1. [His Lordship after stating the facts, proceeded.] In this appeal the grounds of attack are limited by Mr. Manohar. He made three contentions:
1. That respondent No. 2 was guilty of a corrupt practice inasmuch as a leaflet exh. 122 was published by his supporters with his consent or, in any event, with the consent of his election agent. The contents of this leaflet fell within the definition of corrupt practice as contained in Section 123, Sub-section (3A) and Sub-section (4), of the Act.
2. That the acceptance of the nomination paper of respondent No. 3 inspite of his disqualification fell within the provisions of Section 100, Sub-section (i), Clause (d) and as it had affected the results of the election, the election of respondent No. 2 should be set aside.
3. That an application which he made for amendment of his petition under Order VI, r, 17, of the Civil Procedure Code, read with the Act, was wrongly disallowed.
2. The first contention is in respect of the Pamphlet exh. 122, the translation of which is at exh. 122A. It is very seriously argued that the statements; contained in the same are false and that these statements fell within Sub-sections (3A) and (4) of Section 123 of the Act. The pamphlet, it must at once be stated, does not contain any direct allegation against respondent No. 1. It appears from the evidence that one Saqui Niyazi had addressed a few meetings supporting the candidature of respondent No. 1. He was a member off the Council and was also concerned in the management of INTUC. One Vinayakumar Parashar, who was known also as Chhajuram, was at the relevant time President of the Akola Congress Committee. The pamphlet is as follows:
The Robber Miya Saqui of Chhajuram Company-Subhadrakumari the Secretary of Akola INTUC while in the course of working in the office had disappeared. She is in the harem, at Bandera of Saqui Niyazi who has been robbing thousands of rupees under the name of INTUC. This Saqui Niyazi is now making propaganda for pair of bullocks and in doing so, is trying to defame respectable persons. Therefore detailed information will be supplied as to what are his affairs, how many bogus companies he floated, how many societies he mismanaged and how many Hindu girls he has seduced into his harem at various places. Below are photo copies of two sides of a money order sent by Saqui Niyazi to Subhadrakumari from the INTUC Office in Congress Bhavan at Akola. Soon detailed information will be published of the other girl Suman who was of Khamgaon.
Akola,11-12-63. Laxmikant Deshpande.
3. Mr. Manohar contends that this was not an innocent propaganda against a particular individual as could be seen from the circumstances under which this pamphlet came to be published. The elections were to be held on December 15, 1963, and the pamphlet purports to have been printed on December 11, 1963. According to the evidence, it is suggested it was published on the night of December 10, 1963. Respondent No. 1 was a candidate set up by the Congress. Saqui Niyazi had addressed a few meetings and the statements published concerning this Saqui Niyazi are clearly such as to affect the chances of respondent No. 1 in the election by making the suggestion that respondent No. 1 was either keeping company with such people or that his candidature was supported by this kind of people and he says these statements were false. He also relies upon the fact that it expressly says that Saqui Niyazi was making propaganda for the pair of bullocks and that in doing so, he was trying to defame respectable persons. We may accept that the pamphlet is published to tell the public that respondent No. 1 was being supported by men like Saqui Niyazi and Chhajuram and that it was intended that this should have some influence in the voters' mind at the time of exercising their polling right. The question still is whether the pamphlet falls within the mischief of the sub-sections on which Mr. Manohar relies.
4. Section 100 of the Act requires the Tribunal to set aside an election of a returned candidate if it is of opinion
that any corrupt practice has been committed by a returned candidate or his election agent or by any other person' with the consent of a returned candidate or his election agent;
Section 123 which deals with corrupt practices says that the following shall be deemed to be corrupt practices for the purposes of the Act:
(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his election agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
(4) The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election.
The question as to whether or not this pamphlet was published by respondent No. 2 or by some one with the consent either of respondent No. 2 or his election agent may be deferred from consideration for the present. The first question is whether it falls either within Sub-section (3A) or Sub-section (4) of Section 123.
5. The first question is whether the pamphlet falls within Sub-section (4). Mr. Manohar very seriously contended that the statements made are statements in relation to the candidature of respondent No. 1. He says inasmuch as the results of the election are bound to be affected by such a propaganda, it amounts to a statement in relation to the candidature of respondent No. 1. He relies in support of this construction of the section on the decision in Maganlal Bagdi v. H.V. Kamath. : AIR1960MP362 It was said (p. 367) :.While, on the one hand, it may only have a limited interpretation, meaning the light or qualification, or factum of candidature, as held in Krishnaji Bhimrao v. Shariker Shantaram (1953) 7 E.L.R. 100 it may, in the circumstances of a case, even have a wider import, including a reflection on the worthiness of a candidate to contest the election.
6. According to the dictionary 'candidature' means the state of being a candidate. One may even say that it may mean the attributes necessary for being a candidate. This is the ordinary meaning of the word. The question is -whether the words 'statements in relation to candidature' should be construed very widely to mean 'statements in relation to the candidate' as contended for by Mr, Manohar and as held in the above case, or 'to mean statements in relation to the candidature' in the ordinary sense.
7. While construing a statutory provision the Court must give the words used their ordinary grammatical meaning. It is true that a word may take colour from the context, and, in the setting in which it is used it may have a wider or a narrower meaning. The words must be construed therefore with due regard to the context, the circumstances under which the same came to be enacted and the mischief that was intended to' be prevented.
8. The Supreme Court had occasion to consider the provisions of Sub-section (4) of Section 123 in Inder Lai v. Lai Singh. : AIR1962SC1156 The Supreme Court held that it was intended to make a distinction between the personal character of the candidate and his political character and that the provision postulates that if a false statement is made regarding the political character, it would not constitute corrupt practice even if it has a tendency to affect the chances of the candidate being elected. We must have regard to this intendment of the section while considering the meaning of the words 'in relation to the candidature' of a candidate along with the context in which the words are used.
9. First matter that has to be considered is that the personal character or conduct of a candidate has been specifically dealt with in the sub-section. It is clear, therefore, from the context that any statement which is made in relation to the personal character or conduct of any candidate cannot possibly be included within the words, 'in relation to the candidature or withdrawal' of a candidate. These are two distinct matters and it could not possibly be suggested that the words 'in relation to the candidature' in the context in which they are used ought to mean 'in relation to the candidate'. Mr, Manohar says that any statement in regard to the activities of a candidate which has likely effect upon the chances of election of a candidate is a statement 'in relation to the candidature of a candidate' and therefore must fall within the clause. If the words were intended to have such wide application the provision as to statements regarding the personal character and conduct of the candidate was not necessary at all. By adopting such a construction, the very distinction between the personal character and conduct of a candidate and his political character intended to be made by the Legislature will be destroyed. Moreover, it is seen that the words 'in relation to the candidature' are used in juxtaposition of the words 'or withdrawal,' of any candidate. The theme dealt with in this part of the section is only the matter of candidature-its continuance or withdrawal. This could only mean that the Legislature intended, that in order that the statements should amount to corrupt practices they should be in connection with the continued candidature of a candidate or his withdrawal from the candidature. In other words, it must be a statement of a fact which is connected with the candidature of a candidate and which affects his continued candidature during the election.
10. This view was taken in Krishnaji Bhimrao v. Shankar Shanta Bami More, by the Election Tribunal where a contention, like the present, was. rejected by it. Similar view was taken in Sarla Devi v. Birendrasingh : AIR1960MP127 by a Bench of the Madhya Pradesh High Court where it was said (p. 138) :
Any false statement made in relation to the fact of a person being a candidate for an election would be covered; but by no stretch of the language can false statements in relation to the activities of a political party of which the candidate is a member be made to refer to his 'candidature'...
They further said that (p. 137) :.The false statement must be not in relation to the 'candidate' but in relation to his 'candidature', and candidature cannot be equated to the candidate.
With respect, therefore, it is difficult to agree with the opinion expressed in tbe case of Maganlal Bagdi.
11. It is, therefore, necessary in every case to examine the statements alleged to have been made and find out whether they are made in relation to the public and political character of the candidate or otherwise. It is possible that in some cases the criticism of a candidate's political and public activity may contain aspersions on his character or fitness to bo elected. In that case the statements would be covered by the first part of the sub-section. But if that is not so, then merely because his party or his political and public activities or character is attacked by the statements, they are not 'statements in relation to his candidature'. We will, therefore, examine the pamphlet exh. 122 from this point of view.
12. A reading of the pamphlet clearly indicates that the attack is directed to the party and not in any manner to respondent No. 1, Though it deals with Saqui Niyazi in particular, it refers to Chhajuram also who was then the President of Akola Congress Party. The statement regarding Saqui Niyazi may or may not be true, but the purport of the pamphlet is to show that those who were making propaganda for respondent No. 1 were people of a particular type, that they were robbing in the name of the INTUC, and were capable of questionable activities. There is not even an innuendo, so far as respondent No. 1 is concerned, in relation to his character or conduct. It only, in short, decries the propaganda carried on by those two in favour of respondent No, 1. We, therefore, reject this contention.
13. It is then contended that the matter of the pamphlet falls within Sub-section (3A) of Section 123 of the Act. Now, in order that the matter should fall within Sub-section (3A), it must amount either to the promotion or an attempt to promote feelings of (a) enmity or (b) hatred, between different classes of citizens of India, (i) on grounds of religion, (ii) on grounds of race, (iii) on grounds of caste, (iv) on grounds of community, or (v) on grounds of language. It is said that the pamphlet was intended to create hatred between the Hindu and the Mohomedan community. We may assume that telling the public the activities of those two persons who have been referred to in. the pamphlet, might affect the chances of respondent No. 1 at the election, But that by itself is not enough in order to bring the pamphlet within Sub-section (3A). It is true that Saqui Niyazi is a Mohamedan. It is equally true that the pamphlet states that one Subhadrakumari was taken to his harem and that there were many other Hindu girls whom he had seduced into his harem at several places. Merely because there is a reference to the words 'Hindu girls' it does not necessarily have the effect of inciting one community against another. The pamphlet itself associates Saqui Niyazi with INTUC and the Congress activities and his other Hindu friend is also mentioned in it. It may be that it had the tendency of exposing him in the eyes of the public. It may as well have the tendency of inciting a few fanatics against him as an individual, but there is nothing in the pamphlet to suggest that all Mohamedans as a class are bad or that Saqui Niyazi is having influence with his Mohamedan friends and because of that influence they were all going to vote for that candidate. It is an accident that Saqui Niyazi happens to be a Mohamedan and the girls alleged to have been seduced happen to be Hindus. But then Chhajuram was not a Mohamedan and even so, allegations were made against Chhajuram. Having regard to the nature of the contents and the manner in which two members of a particular political party are alleged to be guilty of certain malpractices in general, it, cannot be said that the pamphlet had the effect of promotion of enmity or hatred between different communities.
14. It is also admitted that even as a result of this pamphlet nothing happened. Not one person raised his finger either against Saqui Niyazi or against any other member of his community. It is true, as pointed out by Mr. Manohar, that such a result need not follow. But the fact that such a, result did not follow may be a circumstance which may be considered to show whether or not the propaganda alleged to be made by the pamphlet had the tendency which it is claimed it had and it is to that extent only that it may be regarded as relevant. It is also true that even an attempt to create enmity between communities is sufficient. But then this is not a case of an attempted promotion of enmity between any two communities. Here it is said that in fact the pamphlet was distributed and even so it was completely innocuous. The inference therefore that the pamphlet did not have a tendency to create enmity or hatred between the Mohomedans and Hindus is fortified.
15. [His Lordship after considering points not material to this report, proceeded].
16. Mr. Manohar then contended that respondent No. 3 was admittedly disqualified and that though it could not be said that the acceptance of his nomination by the Returning Officer was improper, the fact remains that as his candidature was contrary to the provisions of the Act in that he was disqualified at the time that he was a candidate, there was non-compliance with the provisions of the Act and as the result of the election of respondent No. 2 has been materially affected by it, the election of respondent No. 2 should be set aside. That in the event such as the present it can be said that there was non-camphene with the provisions of the Act is established by the decisions of the Supreme Court in Bwga Shmkar v. Raghuraj Singh A.I.R  S.C. 320 and S. M. Banerji v. Sri Krishna. A.I.R  S.C. 308 We may also assume for the time being that the petition does contain allegations of facts which would bring the case precisely within Sub-clause (w) of Clause (d) of Sub-section (1) of Section 100 of the Act. The question remains whether the petitioner has established that, as a result of the non-compliance with provisions of the Act by respondent No. 3, the return of respondent No. 2 is materially affected. The Supreme Court has held in Vashist Narain v. Dev Chandra : 1SCR509 and Hari Vishnu v. Ahmad, Ishaque : 1SCR1104 that it is incumbent upon a petitioner, who seeks to set aside an election under Clause (d) of Sub-section (7) of Section 100 to establish by positive evidence the fact that the result of the election has been materially affected. It has also been held that there is no scope for surmises and conjectures in the matter of such proof. Indeed, the matter may be difficult of proof, but then it is not that an election can be set aside on light grounds. In order that an election should be set aside, the terms of the clause must be properly complied with and in order to do so, it is incumbent on the petitioner to produce sufficient number of witnesses and evidence to show that, all the votes wasted would have been acquired by the defeated candidate. It is admitted that there is no such evidence. Mr. Manohar started to refer to his amendment application after assuming that all the 555 votes thrown in favour of respondent No. 3 would have been obtained by respondent No. 1 and argued that he might be able to account for a few more votes. The assumption that respondent No. 1 would have got all the votes that respondent No. 3 got is highly unjustified. Even the amendment application, therefore, on which he sought to rely could not be pursued and even if it were pursued, it could not have led to any concrete result.
17. In the result, the appeal fails and is dismissed with costs.