commission andthen pointed out that the 'Maratha' came out with it. But if the 'Timesof India' cannot be regarded as the agent no more can the 'Maratha'.A newspaper reporting a meeting does so as part of its own activity andthere can be inference of consent. What was necessary was to pieadand prove that Mr. Fernandez said this and this. Then the newspaperreports couJd be taken in support but not independently. Here the pleawas not taken at all and the evidence was not direct but indirect.

Mr. Jethamalani referred to some similarity in the reaction of the'Maratha' and Mr. Fernandez to the events. The Babubhai Ghinaiincident was said to be a fake by both the 'Maratha' and Mr. Fernandezthe Sayawedi meeting (not pleaded) was said to be followed by similarstatements in the 'Maratha', the Bristol Grill Conference was reportedin the 'Maratha'. All this shows that the rival party believed in cer-tain facts but it does not show that the 'Maratha' was publishing thesearticles with Mr. Fernandez's consent. In fact this argument has beendesigned to get over our finding that the Amendments were wronglyallowed. Before this there was not so much insistance upon consentas thereafter.

Now it may be stated that mere knowledge is not enough. Con-sent cannot be inferred from knowledge alone. Mr. Jethamalani re-lied upon the Tauntn case (27) where Bolackburn J . said that that onemust see how much was being done for the candidate and the candidatethen must take the good with the bad. There is dif-ficulty in accepting this contention. Formerly the Indian Election Lawmentioned 'knowledge and Connivance' but now it insists on consent.Since reference to the earlier phrase has been dropped it is reasonableto think that the law requires some concrete proof, direct or circumstantialof consent, and not merely of knowledge and connivance. It is signi-ficant that the drafters of the election petition use the phrase 'knowledgeand connivance' and it is reasonable to think that they consulted theold Act and moulded the case round 'knowledge and connivance' andthought that was sufficient.

We cannot infer from an appraisal of the evidence of Mr. Fernandezthat he had consented. His denial is there and may be not accuratebut the burden was to be discharged by the election petitioner to esta-blish consent. If Mr. Fernandez suppressed some other facts or deniedthem, there can be no inference that his denial about knowledge of thearticles in the 'Maratha' was also false. Mr. Fernandez denied flatlythat he saw the articles explaining that there was no time to readnewspapers, a fact which has the support of Mr. Patil who also said thathe had no time to read even cuttings placed by his secretary for hisperusal. We may say here that we are not impressed by the testimony

,of Mr. Fernandez and we are constrained to say the same about Mr.

27. i.o- Malley and Hardcastbs 181 at 185.

E.L.R.] SAMANT N. BALAKR1SH>JA V. GEORGE FERNANDEZ 291

Patil. We cannot on an appraisal of all the materials and the argumentsof Mr. Daphtary reach the conclusion that Mr. Fernandez was res-ponsible for all that Mr. Atrey did in his newspaper or that his consentcan be inferred in each case.

The most important argument was based on the meeting at ShivajiPark on January 31, 1967 where Mr. Fernandez spoke. As the subjectof the charge in the original petition did not refer to this speech and wedisallowed the amendment, Mr. Jethamalani attempted to reach thesame result by using the speech as evidence of consent to the publica-tion of the report in the 'Maratha'. Here we may say at once thatthe speech could not be proved because it was not pleaded. Muchtime was consumed to take up through the evidence of witnesses whogave the exact words of Mr. Fernandez. Mr. Fernandez was allegedto have said that Mr. Patil was not honest and won elections by changingballot boxes. Mr. Fernandez did not admit having made the speech.Four witnesses Tanksale, Bide, Khambate and Bendre who allegedthat they were present at the meeting deposed to this fact. We havelooked into their evidence and are thoroughly dissatisfied with it..Ramkumar, a reporter was also cited. He covered the meeting for the'Indian Express' but his newspaper had not published this part andRamkumar was examined to prove that it was deleted by Rao theChief Reporter. The evidence of Ramkumar was so discrepant withthat of Rao that the trial Judge could not rely on it and we are of thesame opinion. The fact that in Ex. 56 Mr. Fernandez had spoken ofthe 'ways and means' of winning elections of Mr. Patil cannot be heldto be proof nor the activities of Shanbhag in arranging for a watch of theballot boxes. Every candidate is afraid that the ballot boxes may betampered with and there is no inference possible that because Mr.Fernandez or Shanbhag his worker took precautions, Mr. Fernandezmust have made a particular speech. It was said that Randive in hisevidence admitted that Mr. Fernandez made such comments. Wedo not agree. His version was different. There is reason to think thatthere was an attempt to subborn witnesses and make them support thispart of the case or to keep away from the witness box. One such attemptwas made on Randive. We are not impressed by the witnesses whocame to disprove the petitioner's case but that does not improve it either.It seems that attempts were being made to enlist support for such acontention and the evidence shows that the witnesses were not free frominfluence. It is not necessary to go into the evidence on the other sidesuch as that of Dattu Pradhan and Prafulla Baxi. They do not impressus either. We are accordingly not satisfied that Mr. Fernandez madeany such comment. If he did that would be a ground of the very firstimportance to an election petition. It is a little surprising that it wasalleged so late and appears to be an afterthought and intended to putinto the mouth of Mr. Fernandez one of the statements of the 'Maratha'.Consent to the making of the statement in the 'Maratha' had, therefore,to be proved and there is no such proof.

For the same reasons we cannot regard Jagadguru Shankaracharyaor Mr. Madhu Limaye as the agents of Mr. Fernandez. The evidence

2 9 2 SAMANT N. BALAKRISHNA V. GEORGE FERNANDEZ [VOL. XL1

regarding their agency itself is non-existent and there is no materialon which consent can be presumed or inferred.

The result of the foregoing discussion is that this case will have tobe judged of under s. ioo(i)(d) and not under s. ioo(i)(b). In thearguments before us Mr. Ghari conceded that some of the articles con-tain false statements regarding the character and conduct of Mr. Patil.He mentioned in this connection five articles. It is, not, therefore,necessary to examine each of the 16 articles separately. If the condi-tions required by s. ioo(i)(d) read with s. 123 (4) are satisfied, a corruptpractice avoiding the election will be established. The first conditionis that the candidate's belief in the falsity of the statements must beestablished. That was laid down by this Court in Kumara Nand v.Brijmohan Lai Sharma (supra). The second condition is that the re-sult of the election in so far as Mr. Fernandez is concerned must be shownto be materially affected. Thus we have not only to see (a) that thestatement was made by an agent, (b) that it was false etc., (c) thatit related to the personal character and conduct of Mr. Patil, (d) thatit was reasonably calculated to harm his chances but also (e) that itin fact materially affected the result of the election in so far as Mr.Fernandez was concerned. Of these (a) and (c) are admitted and (d)is admitted by Mr. Fernandez because he said that he did not believethat there was any truth in these statements. The question next iswhether they were calculated to affect the prospects of Mr. Patil. Herethere can be no two opinions. These articles cast violent aspersionsand were false as admitted by Mr. Fernandez himself. The course ofconduct shows a deliberate attempt to lower his character and so theymust be held to be calculated to harm him in his election. So far theappellants are on firm ground. Even if all these findings are in favourof the appellants, we cannot declare the election to be void under s.ioo(i)(d)(iii) unless we reach the further conclusion that the result ofthe election in so far as Mr.Fernandez was concerned had been materiallyaffected. The section speaks of the returned candidate when it shouldhave really spoken of the candidate who was defamed or generally aboutthe result. However it be worded, the intention is clear. The condi-tion is a prerequisite.

Mr. Jethamalani argued that the words "materially affected"refer to the general result and not how the voting would have gone inthe absence of the corrupt practice. According to him, s. 94 of theAct bars disclosure of votes and to attempt to prove how the votingpattern would have changed, would involve a violation of s. 94. Ac-cording to him the court can give a finding by looking to the nature ofthe attacks made, the frequency and extent of publicity, the mediumof circulation and the kind of issue that was raised before the voters.He contends that to tell the Maharashtrians that Mr. Patil paid a bribeto the voters of Goa to keep it centrally administered, to call Mr. Patila Najibkhan of Maharashtra i.e. a traitor, to dub him as the creatorof Shiv Sena which terrorised the minorities, to describe him as a goondaand leader of goondas who organised attacks on voters, to charge himwith the responsibility of attack on Parliament and the Congress Presi-

E.L.R.] SAMANT N. BALAKRISHNA V. GEORGE FERNANDEZ 2 9 3

dent's residence and to describe him as dishonest to the extent of switchingballot boxes, is to materially affect the result of the voting. Accordingto him these circumstances furnish a good basis for the finding that theresult of the election was positively affected and nothing more is needed.According to Mr. Jethamalani the capacity of Mr. Atrey when makingthese violent attacks was irrelevant as he was acting in support of thecanvass of Mr. Fernandez.

Mr. Jethamalani further submits that different false statementswere intended to reach different kind of voters. The Maharashtrianswere affected by the Goa and border issues, the minorities by the ShivSena allegations, the law-abiding citizens by the allegations aboutgoondanism. Thus there must have been a land-slide in so far asMr. Patil was concerned and there must have been corresponding gainto Mr. Fernandez. He relies upon Hackney Case(27) where GroveJ. made the following observations at pages 31 and 32 :

"I have turned the matter over in my mind, and I cannotsee, assuming that argument express the meaning of that section,how the tribunal can by possibility say what would or mighthave taken place under different circumstances. It seems to meto be a problem which the human mind has not yet been able tosolve, namely, if things had been different at a certain period,what would have been the result of the concatenation of events,upon that supposed change of circumstances. I am unable atall events to express an opinion upon what would have been theresult, that is to say, who would have been elected provided cer-tain matters had been complied with here which were not compliedwith. It was contended that I might hear evidence on both sidesas to how an elector thought he would have voted at such election.That might possibly induce a person not sitting judicially to formsome sort of vague guess, but that would be far short of evidencewhich ought to satisfy the mind of a judge of what any individualwho might express that opinion would really do under what mighthave been entirely changed circumstances. But, besides that,one of the principles of the Ballot Act is that voting should be secret,and voters are not to be compelled to disclose how they voted ex-cept upon a scrutiny after a vote has been declared invalid. Not-withstanding that, I am asked here, assuming the constructionfor which Mr. Bowen contends to be correct to escertain how eitherthe 41,000 electors of this Borough or any number of them mighthave wished to vote had they had the opportunity of doing so,and what in that event would have been the result of the election.It seems to me that such an inquiry would not only have been entirelycontrary to the spirit of the Act, but also that it would be a simple,impossibility. I should, therefore, say that even if the wordingof the Act, taking it literally and grammatically, required me to putsuch a construction upon it, it would lead to such a manifest absur-dity (using now the judicial term which has generally been usedwith reference to the construction of statutes) that unless I were

27 2.0' Malley and Hardcastlb's Election Reports 77.

2 9 4 SAMANT N. BALAKRISHNA V. GEORGE FERNANDEZ [VOL. XL.I

in some way imperatively obliged, and unless the Act could byno possibility admit of any other construction. I should not puta construction upon it which really reduced the matter to a practicalimpossibility. Such a construction would practically render itnecessary, in the case of any miscarriage at an election, howevergreat the miscarriage might be (if, that is to say, only a very smallnumber of persons had voted, and all the rest of the Borough hadbeen entirely unable to vote) that the judge should then enquireas to how the election would have gone. As I ventured to remarkin the course of the argument, where a miscarriage of this sorttook place it would be virtually placing the election not in thehands of the constituency, but in. the hands of theelection judge, who is not to exercise a judgment as to whois to be the member, but who is only to see whether the electionhas been properly conducted according to law."

Justice Grove then gave the meaning of the provision at page 85as follows :

"If I look to the whole and to the sense of it as a whole, itseems to me that the object of the legislature in this provision isto say this an election is not to be upset for an informality or fora triviality, it is not to be upset because the clerk of one of thepolling stations was five minutes too late, or because some of thepolling papers were not delivered in a proper manner, or were notmarked in a proper way. The objection must be something sub-stantial, something calculated really to affect the result of theelection. I think that that is a way of viewing it which is consist-ent with the terms of the section. So far as it seems to me the rea-sonable and fair meaning of the section is to prevent an electionfrom becoming void by trifling objections on the ground of aninformality, because the judge has to look to the substance of thecase to see whether the informality is of such a nature as to be fairlycalculated in a reasonable mind to produce a substantial effectupon the election."

Mr. Jethamalani invites us to apply the same test and in the light of hisfacts to say that the result of the election in so far as Mr. Fernandezis concerned was materially affected.

On the other hand, Mr. Chari relies upon the facts that therewas a difference of 30,000 votes between the two rivals and as manyas 38,565 votes were cast in favour of the remaining candidates. Hesays that Mr. Patil had contested the earlier elections from the sameconstituency and the votes then obtained by him were not more in factless. He says it is impossible to say how much Mr. Patil lost or Mr.Fernandez gained by reason of the false statements and whether theaffected voters did not give their votes to the other candidates. Heargues that the best test would be to see what Mr. Patil's reactions wereon hearing of his defeat. In this connection he referred to Ex. 120in which Mr. Patil commented on the elections in Bombay being orderly.In Ex. 128 he said that the voters of Bombay had rejected him and thathe has disappointed his supporters and they must pardon him, and tha

E.L.R. SAMANT N. BALAKR2SHNA V. GEORGE HIW.MlEZ 295

he must have been punished for some sin committed by him. Mr.Chari says that never for a moment did Mr. Patil attribute his defeatto false propaganda by Mr. Fernandez or his supporters which if ithad been a fact Mr. Patil would have lost no time in mentioning. Allthis shows that Mr. Patil maintained his position in this constituency.Mr. Fernandez had earlier announced that he would organise supportfor himself from those who had voted in the past for his rivals or hadrefrained from voting and this Mr. Fernandez was successful in achieving.Mr. Chari relies upon, the rulings of this Court where it has been laiddown how the burden of proving the affect on the election must be dis-charged. He referred to the case reported in Vashist Narain Sharma v,Dev Chandra{28) and Surendra Math Khosla v. Dalip Singh(2g) and thelater rul ing of this Court in which Vashist Narian's case has been followedand applied.

In our opinion the matter cannot be considered on possibility.Vashist Narain's case insists on proof. If the margin of votes weresmall something might be made of the points mentioned by Mr. Jetha-malani. But the margin is large and the number of votes earned bythe remaining candidates also sufficiently huge. There is no roomtherefore, for a reasonable judicial guess. The law requires proof.How far that proof should go or what it should contain is not providedby the legislature. In Vashist's case and in Inayatullah v. Diwan-chand Mahajan (30) the provision was held to prescribe an impossibleburden. The law has however remained as before. We are boundby the rulings of this Court and must say that the burden has not beensuccessfully discharged. We cannot overlook the rulings of this Courtand follow the English ruling cited to us.

To conclude and summarise our findings : We are satisfied thatMr. Atrey as the Editor of the 'Maratha' published false statementsrelating to the character and conduct of Mr. Patil, calculated to harmthe prospects of Mr. Patil's election, that Mr. Atrey was the agent ofMr. Fernandez under the election law, but there is nothing to prove thathe did so with the consent of Mr. Fernandez, nor can such consent beimplied because in making the statements Mr. Atrey was acting as theeditor of his own newspaper the 'Maratha' and not acting for Mr.Fernandez. We are further satisfied that the petitioner has failed toestablish in the manner laid down in this Court, that the result of theelection was materially affected in so far as Mr. Fernandez was concerned.We are also satisfied that if the petitioner had pleaded corrupt practicesagainst Mr. Fernandez personally (which he did not) the result mighthave been different. The election petition was ill-considered andleft out the most vital charges but for that the petitioner must thankhimself.

In the result the appeals failed and as already announced earlierthey are dismissed with costs.

Appeals dismissed.

28. (1955) i .S. C. R. 309.29. (1957) S. G. R. 179.30. 15 E. L. R. 219 at pages 235-236.

296 MAGRAJ V. RADHA KRISHAN BIRLA [VOL. XLI

[IN THE HIGH COURT OF RAJASTHAN]

MAGRAJ

V.

RADHA KRISHAN BIRLA & OTHERS

(L. N. CHHANGANI, J.)

February 17, 1969

Representation of the People Act, 1951, Ss. 77, 123(1), (4), (5) and (6)—CorruptTractice—Burden of proofs—Election Procedure—nature of trial.

Evidence—Authorship of documents—proof of s, 123(6)—Agent—Relationship of'Candidate and Agent not common law relation of principal and agent.

The petitioner, in his election petition alleged that Respondent No. 1, the returnedcandidate, was put up by the house of Birlas, one of the wealthiest business housesof the country, that he incurred or authorised enormous expenditure for the conductof his election exceeding the prescribed limit in contravention of s. 77 of the Act andthat he was guilty of the corrupt practices of (i) false statement as defined in s. 123(4) ;(ii) hiring and procuring and using of several motor vehicles for the free conveyanceof the electors to and from the several pDlling stations and (iii) bribery as definedin s. 123(1). Dismissing the petition.

HELD : The petitioner had not proved any of the allegations.

(i) The trial of an election petition on the charge of commission of corrupt prac-tice is different from a criminal trial. The essential Civil nature of the trial and theapplicability of relevent provisions of the Evidence Act including the rules relating:to presumptions cannot be lost sight of.

Dr. M. Chenna Reddi v. Ramachandra Rao, C. A. 4449 of 1968 dt. 17-2-1968 (S.C.) 5H. M. Seshadri v. G. Vasabtha Pat, C. A. 1519 of 1968 (S.G.); referred to.

(ii) The authorship of a document can be proved by direct and indirect evidenceand in appropriate cases even without proving the signatures. In considering theauthorship of a document on mere proof of signatures on the document a proper conclu-sion can be arrived at having regard to the facts and the circumstances, such as (a)the nature and contents of the document; (b) existence or otherwise of a controversyas to the particular parties of a document being in the nature of interpolations and(c) total denial or qualified denial on the part of the person alleged to have signed thedocument.

The contents of the documents being generally hearsay evidence should not or-dinarily be admitted in evidence, but when it becomes substantive evidence, havingregard to the various provisions of the Evidence Act, it may be admitted in evidence.

In the present case the various letters and documents containing the statementsof persons may be in the nature of their declarations or verbal acts explaining the elec-tion campaign on behalf of the respondent which can be taken as one transaction.These previous statements may be relevant to explain the various events in connectionwith the transaction, and the statements of either the respondent or the persons actingas his agents having some bearing in facts in issue and relevant facts, may be admissiblein evidence.

Madho Lai Sindhu v. Asian Assurance, A.I.R. 1954 Bombay 305;-Laxmipat Chorariav. State of Maharashtra; A.I.R. 1968 S.C. 938;-Mohd. Yusufv. D and another; AJ.R.1968 Bom. ii2\-Union ofIndia v. H.C. Goel, A . I .R . 1964 S.C. z&fa-Nhll•V. Durga Prasad, A.I.R. 1954 S.C. 355; referred to.

E.L.R.] MAGRAJ V. RADHA KRISHAN BIRLA 297

(iii) In election law the relation between the candidate and the agent is not thecommon law relation of principal and agent. A candidate may be responsible for theacts of one acting on his behalf though such acts are beyond the scope of the authoritygiven or indeed in violation of express injunction.

On a proper and reasonable interpretation of s. 123(6) of the Act a candidatecannot be held liable for expenses incurred by agents under the electoral law on pres-umption of authorisation unless it is proved that the agents incurred expenses withinthe scope of his authority under the general law.

It is very difncul t to draw a wel 1 defined 1 ine of demarcation between what is generalpropaganda and what is propaganda for individual candidates and, therefore, it willbe hardly appropriate to import a general rule in s. 123(6) by invoking the generallaw of agency and by reference to the expanded constructive agency to make a candi-date liable for the expenses voluntarily incurred by the individual, groups or politicalparties.

Vidya Sagar Joshi v. Surinder Nath Gautam, G.A. 853 of 1968 decided on 13-9-1968(S.C.);-Ramanjaya Singh v. Biajnath Singh, 10 ELR 129, (S.G.) ;-Sheopat Singh v. Harish

•Chandra, 16E.L.R. 103 (Ra.j.);-Biresh Mishra v. Ram Nath Sarma, 17 E.L.R. 433 (Raj.);-Prabhudas v. Jorsang, 18 E.L.R. no;--Hansraj v. Hariram, G.A. 863 of 1966 decidedon 30-10-1968 (S.C.); referred to.

In the present case the extreme stand taken by the petitioner that the leadingmembers of the Birla family, the Birla concerns, their officers, the Swatantra partyand its workers being treated as the respondent's agent under the election law, the res-pondent should be liable for the entire amount spent or deemed to have been spent bythe Swatrantra Party and the Birla group of concerns and their officers, could not beupheld.

ELECTION PETITION NO. 4 of 1967.

G. Vasanatha Pai, H. G. Theckkar, P. G. Mathur and I. G. Mehta, for the peti-tioner.

A. G. Mitra, R. P. Bansal, S. K. Jindal and Kishna Murari, for respondentNo. 1.

M. L. Galla, for respondent No. 2.

M. Mridal, for respondent No. 6.

JUDGMENT

GHHANGANI, J.—This is an election petition under section 81 ofthe Representation of the People Act, 1951 (hereinafter to be referredto as the Act) by one Shri Mag Raj Patodia—an elector in the JhunjhunuParliamentary Constituency, (to be referred to as the constituency)calling in question the election of Shri Radha Krishna Birla (who willhereinafter be referred to as the respondent) to the Lok Sabha fromthe constituency in the fourth general elections held in February, 1967.Initially, the petition contained two prayers—

(i) "That it may be declared that the election of the respondentNo. 1 from Jhunjhunu Parliamentary Constituency to theHouse of the People is void;

(ii) that it may be declared that the respondent No. 2 has beenduly elected to the House of the People from Jhunjhunu Par-liamentary Constituency ;

2 9 8 MAGRAJ V.RADHA KKISHAN BIRLA [VOL. XLi

The respondent No. 2 is Shri Radhey Shyam Morarka, who was one ofthe contesting candidates who secured the next highest number ofvotes. The petitioner impleaded in the election petition all the contest-ing candidates as respondents. The respondent No. 2 Shri RadheyShyam Morarka in his written statement, filed in reply to the electionpetition, supported the petitioner in respect of both the prayers. Therespondent, however, opposed the election petition and further gavenotice under section 97 of the Act of his intention to give evidence toprove that the election of the respondent No. 2 Shri Radhey ShyamMorarka would have been void if he had been the returned candidate,on account of the commission of the corrupt practices. He submitteda recriminatory petition. The respondent No. 2 opposed the recri-minatory petition. Subsequently, by means of miscellaneous appli-cation No. 57 the respondent No. 2 took the plea that the declarationsought by the election petitioner that the respondent No. 2 was dulyelected, could not have been claimed by him and consequently therespondent had no right to file the recrimination petition. By my orderof November 15, 1968, I directed that the prayer in the election petitionrelating to the declaration about the respondent No. 2 as having beenduly elected, be deleted. The recrimination petition was dismissedas not maintainable. The election petition thus now stands confinedonly to the declaration that the election of the respondent is void.

For a proper appreciation of the case, it will be proper to beginby setting out the background in which the elections were contestedfor the parliamentary seat from the Jhunjhunu constituency in the lastgeneral elections.

Since the first general elections held in January, 1952 the consti-tuency as constituted and delimited from time to time, had been returningthe respondent No. 2 Shri Radhey Shyam Morarka to the Lok Sabhaas a congress candidate. In the general elections held in the year 1962he was opposed by the Swatantra party leader Major Thakur RaghuvirSingh of Bissau (PW/32) who lost to Shri Radhey Shyam Morarkarespondent No. 2 by about 3,000 votes only. During his parliamentarycareer Shri Radhey Shyam Morarka held the office of the chairmanof the Public Accounts Committee. It is suggested by the petitionerthat as Chairman of the Public Accounts Committee he had occasionto make some reports on the working of some concerns which are popu-larly known as "Birla concerns" being either owned or controlled ormanaged by the Birla familv, that is the family consisting of the des-cendents of Shri Baldeo Das Birla, father of Shri Ghanshyam Das Birla.It is further suggested that these reports were not liked by the leadingmembers of the Birla family and the senior executives of the Birla concernsand they got annoyed with Shri Radhey Shyam Morarka and didnot want him to be returned to the Lok Sabha in the fourth generalelections. It is stated that the leading members of the Birla family,also described sometimes as "Birla House" and the senior executivesof the BirJa concerns, therefore, opposed the congress party in Rajasthanin general and Shri Radhey Shyam Morarka in particular. Theyput up the respondent who is related to the Birla family and is also


associated with some Birla concerns. Although the parties are not inagreement as to whether he was an official candidate of the Swatantraparty or not, he was certainly associated with the Swatantra partyand had its backing. He had also the backing of the Birla House andthe officers of the Birla concerns. From the \ newspaper reports whichwere referred to during examination of the witnesses, it appears thatthe parliamentary seat from Jhunjhunu was treated as a prestigeseat being contested by two industrialists and a communist and it ac-quired a lot of publicity in the press.

There were ten contesting candidates in the constituency whoare respondents Nos. i to 10. The polling took place on 15th, 18thand 20th February, 1967. The counting was completed on 23rd Fe-bruary, 1967 and the respondents Nos. 1 to 10 secured votes as under :

Respondent No. 1 . . . . . . 1,50,546Respondent No. 2 . . . . . . 1,04,023Respondent No. 3 . . . . . . 70,000Respondent No. 4 . . . . . . 4>99<>Respondent No. 5 . . . . . . 3>278Respondent No. 6 . . . . . . 1,729Respondent No. 7 3,042Respondent No. 8 . . . . . . 5>222Respondent No. 9 . . . . . . 4>877Respondent No. 10 . . . . . . 6,620

The respondent (Shri Radha Krishan Birla) having secured the highestnumber of votes was declared elected.

On 24th April, 1967 Shri Mag Raj petitioner—an elector in theconstituency—presented the election petition calling in question theelection of the respondent. Having regard to the arguments at theBar, it will be desirable to refer to a few features of the election petitionoriginally filed as also to some facts leading to the amendments of theelection petition from time to time. Although various categories ofcorrupt practices were alleged in the petition the petitioner did not givefull particulars of the corrupt practices. Further, the petitioner producedonly one document which is Ex. 56 and no other document. He didnot file a list of documents in possession or power of persons other thanhimself and upon which he relied. In the affidavit filed in supportof the allegations and particulars of corrupt practices, he mentionedcertain persons as having given information relating to the variouscorrupt practices as detailed below :

The information relating to :—

(i) Incurring of expenses beyond from Shivnath Singhthe prescribed limit as described Vasudeo amongst others,in sec. 123(6)

300 MAGRAJ V. RAO HA KRISHAN BIRLA [VOL. XLI

(ii) Corrupt practice of publication from Damodar amongstof false statement as described in others,sec. 123(4)

(iii) Hiring, procuring & use of from Satya Narain.vehicles for the conveyance ofvoters as described in sec. 123(5)

(iv) Corrupt practice of bribery under from Satya Narain Kashi-section 123(1) ram amongst others.

The respondent, even without service, appeared in Court on11-5-1967 and obtained a copy of the attested election petition. Therespondent filed application No. 13 of 1967 on 14-12-67 for early disposalof the case.

The respondents Nos. 5, .8 and 9 remained absent despite serviceand the election petition was directed to proceed ex-parte against them.'The respondents Nos. 2, 6, 7 and 10 could not be served. A gooddeal of time was taken in effecting'service on these respondents. ShriRadhey Shyam Murarka at one stage was served through his Muneemon 25-5-1967. Smt. Sumitra Devi respondent No. 9, who is daughterof Shri Banwrilal Nathuramka (PW/14) and was also a contestingcandidate, filed written statement on June 5, 1967 supporting the prayerof the petitioner for setting aside the election of the respondent.

Respondent filed his written statement on 10th of June, 1967 inwhich inter alia he pleaded that the petitioner did not give full andsufficient particulars of the corrupt practices and, therefore, the allega-tions relating to them should be struck down.

Respondent No. 2 Shri Radhey Shyam Morarka filed his writtenstatement on 24th June, 1967 in which he set out some more corruptpractices in addition to those mentioned in the election petition. Healso produced two annexures marked A & D. Annexure 'A' is apamphlet containing the statement and allegations to the effect thatcongress party had conceded defeat to respondent No. 1 in the JhunjhunuParliamentary Constituency. That congress and congressmen weresupporting and assisting the communist and that Communists weretraitors. Annexure 'B' is entitled "Be careful of the swindlers" andcontaining the statement and allegations to the effect that the congress-men were getting printing false and malicious leaflets etc.

Respondent No. 3 Shri Ghasiram also filed his written statementon 24th July, 1967. He also made additional allegations relatingto corrupt practices and produced two more pamphlets, marked A & B.'A' (subsequently exhibited as Ex. P.W. 11/1) being a pamphlet entitled"Yeh Lai Jhanda Wala commuist kon" and 'B' a pamphlet similarto the copy of the pamphlet produced by the respondent No. 2 andmarked 'A' by him.

It appears that in order to meet the objections of the respondentrelating to want of sufficient particulars of the corrupt practices as also


to avail of the allegations of other corrupt practices made in the writtenstatement, the petitioner submitted application for leave to amend theelection petition. By the proposed amendment the petitioner proposedto incorporate fuller and better particulars of the corrupt practiceshaving regard to the objection of thejrespondnent in his written statement.He also proposed to introduce fresh allegations about the commissionof the corrupt practices by the respondent. This application wasopposed by the respondent. Arguments on the application for amend-ment were heard in part on 17th August but were postponed on a prayerby the petitioner to be resumed on 30th August. In the meanwhile, thepetitioner submitted a fresh application in connection with the amend-ment of the election petition enclosing a schedule of the draft amend-ments. The arguments in connection with the objections of the respon-dent no. 1 relating to want of particulars of corrupt practices and theprayer for amendment of the election petition were heard on 30th and31st August and a detailed order appearing at leaves 14 to 29 of thefile containing the notes of the proceedings was passed. The directionsin this order were of four kinds :

(i) The prayer for amendment by introducing fresh allegationsof corrupt practices was rejected.

(ii) Where the allegations relating to corrupt practice were foundlacking in full and sufficient particulars the objection of the-respondent was upheld.

(iii) The amendment of the election petition to incorporate fulland sufficient particulars of the corrupt practices having"regard to the objection of the respondent No. 1 were allowedto be incorporated.

(iv) However, where the petitioner sought to give clarification inrespect of the allegations of corrupt practices which are notsufficient and full and which could not be full and sufficienteven after the proposed additions, the prayer for amendmentwas rejected.

Liberty was reserved to the petitioner to apply for leave to give furtherand better particulars in respect of the allegations which were heldto be lacking in full particulars. The petitioner thereafter submittedan application under O"6 R.17. Civil P.C. and under section 151,Civil P. C. to amend the election petitions. This application was opposedand by a further order of his Court dated 19-9-1967 some amendmentswere allowed and some were not allowed. Eventually, the amendedelection petition was presented in this Court on 3-10-1967.

In the amended petition, the petitioner has set out his case asfollows—

In para 3, the petitioner stated that "the respondent no. 1 stoodas an independent candidate ; was put up by the house of Birlas, oneof the wealthiest business houses of the country who own and/or controland/or manage several companies. The respondent no. 1 is himself

302 MAGRAJ V. RADHA KRISHAN BIRLA [VGL. XLI

a man of considerable means. He is very closely connected with thehouse of Birla. He is the Chairman of Shri Digvijay Woolen MillsLtd. Jamnagar. Both these companies are owned and/or controlledand/or managed by the house of Birlas. During the course of the electioncampaign, many top Chief Executive Officers of the several companiesof the House of Birlas were brought by the respondent no. i to theconstituency, and they lived there for over a month and worked forthe respondent no. i Several leading members of the family of Birlasincluding Shri Ghanshayam Das Birla, Shri Madho Prasad Birla, ShriK. K. Birla and others also stayed in the constituency and canvassedfor respondent no. i. The vast material and human resources of severalcompanies of the house of Birlas were drawn upon by the respondentno. i for his election campaign. Besides the Chief Executive Officers,hundreds of other Executive Officers and employees of several companiesof the house of Birlas were also brought by respondent no. i from severalplaces to the constituency for campaigning in favour of respondentno. i and they worked for the respondent no. i. Mention was alsomade of the use of a Dakota Aeroplane for travelling of some of themembers of Birlas to and from the constituency in connection withthe election campaign as also to the hire of a helicopter for the purposesof the election. It was also stated that more than 200 cars and jeepswere used in the constituency and that he employed several media ofpublicity for his election propaganda."

In para 4, the petitioner pleaded that the respondent incurred ex-penditure for exceeding the limit of Rs. 25,000. He set out the detailsof the expenses in sub-paras (a), (i), (ii), (iii), (iv) and (b), (c) (d) up to(n), I do not consider it necessary to set out them in detail as the relevantpleading will be referred to in discussing the issue relating to the ex-penses.

In para 5, the petitioner put forward an alternative case that "inthe event of its being held that the election expenses mentioned in para4 hereof were not actually incurred by first respondent but by the afore-said house of Birlas and/or their said companies, the petitioner saysthat the election campaign as hereinabove described was conductedentirely for and in the interests of the first respondent by the house ofBirlas and the said companies at the instance of and with full know-ledge and consent of the first respondent so as to constitute them (houseof Birlas and/or their said companies) as the agents of the first respondent.The petitioner says and submits that in the circumstances, the said ex-penses were authorised by the 1st respondent which is in contraventionof section 77 of the Act."

In paras 6, 7, 8 and 9 the respondent alleged the commission of thecorrupt practices of (i) false statement as defined in section i23(v),' (i) hiring and procuring or using of several motor vehicles for the freeconveyance of the electors to and from the several polling stations inthe Jhunjhunu Parliamentary Constituency as defined in section i23(v)and (iii) corrupt practice of bribery as defined in section i23(i). Thenecessary details will be given in connection with the relevant issues.

The petitioner filed with the election petition lists from A to J.

.E.L.R.] MAGRAJ 0. RADBA KRISHAN BIRLA 303

The petition was contacted by the respondent. The allegationsin para 3 regarding the respondent having been put up as a candidateby the house of Birlas were denied. It was added that the allegationswere irrelevant. The respondent also denied that he stood as anindependent candidate. He pleaded that he was a candidate sponsoredby the Swatantra Party, an All India recognised party and that he con-tested with the symbol "star". He admitted that he was Chairmanof Shri Digvijay Woollen Mills Ltd. Jamnagar which according tohim, is a company incorporated under law and managed by a Boardof Directors including a Director of the Government of Gujarat whichholds a large number of shares therein. The respondent added thathe is an industrialist and many industrialists were happy with his can-didature and interested in bis being elected to the House of the People,and that thousands of people irrespective of their caste and positionin life worked on their own accord voluntarily to support him, addingthat such persons were not legally bound to work for him. He deniedhaving brought the Chief Executive Officers and employees of the severalcompanies in several places in the constituency for convassing in hisfavour. He denied the use of more than 200 cars and jeeps and pleadedthat he kept three jeeps and that expenditure incurred in lieu thereofhad been duly shown by him in the election return.

The allegations in para 4 relating to expenses were denied anddetailed replies in connection with the various items were given. Without

iving further details it may be mentioned that be denied the alle-gations made in the various paragraphs of the election petition.

On these pleadings the following issues were framed :1. Whether the petitioner is an elector in Jbunjhunu Parliamentary

Constituency, and as such, competent to file the present peti-tion.

2. Whether respondent no. 1 incurred or authorised the expendi-ture of Rs. 22,000 as alleged in para 4(a)(i), of Rs. 5,000as alleged in para 4(a)(iii), of Rs. 5,000 as alleged in para4(a)(iv), of Rs. 26,000 as alleged in para 4(b), for items nos.(i) and (ii) (except items nos. 3, 6 and 7) of petrol and mobiloil as alleged in para 4(b), for items nos. 1 to 59 (except itemno. 32), mentioned in List " D " and as alleged in para 4(a),for expenses with regards to persons mentioned in lists "(A)"and " C " and as alleged in para 4(f), for masses as allegedin para 4(h) and List 'G', for meetings as alleged in para (j)and List ' I ' , of Rs. 50,000 as alleged in para 4(1) and of Rs.75,000 as alleged in para 4(n) of the petition and thereby in-curred or authorised expenditure in excess of Rs. 25,000 be-tween 13-1-1967 and 23-2-1967 for his election ?

3. fa) Whether the statements alleged. to have been made byrespondent No. 1 as alleged in para 6 accounts to statementsof facts in relation to the personal conduct of respondent no. 2so as to furnish the basic requirements of corrupt practicesas defined under section 123(4) °f the Act ?

304 MAGRAJ V. RAD HA KRISHAN BIRLA [VOL. XIL

(b) And, if they do, whether they were so made by respondentno. i and/or Shri D. P. Mandalia with the consent of respondentno. i and whether he and/or Shri D. P. Mandalia believedthem to be false or did not believe them to be true and whetherthey were reasonably calculated to prejudice the prospectsof election of respondent no. 2 ?

4. Whether respondent no. 1 on 15-2-1967 used jeeps and carsbearing nos. DLI4958, MPF 1381, DLJ8401 and RJP 1138for conveying electors to polling station at Jhunjhunuand whether respondent No. 1 used a truck bearing No. RJP986 for conveying electors to polling station at Khetri. Whetherrespondent no. 1 on 18-2-1967 used 2 jeeps bearing nos. BRN6580, RSL 810 for conveying electors to polling station atSurajagarh and jeeps bearing nos. RSL 5984, MPE 1854,MPF 1855 RJP 873 for conveying voters to polling stationat Sithal, and jeeps bearing nos. RJP 986, RJP 1091, RJP 909and also buffalo carts for conveying electors to polling stationat Badagaon and Jeeps bearing nos. MPF 1857, MPF 1809,MPF 1803, RSL 6630, RSL 6543 and RJL 980 as also a camelcart for conveying electors to the polling station at Rajgarh ?

5. Whether respondent No. 1 paid sum of Rs. 500 to LaxmanJat of Sithal on or about 9-2-67 for inducing electors ofvillage Sithal to vote for him and whether such payment toLaxman Jat amounted to a corrupt practice as defined undersection i23(i).

6. Whether respondent no. 1 promised at a meeting held at villagePapurna on 31st January, 1967 to Shri Bhagwandass thathe would pay a sum of Rs. 500 to him and some land in con-sideration for him to vote and to induce others to vote asalleged in para g(i) of the amended petition and whether suchan allegation amounts to corrupt practice ?

7. Whether the election of respondent No. 1 is void ?

8. Whether respondent No. 2 would have obtained a majority ofvalid votes but for the votes obtained by respondent no. 1by corrupt practices ?

9. Whether the affidavit filed by the petitioner is not in accordancewith law ; if so. to what effect ?

10. If the verification of the petition, as also of the schedules, anne-xures and lists accompanying the petition, is not in accordancewith law, if so, to what effect ?

Both the parties joined in request for permitting them 15 daystime for filing the List of witnesses in relaxation of Rule 13 of the HighCourt Rules in regard to Election Petitions (hereinafter called the Elec-tion Rules). The petitioner filed his list of witnesses on 5-12-1967 inwhich he cited as many as 350 witnesses, several of whom were from


outside the State. The petitioner also submitted four applicationfor issue of commission for witnesses on December 8, 1967, December 17,1967. January 8, 1968 and September 24, 1968, in all for examinationof 53 witnesses at 12 places. It may be observed in passing that majorityof the witnesses are stated to have been connected with the electioncampaign of the respondent. Finding the question of issue of com-mission in an election petition a difficult and intricate one and havingregard to the facts (i) that the right under adjudication is of politicalnature and (ii) that the election petition is expected to be decided withina period of six months ; I directed the petitioner, in the first instance,to obtain summones for witnesses at the places outside the Stateto see whether the witnesses appear in the Court or express their inabi-lity to appear in Court and claim production under the provisions ofthe Civil P. C. I had also in mind that if the witnesses appear inCourt it would be conducive to the interest of justice as I would bein a position to judge the demaneour of the witnesses. The applica-tion for issue of commission were, however, kept pending. In com-pliance with this direction of the Court the petitioner obtained summonsesfor only 25 witnesses. It is significant that he did not obtain summonsesamongst others for Shri Sanwar Mai Khatan, that is, S. P. Khetanor S. M. Khetan. Shri Jhabhar Chand Dhariwal or J. C. Dhariwal,Shri D. P. Mandalia and Shri M. P. Misra. Summonses were issuedfor other witnesses but leaving aside a very few, most of them did notappear and some of them appeared through counsel and expressed theirinability to appear in Court and give evidence. The applications forissue of commission were again pressed before me on the 10th of May,1968 but after the conclusion of the arguments the counsel for thepetitioner made an application suggesting inter-alia that the questionof issue of commission might be decided after the evidence of thepetitioner and his material witnesses. After the examination of 32witnesses of the petitioner the petitioner, on 24th of September, 1969,submitted one application for examination of three witnesses on com-mission. For reasons given in my order dated 26th September,1968, the application was rejected. In doing so, I relied upon whatI consider a sound promise that an exercise of discretion in avoidingan undue prolongation and the continuance of the proceedings in anelection petition cannot be an abuse of discretion since the public in-terests as well as the private interests of the litigants demand that theelection contest proceedings should be completed as early as possibleconsistent with justice and orderly process. This has been given sta-tutory recognition in section 86 of the Act which provides that "everyelection petition shall be tried as expeditiously as possible and endeavourshall be made to conclude the trial within six months from the dateon which the election petition is presented to the High Court for trial."After the examination of three witnesses coming from outside Rajasthan,namely, Shri B. N. Sinha (P.W./i), Shri J . N. Manchanda (P.W./2)and Shri Jotish Umanga Rai (P.W./3) but before the commencement ofthe statement of the petitioner himself the petitioner filed miscellaneousapplication no. 21 of 1968 on 5-8-1968 in which he is stated to havelearnt about the correspondence in connection with the election of

20—4Elec. COIB./71

3 0 6 MAGRAJ V. RADHA KRISHAN BIRLA [VOL. XLI

the respondent in possession of one Shri Chandra Shekhar, a Memberof the Rajya Sabha. The petition contained a prayer for adding ShriChandra Shekhar in the list of witnesses for examination and for produc-ing the correspondence. It is unnecessary to refer to the other prayerscontained in this application. Later on four separate applicationsin connection with prayers in this application were filed, the applica-tion no. 25 of 19-8-1968 being for permission to amend or add to thelist of witnesses by adding the name of Shri Chandra Shekhar. Theprayer for adding Shri Chandra Shekhar in the list of witnesses for exa-mination in Court could not be allowed, having regard to the provi-sions of Rule 13 of the Election Rules, Permission was, however, givento the petitioner to obtain the more production of the documents inthe custody of Shri Chandra Shekhar and to enable him to get the do-cuments proved by witnesses already cited in the list, vide order dated26th September, 1967. In pursuance of this day's proceedings (26-9-69)summonses were also issued for Shri Chandra Shekhar's attendance inCourt on 9-9-1968. He himself did not appear. Shri G. N. Sanghiappearing on behalf of Shri Chandra Shekhar produced the file whichis marked "B" for purposes of identification.

It may be mentioned here that during his evidence one Shri Ban-warilal Nathuramka (P. W./14) stating that(i) in the last elections helpin 1967, he worked for Shri Radha Krishan Birla at the request ofShri Radha Krishan Birla and Shri Ba'jnath Birla, his friend, (ii) thathe received copy endorsed to him of the letter addressed by Shri RadhaKrishan Birla to Shri S. P. Khetan containing the word "Nathuramka"in his hand, and that (iii) in June 1967 he visited Bombay where therespondent made some payments to him and also entrusted the filerelating to the election on account of some apprehension or likelihoodof his premises being raided, volunteered to produce the file in Court.This file is marked' "A".

Another fact which needs to be mentioned is that one Shri GanpatRai Joshi of Bhiwani was summoned with some documents relatingto M/s Rai Brothers or M/s Rai Publicity, Bhiwani, for December1966 to April, 1967. He, however, did not appear. One 7-10-1968one Shri Gane=;h Dutt submitted an application stating that he hadbeen handed over certain papers by Shri Ganpat Rai Joshi and wantedto produce them in Court. The application was dismissed. Sub-sequently, the documents were faced to the respondent no. 1 and havebeen marked U/2/A to E and V/2 for identification.

The petitioner examined 48 witnesses. He produced or got pro-duced 604 documents, out of which 279 were photostat copies. Healso got produced one plastic badge and a bunch of rubber balloonsmarked M-i and M-2 for identification.

The respondent examined himself and produced 16 witnessesand relied upon 48 documents.

During the course of evidence some documents were put towitnesses in cross examination but in the absence of proper proof they

E.L.R.] MAGRAJ.V. RABHA KRISK&V BIKLA . 3 0 7

could not be exhibited but were assigned identification marks A to ZA-i to Z-i, A-2 to Z-2 and A-3 to I-3.

On 16-10-68 application no. 56 of 1968 was made to exhibit somedocuments, particularly those forming parts of Files A and B, whichwere not exhibited but which were given marks for identification pur-poses, and the same request was repeated during the course of argu-ments as well and finally a written application No. 75 of 16-1-1969 wasalso filed containing the prayer for exhibiting documents marked infiles A and B as also the documents in U/2/A to E and V/2 and varioustrunk call bills marked Z-i to Z-19 for identification. An applicationNo. 55 dated 16-10-69 for examining a handwriting expert was alsomade. The question raised in these applications shall be dealt withat appropriate stages.

It may be remarked at the out set that the learned counsel forthe parties, during the course of arguments, made frequent referencesto the nature and extent of the burden on an election petitioner, thenature of the evidence to be led by him to establish corrupt practicesand the applicability of the provisions of section 106 of the EvidenceAct in respect of facts within the special knowledge of the returnedcandidate and his agents and the permissibility of drawing adverseinferences under section H4(g) of the Evidence Act on account of thenon-production of material witnesses by the respondent as also to thecriteria for determining the material witnesses for the petitioner to unfoldthe case. It will be proper, therefore, to make a few observations asto the guiding principles bearing upon the approach to election pro-ceedings :

(i) The Act expressly prescribes that subject to the provision oithis Act and any rules made thereunder every election petitionshall be tried by the High Court as nearly as may be, in accor-dance with the procedure applicable under the Code ofCivil Procedure, 1908 to the trial of suits. It must followthat the proceedings in an election petition cannot be equatedwith a criminal trial and the respondent returned candidatecannot be treated as an accused in a criminal case. Thereturned candidate has to file written statement to admitor deny the allegations made in the election petition. Theissues are then framed and in doing so, the admissions madeby the respondent have their own weight and the issues merelycover the point of difference between the parties. This isforeign to a criminal trial.;

(ii) That the membership of the Union or State Legislature em-powering the member to participate actively in the governanceof a State or Country is indeed a great privilege (say evena right) acquired under the verdict of the people at an election ;yet it must be viewed as a public office of trust and as a matterof effecting the proper status of the individual in the societyand one must guard against equating the deprivating of theprivilege and the consequent change in. the status even though

3 0 8 MAGRAJ V, RADHA KRISHAN B1RLA [VOL. XLI

accompanied by disqualifications entailing loss of right tocontest elections or to vote for some temporary period onproof of corrupt practices with the imposition of a punish-ment on an accused on conviction under some panel statute.It must be borne in mind that the right to sit in the legislatureas also right to contest and vote are given by the same statutewhich contains also the provisions relating to corrupt practicesand unseating of the candidates to maintain purity at electionwith a view to sustain healthy democratic practices. It mayalso be added that the Act itself provides for some electoraloffences which also warrants that the corrupt practices haveto be considered as distinct from offences. Indeed, it willbe proper to remark that the right of an elected representative tosit in the Parliament and participate in the Government hasto be matched by a corresponding obligation to secure popularverdict in his favour only by ensuring a valid and legitimateexpression of the popular will and to avoid corrupt practicesvitiating such public verdict. Therefore, there is no adequatejustification for applying strictly and rigidly the principlesand notions associated with the trial of accused persons inthe trial of election petitions.

The essential civil nature of the trial and the applicability of therelevant provisions of the evidence Act including the rules relating topresumptions should not be lost sight of. In this view, I am fullysupported by the law as laid down in the two latest decisions of theSupreme Court in Dr. M. Chenna Reddy v. V. Ramachandra Rao& anr( i ) and R. M. Sashadri V. G. Vasantha Pai (2). In ChennaReddy's case (1) the Chief Justice speaking on behalf of the Courtobserved :

"In this connection the inherent differences between the trialof an election petition and a criminal trial may also be noted.At a criminal trial the accused need not lead any evidenceand ordinarily he does not do so unless his case is to beestablished by positive evidence on his side, namely, his in-sanity or his acting in self defence to protect himself or a pleaof alibi to show that he could not have committed the crimewith which he was charged. The trial of an election petitionon the charge of commission of corrupt practice is somewhatdifferent. More often than not, proof of such corrupt practicesdepends on the oral testimony of witnesses. The candidatecharged with such corrupt practices invariably leads evidenceto prove his denial it becomes the duty of the Court to weighthe two versions and come to a conclusion as to whethernotwithstanding the denial and the evidence in rebuttal, areasonable person can form the opinion that on the evidencethe charge is satisfactorily established. We cannot also lose

(1) Civil Appeal No. 44g(NEC) of 1968 decided on 17-2-1968 by the SupremeCourt.

(2) Civil Appeal No. 1519 of 1968 decided by the Supreme Court.

BA.R..] MAGRAJ I>. RADHA KRISHAN BIRLA 3 0 9

right of the fact that quite apart from the nature of the charge,the trial itself goes on as if the issues in a civil suit were beinginvestigated into. The petitioner has to give particularsof corrupt practices with details in default whereof the alle-gations may be ignored ; the peitioner has to ask for certaindeclarations and the procedure before the High Court is tobe in accordance with that applicable under the Code ofCivil Procedure to the trial of suits with the aid of the provisionsof the India Evidence Act Inferences can therefore be drawnagainst a party who does not call evidence which should beavailable in support of his version."

In Seshadri's case (2) the power of an Election Judge to summon Courtwitnesses, under certain conditions, was recognised, and it was observedthat "the policy of election law seems to be that for the establishmentof purity of elections, investigation into all allegations of malpracticesincluding corrupt practices at elections should be throughly investi-gated." The court after referring to some payment of money byKrishnaswamy to Kumarswamy garage, his attachment to Seshadribecause of his past connection, observed :

"The amount paid was so large that only a candidate wouldincur that expense, and no supporter."

To say this, however, is not intended to suggest that consequencesfollowing the success of an election petition are insignificant or un-important. They are indeed serious and have some affinity with con-sequences of panel nature and this consideration has to be kept inview for the determination of the standard of proof.

Now, the Evidence Act defines the term "proved" with referenceto the requirements of a prudent man, which must of necessity varywith the nature of the proceeding civil, criminal, matrimonial etc.Even in civil proceedings the Privy Council adopted a stricter test fordamages in fraud in W. C. Macdonald V. Fred Latimer and others (3).So far as the electoral proceedings are concerned, the law is se-ttled by the decision of the Supreme Court in Jagdev Singh Sidhanti v.Pratap Singh Daulta and others (4) where the law was laid down asfollows :—

"It may be remembered that in the trial of an election peti-tion, the burden of proving that the election of a successful can-didate is liable to be set aside on the plea that he was responsibledirectly or through his agents for corrupt practices of the election,lies heavily upon the applicant to establish his case, and unlessit is established in both its branches i.e. the commission of actswhich the law regards as corrupt practice, and the responsibilityof the successful candidate directly or through his agents or withhis consent for its practices not by mere preponderance of proba-bility, but by cogent and reliable evidence beyond any reasonabledoubt, the petition must fail. The evidence may be examinedbearing this approach to the evidence in mind."

MAGRAJ'tf."ftADHA;KRISHANBIRLA [VOL. XU

The same view was Feiterated in a recent decision of the Supreme Courtin, Amar Nath v. Lachman Singh and others (5).

With these guiding principles in mind I now proceed to considerthe issues in the case, ,

Issue No. 1

The respondent conceded that the petitioner is an elector in theJhunjhunu Parliamentary Constituency and was competent to filethe election petition. Issue No. 1 is, therefore, decided in favour of thepetitioner and against the respondent.

Issue No. 2

Issue No. 2 relates to the controversy about the expenditure incurredor authorised by the respondent in connection with the election exceed-ing the prescribed limit and indicates the various items of expenditureon which the parties are at variance. It may be mentioned at thisstage that the respondent in his election expenses return marked Ex.289 has shown an expenditure incurred by him in connection withhis election at Rs. 16,380.96. The maximum amount of expenditurepermissible is Rs. 25,000. It is clear that the petitioner, in order tosucceed, has to establish the additional expenditure of Rs. 8,619,04to exceed the maximum limit. It will be convenient to deal with thecase item-wise.

Before considering the specific items, it will be useful and con-venient to appreciate generally the case of the petitioner. The petit-tioner's case was that "the respondent contested election as an inde-pendent candidate, and he and his election agent one Shri P. D. Muk-heria incurred and/or authorised the expenditure of large sums ofmoney for his election campaign between 13th January, 1967 and23rd February, 1967. The election expenses of the respondent betweenthese two dates far exceeded the limit of Rs. 25,000 which is the maxi-mum amount prescribed for election expenses for a parliamentarycandidate and the respondent thereby contravened the provisions ofsection 123(6) read with section 77 of the Act."

The petitioner then gave details of the expenditure under variousheads in the following sub-paras marked (a), (b) etc. The petitioner thuscame forward with a case of an expenditure by the respondent himself.

Of course in para 3 the petitioner mentioned the names of Birlasand the Birla family and the respondent's association with the houseof Birlas. He also averred that the respondent was put up by the Houseof Birlas and that several leading members of the house of Birlas as alsohundreds of employees of the house of Birlas worked for the petitioner'selection. Further, in para 5 of the petition the petitioner alternativelypleaded that "in the event only of its being held that the election expensesmentioned in para 4 hereof were not actually incurred by the 1st res-pondent but by aforesaid house of Birlas and/or their said companies,

E.L.R.] MAGRAJ f, RADHA KRISHAN BIRLA 3 1 1

the petitioner says that the election campaign as hereinabove des-cribed was conducted entirely for and in the interests of the ist res-pondent so as to constitute them (house of Birlas and/or their saidcompanies) as the agents of the ist respondent. The petitionersays and submits that in the circumstances, the said expenses wereauthorised by the ist respondent which is in contravention of section77 of the Act."

Para 3, as observed by me in my order dated 30-8-1967, wasof-course in the nature of • an introductory paragraph and is intendedto give the background of the circumstances under which the res-pondent contested the election. In para 5 the petitioner mentionedthat respondent was put by the house of Birlas, and the expenditurehaving been incurred by the house of Birlas and their companies,this should be deemed to have been authroised by the respondent.

Subsequently, as the case developed and the statement of ac-counts of the Swatantra party in the United Commercial Bank,Pilani, and file marked A and the file marked B were brought onrecord, it became evident that the swatantra party was very muchin the field spousing the case of the swatantra party canditates includ-ing the respondent who was the swatantra party parliamentarycandidate and other seven swatantra party assembly candidates andthat the swatantra party incurred huge amount of expenditureexceeding three lacs of rupees in connection with the election. It alsocame to notice that the swatantra party received donations from theCement Allocation & Co-ordinating Organisation (CACO) and otherdoners, may be some Birla concerns. In his attempt to interpretthese materials the petitioner came forward with a theory of the facadeof the swatantra party, contending that under some policy decisionsof the house of Birlas the officers incharge of the elections of theBirlas the respondent organised the incurring of election expensesin such an indirect manner so as to avoid the consequences of theelection expenses through the medium of the swatantra party assuggested to the respondent in his cross examination (see page 69question 1). The petitioner's case at the stage of arguments is threefold—

1. Firstly, the respondent himself incurred all the expenses.

2. That, in the alternative, the expenditure was incurred by theBirla group of concerns either directly or indirectly, throughthe agency of the swatantra party and the expenditure bythem should be deemed to have been authorised by him.

3. That, even if the expenditure was incurred by the swatantraparty the swatantra party having incurred the expenses ex-clusively or at any rate mainly for the respondent, the swat-antra party and the members of the swatantra party should bedeemed to be the agents of the respondent and the expenditurethrough them be treated as having been authorised by therespondent.

312 MAGRAJ V, RADHA KR1SHAN BIRLA [VOL. XL!

For a proper examination of the petitioner's case as developed onthe lines indicated above, it will be necessary to consider the role ofthe members of the Birla family, the Birla concerns and its ExecutiveOfficers and employees and the Swatantra party in connection with theelection of the respondent. The petitioner, in this connection, besideshaving relied upon the oral evidence, has placed great reliance uponthe documents in two files A & B. The counsel for the respondentjoined a serious controversy over the use and the manner and extentof use of the documents in these files.

File "A" was produced in Court by Shri Banwarilal Nathuramka(P.W./14) under circumstances which have already been referred toearlier. There were no page numbers when the file was producedand the paging was done in Court only for the convenience of the parties.There are 161 papers in this file. The petitioner's counsel pointedout that out of these papers, 36 consists of letters on printed letter heads,24 hand-written letters, 64 original letters bearing the signatures of about35 persons, 2 letters with reference numbers of companies, 2 originaltelegrams received from telegraph office, 1 letter typed on special type-writer (of Shri G. D. Birla), 1 typed copy of Bank statement of ThakurRaghubir Singh and 1 bill of Hindustan Times, New Delhi, 1 Cyclo-styled copy of Shri P. D. Makharia's signature attested by the ReturningOfficer, 3 papers containing dates of companies with particulars of amountwhich can be donated, 3 papers containing lists of proposed namesof counting agents, and 2 papers containing details of publicity materialsent to Bhadra office on 25th January and 3rd February, 1967. Heled evidence to prove a number of documents.

File "B" was produced by one Advocate Mr. Sanghi on behalfof Shri Chandra Shekhar. It also had no page numbers but was pagedin Court. It consists of about 600 papers. The petitioner led evidenceto prove some documents in these files. After the close of the respon-dent's evidence, the petitioner's counsel submitted an applicationNo. 56 of 1968 on 14th October, 1968 for exhibiting 25 letters mentionedin the application. It was stated in the application that there aresome letters in this file which are either letters in reply to the lettersalready exhibited while there are others which are referred to in theexhibits. Still others made express reference to one or the other ex-hibits. It was submitted that the letters accepted and the letters soughtto be accepted form chain or chains of correspondence in which eachone of them is a link and that in view of the inter-connection with theletters already accepted their internal evidence and by reason of thefact that they are links in the chain or chain of correspondence, theseletters stand proved and should be marked as exhibits. This applica-tion was directed to be disposed of alongwith the arguments in the case.Subsequently, the petitioner's counsel submitted another applicationNo. 75 of 1969 for exhibiting all the documents in the file A & B as alsoin U/2/A to E and V/2. The respondent submitted written statementopposing these applications.

I now proceed to examine the question how far the petitionerlias succeeded in proving documents in files marked A & B. I will

E.J..R.] MAGRAJ V. RADHA KRISHAN BIRLA 3 1 3

begin with document Ex. P.W.42/6. It purports to be a letter fromShri M. P. Birla, Gamp Bombay and is dated 3rd January, 1967. inrespect of Shri M. P. Birla's signatures Shri Matodia Bagana (PW/42Jstates, "I did not see Shri M. P. Birla writing but I received one ortwo letters from him and also had occasion to see some letters addressedby him to some of my friends. I am in a position to identify the sig-natures, and not the hand-writings, of Shri M. P. Birla. I have seenthe document Ex. PW 42/6. It bears the signatures of Shri M. ±".Birla marked A to B". The counsel for the respondent has vehementlycontended that this letter should not be held proved. Stating the casegenerally with regard to the file itself, the counsel contended that theentire story of Shri Banwarilal Nathuramka about Shri Radha KnshanBirla having handed over the file to him for safe _ custody, is a sheerconnection. He made the following points in this connection :

1. The file purports to contain letters mainly received fromShri Mandaliaji or copies of letters addressed by Mandaliajito others or copies of letters addressed to Mandaliaji. Ina view of this, the file could not have been in possession ofShri Radha Krishan Birla.

2. There are some pieces of papers in the file regarding whichShri Vasudeo (PW/19) has made some reference. Thereis nothing in these pieces of papers to show that they are worthpreserving.

3. The contents of the file does not show that they can be subjectmatter of any raid as they neither relate to income-tax, excisecustoms, sales tax or any other tax.

The counsel for the respondent suggested that some papers taggedinto the file have been put into the possession of the witness by thepetitioner and the petitioner has sought their production through him.

4. It was also added that it is not understandable why a man ofthe status of Shri Radha Krishan Birla should have given anypaper or any file only for safe custody to a man of Shri Nath-uramka's status. The file is said to have been given toShri Nathuramka much after the written statement was filedby Shri Radha Krishna Birla in Court. It is also not under-standable why Shri Radha Krishna Birla should have preservedsuch a file when the contents of the file on contrary to his pleasin the written statement.

The counsel criticising the evidence of Shri Banwarilal Nathuramka{PW/14) made a number of points some of them being as follows :

1. The witness produced Ex. PW14/1 and stated that the word"Nathuramka" marked A to B is in the hand-writing of ShriRadha Krishna Birla. The witness received several slipswhich he handed over to Shri Kamal Kabra but two slipsEx. PW14/2 and Ex. PW 14/3 remained with him in-advertently due to over-sight. On the basis of the slip marked

3 1 4 MAGRAJ V.. RADHA KRISHAN BIRLA [VOL. XIX

Ex. PW 14/2 he paid Rs. 200 to Mangilal Mali, who wasworking under Shri Janardan in the mess even though ithas no reference to Shri Radha Krishna Birla's election.According to the learned counsel the witness has preservedthese documents with care to produce them in Court. Onthe basis of the letter Ex. PW 14/1 he identifies the signaturesarid initials and even the rubber seal impressions of Shri R. K.Birla although he is not in a position to produce any writing,initial or rubber seal. The witness is highly partisan.

2. Referring to details of the meetings it was stated "it is difficultfor a man who is educated upto 2nd class only to rememberdates and exact amounts after such a long period of 1 1/2 yearsafter the election unless he has been tutored before makingthe statement.

3. Referring to his general arguments with regard to file "A itwas submitted that he comes forward with a cock and bullstory."

4. On the basis of his answers in connection with cloth businessit was pointed out, in the first instance the witness tried tobe a business man. Then in cross examination it is foundthat he is neither a salaried man nor a partner or proprietorof any business. The witness is not therefore trust-worthy.

5. Referring to his statement relating to his talk with the petitioneron 16th February, 1967 in relation to the registser containingentries of election expenses the learned counsel submittedthat the statement is most unnatural. It is strange that thewitness would carry the register of expenditure all the timealong with him and Shri Magraj Patodia should forciblytake the register from the witness and have the anxiety tolook into it as if the register was the 8th wonder of the world.The only attempt to tell the story is to produce some registeralleging to be regular account of election expenses incurredin connection with Shri Radha Krishna Birla's election.

6. It does not stand to reason why should a man who has spenteven money out of his own pocket for a candidate shouldcome to give evidence against him in the court after due elec-tion unless prompted by any corrupt motive.

7. None of the dealers named by him from whom he made purchasesin connection with the election have been produced. Thiswitness is one of the informants of the petitioner and if he hadreally made any purchases, he must have informed the petitionerof these dealers. Non-production of the dealers thus givesrise to an adverse inference being drawn against thepetitioner.

8. The witness admits that "there is our ancestral haveli at Naval-garh in which both Shri Radhey Shyam Morarka respondentno. 2 and 1 are co-sharers."

E.L,R.] MAGRAJtf. RADHA KRISHAN BIRLA 315

9, The witness made some statement about his son as under:

(a) "My son Kajod is a congress side and he was workingfor one Minister who was contesting elections from the Navalgarh

.Legislative Assembly Constituency from the Congress party."

(b) "I do not know whether my son Kajod arrived in Naval-garh from Bombay in connection with the general elections asmy son has been living separate from me for the last seven years.I heard that my son arrived at Navalgarh in connection with thegeneral elections."

(c) "I did see my son at Jhunjhunu during the period whenthe counting of the voters were going on. I had no talk with himand I had no occasion to see him before the election period."

(d) "I have seen Ex. A/8. It bears the signatures of my sonKajod at C to D."

(e) "This voucher was marked Ex. PW 14/10. The signaturemight be of my son and might not be."

On the basis of these statements it was submitted that the witnessstatements are unnatural and it is indirectly proved that the witnessalso worked for Shri Radhay Shyam Morarka and he still givesevidence only in his interest. The counsel also commented thaton his own showing the witness was committing breach of trustand as such, cannot be a reliable witness. Over and above allthat it was submitted, the manner in which he produced the filein court was also peculiar.

In reply, the counsel for the petitioner emphasised that,

(1) Shri Banwarilal Nathuramka has not stated anything excepton documents. His evidence is corroborated—

(i) by internal evidence of all exhibits produced by him.(ii) by trunk calls showing the presence of Shri Bajranglal

Birla at Navalgarh ; and(iii) by photograph Ex. 536 showing Shri Nathuramka's

presence along with the respondent.

(2) No suggestion was made to him that his relationship withthe resondent was strained.

(3) That there were raids in Birla concerns on 15th June, 1967as admitted.

(4) The file "A" contains letters of several officers of the Birlaconcerns. The fear of lavish expenditure in the election gettingpublicity was a matter to be avoided. Shri BanwarilalNathuramka has been paid his outstanding bill of Rs. 9,000and odd, the day previous to the handing over of the file.There was therefore nothing unnatural in entrusting the fileto his own worker for custody More so, when he was notconnected any Birla concerns.

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(5) If the file contained the letters of Shri D. P. Mandalia and othersand if Mandalia and others worked for the respondent's elec-tion, there was nothing wrong in the files being handed overTjack to Shri Radha Krishna Birla after his election was over.Shri Mandalia did not require it for himself and the respondentcould have put his own letters into that file.

I have very carefully considered the evidence of Shri BanwariJalNathuramka and am not prepared to treat him as a reliable witness.The story of Shri Nathuramka about the manner in which he got thefile from Shri Radha Krishna Birla is not at all natural and convincing.There could have been no need of handing over such a file for fearof raids as the materials in the file could not have attracted any raid.The presence of him in a photo where the respondent also figures isnot decisive in treating him as the respondent's worker. In order toshow that he was associated with the respondent's election he has pro-duced Ex. P.W. 14/1 and gone to the extent of proving "Nathuramka"in the hand of the respondent. He is not much literate and I cannotaccept his opinion evidence at its face value. Even so, a suspicion aboutthe manner in which the file was produced need only warrant a cautiousapproach in judging the proof of documents and it should not be held•sufficient to reject all documents summarily.

With reference to the letter Ex. P.W.42/6, the counsel for the res-pondent submitted that Shri Watadin Bagari's evidence cannot be con-sidered sufficient to prove Shri M. P. Birla's handwriting on it. ShriMatadin Bagaria (P.W./42) seeks to prove the signatures of the res-pondent on Ex. P.W.42/1, in Ex. P.W. 42/2 some writings in pencil"Doctor Sharma to talk to me", in Ex. P.W. 42/3 some pencil wiiting•"SPK" in capital letters, in Ex. P.W. 42/4 the three capital letters"SPK", and similarly in Ex. P.W. 33/29 the letters "SPK" and "Is heuseful" and the letters "SPK" in Ex. P.W.42/5 in the hand-writingof the respondent. He also seeks to prove the signatures of Shri M. P.Birla on Ex. P.W.42/6 and signatures of Shri K. K. Birla on Ex. P.W.Parsad Poddark Shri Subh Karan Jagnani and Shri P. D. Matharia.This witness visited Jhunjhunu constituency during the election periodtinder instructions from the Congress High Command and stayed inthe constituency for some days. The witness was interested in thesuccess of Shri Radhay Shyam Morarka respondent no. 2 in the 1962•elections as also in the 1967 elections and in that connection addressedmeetings. He got an article published in a paper "Anand Mangal(Weekly)" a copy of which is Ex. 495, in which he described the res-pondent no. 2 Shri Radhey Shyam Morarka as a "Guard of NationalTreasury Moraika who broke open the under-grcund calls of profiteer-ing" and described Birla who foimed Birla Farm by snatching awaythe lands of the farmers in Punjab-whose grabbing eyes are on theRajasthan fields on the pretext of breeding sheep. The witness didnot have in his possession any letter written or signed by Shri K. K.Birla, Shri M. P. Birla, Shri Surajmal Mehta, Shri P. D. Makharia,Shri Subh Karan Jagnani and Shri Murlidhar Dalmia. The witness

the signature of some persons including that of Shri Surajmal

E.L.R.J MAGRAJ V. RADHA KRISHAN BIRLA 3 1 7

Mehta only on the basis of his having seen his letters in the possessionof other persons. He also admits that he did not see Shri Radha.Krishna Birla writting after the year 1951. In connection with theopinion evidence doubts are sometimes thrown on the evidence of hand-writing expert on the ground that thev are unconsciously prejudicedin favour of the parties calling them. Naturally, therefore the com-petance of this witness to identify the signatures or pencil writings some-times consisting only of letters cannot be accepted with safety. Besides,,he is a partisan witness and it has to be borne in mind that electioncreates and promotes partisan feelings at a very high pitch, and some-times Partisan witnesses even though responsible, would not hositateto give twists to facts to suit the party producing them. In this viewof the matter, his opinion evidence cannot be held by itself sufficient toprove Shri M. P. Birla's signatures on Ex. P.W. 42/6.

There is, however, the internal evidence provided by the contents,of this letter and the connected letters which prove the authorshipof the letter. In this letter there is a reference to Shri Radha KrishnaBirJa's letter of 30th December, 1966 from Jaipur. There is in thisvery file a letter on the letter-head of the respondent dated 30th Dec-ember, 1966. This letter consists of about three pages and at the thirdpage after six lines there is the seal impression after the words "yourssincerely" "original signed by R. K. Birla". Then, there is a post-script note bearing the initials of Shri Radha Krishna Birla "R. K. B."A copy of the letter purports to have been endorsed to Shri Mandalia.In this letter there is a reference about the jeep requirements and Ex.P.W. 42/6 also deals with the question of the jeep requirements. Itmust also be mentioned that the peitioner in the petition itself mentionedShri M. P. Birla as having worked for Shri Radha Krishna Birla. Thepetitioner also sought to examine Shri M. P. Birla and even applied forissue of a commission. The respondent also included him in the listof witnesses and yet did not choose to produce him. He, himself, eventhough entered the witness box, yet did not deny the signatures ofShri M. P. Birla on Ex. P.W. 42/6. He no-doubt examined one ShriRam Niwas Vaidya (R.W./13) who claimed to have identified thesignatures of several persons of the Birla family and the Birla Groupof concerns but he even stated that he does not know Shri M. P. Birlaand cannot identify his signatures. I also find that there are strikingsimilarities in the signatures of Shri M. P. Birla in Ex. P.W. 42/6 andhis signatures on Ex. 517 and Ex. 518, applications received from ShriM. P. Birla in this Court.

Having regard to all the circumstances, I am satisfied that thisletter bears the signatures of Shri M. P. Birla.

At this stage it will be convenient to refer to the controversy raisedby Shri Mitra as to the proper use of the documents where signatuersof the persons on the documents are proved. He submitted that proofof signatures cannot amount to proof of the contents of the documentsmuch less of the truth of the contents. It was strongly urged thatthis Court should not look into the contents of the document for anypurpose including the one of using the internal evidence provided by

318 MAGRAj V. RADHA KRISHAN BlRLA [VOL. XLl

the contents of the documents. He relied upon the observations ofBhagwati J. in Madho Lai Sindhu v. Asian Assurance Co. Ltd. andothers (6) :—

"Section 67, Evidence Act only permitted the proof of the signaturesor handwriting of the person signing 01 writing the documentto be given and considered it to be sufficient in those cases wherethe issue between the parties was whether a document was signedor written wholly or in part by that person. It did not go so faras to say that even if it was proved that the signature or the hand-writing of so much of the document as was alleged to be in thehandwriting of the person, was in his handwriting, it would goto prove the contents of that document. No-doubt the proofin so far as it was sought to be given in the evidence of BalkrishnaBhagwan Deshmukh of the signature or handwriting of the saidvarious documents could have established that those documentswere signed or written in the hand writing of Deshpande, Paranjapeor Jamunadas ; but the matter could rest there and would carrythe plaintiff no further".

He also relied upon Sir Mohammed Yusuf and another V. D. andanother (7). In that case it was argued that the view taken by BhagwatiJ. in Madholal Sindhu v. Asian Assurance Go. Ltd. and others (6)could not be considered good law because of the certain observationof the Supreme Court in Mubarik AH V. State of Bombay (8). TheBench of the Bombay High Court distinguished Mubarik Ali's case(8) with the following observations :—

" It is clear to use that the decision in Mubarik Ali's casedoes not affect the decision given by Bhagwati Viz-, that the proofof the documents does not amount to proof of the contents thereof.The only question that arose in Mubarik Ali's case related to theformal proof of the document and, therefore, their Lordships ofthe Supreme Court held that the letters and telegram? could besaid to have been formally proved by reason of internal evidenceprovided by the documents and the positive evidence given bythe recipient of these documents. Once the letters and telegramswere held proved, the further question about the proof of thecontents did not arise in Mubarik Ali's case because the authorof the documents was accused himself and the statements con-tained therein would amount his admissions. In our view, there-fore, the decision of Bhagwati J. is still good law."

Attempting to find out the reasons for the decision of Bhagwati J. thelearned judges pointed out that the evidence of the contents containedin the documents was hearsay and referred to the rule rejecting hearsayevidence and the reasons for the rejection of such evidence and even-tually recorded the following conclusions :—

(6) A.I.R. 1954 Bombay 305.(7) A.I.R. 1968 Bombay 112.(8) A.I.R. 1957 Supreme Court 857.

E.L.Rk] MAGRAj ». RAOHA KRISHAN BIRLA 319

"To conclude this part of the discussion we hold, in the firstplace, that what has been formally proved is the signature of Abreoand not the writing of the body of the document at Ex. 28and secondly, that even if the entire document is held formallyproved, that does not amount to a proof of the truth of the contentsof the document. The only person competent to give evidenceon the truthfulness of the contents of the document was Abreo."

In reply, the learned counsel for the petitioner invited my attentionto a Single Bench decision of the Bombay High Court in Bhima TimeDhotre v. The Pioneer Chemical Co. (9) The learned Single Judgeof the Bombay High Court referred to both the Bombay decision reliedupon by Mr. Mitra and further agreed with the construction of thejudgment of the Supreme Court in Mubarik Ali's case (8) by the DivisionBench but expressed his disagreement in regard to the admissibilityof the documentary evidence, although being bound by the Benchdecision, followed the decision. The learned Judge gave reasons insupport of the contrary opinion. Mr. Pai also relied upon LaxmipatChoraria and others v. State of Maharashtra (10). Union of Indiav. H. C. Goel ( n ) and Nathoolal v. Durga Prasad (12) where evidenceof previous statement oral or in writing—was admitted I must at onceobserve that in considering the applicability of cases it must not beforgotten that the courts deal with the concrete cases with reference tospecific fact and do not record abstract answers in order to evolvegeneral or inflexible principles. Each case has its own factual facetsand a specific controversy upon which the principle is based and it isnecessary to evaluate the principle in the factual back-ground. InMadholal 's case (6) an attempt was made to prove through Sub Accoun-tant in the Head Office of the Bank several documents consisting ofletters and documents executed by Jamnadass in favour of the Bankand also the resolution of the Executive Committee of the Bank andthe letters addressed by the Bank to Nissim by proving the handwritingin which all the documents purported to have been written. BhagwatiJ . characterised this attempt "as an attempt to prove the handwritingof these various documents without calling in evidence the person whohad written the same or who were acquainted with the contents thereofso that they might not be subjected to cross examination at the handsof the counsel for the official Assignees. It was also pointed out thatout of the witnesses who could have proved them were Deshpande,the managing director of the bank, Paranjape the Secretary of the bank,Jamnadas and Nissim. It appears, Bhagwati J . was felt more con-cerned about the truth of the contents of the documents and treatingthem as hearsay, over ruled them in the absence of non-examinationof the three above named witnesses. Similarly, in the matter of SirMohammed Yusuf and another v. Moners V. D. and another (7) theDivision Bench considered at length the circumstances in which the

(9) 70 Bombay Law Reporter page 683.(10) A.I.R. 1968 Supreme Court 938.(11) A.I.R. 1964 Supreme Court 364.(12) A.I.R. 1954 Supreme Court 355.

3 2 0 MAGRAJ V, RADHA KRISHAN B1RLA [VOL. XLF

letter relied upon was brought in evidence. These decisions are un-exceptionable having regard to the facts in these cases but they shouldnot be construed as laying down any inflexible rule irrespective of thefacts of individual cases. After a careful consideration of these casesand the statutory provisions, I think it proper to sum up the positionof law as under :

1. The authorship of a document can be proved by direct andindirect evidence and in appropriate cases even without provingthe signatures.

2. In considering the authorship of a document on mere proofof signatures on the document a proper conclusion can bearrived at having regard to the facts and the circumstances,such as—

(i) nature and contents of the document.(ii) existence or otherwise of a controversy as to the par-

ticular portion of a document being in the nature of inter-polations.

(iii) total denial or qualified denial on the part of theperson alleged to have signed the document.

3. The contents of the documents being generally hearsay evidenceshould not ordinarily be admitted in evidence but when itbecomes substantive evidence having regard to the variousprovisions of the Evidence Act such as sections 6 to 8, 18, 32,34 and other provisions of the Evidence Act, it may be admit-ted in evidence.

In the present case, the petitioner seeks to prove the signatures of therespondent, Shri M. P. Birla, Shri D. P. Mandalia, Shri S. P. Khetan,Shri J. C. Dhariwal and Shri B. P. Misra. With reference to all ofthem, he came forward with the case that they were the agents of therespondent. He tried to produce them. He obtained summonsesfor them and also applied for issue of commission. The application wasopposed by the respondent. The respondent also included themin the list of the witnesses. It cannot be accepted that the petitioneravoided them only to prevent them from being cross examined by therespondent. The various letters and documents containing the state-ments of these persons may be in the nature of their declarations orverbal acts explaining the election compaign on behalf of the respondentwhich can be taken as one transaction. These previous statementsmay be relevant to explain the various events in connection with thetransaction and the statements of either the respondent or the personsacting as his agents having some bearing on facts in issue and relevantfacts, may be admissible as admissions. They may further provideinternal evidence which is in the nature of circumstantial evidence.In this view of the matter, I over rule the objections of Shri Mitra andhold that the internal evidence provided by the contents of the letterscan be looked into for establishing connection between the variousdocuments and hold them proved. I also hold that the contents being

E.L.R.] MAGRAJ V. RADHA KRISHAN B1RLA 32 1

declarations of the respondent and his agents, are admissible for pro-perly understanding and appreciating the entire transaction. It may,however, be added that these contents of the documents shall not byitself be treated as constituting the proof of the truth of the recitalsin the contents of the documents. The Court considered the otherdocumentary and oral evidence in respect of items of expenditure andconcluded.

In the light of the above discussions on the various items of expen-diture and having regard to the evidence and materials on record theconclusions that may reasonably and safely be reached may be summedup as follows :—

(1) That there is no reliable and acceptable evidence to prove thatthe respondent incurred any additional expenditure on anyof the items besides that shown in return of the election ex-penses.

(2) That the swatantra party election campaign in the JhunjhunuParliamentary Constituency was organised and conductedby Thakur Raghuvir Singh (P.W./32) Chief Election Organiserand that an amount of Rs. 3,74,750/was deposited in his accountin the United Commercial Bank and that about rupees threeto four lacs were spent in connection with the election inthe Jhunjhunu Parliamentary Constituency. While it cannotbe accepted that the entire amount was exclusively spent forthe election of the respondent, it will be safe inference thatgreat weightage was given to the candidature of the respondentand this may be easily connected with the role of the membersof the Birla family, the senior and top executives of the Birlaconcerns.

(3) That the members of the Birla family and the senior and topexecutives of the Birla concerns took keen interest in theelection in the Jhunjhunu Parliamentary Constituency. Themotivating force being—

(a) negative of defeating Shri Radhey Shyam Morarka inthe election at all costs—

(b) the positive of securing the return of the respondent.

(4) (a) That the various Birla concerns spared officers and em-ployees for working in the Jhunjhunu Parliamentary Consti-tuency and incurred journey and diet expenses at least inrespect of the employees. There is no evidence that therespondent was expected to re-imburse them or that he actuallyreimbursed. The probabilities are that either the various con-cerns spared their employees bore the expenses or the accountsmight have been settled out of the funds of the swatantraparty to which the Birla concerns made substantial contri-butions. There is no direct evidence of the extent of the ex-penditure but on any estimate it will exceed an amount which.,

21—4 Elec. Com./71

3 2 2 MAGRAJ V. RADHA KR1SHAN BIRLA [VOL. XLI

if added to the amount shown in the return, will take the electionexpenses beyond the prescribed limit.

(b) That a number of motor vehicles were also purchased in thenames of the officers of the Birla concerns and that these motorvehicles were used in connection with the election campaign.That a substantial amount of expenditure must have beenincurred on. petroi and petroleum products and repairs. Thereis, however, no evidence as to who bore the expenditurewhether the concerns or the swatantra party. Of course,the respondent had nothing to do with the expenses. Withregard to the amount, the position is the same as with regardto the expenses over employees.

(5) If the respondent can be deemed to have authorised all theexpenditure indicated above, he must loose his seat. If not,the petition has to be rejected.

This brings me to the controversy on law joined by the learnedcounsel for the parties.

Mr. Mitra's contention is that the expenses voluntarily incurred byother persons including agents under the Election Law out of their ownfunds in connection with the election of a candidate cannot be treatedas expenditure having been incurred or authorised by a candidateor his election agent. It was submitted, to constitute an expenditureto be included in the return of election expenses the expenditure mustbe incurred personally by the candidate or his election agent or bysome body under.the authority of the returned candidate or his electionagent, in a manner to involve him in pecuniary liability in a courtof law. If other persons including agents under the election law in-curred expenses in connection with the election of a returned candidategratuitously, without expecting to be reimbursed or under circumstanceswhich do not involve a returned candidate in a pecuniary liability,the expenses cannot be considered election expenses. In support ofhis contention, he relied upon the absence of the expression "or hisagent or any other person with the consent of a candidate" in section123(6) of the Act, and the presence of the same in provisions relatingto other corrupt practices. The principles relating to interpretationof statutes were referred to in this connection. He further relied uponRananjaya Singh v. Baijnath Singh and others (14), Sheopat Singh v.Harish Chandra (15), Biresh Misra v. Ram Nath Sarma and others/i6), Prabhudas v. Jorsang (17), Mubarak Mazdoor v. Lai Bhadur (18),

(14)05)(i6)

dv)(18)

(i9)(20)

(21)

1 0

16

1718

2 0

2 1

21

22

E.L.R.E.L.R.E.L.R.E.L.R.E.L.R.E.L.R.E.L.R.E.L.R.

129.

103.

243-n o .176.

1 .

215-221.

E.L.R.] MAGRAJ V. RADHA KR1SHAN BIRLA 323

V. B. Ray v. Ramachandra Rao and others (19), M. A. MuthiohChithiar v. Saw. Ganesan (20) and G. Vasantha Pai v. A. Srinivasanand others (21).

On the other hand, Mr. Pai advanced the following arguments—

For the inclusion of all expenses incurred by the agents as under-stood in the Election Law in the expenses deemed to have been incurredby a candidate, it was submitted, in the first instance, that section 123(6)of the Act contains the wide rule than the old rule contained in section123(7) read with Rules 117 and 118. Concept of expenditure in theConduct and management of elections has given place to expenditurein connection with the election under the 1956 Act.

Reliance was placed on the Supreme Court contains in VidyaSagar Joshi v. Surinder Nath Gautam (22). The learned counselalso pointed out that 1956 Select Committee Report contained a clauseto exempt expenses incurred by political parties being clause 4 of section51 of 1955 Representation of the People Act Amendment Bill but thisprovision was dropped when the Bill was finally passed. The sectionhas been rendered wider and all expenditure incurred or authorisedin connection with the election has been included. Referring to theomission of the words "the agent" in section 123(6) of the Act, hesubmitted that the liability for corrupt practice is placed upon the can-didate or election agent whether the candidate incurs liability throughan agent or through a third person interested in his candidature. TheLatin maxim "Qui facit per alium facit per se" makes the act of an agent,the act of a principal. The maximum is given full effect to in section226 of the Contract Act. Commenting upon the cases relied upon bythe respondent he contended that all the cases cited are concernedwith services rendered by volunteers gratis without the knowledge orconsent or privity of the candidate. They do not apply to a case whereto the knowledge of the candidate, actual expenses are incurred by thevolunteers in connection with the election. As a matter of fact, SheopathSingh's case (15) clearly states that what their Lordships have held appli-cable where a friend or a relation lending the vehicle or services doesnot incur any additional expenditure in doing so. He particularlyemphasised that their Lordships may if, however, additional expenditureis incurred, different cansiderations will arise, and relied upon thefollowing observations :—

"For example if a friend gets posters printed at his expensefor a candidate, he incurs expenditure within the knowledge andthat is consent. The candidate will thus be authorising expenditurewhich he is bound to show in his return of expenses. In lendinga vehicle which the friend already has, he incurs no expenditure.If however a friend buys a vehicle in order that he may be ableto lend it for use during election, he would be incurring an ex-penditure which the candidate will be deemed to have authorised."

(22) Civil Appeal No. 853 of 1963 decided on 13-9-68.

3 2 4 MAGRAJ V. RADHA KRISHAN BIRLA [VOL. XI4

He relied upon similar observations in Muthia Chettiar v. Saw.Ganesan (20) :—

"We shall leave open the question what would be the legaleffect if the candidate's friends who lent the vehicles had them-selves hired them and incurred expenditure because that questiondoes not arise on the facts of the present case as it was not suggestedanywhere that the vans and the jeep Were hired by the persons wholent them to the respondent. What we have said will apply alsothe premises used as election offices."

The learned counsel then referred to the dictionary meaning ofthe term "authorised" as meaning "to give formal approval to, tosanction, approve or countenance" and relied upon some observationsof Tomlin J. in Evans v. Hulton etc. Ltd. 1924—-All India EnglandReports 224 referred to in Roland Burrows' Words and Phrases Vol. Iand indicated three alternative contingencies, the third being describedas follows :—

"Agent of the candidate incurring expenditure or third personspending money for the benefit of the candidate with hisknowledge and implied consent."

In the category the man may spend his own money after telling thecandidate or he may collect or arrange funds for the candidate's electionand spend for his election. He also submitted that where a candidatespends through bis agents, the law implies a promise to reimburse thatagent under sections 217 to 220 of the Indian Contract Act. Anexpenditure by an agent according to him, carries with it an obligationon the part of the principal to reimburse the agent under the expressprovisions of the statutes and is really an expenditure of the principle.It is true, as has been held in Vidya Sagar Joshi v. Surinder Nath Gautam(22) that the present rule is wider than the rule under the pre-amendmentAct. This, however, can have bearing only when the controversyrole as to the nature and purpose of the expenditure sought tobe treated as an election expenses. It cannot have any significance indetermining whether an expenditure actually incurred by some personother than a candidate or an election agent can be said to have beenauthorised. I may in passing observe that the Supreme Court in this casein connection with the meaning of expenditure made the followingobservations :—

"Expenditure means the amount expended and 'expended'means to pay away, lay out or spend. It really represents moneyout of pocket, a going out The word 'incurred' shows afinality."

This meaning does not lend support to the contention of Mr. Pai. Withregard to the argument with reference to Select Committee Report, Ineed only observe that it is doubtful whether the Select Committee'sReport can be legally referred to. At any rate, having regard to thedecisions under the pre-amendment law in relation to expenses bydolitical parties the petitioner's counsel cannot derive such assistance.

E.L.R.] MAGRAJ V. RADHA KRISHAN BIRLA 3 2 5

There can be no quarrel with the general proposition formulatedby Mr. Pai with reference to the latin maxim quoted by him that acandidate need not incur expenditure himself. He may do so throughother persons who may be his agents under the general law. It has,however, to be noted that by the Election Law the doctrine of agencyis carried further than in other cases. The relation between the candidateand the agent is not the common law relation of one of principal andagent. A candidate may be responsible for the acts of one acting onhis behalf though such acts are beyond the scope of the authority givenor indeed in violation of express injunction. A question does arisewhether the concept of extended constructive agency should be impor-ted in connection with this corrupt practice and expenses incurred byagents under the Electoral Law should be presumed to have been au-thorised by the candidate. It will be useful in this connection to con-sider the scheme of the law relating to corrupt practices—

A combined consideration of section 123 and 100 of the Act shows :

(1) That an agent has been treated as a separate class in relationto the commission of some categories of corrupt practices.

(2) A corrupt practice may be committed by an agent with consentof a candidate or without his consent and there are separateprovisions dealing with them. A corrupt practice committedby an agent with consent of a returned candidate will byitself be sufficient to invalidate the election but in casesof corrupt practices committed without such consent theremust be in addition, proof of the result of the election in sofar as it concerns a returned candidate, having materiallyaffected to invalidate the election.

(3) Further, even on proof of the commission of the corrupt prac-tices by an agent as also the proof of material effect on theresult of the returned candidate a candidate can escape con-sequences on proof of certain facts as mentioned in sub-section(2). This has been provided to safe-guard in part the con-sequences flowing from the adoption of the concept of extendedconstructive agency under the Electoral Law.

(4) Consent to the actual commission of a corrupt practice undersection i (b) of section 100 is evidently different from theconsent which is part of the definition of the term 'agent'in the explanation item (i) to section 123 which is consentgiven to a person by a candidate and which cannot be givenby an election agent.

(5) That an expenditure by itself does not amount to a corruptpractice. It is only when it exceeds the prescribed limit that acorrupt practice is committed.

The importing of the general law of agency in relation to this corruptpractice alone cannot fit in with the scheme set out above. It appearsto me that the acts envisaged in other corrupt practice being per se

3 2 6 MAGRAJ V. RADHA KRISHAN BIRLA [VOL. XLI

wrong the legislation thought it proper to extend the doctrine of ex-ended constructive agency or various liability in respect of these corrupt

practices by introducing words "agent" in their definition in the largerinterests of preventing corruption ; the under-lying principle beingthat he should employ only trust-worthy agents and becomes respon-sible for their acts. In relation to this corrupt practice the legislaturepresumably considering that the expenditure by itself is not per se wrong,did not think it proper to extend the doctrine of extended constructiveagency to this corrupt practice and, therefore, deleted the words"agent"while amending the Act in the year 1956. On a proper and reasonableinterpretation of section 123(6) of the Act a candidate cannot be heldliable for expenses incurred by agents under the Electoral Law onpresumption of authorisation unless it is proved that the agents incurredexpenses within the scope of his authority under the general law.

I now turn to the cases cited at the Bar. The first leading caseis the Supreme Court decision in Rananjaya Singh v. Baijnath Singhand others (14). In that case a number of persons employed in theestate of the candidate's father worked for him in the election and ifthose persons and the remuneration they received from the candidate'sfather were included the maximum of persons that a candidate mightemploy on payment and the maximum expenditure he might incurunder the provisions of the rules then in force would be exceeded. Inholding the candidate not responsible for the expenditure theirLordships of the Supreme Court observed as follows :

"The case, therefore, does not fall within section 123(7) a t

all and if that be so, it cannot come within section 123(4). I*obviously was a case where a father assisted the son in the matterof the election. These persons were the employees of the fatherand paid by him for working in the estate. At the request of thefather they assisted the son in connection with the election whichstrictly speaking they were not obliged to do. Was the positionin law at all different from the position that the father had giventhese employees a holiday on full pay and they voluntarilyrendered assistance to the appellant in connection with his election?We think not. It is clear to us that the appellant and these personswere neither employed nor paid by him. So far as the appellantwas concerned they were mere volunteers and the learned advocatefor the respondent admits that employment of volunteers does notbring the candidate within the mischief of the definition of corruptpractices as given in section 123(7)."

Dealing with the arguments based on the spirit of the law and on unfairadvantage available to candidates having rich friends or relations asagainst poor rivals, it was further observed:

"The spirit of the lawmay well be an elusive and unsafe guideand the supposed spirit can certainly not be given effect to inopposition to the plain language of the sections of the Act and therules made thereunder. If all that can be said of these statutoryprovisions is that construed according to the ordinary grammatical


and natural meaning of their language they work injustice byplacing the poorer candidates at a disadvantage the appeal mustbe to Parliament and not to this Court."

In Sheopat Singh v. Harish Chandra (15) a Bench of this Courtmade the following observations :

"In our opinion, no such presumption can be drawn in theabsence of any evidence to show that these vehicles were usuallyplied for hire. We are of opinion that it was for the petitionerto show that in obtaining these vehicles, the appellant authorisedany expenditure, that is to say, that he incurred a pecuniary liabilitywhich could be enforced against him in a Court of law."In Biresh Misra v. Ram Nath Sarma and others (16) the following

observations were made :—•"Section 77 of the Act only enjoins upon the candidate or his

agent to keep an account of the expenses incurred or authorisedby him. As expenditure not made by him need not be mentionedin the account one cannot be said to incur an expense unless heactually spends the money. The expenditure also cannot besaid to have been authorised unless any pecuniary liability is in-curred by a person."

In Prabhudas v. Jorsang (17^ the Madras High Court taking thesame view observed that the travelling expenses of polling agents whichwere incurred by the polling agents voluntarily and gratuitously withoutany intention to claim them from the candidate are not expenses in-curred by the candidate and need not be included in the election ex-penses. It was also observed that the candidate is not bound to includein his ejection expenses the value of his free services.

I have considered it sufficient to extract illustrative observationsfrom these cases and I do not consider it necessary to notice in detailall the cases on the point. Dealing with the comments of Mr. Pai onthese cases, 1 must observe that these cases were concerned with servicesrendered by volunteers gratis. 1 also agree that there are observationsin some of these cases indicating emphasis on facts and the applicabilityof different principles under changed facts and circumstances. I mustalso caution against any tendency to infer rules of thumb from these caseswhich can be an answer to all sorts of diversified situations. All thesame, I think the general trend of opinion in these cases lends supportto the view taken on construction of the legislative provisions. At anyrate, they do not provide any positive support for the view contendedfor by Mr. Pai and I do not find anything in these cases to persuademe to alter my opinion arrived at on a consideration of the statutoryprovisions.

I must now refer to the recent decision of the Supreme Court inHansraj v. Ptd. Hariram and others (23) on the interpretation of whichthe learned counsel for the parties joined some controversy. In that

(23) Civil Appeal No. 863 (NCE) of 1966 decided on 30-10-1968 by the SupremeCourt.

3 2 8 MAGRAJ V. RAD HA KRISHAN BIRLA [VOL. XLI

case his Lordship the Chief Justice speaking on behalf of the Court,made the observations to the following effect :

"Whichever way one looks at the matter it is quite clear inview of the decision of this Court reported in Rananjya Singh v.Baijnath Singh and others (1955 S.C.R. 671), that the expendituremust be by the candidate himself and any expenditure in hisinterest by others (not his agents within the meaning of the termin the Election Law) is not to be taken note of."

The learned counsel for the petitioner emphasised the words in thebracket "not his agents within the meaning of the term in the ElectionLaw" and contended that this decision of the Supreme Court supportsthe view canvassed by him and that the observations in the earlier deci-sion should not have weighed in the face of this pronouncement. In thatcase the finding of the High Court was that the jeep was not hired bythe returned candidate but by the congress committee for the generalpurpose of propaganda on behalf of the congress party. The HighCourt had also held that the jeep was also used by the candidate inconnection with his election. In an appeal before the Supreme Court,the finding of the High Court was challenged and it was contendedthat the finding should be that the jeep was hired by the returned can-didate, although it was used also for the propaganda of the congress.Without adjudicating or even commenting upon the submission of thecounsel for the appellant, his Lordship made the observations extractedabove.

It will be proper to extract two further observations from the SupremeCourt Judgment Hansraj v. Hariram (23):

1. "In this situation it is difficult to say that the whole of the benefitof the jeep went to the returned candidate and once we heldthe entire benefit did not go to him, we are not in a positionto allocate the expenses between him and the other candi-dates in the other constituency."

2. "The limit of expenditure in this case was rupees two thousand.It is obvious that if Rs. 1,600 or so were to be spent on thehiring of a single vehicle, something would have to be doneby way of a device to avoid showing such expenditure in thereturn. An expenditure of that magnitude would hardlyleave any extra money available for the normal propagandawhich involves printing of hand-bills, posters etc. and paymentof workers. Therefore, the party was making it easy for thecandidates to run their propaganda exclusively for them-selves through vehicles supplied by the party. In the presentstate of the law, we cannot say that this is not permissible,but we think that it leads to avoidance of the statutory ruleabout expenditure and the limits on it. However, this isa matter for the Parliament to consider and not for us torectify by a decision."

E.L.R.] MAGRAJ V. RADHA KR1SHAN BIRLA 3 2 9

A careful consideration and analysis of the Supreme Court decisionshows that the Supreme Court did not consider it necessary to alterthe finding as suggested by the counsel for the appellant and referredto the practice of the party making it easy for the candidate to run theirpropaganda exclusive])- through vehicles supplied by the parties andeven deprecated the practice and yet did not hold the candidate res-ponsible for the expenses incurred on the hiring of the vehicles. TheSupreme Court had no occasion in that case to consider the questionof expenditure through the agent obviously as the Himachal PradeshCongress Committee who had hired the jeep, was not considered as thecandidate's agent. The words relied upon appear to be generallyused and were not intended to be used that in spite of the differencein the language of sub-section (6) of section 123 of the Act and othersub-sections, a candidate would be liable for expenses incurred volun-tarily by persons who can be considered the candidate's agents underthe extended view of agency.

The view reached on interpretation of the statutory provisionsand on consideration of the case-law accords with the sound demo-cratic principles and practices. It must be significantly pointed outthat in a democracy the right of an individual to hold and express hisopinion and to incur expenditure and legitimate manner to secure theadoption of his views by others cannot be disputed. Further, in a de-mocracy besides the political parties, the emergence of groups such asbusiness groups, farm groups, labour groups to promote and defend theirinterests is natural on the premise "In unity there is a strength". Thesegroups in addition so exert their pressure, both upon the Legislativesand executives to safe-guard their interest (which is called lobbying)also on occasions play effective role and incur expenses in influencingthe election of candidates to promote their own interests. The incurringof expenses by individuals by groups and by political parties is permi-ssible in the absence of any valid legislation banning on regulatingsuch expenditure. Of course the legislative may to prevent abuseof money in elections;, undertake legislation to regulate use of moneyby individuals, groups and political parties by altogether banning contri-butions by individuals and business concerns or imposing ceiling limitsor requiring reporting of expenses incurred as has been done in somedemocracies "although without much success". But, in the absenceof such law, the Courts cannot be expected to take note of expensesvoluntarily incurred by individuals and groups and political partiesto deprive the returned candidates of their success by having resortto the doctrine of extended constructive agency in this connection.I also feel inclined to observe that if money is spent by such group oragency only on publicity in an attempt to properly educate, instructand inform the vast electorate, there can be no objection ; on the otherhand, this may serve an important need of removing the political inacti-veness of the people and mass inertia. Further, if the spending ofthe money is related to the Commission of corrupt practices such as,publication of false statement, conveyance of voters in vehicles, the can-didate can be held liable for corrupt practices under the extended notionof agency in relation to these corrupt practices.

330 MAGRAJ V. RADHA KRISHAN BIRLA [VOL. XLI

The counsel for the petitioner appeared to me to have recognisedthis fact and to have, therefore, laid great stress on the association ofindividuals and groups and parties with individual candidates andwanted me to hold that by such association they, while incurring ex-penditure should be treated as candidate's agents and the candidateshould be held liable. It is very difficult to draw a well denned lineof demarcation between what is general propaganda and what is pro-paganda for individual candidates and, therefore, it will be hardlyappropriate to import a general rule in section 123(6) by invoking thegeneral law of agency and by reference to the expended constructiveagency to make a candidate liable for the expenses voluntarily incurredby individual, groups and political parties.

Examining the arguments with reference to the dictionary meaning,I must state that authorisation pre-supposes either ownership of fundsor dominion over funds. It may be conceded that unduly too narrowedview should not be taken of the word "dominion" and it may be rea-sonable in some cases to infer dominion of a candidate in the contin-gency pointed out by Mr. Pai where a candidate authorises his agentsto collect funds for his candidature and to spend them as they deemproper. It may also be permissible in some cases to infer dominionof candidate over the funds from his knowledge or consent as was donein Seshadri's case (2). However, in the ultimate analysis, the questionwhether a particular expenditure can be said to have been authorisedwill be a question of fact depending upon the facts and the circumstancesof individual cases and it will not be at all proper and fair to lay downrules of thumb in this behalf.

In this view of the law, the extreme stand taken by the petitioner'scounsel that the leading members of the Birla family, the Birla concerns,their officers, the swatantra party and its workers being treated as therespondent's agents under the Electoral law, the respondent should beheld liable for the entire amount spent or deemed to have been spentby the Swatantra Party and the Birla groups of concerns and their officers,cannot be accepted.

The petitioner's counsel having however, emphasised some specificitems, I proceed to examine the case in respect of such items of ex-penditure. Referring to the expenditure on officers and employeesof the Birla concerns, the petitioner's case is that they arrived in theconstituency in pursuance of some policy decision by the members ofthe Birla family and the senior and top executive officers of the Birlaconcerns and that the respondent was taken into confidence in the matterof this organisation. He also had some hand in dalling some of theemployees. The argument is that the respondent had a hand in gettingthe officers and employees and was aware of the organisational setup and the expenditure incurred in connection with their stay at theconstituency, food arrangements and travelling allowance expensesmust be deemed to have been authorised by him. It was also addedthat if the respondent desired to escape responsibility for the expen-diture the burden was on him to show to the contrary and he has failedto discharge the burden. Reliance was placed upon the decision


of the Supreme Court in R.M. Seshadri v. G. Vasantha Pai (2)indicating that expenditure is a matter within the special knowledgeof a candidate and that the burden cannot be on the election peti-tioner to prove that he incurred such expenditure himself. I havealready held earlier that the expenditure in this connection was eitherincurred by the Birla concerns themselves or by the swatantra partyand that the respondent had nothing to do with it. I may also addthat according to the petitioner's own showing the leading membersof the Birla family including Shri G. D. Birla and the senior top ex-ecutive officers including Shri D. P. Mandalia were parties to the orga-nisation which was set up by them for conducting election campaignin Rajasthan. The members of the Birla family and the senior topexecutive officers of the Birla concerns had their own motive to opposethe candidature of Shri Radhey Shyam Morarka on account of hissome adverse reports about the working of the Birla concerns. Therespondent does not appear to be closely related to the Birla family.He had humble beginning in the Birla concern although at presenthe holds quite a senior position in the Birla concerns. In the Birlaconcerns he cannot have status similar or the leading members of theBirla family or the senior most top executives like Shri D. P. Mandaliaand naturally he could not have a final or even dominent voice in regardto the policy decisions of the members of the Birla family and the officersof the Birla concerns and in their implementation, of course, he wasa candidate opposing Shri Radhey Shyam Morarka and was associatedwith Birla concerns and as an assistance to him in election was inaccord with their general policy and plan of defeating Shri RadheyShyam Morarka, he was allowed to have his say but it cannot beaccepted that it was he who exclusively directed the policy and that heacquired effective dominion over the funds contributed by the Birlaconcerns to meet the expenses of the employees. The case of the Birlaconcern sparing their officers and employees is comparable with the caseof Rananjaya Singh v. Baijnath Singh and others (14) where afather spared his employees in connection with the election of hisson. In R. M. Seshadri v. G. Vasantha Pai (2) by a chain ofcircumstances a finding was arrived at that the appellant Seshadriincurred expenditure on the hiring of cars from Kumaraswamy Garage.Of course, in response to Seshadri's contention that his accounts do notshow any payment for the hire of the cars, it was observed, "It is notpossible for any one to say how Seshadri, if he was willing to pay forthe cars, would have procured the money". Seshadri's non-appearancein evidence was also examined. The case turned upon its own factand the petitioner's counsel cannot derive much help in the presentcase. Besides, it is not clear whether the Birla concerns themselvesbore the expenses or they were not out by Swatantra party out ofthe funds received as contributions though from the Birla concerns.

The position with regard to the item of Rs. 25,000 paid to M/sBrijlal Ramgopal has already been considered and no further discussionwith reference to Birla concerns or Swatantra party is necessary.

The respondent's liability is sought in respect of an amount ofRs. 1,50,000 sent by the "Caco" to Thakur Raghuvir Singh, Chief

MAGRAJ V. RADHA KR1SHAN BIRLA [VOL. XLI

Organiser, Jhunjhunu District Swatantra Party. The petitioner'scounsel relied upon the contents of Ex. P.W. 14/5 and Ex. P.W.42/6, particularly the portion stating that "get these jeepsimmediately in the account of or various officers and the financeshould be arranged as per our decision in Pilani." According to him,ohn Radha Kishan Birla being a party to the finance decision and theexpenditure being in connection with his election, he should be heldliable for the amount. In the first instance, the petitioner did not comeforward with any case of any expenditure having been incurred uponthe purchase of vehicles. The amount on his own showing, beingspent in connection with the purchase of vehicles, he cannot be allowedto set up a new case. Secondly, it is not possible to arrive at a findingthat the respondent had any effective dominion over this amount. Theamount was contributed by the "Gaco" to the Swatantra party andwas spent through the Swatantra party. It may be significant to pointout that although primarily interested in the parliamentary electionsthe members of the Birla family and the senior top executive officersof the Birla concerns could not remain indifferent to the electionsm the Assembly constituencies on account of their evident interaction.From the documents in files A & B relied upon by the petitioner itappears that the Assembly candidates also were consulted. The peti-tioner himself came forward with a case that at the instance of ShriMoolchand Katewa—an Assembly candidate—'payments on account ofpetrol charges were made, although this has not been heldproved. Even in the correspondence, there is reference to the require-ments of jeeps for the assembly candidates. I have already held thatthe Swatantra party did not spend the entire money exclusively for therespondent, although the respondent's candidature was given someweightage. The Swatantra party having spent the money, it cannotbe accepted that the respondent acquired dominion over the fundsso as to justify an inference of the expenditure having been authorisedby him.

While disucssing the various items of expenditure I recorded anopinion that the expenditure must have been incurred on petrol andpetroleum products for the vehicles used and on repairs either by theBirla concerns or by the Swatantra party but on the basis of the law,I am not prepared to reach a conclusion that the respondent must bedeemed to have authorised all these expenses. I also held that theSwatantra party incurred Rs. 33,1611 on publicity including paymentsto Birla Ship Shala & Yamuna Printing Press. There are many postersand pamphlets exlusively for the respondent but there is no proof oftheir having been printed and the extent of their publication and theextent of expenditure. It may be that the Swatantra party might havespent the amount on those posters and pamphlets out of this amountbut the respondent cannot be held liable as be cannot be said tohave acquired any dominion over the funds. The swatantra partymight have its own plans and policies in incurring the expenditure.Besides, the evidence is too general and vague to arrive at conclusionsas to the specific amounts on printing & distribution of particular posters.and pamphlets. I, therefore, cannot hold the respondent liable in respect

E.L.R.] MAGRAJ V. RADHA KRISHAN BIRLA 333;

of any expenses alleged to have been incurred by the Birla concernsor the swatantra party. Issue No. 2 is decided against the petitioner.

Issues Mos. 3, 4, 5 and 6

[The Court considered the evidence in respect of these issues andafter deciding them against the petitioner, continued].

Issue Mo. 7

Having regard to the findings on earlier issues, this issue is decidedin favour of the respondent.

Issue Mo. 8

This issue does not call for any decision firstly, because the res-pondent's election is being upheld and secondly, because the additional"prayer for a declaration in favour of the respondent No. 1 Shri RadbeySbyam Morarka has been withdrawn.

Issue Mos. 9 and 10

It is now unnecessary to decide issue nos. 9 and 10, the other issueshaving already been decided on merits.

In the result, the petition is dismissed.

I had some difficulty in regard to a proper order as to costs Istrongly feel that the petitioner had been under serious handicaps inthe conduct of the case. A very leading and important role was plavedin the election by the members of the Birla family and the senior executivesof the Birla concerns residing out of the State and at different placesin India. The peitioner was keen to bring on record their evidenceas also the records of the Birla concerns. He cited them as witnessesbut could not be successful in bringing their evidence on record onaccount of their residence outside the State and at several different anddistant places. The respondent also cited them as his witnesses andalthough he was expected to be in a better position to get their evidenceon record, he also did not bring their evidence on record. He remainedsatisfied with examining other witnesses but I was not much impressedby the nature and quality of their evidence. The respondent madea number of denials which I have not been able to accept and annredate. ^P

If I had any discretion- in the matter, I would not have allowedcosts to him. I am, however, faced with section 119 of the act whichreads as follows :

"119, Costs.—Costs shall be in the discretion of the Hie-hCourt ; °

.334 MAGRAJ V. RADHA KRISHAN BIRLA [VOL. XLI

Provided that where a petition is dismissed under clause (a)of section 98, the returned candidate shall be entitled to the costsincurred by him in contesting the petition and accordingly the HighCourt shall make an order for costs in favour of the returned can-didate."

The proviso appears to leave no discretion to the Court in the matterof the costs of the returned candidate where a petition is dismissed underclause (a) of section 98 of the Act. I am of the opinion that the questionof costs being a matter falling under the procedural law, the Courtought to have some discretion in the matter to be exercised, havingregard to the conduct of the parties ; the manner in which the procee-dings are conducted and the nature and quality of the evidence produced.It may also be mentioned that once an election petition is filed, thepetitioner ceases to have any effective control over its termination toavoid his own costs and the liability for the costs of the respondent.He may apply for withdrawal of the election petition but the Courtmay permit him to do so and may equally refuse to do so. In the lattercase lie is expected to continue the proceedings and to continue furthercosts by himself as also by the lespondent. It is remarkable that theCourt having some discretion in the matter of the costs to be incurredby the petitioner and bis liability for the costs of the respondent at somestage should have absolutely no discretion at a later stage, while dis-missing the petition under section 98(a) of the Act.

The Legislature may of course guide and to an extent regulatethe discretion in the matter of costs but it cannot ordinarily be intendedto eliminate discretion altogether. I had at one stage thought of con-struing the rule contained in proviso to section 119 of the Act to bemerely legislative guidance-line and directory and not mandatory andimperative eliminating Courts' discretion altogether, but I hesitateto do so, having regard to the observations of the Supreme Court inAmarnath's case (5). I am, therefore, constrained to direct that thepetitioner shall pay to the respondent costs (1) on account of the counsel-fee assessed accordingly to the High Court Election Rules ; (ii) incurredin connection with those witnesses •who were summoned through theCourt and appeared in Court in compliance with the summonses andexamined. The respondent shall not be entitled to any costs in respectof other witnesses.

The office will take steps to immediately intimate the substance ofthe decision to the Election Commission and the Speaker of the Houseof Parliament and to send to the Election Commission an authenticatedcopy of the decision as soon as possible.

Petition dismissed

5E.L.R.] DEVIPRASAD V. MALURAM SINGHANIA 3 3 5


DEVIPRASAD

V.

MALURAM SINGHANIA AND OTHERS

(J. G. SHAH, V. RAMASWAMI & Ai N. GROVER, JJ)

February 21 1969

Representation of the People Act, 1951, Ss. 123, 127, Corrupt Practice - proof of.

The appellent, the defeated candidate, filed a petition to set aside the electionof respondent No. 1, on the grounds (j) that respondent No. 1,his agents and workers had committed corrupt practice of•publication of false statements in relation to the personal character and conduct ofthe appellant; and (2) 'hat hn issued pamphlets appealing to the Hindu electorsto vote for him on grounds of race, community and religion and refrain fromvoting for the appellant on the ground that he supported cow-slaughter which wassinful according to Hindu Religion. The High Court dismissed the petition andin appeal the Supreme Court.

HELD : The appellant had failed to establish the corrupt practices and theappeal must therefore be dismissed.

The proceedings involving corrupt practices are quasi-criminal in nature andit is for the appellant to prove beyond doubt all the necessary facts which wouldestablish th" commission of corrupt practices that have been alleged in the electionpetition. The fact that a candidate functioned as the Chief Editor of a paperprinted in a Press would barely be sufficient to establish that he was the owner ofthe Press as well. In the absence of any other evidence the fact that the pamphletsand hand bills amounting to corrupt practices were printed in sUch a press alonewould not be enough to hold that they were printed and distributed with the consentof the candidate or his election agents. Absence of a copy in the file of theCollector, kept under Section 127 of the Act, would not go to show that thecandidate in whose favour the pamphlets were issued was responsible for theirpublication and thereby committed corrupt practice under the Act.

Civil Appeal No. 871 (NCE) of 1968.

S. V. Gupte, V. K. Sanghi and A. G. Ratnaparkhi for the Appellant.

P. Ram Reddy, P. C. Naolekar and S. S. Khanduja for respondent No. 1.

JUDGMENT

Grover, ^ J.—This is an appeal from a judgment of the MadhyaPradesh High Court at Jabalpur dismissing a petition filed by thedefeated candidate Devi Prasad under ss. 80 and 81 of the Repre-sentation of People Act, 1951 (Act 430^951), hereinafter calledthe "Act" challenging the election of Maluram Singhania, respon-dent No. 1, the successful candidate from the Birendranagar Con-stituency in the State of Madhya Pradesh.

The election was held on February 16, 1967. Out of the fourrespondents, respondents Nos. 3 and 4 withdrew their nomination

336 DEVIPRASAD V. MALURAM SINGHANIA [VOL. XIJ

papers and the election was contested by the appellant and the firsttwo respondents. The result of the election was declared on February2, 1967. The appellant got 14,465 votes. Respondent No. 1 obtained15,811 votes and was declared elected. The election petition whichwas filed in April 1967 was contested by the first respondent alone.The proceedings against the other respondents being ex parte, thepleadings of the parties will be presently noticed to the extent theyare relevant to the issues on which argument has taken place beforeus. In all nine issues were framed out of which the controversy in thiscourt has centred round issues nos. 2 and 3. These issues are in thefollowing terms :—

Issues Finding

'1.

DecidedofNo.

in favourrespondent

1 .

Not proved.

2. Whether the respondent No. 1 him-self or his agent and workers withhis consent published statements asgiven in Sch. No. 1 in the paper"Sanmarg" inExhs. P-19 P-20 P-12P-13 and P-23 and are these the falsestatements u/s 123(4) of the R. P.Act ?

3(a) Whether respondent No. 1, his agentsand workers with his consent madean appeal to Hindu electorates whoare orthodox innocent and illiterateto vote for him on the ground ofrace community and religion andrefrained them from voting for thepetitioner as detailed in Sch. I andSch. II of the petition and in Exhs.P-i, P-6, P-12 P-13, P-14, P-i6,P-17 P-18, P-21, P-26, P-28, andwere these statements false andamount to Corrupt practices u/ss.123(3) and 123 (4) of the R. P. Act ?and if not,

(b) whether the statements containedin Sch. I have materially affectedthe election ?" No.

The High Court decided these issues in favour of respondentNo. 1.

Before the relevant pleadings are noticed it may be mentionedthat the appellant was a candidate who had been sponsored by theCongress Party. Respondent No. 1 belonged to the Ram Rajya Parish adwhich was a recognised political party but since its recognition waswithdrawn respondent No. 1 was allotted the symbol "Rising Sun"as an independent candidate. According to para 6 of the petition,

E.L.R.] DEVIPRASAD V. MAtURAM SINQHANIA 337

respondent No. i had set up one printing press known as SanmargPress. He was also the Editor, Printer and Publisher of a Hindinewspaper known as "SAPTAHIK SANMARG" published by thatpress. It was alleged that the printing of th,e newspaper wasdone by respondent No. i through his servants and employees. Inpara 10 it was alleged that respondent No. i and his agents andworkers committed, with his consent, the corrupt practice of publi-cation of statement of facts which were false and which were believedto be false and were not believed to be true in relation to the personalcharacter and conduct of the appellant. These statements were con-tained in the paper Sanmarg and in the election bulletin set outin Schedule i annexed to the petition. In para 11 it was stated thatrespondent No. i and his agents and workers, with his consent, madesystematic appeals to the Hindu electors to vote for him on groundsof race, community, religion and to refrain from voting for the appel-lant on the alleged ground that the latter supported cow-slaughterwhich was sinful according to Hindu religion. According to the appel-lant the constituency consists of villages inhabited by persons whoare generally illiterate and who are very orthodox in their views.They worship cow as God and consider the killing of a cow a highlysinful act. The statements which were false and mischievous, accordingto the appellant, were contained in the documents in Schedules i and2 annexed to the petition. In his written statement respondentNo. i asserted that the aforesaid corrupt practices bad not been com-mitted by him or by his agents and workers with his consent. Ac-cording to respondent No. i he had severed all connections withthe Sanmarg Printing Press and with the newspaper "SAPTAHIKSANMARG". The ownership of the press had been transferred onDecember 2, • 1966 toBajrang LallAgrawal who had filed the requisitedeclaration before the Sub-Divisional Magistrate, Raipur. A decla-ration dated November 4, 1966 had also been filed before the Addi-tional District Magistrate to the effect that the answering respondenthad severed all connections with the said newspaper. It was onlyby mistake that his name continued to be shown as Chief Editorafter November 4, 1966 en the newspaper. The allegation relatingto the appeal to Hindu electors to vote or refrain from voting on groundsof race, community or religion was denied. Respondent No. 1 evendenied that the villagers were orthodox in religion and worshippedcow as a god. The respondent emphatically denied that any suchpublication or bulletins bad been issued or published by him orhis workers and agents with his consent as alleged in the petition.

The High Court took up each one of the pamphlets and bulletinscontained in Schedule 1 by which, according to the appellant, res-pondent No. 1 had sought to make false a statement offacts relatingto his personal character or conduct and found that their publicationcould not be attributed to respondent No. 1. The question whetherrespondent No. 1 continued to be the owner of Sanmarg Press andwhether he was the Chief Editor of the newspaper during "the electionperiod was also fully considered. The High Court proceeded onthe basis that the Sanmarg Press bad been sold and transferred by

22—4 Elec. Gom./71

3 3 8 DEVIPRASAD V. MALURAM S1NGHANIA [VOL. XLI

respondent No. i as pleaded by him but he continned to be the ChiefEditor of the newspaper. The High Court dealt with the pamphlet(Ex. P. 20) on which a good deal of argument has been addressedbefore us. Th's pamphlet contained certain allegations about em-bezzlement by the appellant of an amount of Rs. 5,000 belongingto a cooperative society. The High Court found, inter alia, (i)there was no evidence to show when the pamphlet (Ex. P. 20) waspublished and by whom, (ii) No manuscript had been called foralthough BajarangLal Aggarwal R. W. 3 had deposed in his statementthat he maintained a record of the pamphlets published in his press,(iii) No shareholder of the cooperative society bad been producedto prove that the version of the appellant was correct, (iv) The con-tents of the pamphlet bad also not been proved. It is unnecessary torefer to other pamphlets contained in Schedule 1 which were relevantfor the purpose of deciding issue No. 2 because Mr. Gupte has notaddressed any argument on any other pamphlet with the exceptionof Ex. P. 20. The issue as stated before, was decided in favour ofrespondent No. 1 on the ground that the appellant had not beenable to prove that the alleged false statements had been made byrespondent No. 1 or his agents and workers with bis consent. Onissue No. 3 all that need be mentioned about the decision of the HighCourt is the finding relating to the handbill (Ex. 35) which bearsthe name of Sanmarg Press and which had been issued under tbename ofSwami Karpatriji. The beading of this handbill is "do notcast your votes in favour of murderers and thereby become a partyto the evil". It is with regard to this handbill that Mr. Gupte addressedus. This is what the Hign Court says about this pamphlet :

"Thispamphlet also suffersfrcm the same infermities and commentsas "foresaid. Tbf.re is no evidence to show that Swami Kar-patriji was publisher of this pamphlet. There is furtherno evidence to show that be was tbe agent of tbe respondentNo. 1. No evidence has been led to prove that this pamph'etwas published either with the consent of respondent No. 1or his election agent. The contents of this pamphlet alsohave not been proved."

The main question which has to be decided is whether the publi-cations on which Mr. Gupte has based his submission before uswere printed at the Sanmarg Press and whether respondent No. 1was the owner of that Press and the publication and printing wasdone with his knowledge and consent. On behalf of the appellantit has been pointed out that the two pamphlets or handbills Ex.P.-20 and Ex. 35 bear the name of Sanmarg Press from which itis obvious that they were printed there. In his statement as R. W. 1,respondent 1 denied that the pamphlets had either been printed orpublished or distributed by him. He, however, admitted that he hadgot some of his own posters printed at Sanmarg Press. But respondentNo. 1 maintained that he had sold the Sanmarg Press to BajrangLai on December 2, 1966 for Rs. 6,500 by means of a sale deed. Hehad filed a declaration before the Additional District Magistrate

E.L.R.] DEVIPRASAD V. MALURAM SINGHANIA 3 3 9

to that effect. Bajranglal also filed a similar declaration. He furtherstated that the Press which had been installed originally in his housecontinued to remain there even after its sale to Bajrang Lai who tookone room on rent from him. A rent deed had been executed on December2, 1966 by Bajrang Lai in his favour. As regards "SAPTAHIK SAN-MARG" newspaper, respondent No. i stated that the last issue waspublished in March 1967. According to respondent No. 1 he was nolonger editing the newspaper nor did he have any control overit. The explanation which respondent No. 1 gave for his name havingbeen shown as the Chief Editor was that it was published wronglyas he had given a declaration in November 1966 that he had ceasedto be the Chief Editor. In cross-examination respondent No. 1 statedthat he was unable to say whether all the pamphlets had been printedin Sanmarg Press. He had called Bajrang Lai who was his brotherin law as his witness but had not asked him to bring any recordsto show as to what pamphlets were printed in his Press. He deniedhaving met Bajrang Lai during the election days. Bajrang Laiappeared as R. W. 3. He deposed that Sanmarg Press had been soldto him by respondent No. 1 on December 1, 1966 and he filed a de-claration under the Press and Registration of Books Act, 1867 on thefollowing day before the Sub-Divisional Magistrate, Raipur. Hefurther stated that although he had taken the Press for his businesshis cousin Shambu Dyal Singh started looking after it. The "SAP-TAHIK SANMARG" newspaper was printed in his press on behalfof Dharam Singh. As his cousin was looking after the press he didnot know what pamphlets and posters were being printed there andwho got them published. On July 1, 1967 he sold the press to JaiNarain Srivastava ot Rajnandgaon for Rs. 7,000. The followingpart of his statement in his cross-examination may be reproduced :

''I was informed by my cousin brother that whosoever get sany pamphlet or poster published one or its copy was sentto the District Magistrate. I did not ask him that if thecustomer is not known to the authorities of the Press whethertwo persons are required to identify him. I do not knowwhether respondent No. 1 got any pamphlet published fromSanmarg Press. Respondent No. 1 met me one day on theroad either in the month of July or August and he madean enquiry regarding the publication of pamphlets andI told him that after seeking the manuscript I will let himknow, but afterwards I remained busy in my work andnothing happened. I told him that the manuscript fileis at my house, but I did not show him. My village is at adistance of 24 miles from Raipur. I did not ask him to cometo my house and to see my file. I have not seen the manu-script I cannot say whether there is any signature of MaluramSinghania on any of the manuscript. I did not care to seethe bill or the receipts which I have destroyed. The presswas doing other miscellaneous work which entrusted to it.When respondent 1 met me on the road, by that time thepress had already closed working."

340 DEVIPRASAD .0. MALORAM SINGHANIA [VOL. XLI

The contention of Mr. Gupte is that the entire story about thesale of the Press to Bajrang Lai was false and had not been substan-tiated. It is pointed out that the Press admittedly was acquired byrespondent No. i only some months before the elections were to takeplace. He purported to transfer it to Bajranglal in December 1966because by that time he knew that he would be making use of thePress for all kinds of publications which might bring him within themischief of the provisions of the Act. He therefore, thought of os-tensibly transferring the Press to Bajrang Lai who was his brother-in-law. A great deal of emphasis had been laid on Bajrang Laihaving disclaimed any active connection with the working of thePress after he had acquired it as on his own statement it was ShambuDayal Singh, his cousin, who started managing the Press. The otherfacts which, according to Mr. Gupte, conclusively establish thefictitious nature of the transfer or sale of the Press, inter alia, are thatno sale deed was produced nor were the books of account producedeither by respondent No. 1 or by Bajrang Lai and that respordentNo. 1 continued to be shown as the Chief Editor of the newspaperwhich was also being published by the Sanmarg Press. An applicationhad been filed on behalf of the appellant on December 12, 1967before the High Court asking for the producticn of account booksand documents including the manuscript relating to the impugnedhandbills. In reply to that application respondent No. 1 stated thatthe Press had been transferred to Bajrang Lai on December 2, 1966and, therefore, he was not in possession of any account books relatingto the same, Respondent No. 1 was a money lender and he only main-tained a loan account of his debtors as required under the C. P. moneyLenders Act. He did not do any business nor did he have any accountbooks relating to cultivation of lands. As regards the account booksof Bajrang Lai, it was stated that they were not in possession of res-pondent No. 1 and he did not know whether the former maintainedany books of account. An objection was also taken that the applicationof the appellant under O . n , Rule 12, of the Civil Procedure Codewas highly belated. The High Court disposed of the appellant's appli-cation by an order dated December 15, 1967. According to thisorder the court had made a direction on July 24, 1967 that in casethe parties wanted to avail and make use of the provisions of O • 11,R. 12, C. P. C , they should take suitable steps but this had notbeen done.

Now the appellant had filed an application on December 12,1967 when his evidence was to start on the following day. Actuallyhis evidence concluded on December 15, 1967. The court gave tworeasons for dismissing the appellant's application. The first was thatthe application was highly belated and the second was that accordingto respondent No. 1 all the documents required by the appellant wereneither in his possession nor in his power. That is what the learnedJudge said :

"Shri Pandey has not been able to tell me under what provisionof law Bajranglal, a witness of respondent No. 1, can be

3S.L.R.] DEVIPRASAD C. MAtURASt SINGHANIA 341

asked to bring those papers and I do not think myself thatthis is possible."

Mr. Gupte says that it was for respondent No. i to have producedall the relevant documents including his books of account in orderto sustain his plea that he had transferred the Press to Bajrang Laiand after the application under O n , R.12, had been made by theappellant, the respondent when he appeared as his own witness, shouldhave produced the required books of account. As it had been arguedbefore us that the High Court was in error in considering that therewas no provision of law under which Bajrang Lai, a witness ofrespondent No. 1, could be required to bring the account booksmanuscript etc. we made an order on January 6, 1969 containing adirection to Bajrang Lai to produce the account books and to bepresent in court at the next date of hearing of the appeal. Bajrang Laihas appeared before us and has produced his account books in whichal) the relevant entries relating to the transfer of the Press are to befound. But without admitting any additional evidence we are satis-fied from the statements of respondent No. 1 and Bajrang Lai coupledwith the declaration (Ex. D-2) made by Bajrang Lai before the Sub-Divisional Magistrate, Raipur that respondent No. 1 had sold thePress to him in the beginning of December 1966. A reference at thisstage may be briefly made to the relevant provisions of the Pressand Registration of Books Act 1867. The word "book" accordingto s. 1 includes a pamphlet. "Newspaper'' means any printed perio-dical work containing public news or comments on public newsand "paper" means any document, including a newspaper, otherthan a book. Section 3 provides that every book or paper shall haveprinted legibly on it the name of the printer and the place of printingand if the book or paper be published the name of the publisher andthe place of publication. Under s. 4 no person shall keep in hispossession any press for printing of books or papers who shall nothave made and subscribed the prescribed declaration before theDistrict, Presidency or Sub-Divisional Magistrate within whoselocal jurisdiction such Press is kept. As regards the newspaper,under s. 5, the names of the owner and editor have to beprinted clearly on each copy. The printer and publisher have to makethe prescribed declaration. Under sub-s. 2(5) of s. 5 as soon asthe ownership of the newspaper is changed a new declaration hasto be made. Under s. 8 a new declaration has to be made by thepersons who have signed a declaration and subsequently ceased tobe printers and publishers of a newspaper. Section 8A enables aperson whose name has been incorrectly published as editor to makea declaration to that effect before a Magistrate. Section 13 pro-vides punishment for a person who keeps in his possession any Pressin contravention of the provisions of the aforesaid Act. Section 14deals with punishment for making a false declaration. It is thusclear that Bajrang Lai was running a substantial risk in making a de-claration that he was the owner of the Press if later on it was foundthat his declaration was false. As regards the non-production of thebooks of account by respondent No. 1 it has not been proved that

3 4 2 DEVIPRASAD V. MALURAM SINGHANIA [VOL. XLI

he was maintaining such books in which entries about the transferof the Press would have been made. On his own statement whichhas not been controverted he was maintaining books only with re-gard to his money lending business. The fact that respondent No.icontinued to function as the Chief Editor of the newspaper "SAP-TAHIK SANMARG" would barely be sufficient to establish thathe was the owner of the Press as well after Decembei 2, 1966.

Once it is found that respondent No. 1 was not the owner of theSanmarg Press the task of the appellant to establish that the impugnedpamphlet and the handbill were published by him or with his consent andknowledge at the Sanmarg Press becomes fairly difficult. But Mr. Guptehas contended strenously that the association of respondent No. 1 withthe Sanmarg Press was very close as Bajrang Lai happened to be hisbrother-in-law and the newspaper of which respondent No. 1 was theChief Editor was being admittedly published there. The pamphlet andthe handbill also bore the name of the Sanmarg Press as the Pressat which the printing had been done. It is pointed out that if theCase of respondent No. 1 was that these publications had not beenprinted at the Sanmarg Press and someone had got them printedsome other Press but had deliberately and intentionally got the nameof Sanmarg Press printed for ulterior motives such a case shouldhave been made out on behalf of respondent No. 1 before the HighCourt. He has also sought to refer to the evidence relating todistribution of these pamphlets. Much stress has been laid on thefact that the statements contained in the impugned publicationswere meant to promote the chances of election in favour of respon-dent No. 1. From all these it has been argued that the printingof the impugned publications was done at the Sanmarg Press fromwhich it must be inferred that respondent No. 1 was fully aware ofthem and had given his consent to their publication and subsequentdistribution. We are unable to agree that even on the assumptionthat the impugned publications bore the name of Sanmarg Press,respondent No. 1 can be held to be responsible for the same.For the reasons given by the High Court we concur in its viewthat the pamphlet Ex. P. 20 and the handbill Ex. 35 have not beenproved by the appellant to have been published by respondent No. 1himself or by his agent and workers with his consent. The evidence re-lating to distribution is also not satisfactory nor it is sufficient toshow that the distribution had been done at the instance of res-pondent No. 1. It must be remembered that the proceedings invo-lving proof of corrupt practices are of a quasi-criminal nature andit was for the appellant to prove beyond doubt all the necessary factswhich would establish the commission of the corrupt practices thathave been alleged in the election petition.

It may be mentioned that under the provisions of s. 127 ofthe Act no person shall print or cause to be printed any electionpamphlet or poster unless a declaration as to the identity of the publi-sher signed by him and attested by two persons is deliveredby him to the printer in duplicate and unless within a reason-able time after the printing of the document one copy of the

E.L.R.] H. V. KAMATH V. CH. NIT1RAJ SINGH 343

declaration is sent by the printer together with one copy of thedocument to the Chief Electoral Officer where the" printing has beendone in the capital of the State or to the District Magistrate of thedistrict in which it is printed. At the suggestion of counsel we dire-cted in our previous order dated January 6, 1969 that the Collectorof Raipur be summoned and asked to produce before us the file con-taining the copies of handbills or pamphlets printed at the SanmargPress between December 1, 1966 and February 16, 1967. That filehas been duly produced before us and it does not contain the cop-ies of the pamphlet Ex. P. 20 or the handbill Ex. 35. Nothing muchmay turn on the absense of these copies but since the file had beensent for and has been produced before us we have considered itnecessary to mention this matter.

No other point having been raised before us this appeal failsand it is dismissed with costs. The travelling and other incidentalexpenses of the Deputy Collector and Bajranglal may be deducedout of the security for costs deposited by the appellant in this court.

Appeal dismissed.


H. V. KAMATH

V.

CH. NITIRAJ SINGH

(S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.)

February 24, 1969

Representation of the People Act, 1951, s. 123—Returnd candidate's party in powerprior to election—Government issuing Ordinance benefiting certain agriculturists—grantingallowances to Government employees—Dummy ballots omiting unsuccessful candidates electionsymbol—Whether amounts to corrupt practice.

The respondent, a congress candidate, was elected to Parliament from theHoshangabad Parliamentary Constituency. The appellant challenged his electionon the ground that various corrupt practices were committed. It was alleged (i)that the Government of the State where the Congerss party was in power grantedexemption through issuing an ordinance in the payment of land revenue onholdings by certain agriculturists just prior to the election; this was done althoughthe exemption had been claimed for sometime by the opposition parties ; (ii)the State Government announced an increase in clearness allowance to certainGovernment employees just before the election ; that (iii) the respondent or hisagents distributed dummy ballot papers with the respondent's name and his elec-tion symbol, and also giving the appellant's name but without his election symbolprinted thereon, thereby conveying an impression that the appellant had withdrawnhis candidatuie ; it was alleged that the respondent and his agents on the eve of

'344 H. V.' KAMATH V. CH. NITIRAJ SINGH [VOL. XLI

the election told the voters that the. appellant had withdrawn and had committeda corrupt practice under s. 123(4) ; and (iv) that a member of the police forcewith the consent of the respondent actively canvassed for the respondent, therebycommitted a corrupt practice under s. 123(7). The High Court rejected the pe-tition. Dismissing an appeal to the Supreme Court,

HELD :

(i) On the evidence, it could not be held that the respondent committed acorrupt practice under s. 123(1) (A.) The ordinance was passed by the State Go-vernment. Although as a result of the ordinance a large number of agricultu-rists got exemption from land revenue, such an exemption did not amount toa gift, offer or promise of any gratification within the meaning of s. i23'i)(A) norwas it possible to say that the Government was the agent of the respondent. The Con-gress Parts was then in power. But the exemption was not given by the Congress Party.It was given by the Ordinance which was passed by the Government.

(ii) The grant of the increased dearness allowance could not be regarded as a gift,offer or promise of any gratification within the meaning of s. 123(1) (A) nor it was pos-sible to say that the Government or the Chief Minister who had announced the increasewas the agent of the respondent. The employees of the Government had given noticeto go on strike a week before the election and without their cooperation the entire elec-tion would have been at a standstill. The Government thought that the demand of theemployees was legitimate and therefore made the announcement on the eve of the elec-tion to that demand.

(iii) Although the dummy ballot papers were in contravention of the instructionsissued by the Election Commission and the appellant's name should not have beenprinted in them, it was impossible to say that the dummy papers conveyed to the votersthe impression that the appellant had withdrawn his candidature. It was not possibleto accept the testimony of the appellant's witnesses that on the eve of the election therespondent and his agents informed the voters that the appellant had withdrawn hiscandidature. The voters knew that there were two candidates in the field and the res-pondent had carried on a vigorous election propaganda till the last day.

(iv) On the evidence the charge that a member of the police force canvassed forthe respondent was not established.


K.A. Chitaley, Y, S. Dharmadhikari, S. S. Khanduja and K. B. Rohtagi, for theAppellant.

G.N. Dikshit, for the Respondent.

JUDGMENT

BAGHAWAT, J.—This appeal is directed against the judgment ofa Single Judge of the High Court of Madhya Pradesh dismissingan election petition for setting aside the election of the respondentChaudhury Nitiraj Singh to the Hoshangabad Parliamentary Con-stituency No. 27. The appellant was the Praja Socialist Party can-didate with the election symbol "hut". The respondent was theCongress Party Candidate with the election symbol "Two bullockswith yoke on". The voting took place on February 20, 1967. Thevotes were counted on February 21 and February 22, 1967. Therespondent having got a majority of about 20,000 votes was declaredduly elected. The petition charged the respondent with several

:E.L,R.] H. V. KAMATH V. CH. NITIRAJ SINGH 345

corrupt practices. The appellant now presses before usonly the chargeunder paragraph 5 (i), (ii), (ill) and (iv), paragraph 5(v), paragraph 6and paragraph 7 (ii).

At the time of the election, the Congress Party, was in powerand the Chief Minister Shri D. P. Mishra belonged to the CongressParty. In November 1966 the respondent was nominated by theCongress Party as its candidate for the Hoshangabad ParliamentaryConstituency. The substance of the Charge as made in paragraph5(i), (ii), (iii) and (iv) and as pressed before us is that on December 23,1966 the Government of Madhya Pradesh headed by Shri D. P. Mishrapromulgated an Ordinance no. 19 of 1966 exempting agriculturistsholding land less than 7.50 acres or paying land revenue not exceed-ing Rs. 5 from payment of land revenue, that Shri D. P. Mishraas the agent of the respondent and with his consent made speeches atNarsinghpur and Piparia on February 16, 1967 announcing thebenefit of such exemption and that the respondent thus committedthe corrupt practice under s. 123(1) (A) of the Representation of thepeople Act. 1951. The evidence shows that the question of exemptionof non-economic holding from payment of land revenue was beingagitated for some time past. Towards the close of 1966 a resolution wasmoved by the members of the opposition parties in the Madhya PradeshVidhan Sabha urging such exemption. But no bill to that effect wasthen passed. The Government reconsidered the matter and when theVidhan Sabha was not in session it passed Ordinance No. 19 of 1966granting the exemption. The Ordinance was later replaced by Act No.6 of 1967 which was published on April 26, 1967. The exemptionwas advocated by the Praja Socialist Party also and was welcomed byall parties. Nevertheless on the eve of the election the oppositionparties started a campaign stating that the object of the exemptionwas to forfeit the land to the State and raised the slogan "Lagen MaafTamin Saaf". The propaganda was refuted by the Congress Party.In an election speech on February 16, 1957 Shri D. P. Mishra raisedthe slogan "Lagan Maaf Sab Party Saff. His object was to tell thevoter that the exemption should be granted and that the oppositionparties should be routed in the election. It also appears that one ShriS. K. Dixit a member of the Congress Party published a pamphletEx. P--2 on or about February 7, 1967 refuting the false propagandathat the exemption was temporary and was granted with a view toforfeit the lands and urging the electors to vote fcr the congress.On the materials on the record it is impossible to hold that the respon-dent committed the corrupt practice under s. 123(1)(A). The Or-dinance was passed by the Government of Madhya Pradesh. Asa result of the Ordinance a large number of agriculturists got exemptionfrom land revenue. Such an exemption does not amount to a gift,offer or promise of any gratification within the meaning of s. 123(1)(A). Nor is it possible to say that the government was the agent ofthe respondent. It is true that the Congress Party was then in power.But the exemption was not given by the Congress party. It wasgiven by the Ordinance which was passed by the Government. Nor

3 4 6 H. V. KAMATH V. CH. NITIRAJ SINGH [VOL. XLF

does the announcement of the declaration at the meeting held on Febru-ary 16, 1967 or by the pamphlet Ex. P-2 carry the matter any further.On the materials on the record it is not possible to say that eitherShri D. P. Mishra or Shri S. K. Dixit acted as the agent of the respon-dent. The charge under paragraph 5(i), (ii), (iii) and (iv) is notestablished. Some additional ambellishments of the charge were dealtwith by the learned Judge and they were not pressed before us.

The substance of the charge as laid in paragraph 5(v) and as pressedbefore us is that on the eve of the election the Government of MadhyaPradesh headed by Shri D. P. Mishra declared that Class III andClass IV government employees would get increased dearness allow-ance from April 1, 1967 according to the rates sanctioned for CentralGovernment employees, that Shri D. P. Mishra with the consent ofthe respondent and as his agent announced the grant of these bene-fits at the meetings held on February 16, 1967 at Narsinghpur andPiparia and that the respondent thus committed the corrupt practiceunder s. 123(1)(a). It appears that Class III and Class IV employeesgave a notice to the government stating that they would go on strikewith effect from February 13, 1967. Without their cooperation the-entire election would have been at a stand still. The Governmentthought that the demand of the employees for increased dearness al-lowance was legitimate and therefore announced on or about February11, 1967 its decision to grant the increased dearness allowance witheffect from April 1, 1967. The grant of the increased dearness al-lowance cannot be regarded as a gift, offer or promise of any grati-fication within the meaning of s. 123(1) (A) nor is it possible to say thatthe Government or Shri D. P. Mishra was the agent of the respondent.The announcement of the grant of the increased dearness allowanceat the meeting held on February 16, 1967 does not carry the matterany further. The charge under paragraph 5(v) is not established.

The charge under paragraph 6 is that the respondent or his agentdistributed dummy ballot papers with the respondent's name and hiselection symbol of "Two bullocks with yoke on" and, also the appel-lant's name without his election symbol printed thereon, that thesepapers conveyed to the voters the impression that the appellant hadwithdrawn his candidature, that the appellant and his agents on theeve of the election told the voters that the appellant had withdrawnhis candidature and that the respondent thereby committed the corruptpractice under s. 123(4). The evidence shows that dummy ballotpapers as mentioned above were printed and distributed on behalfof the respondent. Such dummy ballot papers were in contraventionof the instructions issued by the Election Commission of India. Theappellant's name should not have been printed in them. But it isimpossible to say that the dummy ballot papers conveyed to the voters,the impression that the appellant had withdrawn his candidature..On this issue the appellant examined P.W. 6, P.W. 7, P.W. 10, P.W. 23,P.W. 25, P.W. 27, P.W. 29, P.W. 30, P.W. 31 and P.W. 32 and therespondent examined R.W. 2, R.W. 3, R.W. 11 and R.W. 13.In agreement with the learned Judge we do not accept the statementof the appellant's witnesses that on the eve of the election the respondent

E.L.R.] RAJAJU V. BRIJKISHORE PA1ERIA 3 4 7

and his agents informed the voters that the appellant had with-drawn his candidature. The voters know that there were two candi-dates in the field, viz., the appellant and the respondent. Even onFebruary 16, 1967 Shri D. P. Mishra stated that the appellant wascontesting the election. The respondent carried on a vigorous electionpropaganda until February 18, 1967. If the respondent or his agenthad informed the voters that the appellant had withdrawn his candi-dature it was not likely that such intensive propaganda would becarried on until that date. The charge under paragraph 6 is thereforenot established.

The charge under paragraph 7 (ii) was that Chaudhary DiwanSingh, the Station House Officer at Sohagpur, and a member of th&police force in the service of the government with the consent of therespondent actively canvassed for the respondent and that the res-pondent thereby committed corrupt practice under s. 123(7). Toprove this charge the appellant examined P.W. 3, P.W. 4 and P.W. 9.Chaudhary Diwan Singh and the respondent denied the charge.For the reasons given by the learned Judge, it is impossibleto accept the testimony of P.W. 3, P.W. 4 and P.W. 9.Their evidence does not ring true. P.W. 3 never spoke to anybodythat he was asked by Chaudhary Diwan Singh to vote for the respondent.It is not likely that Diwan Singh would approach P.W. 4. It is im-possible to believe that P.W. 9 could overhear a conversation betweenDiwan Singh and the respondent when the respondent is said to haveasked Diwan Singh to canvass for him. The charge under paragraph7(ii) is also not established. In the result, the appeal is dismissedwith costs.

Appeal dismissed.


RAJAJU

V.

BRIJKISHORE PATERIA & ORS.

( J . C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.)

February 25, 1968

Ballot Papers—Recount—Principles governing. Conduct of Election Rules, 1961S. 56(2). second proviso—if applicable.

In his election petition challenging the election of respondent No. 1, theappellant alleged that in certain polling stations a large number of votes cast•n favour of the appellant had been improperly rejected on the ground that the

"348 RAJAJU V. BRIJKISHOBE PATERIA [VOL. XI.I

billot papers did not bear any mark. These ballot papers should have beencounted as valid votes as they were covered by the second proviso to Rule 56(2)of the Conduct of Election Rules, 1961. Further the ballot papers accepted asvalid votes in favour of respondent No. 1 contained a large number of ballotpapers which had a double mark and the Returning Officer applied a doublestandard in judging the validity of ballot papers. According to the appellantthe Returning Officer should have allowed a total recount of the ballot papersof all the polling stations. The High Court came to the conclusion that nosatisfactory evidence had been produced by the appellant to substantiate theallegations made in respect of any mistake or discrimination on the part ofthe officers concerned in the counting of votes nor had any prima facie case been madeout for ordering a total recount. Dismissing the appeal to the Supreme Court,

HELD :

(i) The appellant had not substantiated his allegations.

(ii) In the light of the principles laid down in Dr. Jagjit Singh v. GiantKartar Singh the prayer for a total recount was rightly not entertained bythe High Court.

Dr. Jagjit Singh v. Giani Kartar Singh, A.I.R. 1966 S.C. 773; referred to

CIVIL APPEAL NO. 1181 (NCE) OF 1968.

P. Ramareddy, L. S. Bighel, S. S. Parikh and S.S. Khanduja, for the Ap-pellant.

G. L. Sanghi and A.G. Ratnaparkhi, for Respondent No. 1.

JUDGMENT

GROVER, J.—This is an appeal from a judgment of the MadhyaPradesh High Court dismissing a petition filed under ss. 80 and81 of the Representation of People Act 1951 challenging the electionof respondent No. 1 from the Bina legislative assembly constituencyof Madhya Pradesh and for a declaration that the present appel-lant be declared to have been duly elected.

The appellant and respondents Nos. 1 to 3 contested the assem-bly seat in the last general elections held in February 1967. TheThe appellant was a candidate of the Bhartiya Jan Sangh partyand the first respondent was a candidate of the Congress party.The election took place on February 20, 1967 and the result wasdeclared on February 22, 1967. The appellant polled 15,892 voteswhereas respondent No. 1 got 15,970. He was thus declared electedby a majority of 78 votes. It is not necessary for the disposalof the present appeal to refer to all the grounds on which theelection was challenged because the controversy before us has beenconfined to two issues i.e. 6 and 7. A question will also arise, whichis covered by issue No. 8, whether a case for ordering a total re-count had been made out.

In para 3 of the petition it was alleged that the result of theelection of respondent No. 1 had been materially affected by theimproper reception, refusal and rejection of votes and/or receptionof votes which were void and by non-compliance with the provisions

E.L.R.] RAJAJU V. BRIJKISHORE PATERIA 349 :

of the Act and the Rules made thereunder. We are concernedonly with sub-para (D) of para 3 for the purpose of decidingthe contention raised under issue No. 6 In that sub-para it wasalleged that in the polling stations the list of which was givena large number of votes cast in favour of the appellant had beenimproperly rejected on the ground that the ballot papers did notbear any mark. In fact the ballot papers did bear marks indicatingthat they were cast in favour of the appellant though the marks wereindistinct. These ballot papers should have been counted as validvotes as they were covered by the second proviso to Rule 56(2)of the Conduct of Election Rules 1961. The number of pollingstations the names of which were given in this sub-para was 27.The total number of rejected votes was stated to be 1392 and thetotal number of votes rejected for "No Mark" was given as 217.In sub-para E of para 3, it was alleged that ballot papers castin favour of the appellant in the polling stations the names ofwhich were given were rejected on the ground that they boredouble marks. As a matter of fact most of the ballot papers did notcontain any real second mark but there was a second impression ofthe first mark resulting from the folding of the ballot papers. Theseballot papers should not have been rejected but should have beencounted as valid votes in favour of the appellant. The total numberof rejected votes was stated to be 1230 and the number of votesrejected for double marks was given as 261. Similarly in sub-para(F) it was alleged that in the polling stations the names of which wereset out, the ballot papers accepted as valid votes in favour ofrespondent No. 1 contained a large number of ballot papers whichhad double mark, one in favour of respondent No. 1 and the other,in favour of some other candidate or on the back of the ballotpaper. In most of them one mark was in red ink and the otherin blue ink. It was alleged that the Returning Officer applied adouble standard in judging the validity of ballot papers containingtwo impressions with different inks. The suggestion was that theywere rejected in the case of the appellant but were accepted so faras respondent No. 1 was concerned. The total number of votesin favour of respondent No. 1 as given in the petition polled from16 polling stations was 5042. It was next stated that the votes,which had been improperly accepted in favour of respondent No. 1in these polling stations came to 620. The total number of voteswhich were rejected was 824 out of which 140 votes which hadbeen cast in favour of the appellant were improperly rejected.

In his written statement respondent No. 1 denied that a largenumber of votes cast in favour of the appellant had been improperlyrejected on the ground that the ballot papers did not bear any markas alleged in sub-para (D) of para 3 of the petition. It was furtherdenied that the said ballot papers bore marks indicating that theywere cast in favour of the appellant. The number of rejected votesof the various polling stations mentioned in this sub-para wasadmitted. As regards the number of "votes rejected for no mark"it was stated that the number given was incorrect. Similar

3 5 0 RAJAJU V. BRIJKISHORE PATERIA [VOL. XLI

assertions were made with regard to the allegations contained in sub-para E. It was further pointed out that the appellant had failed toSpecify the number of such votes cast in his favour which borethe second impression of the first mark and were rejected on thatground. The rough estimate of the "votes rejected for doublemark" was described as baseless and incorrect. As regards sub-para F the respondent admitted the correctness of the names ofthe polling stations, the number of votes cast in his favour andthe number of votes which had been rejected but the remainingallegations were denied. It was pointed out that the appellant hadmade general allegations without specifying the number of ballotpapers containing double marks. He had further failed to specifyin how many of such papers one mark was in red ink and the otherin blue ink. It was denied that in the ballot papers which wereaccepted as containing valid votes in favour of the answering res-pondent any of the ballot papers contained double marks. It wasalso denied that all these ballot papers had one mark in red inkand the other, in blue ink or that similar ballot papers of the ap-pellant were rejected. The particulars of the votes alleged to havebeen improperly accepted in favour of the answering respondentand of the votes cast in favour of the appellant having been im-properly rejected were stated to be false and incorrect.

The only other allegation which may be noticed relates to the.claim made by the appellant before the Returning Officer ofa recount of the entire votes on the grounds raised in the two applica-tions Exhs. P. 13 and P. 12 made prior to the counting of votes on Feb-ruary 22, 1967. The Returning Officer made an order directingrecount of "doubtful ballot papers". He actually took out therejected ballot papers of 11 polling stations mentioned in para 4of the petition and when he found that 14 ballot papers initiallyrejected as invalid were in fact valid and out of these 3 were in favourof the appellant the rest, in favour of the other contesting candidateshe stopped the recount and finally declared the result. According to theappellant the Returning Officer should have held a recount of allthe ballot papers of 66 polling stations, or, at any rate he shouldnot have declared the result before completing the recount. Inhis written statement respondent No. 1 averred that the limitedrecount which had been ordered by the Returning Officer wasjustified since the objections of the appellant were directed onlyagainst the rejected votes. According to respondent No. 1 the ap-pellant had not made out any case for a recount. It was stated thatbefore the actual counting commenced the Returning Officer hadgiven specific instructions in the matter and had made it clear that ifanyone was aggrieved by the decision of the counting authoritieshe could at once appeal to the Returning Officer. The appellant didnot raise any objection at the time of counting. He only raisedthe objection after the total votes polled by the appellant as alsoby the respondents had been declared. According to respondentNo. 1 the entire rejected votes had been re-checked. It was denied

:that the appellant had made out a case for a general recount

E.L.R.] RAJAJU V. BRIJKISHORE PATERIA .351

The following issues which alone are relevant for the purpose.of this appeal were framed by the High Court :

"6 (a) Whether some of the votes cast in favour of the petitionerwere improperly rejected on the ground mentioned in para3(D) of the petition?

{b) If so, what is the effect of such rejection?

7 (a) Were some of the votes cast in favour of the petitionerrejected on the ground of there being double marks or markswith two inks on them as alleged in para 3(E) and (F)of the petition ?

(b) If so, what is the effect of these rejection?

8(c) Is a case of a complete recounting made out?"

On issues 6 and 7, the High Court referred to the evidencewhich had been led including the statement of the Returning Officer,Dr. Ishwar Das R.W. 10 and the Assistant Returning Officer, Dhar-.mendra Nath R.W. 11. It was pointed out in the judgment thatin the application (Exh. P. 13) which the appellant submitted pray-ing for a recount the only grounds which were raised were thatsome ballot papers had been rejected as there was a faint mark ofseal on them similarly some ballot papers had been rejected as asecond mark of seal had been found on them owing to folding ofthe papers. No grievance had been made in respect of the rejectionof any ballot papers for the reason that they contained marks withtwo inks, red and blue. It was only in the election petition asalso during the evidence before the High Court that the story ofdiscrimination in respect of three matters on the basis of which thevotes were stated to have improperly rejected as developed. Theappellant admitted in his deposition in the High Court that thefigure of votes rejected on the ground that there was no mark orthat there were double marks had not been supplied to him byhis counting agents and he had taken these figures from the resultsheet and incorporated them in the petition. The High Courtcarefully went into the entire evidence on these allegations andaccepted the statements of the Returning Officer and the AssistantReturning Officer. The Assistant Returning Officer was positivethat no vote had been rejected by him on the ground of indistinctmarks. He had further stated that he did notice that the marksof the seal on some ballot papers were faint as compared withothers but he did not reject any vote on that ground. Similarlyhie came across some votes in which the second impression of the sameseal had been made due to folding or some other reason but thosevotes had been accepted as valid. According to this officer therewas not a single ballot paper which had marks with two inks, namely,red and blue or red and purple. After referring to some decided casesthe High Court came to the conclusion that no satisfactory evidencehad been produced by the appellant to substantiate the allegations

352 RAJAJU V. BRIJKISHORE PATERIA [VOL. XLr

made in repect of any mistake or discrimination on the part of the officersconcerned in the counting of votes nor had any prima facie case beenmade out for ordering a total recount.

Counsel for the appellant strenuously pressed the same groundin the petition on which issues 6 and 7 were framed. It was also urgedthat the margin of difference between the votes polled by respondentNo. 1 and the appellant was so small that any such mistake or irre-gularity which has been alleged would have materially affected theresult of the election so far as respondent No. 1 was concerned. Asthe allegations related mostly to the rejection of ballot papers on illegal,irregular and discriminatory grounds we considered it proper in theinterest of justice to direct that summons be issued to the Collectorof Sagar or the Election Officer of that district to produce on February4, 1969 all rejected ballot papers of the Bina Assembly constituencyelection held on February 1967. On February 4, 1969 after hearingcounsel for the parties further on the point an order was made by usin the following terms :

"Deputy Registrar to submit a report to this Court aboutthe rejected ballot papers and in submitting the report he willtake the assistance of the Election Officer who is present in thisCourt. The report will indicate whether there are any faintseal marks or the ballot papers are marked with ink of a colourother than the colour which is normally used or whether thereare double marks on the ballot papers. The report will be madein the light of issues 6 and 7 raised by the High Court.

The Deputy Registrar will submit to us with the report certainsample ballot papers bearing either faint marks or marks in colourdifferent from the colour in which the markings were requiredto be made."

The Deputy Registrar submitted his report. He found thatthe sealed envelope containing the ballot papers of 66 polling-stations of Bina Assembly constituency did not contain the rejectedvotes in respect of polling station No. 3 (Bina Nagar GovernmentMiddle School). According to the allegation of the appellant insub-para D of para 3 of the election petition 10 ballot papersfrom this polling station had been wrongly rejected. The 65 bundlesof rejected votes were scrutinised by him with the assistance ofthe Election Officer. A tabulated statement in two parts wasprepared. Part I related to 27 polling stations mentioned in sub-paras (D), (E) & (F) of para 3 of the election petition. Part IIrelated to the remaining 38 polling stations which had not beenreferred to in the aforesaid pleadings. The result of the inspectionmade by the Deputy Registrar may be reproduced in his words :

"It was noticed that in two out of 65 polling stations exa-mined, the ink used was violet ink. These two pollingstations are No. 58 and 21. All the votes cast in thesetwo polling stations are marked in violet ink. In station

£.L.R.] RAJAJU V. BRIJKISHORE PATAR1A 353

No. 58, one vote (No. 53596) was found containing marksof both the inks (red and violet). It is understood thatnormal ink used is red.

A list of 27 votes is appended hereto as Schedule 'A'. Mostof them are doubtful and fall under the category of smudg-ing, but the following 5 votes seem to be in favour ofthe petitioner and 1 vote in favour of respondent No. 3,if no objection is taken to the violet ink :

Votes in favour of the Petitioner :Serial Nos. 3,6,13,22 and 24 of Schedule 'A'.

Votes in favour of the Respondent No. 3 :Serial No. 15 of Schedule 'A'.

Besides above 5 votes, the following 2 votes perhaps can also becounted in favour of the petitioner :

Serial Nos. 10 and 27 of Schedule 'A'

All others seem to have been properly rejected. Counsel forthe appellant has quite rightly and properly agreed that the resultof the inspection made by the Deputy Registrar of the rejected paperscould be of no avail to the appellant. It is quite obvious that theallegations which were made in sub-paras (D), (E) & (F) of para3 have not been substantiated.

Counsel for the appellant lastly laid stress on the questionof a general recount with reference to issue 8(c). According tohim several ballot papers which had been accepted ought not tohave been accepted for the reasons given in the election petitionand in particular sub-paras (D), (E) & (F) of para 3 of the petition.It was submitted that since the counting authorities were helpingrespondent No. 1, several ballot papers containing votes cast in hisfavour must have been accepted which ought to have been rejectedon grounds similar to those on which the ballot papers containingvotes in favour of the appellant were rejected. The High Court,on an appraisal of the evidence, did not accede to the suggestionmade on behalf of the appellant that the counting officers includingthe Assistant Returning Officer and the Rerunning Officer had shownany partiality to respondent No. 1 or had acted in any unfair orimproper manner. The High Court was satisfied that no primafacie case had been made out for a total recount. The principleson which an Election Tribunal may order a recount have beenres ta ted and re i te ra ted in Dr. Jagjit Singh v. f i) Giani Kartar Singh &Others and it is unnecessary to repeat them. We are satisfied thatin the light of those principles the prayer for a total recount, in thepresent case, was rightly not entertained by the High Court.

The appeal, therefore, fails and it is dismissed with costs.

Appeal Dismissed.

(1) A.I.R. 1966 S.C. 773.23—4Elec. Gom./71

354 RAM NATH V. GHHAJU RAM [VOL. XLI


RAM NATH

V.

GHHAJU RAM AND ORS.

( j . C. SHAH AND A. N. GROVER, JJ.)

March 6, 1969

Polling Stations—Opening of new polling stations—Principles for determining whetherresult of the election had been materially affected.

The election of Respondent No. 1 was challenged on the principal groundthat four new polling stations were opened two days prior to the polling in completedisregard of the statutory provisions of the Jammu & Kashmir Representation ofthe People Act, 1957; that the distribution of the electors in the matter of polling withregard to the aforesaid stations was so confusing that the electors did not know whereto cast their vote, and consequently the result of the election was materially affected.The High Court dismissed the petition holding that the result of the election hadnot been materially affected. Dismissing the appeal to the Supreme Court.

HELD : Even assuming there was some irregularity in the creation of the newpolling stations, the election could not be set aside unless it was established that theresult of the election had been materially affected by non-compliance with the statvitoryprovisions and the Rules.

The principles on which it has to be determined whether the result of the electionhas been materially affected have been laid down by this Court. The casting ofvotes in an election depends upon a variety of factors and it is not possible for anyoneto predicate how many or which proportion of the votes will go to one or the otherof the candidates. This question is one of fact and has to be proved by positiveevidence. In the present case the decision of the High Court was correct thatthe result of the election had not been proved to have been materially affected.

Vashist Narain Sharmav. DcvChandra & Ors. 1955 1 S.C.R. 509; Packai Hoackiv. Rishang,C.A. 683of 1968 dated 12-8-1968; referred to.

CIVIL APPEAL NO. 1965 (NCE) OF 1968.

R. N. Bhalgotra, S. S. Khanduja and S. S. Parikh, for the Appellant.

R. K. Garg, S. C. Agarwal, Miss S. Chakravarti and S. K. Agarwal, for Res-pondent No. 1.

JUDGMENT

GROVER, J.—This is an appeal from the judgment of the Jammu &Kashmir High Court dismissing the election petition which had beenfiled by the appellant challenging the election of respondent No. 1 fromthe Chhamb constituency to the legislative assembly of the State.

The appellant was a voter in the Chhamb assembly constituencyduring the last general election held in 1967. Six candidates con-tested the election. There were originally 31 polling stations in that

E.L.R.] RAM NATH V. CHHAJU RAM 355

constituency. On the representation of the various political parties thenumber of polling stations was raised to 35. This was done onFebruary 14, 1967. There were further representations and the numberof the polling stations was raised to 39 by adding four such stations.This was done on February 18, 1967 which was only three days beforethe polling was to take place. The polling took place on February 21,1967. The counting of the votes in respect of polling stations Nos.i to 35was done on February 26, 1967 and of polling stations Nos. 36 to 39 onMarch 1, 1967. The result was declared immediately afterwards. Re-spondent No. 1 was found to have secured 1139 votes more than his nearestrival-respondent No. 2. The other candidates secured far less votes. InApril 1967 the appellant filed an election petition. An Election Tribunalconsisting of Shri Ram Saroop, District & Sessions Judge, Jammu, wasconstituted for the trial of the petition. All the respondents were servedbut only respondent No. 1 appeared and filed his written statement. TheTribunal was later on abolished by a statute enacted by the State Legis-lature and the proceedings were transferred to the High Court on Sep-tember 16, 1967.

The only material issues were :

" 1 . Whether the creation of four new polling booths Nos. 36, 37,38 and 39 on 19-2-67 only two days before the polling on 21-2-67 was unduly late; whether it was illegal without having beenwith prior approval of the Election Commission; and whetherit has materially affected the result of the election.

2. Whether the voters residing in Barata, Tehsil Sambu, SiamkelanTehsil Ranbir Singh Pura and Kirpalpur Tehsil Jammu wereillegally and improperly registered as electors from ChhambConstituency, and whether the addition has materially pre-judiced the result of the election".

Before the High Court the controversy under the first issue was con-find to the four new polling stations. The case as laid in the election peti-tion was that these polling stations i.e. Nos. 36 to 39 had been created incomplete disregard of the statutory provisions of the Jammu & KashmirRepresentation of People Act, 1957, (hereinafter called the "Act") andthe relevant Rules. It was alleged that the Returning Officer had, withthe previous approval of the Election Commission, originally provided 31polling stations on 3-1-67 according to the patwar circles where the re-fugees were entered as electors. As the number of electors in some ofthe polling stations was more than 1,000 and respondent No. 2 made arepresentation that more polling stations should be provided to reducethe number of electors for each polling station, four more such stationswere provided on February 14, 1967. These polling stations were situatedin Chhamb area itself. Some political parties represented thatthe polling stations should be provided for the Chamb refugees inthe area where they had been settled in camps. This request was notacceded to by the Election Commission. On February 19, 1967 the Re-turning Officer, without the previous approval of the Election Commission

356 RAM NATH V. CHHAJU RAM [VOL. 3CLI

and without giving proper publicity or intimation to the concerned elec-tors and candidates, provided four more polling stations at (i) Barota inSamba Tehsil, (ii) Siam Kelan I & II, (iii) R.S. Pura, and (iv) Kirpalpurin Jammu Tehsil. It was alleged that the distribution of the electors in thematter of polling with regard to the aforesaid stations was so confusingthat the electors did not know where to cast their votes. As a result ofthis confusion more than 2,000 electors were prevented from casting theirvotes. Detailed illustrations were given in sub-para (i) of para 4 of theElection Petition of the manner in which the confusion was caused amongthe electors. It was further stated that previous to the counting of votesin the newly created polling stations respondent No. 2 was leading by amargin of 781 votes. The Returning Officer did not declare the resultbut insisted on counting the votes cast at four newly created pollingstations which should note have been counted at all as the casting ofthese votes was altogether illegal.

In the written statement which was filed by respondent No. 1it was denied that the action of the Officers concerned in" creatingthe four polling stations was illegal or in contravention of the pro-visions of the Act or the Rules. It was pointed out that all the con-testing candidates had made their arrangement in respect of pollingstation Nos. 36 to 39 well before the polling took place and no prejudicehad been caused to any of the contesting candidates. The candidateswere representated by their polling agents at these stations and noobjection had been raised either by any contesting candidate or hisagent to votes being received at the four polling stations in question.The electors had also been fully informed and the arrangementswhich had been made by the authorities were in their interest. Byway of additional plea, it was stated that on account of Indo-Pakistanconflict in the Chhamb area in 1965, the persons residing there hadbeen uprooted in large numbers and had been temporarily acco-modated in camps. After the cessation of the hostilities steps weretaken for their rehabilitation but persons from forward areas couldnot be rehabilitated like others for various reasons. They weredistributed in the newly created camps in Samba, R. S. Pura, Jammuand Niranagar tehsil. These areas were far from Chhamb areasand it was found highly impractical and difficult for these personsto go to that area to cast their votes. It was to meet such a situationand the repeated demands of the electors and the contesting candidatesthat the aforesaid polling stations were established.

The High Court found on issue No. 1 that due approval had beenaccorded by the Election Commission to the creation of the four newpolling stations though formal telegram containing the approvalwas sent after the new polling stations had been created. On thequestion of the prejudice caused by the creation of the new pollingstations at the eleventh hour, the High Court examined the evidencewith a view to finding out whether the result of the election had been"materially affected" within the meaning of s. 108 of the Act by non-compliance with the statutory provisions. It was observed thatalthough sufficient direct evidence had not been adduced showing

E .L.R.] RAM NATH V. CHHAJU RAM 357

that due publicity had been given with regard to the creation of thenew polling stations and the transfer of the names of electors to thesame the actual figures of votes which were registered at these pollingstations were tell-tale. The percentage of polling was as high as78.52 in spite of bad weather. The comparative figures were :

"The percentage of the polling was 94 at the polling stationNos. 10, 93 at 33, 90 at 7 stations each, over 80 and 82 at 12polling stations, and between 70 and 80% was at 2 stations. Thepercentage of polling below 78% was at four stations. At twostations, it was less than 60%. Of course the percentage wasvery low at booth Nos. 3, 7, 8 and 32. Taking an over all picturethe percentage of polling at the four new polling stations wasquite adequate."

The High Court was of the view that the percentage of 78.52 at the fournewly created polling stations was adequate enough to show that due pub-licity had been given and that the electors knew that the polling was totake place at these stations. It was found as a fact that out of a total num-ber of 3171 electors at these four polling stations only 681 electors had notcome to cast their votes. At polling station Nos. 7, 8 and 32 out of 700electors only 141 electors turned up to cast their votes. It was claimedbefore the High Court on behalf of the appellant that 569 unpolled votescould not be cast because of the confusion which had resulted by thecreation of four new polling stations. The High Court examined the evi-dence which had been produced by the appellant and came to the con-clusion that it had not been shown that the result of the election hadbeen materially affected by the creation of four new polling stations.

On issue No. 2 it was held that there was no evidence that the refugeesliving in the constituencies mentioned in that issue had left their homesfor good and had settled permanently in those constituencies. That issuewas, therefore, decided against the appellant.

Before us learned counsel for the appellant has confined his argumentmainly to two matters arising out of issue No.i. The first is that the appro-val cf the Election Commission had not been proved to have been accord-ed to the creation of four new polling stations Nos. 36 to 39. Even if it beassumed in favour of the appellant that there was some irregularity in thecreation of these stations it is conceded that the election could not beset aside unless it is established that the result of the election had beenmaterially affected by non-compliance with the statutory provisions andthe Rules. We have been taken through the sequence of dates and thevarious figures relating to polling which have already been mentioned.A great deal of stress has been laid on the natural confusion which musthave been caused by re-distribution of the electors as a result of thecreation of the new polling stations. 1 his also meant that the number ofthe electors which was originally 2520 at polling stations Nos. 7, 8 and 32was reduced to 710. As all this was done only three days before the pollingwas to take place it is pointed out that the electors were bound to havebeen misled about the place where they were to go for casting their votes.in some cases, it is pointed out, the distance between the old polling

358 RAM NATH V. CHHAJU RAM [VOL. XL

station and the new one was 50 miles and when the electors went to theold polling station under the impression that they had to cast thier votesthere, they could not possibly reach the new polling station by coveringsuch a large distance. It is admitted, however, that only 11 electors wereproduced at the trial of the election petition for showing that they hadoriginally gone to the polling station Nos. 7, 8 and 32 but were told thattheir names had been transferred to the newly created polling stations.It must be remembered that the difference between respondent No. 1 andrespondent No. 2 was of 1139 votes. The principles on which it has to bedetermined whether the result ol the election has been materially affectedwere laid down by this court in Vashist Narain Sharma V. Dev Chandra &Others and have been reiterated in subsequent decision out of whichmention may be made of a recent pronouncement in Paokai Haoki V.Rishang and Others. In Vashist Narin Sharma's case it was said that itwas impossible to accept the ipse dixit of witnesses coming from one sideor the other to say that all or some of the votes would have gone to oneor the other on some supposed or imaginary grounds. The question isone of fact and has to be proved by possitive evidence. It was, further,observed that the casting of votes at an election depends upon a varietyof factors and it is not possible for any one to predicate how many orwhich proportion of the votes will go to one or the other of the candi-dates. In the latest decision, Paokai V. Rishang and Others, this iswhat was said:

"The evidence in this case which has been brought by the elec-tion petitioner is the kind of evidence which was criticised by thisCourt. Witnesses have been brought forward to state that a numberof voters did not vote because of the change of venue or because offiring and that they had decided to vote en bloc for the electionpetitioner. 1 his kind of evidence is merely an assertion on the partof witness, who cannot speak for 500 voters for the simple reasonthat as this Court said the casting of votes at an election dependsupon a variety of factors "

Even if we assume that cent percent electors had gone to cast their votesat the newly created polling stations or at polling stations Nos.7,8 and 32,it is not possible to predicate how many of them would have voted forrespondent No. 1 or respondent No. 2 or any of the other contestingcandidates. Apart from this we have no doubt that the number ofelectors who turned up at the newly created polling stations was reasonablyhigh and it is only with regard to the three polling stations i. e. 7, 8 and32, that it could be legitimately said that due to misapprehension orconfusion a number of electors did not turn up. Even on the assumptionthat cent percent electors would have gone to cast their votesthere number would have come to 569 in addition to 141. This couldnot have reduced the majority of respondent No. 1 even if all the 569votes had been cast in favour of respondent No. 2.

In our opinion the decision of the High Court was correct that theresult of the election had not been proved to have been materially

(1) 1955L.S.G.R. 509. (5) C.A. 683 of 1968 dt. 12868.

E.L.R.] ATAM DAS V. SURIYA PRASAD 359

affected. The appeal, therfore, f?ils and it is dismissed; but in view of theentire circumstances and in particular the unsatisfactory nature of theevidence produced in the matter of approval of the Election Commissionin respect of the creation of four new polling stations the parties are leftto bear their own costs in this court.

Appeal dismissed.


ATAM DAS

F.SURIYA PRASAD

( j . C. SHAH AND A. N. GROVER, Jj)

March n , 1969

Representation of the People Act, 1951—section gA— Cmtractwith Government/or construc-tion work—circumstances from which inference of abandonment of contract can be drawn.

The appellant was carrying on business as a building contractor and had in1954 entered into a contract for the execution of works undertaken by the governmentof India. The contract was not completed within the stipulated period. Theauthorities were dissatisfied with the work done by him. In August 1958 he wasinformed by letter that he was not to proceed with the work anymore.He was asked to rectify the construction work executed by him and to reimbursethe value of the materials supplied to him. The appellant signified his willingnessto rectify the defects. But nothing concrete happened afterwards. The respondentchallenged the election of the appellant on the ground that the latter was not qualifiedto stand as a candidate for election in that the contract was subsisting on January19, 1967, when the appellant filed his nomination. The High Court held thatthere was no evidence that the contract which was not completed by the appellantwas abandoned by implied arrangement or was discharged by any action on thepart of the Government and set aside the election. Allowing the appeal.

HELD : (i) The fact that the contract was not completed within the stipulatedtime by itself is not sufficient to give rise to the inference that there subsisted a contracton the date of filing the nomination.

(ii) The letters written by the authorities evidenced an intention on the partof the government to determine the contract and the demand for rectification ofthe defects did not evidence an intention either to keep the original contract outstand-ing or to enter into a fresh contract for carrying out the repairs in the workalready executed. Even if insistence upon rectification of the defects be treatedas an offer, and the willingness of the appellant to carry out the repairs be treatedas acceptance of the offer, studied inaction for nearly six years by the appellant aswell as by the Government leads to an inference of abandonment of the contract.

(iii) Failure to settle the respective claims does not evidence an intention tokeep the original contract subsisting.

CIVIL APPEAL NO. 1706 OF 1967.S. V. Gupte, Rameshwar Nath and Mahinder Narain for the appellant.G. N. Dikshit, R. N. Dikshit and D. Goburdhan for the Respondent.

3 6 0 ATAM DAS V. SURIYA PRASAD [VOL. XLI

JUDGMENT

SHAH, J.—By order dated March, 20, 1968*, we called for findingsfrom the High Court of Madhya Pradesh on the following threeissues :

"(1) Whether the word undertaken by the appellant under thecontract dated February 25, 1954, had been completedbefore January 19, 1967, departmentally or through othercontractors ?

(2) If the work was not completed on January 19, 1967, has theproject in respect of the incomplete work been abandoned ?

(3) If the project was not abandoned, was it intended to get thesame completed through the appellant under the terms ofthe contract dated Februaiy 25, 1954 ?"

The parties were given liberty to lead evidence on those issues. Ac-cordingly the parties led oral evidence and produced a mass of docu-mentary evidence.

The learned Judge found the first issue against the appellant; on-the second issue he held that the project was abandoned; and recordedno finding on the third issue.

The contest between the parties now centers round the secondissue. Counsel for the respondent contended that the evidence ledbefore the High Court cannot be considered because there was noclear plea raised in the reply to the election petition about abandon-ment or renunciation of the contract between the Government andthe appellant, and that in any event the evidence does not justify afinding in favour of the appellant on that issue. In the judgmentunder appeal the High Court had observed that "the case in whichneither party has insisted on the performance of the contract for aninordinate length of time and in such cases it may be said that theparties have mutually abandoned the contract. In such a case,the contract may be treated as terminated or discharged by abandon-ment but a party relying on abandonment must expressly plead andgive its particulars," and since the appellant "did not canvass inthis case that there was mutual abandonment of the contract inquestion by the parties", the contention could not be accepted. Buta person is disqualified from offering himself as a candidate at anelection if at the date of the nomination there subsists a contractentered into by him in the course of his business with the appropriateGovernment for the supply of goods or for the execution of any workundertaken by that Government within the meaning of s. 9A of theRepresentation of the People Act, 1951. The appellant was carryingon business as a building contractor and had in 1954 entered into acontract for the execution of works undertaken by the Government of

*ece Annexure at the end of this Judgment.


India. To make out a case of disqualification it had to be establishedthat the contract subsisted on January 19, 1967, when the nominationwas filed by the appellant. The burden of proving that issue layupon the respondent. By merely proving that the candidates hadat some time in the past entered into a contract to execute works, theburden was not discharged; it had further to be established that thecontract was subsisting at the crucial date. In making that enquiryit was necessary to decide whether the contract was completed, or ifnot completed, it was renounced. Whether there was a subsistingcontract being the issue to be decided, the trial necessarily includedan inquiry, even in the absence of an express plea, whether the contractwas completed or determined at the crucial date. This Court hasafter hearing the parties called for a finding on the question whetherthere subsisted a contract on January 19, 1967, between the appellantand the Government of India and for that purpose to determinewhether the contract of the year 1954 was renounced or abandoned.The parties have led evidence and the issue whether there existed acontract on the crucial date which disqualified the appellant mustbe decided.

Under the terms of the contract the appellant had undertakento raise the height of the Burj to 46 feet. It is common groundthat he did not raise the height of the Burj above 35 feet. The autho-rities were dissatisfied with the work done by him till the end ofMarch 1956. Work was inspected by the Archaeological Engineerin 1957 and was found to be "defective, unsatisfactory and incomplete".The Archaeological Engineer made adverse remarks against theappellant and further work was discontinued. The Director Generalvisited the site in July 1958 and found the work incomplete, unsatis-factory and defective. He remarked that the contractor may "becategorical y told that he is not t - proceed with the work", and that the"remaining work which may include the heightening of the Burj by notmore than :wo feet, filling up its interior and rendering its top water-tight may be done by departmental labour." Accordingly the ap-pellant was informed by letter dated August 13, 1958, that he was"not to proceed with the work any more." The appellant was clearlyinformed that he was not to raise the height of the Burj upto 46 feetas originally agreed; he was only asked to rectify the defects in theccnstiuction work executed by him. This was unmistakable evidenceof determination of the contract.

But counsel for the respondent relying upon certain documentscontended that the intimation by letter dated August 13, 1958, wasaccording to the terms of the contract and the subsequent conductof the parties established that the appellant did not treat the letteras determinative of the contract, and offered to complete the contract.Counsel for the respondent submitted that the appellant havingdeclined to accept the termination of the contract, subsequent inactionon the part of the appellant did not have the effect of either determiningthe contract or renunciation or abundonment of the contract.


Counsel relied upon the terms of the contract in support of theplea that there was no rescission on the part of the Government or anyintention to abandon the contract. He relied upon the terms ofcl. 3 of the contract between the appellant and the Governmentthat :

"In any case in which under any clause or clauses of thiscontract the contractor shall have rendered himself liable to paycompensation amounting to the whole of his security deposits(whether paid in one sum or deducted by instalments or committeda breach of any of the terms contained in clause 19-B, the DivisionalOfficer, on behalf of the Governor General of India, shall havepower to adopt any of the following courses, as he may deembest suited to the interests of Government—

(a) To rescind the contract (of which rescission notice in writingto the contractor under the hand of the Divisional Officershall be conclusive evidence), and in which case the securitydeposit of the contractor shall stand forfeited, and be absolutelyat the disposal of Government.

(b) To employ labour paid by the Public Works Department andto supply materials to carry out the work, or any part of thework, debiting the contractor with the cost of the labourand price of the materials (of the amount of which cost andprice a certificate of the Divisional Officer shall be finaland conclusive against the contractor) and crediting him withthe value of the work done, in all respects in the same mannerand the same rates as if it had been carried out by the contractorunder the terms of his contract;

(c) To measure up the work of the contractor, and to take such partthereof as shall be unexecuted out of his hands and to give itto another contractor to complete, in which case any expenseswhich may be incurred in excess of the sum which would havebeen paid to the original contractor, if the whole work hadbeen executed by him shall be borne and paid by the originalcontractor and may be deducted from any money due tohim by Government under the contractor or otherwise, orfrom his security deposit or the proceeds of sale thereof, or asufficient part thereof.

The three conditions mentioned in cl. 3 of the contract merelyindicate the action which the Government may take if the contractorcommits default. If the conditions of the contractor are not fulfilled itis open to the Government to rescind the contract and to forfeit thedeposit, or to allow the contract to remain outstanding and to completethe work departmentally as if the contract remains outstanding andcharge the contractor which all the expenditure incurred for completingthe work or to rescind the contract and to appoint another contract orto complete the unexecuted work.

E.L.R.] ATAM DAS 0. SURIYA PRASAD 363

The sequence of events may be examined to determine, whetherafter the intimation dated August 13, 1958 the contract remainedoutstanding. By letter dated July 23, 1958 Ext. D-i, the DirectorGeneral of Archaeology wrote to the Superintendent, Department ofArchaeology, Bhopal, that joint inspection of the work done by theappellant at the site had led him to beJieve that certain course ofaction should be taken in the matter and he suggested that (1) thecontractor may be informed that he was liable to pay certain sum ofmoney; (2) that the contractor should be informed that he was notto proceed with the work; and (3) that the remaining work, whichmay include the heightening of the Burj by not more than 2 fret,filling up its interior and rendering its top water-tight, may be doneby departmental labour. The Archaeological Department clearlyabandoned the project of increasing the height of the Burj upto 46 asoriginally intended; it was satisfied with raising the height of theBurj upto 35 ft. only. The Director General of Archaeology intimatedthat the Government did not intend to remain bound by the terms ofthe contract and he was terminating the contract.

By letter dated August 13, 1958, Ext. D-11, the Superintendent,Department of Archaeology, wrote to the appellant that he was liableto pay for cement and stone supplied and unless the tools suppliedto him were returned to pay the cost of the tools also. The appellantwas called upon to deposit the amount demanded and the letter pro-ceeded to state :

"Furthermore, you are hereby informed that you have not toproceed with the work any more."

By letter dated June 27, 1958, the Superintendent, Departmentof Archaeology, addressed a memorandum to the appellant in conti-nuation of the letter dated August 13, 1958, reiterating that the costof cement and stones may be reimbursed, and the tools may be re-turned. The appellant was informed that he will be paid for the costof ^..C.C. work done by him, but he was bound to rectify thedefects in the work executed by him, as pointed out at the site.

By letter dated July 19, 1959, the appellant wrote to the Superin-tendent, Department of Archaeology, that he was willing to carryout the orders regarding the repairs to the Burj, and that arrangementsmay be made to send the Work In-Charge at the site so that the workmay be done according to his instructions. He also stated that hehad never refused to comply with the orders. By letter dated Sep-tember 27, 1959, the appellant again reiterated his desire to rectifythe defects pointed out to him.

It appears, however, that nothing concrete was done, and onApril 12, 1961, the appellant's lawyer addressed a letter to the DirectorGeneral, Department of Archaeology, asserting that the appellanthad completed his "part of the work almost entirely" and that he wasshown certain defects which he had also removed, but when the

364 ATAM DAS V. SUR1YA PRASAD [VOL. j t u

appellant demanded payment for the work done the Department askedhim to do certain other things which were not to be done by him.He denied that the work done by him was defective. He also statedthat if the defects were not intimated to him in writing and theirphotographs were not supplied within a month from the receipt of theletter, it will be presumed that there were no defects in the work doneand that he will be entitled to receive the full amount for the workdone.

This correspondence clearly evidence an intention to treat theoriginal contract as determined. The appellant was told that theamount payable for the work done by him could only be paid to himif he returned the building materials and the tools supplied to himand rectified the defects pointed. The letters do not evidence a sub-sisting contracts they emphasise that the contract was treated asdetermined.

After April 12, 1961, there is on the record no correspondencebetween the appellant and the Government. The Government hadclaimed damages against the appellant for defective work executed byhim and for return of certain materials supplied and the value of the toolsand had called upon the appellant to carry out the repairs. The appellant'sclaim was that he was entitled to payment for the work done by him,and that he had carried out the repairs. The security deposit hadnot been returned to the appellant, nor had he been paid the amountclaimed by him.

The amount alleged to be due by the appellant on account ofdefective workmanship and for the value of the materials supplied tohim has also not been demanded by the Government. Failure to settlethe respective claims deos not evidence an intention to keep the origi-nal contract subsisting. For more than 5 years 9 months the appellantand the Government of India have not taken steps for settlement oftheir respective claims. The silence was evidence of acquiescence in theabandonment of the contract, and not of a subsisting contract. Even ifthe demand that the defects pointed out in the work executed by theappellant be repaired and the offer made by the appellant to carryout the repairs establish a contractual relation inaction for nearly sixyears on the part of the Government and the appellant is evidence ofabandonment of the contractual relation.

The learned Trial Judge observed in his report in paragraph33 That :

"No paper whatsoever, either from Bhopal Office or DelhiOffice, has been produced on record by the parties to this litigationshowing that the Government expressly abandoned this partof the work at any time after the lawyer's notice dated April 12,1961 till Shri Atam Das filed his nomination paper on January19, 1967. So there was no express abandonment on the partof the Government as far as this part of the incomplete work is

.t.R.] ATAM DAS V. SURIYA FRASAD 3 6 5

concerned. But the position seems to have been altered becauseof the attendant circumstances, conduct of the parties and in-ordinate delay during which neither party insisted on the per-formance of this part of the incomplete work."

The learned Judge concluded :

"Accordingly where, as here, neither party has insistedon the performance of this part of the work, namely, the recti-fication of the defects for more than 5! years which is undoubtedlyan inordinate length of time, it is reasonable to infer that theparties i.e. the Government and Shri Atam Das have mutuallyabandoned its performance before Shri Atam Das filed his nomi-nation paper."

The two letters dated July 23, 1958 and August 13, 1958, clearlyevidence an intention on the part of the Government to determinethe contract, and the demand for rectification of the defects did notevidence an intention either to keep the original contract outstandingor to enter into a fresh contract for carrying out the repairs in thework already executed. Even if insistence upon rectification of thedefects be treated as an offer, and the willingness of the appellant tocarry out the repairs be treated as acceptance of the offer, studiedinaction for nearly six years by the appellant as well as by the Govern-ment in our judgment leads to an inference of abandonment. Weaccordingly agree with the finding recorded by the High Court onthe second issue.

The appeal is allowed and the order passed by the High Courtset aside. The respondent will pay the costs in the Trial Court aswell as this Court including costs of the hearing for recording findingson the issues.

Appeal Allowed.

Annexure

(J. C. SHAH AND G. K. MITTBR JJ.)

{Order dated March 20, 1968, per ShahJ.)—Kt the last general elec-tions the appellant Atam Das was elected to the Lok Sabha from theMorena Reserved Constituency No. 1. The respondent filed anelection petition challengirg the election of the appellant on the groundthat the latter was not qualified to stand as a candidate for election inthat he had a subsisting contract for execution of works undertakenby h::m in the course of his business as a building contractor with theCentral Government on the date on which the nomination paper wasfiled and when he was declared elected. The High Court of MadhyaPradesh upheld the contention and set aside the election.


The appellant is a building contractor and his name stood enteredin the list of approved contractors of the Central Government. OnFebruary 25,1954, the appellant entered into a contract for "repairingwork of Ratnawali Burj Raisen Fort" with the Department of Archaeo-logy, Government of India, at Bhopal. The total value of the contractwas Rs. 37,012. The appellant deposited a sum of Rs. 1,850 assecurity deposit for due performence of the contract. The workunder the contract was not completed within the period of three monthsstipulated for completion. For the work done by the appellant tillMarch 31, 1956, he was paid Rs. 27,656/9. The record is silent asto whether any work was done by the appellant in pursuance of thecontract after March 31, 1956. In the petition it was averredin paragraph-9 that the contract of the appellant with the CentralGovernment dated February 25, 1954 "subsists and exists at present".In reply the appellant denied the plea and asserted that he had notsuffered any disqualification. The appellant stated before the Courtthat he did not execute any work in connection with Ratnawali Burjafter he completed its work in 1956. The appellant admitted that nopayment in addition to the payments made till March 31, 1956, wasmade, or that the account was otherwise settled. He admitted alsothat he had not completed the work within the stipulated period.

The High Court held that there was no evidence that the contractwhich was not completed by the appellant was abandoned by impliedarrangement, or was discharged by any action on the part of the CentralGovernment. The High Court in paragraph-33 of their judgmentsummarised the conclusions as follows :

" it must be held that the (appellant) did not fullyperform the contract in question (repairing work of 'RatnawaliBurj' Raisen Fort) entered into by him on 25-2-1954 till todayand that the same has not been terminated or discharged in anyof the manners known to law. I, therefore, hold that the saidcontract subsisted on the date of the filing of the nominationpaper on 19-1-1967 and its scrutiny and also on 23-2-1967 when theelection result of the constituency in question was declared.In fact, it subsists even today."

Correctness of that view is challenged in this appeal.

Section 7 (b) of the Representation of the People Act, 1951, defines"disqualified" as meaning "disqualified for being chosen as, and forbeing, a member of either House of Parliament or of the LegislativeAssembly or Legislative Council of a State". A person is disqualifiedby s. 9A, from being a member of the Legislature so long as theresubsists a contract entered into by him in the course of his trade orbusiness with the appropriate Government for the supply of goods toor for the execution of any works undertaken by that Government.The appellant did enter into a contract on February 25, 1954 for"repairing work of Ratnawali Burj, Raisen Fort" with the Central


Government, and the work undertaken by him was not completedtill March 31, 1956. But from that circumstance alone an inferencedoes not arise that there subsisted a contract at the date of filingof the nomination paper of the appellant so as to disqualify him frombeing elected a member of the Parliament. The respondent howeverrelies upon evidence documentary and oral in support of the plea thatthe contract dated February 25, 1954, remained subsisting till therelevant dates. On June 20, 1957, a letter was addressed to theDirector General of Archaeology in India, New Delhi, by the Superin-tendent of Archaeology, Central Circle, Bhopal, in which it wascomplained that the work undertaken by the appellant was incompleteand was found to be defective, and in view of the adverse commentsmade by the Archaeological Engineer the work was discontinuedand was still incomplete. On December 13, 1957, a circular wasaddressed by the Director General of Archaeology in India, New Delhi,to all Circle Superintendents in which it was stated in paragraph-5that in view of certain circumstances stated therein, "from the nextfinancial year all works will be executed departmentally except" :(i)original work when departmental staff are not readily available; (ii)supply of materials where necessary; and (iii) very exceptional cases ofrepairs to monuments, where the Director General is personally satis-fied that it is in the interest of the Department that the work should beexecuted through contract. On July 23,1958, the Director General ofArchaeology in India, in a letter addressed to the Superintendent,Department of Archaeology, Central Circle Bhopal, stated that "a jointinspection of the work of Atma Das, Contractor (appellant) at theRatnawali Burj at Raisen in the company of Archaeological Engineerand yourself has led me to believe that the following course of actionshould be taken in the matter: " In paragraphs 2 and 3 of the letter,which are important, it is stated:

"2. The contractor should be told categorically that he is not to pro-ceed with the work.

3. The remaining part of the work, which may include the heighte-ning of the Burj by not more than 2 ft. filling up its interior andrendering its top watertight may be done by departmentallabour."

The appellant wrote a letter to the Superintendent, ArchaeologicalDepartment, on August 27, 1959, in reply to a letter dated August n ,1959, that a part of the work entrusted to him had been done depart-mentally and that so far as the defects pointed out in the work done byhim were concerned, the work was done in the presence of and accordingto the instructions given to him by the person authorised by the Depart-ment, and that a contractor who worked according to instructionswould be in a position of difficulty when he was told afterwards that thework was defective when it was in truth "due to the defects of officials".He then stated.;

"My work was all along been inspected and approved and aftera long time it is being declared defective due to defects of the workdone departmentally.


I want with all sincerity to finish the said work as early aspossible but for doing it folk wing essentials to be complied with:

On the record there is no correspondence after that letter whichb as a bearing on the completion of th e contract or its discharge or abandon-ment. It is true that there is no completion certificate issued in favourof the appellant as it obviously could not be issued, and the security de-posit had not been returned to the appellant. There is no admission bythe appellant that he has done any work thereafter, nor is there warany evidence on the record that the appellant was even called uponto complete the contract. The burden of proving the charge ofdisqualification or corrupt practice in an election dispute lies heavilyupon the person who makes that charge, and the charge must be esta-blished by evidence which is beyond reasonable doubt.

K. M. Srivastava—the only witness who could have thrown somelight on the further progress of the work—has been the least helpful.The witness was working as Deputy Superintendent, ArchaeologicalSurvey of India, at Bhopal since March i, 1966. According to himthe repairs of the old monuments were done by bis Departmert andthe work was being done departmentally since the issue of the Circulardated December 13, 1957. He deposed that he had brought the filerelating to the "repairing work of Ratnawali Burj" and after referringto that file he stated that upto March 31, 1956, Rs. 27,656/9 werepaid to the appellant. In answer to the question whether the contracthad bee a completed by the contractor, he replied : "I was notstaying at Bhopal at the relevant time. However, there is a letterin file dated 28th June, 1957, Ext. R-5, which indicates that thework was not complete in 1957 till 30th June 1957, and it also saysthat the work carried out was defective. I do not know whetherthe work has been completed or not by now, because beyond thisletter Ext. P-5, I know nothing about this contract." He fur herstated that the security deposit of the contractor is generally releasedafter the completion of the work to the satisfaction of the Departmentand his record did not show that the security in connection withthe contract had been released. He also did not know if any balanceand how much was still due to or from the appellant.

A plea of disqualification under s. 9A requires proof that a contractwas entered into by the candidate for election in the course of histrade or business with the appropriate Government, and the contractwas subsisting at the time of nomination. The evidence on the recordto prove that the contract dated February 25, 1954 was subsistingis inconclusive.

But the learned Judge of the High Court of Madhya Pradeshwho tried the petition was of the view that in the absence of proof ofdischarge of contract for breach or abandonment, it must be inferredthat the contract was subsisting. To enable us finally to decidethis appeal, we are of opinion that there should be more definiteevidence on that question. We direct that the record be sent down

E.L.R.] KAMAL NARAYAN SHARMA V, D.P. MISHRA 3 6 9

immediately to the High Court, and the High Court be directed torecord findings on the following issues : .

(1) Whether the work undertaken by the appellant under thecontract dated February 25, 1954, had been completedbefore January 19, 1967, departmental^ or through othercontractors ?

(2) If the work was not completed on January 19, 1967, has theproject in respect of the incomplete work been abandoned ?

(3) If the project was not abandoned, was it intended to get thesame completed through the appellant under the terms ofthe contract dated February 25, 1954 ?

Parties will be at liberty to lead evidence on these issues. The HighCourt will take up the hearing of this case with the least practicabledelay and record findings thereon within a period of one mouth fromthe date on which the High Court enters upon the enquiry, and submitthe evidence together with the findings on these issues to this Court.

MADHYA PRADESH HIGH COURT

KAMAL NARAYAN SHARMA

V.

D. P. MISHRA

(SHIV DAYAL AND S. P. BHARGAVA, Jj)

March 12, 1969

Representwn of the People Act, 1951—S. 123(1), (4), (5) and (6)—Corrupt practices—burden of proof-—bribery—publication of false statement—Consent of candidate where can beinferred sec. 77—incurring or authorising expenditure beyond prescribed limit—Deposit for partyticket—Loses character of deposit when party ticket is given—Deposit of security under s. 34not expenditure—Date of payment is not date of incurring expenditure.

Pleadings—corrupt practices—lack of particulars—If parties go to trial inspite of absenceof particulars defect is one of procedure only.

The appelleant challenged the election of the Respondent on charges ofcorrupt practices, viz. (i) bribery; (ii) publication of false statements; (iii) hiring orprocuring of vehicles for conveyance of voters; and (iv) incurring or authorising electionexpenses in excess of the prescribed limit. The Election Ttribunal dismissed thepetition, but in appeal to the High Court;

Hdd : The first respondent's election was void and must be set aside.(i) It was not proved that the person who offered the bribe was the agent of

the ie--pondent nor was it proved that he offered the bribe with the consent of therespondent. Offer of bribe by a person who is not an agent of a candidate is nota corrupt practice within s. 123(1) of the Act unless it is committed with the consent,of the candidate.

24—4Elec. Com./71

370 KAMAL NARAYAN SHARMA V. D.P. MISHRA [VOL. XLI

(iij It was proved that electors were conveyed to some of the polling stations;but it was not proved that any vehicle was hired or procured for this purpose with therespondent's consent.

An election petition must furnish the names of the persons who hired or procuredand such other particulars as tha petitioner can possibly give. In the particularssupplied by the petitioner names of the "agents and workers" of the respondent whohired or procured vehicles were not specified. The particulars are not thereforesufficient to meet the requirement of law. That being so the respondent ought to havemoved the tribunal to strike off the allegations set out in paragraph 6(a) and (b).But if the parties go to trial inspite of the absence of full particulars and evidence isled by them on the plea raised in the petition the defect is one of procedure and notone of jurisdiction.

Balwan Singh \. Laxminarayan 22 E.L.R. 273 Bhikaji Keshav Joshiv. Brijlal Mani-lal Biyyani 1955, S.G.R. 428; Bhagwan Datta v. Ram Ratanji A.I.R. 196cS.C. 200; referred to.

(iii) It was proved that Mahakoshal, the Hindi Daily in which the alleged falsestatements were published and S. its editor, printer and publisher were the agentsof the respondent within the meaning of s. 123 of the Act. It was proved that thestatements related to the personal character and conduct of the petitioner; that allthe statements were false and that the respondent did not believe any of them to betrue. These false statements were published with the consent of the respondent.

The question of consent is one of fact and it is to be decided in each case on itsfacts and circumstances; the circumstances in their entirety have to be kept in view.It is the overall picture of the case which presents itself and not isolated facts, whichwill guide the court to reach the conclusion. In the present case the cumulative effectof the respondent's closeness with the Mahakoshal and personal association with S.and the setting in which the false statements were published one after another and therespondent not contradicting nor dissociating himself from them, were sufficientto persuade the court to hold that these false statements were published with the consentof the respondent. But on all the issues of the Hindi Daily there was printed the nameof another editor also. He may have in his own enthusiasm published these falsestatements. (The Court therefore gave the benefit of doubt to the respondent•"thought not without much hesitation").

Vashisht Narain Sharma v. Deochandra, 1955 1 S.G.R. 509; Sampat Balakrishnav.George Fernandez, G.A. 893 and 894 of 1968 dt. February 18, 1969; SheopatSingh v. Harish Chandra, A.I.R. i960 S.G. 1217; Jagdev Singh v.Rana Pratap,1964 6 S.G.R. 750; Ramakrishna v. Jai Singh, C.A. No. 1949 of 1967 datedApril 23, 1968 (S.G.); Jagdev Singh Sidhanti v. Pratap Singh Daulata; Dr.Chenna Reddy v. Ramachandra Rao, G.A. 1449 of 1968 dated December17, 1968; Guraji Srihari v. Vithalrao, C.A. 1778 if 1967 dated November19, 1968 (S.C); Sudhir Chandra v. Shripat Dange, A.I.R. i960. Bom. 249;Mohan Singh v. Banwarlal A.I.R. 1964 S.C. 1361 Sheopat Singh v. Harischandra,A.I.R. i960 S.G. 1217; referred to.

(iv) The respondent incurred or authorised expenditure in contravention of s,77 of the Act and therefore was guilty of corrupt practice under s. 123(6) of the Act.The election of the respondent was void under s. ioo(i)(b) of the Act.

A deposit made for a party ticket loses its character as deposit and becomes as'expenditure" the moment a party ticket is given because then the money belongsto the party and ceases to be refundable.

Kadar Shariff v. Munu wamy Gounder, 1955 2 S. C.R. 459; Vidya Sagar Joshi v.Surinder Nath C.A. 853 of 1968 dated September 13, 1968 (S.G.); referredto.

The date of payment is noc necessarily the date of incurring the expenditure.It must be held to relate back or to relate forward, as the case may be, having regardto the nature of the expenditure.

S.L.R.] SAMAL NARAYAW SHARMA V. D.P. MISKRA 371

A deposit of security money under s. 34 of the Act cannot be characterised as anamount spent or consumed or used up unless and until it is forfeited. In this viewof the matter, the deposit which is made after the first material date under s. 77(1)and becomes compulsorily returnable on or before the second material date under thatsection cannot be sa;d to be an "expenditure incurred" within the meaning of thatsection. It becomes an expenditure orrfy when it is forfeited, but not otherwise.

Chandrasekhar Singh v. Sarju Prasad Singh, 22 E.L.R, 206; referred to.

On the question whether proceedings should be drawn up under s. 99 of the Actand notice should not be given to S. why he should not be named for having committedcorrupt practice,

Held : When the appeal came up for hearing in April 1968 the respondentraised certain preliminary objections. It was the duty of the appellant on that occa-sion to satisfy the court prima facie that S. had committed corrupt practice so that anotice could be issued to him and an opportunity given to him under s. 99 of the Act.This was not done, and avoiding further delay was an outweighing factor.

FIRST APPEAL NO. 49 OF 1967.

JUDGEMENT

This is an appeal under section 116-A of the representation of thePepople Act, 1951, as it stood before the amendment of 1966, (here inafter called *'the Act"), from a decision of the Election TribunalKaipure.

2. After the general elections of 1962, the Kasdol LegislativeAssembly constituency was called upon to elect a person for the purposeof filling a vacancy in the Madhya Pradesh Legislative Assembly. Theappellant (hereinafter also called "the petitioner") was a candidateset up by the Praja Socialist Party; Shri D. P. Misbra, respondent No. 1,(hereinafter called "the respondent") was the Congress candidate; andone Purushottamdas was an independent candidate. KanhaiyalalMishra (respondent No. 2) had also filed his nomination paper as aCongress candidate, but be withdrew his candidature when the respon-dent's nomination paper was accepted. Poll was taken on May 4, 1963.The appellant got 4611 votes; the respondent 11528 votes; and Puru-shottamdas 850. The respondent was declared elected.

3. By an election petition, the appellant challenged the election ofthe respondent on various charges of corrupt practice which may beclassified into four heads (1) bribery; (2) publication of false statements;(3) hering or procuring of vahicles for conveyance of electors; and (4)incurring or authorising election expenses in excess of the prescribedlimit. The election petition was initially dealt with by Shri S. R. Vyas,District Judge, Raipur, who constituted the Election Tribunal undersection 86 of the Act. From bis decision on a preliminary point, the casewent up to the Supreme Court and then came back to Raipur for trialon merits. Shri B. K. Choudhari was the specially appointed ElectionTribunal for the trial of this election petition. The respondent con-tested the election petition. The learned Tribunal^ by its order datedDecember 28, 1966, decided all the issues against the election petitioner

3 7 2 KAMAL NARAYAN SHARMA V. D.P. MISHRA [VOL. XLI

and dismissed the petition. Aggrieved by that order, the election peti-tioner preferred this appeal on July i, 1967.

4. The respondent raised two preliminary objections (i)That theappeal was barred by time; and (2) that the appeal became infuructuousas, in the meantime, the assembly, to which the respondent bad beenreturned, had been dissolved and fresh general elections bad takenplace in February 1967. Both these preliminary objections were re-jected by our order dated May, 4, 1968.

5. By the same order of May, 4, 1968, certain preliminary pointsraised by the appellant were also disposed of. It was held that thecross-examination of the respondent had been abruptly closed by theTribunal; that the appellant's aplications for leave to amend the electionpetition had been wrongly rejected by the Tribunal; and that theTribunal wrongly refused to admit in evidence three documents. Wepermitted one witness to be examined by the appellant to prove thatthe respondent had paid to the Congress Party Rs. 200 as applicationfee and Rs. 500 as deposit for being given a Congress ticket, whichexpenses were not included in the respondent's return of election ex-penses. By consent of the parties and as necessited by the amendmentof the election petition, we amended certain issues and framed a fewadditional issues. The appellant then examined Ramnarayan Purohit(P.W.93). After that the respondent was recalled for further exa-mination-in-chief and then further cross-examination. The respondentwas given a fresh opportunity to produce such further evidence as bechose to. He filed a list of the following witnesses :—

(1) Chakrapani Shukla, resident of Baloda Bazar, District Rai-pur;

(2) Parmanand Bhai Patel, Jabalpur;(3) One Munim of Parmanand Bhai Patel, Jabalpur; and(4) Laxmi Shankar Bbatt, Jabalpur.

But eventually he abandoned them all, and did not examine any.

6. Then, on August 29, 1968 the appellant made an applicationfor production of there more documents : (1) A document purportingto be in the handwriting of and signed by Jaideo Satpati, about theexpenditure of Rs. 516, not shown in the return of election expenses ofthe respondent, (ii) A document purporting to be in the handwritingof and signed by Masheshdutt Dube of Sagar, addressed to the respondentabout procuring motor vehicles from Jabalpur and Sagar and showingthe agency of Parmanand Bhai Patel and also expenses of petrol, (iii)A telegram dated May 4, 1963, sent from Jabalpur by "Bidiwala'(telegraphic address) to Parmanand Bhai Patel c/o Chakrapani Shukla,in order to prove the agency of Parmanand Bbai Patel and of Chakra-pani Shukla, and also to prove that motor vehicles were procured bythe respondent. Since this application was foi production of additionalevidence, by our order dated August 31, 1969, the application was keptin abeyance for being considered at the hearing of the appeal. If we

E.L.R.] KAMAL NARAYAN SHARMA V. D.P. MISHRA 373

allowed these documents to be produced, the appellant would have beenfurther required to produce oral evidence to prove them. However, atthe hearing of the appeal that application was not pressed and wasimpliedly abandoned.

7. In JAGJIT SINGH V. KARTAR SINGH A.I.R. 1966 S.C. 773, it isheld :—

"The jurisdiction of the High Court in dealing with an electionappeal under section 116-A of the Act is very wide. It isopen to the High Court to reappreciate the evidence andconsider the propriety, correctness or legality of the findingsrecorded by the Tribunal in its order under appeal. Natu-rally, as a Court of appeal, the High Court would not inter-fere with the findings of fact recorded by the Tribunal, whichare based merely on appreciation of oral evidance. But thisis not to say that the High Court cannot so interfere, if itcomes to the conclusion that the impugned finding is errone-ous and deserves to be reversed".

Let it be mentioned at the outset that Shri Kanbaiyalal Mishra,learned Advocate General of Uttar Pradesh, who argued before us therespondent's case, frankly told us that he would support the conclusionsreached by the Tribunal, but would not adopt the reasons stated in itsorder, And, in fact, he did not refer to any part of the Tribunal's orderin the course of his arguments.

Bribery :

8. The appellant's case is that one Dr. Ausaf Hussain of Sagarmade an offer of Rs. 50,000 to him at Raipur, as an inducement to with-draw from the election. [The Court considered the evidence andheld]:

19. For these reasons it must be held as not proved that Dr.Ausaf Hussain offered a bribe to the petitioner with the consentof the respondent.

20. The appellant's request that Dr. Ausaf Hussain should benamed under section 99 of the Act must also be consequently re-jected at once. Offer of bribe by a person who is not an agentof a candidate is not a corrupt practice within S. 123(1) of the Actunless it is committed with the consent of the candidate.

Vehicles

21. The appellant's contention is that the respondent and withbis consent, his agents and workers, hired or procured on paymentor otherwise, motor vehicles for conveying the elctors to pollingstations in the constituency and thus committed the corruptpractice as defined in section 123(5) of the Act. He gave the follow-ing particulars.

374

Vehicles

Jeep MPH 2401 .

Jeep No. MPR 5191.

Jeep No. BYJ 3902

MPL 272

KAMAL NARAYAtf SHARMA V. D.P. MISHRA [VOL. X U

Voters

Voters of village Pandariya

Voters of village Nandi.

Voters of village Hardi.

Polling Stations

Sarkhon No. 3

Bhalukona No. 20

Bhalukora No. 20

Berely No. 28

Jeep No. MPR 51661

MPJ(I) .636 .

10 Bullock-Carts

MPR 183Jeep MPL 1541

Jeep No. MPL 220

Jeep APX 1593

BYJ 4749

MPL 1839 .

MPR 207 (Truck) .

MPL 977

MHW 1170 .

Siriadih No. 15

. Sinodha No. 14

. Selo No. 24

Amodi No. 25

. Baloda No. 10

. Kadgi No. 12

Amarua

. Pakrid No. 48

. Pisid No. 33

. Motia No. 26

Voters of village Nargha andDarri.

Voters of village Lata.

Voters of village Deorikala.

Voters of village Bhusada,Chandidih & Bharwarid.

Voters of Nawapara.

Voters of Semarqond Baloda.

Sawapara.

Voters of village Sarwani,Lakhmmaisti.

47 Voters of village Chandan.

Voters of village Charoda.

Voters of village Charched.

Voters of Modwa, Turkindid andKotiodih.

22. The basic ingredients of the corrupt practice undersub-section (5) of section 125 of the Act, are (1) that anyvehicle was hired or procured for the conveyance of voters; and(2) that such hiring or procurement was by the candidate himselfor by his agent or any other person with his or bis electionagent's consent. Thus, the main ingredient consists of hiringor procuring of the vehicle. An election petition must furnishthe uames of the persons who hired or procured and such other particu-lars as the petitioner can possibly do. It is necessary to prove thatthe hiring or procurement was for the specific purpose, that is, forconveying the electors to or from any polling station. The actualuser of the vehicle hired or procured for carrying electors, is not aningredient of the corrupt practice under that sub-section. Evidenceof such user is, therefore, not quite essential, except in so far as ithas a considerable bearing on the question of the purpose of hiringor procurement.

23. Mere reproduction of the words of a section does not constitutea pleading. The election petitioner is bound to set out in bis petitionthe facia probanda, that is, the facts on which be relies, though not facta

E.L.R.] KAMAL NARAYAN SHARMA V. D.P. MISHRA 3 7 5

probantia, that is, the evidence or the facts by names means of whichthey are to be proved. In the particulars supplied by the petitioner(para 6(b) of the petition) names of the "agents and workers'*'of the respondent, who hired or procured vehicles, were not spe-cified. The particulars, were, therefore, not sufficient to meet therequirement of the law. That being the position, the respondentought to have moved the tribunal to strike out parabraph 6(a)and(b). But this was not done. The tribunal framed issue No. 7and the parties went to trial. The particulars being insufficient,the Tribunal ought to have adopted the following course : Thepetition could not be dismissed in limine. The Tribunal was boundto decide whether the petition was defective for want of particularsand ifitsoheld, it should have given an opportunity to the petitionerto apply for leave to amend or amplify the particulars of the corruptpractice alleged. In the event of non-compliance with that order,.the Tribunal could strike out the charge as being vague. It is anaccepted rule that full particulars of a corrupt practice must beinsisted upon as of paramount importance in the trial of an electionpetition. But, if the parties go to trial inspite of the absence of fullparticulars and evidence is led by then on the plea raised in thepetition, the defect is one of procedure and not one of jurisdiction.In that situation, the Tribunal could adjudicate upon the pleaeven in the absence of particulars. The appelate Court would bejustified in setting aside the judgment of the tribunal if it issatisfied that material prejudice has resulted by reason of theabsence of full particulars. But the appellate Court will give dueweight to the omission on the part of the respondent to raise and presshis objection about the absence of particulars before going to trial.(See Balwansingh v. Laxminaravan, 22 E.L.R. 273). In Bhikqji KashaoJoshi v. Brijlal JVanilal Biyand, (1955) 2 S.C.R. 428(411), it was obser-ed :—

"There can be no reasonable doubt that the requirement offull particulars is one that has got to be complied with, withsufficient fullness and clarification so as to enable the oppositeparty fairly to meet them and that they must be such asnot to turn the enquiry before the Tribunal into a ramblingand roving inquisition."

That case was distingished in Bhagwan Datta v. Ram Ratanji A.I.R.i960. S.C. 200 where it was urged that in the absence of adequateparticulars the Tribunal had no jurisdiction to admit evidence onthe plea or to give a finding thereon. Their Lordships

"There can be no doubt that the requirement of full parti-culars is of paramount importance in cases of this kind as in casesof the ordinary courts based on allegations of fraud or undueinfluence. But unlike the one in the above decision of this Courtrelied upon, in which the questions that arose was as to thevalidity of an order dismissing the entire election petition on thepreliminary ground of absence of particulars, the question in this;

3 7 6 KAMAL NARAYAN SHARMA V. D.P. MlSHRA [VOL. XLI

case is different. This is a case notwithstanding the absenceof particulars, the evidence was allowed to be given and taken.The question in such a case would not be one of absence of juris-diction but has to whether there has been any material prejudiceoccasioned by the absence of particulars. It is in that light thatthe validity of the objection raised by the appellant in this behalfbefore as has to be judged. It is, therefore, necessary to scru-tinize the nature of the evidence on which this finding had beenarrived at and to see whether the appellant had a fair opportunityof meeting it."

In the present case, an issue was framed and the parties went to trial.The petitioner led oral and documentary evidence in respect of eachpolling station. We shall, therefore, decide the issue on merits des-pite want of full particulars.

24. Although the petitioner could not produce any direct evidenceof hiring or procurring, he adduced copious evidence, oral and do-cumentary to prove that electors were conveyed to many polling stationsby the respondent's workers. But the questions is whether this wasdone with the consent of the respondent. With that question in view,the allegations and the entire evidence on that issue may be dividedinto four groups with referrence to the polling stations :—

(A) The respondent himself and respondent No. 2 conveyedelectors to polling station Pisid.

(B) Bhuwan Bbaskar Singh and Wasudeo Chandraker whowere respondent gave directions for procuring; vehicles; con-veyed voters to Katgi and Siriadib respectively.

(G) Rohini Kumar Bajpai conveyed voters to polling stationAmodi, Munnalal Shukla and Jaideo Satpati to Pikrid,Mahant Vaisynavdas to Bareli, SachidanandtoSanoda; Nar-singh Prasad to Sel; and Diwanchand to Amarua.

(D) Electors were conveyed in vehicles to polling stations Sakhrol,Bhalikona, Balod and Motia.

(The Court considered some of the evidence in respect of theallegations and proceededj.

(vi) In respect of the other polling stations in group (G), thepetitioner led oral and documentary evidence to prove thatelectors were conveyed to those polling stations. Thereis also evidence to show that at least some of these workerswere agents of the respondent. But that is not enough.The petitioner had further to prove that any vehicle washired of procured with the consent of the respondent. ShriMunshi could not refer to anv cogent evidence, which wouldpersuade us to bold that there was either express or impliedconsent of the respondent to the hiring or procuring of anyvehicles in which voters were conveyed to any polling

E.t.R.] KAMAL NARAVAN SHARMA V. D.P. MISHRA 377

station. Names of workers appearing in group (c) do notfind as any mention in the evidence of either Hirderam orSadbulal Gupta. That is why we have placed them m aseparate group. There is, no doubt, evidence to show thatat least some of the persons named in group (c) were agentsof the respondent. But that is not enough. The petitionerhad to prove further that it was with the consent of the res-pondent that these persons hired, on procured vehicles. Itis, therefore, unnecessary to deal with their evidence m anydetail.

25. Their Lordship's decision in Sheopat Singh vs. Harishchandra-A.I.R. i960 S.C. 1217, is not opposite to this case. There it washeld that where a candidate after getting knowledge of the act of acorrupt practice on a polling day does not prohibit the repetition ofsimilar acts on the following polling days, it is reasonable inferenceto draw that all the acts were not haphazard but by design and thatthe candidate must have consented to them.

26. It was argued that it was an error to infer consent fromthe mere fact that the appellant had knowledge of the acts. It wasfurther argued that consent to an act implied that it was given beforeit was done, but knowledge of an act could only mean that it wasafter the act was done. Therefore, knowledge cannot in itself beequated with consent. Their Lordships said :—

"There would have been force in this argument, if all tbatwas established was a strav act or even a number of them commitedon one day. But here the acts were numerous and extendedover a number of days. From the above facts it isnot an unreasonable inference to draw that all the above acts wereccmmitted not haphazard but by design and that applicant musthave consented to them."

In the present case, no material Was placed before us to reach thatconclusion. As regards the polling stations in group (d), Shri Munshiconceded tbat there is no evidence to show who hired or procurredvehicles for conveying the electors to those polling stations.

27. A great deal of stress was laid by Sbri Munshi on the purchase oflarge quantity of petrol by the respondent on (he May, 1963, when thepoll was to be taken on the 4th May. It was argued that this large quan-tity of petrol could only be meant for consumption in mo'or venicaleswhich has been hired or procured for conveying electors to the pollingstations. From the return of the respondent's election expenses andfrom the books of account of Nawalchand Nathmal of Bbatapara,it is clear that on the 3rd May, that is, the day preceding the poll,600 litres of petrol for Rs. 534/- besides some motor oil and brake oil,were purchased by the respondent (per voucher No. 54, fi'ed with thereturn). On the respondent's . own showing, he had only one motor"vehicle (a jeep). It could not possibly consume 600 liters of petrolwithin two days. The appellant, therefore, persuaded us to hold that

3 7 8 KAMAL NARAYAN SHARMA 0. D.P. MISHRA [VOL.

this petrol must have been used in motor vehicles which were hiredor procured for conveving electors tc the polling stations. Undoubtedly,this creates a very strong suspicion, because for the Bbatapara petrelpump this was the largest quantity of petrol purchased on any parti-cular day by the respondent. But this suspicion is not enough to hdddefinitely the vehicles were hired or procured for the purpose of conveyingelectors to the polling stations.

28. In Joshi Bhai Chunibhai Patel v. Anwar Beg. A. Mirza, CivilAppeal No. 799 of 1968, decided on September, 1968, the SupremeCourt has held that section 123(5) requires : three things (1) Hiringor procuring of a vehicle; (2) by a candidate or his agent, etc.and (3) for the free conveyance of an elector. In addition to provingthe hiring or procurring and the carriage of electors to and fromthe 'polling station, it must further be proved that the electors usedthe vehicle free of cost themselves. Their Lordships observed :—

"In the instant case, the vehicles were procurred, but therewas no proof that there was free conveyance of the ladies in thesevehicles. It is not impossible of proof because the owner of thecar or the driver or the ladies could have been examined to showthat the ladies have travelled free in the vehicle. Since this isnot proved, the ingredients of the section have not been establi-shed."

(See Supreme Court Notes of October 15, 1968 page 384)

In the present case there is no such evidence.

29. Accordingly, it must be held as follows :—

(1) It is not proved that the respondent or respondent No. 2 hiredor procured any vehicles for the purposes of conveyingelectors to any polling station, nor is it proved that eitherof them actually conveyed any voter to Pisid polling station,or any other polling station.

(2) It is proved that voters were conveyed in vehicles No. BYJ4749 to the Polling Station Katgi, but it is not proved thatit was Bbuwan Bhasker Singh who had brought them.

(3) It is proved that Wasudeo Chandrakar and 2 male votersand 7 females and some children were seen together in ajeep between village Lata and Siriadih Polling Station,which jeep was proceeding towards the Polling Station, butit is not proved that the vehicle in which they were seentogether was hired or proemed by Wasudeo Chandrakar;it is proved that he had brought the voters from the villagewith consent of the respondent.

(4) It is proved that voters were conveyed to foiling station Amodifrom village Nawapara in vehicles No. M.P.R. 183 andM.B.L. 1541, but it is not proved that it was Bohini Kumar

EX.R.'J KAMAL NARAYAN SHARMA V. D.P. MISHRA 379*

Bajpai who had brought them or that he had any connectionwith either of them.

(5) It is proved that 59 voters were conveyed in a truck No.M.P.R. 207 to Pikrid Polling Station but it is not provedthat Munnalal Sbuk!a or Jaideo Satpati had conveyed theseelectors or that they either hired or procured it.

(6j The petitioner could not prove that any vehicle was hiredor procured v\ith the respondent's consent for the purposeof conveying electors.

30. Therefore, the contention must be rejected.

31. FALSE STATEMENTS :—The appellant's next contentionis that three false statements (these will hereinafter be called Annexuresi, 2, and 3 as they were called all along during the course of the hear-ing) in relation to his personal conduct and character were publishedwith the respondent's consent in the Mahakoshal and they were cal-culated to prejudice his election prospects. The Mahakoshal, a Hindidaily, was published from Raipur and circulated in the constituencyduring the election period. Shyamecharan Shukla, an active supporter,,worker and agent of the respondent, was its owner, printer, publisherand editor. The offending statements were published in the issuesdated 12th April, 26th April, and 4th May, 1963. The appellantattaches much significance to these dates in pointing out the motiveand the background with which each of them was published.

32. AMMEXURE 1.—In the issue of the 12th April, the followingstatement appeared in the Mahakoshal :—

"On the last date for withdrawal, the P.S.P. candidateclearly stated that unless he was paid Rs. 15,000/- for contestingthe election, he would withdraw his candidature. Accordingto knowledgeable sources, the P.S.P. candidate fictitiously gaveout that he bad already received two offers of Rs. 25,000/- and50,000/- so that if the P.S.P. would not pay him Rs. 15,000/- bewould withdraw after taking Rs. 50,000/- from the supporters ofMishra Thakur Nirjansing,, the convenor ofthe P.S.P. election campaign, is somewhat dull. He wouldnot appreciat the Vakil's bid of bargain and eventually ThakurSahib accepted the goods (agreed to pay) and gave him fullauthority to spend so that the needful be done."

This statement will hereinafter be called "annexure I " The peti-tioner is an Advocate and was the only P.S.P. candidate. The words"P.S.P. candidate" and " Vakil" in the above passage admittedlyrefer to him. According to the petitioner, the above statement waspublished for the purpose of conveying that the petitioner bad beenpromised or had been paid Rs. 15,000/- for contesting as a P.S.P. candi-date and that the petitioner had bargained for it, by threatening to

3 8 0 KAMAL NARAYAN SUARMA V. D.P. MISHRA [VOL. XLI

withdraw bis candidature and further that he would stoop so low asto accept Rs. 50,000/- from the supporters of his rival candidatein order to withdraw from the contest.

33. The petitioner says that this statement was published abouthim. He was the only P. S. P. Candidate and the only Vakil ((Advocate)contesting from the Kasdol constituency. He says that these allegationswere false. It was false that he threatened to withdraw his candidatureif be was not paid Rs. 15000, or not he would accept Rs. 50,000 from thesupporters of the rival candidate. It was false that he fictitiously gaveout that he bad received offers of Rs. 25,000 and Rs. 50,000. It wasalso false that Thakur Niranjansingb either gave him or offered to givehim Rs. 15,000 and authorised him to spend it. In short, every partof the statement prescribed to him was false. He says that he did notmeet Thakur Niranjansingh during the entire election period, that is,between the date of the notification and the taking of poll.

34. Niranjan singh (P.W.43) supports the petitioner and says thathe did not meet the latter on any day between the 3rd April and the4th May, and that there was no such talk/between him and the petitioneras was reported in the news item (Annexure I).

35. The statement (Annexure I) may conveniently be divided intofour parts:—-

(1) The petitioner, on the last date for withdrawal made a state-ment threatening to withdraw if he was not paid Rs. 15,000.

(2) The petitioner had made a false statement that be had receivedtwo offers of Rs. 25,000 and Rs. 50,000.

(3) If the P. S. P. would not give the petitioner Rs. 15,000 hewould withdraw, after accepting Rs. 50,000 from the supportersof bis rival candidate.

(4) Eventually, Thakur Niranjan singh agreed to pay and alsoauthorised the petitioner to spend it.

The authorship of the first two parts is ascribed to the petitioner, whilethat of the fourth to the writer of the news item. The authorship ofthe third part is ambiguous. It may be construed as a statement bythe petitioner; it may also be interpreted as an expression of opinionof the news reporter. It is proved by the evidence of the petitioner thathe never made the statements the authorship of which is attributed tohim. The petitioner could only swear to prove a negative fact, andthis he did. We do not find anything in his statement for which heshould not be believed. No evidence was produced by the respondent toprove the truth of any of these statements. As will be seen whiledealing with another point. Arising in connection with this allegedcorrupt practice, the Mabakoshal actively supported the respondent'scandidature and carried on intensive propaganda for him. So alsoSbyamcharan Sbukla was an active supporter of the respondent. Therespondent did not produce any correspondent who was the author ofthe news item to prove the fourth part of the statement, which obviously

E.L.R.] KAMAL NARAYAN SHARMA 0. D.P. MISHRA 381

emanated from him and also to prove that the first two statementswere actually made by the petitioner. In fact, truth was not pleaded indefence. The respondent admitted that there was no other Vakil orP.S.P. candidate at the election concerned. (Deposition dated 9-8-1968).It must, therefore, be held that the statement (Annexure I) relatedto the petitioner's personal conduct and character and that it wasfalse.

36. It was an argument before us that annexure I, cannot be saidto be a statement of fact within the meaning of section 123(4) °fthe Act, but it is a more expression of opinion. It is not possible toaccept this argument in respect of the first part of the statement. Thevery opening words of the news item 'HUA YE K I " (it so happened),incontestably express what actually happened, that is to say, that thepetitioner actually made that statement. The making of a statementis a fact and the publication of that fact is a statement of fact which,if found to be fake, is within the mischief of the section. The secondpart is also a statement of fact inasmuch as it tells the reader that afictitious statement had been made by the petitioner to "knowledgeablesources" The fourth part of the statement is again a statement of fact,that Niranjan singh accepted the "goods" (meaning that he agreed tomake payment to the petitioner and authorised him to spend it).

37. Sub-section (4) requires: (1) there was publication of anystatement of fact by a candidate or with his consent; (2) the statement isfalse; (3) the candidate believes it to be false, or does not believe it tobe true; (4) it relates to the personal character or conduct of anothercancidate; and (5) the statement is reasonably calculated to prejudicethe prospects of the other candiate's election [See Sheopat Singh v. Ram-ratan. 1965(1) S.C.R. 175]. The third element refers to the belief of thecandidate publishing the statement, or, who is in the eye of law res-ponsible for it and not the belief of the person who actually made thefalse statement. This proposition has been succinctly laid down andfully explained by their Lordships in Kumaranandv.BrijMohenlal Sharma,A. I. R. 1967 S. C. 808, thus :—

"The responsibility of the candidate for the publication arises if"he publishes the thing himself.

He is equally responsible for the publication, if it is publishedby his agent. Thirdly, he is also responsible where the thingis published by any other person but with the consent of the can-didate or his election agent. In all the three cases, the responsi-bility is of the candidate and it is ordinarily the candidate's beliefthat matter for this purpose. If the candidate either believes thestatement to be false or does not believe it to be true, he would beresponsible under section 123(4). It is the candidate's belief thatmatters and not the belief of the person who actually made it withthe consent of the candidate." Dr. Jaggeet singh vs. Gyani Kartersingh A. I. R. 1966. S. C. 773 was referred.

3 8 2 KAMAL NARAYAK SHARMA V. D-F, MISKRA ' [VOL. XII

"When the first part of annexure I was put to the respondent in cross-examination, he said :—

"I cannot say whether the statement is true or not. I wouldprefer to say that it is not true."

With regard to the second and the fourth parts of annexure I the res-pondents' answar is:—

"I have absolutely no knowledge about its correctness orotherwise."

An argument was constructed by the learned Advocate Generalthat when a person says that he has no knowledge, it cannot besaid that he either believes it to be false or does not believe itto be true. According to him, if a person does not believe a thing tobe true, the alternatives are :—(i) He believes it to be false; or (2)he does not believe it to be tiue; or (3) he neither knows whether itis true or false. But in our opinion, the third also means that he doesnot believe it to be true, because, otherwise, he cannot say that he doesnot know whether it is true or false. To put it differently if one doesnot believe a thing to be false, he either believes it to be true or doesnot believe it to be true. The expiessions used in section 123(4) of theAct are : "believes to be false" and "does not believe to be true". Theseare also the expressions used, for instance, in sections iii{g), 101 and199 of the Penal Code. These expressions are different from "knowingor believing to be false" as employed in section 197 and203, Penal Code, or "knowing to be false" in sections 196, 198, 200and 209.

38. The next contention advanced for the respondent is that thestatement (annexure I) cannot be said to be reasonably calculated toprejudice the petitioner's election prospects. The learned AdvocateGeneral construed the statement as to carry an effect on the electorswhich would raise the prestige of the petitioner either for his clever-ness or honesty. The reader would think that there is nothing wrongin a candidate asking his party to finance him and fhe reader willalso be favourably impressed by the petitioner demanding only Rs. 15,000in preference to Rs. 30,000 offered to him as a bribe. On this inter-pretation, it was argued that the statement is not within the mischiefof section 123(4), as its effect would be whole some and would onlyadvance the petitioner's prospects. We are unable to accept thislogic. It is first of all to be remembered that the test is not to evolvea possible of ingenious interpretation. A news item is not a matter forresearch or contemplation. That meaning must be attached whichthe news item will convey immediately and plainly at the first glance.We are clearly of the^opinion that the effect which the news item (annexureI) willl at once create on the mind of the reader is that the petitionerexported money from his party under the threat of withdrawing fromthe candidature. Secondly, the demand of Rs. 15,000 was also exorbi-tant and therefore, extortions because the permissible limit of election

E . L . ^ . ] KAMAL NARAYAN SHARMA V. O.P. MISHRA 383

expenses under the law was Rs. 7000. Thirdly, the expression "LA-TIFA SUNAYA'; stamps the petitioner as a person who fabricatesstories. AU this was bound to, or at least reasonably calculated tolower the petitioner in the estimation of the electorate and thus pre-judice his election prospects.

39. Shri Munshi laid a great deal of stress on the context in whichthe statement (annexure 1 ) was published, (i) In the issue of the 8thApril the Mahakoshal published a report entitled as a report by "San-jay" with the caption "KAHAN RAJA BHOJ AUR KAHAN GAN-GU TELI". (Sanjay figures in the Mahabharat as one invested withthe superhuman power of seeing all that was happening at the battlefield and relating it to Dhitrashtra.) Thus, it means a far sighted personin that article, the respondent was compared favourably with RajaBhoj and the petitioner with Gangu Teli. The latter was shown to be adwarf like an oil-man in contrast to the former who was styled King.Although the aim of this article was to be little the petitioner, it waslittle realised that it would offend and annoy the Teli voters, whosenumber was fairly large, and, further they would cast their votes, on theground of brotherhood, in favour of the petitioner who had been stampeda Teli. (ii) The petitioner's statement about Dr. Ausaf Hussain'soffer had appeared in three news papers. Nav Bharat, Nai Duniyaand Yugdharm on the 10th April. To neutralise the effect created bythese two, this offending statement (annexure I) was published in theMahakoshaJ of the 12th April, imputing to the petitioner that he wasout to grab Rs. 15,000 by extending a threat to his party, and convey-ing to the electorate that the story of the offer of Rs. 50,000 wasa myth. And, this was quickly followed by a statement (Ex. P. 76)issued by the respondent, which was published in the Mahakoshal ofthe 13th April. Shri Munshi argued that although this statementpostansibly expressed disapprobation of the article "KAHAN RAJABHOJ AUR KAHAN GANGU TELI" in reality its aim was to pacifythe Teli community. In this statement (Ex. P. 75) it was suggestedthat in the legand, it was "Raja Gangeya Deo Telangan" who hadfought with Raja Bhoj, and then it became a saying "KAHAN RAJABHOJ AUR KAHAN GANGEYA TELANGAN", as time passed, thesaying depreciated into "KAHAN RAJA BHOJ AUR KAHANGANGU TELI". The article then goes on to say that in Sanskrit "Tal"means "such" (affections) so that the Teli community is 'very Affec-tionate'.

40. This back ground and Shri Hubghi's argument we shallhear in mind when we shall deal with the question whether the state-ment (annexure I) was published by the respondent or with his consentwhich question ramains to be seen. Since the question is common toall the three annexures, it will be convenient to deal with it at once place.

41.ANNEXURE 2.—The second offending statement (annexure II)was published in the Mahakoshal, issue dated the 26th April. It isa news item with the caption : " (NEHRUJI MAHATMA GANDHIKE HATYARE. KAMAL NARAYAN PAGLA HO GAYA". (Nehruji

3 8 4 KAMAL NARAYAN SHARMA V. D.P. MISHRA [VOL. XL!

Murderer of Mahatma Gandhi? Kamal Narayan has gone mad.)The news is that on the 23rd April, "the official candidate of the P.S.P.':While delivering a speech at Bar village from a cloth shop, utteredRASHTRA PITA BAPU KA HATYARA NEHRU HAF' (Nehruis the murderer of Bapu, the father of the Nation.).

42. The petitioner, as P. W.5, stated that he was always in hissenses, and it was wrong to say that he has lost his mental equilibrium.It was also wrong to say that he had gone to Bar village on the 2?rdApril or that he called a meeting or that he began delivering a speechfrom any cloth shop and "it is also false that I said there that Nehruwas the murderer of Bapu, the father of the Nation". The petitioner'sstatement on oath must be believed as it was not rebutted, nor was 'henews item pleaded, nor did the respondent make any endeavour toproduce the news correspondent. It must, therefore, be held that thestatement (annexure II) is false. The impugned news item is a re-presentation of what the petitioner reportedly uttered at a meeting.When it was put to the respondent in cross-examination, he stated :—

"I have absolutely no idea whether the tact published inannexure II is true or false. I was not present at that meeting".

This means that the respondent did not believe it to be true. (Reasonsalready stated in connection with annexure I.)

43. According to the objected statement the petitioner uttered thosewords factually. Therefore, it cannot be disputed that it is a statementof fact within the meaning of section 123(4).

44. The argument of the learned Advocate General is that to callNehruji the murderer of Mahatma Gandhi would be an expression ofopinion and not a statement of fact; it is figurative language meaningthat Pandit Nehru, as Prime Minister of India, did not pursue andtrans'ate into action the political philosophy of Mahatma Gandhi. Fur-ther, this opinion will relate to the speaker's political conduct. Theargument would have deserved some consideration if Mahatma Gan-dhi's assessiration had not been a fact, which is unforgetable. Thereader's mind will immediately connect the statement with it and itwill register the plain and apparent meaning and its natural impact.

45. But what we are really concerned with is not what the petitioneruttered (according to the news in item) but whether the statement (an-nexure II) published by the Mahakoshal representing to its readersthat the petitioners uttered those words, is a statement of fac tor not.According to the news item, the petitioner went to the village anathere started his speech with that utterance. Thus, all this is astatement of fact, which we have found to be false. Further, therecan be no doubt that the objected statement relates to the personalconduct and character of the petitioner, depicting it as base and mean

In Inderlal V. Lai Singh. A. I. R. 1962 S. C. 1156, Gajendragadkar,J., speaking for the court, explained the distinction in these words : —

fc.L.R.] KAMAL NARAYAN SHARMA V. D.P. MISHRA 385

"In order that the elections should be free it is necessary that theelectorate should be educated on political issues in a fearless manner andso, the Legislature thought that full and ample scope should beleft for free and fearless criticism by candidates against the public andpolitical character of their opponents. But the position with regardto the private or personal character of the candidate is very different.Circulation of false statements about the private or personal characterof the candidate during the period preceding elections is likely to workagainst the freedom of ejection itself in as much as the effect created byfalse satements cannot be met by denials in proper time and so theConstituency ha? to be protected against the circulation of such falsestatements which are likely to effect the voting of the electors. Thatis why it is for the protection of the constituency against acts whichwouM be fatal to the freedom of election that the statute providesfor the inclusion of the circulation of false statementsconcerning the private character of a candidate amongstcorrupt practices. Dissemination of false statements about the personalcharacter of candidate thus constitutes a corrupt practiceIn discussing the distinction between the piivate character and thepublic character sometimes reference is made to the 'man beneath thepolitician, and it is said that if a statement of fact affects the manbeneath the politician, it touches private character and if it affects thepolitician, it does not touch his piivate character".

The same distinction was expressed in Guiuji Shrihari v. Vithalrac (C.A.1778 of 1967) decided by the Supreme Court on November 19, 1968,thus :—

"When false allegation of fact pierces the politician andtouches the person of the candidate, then section 123(4) *s con-travened.",46. It was rot contended before us that the impugned statement

(annexure II) was not calculated to prejudice the petitioner's election.prospects.

47. Shri Munshi pointed out that the setting in which this state-ment appeared in the Mahakoshal was this : (1) An appeal of PanditJawaharlal Nehru to vote for the respondent was widely and profuselycirculated through cards and also through the Mahakoshal. PanditNehru's photogtaph was also printed with his appeal. Beirg a very-respected and beloved leader of the country, his appeal was bound tohave great influence on the electorate in favour of the respondent.

48. To counteract that influence, Gopinath Shaima, a petitioner'ssympathiser, published on the 23rd April a leaflet (Ex. P. 155) inwhich was reproduced the respondent's letter dated September 9, 1951,.addressed to Seth Govinddas, President, Mahakoshal Provincial Con-gress Committee, by which letter the respondent resigned all officeswhich he held and also the primary membership of the Congress. Thefollowing passages are emphasised by Shri Munshi :—

"The immediate cause for. submitting the resignation is theact of the Prime Minister to turn ou<" Shri Puiushottamdas.T.andpn

25— 4Elec. Com./71

3 8 6 KAMAL NARAYAtt SHARMA V. D.P. MISHRA [VOL. XIX

and to himself become the President and thus an absolute dictatoi.After the occurrence of this immediate cause, my continuationin the Congiess will mean betraying the country. The removal ofRajrishi Tandon is murder of democracy. This sir hasbeen committed with the help of Nehiuji because of his lust for-winning the election. This is the limit of degeneration of the Congress.The 8th September 1951 will be regarded as an inauspicious dayin the history of India. I regard Pandit Nehru's politics and in-fluence a curse for India "

At the top of this letter its publisher (Gopinath Sharma) asks "HewwillN Mishraji who calls Pandit Nehru a dictator and the murdererof democracy, strengthen his hands?" Then he writes that the letteris being published to inform the general public to what extent the Con-gress candidate, Pandit Dwarka Prasad Mishra hates the Piime Mi-nister of the country, Pandit Jawaharlal Nehru. At the bottomof the letter, the publisher asks the respondent four questions: "(1) Byre-entering the Congress are you not betraying the country ? (2) Hasyour re-entry in the Congress and grant of Congress ticket to you stoppedthe murder of democracy within the Congress? (3) According to yourletter the Congress had reached the limit of degeneration in 1951, atwhat level is it now ? (4) When you regard Pandit Nehru's politics andinfluence as a curse for India, why are you seeking votes in his name?"

49. Another leaflet (Ex. P. 157) was published by one TriveniShanker, another sympathiser of the petitioner. In this leaflet, a letterof Pandit Ravi Shanker Shukla, dated January 16, 1952, addressed tothe President, Mahakoshal Provincial Congress Committee, was re-produced. In that letter, Pandit Ravi Shankar Shukla wrote, interalia, that after leaving the Congress, the respondent delivered strongspeeches against the Congress, in Delhi and several towns of Uttar Pra-desh, from the Jan Sangh platform; that the respondent tried to createa new political body, named 'Lok Congress', and made an effort to setup candidates who would contest election against the Congress candi-dates from all the 232 Constituencies of Madhya Pradesh; and that whenhe did not succeed and foresaw a dark future, he tried to re-enter theCongress but that had become impossible. Pandit Shukla referred tohis letter which he had earlier given to the respondent and said thatapprehending that it would be exploited, this letter was written toexplain the occasion on which and the circumstances in which he hadgiven that letter to the respondent.

50. In the said leaflet (Ex. P. 157), the publisher says that PanditRavi Shanker Shukla's aforesaid letter was published by Seth Govindasand he asks whether the respondent, Shyamcharan Shukla, PanditShankerlal Tiwari, or Pandit Shyam Sunder Mushran will contradictin writing the view expressed by the late Ravi Shankarji about PanditMishra. Mr. Munshi's contention is that the effect on the electorateof these leaflets Exs. P. 157 and P-155 which were published on the22nd and 23rd April respectively, was going to be tremendous prejudicalto the respondent's election prospects. Having regard to the degree ofesteem and love which the people had for Pandit Jawaharlal Nehru

I.L.R.] KAMAL NAKAYAN SHARMA V. D.P. MISHRA 387

nothing could counteract that effect unless some statement involvingthe name of Pandit Nehru and causing hurt to the feelings of the vot-ers, was attributed to the petitioner and published to the electorate.And, nothing worse could be imagined about Pandit Nehru than thathe was the murderer of Bapu. It is with this background and in thissetting that the statement (annexure II) was published in the Maha-koshal.

51. At the fag end of the trial before the Tribunal, the petitionerproduced Shyamlal (P. W. 91) who stated that the respondent himselfwas the author of the news item (annexure II) Shri Munshi relied onthis direct evidence and also the attending circumstances to show thatthe respondent himself was the author of annexure II, or, at any rate,it was published with his consent. This point we shall consider at itsappropriate place. The learned Advocate General vehemently criti-sised the evidence of Shyamlal and stamped it concocted.

52. ANNEXURE-?,. The third offending statement (annexureIII) was published in the Mahakoshal daily, in the issue dated the 4thMay (Saturday), the very day of the poll. The caption is ''Quarrelbetween Kamal Naryan and Niranjan Singh on likelihood of defeat."The impugned statement is this :—

"It has been gathered from the Bazar news that initially KamalNaryan was not willing to contest against Pandit Mishra butwhen Thakur Latth Niranjan Singh offered to pay him Rs. 10,000/-for this purpose, he agreed. Yesterday, when Kamal Naryan de-manded payment of that amount, Letth Niranjan singh adpotedevasive tactics. It is said that on this Kamal Naryan became sofurious that he shed tears and said ' 'I have been made to lose fromboth sides. Defeat is bound to be but the hope with which I hadstood has also been drowned."

[The report bears Thursday 2nd May]53. The petitioner states that no quarrel took place between him

and Thakur Niranjan Singh that he did not meet Niranjansingh onThursday or a day before, or on any other day between the date of thenotification calling the bye election and the date of polling. He saysit is false that he was not prepared to contest the election against therespondent, when in fact he himself had offered to contest the byeelection. It is false that Thakur Niranjansingh offered to pay himRs. 10,000/- and then he agreed to contest the election. ThakurNiranjansingh never offered him an\ money. It is false that hedemanded the said amount from Thakur Niranjansingh and that hehad adopted dilatory tactics. He says there was no such incident.It is also false that he became angry and shed tears or that he said thathe had suffered on both counts, meaning that he had lost Rs. 50,000/-offered to him by the side of the respondent and also lost Rs. 10,000/-which Thukar Niranjansingh had offered. He says .there was no suchincident. He did not say that his defeat was certain, or that hishope had been crushed. He says that ther,e was no such talk.

54. The petitioner's statement is supported by <the evidence ofNiranjansingh (P.W.43). Having read the statement (annexure HI)


he stated that it was false ; that there was no such talk betweenhim and Kamal Naryan, as alleged in the news item ; and that therewas no such incident as was related in it. He says that he did not meetthe petitioner on any day during the election period, that is, betweenthe 3rd April and the 4th May.

55. No evidence was produced by the respondent in rebuttal. ]Nor

was truth pleaded or argued before us. It must be held that the statement(annexure III) is false.

56. The statements that there was a quarrel between the petitionerand Thakur Niranjansingh, that the petitioner demanded payment ofmoney, that the petitioner shed tears, that the petitioner uttered thewords quoted, are all of fact. A statement of fact cannot be styled asopinion just because it is prefixed by the expressions, such as,"there is a talk" or "it is said" etc.

59. The statement undoubtedly relates to the petitioners personalcharacter. It suggests that the petitioner became a candidate to makemoney. The allegation effect, to borrow the language of the SupremeCourt "pierced the politician and touched the person of the candidate"and was, therefore, within the mischief of section 123(4).

60. There cannot be any doubt that the statement was calculatedto prejudice the petitioner's election prospects.

61. When the statement (annexure III) was put to the respondenthe stated : I have no knowledge whether this statement, is true orfalse. "For reasons already stated, this means that he did not believeit to be true".

62. We have reached the conclusion in respect of each of thethree impunged statements (annexuras 1,2, and 3) that it is false, thatrespondent did not believe them to be true ; that it is a statement offact; that it relates to the personal character or conduct of the petitionerand that it was reasonably calculated to prejudice the petitioner'selection prospects.

61. This brings us to the question of the respondent's liability forpublication of these false statements. The appellant's first contentionis that the respondent himself was the author of the false statements(annexures II and III). Alternatively, he contends that the false state-ments were published with the consent of the respondent.

62. On the first part of his contention, the petitioner producedShyamlal (P. W. 91) before the Tribunal. [The High Court discussedthe evidence and proceeded.]

72. Having thus discarded the direct evidence of Shyamlal, wemust advert to the crucial point whether these,false statements werepublished with the respondent's consent.


73. The statements, annexures I, II and III appeared in the Maha-koshal. Shyamcharan Shukla was its editor. As will be seen the Maha-koshal and Shyamcharan Shukla were both agents of the respondentwithin the meaning of the election law.

74. The law in England, as stated in Halsbury (Simonds) Vol.14, 3rd Edition, page 169, para 300, in this :—

"A candidate's liability to have his election avoided under thedoctrines of election agency is ditstinct from, and wider thanhis liability under the criminal or civil law of agency. Oncethe agency is established a candidate is liable to have his ele-ction avoided for corrupt or illegal practices committed byhis agents even though the act was not authorised by the candi-date or was expressly forbidden. The reason for this stringentlaw is that candidates put forward agents to act for this, and ifit were permitted that these agents should play foul, and thatthe candidate should have all the benefit of their foul playwithout being responsible for it in the way of losing his seat,great mischief would arise. In this respect the relationshipbetween candidate and agent resembles that of master andservant."

The same was the law in our country formerly, as would appearfrom the following statement in Jagat Narayan's Law of Election andElection Petitions :—

The term agent has a very wide meaning in election law. It is notrestricted to ordinary relation of principal and agent. The relation ismore like that between master and servant where the former is heldresponsible for the unauthorised or negligent acts of the latterNo exact definition of agency in election law has been given. BlackburnJ. pointed out the difficulty of arriving at one. 'All agree that the relationis not the common law one of principal and agent, but that the candidatemay be responsible for the act of one acting on his behalf, though theacts be beyond the scope of the authority, or indeed, in violation ofexpress injunction' The substance of the principal ofagency is that if a man is employed at an election to get you votes,or if, without being employed, he is authorised to get you votes,or if, although neither employed nor authorised, he does to yourknowledge get your votes, and you accept what he has done and adopt it,then he becomes a person for whose acts you are responsible in the sensethat, if his acts have been of an illegal character, you cannot retainthe benefit which those illegal acts have helped to procure for you."

(see pages 253, 255 and 257)75. But the above position of the law is now confined in its application

to an "election agent" as distinct from "any other agent" . In the presentcase, there was no election agent.

76. The remaining two categories under section 123(4) a r e "agent"and "any other person". Publication of a false statement by any personbelonging to either of these two categories, to be a corrupt practice, must

3 9 0 KAMAL NARAYAN SKARStA V. D.P. MISHRA [VOL. XL1

be "with the consent of the candidate or his election agent." These wordswere inserted in that section by the Representation of the People (2ndAmendment) Act, 1956 (XVII of 1956).

77. The predominant aim and object with our law cherishes is thatelections must be free and fair. Purity of elections is the backbone ofdemocracy. The command of the law is that a candidate's election shallnot be vacated merely because some newspaper, which has beensupporting his candidature, published a false statement in relation toanother's personal character or conduct; but a candidate shall not beallowed with immunity to get such false statements published. Out lawbalances the two situations and endeavours to provide remedy for both theevils. The cruxis to be found in the word "consent". It is as proved thatsuch publication was with the consent of the candidate, then in the eyeof law, his responsibility is the same as if he himself committed the act.

78. When in the respect of a charge of corrupt practice it is not prov-ed that the candidate himself committed it, then the election can bedeclared void, when either: (1) the corrupt practice was committed, withthe consent of the candidate, by an agent or by any other person; or (2)If consent is not proved, then the corrupt practice was commited by anagent of the candidate and the result of the election has been materiallyaffected. The interpretation which the expression "materially affectsthe result of the election" received in Vashist Narayan Sharma V.Deochandara, (1955) 1 S.C.R. 509, has recently been reiterated inSamant JV". Balkrishna V. George Fernandes. Civil Appeals No. 895 and 896of 1968, decided by the Supreme Court on February 12,1969. Since theappellant was unable to contend before us that there is any evidence onrecord to satisfy the strict requirement laid down in Vashist Narayan(supra), the question whether the person who committed corruptpractice were agents of the respondent becomes immaterial in thiscase. Thus, consent is the crucial point.

79. In Kaishore Singh v. Bhanwerlal, 1966 M. P. L. J. 563, we held"I t is clear law that; (a) were a corrupt practice of publishing a falsestatement is committed by person who is not a candidate or the ele-ction agent, the consent of the candidate or his election agent must beestablished, (b) This is so even if such a person is an agent, but not anelection agent, so that at election cannot be held to be void merely uponthe proof of a corrupt practice by an agent, (c) A political party settingup a candidate, sponsoring his cause and promoting his electionmay be called an agent, but a candidate is not responsible for what themembers of the political party, to which he belongs, do to further theinterests of the party as a whole. His responsibility is limited to the actsto which he or his election agents consent, (d) The consent, requiredunder section 123(4) may be express or implied, (e) To prove consentdirect evidence is not always necessary. Consent can be implied or in-ferred from acts and conduct of the candidate or from other facts andcircumstances. It is a matter of fact in every case, (f) Whetherthe consent proved is express or implied, the higher standard of proof-beyond, reasonable doubt is required."

E.L.R.] KAMAL NARAYAN SHARMA 0. D.P, MISHRA 391

We relied, among others Sheopatsingh V. Harishchandra, AIR i960S. C. 1217 and Jagdevsingh V. Rampratap, (1964) 6 SCR 750, whichhas been followed in Shri Krishn vs. Satnarain (C. A. 1321 of 1967decided by the Supreme Court on March 23, 1968) and in Amamath V.Lachhman Singh (C. A. 717 of 1969 decided by the Supreme Court onAugust 23, 1968).

80. In Ramakrishna v. Jaisingh, Civil Appeal No. 1949 of1967, decided by the Supreme Court on April 23,1967, the questionwas whether the false statement was published by an agent of the re-turned candidate with the consent of the returned candidate.The evidence was not direct. The conclusion was reached bythe High Court on a reasonable view of all the circumstances of thecase. The returned candidate had left the full directions of his electionscampaign to the agent who had successfully worked for him in thefirst three general elections. His Lordship, Hidayatullah C. J.,speaking for Court, laid down thus :—

"In view of the general power which Krishna Prasad Chopraenjoyed in the matter of the returned candidate's election campaign,he must be held to be his agent for the purposes of section 123(4because of the explanation already quoted. This general powerwas sufficient to establish a kind of prior consent, which isrendered very certain by the subsequent conduct of the candidatein not disowing or contradicting the poster or refusing to pay thecharge for the printing. The whole action therefore, is an integra-ted one right from the appointment of Krishna Prasad Chopra,as the all-in-all agent to run the election of the appellant, and theknowledge of the poster by the returned candidate between thefirst appearance of the poster and the poll. "

In D. Gopala Reddy V. Bai Talpaliar, Civil Appeal No. 6 of1968, decided by the Supreme Court on August 2, 1968, the ChiefJustice spoke for the Court thus, "Before we consider the evidence itis necessary to point out that Mr. Ram Reddy in arguing this appealdrew our attention to certain observations of this Court as to the trial ofelection petitions in which allegations of corrupt practice were madeagainst candidates. These cases are Jagdev Singh Sidhanti v. Pratap SinghDaulat (1) and Mohan singh v. Bhaswarilal and others (2). In both thesecases it is stated that a charge of corrupt practice is in the nature 01a criminal charge and the burden is upon the election petitioner toestablish his charge full and to satisfaction of the Court. It is arguedby Mr. Rama Reddy that the burden is always on the election peti-tioner and the evidence must be clear and cogent and direct and shouldlead to the irresistible inference that the charge as pleaded has beenfound. In the absence of such clear evidence it is not open to the courtto infer from mere preponderance of probabilition that a corrupt practi-ce was committed. We would add that, in our opinion, the real approachto the problem is this. The acts constituting corrupt practice must be


proved and established by direct evidence. In other words, if a par-ticular type of corrupt practice is pleaded and alleged, it must beestablished by clear and cogent evidence that the corrupt practice didin fact take place. The evidence must be positive and definite. Butthere is room for another approach regarding the complicity of the can-didate or election agent or some person acting with the consent of thecandidate or his election agent. This may be inferred from circumstan-tial evidence also, provided the circumstances point clearly to theindividual charged."

81. In Dr. Chenna Reddy V. Ramchandra Rao, Civil Appeal No.1449 of 1968, decided by the Supreme Court on December 17, 1968(infra), their Lordships have made it very clear that although the trialof an election petition on the charge of commission of a corrupt practicepartakes of the nature of a criminal trial and that the finding mustbe based not on the balance or probabilities but on direct and cogentevidence to support it, the inherent difference between the trial of anelection petition and a criminal trial must also be noted :—

"A candidate charged with such corrupt practice invariable landsevidence to prove his denial; it becomes the duty of the Courtto weigh the two versions and come to a conclusion as towhether not withstanding the denial and the evidence inrebuttal, a resonable person can form an opinion thaton the evidence the charge in satisfactorily established

Inference can, therefore, be drawn against aparty who does not call evidences which should be availablein support of his version. "

82. In Samant JV. Balkrishna V. George Fernandes, Civil Appeals No.895and 896 of 1968, decided on February 2, 1969, the Chief Justicehas spoken for the Supreme Court thus :—

"The principle of law is settled that consent may be inferredfrom circumstantial evidence but the circumstances mustpoint unerringly to the conclusion and must not admit ofany other explanation. Although the tnal of an electionpetition is made in accordance with the Code ofCivil Procedure, it has been laid down that a corruptpractice must be proved in the same way as a Criminalcharge is proved. In other words, the election petitionermust exclude every hypothesis except that of guilt on thepart of the returned candidate or his election agent."

83. The following principles are clearly deduced from the abovedicta : (1) In an election petition, burden lies on the election peti-tioner to prove his charge of corrupt practice fully and to thesatisfaction of the Court. (2) The charge of corrupt practice in an ele-ction petition is quasi criminal in nature. (3) It must be proved byclear and cogent evidence that the corrupt practice did in fact takeplace. (4) The test is "beyond reasonable doubt", and not prepon-derance of probabilities". (5) A charge in a criminal case can be held tobe proved not only on the basis of direct evidence but also circumstantial,

E.I.K.] KAMAL NARAYAN SHARMA V. D.P. M1SHRA 393

so also a charge of corrupt practice in an election petition can beproved both by direct and circumstantial evidence. (6) To base arinding on circumstantial evidence, the Court must see that everyother reasonable hypothesis is excluded. (7) Doubt or hypothesis mustbe "reasonable" not "Panciful" or based on "anything may happen".(8) When a corrupt practice is committed by an agent, direct evidenceof the candidate's consent may not be available. Complicity of thecandidate may be inferred from circumstantial evidence also,provided the circumstances point clearly to the candidate.

84. We shall judge this case by these standards.

85. Direct evidence of consent can hardly be expected. When,in the absence of direct evidence, the question of consent has to bedetermined on circumstantial evidence, each case must be decidedon its own facts. [In the discussion to follow, for the sake of con-venience, we shall employ the expressions "publishing candidate" and"complaining candidate" for the words "candidate" and "any can-didate" respectively as used in section 123 (4).]

86. When a false statement is published in a newspaper, whichsupported the candidature of the publishing candidate and thequestion is whether the publication was with his consent, a varietyof considerations will come into play. (1) The first is in what settingit was published; the occasion for its publication. (2) The second will bethe object in view with which it was published and the prejudiceit was calculated to cause to the election prospects of the complainingcandidate. (3) The third would be whether the newspaper or itseditor or correspondent was an agent of the publishing can-didate. The position of a newspaper which has casually supportedthe candidature of the publishing candidate is different from one whichactively and regularly canvased in favour of the publishing candidate.(4) The forth will be the frequency of personal contact or communicationbetween the publishing candidate and the editor or correspondent of thenewspaper. (5) The fifth would be whether the publishing candidatehad knowledge of the publication. This again, may generally haveto be gathered from the attending circumstances, since direct evidencemay not be available. In this context it will be material whetherthe constituency, lies in a big city, where numerous papers publishedin different languages are circulated, or the constituency consists ofsmall places and the number of newspapers received there is verysmall. The language of the paper in which a false statement appearswill also be relevant. (6) The sixth will be how the publishingcandidate reacted to it after its publication whether he believed itto be true, or, in case, he believed it to be false or did not believeit to be true after an enquiry, whether the publishing candidate issueda statement either to contradict the impugned statement or at least tosay that he did not associate himself with it. If it was published withhis consent, he would not contradict it as that would neutralise itseffect. No contradiction would have been necessary, if the newspaperwas not actively, working for the publishing candidate. (7) Seventhly,


in case another false statement had appeared in the newspaper priorto the publication of the impugned statement, it will be materialwhether after the first publication, the candidate had issued anydirection or request to the newspaper not to publish any false statementin relation to the personal character or conduct of the complainingcandidate. These, in our view, would be the important considerationswhich win weigh before the Court. Any one of them singly may not leadto any conclusion. Their cumulative effect will determine the issue.Knowledge cannot be equated with consent. Mere connivance by itselfdoes not amount to consent. The background with which it waspublished; personal contact between the editor and the respondent;and the knowledge of the publishing candidate and how he reactedwill go a long way to show the existance or absence of his con-sent, and whether the newspaper published the statement as anagent of the publishing candidate or whether it was purely in thedischarge of its normal functions and not as such agent. While deal-ing with each annexure separately, we have alerady stated in detailthe setting in which it was published. To recapitulate in short : (i)The false statement (annexure 1) appeared two days after the peti-tioner's statement regarding Dr. Ausaf Hussain's offer of Rs. 50,000/-to him. This annexure was quickly followed by the respondent'sstatement explaining "Rajabhoj and Gangu Teli". (2) The back-ground of annexure II is very significant. Two sympathisers of thepetitioner had published on the 22nd and 23rd April, the respondent'sletter of 1951 by which he left the Congress and in which he hadused strong language against Pandit Nehru and the letter of PanditRavi Shankar Shukla of 1952 addressed to Seth Govinddas in whichthe respondent's resignation was recalled. There was mention of hisfrustration and there was also a mention that his re-entering into theCongress had become impossible. These letters were published inorder to counter-act the effect and influence of Pandit Nehru's namebeing used in canvassing for votes in favour of the respondent. Thisannexure II was published to counter-act the effect of those two let-ters. (3) Annexure III was published on the very day when poll wasgoing to be taken. This statement was made to create an impressionon the electorate that the petitioner had agreed to contest the electionjust to gain money. All the three false statement (annexure I, II andIII) aimed uniformly at creating an impact on the mind of theelectorate that the petitioner was very base and mean. Nothing worsecan be thought of a man who would call Pandit Nehru as the mur-derer of Mahatma Gandhi. In Guruji Shrihari v. Vithalrao, Civil AppealNo. 1778 of 1967, decided by the Supreme Court on November1968, it is observed :—

"A campaign of slander is likely to create prejudice in theminds of the people against him. It cannot be put downa? cynicism, when it is sometimes said that the biggerthe lie the greater are its chances of being accepted as true.There is tendency in the mind of unwary public to believethe words about individuals."

E.I .R. ] KAMAL NARAYAN SHARMA V. D.P. KHSHRA 395

In Sudhir Hendre v. Shripat Dange, A.I.R. 1960 Bom. 249, i twas observed :—

"In ascertaining the true nature of the statement made, theCourt will have to take into consideration all the surround-ing circumstances, including the occasion when it waspublished or made, the person publishing it or making it,the audience or readers to whom it is addressed as also theprecautions or care taken by the publisher to verify thetruth or otherwise of the statement challenged."

In Mohansingh V. Bhawarlal, A.I.R. 1964 S. C. 1361, it islaid down that the Tribunal would be entitled to take into accountmatters of common knowledge among the electorate and read thepublication in that background.

87. A large number of witnesses were produced by thepetitioner to prove the distribution of the three issues of the Maha-koshal in which appealed annexures I, II and III respectively.Annexure 1 was distributed by Kanhaiyalal, respondent No. 2 atLawan (per P. W. 52 and P. W. 82) by Raghunandan Prasad atKasdol (per P. W. 54) and by Shyama Charan at Kasdol (per P.W. 80). Annexure II was distributed by the respondent himselfat Kasdol (per P. W. 80); by Chakrapani Shukla at Lawan (perKomal Prasad P. W. 50 and Bishram Prasad P. W. 82); byRaghunandan Prasad and Parasram at Katgi and Sel (per HariramP. W. 54 and Chandulal P. W. 77). Annexure III was dis-tributed by the respondent at Kasdol (per Dhanaram P. W. 51 andShyamlal P. W. 91) and also by Bhawaniprasad Tiwari at Kasdol(per Dashrath Lai P. W. 80); by Mushram at Katgi (per GoverdhanP. W. 56); by Shee) Babu at Sel (per Ramdayal P. W. 76); by Cha-krapani Shukla at Ramkokla (per Khumuran P. W. 83 and BisesarP. W. 84); by Mahant Vaishnavdas at Barelai (per Madan Mohai;P. W. 67); by Chandrakar at Siriadia (per Deosaram P. W. 64) ;by Tamaskar at Lawan (per Hariram P. W. 52 and RamkrishanP- W. 53). In our opinion , it will not be safe to believe one-place-one-witness evidence. But we find that the evidence of KomalPrasad P. W. 50, and Bishram Prasad P. W. 82 about the distributionof annexure II by Chakrapani Shukla at Lawan, the evidenceof Khumuram P. W. 83 and Biseasar P. W. 84, about the distributionof annexure III by Chakrapani Shukla at Ramkokla; and the evidenceof Ramdayal P.W. 76 and Chandulal P. W. 77 about the distribution ofannexure III by Seel Babu at Sel, is satisfactory. Chakrapani Shuklaand iN. N. Seel were agents of the respondents.

88. Mahakoshal was a Hindi daily published from Raipur. Thepetitioner produced all the issues of the Mahakoshal from the 2nd Aprilto the 5th May. It regularly supported the respondents candidature.Shyamcharan Shukla was the proprietor, editor, publisher, printer andkeeper of the Press (per Ex. P. 120), based on prescribed declaration underthe Press Act). Since the contrary was not proved, he must be held to bethe editor of the paper. (State ofMaharashtra v. R. B. Ckaudhari A.I.R. 968'S.C. 110).Learned Advocate General argued that the paper canvassed for


the Congress, as Shyamcharan Shukla was the vice president of theDistrict Congress Committee. But, firstly, there is nothing on record toshow that the paper belonged to or was managed by the Congress Partyso that it was an organ of that party. It belonged to an individual andthe paper as such was not tied up with the Congress Party. ShyamcharanShukla was all in all. Secondly, it has been demonstrated by the peti-tioner from the issues which are on record that the Mahakoshal lent itssupport to the respondent and Rani Shyam Kumari only, but not to theother two candidates. Nearabout the same time four elections were totake place and Congress candidates were contesting ail the tour.There is sufficient and credible evidence that the newspaper wasdistributed in Kasdol, Lawan, Sel and several other places in theconstituency.

89. It is admitted by the respondent that Shyamcharan Shuklaworked for him. He stated in cross-examination :—

"I cannot give the names of all the persons who enthusiasticallysupported me but if I am asked about a particular name,I can answer. Shyamcharan Shukla was supporting me."

Evidence is in abundance that Shyamcharan Shukla was per-sonally associated with the respondent in his election campaign andhe extensively toured with him. The petitioner stated that Shyam-charan worked for the respondent throughout from the 2nd Aprilto the 5th May : that he saw Shyamcharan working for the respondentat Kasdol; and that he saw him going along with the respondentin the Kasdol constituency in a jeep. Lakhanlal (P. W. 78) is a witnessfrom Kasdol. He says that Shyamcharan Shukla and the respondentstayed continuously from the beginning in the house of Parasram.It is true that this witness worked for the petitioner during the byeelection, but, that, by itself, is no ground to disbelieve him, as observedin Punjabrao v. D. P. Meshram, A.I.R. 1965 S. C. 1179. The evidenceof Shyamlal (P.W. 91) is also the same. He states that the respondentand Shyamcharan Shukla remained at Kasdol from the beginningto the end, while Shri Mandloi and Shri Katju also stated therefor a day or two and went away. So also is the evidence of Bam-dayal (P. W. 76). The appellant, in his endavour to get thi? factadmitted by the respondent, put several questions intermiter tlyabout Shyamcharan Shukla's personal association with him in theelection campaign. The respondent stated :—

"I reached Kasdol on some day between the 14th and 16thApril. Then I started extensive tour of my constituency.Sometimes Shyama Charan accompanied me. But notalways in my tour Ex. P. 82 Mahakoshal, page 4columns 5 to 8, is shown to me. Now, I say that I must havevisited about 10 villages on the 18th April and that Shyam-charan and Parmanand Bhai were with me. Ex. P. 83 isshown to me. On its basis I say that it is correct that I visitedSel and Parchhed on 19-4-63, and Shyamcharan Shuklaand Kanhaiyalal respondent No. 2 also accompanied me.They also made speeches there Now, on being shown


Mahakoshal (Ex. P. 94) dated 3-5-63, I have no reasonsto doubt that the place which I visited, as said just now,was Bhaiukona. As it is reported in the paper that Shyam-charan Shukla and Tamaskar were with me, I have noreason to disbelieve it. The substance of my speech, asreported, seems to be correct."

The respondent , while answering questions in connection withthe arrangements he had made and the expenditure incurred, said :—

"(Volunteers) I was treated like a bridegroom just to go roundthe constituency to show my face to voters and to speaka few words to them."

90. Shyamcharan Shukla was cited as a witness by the respondentin his first list of witnesses and also in the third consolidated list,dated July 12, 1966, which was filed after the close of the petitioner'scase, but he was not examined.

91. In our opinion, it must be held that Shyamcharan Shuklawas in personal association of the respondent throughout duringhis election campaign.

92. Apart from Shyamcharan Shukla's personal associationthe respondent admitted that during the election campaign, he readthe Mahakoshal among other newspapers. The constituency con-sisted of small places where very few papers were in circulation. Onthe basis of Kumarananda v. Brij Mohanlal Sharma, A.I.R. 1967 S.C.808, we have already held that the respondent did not believe anyof these statements to be true. Truth was not pleaded in respect ofany of these three annexures. No statement was issued by him eitherto contradict any of these statement or to say that he did not associatehimself with any of them.

93. These false statements (Annexures I, II and III) were publi-shed one after another but the respondent did not contradict orrepudiate any.

94. In Sheopatsingh v. Harishchandra, A. I. R. i960 S. C 1217,it was argued that consent is stronger than connivance, and knowledgecannot in itself be equated with consent. But their Lordships said :—

"From the above facts it is not an unreasonable inference todraw that all the above acts were committed not haphazardbut by design and the appellant must have consented tothem."

Facts of one-two cases are exactly the same. Sometimes theymay be more or less similar. It is the principle laid down by the SupremeCourt, which should be applied. In Samant Balkrishna's case (supra),their Lordships, after an elaborate discussion, restated tho followingrule:—

.398 KAMAL NARAYAN SHARMA V. D.P. MISHRA [VOL. XLI

"There is no doubt that consent need not be directly provedand a consistant course of conduct in the canvass of the can-didate may raise a presumption of consent. But there arecases and cases."

Then, on a consideration of the entire facts and circumstancesof that case, their Lordships held that consent was not proved. Someof the features of that case were : (i) Mr. Atrey had opened columnin his newspaper to support Mr. Fernandez's candidature. Although 9articles appeared in the column between December 3, 1966 and Fe-bruary 2, 1967, not a single false statement from this column hadbeen brought to the notice of the Supreme Court. (2) Therewas not even a suggestion that Mr. Fernandez wrote any articlefor the Maratha or communicated any fact . . . . Mr. Atrey did notpublish any article of Mr. Fernandez, nor did he publish any pro-paganda material. (3) Regard was had to the activities of Mr. Atreyas editor and his own personal hostility to Mi. Patil en the issueof Sampurna Maharashtra Samiti. (4) Many of the news items werepublished in other papers also. For example, Free Press Journal,Blitz, writers like Welles Hengens had also published similar state-ments. If they could not be regarded as agents of Mr. Fernandez,the Supreme Court did not see any reason to hold that the Marathaor Mr. Atrey could safely be regarded as agent of Mr. Fernandez,when acting for the newspaper so as to prove his consent to the publi-cation of the defamatory matter. (5) "If the matter was left entirelyin the hands of Mr. Atrey, who acted solely as agent of Mr. Fernandez,something might be said as was done in Ramkrishnds case."

95. Some of the features of Ramkrishna's case (supra) are a kinto the present case. (1) The poster was prepared as a counterblastto the posters issued and published by the supporters of the Jan Sangh.(2) The returned candidate admitted that he had left the conductof the election to Krishan Prasad Chopra. (3) There was time enoughfor the returned candidate to have done something to countermandthis poster by clearing to the public that he was not responsiblefor this poster and that they should not put any faith in them. Hedid nothing of the kind. (4) In view of the general power whichKrishan Prasad Chopra enjoyed in the matter of the returned candida-te's election compaign, he must be held to be his agent for the purposeof section 123(4) because of the explanation already quoted. Thisgeneral power was sufficient to establish a kind of prior consent whichis rendered more certain by the subsequent conduct of the candidatein not disowning or contradicting the poster or refusing to pay thecharges for the printing.

96. In ultimate analysis, the question of consent is one of factand it is to be decided in each case on its facts and circumstances.

'Circumstances in their entirty have to be kept in view. It is the overallpicture of the case which presents itself, and not isolated facts,which will guide the Court to reach the conclusion. In the present• case, the comulative effect of the respondents' closeness with the-Mahakoshal and personal association with Shyamcharan Sbukla

E.L.K.] KAMAL NARAYAN SHARMA 0. D.P. MISHRA 399

for days together and he setting in which the false statement werepublished one after another and the respondent not contradictingnor disassociating himself from them would have persuaded us tohold that these false statements (annexures I, II and III) were publishedwith the consent of the respondent.

97. But in this case also there is room for the same approach asin Samant Balkrishan's case. On all the three issues of the Mahakoshalthere is printed the name of another editor also. He may have inhis own enthusiasm published there false statements. (Mr. Atreydid in the Maratha). We would give the benefit of this doubt to therespondent, though not without much hesitation.

98. ELECTION EXPENSES : The limit of permissible expenseswas Rs. 7000. In his return of election expenses (Ex. P. 39), therespondent showed an expenditure of Rs. 6324.14. The peti-tioner's contention in the election petition was that the respondenthad deliberately omitted to include in his return, many items of ex-penditure which he had incurred or authorised in connectionwith his elections and that if those items were included in the returnof expenses, the amount would exceed Rs. 7000 in the aggregate.Thus, the respondent contiavened the provisions of section 77 (3)of the act and, therefore, committed the corrupt practice definedin section 123 (6) of the Act.

[The Court considered the evidence on allegations that variousitems of expenditure should have been included in the respondentsreturn of election expenses, but after holding that they were not provedthe Judgement proceeded].

151. The next contention of the appellant is that the respondent paidto the Congress party Rs. 2000/- as application fee, and made a depositof Rs. 500/- as security, for being given a Congress ticket to contest thisbye election, but this amount of Rs. 700/- is not includedin his return of election expenses; that amount must now be added.This plea is contained in paraghraph 7(c) (i) of the election petition.

152. The appellant examined Ramanarayan Purobit (P.W.93). Hesays that he is the permanant Secretarv of the Madhya Pradesh CongressCommittee, for the last 10 or 11 years. His evidence is:

"On 25 March 1963, Ramkrisbna Sbrivas paid Rs. 700/- tothe M. P. Congress Committee on behalf of Shri Dwarka PrasadMishraRs. 200/- on account of application fee and Rs. 500/- assecurity deposit, for seeking Congress ticket for the bye election.This amount was credited in the account and nothing was refundedto the depositor. Sbri Dwarka Prasad Mishra was given Congressticket for this bye election. The security of Rs. 500/r is refunded incase Congress ticket is not given to the candidate. The applicationfee is not refundable in any case. The en tire Rs. 700/- goes to theconsolidated fund of the Gongress Committee (Tie receipt is mar-ked Ex. A-i). The rules under which this amount of Rs. 700/- was

4 0 0 KAMAL NARAYAN SHARMA V. D.P MISHRA [VOL. XLI

paid to the Congress Committee, I produce Ex. A-2. I also produceapplication form (printed). It is marked Ex.A-3. This form was invague in the bye election. Congress ticket was given to Shri DwarkaPrasad Mishra afterpayment of Rs. 700/-".

The witness further states that the Provincial Ad hoc Committeeconsidered the names of the respondent and respondent No.2. There wassecret ballot. The respondent got 9 votes, while the respondent No.2got 11.The Adhoc Committee sent this result to the Central ParliamentaryBoard with the recommendation to give Congress ticket to respondentNo. 2. The Central Parliamentary Board, however, finally decidedto give ticket to the respondent.

153. The witness further says that the receipt (Ex. A—I) bears bissignature and also the ; Accountant's signature. It was also signed by theauditor who put a seal on it. The wintess produced the auditor's report,dated December 27, 1963 (Ex. A—5) which is accompanied by a state-ment (Ex. A—6) in which the amount of Rs. 700/- is shown. Total elec-tion deposits from the candidates is shown as Rs. 25075/-, and appli-cation fee Rs. 2800/-. Ramnarayan Purobit says that the above appli-cation fee of Rs. 200/- is included in this Rs. 2800/- and the deposit ofRs. 500/-is included in the above Rs. 25075/-. In the auditor's report,a certain amount has been marked as refundable but that amount doesnot include the amount deposited by the respondent. This is clear fromthe following statement of Ramnayaran Purohit :

"A candidate who is given Congress ticket is not entitled torefund, the auditor's report which has been referred to me aboutthe amount to be refunded is not about the candidates who have beengiven ticket. That remark is about the amount which was refundablewith reference to the general election of 1962, and the amount wasrefundable to the candidates who were not given Congress tickets".

154. It must be mention here that it was not contended before us,nor was it pleaded in the written statement, that the amount ofRs.200/" or Rs. 500/- was not shown in the return for the reason thatit was refundable.

155. Thus, from the records of the Provincial Congress Committee(counter-foil of the receipt, its account books and the auditor's report),which were produced and proved by the Ramnarayan Purohit (P.W.93 ),it is established that the respondent paid Rs.700/- to the Congress partyfor obtaining party ticket.

156. The respondent's reply is three-fold :

(i) The first is thatit wasnot the respondent but it was ParmanandBhai Patel who paid Rs. 700/- on his behalf but without his consent,so that it was not necessary to include this expenditure in his return.He states that it was during the pendency of the election petition beforethe Tribunal that he came to know of it, and then. Parmanand Bhai Pateltold him that he had thought it advisable to deposit the amount lest the

__ Ad hoc Committee might make it an excuse for not giving the respondenta ticket as his relations with the Ad hoc Committee were not good.


157. It was an argument for the respondent that since the Ad hocCommittee bad within its two groups—Deshlehra and Vishran groups—and since the former group which was in majority was not in favour ofthe respondent, he would not seek Congress ticket from the Ad hocCommittee so that to deposit Rs. 700/- was out of the question. Thereis no force in this argument. Firstly, the candidate cannot anticipatewith certainty what the decision would be. Secondly, it was onlyprudent and wise to fulfil the pre-requisite condition of depositing Rs.700/- with the Provincial Congress Committee so that his claim wouldnot be lost by default and the Ad hoc Committee would not have the op-portunity to say that his name could not be considered on that ground.This was more so because the recommendations of the Ad hoc Committeewere not binding on the Central Parliamentary Board which was tofinally decide whom to give the ticket. Therefore, notwithstanding anyapprehension, it was not only improbable but was prudent and wiseto deposit the requisite moneys and not take the risk of losing b \ default.Ramnarayan Purohit filed the rules which were in vague at that timeand which were applicable to this bye election. These rules requiresthat every person who seeks a Congress ticket must pay a fee ofRs. 200/- and deposit Rs. 500/-.

158. The Counter-foil of receipt No. 113 shows the amount wasreceived from the respondent and in all the books records of the Pro-vincial Congress Committee the amount of Rs. 700/- is entered as paidby the respondent. As against what is patent and obvious enough fromthe record of the Provincial Congress Committee, there is, thedenial of the respondent.

159. Ramnarayan Purohit has, no doubt, said that Ram KrishanShriwas had told him that the amount of Rs. 700/- had beensent by Parmanand Bhai Patel, but, in the first place, this part of hisevidence is inadmissible being hearsay. Ramnarayan Purohit cannot saywhether Parmanand Bhai Patel at all said anything to Ram KrishnaShriwas or whether Parmanand Bhai Patel had at all given this money to

^Shriwas or whether Parmanand Bhai Patel had said to Shriwasabout having received any request, instruction or authority fromthe respondent to make the deposit. Secondly, there is no mention ofParmanand Bhai Patel in the records of the Provincial Congress Com-mittee, not even in the receipt Ex.A—1, in connection with this pay-ment. Thirdly, Shri Munshi's argument is that Ramnarayan Purohit isa paid employee of the Provincial Congress Committee (designated as itspermanent Secretary) and this part of his evidence which goes beyondthe records of the Provincial Congress Committee must be disbelieved.Ramnarayan Purohit could not help production of the counter-foiland the accounts of the Congress Office as they are audited, but besuppressed other material. In our opinion, this part of RamnarayanPurobit's evidence that Ramkrishna Shriwas had told him that themoney had been sent by Parmanand Bhai Patel must be rejected.

160. It must be emphasised that by our order dated May 4, 1968the respondent was given a fresh opportunity to produce such oral anddocumentary evidence as he would desire to. In pursance of that order

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by his application dated July 19, 1968, he desired to examine fourwitnesses of whom Shri Parmanand Bhai Patel was one. But eventuallyafter his own evidence before us, he decided not to examine him and hislearned counsel made an application dated August 29, 1968, giving upall the four witnesses. If the sum of Rs.700/- had really been sent throughRamkrishna Shriwas by Shri Parmanand Bhai Patel to the CongressOffice, he could have come in the witness-box and would have saidso; and, in that case, he would have also said that it was not sent at therequest or on authorization by the respondent. That Shri Parma-nand Bbai Patel actively worked for the respondent and he went tothe constituency during the election is admitted by the respondent. Therespondent further admits that he had knowledge of the recommendationof the Ad hoc Committee which was made to the Central Parliamen-tary Board of the Congress. If he bad not deposited the money, thismust have put him to enquiry how the Ad hoc Committee could put hisname to vote and who paid the prescribed fee and security depositedto the P.C.C. office. For reasons best known to the respondent be gaveup Shri Parmanand Bhai Patel and did not examine him. Likewisein the respondent's aforesaid list of witnesses of July 19, 1968"a Munim of Parmanand Bbai Patel " was also included.The name of that Munim was not disclosed. He too was given up.

161. In Dr. M. Cbenna Reddy Vs. V. Ramchandra Rao and anr.(Civil Appeal No. 1449 of 1968, decided by the Supreme Court onDecember 17, 1968) their Lordships have laid down thus:—

"This court has held in a number of cases that the trial of andelection petition on the charge of the commission of a corruptpractice partakes of the nature of a criminal trial in that thefinding must be based not on the balance of probabilities but ondirect and cogent evidence to support it. In this connection theinherent difference between the trial of an election petition and acriminal trial may also be noted. At a criminal trial the accused neednot lead any evidence and ordinarily he does not do so unless hiscase is to be established by positive evidence on his side, namely, hisinsanity or his acting in self defence to protect himself or a plea ofalibi to show that he could not have committed the crime withwhich he was charged. The trial of an election petition on the chargeof commission of corrupt practice is some what different. More oftenthan not proof of such corrupt practices depends on the oral testi-mony of witnesses. The candidate charged with such corrupt pra-ctice invariably leads evidence to prove his denial; it becomes theduty of the court to weigh the two versions and come to a conclusionas to whether notwithstanding the denial and the evidence in rebut-tal, a reasonable person from the opinion that on the evidence thecharge is satisfactorily established. We cannot also lose sight of thefact that quite apart from the nature of the charge the trial itselfgoes on as if the issues in a civil suit were being investigated into.The petitioner has to give particulars of the corrupt practice withdetails in default whereof the allegations may be ignored; the peti-tioner has to ask for certain declarations and the procedure before

E.L.R.] KAMAL NARAYAN SHARMA V, D.P. MISHRA 4 0 3

the High Court is to be in accordance with that applicable underthe Code of Civil procedure to the trial of suits with the aid ofthe provisions of the Indian Evidence Act. Inferences can there-fore be drawn against a party who does not call evidencewhich should be available in support if his version."

162. Although non-maintenance of account of the election expensesas required by section 77(1) of the Act is not a corrupt practice undersection 123, yet, where true and timely kept accounts are not produced,it will be a strong circumstance against the candidate. The respondentsays that his accounts are not available as they have been lost.

(ii) Alternatively, it is urged that even if the respondent paidRs. 700/- to the P. C. C. it was not an "election expense." In our opinion,this contention cannot be accepted. The moneys which a candidate paysas fee and deposit are not refundable, if be gets a ticket. The entire mo-ney goes to the consolidated fund of the party [per Ramnarayan Puro-hit (P.W.g3)-]. Inreturn, whenaparty ticket is given to him, he gains theadvantage of the goodwill of the party and of its influence on the elec-torate. The 'deposit' loses its character and becomes as 'expenditure'the moment party ticket is given, because then the money belongs tothe party and cases to be refundable. Moreover, this point is concludedby the decisions of the Supreme Court in S. Khader Sheriff v. MunuswamiGounder. (1955). 2 SCR 469 and, in Vidya Sagar Joshi v. Surindar NathGautam (Civil Appeal No. 853 of 1968, decided on September 13, 1968}on which we shall rely in connection with the next argument.

(iii) Anotbei alternative argument advanced by the learned Advo-cate General is that this expenditure was incurred before the date of thenotification calling the election, so that it walked out of section 77(1)of the Act. The payment of Rs. 700/- was made on March, 25, 1963(per Ex. A-i), while the notification calling this bye election is datedMarch,27, 1963 (per M.P. Rajpatra Asadharan dated March 27,1963, at page 234).

163. It is true that section 77(1) fixes two termini; the first is thedate of publication of the notification calling the election and the last isthe date of declaration of the result thereof.

164. The question is when the above expenditure must be said tohave been incurred in the eye of law. It seems to us clear and beyonddoubt that the date of incurring an expenditure in connection with anelection is not necessarily the date on which the candidate is actuallyout of pocket. This will be clear from the following illustrations:—

(a) A candidate purchases petrol worth Rs.25000/- between thetwo material dates and bis motor vehicles consume theentire quantity for the purposes of the election betweentwo dates, but the entire purchase in on credit. Hepays the price after the declaration of the result.

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(b) A candidate having already made up his mind to contest an ele-ction, say as an independent candidate, purchases petrol worthRs. 25000/- before the notification is made and also paysits price before that date and then uses the entire quantity forthe purposes of his election between the two material dates. Inour opinion, it is incontestable that in the first case, the expend-iture must be held to have been incurred between the two mate-rial dates, not-with standing the fact that the candidate madethe payment after the date of the notification. So also in thesecond case, it must be said that the expenditure was incurredbetween the two material dates notwithstanding the fact thatthecmdidate made the payment prior to the date of the notifica-tion. To putit differently the date of payment is not nece-ssarily the date of incurring the expenditure. It must be held torelate back or to relate foreward, as the case may be, havingregard to the nature of the expenditure. If that were not thelaw, nothing would be easier then to defeat the provisionsof sections 77 and 123 (6) by making all payments inadvance before the date of the notification, or by with-holdingall payments until after the declaration of the result.

i6'|. In the present case, the amount of Rs. 700/- has to components;Rs.200/- application fee and Rs. 500/- deposit. Ramnarayan Purohit'sevidence is clear that the application fee of Rs. 200/- is not refundablein any case, and the deposit of Rs.500/- is also not refundable, if Congressticket i» given. This position is disputed. It must, therefore, be held thatthe deposite of Rs. 500/- continues to be a "deposit" until a ticket is givento the applicant; but no sooner ticket is given to him, it loses its characterand becomes an "expenditure". Therefore, in the present case, theexpenditure of Rs. 500/- was incurred on April 1, 1963., when therespondent was given Congress ticket.

166. In the view we take, we are wholly supported by the decisionin Vidyasagar Joshi V. Surrindemath Gautam, Civil Appeal No. 853 of 1968,decided by the Supreme Court on September 13, 1968. In that case thenotification calling the election was made on January 13, 1967. The ap-pellant had made the deposit of Rs. 500/- as security and Rs. 200/- as ap-plication fee with the Congress Party on or before January 2, 1967. Notonly that this payment was made before the notification but further theappellant was denied Congress ticket on or about January 10, 1967, thatis, be fore the notification. According to the rules of the Congress Partythe security deposit was refundable to the candidate, if he was notselected. But it was also provided in the same rules that if a candidatecontested election against the official Congress candidate, thesecurity deposite would be forfeited. The appellant in that case chose tostand as an independent candidate against the official Congress nomineeand incurred penalty of forfeiture. This was after the date of filing of thenomination papers (20 January 1967). The appellant had time till Jan-uary 23, 1967, to withdraw from the contest. If he had done so, the depositwould have presumably been returned to him. But, as he became a contest-ing candidate, the forfeiture of the deposit became a fact. The appellant's

E.L.R.] KAMAL NARAYAN SHARMA V. D.P. MISHR.A 405

contentions was that as the payment of Rs. 700/- had been made beCjrethe period marked by section 77 (1) of the Act, it was not an expenditurewithin the meaning of that section. Their Lordships rejected this con-tention. They distinguished their decision in Haji Aziz V. Commissioner,of Income tax (1961) 2 SCR 651, on the ground that " the question therearose under the Income Tax Act and the analogy was not apt because"not only the prescriptions of the two laws are different, but the un-derlying principle is different also". They further distinguished anearlier decision of theirs which had turned upon the question when thecandidate became a candidate for the application of the rule and section123(7) of the Representation of the People Act, as it then stood. TheirLordships observed that in that earlier case it was held that the candidatebecame a candidate when he unequivocally expressed his intention bymaking the payment, but the "question of candidature is now obviatedby prescribing the two termini between which expenditure is to be coun-ted". Their Lordships further rejected the appellant's contention thatsuch an expenditure cannot be regarded as expenditure in connectionwith the election because the connection must be the connection ofutility and no something which is of no use but rather against thechances of victory. The last mentioned question does not arise in thepresent case.

167. On behalf of the respondent it was urged that he was not givenCongress ticket by the provincial Congress Committee, but it was givenby the Central Parliamentary Board. In our opinion , that makes littledifference. The prescribed fee and the deposit made the respondenteligible to a Congress ticket. It does not matter whether the ticket wasgiven by the provincial Congress Committee or by the Central Parlia-mentary Board. In fact the Central Board is the final authority to give aticket or refuse it. It was an argument for the respondent that the HighCommand could give the ticket to the respondent even if the prescribedfee and deposit had not been made. But, in our opinion, that does notmean that a payment actually made must be ignored merely because theCentral Parliamentary Board had the power to exempt a candidate fromsuch Payment.

168. For these reasons it must be held that the respondent incurredan expenditure of Rs. 500/- on April 1, 1963, when Congress ticket wasgiven to him, and in Consequence of which the deposit was forfeited tothe Congress party.

169. As regards the application fee of Rs. 200/- the position is di-fferent. While Ramnarayan Purohit was being cross-examined, we allowedthe respondent to get produced through him the report and recomm-endation of the Ad hoc Committee to the Central Parliamentary Boardof the Congress. This document the witness had himself brought fromBhopal, evidently on instructions from the respondent. From that docu-ment it appears that it was on March 26, 1963 that the Ad hoc Committeeconsidered the rival claims of the respondent and Kanhaiyalal Mishra(respondent No. 2) Thus, the application fee of Rs. 200/- was utilized forthe purpose of" the respondent's election and became an expenditure on

4 0 6 KAMAL NARAYAN SHARMA 0. D.P. MISHRA [VOL. XLI

that date. As it was a day prior to the date of the notification, it mustbe held that that expenditure was not incurred within the accountingperiod under section 77 (1) of the Act.

170. In the result, it must be held that a sum of Rs. 500/- must beadded to the expenditure shown in the respondent's return of electionexpenses.

1 y 1. Cloth: The petitioner's next contention is that the respondentincurred an expenditure of about 625/- on account of the price of cloth,but it is not included at all in his return of election expenses [paragraph7 b(ix) of the election petition.] [The Court discussed the evidenceand held].

187. As a result of this discussion, it must be held that therespondent incurred or authorised expenditure of Rs. 510 "25 onpurchase of cloth and that this sum must be added to the totalshown in his return of election expenses.

188. Rice.—The appellant endeavoured to show that on April26, 1963, Chakrapani Shukla purchased for the purpose of the res-pondent's election three bags of rice from Annapurna Rice Mills,Baloda Bazar, but the price of only one bag is entered in thereturn, Chouthmal Agarwal (P.W. 16), Munim of Annapurna RiceMills, says that on April 26, 1963, three bags of rice were soldto Chakrapani Shukla under cash memos No. 355, 356 and 357at Rs. 59-37 per bag. He brought before the Tribunal and hadbefore him at the time of his deposition the carbon copies of thecash memos. Voucher No. 37 filed with the return is cash memoNo. 355 and it is entered in the return. But there is no entryin the return of the cash memos No. 356 and 357, nor were theyfiled with it. The appellant urges that an amount of Rs. 118-74must be added to the expenditure shown in the return. In ouropinion, it must be held on the unrebutted testimony of Chouth-mal Agfawal (P.W. 16), supported by reliable documentary evidencethat Chakrapani Shukla did purchase two more bags of rice onApril 26, 1963 from the Annapurna Rice Mills. It appears fromparagraph 221 of its judgment that the learned Tribunal completelyoverlooked paragraph 4 of Chouthmal's deposition!

189. The respondent admits that Chakrapani Shukla workedfor him. He says, "I did not authorise Chakrapani Shukla to makepurchases on my behalf for the election work but LaxnyishankarBhatt must have made purchases through him as he was livingat Baloda Bazar, which is the nearest place from Kasdol. "Chakra-pani Shukla was at Baloda Bazar. Earlier, (in his deposition datedAugust 7, 1968, before us) the respondent admitted" food stuffat Baloda Bazar was purchased through Chakrapani Shukla".And, still earlier, that is, in his deposition dated the 6th August,the respondent said " I did not assign any particular work to Chakra-pani Shukla, but being a resident of Baloda Bazar, he purchased


food stuff and other things in connection with my election. Hewas one of the workers ; he must have canvassed for me. From thedate that I was declared a candidate to the date of holding theelection; Chakrapani Shukla worked for me". ,

190. Learned counsel for the respondent argued that the onlything which the petitioner could establish was that on April 26,1963, Chakrapani Shukla purchased three bags of rice from theAnnapurna Rice Mills, but there is nothing to show that the othertwo bags (besides the one shown in the return) was also purchasedin connection with the respondent's election. In our opinion, thefollowing circumstances are strong enough to hold that the othertwo bags were also purchased in connection with the respondent'selection : (1) Chakrapani Shukla was an agent of the respondent.The respondent admits that in connection with his election Chakra-pani Shukla made purchases of food stuff at Baloda Bazar. (2)On one and the same day, three bags of rice were purchased.The cash memos bear consecutive Nos. 355, 356 and 357. (3) Cha-krapani Shukla was named as one of the four witnesses whom therespondent desired to produce before us (per list dated July 191968 filed in this Court), but later on he was given up and not

produced. If he had not purchased those two bags in connectionwith (he respondent's election, he would have come before thisCourt and said so, and then he would have also explained why hepurchased the other two bags of rice (see Chenna Reddy V. Rama-chandra Rao supra). (5) The respondent says that LaxmishankarBhatt made payments to Chakrapani Shukla for the food stuffpurchased by the latter. But Laxmishankar Bhatt was also notproduced, although his name was also included in the list of wit-nesses (dated July 19, 1968 filed in this Court). It must, therefore,be held that a sumofRs. 118. 74 was wrongly omitted from the returnof election expenses and this amount must be added to the totalof the respondent's election expenses.

191. Cards.—With his return (Ex. P. 39), the respondent filedvoucher No. 2 which is a bill-cum-receipt, dated April 8, 1963,of Mahakoshal Press, Raipur, for the supply of 10,000 cards forRs. 80.00 and 500 letter forms for Rs. 16.00 total Rs. 96.00 Onthis bill, it is recorded "Received in full". There is also a separatereceipt of the same date (8th April) passed by the MahakoshalPress, Raipur, to the respondent for Rs. 96*00 in "part payment"or advance for printing letter heads and cards. This receipt isalso marked as voucher No. 2 This latter receipt is not for the priceof the material (cards and letter forms) but it is for printing; andit is in "part payment of advance". Thus, these were two separatepayments, although on the same day. But in the return of expenses,only one item of Rs. 96.00 has been shown and the description is"printing charges". The other payment of Rs. 96.00, that is, costof the cards and letter forms, was omitted. This omission wasput to the respondent and he was asked whether the first sheetof voucher No. 2 relates to the cost of cards and letter forms, while


the second sheet is for advance payment for printing. The respondentadmitted this to be correct. He was then shown his return (Ex. P.39) and was asked whether the former was not shown in the return,while the latter alone was entered. His reply was that he couldnot explain it.

192. It must, therefore, be held that the sum of Rs. 96.00that is, cost of cards and letter forms, was omitted to be entered inthe return (Ex. P. 39). It must be added to the grand total.

193. Error.—There is a patent clerical mistake in the return(Ex. P. 39) Voucher No. 23, filed with the return shows that one bagof rice was purchased on April, 7, 1963 for Rs. 80.37, but in thereturn of election expenses, the amount has been shown as Rs.60.37. I*- *s admitted for the respondent that this was a clericalerror and Rs. 20.00 must be added in the grand total.

194. Security.—The respondent had deposited Rs. 250.00 assecurity under section 34 of the Act, when he filed his nominationpaper. He included this amount in the return of his election ex-penses. Our attention to this was invited by this respondent byhis application dated August 6, 1968, made here.

195. Under section 77(1) of the Act, a candidate is required tokeep a separate and correct account of all the expenditure in con-nection with the election incurred or authorised by him . . . .It is quite clear from section 158 of the Act that the amount of securitydeposited under section 34 is to be returned to the person making it orhis legal representative or is to be forfeited to the appropriate authorityin accordance with the provisions of that section. Sub-section (2) enacts :"except in cases hereinafter mentioned in this Act the deposit shall bereturned as soon as practicable after the result of the election isdeclared". In the case of a successful candidate, there is no questionof deposit being forfeited. It, therefore, becomes returnable thevery next moment after the declaration of the result of the election,that is to say, on the same day on which the result of the election isdeclared.

196. The word "expenditure" means "the action or practice ofexpanding; disbursement; consumption; amount expended from,time to time" (Shorter Oxford Dictionery). And the word "expend"means "to pay away lay out; spend (money), esp. for determinateobjects, use up (material or force) in any operation." It is thusclear that a deposit of security money cannot be characterised asan amount 'spent' or 'consumed' or 'used up', unless and until it isforfeited. In this view of the matter, the deposit which is madeafter the first material date under section 77(1) and becomes com-pulsorily returnable on or before the second material date underthat section, cannot be said to be an 'expenditure incurred' withinthe meaning of that section. It becomes an 'expenditure' only whenit is forfeited, but not otherwise. This view was also taken inChandra Shekhar Singh V. Sarjuprasad Singh. 22 ELR. 206.


197. A contrary view was taken by the Election Tribunal Surat in Ka-tange Takandon V. Pinto Fredick 18 E.L.R. 403, on which Shri Munshirelied. There it was held that it is an expenditure actually incurred for theelection purposes during the period of election and the mere fact that itwould be returned to the candidate if elected or under certain conditions,cannot justify non-inclusion of such expenditure in the account to be filedunder section 77 of the Act. Three reasons appear to have been givenby the learned Tribunal. As in the case before us, so in that case, thatground was raised for the first time before the court. We do not see whatcould come in the way of the Court to hold that an amount included inthe return of election expenses was not an expenditure within the meaningof section 77 of the Act, so that its inclusion in the return was based on amisconception. We* are clearly of the opinion that where a candidateincludes in his return of election expenses, a sum which is not in the eyeof law an expenditure, and where no evidence is required to be taken andthe matter is purely one of law, the appellate Court can certainly excludeit from consideration in calculating the total amount of election expensesof the candidate for the purposes of section 77, read with section 123 (6)of the Act. The second ground stated by the learned Tribunal is that oncean expenditure is shown in the accounts lodged by a candidate, it is notopen afterwards to say that they were wrongly shown. We are unable toconcur in this view. No estoppel is created. The third reason stated bythe Tribunal is that it was an expenditure actually incurred for the elec-tion purposes during the period of election, and the mere fact that itwould be returned to him, cannot justify one to say that it was not anexpenditure. Emphasis is laid on the fact that the security is deposited"during the period" specified in section 77 (1). In our view, this is not thecorrect approach. On the day of the declaration of the result, and assoon as the result is declared, it becomes certain whether the amount ofdeposit is forfeited; and, if not forfeited, it is bound to be refunded. Inthe former case, the deposit loses its character and at once becomes anexpenditure ; but, in the latter case, it still remains a deposit and at notime partakes the character of an expenditure. It is true that the momentthe result is declared, in practice, the amount deposited is not refundedin cash to the candidate then and there. If it had been, the positionwould have been beyond argument. The mere fact that it is not practi-cable to place the money back into the hands of the candidate then andthere will not make any difference. We are, therefore, of the opinionthat the inclusion of the amount of Rs. 250/- in the return of the electionexpenses was unnecessary and it must now be excluded in calculating thetrue and correct grand total of the respondent's election expenses.

198. Petrol.—At this juncture, we shall further recall that an expen-diture of Rs. 59' 16, for which petrol was purchased from J. Shuklaand Co. on May 9, 1963, is entered in the return of election expensesof the respondent. There is a corresponding entry in the dealer's book.There is no doubt that this expenditure was incurred on the 9th May,after the date of the declaration of the result. It is, therefore, not withinthe relevant period fixed in section 77 (1) of the Act. It is not the appel-lant's case before us that this petrol was not purchased on the date asshown in the return and in the dealer's books, but during the relevant

4 1 0 KAMAL NARAYAN SHARMA V. D.P. MISHRA [VOL. X U

period. It must, therefore, be held that this amount of Rs. 59-16 must besubtracted from the total of the expenditure shown in the respondentsreturn of election expenses.

199. Conclusions.—-The conclusions we have reached may now besummed up as follows :—

(1) It is proved that on April 6, 1963, a certain person offered topay Rs. 50,000/- to the petitioner if he wou'd withdraw fromthe contest, but his identity is not proved. It is not proved thatthat person was Dr. Ausaf Hussain oi Sagar. It is not provedthat he was an agent of the respondent. It is not proved thathe offered the bribe with the consent oi the respondent.

(2) It is proved that the following, among others, were agents ofthe respondent within the meaning of section 123 of the Repre-sentation of the People Act, 1951, read with its explanation:—Shaymacharan Shukla, Parmanand Bhai Patel, LaxmishankerBhatt, Basant Kumar Tiwari, Chakrapani Shukla, WasudeoChandrakar, Bhuwan Bhaskar Singh, Rohini Kumar Bajpai,Jaideo Satpati and N. N. Seel.

(3) It is proved that electors were conveyed to some oi the pollingstations (but not all as alleged by the petitioner) in motor ve-hicles, but it is not proved that any vehicle was hired orprocured for this purpose with the respondent's consent.

(4) It is proved that the Mahakoskal, a Hindi daily, publishedfrom Raipur, and Shyamacharan Shukla, who was itsproprietor, publisher, printer and keeper of the Press, wereboth agents of the respondent within the meaning ofsection 123 of the Act.

(5) It is proved that three false statements (annexures I, II andIII) were published in the Mahakoshal, issues of the 12th and26th April and 4th May, 1963, in relation to the personalcharacter and conduct of the petitioner; that all the three werefalse; and that the respondent did not believe any of them tobe true. It is held that they were statements of facts and thatthey were reasonably calculated to prejudice the electionprospect of the petitioner.

We felt persuaded to hold that they were published with the const ntof the respondent within the meaning of section 123 (4) of theAc1, b-t we have given benefit of doubt to the respondent.

(6) It is proved that the respondent paid Rs. 200/- as applicationfee and Rs. 500/- as security deposit, total Rs. 700/- in theoffice of the Provincial Congress Committee, Bhopal, for theobtaining Congress ticket to contest this bye election. We alsohold that this sum of Rs. 700/-was an expenditure incurred inconnection with the respondent's election. But we hold thatthe application fee, Rs. 200/- was not election expensewithin the meaning of section 77 of the Act, as it was incurredbefore the notification calling the election,

E.L.K.] KAMAL NARAYAN SHARMA V. D.P. MISHRA 4 1 1

(7) We hold that the following expenditure Was incurredor authorised by the respondent within the meaning ofsection 77 of the Act, but it was not shown in the returnof election expenses :— „

(a) Paid to the Congress as security deposit for ob-taining party ticket, which amount was forfeitedwhen ticket was given to the respondent (onApril 1, 1963) . . . . . . 500.00

(b) Price of cloth paid to Keshrichand . . . 510.00(c) Price of two bags of rice, paid to Annapurna Jtice,

Mills . . . . . . . . 108.74(d) Cost of cards and letter papers paid to Maha-

koshal Press . . . . . . . 96.00(e) Clerical error in entering in the return, expendi-

ture of Rs. 60.37, instead of Rs. 80.37 . . 20.00Total . 1,234.74

This amount must be added to the total expenditure shownin the return.

(8) Benefit of doubt must go to the respondent in respect of—(a) Rs. 633.75 payment to Laxmi Press, Raipur appearing

in its account books.(b) Rs. 355.00 payment to a cook and 3 other workers of

Lawan.(9) All other allegations of the appellant in relation to election

expenses are not proved.(10) We hold that the following payments, which the respon-

dent included in the return of his election expenses, werenot election expenses within the meaning of section 77of the Act :—

Rs.(a) Security deposited under section 34 of the Act . 250.00(b) Petrol purchased from J. Shukla & Co. Raipur

on May 9, 1963 (after the declaration of theresult) . . . . . . . . 59.16

Total . 309.16

This amount of Rs. 309.16 must be subtracted from the totalexpenditure as shown in the respondent's return of election expenses.

(11) Thus we hold that the account of the respondent's electionexpenses correctly comes to this :—

Shown in the return of election expenses . . . 6,324.14Add Rs. 1,234.74

T o t a l . 7 , 5 5 8 . 8 8 "S u b t r a c t R s . 3 0 9 . 1 6 . . . . . . . 3 0 9 . 1 6


This being in excess of Rs. 7,000/- the permissible limit, it is heldthat the respondent incurred or authorised expenditure in contra-vention of section 77 of the Act, and, therefore, was guilty of curruptpractice under section 123 (6) of the Act.

(12) It is held that the election of the respondent was void undersection 100 (1) (b) of the Act.

200. It remains to be mentioned that at the conclusion of thehearing of this appeal, a question arose whether proceedings shouldbe drawn up under section 99 of the Act and notice should begiven to Shyamacharan Shukla why he should not benamed for having committed corrupt practice as defined in section123(4) of the Act. Three false statements (annexures I, II and III)were published in the Mahakoshal, of which he was the owner,editor, publisher and printer, and that his responsibility was noless even if he was designated the Chief Editor. ShyamachandranShukla was an agent of the respondent. Within the meaning of thatsection, Shyamachandran was not, and could not be, made a partyto the election petition and, therefore, not in this appeal.

In Kishoresingh v. Bhanwarlal, 1966 M.P.L.J. 563, the election ofKishoresingh had been declared void by the election Tribunal. Heappealed to this Court. The election petitioner also made a grievancethat Khuman Singh, Uma Shankar Trivedi and V. K. Saklecha commit-ted corrupt practices so that the Tribunal should have noticed them andnamed them under section 99 of the Act, and that that should be doneby the appellate Court. We said in that case that the petitioner shouldhave moved this Court as soon as it becomes seized of the appealso that the requirements of the proviso could be complied withbefore the appeal became ripe for hearing. On the ground ofavoiding further delay, proceedings under section 99 were not drawnup in that case. In the present case, it must be recalled that whenthis appeal came up for hearing in April 1968, the respondentraised certain preliminary objections and the appellant also arguedcertain preliminary points, all of which were decided by our orderdated 4, May 1968. It was the duty of the appellant on that occasionto satisfy us prima facie that Syamchandran Shukla had committed a cor-rupt practice under section 123 (4) of the Act, so that a noticecould be issued to him and the opportunities to which he was en-titled under section 99 of the Act could have been made availableto him. That was not done. In our opinion, avoiding further delayis again the outweighing factor.

201. Another question which arose at the conclusion of thehearing was whether Kanhaiyalal Mishra (respondent No. 2) shouldbe named. As he is a party to this appeal, no fresh notice underproviso to section 99 |of the Act is required to be given to him.Shri Pandey, his learned counsel, first contended that the electionpetition itself was defective in as much as the affidavit filed withit was not valid and did not fulfil the requirements of the law.This question had been decided by the Supreme Court, but Shri


Pandey contended that it is not binding on him. We are unableto accept this argument. As respondent No. 2 was a party beforethe Supreme Court, that decision is binding on him. He is notentitled to reagitate that question. The second argument advancedby Shri Pandey was that the reasons for naming ShyamacharanShukla were stronger than for the second respondent. Althoughthat cannot be a ground for absolving the second respondent, thecorrupt practice which he is alleged to have committed in publi-cation of a false statement (annexure I) by disrtibuting that parti-cular issue of the Mahakoshal at Lawan. It is no doubt true and fullyestablished that the second respondent was an agent and worker ofthe respondent. He issued an appeal (Ex. P. 37) and he accompa-nied the respondent and addressed election meetings. But, in ouropinion, the evidence of Hariram (P. W. 52) and Bishram PrasadTiwari (P. W. 82) that the second respondent distributed the issuesof the Mahakoshal is of a weak type and not safe to be reliedupon for the purpose of naming the second respondent.

202. We must observe that the false statements (annexure I ,I I and III) published in the Mahakoshal must have seriously pre-judiced the appellant's election prospects. We have given benefitof doubt to the respondent on the question of consent. On this occasion,we desire to express our feeling that whereas the cherished aimof our law is that elections must be free and fair, and whereasthe Supreme Court has time and again made observations such as :

"A campaign of slander is likely to create prejudice in the mindof the people against him. It cannot be put down ascynicism when it is sometimes said that the bigger thelie the greater is the chance of its being accepted as true.There is unfortunately a tendency in the minds of the unwarypublic to believe the worse about individuals. Democracy willbe a farce if interested persons are allowed to freely indulgein character assassination during election."

(Per Guruji Shrihari V. Vithalrao and others. Civil Appeal No.1178 of 1967, decided by the Supreme Court on 19-11-1968. Seealso Inderlal V. Lalsingh A.I.R. 1962 S.C 1156) yet, in our law thereis a loophole for commission of that corrupt practice, and moreeffectively, and also with impunity through a newspaper. The lawshould be more "stringent.

203. We further desire to observe that if incurring cr authorisingexpenditure in excess of the prescribed limit is to be a corruptpractice, as it is now, the provisions regarding maintenance of accountsof election expenses must be more stringent.

204. We thank Shri Dharmadhikari for making availableto us copies of the recent decisions of the Supreme Court in VidyaSagar Joshi V. Surrindernath Gautam (supra), Guruji Shrihari V. Vithalrao(supra); Dr. Ckenna Reddy V. Ramchandra Rao (supra); and Samast


jV. Balkrishnan V. George Farnandez (supra), for which we had towait after the appearance of their short notes, one after another,in the issues dated October 13, 1968, December 13, 1968, January 1,1969 and March 1, 1969 respectively of the Supreme Court Notes.

205. The appeal is allowed. It is declared under section 100(1) (b) of the Representation of the People Act, 1951, that the elec-tion of Shri Dwarka Prasad Mishra to the M.P. Legislative Assem-bly, in the bye election of May, 1963, from the Kasdol constituency,was void because it has been proved that he incurred or authorisedexpenditure in contravention of section 77 of the Act and thus hehas been guilty of corrupt practice as defined in section 123 (6) of theAct, and we record that finding under section 99 of the Act.

206. "We direct that the parties shall bear their own coststhroughout.

Appeal allowed.

ELECTION LAW REPORTjS

VOLUME XLI

INDEX

PAGE

SUBJECT

Agent-Corrupt practice — Necessity of proof of candidate's consent tospecific corrupt practice—Newspaper publishing attacks on characterof candidate— if editor can be deemed to be agent of rival candidate—knowledge, if sufficient proof of consent.

Samant JV. Batakrishna etc. v. George Fernandez & Ors. (Supreme Court) 260

Agent—Relationship of Candidate and agent not common law relationof principal and agent.

Mograj v. Radha Kishna Birla & Others (Rajasthan H. C.) . . 296

Appeal—person found guilty of corrupt practices along with the appellant—whether necessary parties in appeal to the Supreme Court.

Balchand Jain v. Naravan Shankar Trivedi <2? Am. (Supreme Court) . 163

Ballot box—tampering of—report by the Returning Officer—relevantonly when found that the election materially affected by such tem-pering.

Laxman Prasad Vaidya v. Sri Gangadhar Yadaorao Tamaskar and others

( S u p r e m e C o u r t ) » • . . • • • • 1 5

B a l l o t p a p e r s — R e c o u n t — P r i n c i p l e s — ' G o v e r n i n g .

Rajajuv. BrijkishorePateria & Ors. (Supreme Court) . . . 347Ballot papers—Recount—Principles governing. Conduct of Elections

Rules, 1961 S. 56(2). second proviso—if applicable.

Rajaju v. Brijkishore Pateria & Ors. (Supreme Court) • • • 347

Code of Civil Procedure, 1908, order 8, Rule 5—Scope of.

Bapuraov. SidramappaSc. Others (Mysore H.G.) . , . 83

Conduct of Elections Rules, 1961—Rule 40A—If ultra vires the Consti-tution and Representation of the People Act, 1951

Raj PalSinghv.OmPrakash Garg and Ors. (Allahabad H.C.) • . 221

Conduct of Elections Rules, 1961—Rule 40 A—If ultra virer the Constitu-tion and the Act. Representation of the People Act, 1951—SectionI 2 3 (0 (A) and (B)—Bribery—Proof of—Necessity of particulars—Section 123(2) Undue influence—Contract Act s. 16, differencebetween.

415

416 INDEX

PAGE

Raj Pal Singh v. Om Prakash Garg and Ors. (Allahabad H.G.) . . 221

Conduct of Elections Rules, 1961, r.43.

Laxman Prasad Vaidya v. Sri Gangadhar Tadaorao Tamaskar and others(S\xp-reme Court) r5

Conduct of Elections Rules, 1961 S. 56(2) Second proviso—• if appli-cable.

Rajaju v, Brijkishore Pateria & Ors. (Supreme Court) . . . 347

Conduct of Elections Rules, 1961, Rule 90

KaramjiRehmanji Chaipa v.A.T. Kundiwala&Ors. (Supreme Court) . 127

Constitution of India, Article 19(1).

Kamata Prasad Upadhyaya v. Sarjoo Prasad Tiwari fi? Ors. (Supreme

Court). • 44

Constitution of India, Articles 101,191,327

Bapuraov.Sidmmappa& Others (Mysore) H.C. . . . . 83Constitution of India Articles 102(1) and 191(1)—Scope of.

D. R. Gurshantappa-v. Abdul Khuddus Anwar & Ors. (Supreme Court) . 153

Constitution of India-Articles 226, 32g(b).

Sakti Kumar Sarkar V. The Election Commission (Calcutta H.C.) . . 206

Constitution of India—'Article 226—Writ Jurisdiction—Any Actformingpart of election process cannot be challenged by writ proceedings—•Article 32g(b)—"Election" meaning of.

Sakti Kumar Sarkarv. The ElectionCommission(Gsi\cutta.'H.C) . . 206

Corrupt practice—undue influence-speech on cow slaughter—other-wise legitimate—when amounts to corrupt practice.

Manubhai Nandlal Amersey v« Popatlal Manilal Joshi & Ors. (SupremeCourt) 26

Corrupt practice—Organisations formed on communal basis—put upcandidates and appeal to the members of the community to vote forhim alone—issue pamphlets to the effect whether corrupt practice.Lalroukung'V.HaokholalThangjom & Anr. (Supreme Court) . . 35

Corrupt practice—appellant's polling agent and supporters attackingthe polling agent of respondent on polling day—-deterred votersfrom coming and exercising their franchise freely—whether amountsto corrupt practice.

Ldroukungv.HaokholalThangjom&Anr. (Supreme Court) . . 35

INDEX 417

PAG*

Corrupt practice—Interference by officers—proof required—two possibleexplanations regarding the conduct of officers in the election—Ex-planation favourable to the respondent should be accepted.Hardwari Lai v. Pratap Singh (Punjab & Haryana H.G.) . . 58

Corrupt practice—Publications derogatory of the personal character of acandidate—when amounts to corrupt practice—whether mereknowledge of the publications would make one liable.

Hardwari Lai v. Pratap Singh (Punjab & Haryana H.C.). . • 58

Corrupt practice—Expenses—Omission to include in the return variousitems of expenses incurred in the election—when corrupt practice.Hardwari Lai v. Pratap Singh (Punjab & Haryana H. G. ) . . 58

Corrupt practice—Election Law—Burden of proof—failure of the re-turned candidate to maintain his election accounts as required undersection 77(1) and (a), whether can lead to inference that he has in-cmred expenditure in contravention of sub-section (3) of section 77—section 77(1)—scope.

Bapurao vs. Sidramappa <3? Others (Mysore H.C.) . . . . 83

Corrupt practice—Donation to a Muslim Festival by the returned can-didate prior to the date of poll—allegations that the donation wasmade with corrupt or dishonest motive to induce Voters—Burden ofproof—When such donation attracts sub-section (1) of 123.Bapurao v. Sidramappa & Others (Mysore H.C.) « . 83

Corrupt practice—Canvassing of votes inside polling booth—proof of.

Karamji Rehmanji Chaipavs. A.T. Kundiwala & Ors.(Supreme Court). 127

Corrupt practice—Expenses in excess of prescribed limit—proof of.

Karamji Rehmanji Chaipa vs. A. T. Kundiwala S? Ors. (Supreme Court) . 127

Corrupt practice—appeal to voters to vote in the name of religion and onbasis of candidate's caste—that vote for a party would be in favourof cow slaughter and incur divine pleasure—if corrupt practice.

Kanti Prasad Jayshankar Tagnik vs. Purushottamdass Ranchoddas and others.(Supreme Court) . . . . . . . . . 132

Corrupt practice—publications derogatory of the personal character of acandidate—no direct or circumstantial evidence to show complicityof the elected candidate—.whether election vitiated.

Dalchand Jain vs. Narayan Shankar Trivedi is? Anr. (Supreme Court) . 163

Corrupt practice—Printing replica of national flag along with the appealof a candidate—whether corrupt practice.

Dalchand Jainv. Narayan Shankar Triuedi <S? Anr. (Supreme Court) . 163

Corrupt practice—Expenses—submission of incorrect return of electionexpenses—effect of.

Dalchand Jain v. Narayan Shankar Trivedi & Anr. (Supreme Court) . 163

418 INDEX

PAGE

Corrupt practice—Canvassing of votes on communal basis—proof of—where canvassing is widespread whether particulars necessary.

Ambika Saran Singh v. Mahant Mahadev Nand Giri (Supreme Court) . 183

Corrupt practice—Bribery—Proof of—Necessity of Particulars.

Raj Pal Singh v. Om Prakash Garg and ors. (Allahabad H.C) . . 22 r

Co-rupt practice—returned candidates' party in power prior to elec-tion—Government issuing Ordinance benefitting certain agricul-turists—granting allowances to Government employees.

H. V rKamath v. Gh. Nitiraj Singh (Supreme Court) . . . . 343

Cor rup t p rac t i ce—Dummy ballot omiting unsuccessful candidate ' s elec-tion symbol—-whether amount to corrupt practice.

H. V. Kamath r. Gh. Nitiraj Singh (Supreme Court) . . . 343

Corrupt practices—•burden of proof—bribery—publication of falsestatement—-consent of candidate can be inferred.

Kamal Narayan Sharma v. D. P. Mishra (Madhya Pradesh H.C.) . 369

Corrupt practice—-incurring or authorising expenditure beyond prescri-bed limit—Deposit for party ticket—Loses character of deposit whenparty ticket is given—Deposit of security under s. 34 not expenditure—Date of payment is not date of incurring expenditure.

Kamal Narayan Sharmav. D. P. Mishra (Madhya Pradesh H.C.) . . 369

Contract—'Subsisting contract—Contract not signed by Contractors—Validity in election proceedings.

Habibullah v. Gulam Rasool Kar & Ors. (Jammu & Kashmir H.C.) . 1

Disqualification —-Elected candidate employed at the relevant time in acompany owned by Government—-if disqualified.

D. R. Gurohantappav. Abdul Khuddus Anwar & Ors. (Supreme Court) . 153

Disqualification—contract with Government for construction work—circumstances from which inference of abandonment of contractcan be drawn.

AtamDasv.SuriyaPrasad (Supreme Court) . . . . . 359

Disqualification—Study loan taken by the candidate executing a bondto accept service under the Government—whether amounts to ashare of interest in a contract .

Chandan Lai v . Ram Dass andAnother ( S u p r e m e C o u r t ) . . . 2 1 4

E l e c t i o n p e t i t i o n — A m e n d m e n t o f p e t i t i o n — w h e n s h o u l d b e a l l o w e d —W h e n S u p r e m e C o u r t i n t e r f e r e s .

Manubhai Nandlal Amrsey v. Popatlal Manilal Joshi & Ors. (SupremeCourt) ag

INDEX 419

PAGE

Election petiion—Amendment of the petition—Plea of publication ofpamphlets raised in the original petition—amendment sought to addthe plea that the appellant and his agents distributed them—amend-ment allowed—-whether proper.

Lalroukung vs.Haokholal7Jiangjom& Ayr. (Supreme Court) . . 35

Election petition—Allegations of corrupt practice against the returnedcandidate under section 77 and 123(6) without raising such aplea in the petition—evidence on the allegations whether can beconsidered by Court.

Bapuraov.Sidramappa and others (Mysore H.C.) . . . . 83

Election Petition—Nature of amendments permissible after the periodof limitation.

Samant N. Balakrishna etc. v. George Fernandez & Ors. (Supreme Court) 260

Election petition—-whether abates on dissolution of legislature—Presen-tation by Advocate's clerk in petitioner's presence—if properpresentation.

SheodhanSinghv. Mohan Lai Gautam {Supreme Court) , . . 146

Evidence—condition to be satisfied when circumstantial evidence is re-lied upon to prove corrupt practice.

Lalroukung v. Haokholal Thangjom & Anr. (Supreme Court) . . 35

Evidence-corrupt practice—proof of—participants in the illegal act giveevidence—-no independent corroboration—effect of—Particulars of cor-ruption not mentioned in the petition—interested witnesses givingevidence—how far reliable.

Pt. Shree Krishna Selot v. Shri Ram Charan Pujari (Supreme Court) . 50

Evidence—witnesses—testimony of interested witnesses—reliability.

Ambica Saran Singh v. Mahant Mahadev Nand Gin (Supreme Court) . 183

Evidence—Corrupt practice—obtaining the assistance of Governmentservants—-proof of.

Ambica Saran Singh v. Mahant Mahadev Nand Giri (Supreme Court) . 183

Evidence—Corrupt practice—Proof—Similar to criminal charges— Noconclusive proof of corrupt practice—whether election can be setaside on probabilities.

NihalSinghv. Rao Birendra Singh & Anr. (Punjab & Haryana H.C.) . 199

Evidence—Authorship of documents—proof of.

Magrajv.RadhaKrishnaBirla & Others(Ra.iasthanH.G.) . . 296

Evidence—Authorship of documents—proof of s. 123(6)—Agent—Rela-tionship of Candidate and Agent not common law relation of prin-cipal and agent.

Magrqj v.RadhaKrishnaBirla «3? Others (Rajasthan H.C.) . . 296

420 I N D E X

PAGE

Evidence Act, 1872 s. 160—Reports of Police Officers made from notestaken down at meetings—if admissible—weight to be attached tosuch reports.

Kanti Prasad Jayshankar Tagnik v. Purusuhottamdass Ranchoddas and others.

(Supreme Court) 132

Jammu & Kashmir Representation of the People Act—Section 24 (d)

Habibullahv. GulamRasoolKar& Ors. (Jammu & Kashmir H.C.) , 1Jammu & Kashmir Representation of the People Act—Section 24(d)—

Subsisting contract—Constitution of Jammu & Kashmir—Section122—Contract not signed by Contractors—Validity in election proce-edings—Pleadings—Respondent setting up new contract revealed inevidence but not pleaded—New grounds can be pleaded to supportor disprove of the Order of Returning Officer rejecting nomina-tion.

Habibullahv.GulamRasoolkar&Ors. (Jammu & Kashmir H.C.) . ji

Jammu and Kashmir Representation of the People Act, 1957—Section24(8).

Ghandan Lai v. Ram'Dass and Another (Supreme Court) . . 214

Jammu and Kashmir Representation of the People Act, 1957—-Section24(8), Constitution of Jammu and Kashmir—Section 69; Nomination—Rejection of—appointment order not served on the candidate on thedate of scrutiny—whether holding office of profit—a conditional orderof appointment—when takes effect.

Ghandan Lai v. Ram Dass and Another (Supreme Court). . . 214

Jammu and Kashmir Representation of the People Act—Section 47.

Mohd. Sadiq v. Mohd. Hussain (Jammu & Kashmir H.C) . . 17°

Jurisdiction—Any act forming part of election process cannot be challen-ged by writ proceedings.

SaktiKumarSarkarv. TheElectionCommission(Ca\cattail.G.) . , 206

Law reform—Law should provide for copy of poster printed to be sentto Election Commission by printer—Presiding Officer—Power toPresiding Officer to note conveyance of voters and hold summaryenquiry.

Nihal Singh v. Rao Birendar Singh and Another (Punjab & HaryanaH.C.) . . . . . . . . . 199

Mysore (Prevention of Disqualification) Act, 1956, Preamble, sections2(a), (b), (c), 3(d), Scope of—

Bapurao^. Sidatamappa & Others (Mysore H.C.) . . . . 83

Nomination paper—improper acceptance of—whether election liable tobe set aside on that count alone—result materially affected—onus ofproof-—whether any change after amendment in 1956.

Kamta Prasad Upadhyaya v. Sarjoo Prasad Tiwari <3? Ors. (Supreme Court) 44

INDEX 421

PAGE

Nomination papers—Scrutiny of—petititioner and proposer need not bepresent.

Mohd.Sadiq.v. Mohd. Hussain (Jammu& Kashmir H.C.) . 17°

Nomination—rejection of—• facts in existence on the date of existence onlyrelevant-whether facts coming into existence subsequently affect thepropriety of the* order of rejection of nomination.

Ghandan Lai v. Ram Dass and Another (Supreme Court) . . . 214

Nomination papers—Scrutiny of—petitioner and proposer need not bepresent—Jammu and Kashmir Representation of the People Act—Section 47.

Mohd.Sadiqv. Mohd. Httssain (Jammu & Kashmir H.C.) . . 170

Office of profit—"Compensatory Allowance" as defined in Section 2(b)of the Mysore (Prevention of Disqualification) Act, 1956, payable toChairman or Member of a Gommittee, as defined in section 2 (a) of theAct, whether constitutes "Office of profit" within the meaning ofArticle 191(1) (a) of the Constitution.

Bapuraov.Sidramappa Others (Mysore H.C. ) . . . . . 83

Office of prof i t—appointment order not served on the cand ida te on theda t e of scrutiny—-whether holding office of profit—a condit ionalorder of appoin tment—when takes effect.

Chandan Lal\. Ram Dass and Another (Supreme Cour t ) . . . 214

Pleadings—Respondent se t t ing u p new contract revealed in evidenceb u t not p leaded—new grounds can be p leaded to support or disproveof the order of Return ing Officer rejecting nominat ion.

Habibullah\. Gulam Rdsool Kar & Vrs. (Jammu & Kashmir H.C.) . I

Pleadings—corrupt practices—lack of particulars—If parties go to trialin spite of absence of particulars defect is one of procedure only.

Kamal Narayan Sharma v. D. P. Mishra (Madhya Pradesh H.G.) . 369

Poll—closing of—Procedure to be followed—proof required to hold thatthe polling officer disallowed voters to cast votes.

Laxaman Prasad Vaidya v. Sri Gangadhar Tadaorao Tamaskar and others.(Supreme Cour t ) > , . -. -. . . . . 15

Polling booth—change of—when result mater ial ly affected—proof of.

Pt.ShreeKrishnalSelotV. ShriRamCharanPujari (SupremeCourt) . 50

Polling Stations—Opening of new polling stations—Principles for de-termining whether result of the election had been materially effected.

RamNathv. ChhauRamandOrs. (Supreme Court) . . . 354

Parliament (Prevention of Disqualification) Act, (10 of 1959), section 3.Bapurao v. Sidramappa & Others (Mysore H. G. ) . . . 83

422 INDEX

»PAOE

Proof—statements in newspapers weight of—requirement of proof thatresult of election was materially affected—burden of proof.

SamantN. Balakrishnaetcv. QeorgeFernandez & Ors. (Supreme Court) 260

Representation of the People Act, 1951—Section 9A.

Atam Das v. Suriya Prasad {_Supreme Court) . . . • • 359

Representation of the People Act, 1951, s. 10.

D.R. Gurshantappa v. Abdul Khuddus Anwar &Ors. (Supreme Court) . 153

Representation of the People Act, 1951, s. 10—elected candidate employedat the relevant time in a company owned by Government—ifdisqualified—Constitution of India Arts. 102(1) and 191(1)—Scope of.

D. R. Gurwshantappa v. Abdul Khuddus Anwar fi? Ors. (Supreme Court) 153

Representation of the the People Act, 1951, Ss. n , 77, 123, 130.

KaramjiRehmanjiChaipa v. A.T. Kundiwala & Ors. (Supreme Court) . 127

Representation of the People Act, 1951, Ss. 11, 77, 123, 130—Conductof Elections Rules, 1961—Rule 90—Corrupt Practice—Convassingof votes inside polling booth—proof of. Expenses in excess of pres-cribed limit—proof of.

Karamjit RehmanjiChaipa v. A. T. Kundiwala & Ors. (Supreme Court) 127

Representation of the People Act, 1951, Ss. 58(1) (a) 58A, 62, 123.

Laxman Prasad Vaidya v. Sri Gangadhar Yadaorao Tamaskar and others(Supreme Court). . . . . . . . • § 15

Representation of the People Act, 1951, Ss. 58(i)(a), 58A, 62, 123—Conduct of Elections Rules, 1961, r. 43—Corrupt practice—proofof—Poll—closing of. Procedure to be followed—proof required tohold that the polling officer disallowed voters to cast votes. Ballotbox—tampering of—report by the Returning OfRcer-~relevant onlywhen found that the election materially affected by such tempering——Recount—request for—whether rejection proper where suffi-cient reason not shown.

Laxman Prasad Vaidya v. Sri Gangadhar Yadaorao Tamaskar and others,(Supreme Cour t ) . . . . . . . . . *5

Representation of the People Act, 1951, Ss. 77,123(1) , (4), (5) and (6)—•

Magraj v. Radha Krishna Birla & Others (Rajasthan H.C. ) . . . 296

Representat ion of t he People Act , 1951, Ss. 77 ,123(1) , (4) , (5) and (6)—Corrup t Pract ice—Burden of proof—Election Procedure—natureof t r ial .

Magraj v. Radha Krishna Birla & Others (Rajasthan H.C.) . • • 296

Representation of the People Act, 1951, Sections 77, 100, 123(4)—

Hardwari Lai v. Pratap Singh (Punjab & Haryana H.C.) . . 58

INDEX 423

PAGE

Represensation of the People Act, 1951 section 77, 100, 123(4)—CorruptPractice—Interference by officers proof required. Two possibleexplanations regarding the conduct of officers in the election—Ex-planation favourable to the respondent should be accepted. Publica-cations derogatory of the personal character of a candidate—whenamounts to corrupt practice—Whether mere knowledge of the pubi-cations would make one liable—Expenses—Omission to include in thereturn various items of expenses incurred in the election—When cor-rupt practice.

Hardwari Lalv. Pratap Singh (Punjab &Haryana H.C.) . 58

Representation of the People Act, 1951—sections 77(1), (2), (3), 123(1]—Constitution of India, Articles 101, 191, 327—Parliament (Preventionof Disqualification) Act, 1959 section 3—Mysore (Prevention ofDisqualification Act, 1956, Preamble, Sections 2(a), (b), (c), 3 (d),Scope of—Whether Cential Act overrides the State of—WhetherState Act—Whether ultra vires of Article 327 of the Constitution—"Compensatory Allowance"as defined in Section 2 (b) of the MysoreAct, payable to Chairman or Member of a Committee, as defined insection 2 (a) of the Mysore Act, whether constitutes "Office of Profit"within the meaning of Article 191(1) (a) of the Constitution—Codeof Civil Procedure, 1098, Order 8, rule 5—Scope of—Corrupt Prac-tice—Election Law—Burden of Proof—Failure of the returned can-didate to maintain his election accounts as required under section77(1) and (2), whether can lead to inference that he has incurredexpenditure in contravention of sub-section (3). of section 77— sec-tion 77(1)—Scope—Corrupt practice—Donation to a MuslimFestival by the returned candidate prior to the date of poll—Allega-tions that the donation was made with corrupt or dishonest motiveto induce voters—Burden of proof—When such donation attractssub-section (1) of 123 of the Act—Allegations of corrupt practiceagainst the returned candidate under Section 77 and 123(6)without raising such a plea in the Petition—evidence on the allega-tions, Whether can be considered by Court.

Bapurao v. Sidramappa and Others (Mysore H.C. at Bangalore) . 83

Representation of the People Act, 1951—sections 77(1), (2), (3), 123(1).

Bapurao v. Sidramappa & Others (Mysore H.C.). . » . 83

Representation of the People Act, 1951, Ss. 81, 83, 86(5), ioo(i)(b), 100(1)(d) (i) and 123(4).

Samant JV. Balakrishna etc. v. George Fernandez & Ors (Supreme Court) 260

Representation of-the People Act, 1951, ss.81, 83, 86(5), ioo(i)(b),ioo(i)(d)(i) and 123(4)— Election Petition—nature of amend-ments permissible after the period of limitation—ss.ioo(i)(b)and ioo(i)(d)(ii)—Difference in requirements of—Necessity ofproof of candidate's consent to specific corrupt practice—Newspaper publishing attacks on character of candidate—If editor canbe deemed to be agent of rival candidate—knowledge, if sufficientproof of consent—statements in newspapers, weight of—requirementsof proof that result of election was materially affected—burden ofproof.

Samant JV. Balakrishna etc. v. George Famandez & Ors. etc. (SupremeCourt) 260

424 INDEX

PAGE

Representation of the People Act, 1951, Ss. 83(1)0) 86(5), 123(2)—Am-endment of petition—when should be allowed—-when Supreme Courtinterferes. Corrupt practice—undue influence—speech on cow slaugh-ter—otherwise legitimate—when amounts to corrupt practice.

Manubhai Nandlal Amersey v. Popatlal Manilal Joshi and Ors. (SupremeCourt) . . . . . . . . . . . 26

Representat ion of the People Act 1951,85.98,99,116-A, 123(4), 123(6),124(4)—.

Dalchand Jain v. Narayan Shankar Trioedi & Anr. (Supreme Court) . 163

Representation of the People Act, 1951, Ss. 98, 99, 116-A, 123(4), J23(6),124(4*!—-corrupt practice—publications derogatory of the personalcharacter of a candidate—no direct or circumstantial evidence toshow complicity of the elected candidate—whether election vitiated—Printing replica of national flag along with the appeal of a candidatewhether corrupt practice—Expenses—submission of incorrect returnof election expenses—effect of.

Dalchand Jain v. Narayan Shankar Trivedi & Anr, (Supreme Court) . 163

Representation of the People Act, 1951, s. 100 (1) (d).

Kamata Prasad Upadhyava v. Sarjoo Prasad Tiwari & Ors. (SupremeCourt) . . . . . . . . . . . 44

Representation of the People Act, 1951,s. ioo(i)(d)—Constitution of India,Article 19(1)—Nomination—improper acceptance of—whetherelection liable to be set aside on that count alone—result materiallyaffected—onus of proof—whether any change after amendment inI956-

Kamita Prasad Upadhyaya v. Sarjoo Prasad Tiwari & Ors. (SupremeCourt) . . . . . . . * . . 44

Representation of the People Act, 1951, Ss. 123,127.

Dtviprasadv. MaluramSinghania and Ors. (Supreme Court) . . 335

Representation of*he People Act, 1951, s. 123.

H.V.Kamathv.Ch. Nitiraj Singh ( S u p r e m e C o u r t ) . . . . 3 4 3

R e p r e s e n t a t i o n o f t h e P e o p l e A c t , 1 9 5 1 , S s . 1 2 3 , 127 , C o r r u p t P r a c t i c e —

P r o o f of.

Deviprasadv. MaluramSinghania and Others (Supreme Court) , . 335

Representation of the People Act, 1951, s.123— Returned candidate'sparty in power prior to election—Government issuing Ordinance be-nefiting certain agriculturists—granting allowances to Governmentemployees—Dummy ballots omitting unsuccessful candidates elec-tion symbol—Whether amount to corrupt practice.

H.V.Kamathv.Ch. Nitiraj Singh (Supreme Court) . . . 343

Representation of the People Act,ig5i—Section 123(1) (A) and (B)—Corrupt practice—Bribery—Proof of—Necessity of particulars.

Ra} Pal Singhv. Om Pratcash Garg and Ors. (Allahabad H.C.) . 221

INDEX 425

PAGE

Representation of the People Act, 1951—Ss. 123(1), (4), (5) and (6)—Corrupt practices—burden of proof—bribery—publication of falsestatement—consent of candidate can be inferred 77— incurring orauthorising expenditure beyond prescribed limit—Deposit for partyticket—Loses character of deposits when party ticket is givenDeposit of security under s. 34 not expenditure.

Date of payment is .not date of incurring expenditure.

Kamal Narayan Sharma v. D P. Mishra (Madhya Pradesh H.C.) . 369

Representation of the People Act, 1951—S.i23(i)—(4), (5) and (6;.

Kamal Narayan Sharma v.D. P. Mishra (Madhya Pradesh H.C.) . 369

Representation of the People Act, 1951, Sections 123(2) Proviso (a).123(3). Corrupt practice—Circumstantial evidence—proof of—condition to be satisfied when circumstantial evidence is relied up-on to prove corrupt practice—Corrupt practice— Organisationsformed on communal basis put up candidates and appeal to themembers of the community to vote for him alone—issue pamphlets tothe effect—whether corrupt practice.— Corrupt practice—appellant'spolling agent and supporters attacking the polling agent of respon-dent on polling day—deterred voters from corning and exercisingtheir franchise freely—whether amounts to corrupt practice.—Amend-ment of the petition—Plea of publication of pamphlets raised in theoriginal petition—amendment sought to add the plea that the appel-lant and' his agents distributed them—amendment allowed—whe-ther proper.

Lalroukung v. Haokholal Thangjom &Anr. (Supreme Court) . . 35

Representation of the People Act 1951, Sections 123(2) Proviso (a), 123(3)

Lai roukungv Haokholal Thangjom & Anr. (Supreme Court) . . 3=

Representation of the People Act, 1951, ss. I23(2)(a) (ii), ioo(i)(d)(iv)—Corrupt practice—proof of—participants in the illegal act give evi-dence—no independent corroboration— effect of—Particularsof corruption not mentioned in the petition—-interested witnessesgiving evidence—how far reliable.—Propaganda regarding cowslaughter—whether religious in nature.—Non compliance with theprovisions of the Act—change of polling booth—when result mate-rially affected proof of.

Pi. Shree Krishana Selot v. Shri Ram Char an Pujari (Supreme Court) 50

Representation of the People Act 1951, ss. 123(2) and (3).

Kanti Prasad Jayshankar Tagnik v. Purushottamdass Ranchoddas and

others (Supreme Court) . . . . . . . 132Representation of the People Act 1951,88. 123(2) and (3)—Corruptprac-

tice—apppeal to voters to vote in the name of religion and on basisof candidate's caste—that vote for a party would be in favour of cowslaughter and incur divine pleasure—if corrupt practice. EvidenceAct, 1872 s. 160—-Reports of Police Officers made from notes takendown at meetings—if admissible—weigh to be attached to suchreports.

Kanti Prasad Javshankar Tagnik v. Purushottmdas Ranchoddas and Others(Supreme Court) . . . . . . . . jg a

426 INDEX

PAGE

Representation of the People Act, 1951 Ss. 123(3), (4)> (5) a*id 100—Corrupt practice—Proof—Similar to criminal charges—No couciu.•'•.—proof of corrupt practice—whether election can be set aside on pro-babilities.

Nihal Singh v. Rao Birendra Singh & Anr. (Punjab and Haryana H.C) . . . . . . . . * . . 199

Representation of the People Act, 1951 Ss. 123(3), (4)(5^ a n d 100.

Nihal Singh v. Rao Bitendra Singh & Anr. (Punjab & Haryana H.G.) 199

Representation of the People Act, 1951, section 123(3) and (7).

Ambika Satan Singh v. Mahant Mahadev Nand Giri (Supreme Court) 183

Representation of the People Act, 1951, section 123(3) and (7)—Canvas-sing of votes on communal basis—proof of—where canvassing iswidespread whether particular necessary.

AmbicaSaran Singh v. Mahant Mahadev Nand Giri (Supreme Court) 183

Witnesses—testimony of interested witnesses—reliability. Obtaining theassistance of Government servants—proof of.

Ambica Saran Singh v. Mahant Mahadea Nand Giri (SupremeCourt) 183

GIPN—S6—4 Election/71—18-4-73—1,000.

Election Law Reports, Vol. XLI

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