1. This appeal under the provisions of Section 116-A of the Representation of the People Act, which will hereafter he referred to as the Act, is presented by a returned candidate whose election to the House of the People was declared void by an Election Tribunal.
2. The notification of the President under Section 14 of the Act, calling upon the Parliamentaryconstituencies to elect members to the House or the People was promulgated on January 19, 1957.
3. The Parliamentary constituency with which we are concerned in this appeal was known as the Koppal Parliamentary constituency, in the district of Raichur. The area of that constituency was that which consisted of eight Assembly Constituencies. Three of those constituencies were in the district of Bellary and they were Shirguppa, Hospet and Hedagali. The five constituencies which were in the district of Raichur were Kushtagi, Sindhanoor, Gangavati, Koppal and Yelburga.
4. The election commenced on February 25, 1957, and continued till March 10, 1957: The election in the Shirguppa constituency took place on February 25, 1957. In the Kushtagi constituency, the election was held on March 3, 1957. In Hospet and Hedagali constituencies, the election was conducted on March 4, 1957 and that in Sindhanoor constituency on March 5, 1957. In the constituencies of Gangavati and Koppal, the election was held on March 8, 1957, and in the remaining constituency, namely, the constituency of Yelburga the election was held on March 10, 1957.
5. The two candidates who contested the election in respect of the Koppal Parlimentary constituency were the appellant and the respondent before us. The appellant Sanganna was a Congress candidate and the respondent Shivamurthiswami was a candidate on behalf of an organisation known as the Loka Seva Sangha.
6. The result of the election was declared on March 15, 1957, and the appellant who polled 1,30,849 votes was declared elected. The respondent, according to the counting, had secured 98,093 votes.
7. In this judgment, the parties before us will be referred to in accordance with the position occupied by them in this appeal. The Congress candidate Sanganna will be referred to as the appellant and the Loka Seva Sangha candidate Shivamurthiswami will be referred to as the respondent.
8. the election of the appellant was challenged by the respondent by an election petition presented by him under the provisions of Section 80 of the Representation of the People Act. If was challenged on every ground of objection created by the statute. The election petition incorporated in one most mis-arranged mass a multitude of accusations which could have formed the material for many petitions.
9. 158 witnesses were examined for the respondent and 92 witnesses including two who were examined on commission were called by the appellant. The Tribunal examined one witness as a Court witness.
10. We must, at the outset, place on record our grateful acknowledgement of the invaluable assistance we have received in our arduous task in the appreciation and evaluation of those many witnesses who gave evidence in the case, from the learned advocates appearing on both sides who presented their arguments with admirable ability and exemplary moderation.
11. The grounds on which, as we have mentioned the appellant's election was challenged bythe respondent included charges of bribery, undue influence, exploitation of religion, caste, nationalemblems and national symbols, dissemination of false statements, conveyance of voters to the polls,excessive expenditure, employment of Government machinery for propaganda, as also transgressions ofstatutory provisions by the concerned election authorities.
12. The Election Tribunal which declared the election of the appellant to be void found that most of the corrupt practices alleged by the respondent had been established. Although it was of opinion that the concerned election authorities hadcommitted certain irregularities, in regard to theelection, it was of the view that since those irregularities had not materially affected the result of the election, the election was not thereby vitiated.
13. In this appeal preferred by the appellant, the correctness of the finding of the Tribunal that the corrupt practices alleged by the respondent have been established is assailed on behalf of the appellant.
14. On the other hand, on behalf of the respondent, the finding of the Election Tribunal that the irregularities committed by the election authorities did not vitiate the election has been challenged by Mr. Karanth, his learned advocate.
15. Before proceeding to consider the evi-dence produced by the respondent, in support of the charge that the appellant had committed the corrupt practices referred to in the election, petition, it would be necessary to refer to the relevant statutory provisions.
16. Section 123 of the Representation of the People Act explains the seven corrupt practices which have to be regarded as corrupt practices for the purposes of the Act. Sub-section (1) of Section 100 of the Act enumerates those corrupt practices which vitiate the election of a returned candidate.
17. Since the appellant was charged with having committed every one of the corrupt practices referred to in Section 123 of the Act, it would be necessary to set out that section in its entirety. That section reads :
'123. Corrupt Practices ; The following shall be deemed to be corrupt practices for the purposes of this Act :
(1) Bribery, that is to say, any gift, offer or promise by a candidate or his agent or by any other person, of any gratification to any person whomsoever, with the object, directly or indirectly of inducing.
(a) A person to stand or not to stand as, or to withdraw from being, a candidate, or to retire fromcontest, at an election;
(b) an elector to vote or refrain from voting at an election, or as a reward to -
(i) a person for having so stood or not stood, or for having withdrawn his candidature, or for having retired from contest; or
(ii) an elector for having voted or refrained from voting.
Explanation. -- For the purposes of this Clause the term 'gratification' is not restricted to pecuniary gratifications or gratifications estimable in money andit includes all forms of entertainment and all forms of employment for reward; but it does not include the payment of any expenses bona tide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in Section 78.
(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of a candidate or his agent, or of any other person, with the free exercise of any electoral right;
Provided that -
'(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who:
(i) threatens any candidate, or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure,
shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;
(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause.
(3) The systematic appeal by a candidate or his agent or by any other person, to vote or refrain from voting on grounds of caste, race, community or religion or the use of, or appeal to, religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of that candidate's election.
(4) The publication by a candidate or his agent or by any other person, 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, or retirement from contest, of any candidate, being a statement reasonably calculated to prejudice the prospects of this candidate's election.
(5) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate Or his agent or by any other person, for the conveyance of any elector (other than the candidate himself, the members of his family or his agent) to or from any polling station provided under Section 25 or a place fixed under Sub-section (1) of Section 29 for the poll;
Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purpose of conveying him or them to and from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power;
Provided further that the use of any public transport, vehicle or vessel or any tramcar or railway carriage by any elector at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to he a corrupt practice under this clause.
Explanation. -- In this clause, the expression 'vehicle' means, any vehicle used or capnble of being used for the purpose of road transport, whether propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise.
(6) the incurring or authorizing of expenditure in contravention of Section 77.
(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, from any person in the service of the Government and belonging to any of the following classes, namely :--
(a) gazetted officers;
(b) stipendiary judges and magistrates;
(c) members of the armed forces of the Union;
(d) members of the police forces;
(e) excise officers;
(f) revenue officers including village accountants, such as, patwaris, lekhpals, talatis, karnams and the like but excluding other village officers; and
(g) such other class of persons in the service of the Government as may be prescribed.
Explanation. -- (1) In this section the expression 'agent' includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate.
(2) For the purposes of Clause (7), a person shall be deemed to assist in the furtherance of the prospects of a candidate's election if he acts as an election agent, or a polling agent or a counting agent of that 'candidate.'
It is not necessary at this stage to refer to the amendments made to this section.
18. It will be seen from the provisions of the above section that the corrupt practices referred to in it shall be deemed to he corrupt practices for the purposes of the Act whether they were committed by a candidate or his agent or by any other person.
19. Now, Section 100(1) of the Act which enumerates the grounds on which an election can be declared to be void reads :--
'100. Grounds for declaring election to be void. -- (1) Subject to the provisions of Sub-section (2), if the Tribunal 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 Constitution or this Act; or
(b) 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 relumed candidate 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 candidate, has been materially affected -
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interest of the returned candidate by a person other than that candidate or his election agent or a person acting with the consent of such candidate or election agent or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the Tribunal shall declare the election of the returned candidate to be void.'
It is not necessary at this stage to refer to an amendment made to Clause (d)(ii) of this Sub-section by Central Act 58 of 1958.
20. It will be seen from the provisions of the above sub-section, that a corrupt practice which vitiates the election of a returned candidate under the provisions of this sub-section are those committed either by a returned candidate or by his election agent or by any other person with the consent of a returned candidate or his election agent. That is the position with regard to the corrupt practices referred to in Sub-section (1)(b) of the above section.
But, it is also provided by Clause (d)(ii) of this sub-section that a corrupt practice committed in the interest of the returned candidate by a person other than that candidate or his election agent or a person acting with the consent of such candidate or election agent, also vitiates the election oE the returned candidate if the result of his election has been materially affected by the corrupt practice committed by such person.
21. Although it was stated in the election petition that corrupt practices were committed by persons interested in the appellant, it is not disputed that it was not the case of the respondent that any corrupt practice referred to in Clause (d)(ii) of Section 100(1) was committed in this case or that as a result of the commission of such corrupt practice, the result of the election had been materially affected.
22. On the contrary, the case for the respondent was that the corrupt practices on which he relied were committed either by the candidate or by his agent or by a person interested in the appellant and acting with his consent.
23. It is thus clear that the election was assailed as having become void under the provisions of Clause (b) of Sub-section (1) of Section 100 and not under Clause (d)(ii) of that sub-section. Nor did Mr. Karanth urge before us in the course of the arguments in this appeal that any corrupt practice such as is referred to under Clause (d)(ii) of Sub-section (1) of Section 100 was ever alleged or has been established, nor did he urge before us that as a result of any such corrupt practice, likethe one referred to in Clause (d)(ii) of Sub-section (1) of Section 100, it has been established that the result of the election had been materially affected.
24. Section 83 of the Act prescribes the contents of an election petition which can be presented under Section 80 of the Act. That section reads :
'83. Contents of petition. -- (1) An election petition -
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practices and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (V of 1908) for the verification of pleadings.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.'
25. Mr. Venugopalachari, the learned advocate for the appellant has complained before us that although the requirement of this sub-section is that an election petition must contain a concise statement of the material facts and should also set forth full particulars of the corrupt practices relied upon and as full a statement as possible of the names of the persons who committed the corrupt practice and the date and place of the commission of each such practice, the respondent did not set out in his election petition those particulars required by the section.
26. In our opinion, Mr. Venugopalachari is right in this contention. The election petition and the schedule of particulars produced along with it are as obscure and diffusive as they can be, although in the schedule of particulars and in the rejoinder to the appellant's counter, with respect to some of the corrupt practices set out in the election petition, clearer particulars than those contained in the election petition itself are enumerated. The enumeration of these particulars are also supplemented by further particulars which were given by the respondent in the rejoinder which he filed after the production by the appellant of his counter. We shall refer to these particulars in due course as and when it becomes necessary for us to do so.
27. Now, in the election petition itself, the persons who according to the respondent committed the corrupt practices, are described in the following manner; Paragraph 3-A of the election petition which contains the charge of bribery reads:
'3. that theelection of the respondent is void inasmuch as the following corrupt practices were committed by and/or in the interest of the respondent.
(a) The respondent, his agent and/or the persons interested in the respondent and/or acting with the consent of the respondent gave, offered and/or promised gratification with the object of inducing directly or indirectly the electors to voteand/or to refrain from voting as a reward for so doing.'
28. Every other charge of corrupt practice set out in the election petition is similarly worded.
29. It is clear that when the charges were enumerated in this way by the respondent, he was merely copying the language of Section 123 of the Act, without specifying the particular person who committed the corrupt practices or the other particulars which he should have specified in his election petition, required by Section 83 of the Act.
30. Now, it has been authoritatively declared by their Lordships of the Supreme Court in Harish Chandra Bajpai v. Triloki Singh, (S) : 1SCR370 , that the charges of corrupt practice are quasi-criminal in character and that the allegations relating thereto must be sufficiently clear and precise to bring home the charges to the candidates.
31. Although the election petition cannot be said, in our opinion, to be at all precise or clear, the respondent made an attempt in the schedule of particulars which he produced along with the election petition to set out the particulars, with greater precision and clarity. But, even the enu-meration of those particulars in the schedule of particulars is, to our mind, not entirely in conformity with the requirements of the Act.
32. But, we should make it clear that we do not propose in our judgment to exclude from our consideration although it was the contention of Mr. Venugopalachari on behalf of the appellant that we should do so, any evidence which was produced on behalf of the respondent to support the charges of very many corrupt practices which were alleged by him in this case, merely on the ground that the election petition or the schedule of particulars produced by the appellant did not strictly conform to the provisions of the Act.
33. The commission of a corrupt practice by a returned candidate not only vitiates his election, as provided by the Act, but also attaches to him certain incapacities to which we shall presently refer. In addition, some of those corrupt practices which are made electoral offences under the provisions of Ch. IX-A of the Penal Code, are offences in respect of which a returned candidate may be punished under the provisions of the Penal Code. That Chapter which was introduced into the Penal Code to emphasise the danger of corrupt practices and the purity of the franchise makes many of the corrupt practices referred to in Section 123(4) also offences punishable under the criminal law.
34. Bribery which is a corrupt practice under Clause (1) of Section 123 of the Act is also an electoral offence punishable under Section 171-B of the Penal Code. Likewise, undue influence referred to in Clause (2) of Section 123 is also an offence punishable under Section 171-C of the Penal Code. Clause (4) of Section 123 which refers to the dissemination of false state-ments corresponds to Section 171-G of the Penal Code.
Whereas Clause (6) of Section 123 refers to excessive expenditure, failure to keep correct accounts is an electoral offence punishable under Section 171-I of the Penal Code. The corrupt practice of arranging for the conveyance of electors to the polls which vitiates an election is also an electoral offencepunishable under Section 133 of the Representation of the People Act.
Section 127 of the Representation of the People Act makes the disturbance of an election meeting, which might also constitute undue influence within the meaning of Clause (2) of Section 123, an electoral offence. Further, under the provisions of Section 141 of the Act, candidates committing corrupt practices are statutorily eliminated from public life for a specific period.
35. Having regard to the grave consequences emanating from the commission of a corrupt practice, it is clear that the proof to he produced in support of a charge that a candidate had committed a corrupt practice should be sufficiently clear and unequivocal, suspicion being plainly insuffi-cient although the Election Tribunal or a Court investigating into the truth of the charge may not be hound by the strict practice applicable to criminal cases and may even act upon uncorroborated testimony if it conforms to established standards as to weight and sufficiency. This is the principle which has been enunciated by many Judges from time to time although in different phraseology.
36. In Taunton's case. Marshall and Brannan v. James, (1874) 2 O'M and H 66, with regard to the nature of an Election Tribunal, and of the evidence which should he adduced in order to establish a case of corrupt practice, this is what Grove, J., said:
'It must be borne in mind in these cases, that although the object of the statute by which these Election Tribunals were created was to prevent corrupt practices, still the Tribunal is a judicial, and not an inquisitorial, one; it is a Court to hear and determine according to law, and not a Commission armed with powers to inquire into and suppress corruption. To use the language of that eminent Judge, the late Mr. Justice Willes, 'No amount of evidence ought to induce a judicial Tribunal to act upon mere suspicion to imagine the existence of evidence which might have been given by the petitioner, but which he has not thought it to his interest actually to bring forward, and to act upon that evidence and not upon the evidence which really has been brought forward. The second principle, which is more particularly applicable to circumstantial evidence, is this, that the circumstances to establish the affirmative of a proposition, where circumstantial evidence is relied upon, must be all, such of them as are believed, circumstances consistent with the affirmative, and that there must be some one or more circumstances believed by the Tribunal, if you are dealing with a criminal case, inconsistent with any reasonable theory of innocence, and when you are dealing with a civil case (otherwise expressed though probably the result is for the most part the same), proving the probability of the affirmative to be so much stronger than that of the negative that a reasonable mind would adopt the affirmative in preference to the negative'. (Tam worth case. (1869) 1 O'M and H 75, 84). He says in another place: 'I think I am justified, when I am about to apply such a law, in requiring to be satisfied beyond fill reasonable doubt that the act of bribery was done, and that unless the proofis strong and cogent -- I should say very strong and very cogent -- I ought not to affect the seat of an honest and well intentioaed man by the act of a third person.....' (Wigan, 1 O'M and H 188, 192). .....'
36a. In Narasimha Reddy v. Bhoomaji, : AIR1959AP111 , their Lordships of the Andhra Pradesh High Court pointed Out that the onus of establishing a corrupt practice beyond reasonable doubt rests heavily on the petitioner. That was also the view taken by their Lordships of the Bombay High Court in Ahmedmiya Sherumiya Shaikh v. Chhippa Ibrahim Nuraji, 17 ELR 218 (Bom). Chagla, C. J., said this on p. 222 of the report:
'We agree with Mr. Peerbhoy that when an election petition is being heard in which a corrupt practice is the charge against an elected member the proceeding must in its very nature be looked upon as a quasi-criminal proceeding. The charge of corrupt practice is a very serious charge and it entails very serious consequences because under Section 141 if a person, upon the trial of an election petition, is found guilty of any corrupt practice, he shall, for a period of six years from the date of the conviction or from the date on which the finding is given by the Tribunal, be disqualified for voting at an election. It may also be pointed out that this has been constituted an offence under the Indian Penal Code, the offence being one under Section 171 which is the section defining 'bribery', and the punishment for this offence which is laid down in Section 171 is Imprisonment for a term which may extend to one year, or fine, or both. It is therefore clear that the approach that we must make to this enquiry by the Tribunal must be the approach we would make if we were considering a case of conviction. Therefore, in the first place, Section 123 must be strictly construed in favour of the person against whom the charge is preferred. The case of corrupt practice must be strictly proved. If there is any reasonable doubt, the benefit of that doubt must be given to the person against whom the charge is preferred.'
37. The Tribunal, however, in para 15 of its judgment, appears to take the view that the burden of proof in regard to a corrupt practice alleged against a returned candidate had no materiality, and, not unnaturally, the appellant complains that the evaluation of the evidence by the Tribunal was not made in conformity with well established principles.
38. However that may be, it is now for us to examine the evidence produced on behalf of the respondent with respect to each of the corrupt practices alleged against the appellant and to come to our own conclusion whether the finding of the Tribunal that those corrupt practices had been established can be sustained.
39. The first head of impeachment, as we have already mentioned, is that the appellant resorted to the corrupt practice of bribery for influencing the electors.
40. The corrupt practice of bribery is explained in Clause (1) of Section 123 which has already been extracted.
41. According to the respondent, the appellant bribed the electors at least in five differentforms. The allegation made by the respondent was that the appellant treated the electors, distributed cloth to them, paid cash, made what may be regarded as campaign promises and also entertained them free of cost.
42. Issues 1, 2 and 3 are the issues framed by the Tribunal in regard to these allegations. Those issues read:
'1. Did the respondent, his election agents and/or persons interested in the respondent and/or acting with the consent of the respondent commit the corrupt practice of bribery by arranging refreshments, byalatas and dramas with the object of inducing directly or indirectly the voters to voteor refrain from voting on all or any of the dates and at all or any of the places as mentioned in paras 3(a) and 5 of the petition and paras 1 to 8 of the Schedule of Particulars?
2. Did the respondent, his election agents and/or persons interested in the respondent and/ or acting with the consent of the respondent commit the corrupt practice of bribery by offering gratifications in the form of construction of a tower to a temple, construction of a school building andconstruction of a well for Harijans at the cost of the respondent as stated in paras 3(a) and 5 of the petition and paras 1 to 3 of the Schedule of Particulars?
3. Did the respondent, his election agent and/or persons interested in the respondent and/or acting with the consent of the respondent com-mit the corrupt practice of bribery by distributing money and clothes in the manner mentioned in paras 3(a) and 5 of the petition and paras 1 to 3 of the Schedule of Particulars and was this corrupt practice so general throughout the entire constituency that the election was not a free election.'
43. The findings of the Tribunal on these issues as recorded in paragraph 231 of the judgment, which were framed in this unsatisfactory manner were in the affirmative, with the result that it is not very clear whether the Tribunal intended to find that the corrupt practies referred to in those three issues were committed by the respondent himself or whether they were committed by his election agent or by persons interested in the respondent or acting with his consent.
44. (After discussion of evidence with regard to various acts of bribery alleged, their Lordshipsconcluded as follows:) The first major head of impeachment made by the respondent that the election of the appellant was vitiated by acts of bribery practised by him whether in one form or another, cannot therefore be sustained and must in our Opinion fail.
45. We now advert to the second form of corrupt practice attributed to the appellant. This is a charge of undue influence which is explained in Clause (2) of Section 123 of the Act which has already been extracted in another part of our judgment. The allegation made by the respondent is that the voters of the parliamentary constituency were influenced to record their votes In favour of the appellant either by coercion or by intimidation, or by threats of temporal or Spiritual injury, or by the abuse of exceptional influences by persons occupying positions of power or importance, as also by appeals to iear, terror and superstition.Some of the allegations made in this regard under the head of undue influence also amount to allegations Falling within Clause 3 of Section 123 to which we shall refer when it becomes necessary. The discussion of the evidence under the head of undue influence will therefore also dispose of the charge amounting to a systematic appeal falling under Clause 3 of that section.
46. (After discussion of evidence with regard to some of the charges of undue influence, their Lordships held that they were not proved. The judgment then proceeded:) The next corrupt practice to which we should now advert is the allegation of undue influence by the exploitation ot the name Kalyana Basava. This allegation as we have already indicated is also an allegation falling within the provisions of Clause (3) of Article 123 of the Act. Before proceeding to consider the evidence in this regard it has to he stated that Kalyana Basava to whom reference is made by the witnesses in the course of their evidence was admittedly a great reformer of the Veerasaiva Religion.
He was born in a place called Bagewadi in the District of Bijapur and later became a Minister under Bijjala who was a Chalukya King, hav-ing his capital at Kalyana in the District o Bidai. It is not disputed that it is one of the important articles of faith of the Veerasaiva Religion that Kalyana Basava was the incarnation of Nandi, the mount of Siva.
47. The charge levelled against the appellant was that an attempt was made by him and by his workers to equate the yoked bullocks which form the symbol allotted to him with Kalyana Basava the great reformer. The main drift of the evidence is that the voters were made to think that the yoked bullocks which formed the symbol of the Congress candidates had something to do with Kalyana Basava and that if votes were registered in favour of the appellant, who was a Congress candidate, the votes recorded for the Congress symbol would really be votes recorded for Kalyana Basava.
The charge therefore was that not only were the Lingayat voters in the Parliamentary Constituency subjected to some form of undue influence but were also subjected to a systematic appeal on the ground of religion or caste. If it is established by the evidence in the case that such an appeal wag made on behalf of the appellant to the voters, of the Parliamentary Constituency, it cannot be disputed that that appeal would amount not only to undue influence vitiating the election under Clause (2) of Section 123 but would constitute a systematic appeal on grounds of religion or caste falling within Clause (3) of that section resulting in the same consequence. We shall, therefore, now proceed to consider the evidence produced by the respondent in support of this charge.
48. The first attempt made On behalf of the respondent is to establish that Ex. P-75 which is a pamphlet purporting to have been prepared and published by one Govardhana Rao Secretary ofthe Karnataka Provincial Congress Committee which contained an appeal to the voters in the name of Kalyana Basavanna and also a religious appeal. Ex. P-75 on which the respondent relies is an eulogium in praise of the cow and the bullock. As we have already mentioned the symbol allotted to the Congress candidates was a pair of yoked bullocks. The translation of that pamphlet which is in Kannada and which both sides agree as the correct translation reads:
'Congress Election Symbol.
( ) This is the picture of two yoked bullocks. Bullocks remind (us) of villages. The charm displayed by them when moving on fields, in forests and on meadows and on green pastures pleases the minds of ryots and is a feast to their eyes.
Bullock is Shiva's Nandi -- Basavanna. Just as it is the mount of God it is also the servant of the country's economic system and the foundation and the transcedent power of the farmer.
The sight of the bullocks reminds as of the ideal of universal love, the welfare of the entire creation and Dharma. Gandhiji, the father of our Nation, once said that the cow is the poem of compassion.
Bullocks which are the off-spring of the Gomatha (mother cow) are the very life and the secure wealth of agriculture.
The election symbol of the Congress is a symbol of service -- Agriculture is the foundation of India's progress and industrial advance.
In agriculture lies village life. Bullocks constitute the entire fortune of the ryot. The pair of bullocks stands for co-operation. The picture of the two bullocks standing together ready to serve invites the co-operation of the farmer. It is only when the farmer pitches and plies the plough paddy and cotton are grown and there is an abundance of jola and wheat.
Thus it is that the election symbol of the Congress is the symbol of service through mutual help and co-operation, through self help and sacrifice. This represents the harmonious blend and mingling of the power of the living beings with the power of the machine and it is also an exposition in practice of the principle of desireless action.
Voters should therefore cast their valuable votes into the box bearing such a symbol and uphold the plans, policies and programmes of the Congress.'
49. The only portions in this pamphlet which according to Mr. Karant amount to an appeal on the ground of Religion or Caste or constitute undue influence on the electors are those contained in the first two paragraphs. The impugned portion in the first paragraph reads:
'The Bullock is Shiva's Nandi -- Busavanna. Just as it is the mount of God it is also servant of the country's economic system and the foundation and the transcedent power of the farmers. The only part of this portion to which exceptionis taken on behalf of the respondent is the first part of it which refers to the bullock as Shiva's Nandi, the mount of God. In our opinion this portion in paragraph 1 of the pamphlet is clearlyan appeal in the name of Religion or an appeal on the ground of Religion or Caste.
If it was represented to the voters that the bullocks forming the Congress symbol was the mount of Shiva or have to be regarded as the same as Nandi who is the mount of Shiva, it cannot be denied that the appeal that was made to the voters would be an appeal that votes have to be cast in favour of the Congress symbol because the Congress symbol represents the mount of God.
An appeal of that description would in our opinion clearly come within the denunciation of the Act and constitute not only an influence on the religious susceptibilities of the voters but would also constitute an appeal in the name of religion or on the ground of religion or caste within the meaning of Clause (3) of Section 123. Mr. Karant also suggested that the reference to the Gomata or the mother cow occurring in paragraph 2 of Ex. P-75 was similarly an appeal in the name of religion.
It may be so but it is not really necessary for us to consider the question whether it is so. If it is established by the evidence in the case that an appeal like Ex. P-75 was made to the voters of the Parliamentary Constituency and that such appeal was a systematic appeal, the election of the appellant would clearly become void as a result of the corrupt practice falling plainly within Clause (3) of Section 123. Likewise the appellant's election would be similarly vitiated for the reason that the appeal would amount to undue influence within the meaning of Clause (2) of Section 123.
50. The next question, therefore, to be considered is whether it is true that Ex. P-75 was a pamphlet printed and circulated amongst the voters by Govardhana Rao, the Secretary of the Karnataka Pradesh Congress Committee and whether such circulation and distribution of pamphlets amongst the voters of the Parliamentary Constituency was made by the appellant or his election agent or by any one who could be regarded as a person committing that corrupt practice with the consent of the appellant -- in which event alone the corrupt practice would vitiate his election under the provisions of Section 100(1)(b) of the Act.
51. (After discussion of evidence their Lordships held that the charge of appeal to voters by distribution of pamphlets, wall paintings, wall posters, through loud speakers in processions was not established. The judgment then proceeded;) The witnesses who gave evidence that there were bullock processions in the various places to which we have referred, and that there were jeeps through the loud speakers of which the Congress workers and propagandists shouted slogans in the name of Kalyana Basava are also the witnesses examined in support of the charge that national flags national emblems and photographs of Mahatma Gandhi were also displayed in those processions and that those national flags and symbols were used, or appealed to, for the purpose of influencing votes, in favour of the Congress ticket.
As we mentioned the processions taken out in those places in which they were really taken out appear to have been mere processions of a pair of bullocks displaying a piece of cloth on which the Congresssymbol was painted in chunam. The evidence given by the various witnesses, to whose evidence we have already referred, which was to the effect that slogans were shouted in the name of Kalyana Basava or that national flags and national emblems and pictures of Mahatma Gandhi were not only displayed or appealed to or were used, does not appear to be sufficiently trustworthy.
We must, therefore, hold that the charge made by the respondent against the appellant that the election propaganda carried on on his behalf also included an appeal to the national emblems and national flags and pictures of Mahatma Gandhi or ths use thereof has not been satisfactorily established.
52. Further, there is another reason why that charge should fail in so far as it related to the use of the pictures of Mahatma Gandhi. The case of the respondent was that the use of the picture of Mahatma Gandhi amounted to an appeal to a national symbol or its use. In Misc. Appeal No. 163/1959 this Court expressed the view that the picture of Mahatma Gandhi was not a national symbol. With that view, we respectfully agree. Nor did Mr. Karanth contest the correctness of that position.
In order to constitute a national symbol, the symbol must be something exponential or emblematic of the nation and it cannot be seriously asserted that the picture of Mahatma Gandhi is a national symbol so tested. Mr Karanth, therefore, did not ask us to hold that, any display of the picture of Mahatma Gandhi either in the processions or in the dramatic performances to which we have already referred, constituted either an appeal to a national symbol or its use and it, therefore, becomes unnecessary for us to pursue the discussion further.
53. (After discussion of evidence their Lordships concluded as follows:) The discussion so far made exhausts the evidence which was referred to by the Tribunal or relied upon by Mr. Karanth in support of the respondent's case that the corrupt practices of undue influence and systematic appeals, forbidden by Clauses (2) and (3) of Section 123 of the Act were committed by or on behalf of the appellant.
54. It should be pointed out before we proceed to consider the next head of corrupt practice, that the issues in relation to these corrupt practices were issues 4 and 5. Those issues which were framed in an extremely unsatisfactory way read:
'(4) Did the respondent, his election agents and/or persons interested in the respondent and/or acting with the consent of the respondent commie the corrupt practice of undue influence by threatening the ejectors and/or persons in whom the petitioner was interested with injury to these persons and their reputation and by inducing the electors to believe that they and in those in whom they were interested would become or be rendered object of divine displeasure and/or spiritual censure as alleged in paras 3 (b) and 6 of the petition and paras 4 and 5 (a), 15 (c) of the schedule of particulars and was this corrupt practice so general throughout the constituency as to render the election not a free election?
(5) Did the respondent, his election agents and/or persons interested in the respondent and/or acting with the consent of the respondent commit the corrupt practice of systematic appeal to voting on the ground of caste, race, community or religion and/or the use of appeal to religious symbols or the use by or appeal to national symbols, such as the national flag and/or the national emblem for the furtherance of the prospects of election of the respondent as stated in paras 3(c) and 6 of the petition and paras 4 and 5 (a), (b) and (c) of the schedule of particulars?'
and the findings on those issues by the Tribunal, as recorded in paragraph 231 of its judgment, were in the affirmative, which make it very difficult for any one to understand as to what exactly the finding of the Tribunal was on the question as to who was the person who committed the corrupt practices alleged by the respondent. However that may be the findings of the Tribunal on those issues have to be and are reversed.
55. We next proceed to consider the charge that the voters of the constituency were conveyed to the polls on the polling dales. This corrupt practice, if established, is one falling within Clause (5) of Section 123 of the Act.
56. The allegation in the petition was that in twenty-seven places, voters were conveyed to the polls in transports illegally procured or hired by the appellant.
57. The Tribunal dealt with the evidence relating to thirteen places, but Mr. Karanth submitted to us that he would not press that charge except in regard to four places.
58. We propose to examine the evidence discussed by the Tribunal in regard to each of the thirteen places referred to by it in its judgment.
59. (After discussion of some oral evidence under this head of charge the Judgment proceeds:) The Tribunal pointed out that since the demeanour of the witness was not good, his evidence was therefore unacceptable.
60. There is no note made by the Tribunalabout the demeanour of this witness. The Tribunal could not have remembered what the demeanour of this witness was when it began to write itsJudgment, having regard to the long delay between the date of the trial and the date of pronouncement of its Judgment.
All that can be seen from the deposition sheetwas that the witness sometimes smiled when hisevidence was being recorded and that sometimeshe laughed. But, in the absence of any materialas to the cause for the witness conducting himselfin that way, it would not be correct to think thatthe evidence of this witness by reason of suchdemeanour is not entitled to credience.
61. (After discussion of some more evidence His Lordship proceeded:) In our opinion, the charge levelled against the appellant under Clause (5) of Section 123 of the Act cannot be said to have been estabtished.
62. The issue in this regard framed by the Tribunal was similar to the issues framed in regard to the other charges and reads :
'(7) Did the respondent, his election agents and/or any other person interested in the respondent and/or with his consent commit the corrupt practice of hiring on payment of any vehicle for the use and conveyance of voters to and from any polling stations as alleged in para 3 (e) of the petition and the last and 8th para of the schedule of particulars?'
63. The finding recorded by the Tribunal in paragraph 231 was, as before, in the affirmative, which we find extremely difficult to understand.
64. We shall now proceed to consider the evidence relating to the accusation that the appellant employed a branch of the Government machinery for his election propaganda, which amounts to a corrupt practice under Clause 7 of Section 123 of the Act. In the pleadings of the respondent, he charged the appellant with having obtained or procured the assistance of four sets of Government officials.
It was stated by him that Government Patwaris, officers of the Police Department, presiding officers who were working during the election and the Polling Officers who were in charge of the polling stations, were the Government officials whose assistance wag procured or obtained by the appellant for bis election.
But in the evidence which was produced by the respondent, he made no attempt to establish that the appellant obtained the assistance of any Police officers, presiding officers or polling officers, nor was any attempt made before us to establish that part of the charge. Even the Tribunal did not find that any such assistance had been obtained by the appellant But the finding of the Tribunal was that the Government Patwaris did assist the appellant in his election propaganda. The 9th issue framed by the Tribunal in this regard reads :
'Did the respondent, bis election agent and/or persons interested in the respondent and/or with bis consent commit the corrupt practice of procuring or attempting to procure the assistance of persons in the service of Government for the furtherance of the respondent's election as alleged in paras 3 (g) and 10 of the petition and last para of the schedule of particulars and also para 8?'
and the finding recorded in paragraph 222 was again in the affirmative. In paragraph 223 of the judgment, the Tribunal recorded somewhat clearer finding which reads :
'I am therefore inclined to think that the evidence goes to show that the respondent had obtained or procured the assistance of persons in the service of Government for the furtherance of the prospects of his election.'
The respondent's case in the pleadings was that many Patwaris canvassed and worked actively for the appellant and that the appellant had obtained or procured the assistance of persons in the service o| Government. In the schedule of particulars, the respondent named the persons whose service was used by the appellant and it was stated therein that their services were utilised between February 5, 1857, and March 10, 1957.
65. In order to constitute a corrupt practice under Clause (7) of Section 123 of the Act, what isto be established is that the appellant or some one acting on his behalf obtained or procured or abet-ted or attempted to obtain or procure the assistance of persons in the service of Government for the furtherance of the prospects of the candidate's election. The obtaining or the procuring of the assistance of a Government Patwaris as provided by Sub-clause (f) of that clause amounts to the procuring or the obtaining of the assistance of a person in the service of Government. The question is whether the evidence produced by the respondent in this case establishes that allegation.
66. (After discussion of evidence in regard ta Sadashiv Rao Patwari and Guru Rao Desai Patwari their Lordships proceeded. Reliance was placed lastly on Ex. P-48 (c), a newspaper report in Thun-gabhadra dated February 14, 1957, in which it was reported by the Yelburga correspondent of that newspaper that at a meeting of the Congress workers of Yelburga Taluk, Gururao Desai was one of those present and that in that meeting the impending general elections were also discussed among other matters.
It is clear that even if Gururao Desai was present in that meeting, it does not amount to his having taken part in any election propaganda on behalf of the congress much less can it amount to the procuring or the obtaining of his assistance by the appellant. Further, this newspaper report cannot be treated as substantive evidence. The correspondent who made that report is not examined and the mere fact that a report appears in a newspaper to that effect cannot amount to evidence on which the respondent can rely to support his charge.
67. (After discussion of some more evidence on this head of charge Their Lordships proceeded :) In our opinion, the accusation that the appellant or any one on his behalf obtained or procured the assistance of any patwari for the furtherance of the election prospects has not been satisfactorily established. The Tribunal, in coming to the contrary conclusion, overlooked as we have already pointed out, material evidence produced by the appellant. It has also, it appears, an incorrect impression in its mind in regard to the evidence produced about it.
68. After discussing the evidence relating to this charge, it observed in paragraph 222 of its judgment as follows :
'But as seen above, there is evidence to show that the respondents had gone to the house of these Patwaries some days before the polling and that they conferred with them. It is not possible of course to give direct evidence to show that the respondent asked the assistance of these Patwaries. This is also a matter to be gathered from the surrounding circumstance. The circumstances spoken to by the witness go to show that the respondents must have requested the help of these Patwaries.'
69. Now, no witness was called by the respondent to give evidence that the appellant had gone to the house of each one of those patwaries. P.W. 91 was the only witness who gave evidence that the appellant had gone to the house of Narahararao Desai. There is no evidence that the appellant went to the house of any other Patwari. The impression the Tribunal had in its mind that the appellant had visited the houses of Patwaries and that that had been spoken to by the witnesses for the respondent, was obviously an incorrect impression.
70. The next head of impeachment was that in violation of the provisions of the Act, the appellant had incurred or authorised expenditure in excess of that prescribed by the Act and that therefore, a corrupt practice had been committed falling within Clause (6) of Section 123 of the Act.
71. The allegation in the pleading was that the appellant incurred or authorised expenditure in contravention of Section 77. The particulars of the corrupt practice were enumerated in paragraph 9 of the election petition. It was alleged that a very large sum of money had been spent by the appellant over petrol and cars, for the patronage of the two newspapers Thungabhadra and Netaji, over pamphlets which were got printed and distributed during the election period and towards expenses of treating and conveyance of voters.
In the schedule of particulars, the respondent gave even further particulars. The respondent also applied for permission to amend the schedule ot particulars and he save three more instances of the corrupt practice. The 8th issue which was framed by the Tribunal in this regard reads :
'Did the respondent, his election agents and/or any other persons interested in the respondent and/or with the consent of the respondent commit the practice of incurring or authorising expenditure in contravention of Section 77 of R.P. Act and including expenses incurred for printing, publishing and distributing poems, pamphlets and lavanis in the manner alleged in paras 3 (f) and 9 of the petition against the provisions of Section 123(6) of R.P. Act?'
and the finding on this issue in paragraph 231 of its judgment was in the affirmative. The view taken by the Tribunal was that more than Rs. 25,000/- had been spent by the appellant and that quite a large number of items of expenditure incurred by him had been suppressed by him in the return of election expenses submitted by him.
72. Exhibit P-119 is the return of election expenses produced by the appellant before the Election Commission on April 12, 1959. The amount spent by him was Rs. 12,889-14-3, as shown in it.
73. Before proceeding to refer to the evidence in this regard, it would be necessary to refer briefly to the relevant statutory provisions. Clause (6) of Section 123 of this Act provides that the incurring or authorising expenditure in contravention of Section 77 is a corrupt practice. Section 77 of the Act to which the above clause refers reads:
'77. Account of Election Expenses and Maximum thereof:
1. Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the dateof publication of the notification calling the election and the date of declaration of the result thereof, both dates inclusive.'
2. The account shall contain such particulars, as may be prescribed.''
3. The total of the said expenditure shall not exceed such amount as may be prescribed.' Section 78 provides for the lodging of the account of expenses incurred by the candidate with the Returning Officer. Section 76 provides that the provisions of Ch. VIII in which Sections 77 and 78 are contained, shall apply only to elections to the House of the People and to the Legislative Assembly of a State.
74. Now, the particulars referred to by Section 77(2) are those prescribed by Rule 131 of the Rules made under the Act. That rule reads:
'(1) The account of election expenses to be kept by a candidate or his election agent under Section 77 shall contain the following particulars in respect of each item of expenditure from day to day, namely:
(a) the date on which the expenditure was incurred or authorised;
(b) the nature of the expenditure (as for exr ample, travelling, postage or printing and the like);
(c) the amount of the expenditure -
(i) the amount paid;
(ii) the amount outstanding;
(d) the date of payment;
(e) the name and address of the payee;
(f) the serial number of vouchers, in case of amount paid;
(g) the serial number of bills, if any, in case of amount outstanding;
(h) the name and address of the person to whom the amount outstanding is payable.
2. A voucher shall be obtained for every item of expenditure unless from the nature of the ease, such as postage, travel by rail and the like, it is not practicable to obtain a voucher.
3. All vouchers shall be lodged along with the account of election expenses arranged according to the date of payment and serially numbered by the candidate or his election agent and such serial numbers shall be entered in the acoount under item (f) of Sub-rule (1).
4. It shall not be necessary to give the particulars mentioned in item (e) of Sub-rule (1) in regard to items of expenditure for which vouchers have not been obtained under Sub-rule (2)'.
75. Rule 135 of the aforesaid rules provides that the total of the expenses incurred by a candidate in connection with an election in any one constituency in any State shall not exceed the maximum amount specified in respect of that constituency in Schedule III. Schedule III referred to in that rule prescribes for the State of Mysore, a sum of Rs. 25,000/- for a single member parliamentary constituency as the maximum expenditure that could he incurred by a candidate.
76. It would be necessary to set out Section 78 of the Act which provides for lodging of the account with Returning Officer and it reads:
'Every contesting candidate at an election shall within thirty days from the date of election of the returned candidate or, if there are morethan one returned candidate at the election and the dates of their election are different, the later of those two dates, lodge with the returning officer an account of his election expenses which shall be a true copy of the account kept by him or by his election agent under Section 77.'
77. It was only a copy of the account of the appellant's election expenses which was lodged under the provisions of Section 78. On behalf of the respondent it was urged that that account was not a true account of the expenses incurred by the appellant and that, from it were excluded many items of expenditure which had been incurred by the appellant for his election campaign.
78. As already mentioned, the, Tribunal was of the view that the charge made by the respondent was true. Paragraph 185 of the judgment illustrates the approach made by the Tribunal to the decision of the question. After setting out the provisions of Section 77, this is what the Tribunal observed:
'As regards the maintenance of accounts, it has to be observed that the respondent has not followed the rules prescribed. I quote his own words in regard to this as it will be better to ap-preciate it. It runs as follows: 'I have kept accounts of my expenses from day to day. I have produced them. Ex. P-119 is that account. I copied this from the accounts that I had kept from day to day. They are not in the form of Khata and Khirdi. I have not mentioned any item of the credit side. I have maintained these accounts in Kannada. My clerk has written those accounts. His name is Shankarsa. I maintained separate accounts one for petrol, one for travelling and a third for telegrams. These three consolidated accounts are added in my return of election expenses ia the last. I did not follow any particular system of accounting in maintaining these accounts'. These words speak for themselves. The respondent is a shrewd businessman and ha has been in business for the last 30 years and more, and he has not produced the original accounts from which, he says, he has prepared Ex. P-119, the return of election expenses. He has not examined the clerk that maintained these accounts. It can hardly be said that the respondent has maintained proper accounts. He also does not know in whose handwriting Ex. P-119 is.'
79. It is clear from this discussion of the matter by the Tribunal that it appears to have been of the view that the account Ex. P-119 produced before the Returning Officer by the appellant, was not maintained in accordance with the prescribed rules. This view was the outcome of the Tribunal incorrectly and not properly understanding the provisions of Section 78 under which, all that the appellant had to do, in order to comply witli the provisions of that section was to produce only a true copy of the account kept by him.
It was certainly not necessary for the appellant to produce before the Returning Olficer the original accounts maintained in that regard nor was it necessary for him, having regard to the provisions of Rule 131 which prescribes the particulars to be entered in the accounts to be maintained by a candidate, to maintain the account in any particular form. Likewise, it was -- unless circumstances justifying that necessity were established --quite unnecessary for the appellant to examine his clerk or any other person who maintained these accounts.
The burden of establishing that any excessive expense was incurred or authorised, was entirely i upon the respondent. Mr. Karanth himself did not dispute the position that what the respondent had to establish in order to make out a corrupt practice under Clause (6) of Section 123 was, that expenses in excess of Rs. 25,000/- had been incurred and that it would not be enough for any defeated candidate or an election petitioner to merely establish that the account kept by the appellant and lodged with the Returning Officer was an incorrect return.
80. Likewise, the reference in paragraph 185 of the Tribunal's judgment to the non-production of the original of the election account maintained by the appellant was in our opinion, of no materiality since the respondent himself did not summon the appellant to produce that account. On the contrary, the respondent summoned the appellant to produce his business accounts for the period between December 1956 and April 1957. These accounts were accordingly produced although Mr. Karanth complained that they were not produced until after a long time elapsed after they were summoned. The respondent did not ask the appellant to produce any other account.
81. However that may be, the Tribunal's view was that these business accounts which were produced by the appellant and the other evidence in the case established the charge of excessive expenditure. (After discussion of some items in the accounts the judgment proceeds:)
82. The first entry in the accounts of the appellant which according to the Tribunal was a suspicious entry, was a debit made on February 25, 1957 of a sum of Rs. 7,700-2-6 and marked as Ex. P-210(a) in the day-book. Mr. Karanth pointed out that February 25, 1937 was the date on which the election in Shirguppa constituency took place. That entry roads that a sum of money which was kept in suspense was debited to the appellant. The entry also indicates that that amount was the amount received hy the appellant.
The view taken by the Tribunal was that that sum of money represented a sum of money which was spent by the appellant over his election propaganda. The explanation given by the appellant in regard to this entry was that that sum of Re. 7,700-2-6 was the aggregate of moneys drawn by hint from time to time in regard to which a consolidated entry was made to his debit on February 25, 1957. The Tribunal thought that that explanation was not acceptable.
Mr. Karanth also asked us to disbelieve that explanation and pointed out to us that the appellant, in one part of his evidence stated that the cash balances shown in his account books also include the amount kept in suspense. We are unable to see that that statement made by the appellant can at all lend any support to the contention that the sum of Rs. 7,700-2-6 was drawn by the appellant in one lump sum on February 25, 1957.
The burden of establishing that this sum of money was actually spent by the appellant for his election but was nevertheless suppressed from his account was on the respondent. It would not be enough for the respondent to show that on February 2,5, 1957 a debit has been made against the appellant in regard to that sum of money.
The more pointing out of a debit entry to that effect does not certainly exonerate the respondent from proving the charge that that sum of money was utilised by the appellant for the election expenses. Although direct proof of the application of any such sums of money by the appellant for his election expenses may sometimes be impossible of proof, circumstances justifying that inference at least have to be established.
83. The only circumstance which has been established in this case is that the appellant admitted in his cross-examination that out of this sum of Rs. 7,700-2-6 some portion must have been utilised also towards his election expenses and that the other portions were utilised for bis personal expenses. The fact that some portion of this money was employed for the purpose of election expenses does not render Ex. P-119, the account maintained by the appellant, to any extent incorrect.
Ex. P-119 shows that between the period from February 25, 1957 on which date the impugned debit was made and March 10, 1957, the appellant spent a sum of Rs. 5615/- and that in addition to that a sum of Rs. 2,093-7-0 was also spent by him towards his petrol expenses. The aggregate of these two amounts would be a sum of Rs. 7,708-7-0 which was the amount thus spent by the appellant according to Ex. P-119 after the date on which the debit of Rs. 7,700-2-6 was made.
It is not established that that sum admittedly spent by him over the election campaign was from any other source. That being so, the admission made by the appellant as it is called, that a portion of the sum of Rs. 7,700-2-6 was also spent over the appellant's election, does not in any way lend support to the contention that Ex. P-119 did riot include any sum of money which was actually spent by the appellant over his election after the debit entry made on February 25, 1957.
84. It does not also appear to us that there is anything incredible in the explanation of the appellant that he used to draw from his funds on different dates and that consolidated debits would be against him on some, future date. Ex. R-237 which is the ledger folio corresponding to the daybook Ex. P-211 shows that between November 5, 195R and October 23, 1957 there are both debits and credits against and in favour of the appellant.
The final result was that at the end of that period the appellant was a debtor to the extent of Rs. 714-1-0. The ledger shows that on November 5, 1956 the appellant credited a sum of Rs. 1,915-1-0; a sum of Rs. 30/- on December 4, 1956; a sum of Rs. 1,850-2-6 on February 2, 1957; a sum of Rs. 234/- on May 30, 1957 and a sum of Rs. 1,300/- on June 6, 1957.
The fact that large sums of moneys were also being credited to the appellant in the account of the firm shows that the appellant was both payingin moneys and also taking out moneys from the firm and that there is nothing particularly sinister in the fact that on February 25, 1957 a debit was made against him to the extent of Rs. 7,700-2-6. Even otherwise, it seems to us that the mere fact that the debit was made against him is no proof in the absence of other evidence of the applica-tion of that sum in its entirety for the election by the appellant.
85. (After discussion of other entries in the accounts in respect of this charge their Lordships concluded:) We are, therefore, of opinion that there was no foundation for the allegation that there was any excessive expenditure incurred or authorised by the appellant in contravention of the provisions of Section 77 of the Act. That charge, in our opinion, must therefore fail.
86. We next proceed to consider the charge that a corrupt practice had been committed within the meaning of Clause (4) of Section 123 of the Act. According to the provisions of that clause, the publication by a candidate or his agent, or by any other person with the connivance of the candidate or his 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 or retirement of any candidate, being a statement) reasonably calculated to prejudice the prospects of that candidate's election, is a corrupt practice for the purpose of the Act.
87. The issue framed by the Tribunal in respect of this corrupt practice was issue No. 6, and that issue roads;
'(6) Did the respondent, his election agent and/ or persons interested in the respondent and/or acting with his consent commit the corrupt practice of publishing statements of facts which were false or which he or they did not believe to be true in relation to the personal conduct and character of the petitioner being statements reasonably calculated to prejudice the prospects of the petitioner' election in the issue of 'Thungabhadra', 'Netaji' and 'Swatantra' as stated in paras 3(d), 6(a) to (e) and 7 of the petition and paras 6 and 7 of the schedule of particulars?'
88. Now, in order to establish a corrupt practice of that description, the following ingredients have to be established:
'1. It should be shown that both, the person who traduced or on whose behalf the traducement was made and the person who was traduced were both candidates at the relevant time. The false statements forming the subject-matter of the corrupt practice should have been directed against a person who was a candidate.
2. The impugned statement should be shownto be statements of facts.
3. The falsity of those statements should also be established.
4. It should further be established that the traducer believed those statements to be false or did not believe them to be true.
5. The statements disseminated should relate to the personal character or conduct of the candidate, or to his candidature, or withdrawal or retirement from contest.
6. The statements should be established to have been reasonably calculated to prejudice theprospects of the adversary's election.'
89. Now, the accusation made in the pleading was that false statements in relation to the personal conduct or character of the respondent or in relation to his candidature or withdrawal or retirement from contest were published either by the respondent or by his agent or by some other person acting in the interest of the appellant.
90. Those false statements, according to the respondent's case, were published in the columns of the Tunga Bhadra, a weekly journal of which the editor was the appellant's brother-in-law Ban-gara Shetty and also in the columns of a daily newspaper called Netaji, of which the editor was one Ittiga Vedamurthy. It was further alleged that there was a false statement similarly published in the columns of another newspaper called Swatantra. It was alleged by the respondent that those statements so disseminated were false to the knowledge of the slanderer who did not believe them to be true, and that they were calculated to prejudice the prospects of the respondent's election.
91. The finding of the Tribunal was that no corrupt practice had been committed through the columns of the newspaper Swatantra, and the correctness of that finding was not assailed on behalf of the respondent before us. But, in regard to the publications through the columns of Tungabhadra and Netaji, the view of the Tribunal was, although its finding is not as clear as one should have expected it to be, that those statements were not only false but were also calculated to affect the respondent's election.
92. Thc Tribunal, however, entirely overlooked the fact that one more ingredient should have been found by it in order to make the publication ot those false statements corrupt practices within the meaning of the Act. It did not find as it should have found that the person who published those false statements believed those statements to be false or did not believe them to be true.
Indeed, what we can gather from the sixth issue which was framed by the Tribunal is that the Tribunal was of the impression that it was enough for the respondent to establish the falsity of those statements and that it was also not necessary to establish, in addition, the fact that the person who was responsible for the publication of those false statements believed them to be false or did not believe them to be true.
That the falsity of the statements and the fact that the person who published those false statements either believed them to be false or did not believe them to be true were cumulative ingredients does not appear to have occurred to the Tribunal when jt framed that issue. During the arguments, the correctness of the position that those ingredients were cumulative ingredients could not have been contested by Mr. Karanth and he did not contest it either.
93. Both the learned advocates appearing before us in this appeal however made it clear to us that although the sixth issue was not framed in the manner in which it should have been framed they would not ask for a remand of this case to Election Tribunal for a further opportunity being given to the parties for establishing the ingredients about the knowledge on the part of the publisher of the falsity of the statement or in regard to the absence in his mind of any belief that they were true. It is also clear to our mind that none of the parties was misled by the imperfect manner in which the sixth issue had been framed in this case.
94. We, therefore, proceed to consider the evidence on record as it stands, in order to arrive at a conclusion whether the ingredients constituting a corrupt practice under Clause (4) of Section 123 have been established in this case.
95. Although in his pleading the respondent referred to many passages in Tunga Bhadra and Netaji, as constituting false statements, the publication of which amounted to a corrupt practice, what was urged before the Tribunal was that ten passages in three issues of the Tunga Bhadra were published in that way and that fifteen passages in thirteen issues of Netaji were similarly published. We shall now in the first instance refer to the impugned passages in Tunga Bhadra.
96. The three issues of the Tunga Bhadra in which those statements were published hear the dates December 27, 1956, January 3, 1957 and February 7, 1957.
97. The Tribunal considered only six of these ten publications in the Tunga Bhadra and Mr. Karanth in the course of his argument before us has asked us to hold that three more passages, in addition to those six passages, were also false statements published in violation of the provisions of the Act.
98. Exs. P-51(a), P-51(c), P-51(d), P-51(e), P-51(f) and 52(b), are the six passages considered by the Tribunal in its judgment. The passages on which Mr. Karanth has relied are Exs. P-51(b), P-51(c) and P-51(g), in addition to a publication contained in Ex. P-50.
99. Now in Ex.. P-51(a) which was published in an issue of the Tunga Bhadra dated January 3, 1957 it was stated that the respondent was responsible for bringing into existence a trick photograph so as to make it appear that although he and the President of India wko were photographed in a group photograph along with others were standing away from one another, they were really standing by the side of each other. It was also stated that, with the aid of this trick photograph, the respondent was pulling wool over the eyes of his blind devotees by sending copies of this photograph by way of benediction to his disciples and thereby robbing, them of their monies.
100. Ex. P-51(c) is a publication in the Tunga Bhadra dated January 3, 1957, in which it was published that the respondent who was visited by a teacher treated him with discourtesy, because of the fact that that teacher did not prostrate before the respondent as soon as he came to the place where he was sitting.
101. In Ex. P-51(d), which was published in the Tunga Bhadra on January 3, 1957, it was stated that the respondent had arranged for collecting goondas for practising violence against the Congress workers during the election.
102. The article marked Ex. P-51(e) published in the Tunga Bhadra dated January 3, 1957, begins with a reference to the reported speeches of the respondent that the respondent Would struggle for the attainment of his ideals despile opposition to his idealogy by any one, even if it becomes necessary by killing him. It was also insinuated that the respondent's idealogy was the worship of Mammon. He is compared to Hitler who destroyed and killed those who crossed him or advocated the establishment of peace. The article ends by saying that there was no place with the respondent for those who had difference with his doctrines.
103. Ex. P-51(f) which also occurs in the same issue of Tunga Bhadra is a news report from the corespondent of the Tunga Bhadra that the respondent was in a state of extreme financial embarrassment and that he was making frantic efforts though unsuccessful, to collect monies. It was further stated that the principal activity of the respondent was to extract monies from those who visit him.
104. Before proceeding to consider the articles in the next issue of the Tunga Bhadra, we shall refer to the two other publications on which Mr. Kaninth depended. They are Exs. P-51(b) and P-51(g).
105. In Ex. P-51/b), it was published that the respondent appeared to require a lakh of rupees for his election and that he had planned to amass the money required by him by falsely making it appear that a hundred candidates would be selected on behalf of the Loka Seva Sangha Organisation, whereas it was not his intention to do so.
106. In Ex. P-51(g), it was stated that there was a possibility of a circular emanating from the 'Razakar Bhavan' announcing the candidature of the respondent.
107. The contention urged on behalf of the respondent by Mr. Karanth was that every one of these publications was not only a publication touching the personal character and conduct of the respondent but was also false.
108. We have not referred to the impugned publication in the issue of the Tunga Bhadra bearing the date December 27, 1956. That publication begins with a reference to the formation of the Janata Seva Sangha and of Akarani and then of the Loka Seva Sangha. Then, it proceeded to refer to the differences between the prominent members of the Loka Seva Sangha and to their resignations one by one and to the false statements made in respect of its membership and other matters. There is, however, one clear reference in that publication to the respondent, although he is not named, and the reference, to him was that he had established an organisation which was his own and of which he was the President.
109. The other publication in the Tunga Bhadra which remains to be considered by us is Exhi-bit P-52 (b) in the issue of that newspaper dated February 7, 1957. That publication in its editorial, under the signature of Bangara Shetty, the editor of that paper, begins by referring to certain organisations which were described by him as political parties created by certain persons without any political background who had of late sprung up like mushrooms. One of those organisations referred to in that article is Loka Seva Sangha.
Those persons were accused of having started this organisation with the purpose of robbing the ignorant of their monies and of having sown communal discord between caste and caste and of having also generated communal disharmony between community and community. They were also accused of compelling persons to stand as candidates and thereby bringing about their ruination, and of having masqueraded as Congressmen by wearing khadar cups and thereby deceiving the ignorant. Those acts were described as political prostitution. It also said in that editorial that the candidate for the Koppal Parliamentary constituency was one who had fallen from a certain standard, to which we shall presently refer.
110. We are of the view that among these publications, Exhibits P-51 (d) and Exhibit P-51 (e) are publications clearly relating to the personal conduct or character of the respondent. We are also of the view that the other publications cannot be regarded as statements relating to the personal conduct or character of the respondent.
111. As pointed out by their Lordships of the Supreme Court in Civil Appeal No. 412 of 1959 (Unreported), Gangi Reddy v. Anjaneya Reddy.
'The words 'personal character or conduct' are so clear that they do not require further elucidation or deGnition. The character of a person may ordinarily be equated with his mental or moral nature. Conduct connotes a person's actions or beheaviour.'
112. In Coekermouth Division case, (1901) 5 O'M and H. 155, in regard to the question as to what would amount to a publication in relation to a person's personal conduct or character, this is what Darling, J. said:
'It was said that the respondent had infringed the provisions of the Corrupt and Illegal Practices Prevention Act, 1895, and that charge arose ia this way: It was said that Mr. Faloon had made a speech at a meeting which Mr. Randles attended, and that he used certain words which wore within the mischief of the Act. Now, it must be noted that what the Act forbids is to see : You shall not make or publish any false statement of fact in relation to the personal character or conduct of such candidate. If you do so, it is an illegal practice. It is not an offence to say something which may be severe about another person, nor which may be unjustifiable, nor which may be derogatory, unless it is shown to be a false statement of fact in relation to the personal character or conduct of such candidate; and I think the Act says that there is a great distinction to he drawn between a false statement of fact, which affects the personal character or conduct of the candidate, and a false statement of fact which deals with the political position or reputation or action of the candidate. If that were not kept in mind this statutewould simply have prohibited at election times all sorts of criticism which was not strictly true, relating to the political behaviour and opinions, of the candidate. That is why it carefully provides that the false statement, in order to be an illegal practice, must relate to the personal character and personal conduct. One can easily imagine this kind of thing. To say of a person that he was a fraudulent bankrupt, it would be necessary, probably, to give examples; but that sort of thing would, unoubtedly, be within this statute.'
113. That was also the view taken by Gibson, J., in the North Louth case, (1911) 6 O'M. and H. 103. His observations in regard to this question on page 163 read :
'A politician for his public conduct may bo criticised, held up to obloquy : for that the statute gives no redress; hut when the man beneath the politician has his honour, veracity, and purity assailed, he is entitled to demand that his constituents shall not be poisoned against him by false statements containing such unfounded imputations.'
On page 158 of the report, he further pointed out that :
'As the Lord Chief Baron observed in. O'Shee's case, there is no sharp dividing line separating what is personal from what is political or otherwise. The real question is, what is the true meaning of the letter and the leaflet, considering the occasion of publication, the persons publishing, the person attacked, the readers intended to be addressed.'
Madden, J., expressing his concurrence with Gibson, J., said this with reference to the relevant provisions of the English Statute':
'Readingt the section I find that the false statement must relate to personal character or conduct, 'personal' as distinguished from 'public', and it must be one of fact. In the present instance, the contrast is between 'personal' and 'political', but there are many departments of public life other than political, and the statute is applicable to them .11.'
114. We are of the view that the same principles govern the interpretation of Clause (4) of Section 123 of the Act. The question to he examined, when it is alleged that any statement derogatory to the personal character or conduct of an adversary candidate is published, whether that publication is about his public conduct or whether that publication is an attack on the honour, veracity and purity of the man beneath the politician.
It is by the employment of these tests that wa have come to the conclusion that except Exs. P-51(d) and P-51(c), the other publications out of the ten referred to above, are not publications in relation to the personal character or conduct of the respondent. In regard to the other publications, either there is no false statement about the personal character or conduct of the respondent or they fire merely criticisms of the political conduct of the respondent. Ex. P-52(h) which was pub-lished in the issue of the Tunga Bhadra dated February 7, 1957, is plainly the criticism of the political conduct of the respondent.
115. But the position in regard to the publications in Exs. P-51(d) and P-51(e) is somewhat different. That the statements contained in those publications are false, is, in our opinion, indisputable. The respondent denied the truth of those statements and Mr. Venugopalachari, appearing on behalf of the appellant, made no attempt to contend that those statements were true. The question, therefore, is whether the dissemination ot those statements through the columns of the Tunga Bhadra amounts to a corrupt practice within the meaning of the Act.
116. Now, in order to amount to such corrupt practice, it should be established that on the date of those publications which were made on January 3, 1957, the appellant and the respondent were both candidates and secondly, that the dissemination was either by the appellant himself or by his election agent or by some other person who committed the corrupt practice, with the consent ot the appellant or his election agent as provided by Section 100(1)(b) of the Act. It should further be established that whoever was the slanderer, he knew about the falsity of those statements or did not believe in their truth. The fourth ingredient is that it should be established that the publication was calculated to affect the election of the respondent.
117. We shall therefore first consider the question whether on January 3, 1957 the appellant and the respondent were both candidates.
118. Now, a candidate is defined by Section 79(b) of the Act. That section reads:
'79. Definitions. In this Part and in Parts VII and VIII, unless the contest otherwise requires.
* * * * * (b) 'candidate' means a person who has been or claims to have been duly nominated as a can-date at any election, and any such person shall be deemed to have been a candidate as from the time when with the election in prospect, he began to hold himself out as a prospective candidate; X X X'
119. the appellant admittedly presented his nomination paper only on January 28, 1957. The respondent presented his nomination paper on January 25, 1957. But the mere fact that the appellant or the respondent presented his nomination paper only on January 28, or on January 25, 1957, does not mean that neither of them was a candidate before those dates. It is clear from the evidence of the appellant that he became a candidate at least on January 19, 1957.
His evidence was that he saw a press statement in the Samyukta Karnataka on January 18, 1957, which was to the effect that the Central Parliamentary Board at New Delhi, had selected him as a candidate on behalf of the Congress organisation. His evidence was also to the effect that the date of the decision of the Congress Parliamentary Board to give him a Congress ticket was on January 18, 1957, although its official communication was made to the appellant only on January 24, 1957.
In the counter which was filed by the appellant in this case, he stated that his candidaturecommenced only on January 19, 1957. The respondent even in the rejoinder which he presented by way of reply to the counter did not urge that the appellant's candidature commenced on any day prior to January 19, 1957. Neither in the election petition nor in the schedule oi particulars produced on behalf of the respondent was any allegation made that the appellant's candidature commenced on any day prior to January 19, 1957. But, in paragraph 16 of the rejoinder which was produced by the respondent, this is all that he stated:
'16. The issues of the 'Tungabhadra' of 27-12-55 and 3-1-57 are hut part of the stretch of the propaganda maliciously and mischievously carried on by the respondent and his agent Shri Shankatarappa Bangar Shettiar and others, culminating in due course into the candidature of the respondent ........'
This was by way of traversing the allegation in paragraph 10 of the appellant's counter in which he stated as follows :
'10. This respondent further submits that the statement alleged to have been published in Tungabhadra on 27-12-57 and 3-1-57 were long prior to the notification of the President calling upon the Parliamentary Electorate to choose a candidate. The President's Notification was published on 19-1-57. As such the publications cannot relate to the candidature of the petitioner or tend to prejudice the prospects of the petitioner's election.'
120. Although, in law, it cannot be said that the candidature of the appellant commenced only on the date of the President's Notification which was made on January 19, 1957, what is of importance is that the respondent in no part of his pleading ever raised a plea that the appellant's candidature commenced on any day before the communication by the Central Parliamentary Board of his selection or before such selection came to the knowledge of the appellant, either through the Samyukta Karnataka which he read on January 19, 1957 or otherwise.
There was, however, an attempt made on behalf of the respondent to show that the appellant held himself out as a prospective candidate within the meaning of Section 79 of the Act, even in October, 1956. Evidence to that effect was sought to be produced although there was no allegation to that elfect in the respondent's pleading.
121. (After discussion of evidence the judgment proceeds:) As observed by their Lordships of the Supreme Court in Khader Sheriff v. Munnuswami, (S) : 2SCR469 , when a question arises under Section 79(b) whether a person had become a candidate at a given point of time, what has to be seen is whether at that time he had clearly and unambiguously declared his intention to stand as a candidate, so that it could be said of him that he held himself out us a prospective candidate.
It was further pointed out that the mere fact that he had formed an intention to stand for election is not sufficient to make Mm a prospective candidate. It is only when a person communicates his intention to the outside world by declarationor conduct he could be regarded to have held himself out as a prospective candidate.
122. Even from the evidence of P.W. 120, it cannot be deduced that the appellant, in October 1956, had clearly and unambiguously declared his intention to stand as a candidate.
123. But, as we have pointed out that question does not arise since, in our opinion, we decline to believe the testimony of P.W. 120, making further discussion On this question unnecessary.
124. But, Mr. Karanth has drawn our attention to two newspaper reports marked Exhibits P-42 and P-44. They are reports in the newspaper Tunga Bhadra. Exhibit P-42 is a publication in the Tunga Bhadra bearing the date September 20, 1956. Exhibit P-44 is a publication in the Tunga Bhadra bearing the date December 13, 1956. In Exhibit P-42, it was reported by the correspondent of the Tunga Bhadra that out of the persons whose names were indicated for the Raichur District Parliamentary Constituency, on behalf of the Congress, the names of the appellant and Dr. Melkote had acquired prominence.
125. In Exhibit P-44, Tunga Bhadra urges the selection of the appellant, obviously, for the Parliamentary Constituency, and Shankaragowda, obviously, for the Assembly Constituency, who, according to the newspaper, have abundant support. The newspaper also states that, in the opinion of the members of the District Congress Committee and other Congress workers, they are most suitable.
126. According to Mr. Karanth, these two publications make it abundantly clear that the candidacy of the appellant had commenced even as early as September 20, 1956.
127. Now, for the commencement of the candidacy within the meaning of Section 79, as pointed out by their Lordships of the Supreme Court, what should be established is a clear and unambiguous declaration on the part of the person himself that he intends to stand as a candidate. We cannot spell out any such clear or unambiguous declaration either from Exhibit P-42 or Exhibit P-44, which have to be regarded as mere feelers on the part of the publishers of the newspaper. We therefore, are unable to hold on the evidence on record that the candidature of the appellant commenced at any time before January 19, 1957.
128. That being so, the publications in the issues of the Tunga Bhadra bearing the dates December 27, 1956 and January 3, 1957, which are Exhibits P-50 and P-51 respectively, cannot be regarded as traducements made by the appellant or any one on his behalf, in his capacity as a candidate, which is an essential ingredient of Clause (4) of Section 123 of the Act.
129. We can reach that conclusion by another equally effective route. As wr have said, the respondent's nomination paper itself was presented on January 25, 1957. The result is that unless there is evidence in the case that the respondent himself was a candidate before January 25, 1957, the false publications which are relied upon by the respondent are not publications directed against a candidate and cannot therefore amount to a corrupt practice, within the meaning of the Act.
We asked Mr. Karanth whether he was able to show us any evidence that the respondent held himself out as a candidate before January 25, 1957, and he was unable to point out any such evidence. The result is that neither in the case of the appellant nor in the case of the respondent can it be said that either of them held themselves out as prospective candidates at any time before January 19, 1957, in the one case, and January 25, 1957, in the other ease, so as to make their candidacy relate back to any date earlier than those two dates.
130. That being the position, the indispensable ingredient of Clause (4) of Section 123 that both the traducer and the traduced should be candidates when the false statement is disseminated is not established in this case.
131. In regard to the publication made in the issue of the Tunga Bhadra on February 7, 1957, we have already indicated that, in our opinion, that publication is not a publication in relation to the personal conduct or character of the respondent but only a criticism of his political conduct and not of the man underneath the politician. It is not contended that that statement is a statement in relation to the candidature of the respondent or his withdrawal or retirement from contest.
The offensive passage in that publication, according to the respondent, is the portion where it is stated that the candidate for the Parliamentary Constituency of Koppal was one who had fallen from certain standards. The question is whether the standards referred to in that publication have to be regarded as moral standards or ethical standards or political standards.
The Kannada expression used in that articleis* 'thatis, one who has fallen from standards of (Niti).(Niti) according to Kittel's Dictionary, means 'conduct, propriety, political wisdom, policy, statesmanship, ethics and moral behaviour.'
We have to understand this portion of Exhibit P-52 (b) in the context in which it occurs. It is well settled law that, in order to decide whether a statement is about the personal character or conduct or whether it is about the political conduct of an adversary candidate, one has to look into the context in which that statement is made, the setting in which it occurs and to the circumstances in which it wag published.
132. Now, as we have already pointed out, Exhibit P-52 (b) begins with a denunciation of the political activities of various political organisations which, according to the author of that article, had sprung up like mushrooms. Throughout the article until we reach the portion where this offensive portion occurs, the criticism or denunciation is about the political conduct of those organisations or persons constituting those organisations. In that context, if it is stated that the respondent is a person who had fallen from standards of (Niti), we have no hesitation in our mind in understanding that portion as indicating that be had fallen from political standards.
133. There is one more reason why we should come to the conclusion that the publication of Exhibit P-52 (b) did not amount to a corrupt practice. In order to amount to one, it should be a publication of a statement of fact. What is published about the respondent in Exhibit P-52 (b) is not a statement of fact but a statement of opinion that he is a man who had fallen from certain standards which clearly takes that offensive portion in Exhibit P-52(b) out of Clause (4) of Section 123 of the Act.
134. In the view that we have taken, it would be unnecessary for us to consider the argument addressed by Mr. Karanth that the evidence on record established the fact that Bangara Shetty was an agent of the appellant, as ordinarily understood, although not an 'election agent', and that any corrupt practice committed by Bangara Shetty who was the brother-in-law of the appellant should be regarded as a corrupt practice committed by him, with the consent of the appellant.
135. Mr. Karanth submitted to us that if Bangara Shetty was established to be an agent of the appellant when he published the impugned articles, he must in law be deemed to have committed that corrupt practice with the consent of the appellant and, in support of that contention, Mr. Karanth drew our attention to the decision of his Lordship Hegde J., in Anjaneya Reddi v. Gangi Reddy, Misc. Appeal No. 60 of 1958 (Mys).
136. This was the argument addressed on behalf of the respondent as the interpretation which we should properly place on the provisions of Section 100(1)(b) of the Act, which provides that the only corrupt practice which vitiates the election of a returned candidate is one committed either by the candidate himself or by his election agent or by some other person with the consent of the election agent or the returned candidate or committed by a person acting in the interest of the returned candidate, as a result of whose intermeddling, the result of the election has been materially affected.
137. It is, in our opinion, quite unnecessary for us to express any opinion on this contention raised by Mr. Karanth in this case, since, as we have found, on the date of the publications in the Tunga Bhadra on December 27, 1956, and January 3, 1957, neither the appellant nor the respondent was a candidate. Any expression of opinion on the question raised by Mr. Karanth becomes unnecessary also for the reason that, as we have found, the publication of February 7, 1957, is neither a statement in relation to the personal character or conduct of the respondent nor a statement of fact about it, amounting as it does, merely to a statement of opinion.
138. We also find great difficulty in coming to the conclusion that Bangarasetty was the agent of the appellant on February 7, 1957. A considerable body of evidence was shown to us by Mr. Karanth, the learned advocate for the respondent, that Bangarasetty must be regarded as having become the agent of the appellant by reason of the various acts of campaigning and canvassing doneby Bangaraselty on behalf of the appellant.
But that entire body of evidence, when perused, does not establish that Bangarasetty had commenced to do such canvassing or campaigning so as to make him an agent of the appellant on February 7, 1957. The witnesses who gave evidence about it and to which it would bo unnecessary tor us to refer only state that sometime before the date of the polling in tho various constituencies, which commenced at tho earliest on February 27, 1957, Bangarasetty had been carrying on propaganda on behalf of the appellant and had been canvassing for him.
There is no material oa the basis of which we can come to the conclusion that such agency on his part under the wider doctrines of election law had commenced on the date of the impugned publication, namely, February 7, 1957.
139. It is true that Exhibit P-137 evidences the payment of a sum of Rs. 400/- by the appellant to Bangarasetty towards 'cost of tiffin and meals expenses incurred for the Congress workers during the election of Koppal Parliamentary Constituency. This receipt executed by Bangara Setty bears the date March 6, 1957. On the basis of this receipt, it was argued before us that Bangara Setty was an agent of the appellant and that his agency commenced from the date when the appellant became a candidate.
140. But, the receipt does not afford any basis for the argument that Bangara Setty became the appellant's agent on any particular day. The receipt is certainly not evidence that Bangara Setty was tho appellant's agent on February 7, 1957, which, being the date of the impugned publication, is the material date. Even the evidence of ihe respondent's witnesses, to which our attention was drawn, which was to the effect that Bangara Setty sometime before the polling commenced, worked and canvassed for the appellant, does not establish that Bangara Setty became the appellant's agent on February 7, 1957.
141. We must, therefore, hold differing from the view taken by the Tribunal that file publications in the Tunga Bhadra newspaper in the various issues to which we have already referred constitute corrupt practices vitiating the election of the appellant.
142. In the view that we take, it becomes unnecessary for us to consider the effect of the omission on the part of the Tribunal to record ft finding that the person who was responsible for the publications in the Tunga Bhadra believed the statements published in that newspaper to be false or did not believe them to be true. Nor would it be necessary for us to examine the validity of the argument addressed by Mr. Karanth that since the Congress organisation itself had undertaken tho propaganda work on behalf of all the candidates who contested the elections, including the appellant, that organisation itself must be regarded as having become the agent of the appellant and that all its workers including Bangara Setty must be held to have acted as the agents of the appellant himself. That question, in the view taken by us, does not really arise for consideration.
143. We next proceed to consider the publications in the Netaji which, as we have already mentioned, is a Kannada newspaper of which the editor was one Ittige Veda Murthy. The alleged offensive compositions are contained in fifteen passages of that newspaper in thirteen issues thereof, commencing from February 7, 1957, and ending on March 8, 1957. The difficulty which was presented in the case of Bangara Setty in regard to the date of the candidatures of the appellant and the respondent does not arise in regard to this matter, because, on February 7, 1957, both the appellant and the respondent were admittedly candidates within the meaning of that expression occurring in Section 79 of the Act.
144. The Tribunal was of the view that those publications infringed the provisions of the Act, although no clear finding to that effect was recorded by the Tribunal. The Tribunal did not expressly find that all the necessary ingredients which alone would establish a corrupt practice within the meaning of the Act had been proved in this case. Indeed, no Ending at all was given by the Tribunal that whoever was responsible for those publications, either believed those publications to be false or did not believe them to be true.
145. It is unnecessary, in our opinion, to refer to each one of those publications since, in our opinion, Exhibits P-6, P-11, P-17 (b), P-19 (c) and P-22 are clearly false statements about the personal character or conduct of the respondent. The other statements are either not statements about the personal character or conduct of the respondent or are statements, the falsity of which has not been
146. Exhibit P-6 is a statement published in the issue of Netaji on February 14, 1957, in which the respondent was accused as a person who wasmoving with dacoits, mischiefmongers, murderers, and that he has been exposed in his true colours and that Netaji was in the way of his deceitful practices.
147. In Exhibit P-11, there was a clearly lihellous attack on the personal character of the appellant who was accused as one who had killed and plundered people and committed other heinous crimes. There is a dear reference to the respondent, although indirectly, in Exhibit P-17 (b) appearing in the issue of the Netaji dated March 1, 1957. The respondent was accused of treachery towards the other candidates of the Loka Seva Sangha.
148. Exhibit P-19 (c) appears in the issue of the Nelaji on March 5, 1957. It is an imaginary eon versa tion between two voters, one of them charging the respondent with cheating the people and robbing them of their monies.
149. In Exhibit P-22 dated March 28, 1957, the respondent was accused with having made every one bankrupt besides having become a bankrupt himself. He was also described as a person who had developed thirst for power.
150. The question is whether the publication of these five false statements -- and Mr. Venugopalachari did not make any attempt to sustain any contention that they were not false -- constitutes a corrupt practice such as would vitiate the election of the appellant.
151. Now, in order that that result might be produced by the publication, the corrupt practice must full within Clause (b) of Sub-section (1) of Section 100 of the Act, which reads :
'100. Grounds for declaring election to be void :-- (1) Subject to the provisions of Sub-sectiion (2), if the Tribunal is of opinion -
* * * (b) that any corrupt practice has been committed by a returned candidate of his election agent or by any other person with the consent of a returned candidate or his election agent;
* * * the Tribunal shall declare the election of the returned candidate to be void.'
* * *
152. Ittiga Vedamurthy who published the impugned statements was not the election agent. In the pleading, the allegation made with reference to a publication made in the issue of the Netaji bearing the date February 12, 1957, was that it was published by the appellant through his agent, namely, the editor of the newspaper. That was the statement in the course of the particulars permitted by the Tribunal to he produced by the respondent by way of amendment. Mr. Venugopalachari's contention was that that averment amounted to nothing more than that the editor of the Netaji was the agent of the appellant only with regard to that publication.
153. It is true that in the election petition or in the schedule of particulars produced before the schedule of particulars was permitted to be amended in that way, there was no clear allegation that Veda Murthy, the editor of Netaji, was the agent of the appellant in the ordinary accepted sense of that word. But, what was alleged in paragraph 7 of the schedule of particulars was that Netaji was a paper especially patronised by the respondent who had helped the paper munificently and purchased very large number of its issues and distributed them liberally and free of cost all over the constituency, and that the tirade and vituperation was carried on at the inspiration and direction of the respondent
154. Since Veda Murthy, the disseminator of those statements was neither the candidate nor the election agent appointed under the provisions of Section 40 of the Act, the question is whether he can be said to be a person who committed the corrupt practice with the consent of the appellant or his election agent who, in this case, was R.W. 82 Jolada Channabasappa.
155. It was not suggested before us that the publication was made with the consent of the election agent. What was argued before us was that the publication was made or must be deemed to have been made with the consent of the appellant. According to the argument of the respondent, although that was not how the matter was approached by the Tribunal, the evidence establishes actual consent on the part of the appellant for the dissemination of the false statements or it establishes at least the fact that the editor of that newspaper was an agent of the appellant, in thewav in which that expression is understood in election law and that once that person became the agent of the appellant, any corrupt practice committed by him must in law bo deemed to have been committed with the consent of the appellant, and in support of that proposition. Mr. Karanth relief upon the decision of this Court in Misc. Appeal No. 60 of 1958 (Mys).
156. The questions that therefore arises for consideration are whether there is any evidence in this case in support of the argument addressed on behalf of the respondent chat Ittiga Veda Murthy, the editor of Netaji published these false statements with the actual consent of the anpellant which might be either express or which can be inferred from the surrounding circumstances such as would justify such inference.
157. The evidence on this question and the evidence relating to the question as to whether Ittiga Veda Murthy was the ordinary agent of the appellant can be Conveniently considered together, as the one body of evidence may have an important bearing on the other.
158. Mr. Karanth was unable to point out to us any very satisfactory evidence that Veda Murthy did any work or propaganda on behalf of the appellant during the election campaign. There is practically no evidence of a trustworthy character in regard to this matter. Mr. Karanth, however, relied very strongly upon certain documentary evidence which, according to him made it abundantly clear that Veda Murthy was also one of those persons who did interest himself in the candidates of the Congress organisation during the election period.
159. (After discussion of evidence about two newspaper reports (Exs. P-322 and P-333) their Lordships proceeded.) Likewise, it appears to us that the publication in the Netaji, in its issues ol February 5, 1957 and March 8, 1957, cannot constitute substantive evidence. The mere fact that in that newspaper, the activities of P-W. 35 or the speech made by him were reported cannot constitute the editor of that newspaper as the agent of any particular candidate.
It was clearly the business of that newspaper to report all activities which went on in connection with the election and since, it appears to us, that that newspaper was sponsoring the cause of the Congress candidates, the fact that the activities of Vali Channappa or the appellant and Shankaragowda were reported in that newspaper cannot have the effect of making Vedamurthy, the agent of the appellant oven under the election law, the doctrines of which, according to well settled principles are wider than the principles governing the relationship of prineipal and agent, under the Contract Act.
160. It is true, as urged by Mr. Karanth, that the election law in regard to agency is more elastic than the Law of Contracts and that a person who, under the Law of Contracts, is not an agent, may far the purpose of the election law be regarded as one. This is familiar law. The question as to what would be sufficient evidence to constitute one person the agent of another under the election law is, as it has been pointed again and again a question more of fact than of law.
161. In the case of Borough of Evesham, (1880) 3 O'M and H 192, Grove J., said this:
'I think it highly desirable that in election inquiries the law of principal and agent should be, as it is, rather one of facts than of distinct rules; for this reason, thai when the judges have laid down a rule as to whnt constitutes agency, in the next election petition which they try they find that that rule has been evaded; therefore it must always remain a mixed question of law and fact, though very much a question of fact, as to what constitutes agency,'
162. It has been pointed out more than once that no precise definition of agency under the eletion law is either possible or should be attempted. In the Bridgewater case, (1869) I O'M and H 111, Blackburn, J., observed;
'It has never yet been distinctly and precisely defined what degree of evidence is required to establish such a relation between the sitting member and the person guilty of corruption, as should constitute agency. I do not pretend to be able to define it, certainly: no one yet has been able to go further than to say, as to some cases, enough has been established; as to other, enough has not been, established to vacate the sent; this case is on the right side of the line, that is on the wrong; but the line itself has never yet been definitely drawn, and I profess myself unable accurately to draw it.'
In the Taunton case, (1874) 2 O'M and H 66, Grove, J._ said this:
'The law of agency, as applied to election petitions, has been differently expressed by different learned Judges, some of whom have likened it to the relation of master and servant, (1 O'M and H 11), and another to the employer of persons to run a race for him (1 O'M and H 55); but no exact definition, meeting all cases, has, as far as I am aware, been given. Two learned Judges --the late Mr. Justice Willes and Mr Justice Blackburn -- have pointed out (1 O'M and H 81), the difficulties of arriving at one. All agree that the relation is not the Common Law one of principal and agent, but that the candidate may be responsible for the acts of one acting on his behalf, though the acts be beyond the scope of the authority given, or, indeed in violation of express injunction. So far as regards the present case, I am of opinion that, to establish agency, for which the candidate would be responsible, he must bo proved by himself or by his authorized agent to have employed the persons whose conduct is impugned to act on his behalf, or to have to some extent put himself in their hands, or to have made common cause with them for the purpose of promoting his election. To what extent such relation may be sufficient to fix the candidate must, it seems to me, be a question of degree and of evidence to be judged of by the Election Petition Tribunal. Mere non-interference with persons who, feeling interested in the success of the candidate, may act in support of his canvass, is not sufficient, in my judgment, to saddle the candidate with any unlawful acts of theirs of which the Tribunal is satisfied he or his authorised agent is ignorant. It would be vain to attempt an exhaustive definition, and possibly exception may be taken to the approximate limitation which I have endeavoured to express.'
163. The question being essentially a question of fact, what we have to decide in this case is whether the evidence in this case is such, as to induce a belief in our mind that Vedamurthy was, in fact, an agent of the appellant, (After discussion o evidence their Lordships proceeded:)
164. It would, therefore, he not safe to think that the impugned publications were made by Vedamurthy at the instance of the appellant or that the appellant was the person who inspired the publications of those articles.
165. Since, in our opinion, the material on record does not establish any agency between the appellant and Vedamurthy, even under the wider doctrines of election law, it is unnecessary for us to express any opinion on the further question which was argued by Mr. Karanth before us that a corrupt practice committed by an agent, although he is not an election agent, must be deemed in law to be a corrupt practice committed by a returned candidate.
166. Now, what remains to be considered by us is another branch of the argument addressed by Mr. Karanth, although the case for the respondent was not presented in that way before the Tribunal, What was contended before us was that there was evidence in the case that copies of Netaji were freely and widely circulated by the appellant and at his instance by his workers.
It was, therefore, urged even if if could not be said that Vedamurthy published them as the agent of the appellant or at his instance, the distribution of these copies of Netaji during the election propaganda if it was done by the appellant or his workers, amounted to a publication of those statements by the appellant himself so as to attract the provisions of Section 100(1)(b) of the Act, We shall briefly refer to the evidence to which our attention was drawn in that context.
167. (After discussion of evidence on this point the judgment proceeds:) In our opinion, there is no satisfactory proof that there was any distribution by the appellant or his agents or workers of the copies of Netaji containing any false Statements, so as to constitute corrupt practice falling within Clause (4) of Section 123 Of the Act.
168. Mr. Karanth next urged before us that Ex. P-60 which was a song composed by one Girdharilal Varma, a jeweller of Raichur, was a similar false statement falling within Clause (4) of Section 123.
169. We will now refer to this argument of Mr. Karanth, although it was not dealt with by the Tribunal in that form. One of the allegations in the pleadings of the appellant is that one Girdharilal Marwadi, a jeweller of Raichur, composed a poem, Ex. P-60, in which statements derogatory to the Loka Seva Sangha organisation were made and thousands of copies of that poem were distributed by the appellant, his agents and others.
170. Ex. P-60, according to the evidence given by the witnesses examined by the respondent was also read out during dramatic performances at the place already referred to by us and the evidence about it was not believed by us. The seventhstanza in Ex. P-60, according to Mr. Karanth, is the offensive portion of it. The poem is entitled Loka Seva Sangha Ki Janmakahani'. The earlier stanza pointed jut that the members of the Loka Seva Sangha and their leaders wore doing as they liked shouting hoarse that they had made sacrifices without even having seen the window of a prison and that they have entered the election arena although the organisation itself was less than a few months old.
171. The English translation of the alleged offensive portion which is in Hindi reads; 'Give your votes to the Congress; else it would lead to prevalence of 'Dharma Pakhand'.' Now we have looked into the dictionary meaning of the said word Pakhand'. The dictionary says that it means sanctimony or hypovcracy. We also read from the dictionary that the expression 'Pakhand Pahalana' which occurs in the seventh stanza is an idiomatic expression whose ordinary meaning is that it would lead to the prevalence of hypocracy.
It is no doubt true that the expression 'Pakhand' has been used in conjunction with the word 'Dharma'. But it does not appear to us that there is anything in that seventh stanza that would amount to false statement of fact regarding; the personal character or conduct of the respondent or as a matter of fact of any one. It is not also a statement of fact but one of opinion. That publication, again, therefore, was not within the statutory inhibition.
172. (After discussion of evidence about Ex. P-60, the judgment proceeds:) There is thus no credible evidence in support of the allegation that leaflets like Ex. P-60 were published or distributed as part of the election propaganda for the appellant.
173. Mr. Karanth explained to us that if he did not press some of the charges made against the appellant and did not rely on the evidence given by the witnesses in support thereof, he did so for the reason that, in his opinion, such evidence was insufficient, but that he did not intend to admit that the witnesses who gave such evidence were untrustworthy.
174. We make a record of this statement made by Mr. Karanth as requested by him.
175. Our finding, in substitution of the finding of the Tribunal, is that the election of the appellant did not stand vitiated by the commission of any corrupt practice, such as those of which he was accused.
176. As we have already mentioned, the respondent also charged the electional authorities who were in charge of the conduct of the elections with various irregularities committed by them in connection with the election.
177. The finding of the Tribunal was that there was some irregularities committed by the election authorities, as pleaded by the respondent, but that those irregularities did not have the effect of rendering the election of the appellant void.
178. Now, the relevant provision in the Act is Section 100(1)(d)(iv) which provides that if the Tribunal is of opinion that by any non-compliancewith the provisions of the Constitution or of the Act or of any rules Or orders made under the Act, the result of the election, in so far as it concerns a returned candidate, has been materially affected, it shall declare the election of the returned candidate to be void.
179. The finding of the Tribunal that the election was not rendered void has, however, been assailed by Mr. Karanth on behalf of the respondent which of course, he is entitled to do. Mr. Karanth has asked us to hold that as a result of some of the irregularities to which alone he confined his arguments, the result of the election had been materially affected.
180. The first irregularity on which Mr. Karanth depended was one committed by the Office of the Collactor of Raichur, in furnishing to the respondent a list of polling stations in the Parliamentary Constituency. The complaint made by the respondent was that whereas the names of fifty-six polling stations were printed in the list when a list was divert to the respondent by the office of the Collector, forty six polling stations alone were shown and that over the names of the remaining ten polling stations a piece of paper was pasted so as to make it appear that they did not form part of the Parliamentary constituency.
181. The Other complaint made by the respondent was that in place of those ten polling stations, six more polling stations which did not at all form part of the Parliamentary constituency were shown as part of the constituency area. What was urged on behalf of the respondent before us was that this mistake which was committed by the office of the Collector of Raichur when the list of polling stations was handed over to the respondent on February 11, 1957, was rectified only by means of a communication on February 21, 1957, addressed to the respondent by the Collector's office which reached him only on February 22, 1957.
The respondent, according to the complaint, had only three days within which he had to carry on his election campaign in the areas of those ten polling stations, although, according to the respondent, the appellant himself who was labouring under no such mistake, had been actively carrying on his election campaign in the areas of those ten polling stations. Mr. Karanth, therefore, asked us to hold that the irresistible inference was that the result of the election was materially affected as a result of this most unfortunate mistake committed by the Collector's office.
It was stated before us that in the area comprising those ten polling stations, 2001 votes were polled by the respondent, whereas the appellant secured 2,653 votes. We were also informed that the total number of electors in that area was 8,000. The respondent therefore complained that if he had been not labouring under the mistake which was induced in his mind by the Collector of Raichur, who was also the Returning Officer, that the area relating to those ten polling stations did not form part of the Parliamentary constituency, he would have been able to secure the votes of many of the remaining 3,500 voters who did not attend the polling stations to cast their votes.
182. It is not disputed on behalf of the appellant by Mr. Venugopalachari, that the mistake referred to by the respondent was indeed committed by the Collector's office. But Mr. Venugopalachari also stated that the list of polling stations which was sent to the appellant was also similar to the list sent to the respondent, in which the names of those ten polling stations had been omitted by means of a paper pasted on those names.
183. Mr. Karanth did not dispute the correctness of that statement.
184. If that was so, then, it is difficult to understand how the result of the election could have been materially affected, particularly since the appellant did not enjoy any advantage which was denied to the respondent.
185. Even otherwise, there was no evidence pointed out to us, on the basis of which we could reach the conclusion that the result of the election had been materially affected. As pointed out by their Lordships of the Supreme Court in Hari Vishnu Kamath v. Ahmad Ishaque, (S) : 1SCR1104 , following the earlier decision of that Court reported in Vashist Narain Sharma v. Dev Chandra, : 1SCR509 , the question as to whether the result of an election has been materially affected or not is not a matter on which any conjecture is permissible. That ingredient, without the proof of which no court or election Tribunal can set aside an election, has to be established by clear and sufficient evidence.
186. Now, in this case, there is no evidence at all about it. Further, even before we could go into the question whether the result of the election had been materially affected so as to render the election of the appellant void, it was necessary far the respondent to establish the transgression of any provision of the Constitution or of any provision of the Act or of the rules or orders made thereunder.
We asked Mr. Karanth, the learned advocate for the respondent to tell us whether there was any statutory provision under the Act, there being none under the Constitution, enjoining the Returning Officer to deliver to the contesting candidates a correct list of polling stations. If there was such a provision, then, the act of the Returning Officer in handing over to the candidates an incorrect list of polling stations would have perhaps amounted to a transgression of the provisions of the Act, falling within the provisions of Sub-section (1)(d)(iv) of Section 100 of the Act.
Mr. Karanth was unable to point out any such statutory provision, beyond referring us to the provision of Section 25 of the Act which requires provision to be made for polling stations for constituencies by the concerned Returning Officer. But no provision either under the Act or under the rules was pointed out to us under which the candidates were entitled to be furnished with a list of polling stations.
187. The next reason why we should hold against the respondent in respect of this contention is that his complaint that he was unaware of the feet that the area of the concerned ten polling stations formed part of the Parliamentary constituency is not such as to merit acceptance. Now,the delimitation of the parliamentary constituencies were made under the provisions of Section 47(2) oE the States Reorganisation Act, 1956, by the Delimitation Commission appointed for that purpose.
After the delimitation of the Parliamentary constituencies was made by that commission, an order intituled the Delimitation of Parliamentary and Assembly Constituencies Order, 1956, was made by that Commission under the provisions of Section 47(2) of the States Reorganisation Act, read with other statutory provisions to which it would be unnecessary for us to refer. As provided by Sub-section (2) of Section 47 of the States Reorganisation Act, that order has the full force of law and when one has to acquaint himself as to the area of a particular Parliamentary constituency, it is into that order into which he has to look and not into a list of polling stations which might be handed over to him by the Returning Officer at some later stage.
The Delimitation of Parliamentary and Assembly Constituencies Order 1956, was published as early as on December 19, 1956, and if the respondent asks us to hold that he was unaware of the provisions of that order, according to which the ten polling stations with which wo are concerned also formed part of the Parliamentary constituency of Koppal, but that he was guided only by an incomplete list of polling stations handed over to him by the Collector of Raichur, we would not be inclined to believe that allegation. Further, the list of polling stations is not the list determining the Parliamentary constituency.
That list only mentioned the names of places where the voters had to go and record their votes. No one and particularly, a candidate standing for election to the House of the People could not ever be beard to contend that he was misled by an incorrect list of polling stations, when the Delimitation of Parliamentary and Assembly Constituencies Order, 1956, which had statutory force, had itself determined the extent of the constituency, authoritatively, many months before the election commenced.
188. There is one more reason why we should decline to accept the contention of the respondent. Mr. Karanth drew our attention to the evidence of some of the witnesses for the purpose of showing that whereas the appellant and bis workers were doing election propaganda in tha area of those ten polling stations, namely, the Kampli Firka, even before February 22, 1957, the respondent himself was by reason of the incomplete list of polling stations given to him led to believe that that area did not form part of the Parliamentary constituency.
189. We are not impressed by that argument. All that is shown is that in Ex. P-49, which is an issue of the Tunga Bhadra bearing the date February 21, 1957, Rangarasetty addressed a meeting at Kampli on February 20, 1957. P.W. 75 Rudriah of Kampli and P.W. 76 Sharanappa of Kampli also gave similar evidence. But the evidence of P.W. 89 Doddabasappa of Yemaniganur does not quite fit into the evidence given by P.W. 75 and P.W. 76. Their evidence that the respondent and his workers engaged themselves in election campaign only from February 22, 1957, is extremely incredible.
No one in the position or the respondent, in our opinion, could have ever thought that the area referable to those polling stations was not within the Parliamentary constituency. Further, as we have mentioned, in the absence of any evidence that the result of the election had been materially affected as a result of the incomplete list of polling stations furnished, to the respondent, the irregularity, even if any, cannot have any impact on the election of the appellant.
190. The second irregularity on which reliance was placed related to the furnishing of symbols by the concerned Election Authority. Our attention was drawn to the correspondence which had taken place in that regard. We were pointed out that the Loka Seva Sangha asked for the symbol of a cart and that that symbol was refused by the concerned election authorities on the ground that it had already been allotted to another organisation.
Mr. Karanth was able to point out that the statement that the symbol had already been allotted to some other organisation was not factually correct. However that may be, it is clear from a telegram Ex. P-105, which was sent by the Election Commission on February 5, 1957, that the Election Commission directed the concerned Returning Officer to give the symbol of tbe cart to the Loka Seva Sangha organisation.
But, in the meanwhile, on February 4, 1957, the Loka Seva Sangha had been already allotted the symbol of an agriculturist winnowing the grain, and it was explained to us that since that symbol had already been allotted one day previous to Ex. P-105, the Loka Seva Sangha did not think of asking again for the symbol of the cart.
191. It is thus clear that nearly twenty one days before even the election commenced in any constituency, the symbol of an agriculturist winnowing the grain had been allotted to the respondent. That being so, it is, we think impossible for the respondent to suggest that even it it could be said that the refusal by the election authorities to allot the symbol of the cart to the respondent was unreasonable, that act on the part of the election authorities can either amount to a transgression of the provisions of the Act or of any other statutory provision, or that even if it did amount to any such transgression, such transgression had materially affected the result of the election.
192. It is true, as pointed out by Mr. Karanth that P.W. 72 a Gangavathi candidate for the Assembly Constituency with the Loka Seva Sangha ticket was not even given a symbol of the agriculturist winnowing the grain. Mr. Karanth's argument was that since an Assembly candidate and the Parliamentary candidate had to work in coordination, serious confusion was the consequence of an Assembly candidate being allotted a symbol different from the allotted to the other Assembly candidates of that organisation and its Parliamentary candidate.
193. All that we can do is to express our great surprise at the unbusinesslike and extremely careless way in which the symbols were allotted to the candidates of the same organisation.
194. We therefore proceed to consider the third irregularity pointed out to us by Mr. Karanth. He told us that in the twentysixth polling station at Koppal, a Polling Officer used a defective ballot box about which P.W. 120 complained to the concerned authorities. Ex. P-185 is the complaint produced in regard to that matter.
195. The use of a defective ballot box, even if true, as stated by P.W. 120 might fall within the provisions of Section 100(1)(d)(iv). But, no evidence has been produced to show that the use of that defective ballot box had materially affected the result of the election.
196. The next complaint made against the election officers by Mr. Karanth is that in three polling stations in Kushtagi constituency, ballot papers did not bear the official rubber stamp.
197. It is true, as provided by Rule 57(2)(e) read with Rule 27(2) of the Rules made under the Representation of the People Act, every ballot paper in every polling station shall before issue to an elector bear the particular distinguishing mark prescribed by the Election Commission.
198. There is no proof, in this case, that the Election Commission bad prescribed a rubber stamp as the distinguishing nark to be borne by those ballot papers. Further, it is seen from Ex. P-191, which is the Final Results Sheet that no objection at the time of the counting of those ballot papers was taken on behalf of the respondent in regard to their validity by reason of their not bearing the rubber stamp, as contended on his behalf.
199. There was one more matter which was mentioned to us by Mr, Karanth which was that in three polling stations, the Presiding Officers intentionally omitted to fill in Form No. 16 when, forwarding the ballot papers.
200. It is true that R.W. 76, the Collector of Raichur stated that the Bhagyanagar Presiding Officer did not fill in form No. 16 and that is all the evidence about this irregularity. As in the case of the other irregularities, no evidence at all was produced that the omission on the part of the Presiding Officer to fill form No. 16 had materially affected the election. Nor did Mr. Karanth seriously contend that this transgression was a material irregularity.
201. In our opinion none of the grounds on which the appellant's election was impeached stands substantiated.
202. Our finding that the appellant's election was not vitiated by any corrupt practice or by the transgression of any constitutional or statutory provision materially affecting the result of the election ensures the success of his appeal, which is accordingly allowed. The declaration made by the Election Tribunal that the election of the appellant was void must therefore stand vacated and it is so ordered. The election petition presented by the respondent is dismissed.
203. The costs of this appeal must be paid by the respondent. Advocate's fee Rs. 500.
204. Appeal allowed.