M.L. Chaturvedi, J.
1. This is an appeal under Section 116A of the Representation of the People Act, Act No. 43 of 1951, as amended by Act No. 27 of 1956. It will be called hereinafter the Act.
2. The appeal arises out of an election held for electing a member to the U. P. Legislative Assembly from Constituency No. 24 known as Thanabhawan constituency of Muzaffarnagar district, in the State of U. P. There were only two contesting candidates at the election, namely, the appellant Sri Ghayur Ali Khan and the respondent Sri Keshav Gupta. The appellant belonged to the Praja Socialist Party and the respondent to the Congress Party.
There was thus a straight contest between the candidates set up by the two parties. The polling took place on 6-3-1957 and the counting of votes took place on the next day, when the appellant was held to have secured 25933 votes and the respondent 25258 votes. The appellant was accordingly declared to have been duly elected as a member of the U. P. Legislative Assembly from the above constituency.
The respondent then submitted an election petition to the Election Commission, which was, in due course, forwarded to the District Judge of Muzaffarnagar, Sri Mahesh Chandra who was constituted as the Election Tribunal for disposal of this election petition. The Election Tribunal, on receipt of the petition, issued notice to the parties, and proceeded to try the election petition. As a result of the pleadings of the parties, it framed 16 issues.
The parties led evidence before it, but at the time of the argument it appears that the learned counsel for the respondent did not press issues Nos. 6, 10, 13 and 14 before the Election Tribunal. The Tribunal accordingly decided only the rest of the issues, deciding issues Nos. 1, 2 and 5 in favour of the respondent and the rest against him.
Issue No. 1 raised the question of an appeal on the ground of religion and community to the electorate, and issues Nos. 2 and 5 related to the exercise of undue influence by the appellant. The decision on issues Nos. 1, 2 and 5 being in favour of the respondent, it allowed the election petition and declared the election of the appellant -as void. The appellant has accordingly filed the present appeal against the decision of the Election Tribunal.
3. The learned counsel for the appellant challenged the correctness of the decision recorded against him on issues Nos. 1, 2 and 5. The learned counsel for the respondent tried to support the decision of the Tribunal on the above issues, and further urged that the decision of the Tribunal against him with respect to issues Nos. 3, 4 and 15 was incorrect and the election petition should have been allowed on the further grounds giving rise to the said issues.
He has not challenged the correctness of the decision of the Tribunal on issues Nos. 7, 8, 9, 11 and 12. We have thus to see whether the decision of the Election Tribunal on issues Nos. 1, 2, 3, 4, 5 and 15 is correct or not. Issue No. 16 only posed the question as to the relief the respondent was entitled to. We shall now proceed to decide those Issues concerning which arguments have been addressed.
ISSUE No. 1.
'Whether the respondent (appellant in the appeal) himself and his agents, workers and supporters made a systematic appeal and propaganda at his instance and held meetings and printed and distributed handbills to the Muslim voters of the constituency inducing them to vote for the respondent and refrain from voting for the petitioner on the ground of community and religion as alleged in para 3(a) and Schedule 1 of the petition?'
4. The relevant averments as to this issue are contained in paragraph No. 3 (1)(a) of the election petition. Paragraph No, 3 begins by saying that, the election of the appellant was void and liable to be set aside on the grounds enumerated in the paragraph. Sub-paragraph (1) says that the corrupt practices enumerated in it were committed by the appellant (respondent in the election petition), his agents, workers and supporters' with the consent of the appellant.
In Clause (a) of sub-paragraph (1) it is averred that there was a systematic appeal and propaganda by the appellant himself, his agents, workers and supporters making appeals to Muslim voters to vote for the appellant on the ground of religion and community. The communal feelings of the Muslim electors of the constituency were accordingly aroused and 95 per cent, of them voted for the appellant.
It is further averred that the Muslim voters were induced to believe that they would become objects of divine displeasure and spiritual censure if they did not vote for the appellant and that these appeals were made at the meetings and by distribution of handbills the particulars of which were enumerated in Schedule 1 of the list of particulars attached to the election petition. Schedule 1 covers more than three pages and the 1st paragraph of it gives details of the meetings, that were held at which communal appeals were made.
Paragraph 2 says that there is an Arabic school at Jalalabad, of which the appellant is the patron and it was the duty of the Maulvis to exhort the Muslims, after prayers in mosques, to vote for the appellant and this exhortation was done throughout the constituency. Apart from this, door to door propaganda among Muslims was also curried on at the instance of the appellant. Paragraph Nos. 3, 4 and 5 relate to handbills or pampalets, which are said to have been distributed with a view to spreading communal appeals. They would be referred to later on in greater detail.
5. In the written statement the appellant denied the above allegations, excepting that the printing of 4000 copies of one handbill was admitted, but it was said that the handbill was got printed by the Praja Socialist Party of Muzaffarnagar. It was further alleged that none of the handbills purported to make any appeal to the Muslims on the ground of religion or community.
6. It would appear that issue No. 1 refers to communal appeals made in three ways. One manner was by making appeals at the meetings, which were called for the purpose or after Prayers at mosques, another was by door to door canvassing of the voters and third was by the printing and distribution of the handbills, which are four in number. We propose to deal with the three types of propaganda separately.
7. We propose first to deal with the communal appeals said to have been made at the meetings, called by the appellant for the purpose or after Prayers in mosques. In Schedule 1 it has been stated that a meeting was called at Jalalabad on 15-2-1957 at Lohari on the 17th February, at Thana Bhawan on the 18th February, at Garhi Abdulla Khan on the 20th February, at Patheri on the 25th February and at Bunta and Gurana also on the 25th February at Garhi Pukhtaon on the 26th February and at Jhinjhana on the 1st March 1957.
These meetings were said to have been addressed by the appellant, two Maulivis Abid Husain and Masih Ullah and a number of other persons, out of whom four have been named. No evidence has been led by the respondent as regards the meetings said to have been held at villages Lohari, Patheri, Bunta and Gorana. He has led evidence with respect to the meetings at the other five places and also to the meetings held in villages Oan, Chausana and Baisani,
The evidence with respect to the last three villages should not have been recorded as they are not mentioned in paragraph No. 1 of Schedule 1 at all, which is quite specific as to dates and places where the meetings were held. It is nowhere stated in this paragraph that meetings were also held at places other than those specified in it. But we shall refer to the evidence led with respect to the meeting at the above three villages also in order to complete the judgment.
8. Coming now to the evidence as regards the alleged meetings held in the different villages, one thing is curious that, excepting in regard to village Oan, the respondent satisfied himself by producing only one witness to prove the communal appeal made at one meeting. The learned counsel for the respondent argued that it was not easy for him to obtain evidence of Muslim witnesses and, in any case, the cumulative effect of all the evidence should be seen.
The difficulty in procuring evidence by the respondent may be there, but that would not absolve him from the liability of proving each particular instance which constitutes the charge of an appeal on the ground of religion or community. It the different instances have not been sufficiently proved, there can be no decision against the appellant that the cumulative effect of the evidence is that at some places or the other he or his workers or supporters must have committed the corrupt practice.
It is true that the evidence has to be read as a whole, including the evidence afforded by the contents of the posters and the oral evidence produced on behalf of the respondent, but we are not relieved of the necessity of finding whether the particular instances alleged by the respondent had been proved or not. We now come to the oral evidence produced by the respondent.
9-16. (After reviewing the evidence his Lordship proceeded:)
17. After a careful consideration of the evidence of the above witnesses and the judgment of the Election Tribunal, we find ourselves wholly unable to accept the finding of the Tribunal that those witnesses have proved that appeals were made by the appellant, his workers and supporters to vote for him or to refrain from voting for the respondent on the ground of religion or community. Some of the witnesses are clearly unreliable and the others also do not inspire confidence. The Election Tribunal has not advanced any good reason for accepting the statements of these witnesses with respect to the different speeches said to have been delivered at the different meetings. The Tribunal has in effect held that the cumulative effect of the evidence proved that the appeals were made on behalf of the appellant on the ground of religion or community. We do not share the view of the Election Tribunal that the cumulative effect of the statements of the witnesses is sufficient for establishing that any such appeal was made by the appellant or by any of his workers or supporters. We have not been able to accept the evidence of any of the witnesses. We hold that it has not been proved that any appeal was made at the meetings, inside or outside the mosque, by the appellant, or his workers or supporters on the ground of religion or community.
18. We might briefly dispose of the evidence with respect to the next part of the issue, namely, the conducting the communal propaganda door to door by the appellant or his workers or supporters. (After going through the evidence, his Lordship continued).
19. The oral evidence, with respect to the allegation of the door to door propaganda on communal lines, said to have been carried on by or on behalf of the appellant, is absolutely meagre and unconvincing. We hold that the respondent has fully failed to prove that any such propaganda was carried on.
20. We now come to the main evidence in the case, which is afforded by the four handbills, mentioned in Schedule 1. They are Exhibits 3, 4, 12 and 19. As regards the history of these handbills it may be mentioned that a handbill, marked Ex. A1 was first published on the 13th February, 1957 at the instance of the Deoband Congress Committee.
This handbill purported to contain a statement of Maulana Syed Husain Ahmad Madni to the effect that, though many unscrupulous and selfish persons had acted in gross disregard of the Constitution of India and the principles of Mahatmaji, which is a matter of displeasure and dissatisfaction for Muslim minority, yet considering everything theCongress should be voted back to power, as the Congress organisation, in spite of defects, was the only one which had leaders of high caliber and principles and which could maintain peace and independence of the country.
He, therefore, thought that his friends should cast their votes in favour of the Congress nominees. A similar statement of his was published in the paper 'Al-Jammayat' which is said to be a paper published by Syed Husain Ahmad Madni himself. The statement published in Al-Jammayat purports to bear the signature of Husain Ahmad Madni, but no evidence has been produced to prove that the statement was in fact signed by him.
21. On the 16th February 1957 another handbill was published, which is marked Ex. 3, and the expenses for the publication of which were paid by the appellant. It may therefore, be taken to be proved that this was published at the instance of the appellant. It poses the question whether the Congress should be voted for once again, in view of the actions which have been imputed to it in this handbill. The imputations briefly are of insult to Maulana Madni, partition of India, non-recognition of Urdu as the regional language, keeping alive communal organisations terrifying the Muslim minority by referring to Kashmir problem and other matters.
22. On the 28th February, 1957, Exhibits 4 and 19, which are copies of the same document, were printed and they purport to bear a statement of Maulana Husain Ahmad Madni to the effect that the Maulana had completely detached himself from politics and persons for personal gain had wrongly published handbills and pamphlets and that everybody was at liberty to cast his vote for whomsoever he liked. This was in effect a counter-statement to that published in Ex. Al.
23. Ex. 12 was printed on the 4th March, 1957 and it again refers to Ex. Al published at the instance of the Congress Party and says that that publication was false and the Maulana never advised people to vote for the Congress. On the other hand, he had said that people should vote for whomsoever they liked. It then proceeds that the Maulana could not have advised people to vote for a Government which find insulted the- Maulana himself by having his school searched and which had suppressed Urdu language. It proceeds,
'Therefore we appeal to the Muslim brothers of Thana Bhawan to help Ghayur Ali Khan to win by casting their votes in his favour.'
This handbill purports to be signed by Rahim Baksh of Thana Bhawan, and Qayum Baksh, Sarpanch of Bhaisani.
24. From what we have stated above, it would appear that Exhibits 4 and 19 are absolutely innocuous and contain no appeals on the ground of religion or community. Learned counsel for the respondent has, however, laid stress on the contents of Exhibits 3 and 12 and says that these two handbills contain appeals on the ground of religion and community.
25. Ex. 3 is fully proved to have been printed at the instance of the appellant, though he denied the fact in his written statement. P.W. Jit Singh is the manager of the Sunlight Press and he says that Ex. 31, is the bill issued by his press in the name of the appellant and that the bill was prepared for printing 4000 conies of the handbill. The total amount under this bill was Rs. 133/- and the payment of it was made by the appellant, vide return of his election expenses Ex. 36.
The appellant having paid the expenses for its printing, it must be held that it was printed with his consent, though the actual order may have been placed by Mushkur Ahmad Ansari. The printing of the copies having been proved with the consent of the appellant, it is obvious that it was done with a view to its distribution. The Election Tribunal has accepted the evidence of the witnesses who stated that copies of it were distributed in different places.
It has believed on this point the statements of P. Ws. Tilak Ram, Ramdeo, Vishnu Datt, Chhatarpal, Kuber Datt, Kalu, Amir Abbas, Shamshad Ali, Sunder Lal and Shyam Lal. The statements of the above witnesses on the point are corroborated by the fact that the appellant paid the expenses of the printing of this handbill and, as already stated must have got them printed in order to have been,, distributed.
P. W. Sunder Lal has spoken about the distribution of Ex. 3 in Thana Bhawan, but he has not named the persons who distributed it. The respondent Kesaav Gupta spoke of the distribution of the copies in Thana Bhawan on the 4th March, 1957, but in Schedule 1 he had said that the distribution was done in the last week of February, 1957 and this averment was verified as true to the personal knowledge of the respondent. The same is the position with respect to the statement of Sunder Lal, who says that it was distributed two days before the date of the election.
But apart from this slight inconsistency in the dates, there is no good reason for disbelieving the statements of the witnesses, mentioned above, and we agree with the Election Tribunal in holding that the printing of the handbill with the consent of the appellant has been proved and that the appellant had also consented to its distribution at some places. The only question that remains is whether this handbill contains any appeal to vote or to refrain from voting on the ground of religion or community.
26. The first paragraph of the Exhibit mentions the fact that the police under the Congress Government insulted Maulana Syed Husain Ahmad Madni by making a search of Darululum. It is argued that the Mauiana was a Muslim divine and was held in great respect by the Muslim inhabitants of the neighbouring districts, and advertising the fact of this search amounts to an appeal to the members of the Muslim community to vote against the Congress candidate.
It may be noted that this handbill is not addressed to the members of any particular community, and the appeal is an appeal to the members of the public at large. The assertion that the house or the school of the respected Mauiana was searched by the police, when the Congress Government was in power, cannot be said to be an appeal to vote against the Congress candidate on the ground of the candidate or the electorate belonging to a particular religion or community.
The propaganda of this nature may have affected more Muslims than Hindus, but it would affect some Hindus as well, because the Mauiana is said to have been a learned man and held in high esteem in the locality. If a person's house is improperly searched by the police, all the inhabitants of the locality, to whatever caste or religion they may belong, would resent the action. This appeal, therefore, could not be said to be on the ground of religion or community.
27. In paragraph No. 2 the action of the leaders of the Congress Party is criticised on the ground that the party accepted the partition of India against the advice and wishes of the Mauiana as well as Mahatma Gandhi. There are many Muslims still in India who were in favour of the partition of India and are still in favour of it.
There are similarly many Hindus who think that it was a serious blunder to agree to the partition of India. The allegation contained in this paragraph may be resented more by the Muslims than by the Hindus, and the contents of it show that the idea was not to appeal to the Muslims alone but to narrate the mistakes committed by the party in power.
28. The third paragraph contains a statement that the Government of U.P. has rendered lacs of persons speechless by not recognising Urdu as one of the regional languages. Here the criticism is of the language policy or the U.P. Government, and there is no appeal to vote or refrain from voting on the ground of religion or community. Many Hindus, specially those belonging to the western districts, are said to be in favour of retaining Urdu also as one of the regional languages, and this appeal also cannot be said to be an appeal on the ground of religion or community. What has been done is to criticise the language policy of the U.P. Government.
There are quite a number of Hindus who think that Urdu should also be a regional language, and there may be quite a number of Muslims of the view that there should be only one regional language in the State and not two. Presumably the Muslim members of the Congress Party are of that view. That being the position, the paragraph cannot be said to contain an appeal to vote or refrain from voting on the ground of religion or community but it is on the ground of the alleged wrong language policy adopted by the Government.
29. The fourth paragraph refers also to the same matter and says that Mahatma Gandhi's advice of having Hindustani as the national language has been turned down. The fifth paragraph contains the allegation that the Congress Government deliberately permitted the dissension and sectarianism to grow by keeping alive the communal organisations. The learned counsel for the respondent urged that the communal organisation referred to here is the Hindu Jan Sangh, but there appears to be no reason for confining it to the Hindu Jan Sangh, as the Muslim League, as a party does not appear to have been declared unlawful or even to have ceased to exist, though it may be much less openly active in the State of U.P.
The Congress Government has done nothing either to suppress the Muslim League or Hindu Jan Sangh. The Government of our country is secular and not theocratic, and it certainly discourages communal organisations, but it did not declare them as unlawful organisations, and the criticism appears to be that it should have done so. This is again not an appeal on the ground of religion or community, but on the ground of a particular policy adopted by the party in power.
30. The next paragraph is to the effect that the leaders of the Congress. Party tried to obtain Muslim votes by adopting mean tactics of 'terrifying' the Muslim minority by referring to the Kashmir problem.' The language used in this paragraph is not easily understandable, but P. W. Mashqoor Ahmad, who was a party to the draft of this document, has tried to explain the contents by saying that what is meant by the paragraph is that some leaders in the elections of 1952 told the Muslim voters that, if the Congress Party was not returned to power. Kashmir would slip out of the hands of India, and this would lead to a riot by the Hindu population resulting in the ruination of Muslims.
We do not know whether any particular leader said this or not. But the language used in the paragraph does not convey that idea. A person who reads the handbill could not possibly understand that the above is what the author of the handbill meant. The language used only shows that some leaders of the Congress Party tried to obtain Muslim votes by terrifying the Muslim minority by referring to the Kashmir problem.
If that was really by any leader of the Congress Party, the effect would be resented by Hindus as well, because terrifying the members of any community cannot be universally appreciated by the Hindus. This again purports to be a criticism of some of the leaders or the leadership in general with respect to their alleged improper action in terrifying the members of the Muslim minority community. As such, it is not an appeal on the ground of religion but an appeal for the misdeeds or the supposed misdeeds of the leadership of the Congress Party.
31. The contents of the other paragraphs have, not been objected to, as they speak only of the harmful effects of consolidating the holdings, of the practice of obtaining money from capitalists for purposes of election and permitting them to return to make crores of profits, of the imposition of taxes and of the increase of bribery. We do not think that this handbill contains any appeal on the ground of religion or community to vote for the appellant and not to vote for the respondent.
32. In the appeals, contained in the handbill, there was no appeal to the members of any particular community. It is an appeal to the public in general for the action or the supposed action of the political party in power. Even if the appeal is to the members of a particular community, it does not necessarily fall within the mischief of Sub-section (3) of Section 123 of the Act, unless the appeal is made on the ground of religion or community.
Suppose the action of the political party in power is criticised on the ground that it has passed improper legislation interfering with the Hindu usages and customs in the matter of marriage and divorce and that the persons professing Hindu Faith should, therefore, vote against the candidate set up by such a party. This would be an appeal to the members professing a particular religion, but it is not an appeal on the ground of religion.
It is an appeal to vote against a candidate set up by a party, because the policy of the party is not liked by the maker of the appeal. It is really a criticism of that policy. What he does is to criticise the measure of social reform, which the party in power has brought about, though the appeal is an appeal to the members belonging to a particular religion.
But the appeal is not on the ground of religion but on the allegation that an improper act has been done by the party in power, and the persons affected by that improper act should not vote for the candidate of that party. It is mainly a criticism of the acts or supposed acts of the party in power and not an appeal on the ground of religion. There may be cases where, in the garb of criticism of the acts or supposed acts of a political party, an attempt is made to make an appeal on the ground of religion.
If such is found to be the case, the appeal may be held to fall within the mischief of Section 123(3) of the Act. The contents of a particular document have, therefore, to be taken as a whole and, after a consideration of the entire document, a decision has to be arrived at whether the document contains merely a criticism of the actions of a political party or it is really an appeal on ground of religion.
Similarly, if a political party is criticised on the ground that it has a communal outlook and that its policy is to suppress the members of another community, for example the Jan Sangh or the Muslim League, and if it is stated that people should not rote for any of these communal organisations because the essential policy of these organisations is to further the ends of the Hindus or the Muslims, at the cost of the members of the other community, the appeal in such cases also would be to the members of the Hindu or the Muslim community, but it would not be on the ground of religion or community, but on the ground of the wrong policy of the particular organisation.
This would be a criticism of the policy of the organisation and not an appeal to vote or to refrain from voting on the ground of religion or community. If the Legislature really meant to prohibit an appeal to a community, it could easily have said so, instead of saying on the ground of religion.
33. The last paper to be dealt with under this issue is Ex. 12. The position of this exhibit is different from that of Ex. 3, because we are not satisfied that it has been proved in this case that the exhibit was printed or published at the instance or with the consent of the appellant. The particulars with respect to Ex. 12 are given in paragraph 5 of Schedule 1. It purports to be signed by Rahim Baksh of Thana Bhawan and Qayam Baksh, Sarpanch of Bhadsani.
According to the contents of paragraph 5 of Schedule 1, this handbill was published by the above persons and was widely distributed to the Muslim voters in the constituency in the first week of March 1957. It is said to have been especially distributed at the places enumerated in the paragraph by the workers and supporters of the appellant, named in this paragraph. There is no mention made here that the appellant had anything to do with the printing, publication or distribution of this handbill, and the printing is attributed only to Rahim Baksh and Qayam Baksh and the distribution to the workers and supporters of the appellant.
The appellant's name has not been mentioned for its distribution, nor is it stated that he himself got it printed or distributed. There is thus no case set up against the appellant under Clause (b) of Sub-section (1) of Section 100 of the Act. But the learned counsel for the respondent urged that in the main election petition itself, in paragraph No. 3(1), it has been stated that the corrupt practices, enumerated in the paragaraph, were committed by the appellant, his agents, workers and supporters with the consent of the appellant. Reading the two together, it may be possible to say that there was a pleading to the effect that the printing or distribution was done with the consent of the appellant.
But it is clear that there is no allegation in the schedule that the appellant himself got it printed or himself distributed its copies. It is, therefore, open to the respondent to show that the printing or distribution was done with the consent of the appellant. But here again there is no evidence at all of the fact that the printing or distribution was done with his consent. The learned counsel for the respondent urged that there was circumstantial evidence to the effect that the printing or distribution was done with the appellant's consent, and the main circumstance is that the printing or distribution was done by the workers of the appellant.
He argued that Qayam Baksh was a pollingagent of the appellant and the document purportsto bear his signature, and that it was distributedby Qayam Baksh, Rahim Baksh, Irshad Ali andHasan Mehdi, who were all workers of the appellant. We are not satisfied that the respondent hasbeen able to prove the above facts. There is noevidence of the fact that Rahim Baksh and QayamBaksh, workers of the appellant, ever signed thedocument.
The mere fact that the document purports to bear, their signatures does not establish the fact that they really signed it. The original of the document has not been produced by the printer who in this case was Mahendra Pratap, Proprietor of Swatantra Press, where the copies were printed. The names of the customer, shown in the papers of Mahendra Pratap, is Qayam Baksh of Bhaisani. He admits that the vouchers or bills did not bear the signatures of the customer but he says that it is not his practice to obtain signatures of the customer.
He had however to admit that he took signature of another customer Sri Virendra Kumar Sharma on another cash memo, and also of Jagbir Singh and Satya Pal, so that it appears that he is wrong in saying that it was not his practice to take signatures of customers. But in this case he did not take any signatures. He says that he does not know the person who came to give him the material for printing the copies,
He cannot say if the original was in manuscript or a typed one. He is thus wholly unable to say who placed the order before him and obtained the printed copies. It is not thus proved that the workers of the appellant were the persons who had this document printed.
34. As regards the distribution of the document again none of the witnesses, Ram Dia, Kalu, Amir Abbas, Inayatullah or Mohammad Askari said that the appellant was present at the time of the distribution of the handbill or consented to its distribution by somebody else.
This nature of evidence makes it highly improbable that the handbill really was ever distributed in this constituency, or even that it was printed at the instance of the appellant. We have gone through the evidence of the above witnesses but we are unable to accept their statements. It is true that in paragraph 5 it was stated vaguely that the handbill was distributed to the Muslim voters throughout the constituency, and afterwards the places, where it was specially distributed, were also narrated, and they are 11 in number.
The respondent was not able to produce any evidence at all with respect to any of these 11 villages, which he specifically mentioned in the paragraph, excepting perhaps in the case of Thana Bhawan. Saying that it was distributed throughout the constituency is not specifying any place at all. In any case, we have not been able to accept the evidence. The case against the appellant, therefore, under Section 100(1)(b) of the Act for printing and distribution of Ex. 12 completely fails.
35. It has further been argued that the respondent also pleaded that the result of the election had been materially affected by the commission of the corrupt practices and the case with respect to this handbill may, therefore, fall under Section 100(1)(d)(ii) of the Act. It is true that a General plending to that effect is there but the difficulty in the way of the respondent is that no issue at all was framed on the point.
If the respondent wanted to urge this point, he should have asked the Election Tribunal to frame an issue on the question whether the result of the election had been materially affected by the commission of the corrupt practice. But it does not appear that he ever asked the Tribunal to frame an issue on the point. In the judgment of the Tribunal, also the point has nowhere been specifically discussed.
36. As regards the proof of the result having been materially affected, the learned counsel for the respondent has urged that in the elections held in 1952 Keshav Gupta was a candidate set up by the Congress Party, as now, but the Praja Socialist Party had set up Brij Mohan Lal as its candidate, Keshav Gupta succeeded in that election and Brij Mohan Lal even forfeited his security. The argument of the learned counsel is that, the Praja Socialist Party being so unpopular in this constituency, it must be the commission of the corrupt practices by the appellant that a candidate of that party was elected at the last election. But this is not the whole of the story.
It appears that there were 9 candidates contesting election for the seat from this constituency, and it is possible that they attracted most of the votes which Brij Mohan Lal might otherwise have got. In the last election there was a straight fight between a Congress member and a member of the Praja Socialist Party with the result that the member of the Praja, Socialist Party succeeded by a few hundred votes.
At the present election, the Praja Socialist Party changed its candidate and it may be that the appellant is much more popular in the constituency than Brij Mohan Lal was. Under the circumstances, no conclusion adverse to the appellant can be drawn from the fact that another member of the Praja Socialist Party received so few votes in 1952 that even his security was forfeited.
37. The other circumstance pointed out is that according to the respondent, 90 per cent, of the Muslim voters of the constituency turned up to cast their votes, whereas the percentage of Hindu voters who turned up was only about 60 per cent. It is argued that a large number of Muslims turned up to cast their votes in favour of the appellant because of the communal propaganda that he carried on. But in this matter the statement of Brij Mohan Lal shows that there are 20,000 Muslim voters in this constituency.
The appellant is unable to say how many of them voted for the appellant and how many for the respondent, but, according to the computation of the respondent himself, 14,000 Muslims cast their votes. This would show that the percentage of Muslim voters, who cast their votes, was only about 70 per cent, and not 90 per cent. The respondent nowhere stated what the total number of Muslim voters was, and he has merely stated that out of the votes cast by the Muslim voters about 12,000 were in favour of the appellant and 1,200 or so in his favour.
He says he has drawn this conclusion from an inspection of the electoral roll and the ballot papers. He also filed an application, before making the above statement, which contained the same assertions of fact. But this matter could be conclusively proved by the production of documentary evidence which the respondent failed to do and we do not consider ft safe to rely on the oral evidence of the respondent himself. We are, therefore, unable to hold that either 90 per cent, of the total Muslim voters appeared at the polling stations to cast their votes or that out of those who cast their votes 90 per cent voted for the appellant and only 10 per cent, for the respondent.
The admission of the appellant only goes to this length that 70 per cent, of Muslim voters cast their votes at this election. The percentage of total votes cast works out at 63 or 64 per cent, It is likely that more Muslim voters voted for the appellant than for the respondent, but that may have been because of the fact that they themselves thought that they should vote for a Muslim candidate in preference to the respondent, without the appellant or any of his workers or agents instigating the Muslim voters to vote for the appellant.
38. We are thus unable to hold that the result of the election would have been different if no communal propaganda had been carried on on behalf of the appellant or any of his workers or supporters.
39. Coming now to the question whether the handbill Ex. 12 contains statements which had the effect of making appeals to the members of the Muslim community to vote or refrain from voting on the ground of religion or community, it may- be stated at the outset that the commission of acts imputed to the Congress Party consists solely of the alleged insult to Mauluna Madni by the search of Darululum of Deoband and the suppression of Urdu which is our mother tongue.'
'These two imputations along with certain others are contained in Ex. 3 also, and while discussing the statements made in Ex. 3 we have held that such imputations cannot be said to amount to an appeal to the members of the Muslim community alone. The improper search of the house of a respected leader would arouse feelings of the resentment among all the friends and followers of the leader, and also among the general inhabitants of the locality irrespective of caste or creed. The supposed suppression of Urdu language is a criticism as to the language policy, which is again not a religious or communal matter.
The difference in Ex. 12 is that the appeal is expressly made in it to the Muslim brothers of Thana Bhawan to help the appellant. It is not an appeal to the general public but only to 'Muslim brothers.' But, as we have already held above, an appeal to the members of a community to vote or refrain from voting comes within the mischief of Section 123(3) of the Representation of the People Act only if the appeal is on the ground of religion and not on the ground of the commission of misdeeds or supposed misdeeds by the members of a particular political party.
We consequently think that Ex. 12 also does not contain any statement or appeal which can be said to fall within the ambit of Section 123(3) of the Act. In respect of Ex. 12 we have also held that it has not been proved that the respondent had it printed or distributed, or any of his workers did so with or without his consent. We have also held that the distribution of any of the pamphlets or any alleged appeal on the ground of community or religion, by any person, other than the candidate or a person acting with his consent, has not been proved to have materially affected the result of the election.
40. The learned counsel for the respondent argued that if any worker of the appellant committed any of the corrupt practices, it has been proved in the case that he did so with the consent of the appellant. The proof of such consent is said to be furnished by the statements of D. W. Brij Mohan Lal and the appellant himself. The appellant in his statement has said that he used to send Instructions to his workers through Brij Mohan Lal, Farrogh Ahmad, Amrul Hasan and Waqat Ali, or he himself instructed his workers orally. Brij Mohan Lal has stated:
'There were no speakers fixed by us for our propaganda work. We did not tell anybody as to what he was to say in his speech to the voters. The speakers used to say in their speeches whatever they liked. We had told them only that they must ask the people to vote for P.S.P. and not for the Congress. We told our workers on what main grounds they should ask for votes for the P.S.P. They were told orally. They were also told to try to persuade people of the village to vote for the P.S.P. on the grounds suited most to the particular audience.'
From the last sentence it is argued that the workers of the appellant were given full authority to commit any corrupt practice that they thought would induce the particular type of voters to vote for him, and there was thus a general consent by the appellant to workers to commit all or any kind of corrupt practice and, in such circumstances, if the workers committed any corrupt practice it should be taken that the appellant had consented to the commission of it.
We think that the conclusions drawn by the learned counsel for the respondent from the above statements are too far-fetched. Firstly the statement quoted above merely relates to the instructions to the speakers who were appointed to do propaganda work. It has nothing to do with what is to be contained in any particular handbill or poster for the statement clearly is that it was left to the speakers appointed by the appellant to make the sort of speeches that they thought would suit the particular audience. Secondly--Brij Mohan Lal could only have meant to convey correctly that if the audience consisted of intelligent and informed persons, the subject naturally would be different from the one that would be useful where the audience consisted of uneducated people.
Brij Mohan Lal could not obviously have meant that he had authorised his speakers to commit any kind of corrupt practice that they thought suitable to the occasion, because an admission of this nature would be a serious admission indeed and might have ended in Brij Mohan Lal being named as a person who was responsible for the commission of corrupt practices. We think that while making this statement it was never in the mind of Brij Mohan Lal that the speakers appointed by him should commit corrupt practices while making the speeches.
41. The learned counsel also argued a point of law in this connection and his contention was that if any agent of the appellant committed any corrupt practice, the appellant would be responsible for it and the case would come under Section 100(1)(b) of the Representation of the People Act, quite irrespective of the fact whether the appellant had consented to the commission of the corrupt practice by the agent or not.
It was further contended that according to explanation I to Section 123, the word 'agent' would include any person who is held to have acted as an agent an connection with the election with the consent of the candidate. It was argued that every worker would be an agent of the candidate, and every action of such worker would be taken to be an action committed with the consent of the candidate. We think that this contention is in the teeth of the clear wording of Section 100(1)(b) of the Act which is as follows:--
(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 the returned candidate or his election agent.'
A plain grammatical meaning of the above sentence, is that the corrupt practice itself should have been committed with the consent of a returned candidate or his election agent. According to the contention of the learned counsel for the respondent the moment any other person acted with the consent of the candidate he became his agent.
Assuming that that was the position, the provision for setting aside the election mentioned in the above clause further requires that the corrupt practice should have been committed with the consent of the candidate or his election agent. This last requirement would become absolutely superfluous if the action of every agent of a candidate is to be taken to be the action of the candidate himself. For his interpretation the learned counsel relied on the language of Section 100(1)(d)(ii), which is as follows:--
'(ii): By any corrupt practice committed in the interests 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''
The learned counsel argues that the words 'a person acting with the consent' describe the qualification of the person's action and do not have reference to the commission of the corrupt practice. He says that if any person was working for a returned candidate with his consent, the action of such person is excluded from the operation of Clause (ii). This necessitated the learned counsel to go to the length of saying that there may be cases which do not fall either under Section 100(1)(b) or under Section 100(1)(d)(ii).
According to him the action of an ordinary agent, who commits a corrupt practice but not with the consent of the candidate, would not fall under any of the above two provisions of law, we do not find it possible to agree with the contention of the learned counsel. There appears to be no reason why an election should be set aside if the corrupt practice was committed by a person other than an agent if the corrupt practice materially affected the result of the election; whereas the election should not be set aside if the corrupt practice has been committed by an ordinary agent even though it materially affected the result.
The learned counsel had to concede that, on his interpretation of the two provisions of law mentioned above, there would be no authority in the Election Tribunal to set aside the election even if the commission of a corrupt practice by an ordinary agent of a candidate had materially affected the result of the election. We do not think that the legislature could possibly have intended any such result
Stress was laid by the learned counsel on the word 'acting' as used in Section 100(1)(d)(ii); but we think that the word 'acting' there refers to acting in the commission of the corrupt practice and not to a person acting generally with the consent of a returned candidate. The interpretation of Section 100(1) of the Act, which has appealed to us, would cover all cases of the commission of corrupt practice by any person whatsoever,
42. The learned counsel was forced to the situation that the legislature had given no directions as to what an Election Tribunal should do where an ordinary agent of the returned candidate has committed a corrupt practice, and, in such a case, at has left it to the sweet discretion of the Election Tribunal to set aside the election of a returned candidate or not. He says that Sub-section (2) of Section 100 authorises the Tribunal to condone the action of an agent when the conditions enumerated in Clauses (a) to (d) are all satisfied.
In other cases of the commission of corrupt practice, by an ordinary agent without the consent of the returned candidate or his election agent, it is left to the discretion of the Tribunal to set aside the election or not. It is not possible to accept this contention. We do not find any reason why the legislature should not have provided for the most usual type of corrupt practices, namely, those committed by the numerous agents, other than the election agents and why a stranger's action should result in setting aside of the election if he acted in the interest of the returned candidate; but not that of an agent.
Then Sub-section (2) of Section 100 also' leaves a discretion in the Tribunal, even if all the conditions mentioned in Clauses (a) to (d) are satisfied, to declare the election of the returned candidate to be void or not. If the intention of the legislature was to entirely leave it to the discretion of the Tribunal to set aside an election or not on the ground of the commission of a corrupt practice by an ordinary agent, it need not have specified any of the conditions.
43. After a careful consideration of the points urged by the learned counsel, we have come to the conclusion that Sub-section (1) of Section 100 is a self-contained section providing for all cases of commission of corrupt practice by any person whatsoever. If such a corrupt practice has been committed by a returned candidate or his election agent or by another person, including an ordinary agent, with the consent of a returned candidate or his election agent, the Election Tribunal is bound to declare the election to be void irrespective of the fact whether the commission of the corrupt practice materially affected the result of the election or not.
In other cases, if a corrupt practice has been committed by any person other than those mentioned in Section 100(1)(b) the election is to be declared void only if the commission of the corrupt practice has materially affected the result of the election. It is true that according to our interpretation of Section 100(1), Section 100(2) becomes a superfluous piece of legislation; but we are constrained to arrive at that conclusion and think that, while re-drafting the section, the legislature omitted to take into consideration the fact that a case which fulfils all the requirements of Clauses (a) to (d) of Sub-section (2) would never fall under Sub-section (1), and that according to Sub-section (1) itself the election cannot be declared to be void by the Tribunal if all the conditions enumerated in Clauses (a) to (d) of Sub-section (2) have been fulfilled.
A Bench of this Court, of which both of us were members, took a similar view in the case of Moti Lal v. Mangala Prasad, First Appeal No. 83 of 1958 D/- 16-5-1958: (AIR 1958 All 794). In the Act before its amendment in 1956 under Sub-section (2) (b) the Tribunal could set aside any election if a corrupt practice was committed by any ordinary agent with the connivance of the returned candidate.
Then came Sub-section (3), which was word for word the same as the present Sub-section (2) excepting for an insignificant difference. In that setting Sub-section (3), as it then was, had a meaning because it provided an exception to Clause (b) of Sub-section (2); but after the amendment, Sub-section (2) of Section 100 appears to be an entirely supernuous and meaningless piece of legislation.
44. Lastly, the learned counsel argued under this issue that the Election Tribunal, which had the opportunity of watching the demeanour of the witnesses produced before it, has believed the witnesses who stated about the holding of the different meetings in different villages and the statements made therein, even though there was only one witness in respect of one particular meeting. In this connection he referred us to the case of Sarju Per-shad v. Jwaleshwari, AIR 1951 S.C. 120.
Their Lordships remarked in the above case that where the question for consideration for the appellate Court is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case, the appellate Court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court. They then proceeded--
'This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is--and it is nothing more than a rule of practice--that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.'
The above is a well established and well known principle of law and we have kept it in view while deciding the question whether the commission of corrupt practice by the appellant or his workers has been proved by the witnesses or not. We have referred to the reasons which led us not to rely on the statements of those witnesses and many of those reasons had not been noticed by the Tribunal. We are called upon to decide whether the charge of the commission of corrupt practice has been proved or not, and we feel that we cannot agree with the decision of the Tribunal as regards the credibility of the witnesses.
45. For the above reasons we decide issue No. 1 against the Respondent and hold that it has not been proved that the appellant or any of his workers or agents committed the corrupt practice imputed to them with or without the consent of the appellant. We further hold that it cannot be said that the result of the election has been materially affected even if the commission of corrupt practice by some person without the consent of the appellant had been established. The appellant had not appointed any election agent at all.
46. Issue No. 2: '(2)--Whether the Muslim voters were induced by the respondent and his agents and workers and supporters at the instance of the respondent to believe that they will become or will be rendered objects of divine displeasure and spiritual censure if they did not vote for the respondent as alleged in para 3(1) (a) and Schedule 1 of the petition?
47. Paragraph 3(1) (a) of the election petition, about the end, says:--
'Musilm voters were induced to believe that they will become objects of divine displeasure and spiritual censure if they did not vote for the Muslim candidate, the respondent.'
In the particulars given in Schedule I, no particulars are separately given with respect to this charge of undue influence falling under Section 123(2) of the Act. But it may be taken that what was meant was that these statements were also made while addressing the different meetings alleged to have been held in the constituency. We may, therefore, proceed to the evidence that has been adduced to prove that such an undue influence was exercised.
48. The undue influence is said to have been exercised by the speakers at three meetings held in villages Thana Bhawan, Garhi Abdulla Khan and Bidauli. P. W. Janbaz has spoken about the meeting in Thana Bhawan, P. W. Inayaetullah of the meeting in Garhi Abdullah Khan, and P. W. Amir Abbas of the meeting in Bidauli. They all say that one of the speakers in these three meetings had said that if the Muslims did not vote for the appellant they would be kafirs. We do not propose to consider the question whether a mere assertion that they would be Kafirs, would amount to the exercise of undue influence, as defined in Sub-section (2) of Section 123, because we have already held that we do not find it possible to rely on the statements of the above witnesses at all.
It has thus not been proved that it was ever said by the speakers at these meetings that the persons who did not vote for the appellant would be Kafirs. The Election Tribunal has not separately dealt with this issue and has mixed it up with the general issue of the commission of corrupt practice by making appeals on the ground of religion or community under issue No. 1, and has remarked that their entire activity was one corrupt practice. We have disagreed with the Tribunal's finding under issue No. 1, and we also disagree with it on this finding on issue No. 2, and hold that the exercise of undue influence, which was the subject-matter of issue No. 2, has not been proved at all.
49-50. Issue No. 5: '(5) (a); Whether the handbill entitled 'Kya is Congress ko phir vote diya jave?' was published in the Bhawan constituency and whether it contains false statements and is a misrepresentation and fraud and preaches hatred as alleged in the petition?
(b) Whether it interfered with the free exercise of the electorate right of the voters and does-it amount to undue influence within the meaning; of Section 123(2) as alleged?'
51. This is again an issue raising the question of the exercise of undue influence. We had already occasion to refer to the main parts of this handbill while discussing the question whether it contained any appeal on the ground of community or religion, and we came to the conclusion that it did not. As for its containing any statement which might amount to the exercise of undue influence, we think that the case of the respondent on this point is an impossible one. Ex. 3 nowhere goes near saying anything which might amount to the exercise of undue influence as defined in Sub-section (2) of Section 123 of the Act and has merely criticised some acts or supposed acts of the Congress Party and its leaders.
It contains an appeal to the members of the public in general. There is nothing in this exhibit which can be seriously considered to amount to the exercise of undue influence as defined in Sub-section (2) of Section 123 of the Act. There is no-preaching of hatred in it, and there is considerable dispute whether the statements of fact made therein were true or not. We think that the respondent has not been able to prove that those statements are false. Even if they are false, they would come under Section 123(2). This issue, accordingly, is also decided against the respondent,
52. We have disposed of all the issues on the decision of which the Election Tribunal set aside the election of the appellant. We may now come to those issues which were decided against the respondent and concerning which the correctness of the decision has been challenged before us by the learned counsel for the respondent. These issues are Issues Nos. 3, 4 (b) and 15.
53. Issue No. 3: '(3) -- Whether the respondent and his agents and workers, at the instance of the respondent, held meetings as alleged in para 3 (1) (b) and thereby made a systematic appeal to the caste instinct of Syani voters of the constituency to vote for him and refrain from voting for the petitioner on the promise and understanding that the respondent would get the Muslim voters to vote for Sri Mulkiraj, a Syani by caste, and a candidate for the Parliamentary Constituency 302, Saharanpur, and thus interfered with the free exercise of the electorate rights of the Syani voters and committed a corrupt practice within the meaning of Section 123(2) and (3), as alleged in the petition?'
54. The relevant averments concerning this issue are contained in paragraph 3 (1) (b) of the Election Petition. It is stated therein that the meeting between the appellant and Sri Mulkraj, a candidate for the Parliamentary Constituency, took place at the residence of the appellant at Jalalabad on 10-2-1957, and it was agreed at that meeting that the appellant would ask the Muslim voters to vote for Sri Mulkiraj in the Lok Sabha and Sri Mulkiraj would ask his own caste fellows, the Syanis of the constituency, to vote for the appellant.
In support of this agreement meetings were held at Jafarpur on 15-2-1957, at Bedkheri on 16-2-1957 and at Thana Bhawan, Lohari and Jalalabad on 4-5-1957 at which appeals were made on behalf of Sri Mulkiraj to the Syani voters to vote for the appellant. The respondent was thus deprived of the Syani voters, most of which went to the appellant. In written statement the appellant has denied the entire allegation.
55-62. (Bis Lordship considered the evidence and proceeded.)
63. We further think that an agreement between different candidates for securing votes for each other would not be a corrupt practice under Section 123 at all but the learned counsel for the respondent argues that an attempt was made in this case to secure votes on the ground of caste or religion and, as such, he agreement falls under Section 123(3). We are doubtful whether the agreement even then would fall under Section 123(3); but we do not propose to decide this point as we have held that the agreement itself has not been proved. This issue is also decided against the respondent.
64. Issue No. 4. '(4) (a) -- Whether the respondent himself, his agents and workers and supporters made, as alleged in para 3 (1) (c) an extensive use of the posters bearing the photo of Mahatma Gandhi with the title 'Congress ko tordo' the hut symbol and the writing beneath it deliberately as a device to create an impression in the voters' mind that Mahatma Gandhi was advising and blessing them to vote for the respondent and thus deceived a large number of voters as alleged in the petition?
(b) Is the photo of Mahatma Gandhi a national symbol, and were the voters of the constituency deceived by the respondent and did they vote for the respondent on account of fraud as alleged in the petition?'
65. The relevant averments with respect to this issue are contained in paragraph 3 (1) (c) of the election petition and they are to the effect that tae posters were widely distributed and by this device the appellant created an impression in the minds of the electors that Mahatma Gandhi was advising and blessing the voters to vote for the candidate or the Praja Socialist Party. It is also said that the photo of Mahatma Gandhi was a national symbol. In the written statement the distribution of the posters and the fact that the photo of Mahatma Gandhi was a national symbol had been denied.
It appears that at many places the candidates set up by the Praja Socialist Party of U.P. had got such posters distributed, and in the case of Karan Singh v. Jamuna Singh, First Appeal No. 24 of 1958, D/-.16-4-1958 (All), a copy of this poster was said to have been distributed. We accordingly considered in that case whether the portrait of Mahatma Gandhi was a national symbol or not, and came to the conclusion that it cannot be held to be a national symbol within the meaning of the expression as used in Section 123(3) of the Act. The portrait not being a national symbol its use by the respondent did not constitute a corrupt practice and the Election Tribunal was right in holding that the election of the respondent was not liable to be set aside on this ground.
One of us was a party to the decision in the above appeal, and we agree with the said decision. The learned counsel for the appellant argued that one of the learned District Judges, who was appointed an Election Tribunal, held in the case of Desai Basawaraj v. Dasankop, 4 ELR 380 that the portrait of Mahatma Gandhi was a national symbol, and the Legislature not having altered the language of the Act with respect to this matter, it must be presumed that the Legislature agreed with that view and meant to include the portrait of Mahatma Gandhi within the meaning of the expression 'national symbol'.
We do not think that the principle of law enunciated by the learned counsel can be extended to every decision of a Judge or a Civil Judge and even other Courts functioning in the country. The principle only applies to well known cases of decisions by important Courts, because the Legislature cannot be expected to be aware of a decision arrived at by every district Court.
66. It was then argued that it is said in this poster that Mahatma Gandhi said, 'Congress ko tor do', and this is a false statement of fact. But the respondent's own witness Sital Prasad admits that Mahatma Gandhi had said that the Congress should be dissolved and should be turned into a Sewak Samaj. It thus cannot be said that this statement in the poster has been proved to be false.
67. It is further argued that the poster contains a sort of blessing from Mahatma Gandhi to those who were voting for the Praja Socialist Party in this poster. But it must be known to everybody that the Praja Socialist Party did not exist in the time of Mahatma Gandhi, and Mahatma Gandhi could not, therefore, possibly be said to be blessing the voters who voted for the Praja Socialist Party.
The poster shows that the left hand of Mahatma Gandhi was raised and not his right hand. If the right hand had been raised it might have been said that it was with a view to bless these people. In any case, this question is of no importance because even if it was wrongly stated that Mahatma Gandhi said something, that would not amount to an exercise of undue influence as alleged by the learned counsel for the respondent. Under influence is interfering with the free exercise of the right of voting, and inducements to vote by wrongly imputing statements to leaders cannot be said to amount to interference with the free exercise of the right of voting.
At elections, sometimes false statements are made and attributed to the leaders of the parties. But making false statements like this has not been made a corrupt practice. It is in the nature of an argument for voting in favour of the candidate set up by a particular party, and the argument may be false, but it cannot be said that that interferes, in any way, with the free exercise of the electoral right:
67A. The correctness of the finding of the Tribunal that the appellant himself made use of this poster has not been challenged before us.
68. Issue No. 15. '(15) (a) Did the respondent maintain accounts as required under S, 77 of the Representation of the People Act, and is the return filed a correct copy of the same? If so, its effect?
(b) Whether the respondent himself through his agents and workers incurred unauthorised expenditure and submitted false return of the election expenses as alleged? If so, its effect?'
69. While considering this issue the Election Tribunal has hold that the accounts were not regularly maintained. It says that they should have been maintained by the appellant himself or by his election agent, but the appellant admits that he did not maintain the accounts himself nor had he appointed any election agent. The accounts, he said, were maintained by his Pairokar Brij Mohan Lal. Brij Mohan Lal also does not appear to have written the accounts from day to day.
He noted on slips of paper the moneys paid to the workers and the expenditure incurred on different dates and compiled the account subsequently from those Parchas. Those Parchas themselves are not forthcoming. On these facts the Tribunal has held that the appellant did not maintain accounts as required under S, 77 of the Representation of the People Act and the return filed by him, therefore, cannot be said to be a correct copy of the accounts maintained.
A reading of Sub-section (1) of Section 77 does not show that file direction contained in it is to keep a regular daily account of the expenditure incurred as is done in the account books maintained by commercial firms. What this Sub-section requires is that the candidate himself or his election agent should keep a separate and correct account of all expenditure in connection with the election, incurred by the candidate or by his election agent. The requirement is that the account should be a separate one and a correct one, and it is to be kept either by the candidate or by his election agent.
The account in this case, a copy of which has been filed, was not mixed up with any other account, and was a separate one. It has also not been proved that there was any mistake in entering the items in the account. The Tribunal has referred to one alleged mistake. It says that the receipt (Ex. 31) shows that a bill was for a sum of Rs. 133, out of which Rs. 50/-had been paid in advance and Rs. 83/- were paid on 116-2-1957.
The payment shown in the accounts is of Rs. 133/- in a lump sum. This is again a case where the expenditure was on different dates but was shown on one date in a lump sum, but it is not a case where it can be said that any wrong entry was made in the accounts.
70. But we are relieved from deciding finally whether an account of the nature prepared in this case was or was not in accordance with Sub-section (1) of Section 77 of the Act, because we think that the corrupt practice mentioned in Section 123(6) does not cover a case where the accounts have not been daily and regularly kept by the candidate or his election agent.
That sub-section defines corrupt practice as 'the incurring or authorising an expenditure in contravention of Section 77.' The corrupt practice thus does not consist in not maintaining the account as required by Sub-section (i) of Section 77, but it consists of incurring or authorising an expenditure in contravention of Section 77, which would be a case where the total of the expenditure exceeds the amount prescribed under the rules, as mentioned in Sub-section (3) of Section 77.
It is the incurring or authorising an expenditure in contravention of Section 77 which has been made a corrupt practice and not an irregular maintenance of accounts. It would thus appear that the only contravention of Section 77 which falls under S, 123(6) is the contravention of Sub-section (3) of Section 77. The learned counsel argued that the Legislature has not mentioned Sub-section (3) of Section 77 in Sub-section (6) of Section 123.
It is true that the Legislature has mentioned the entire Section 77, but it has also said what type of contravention of the terms of Section 77 would be a corrupt practice under Sub-section (6) of Section 123, which is the incurring or authorising an expenditure in contravention of Section 77.
There is no proof in the present case that the amount of expenditure really incurred by the appellant exceeded the prescribed limit of Rs. 9,000/-. We thus think that the irregularity does not fall under Section 123(6) of the Act at all. A Bench of this Court took the same view in the case of First Appeal No. 24 of 1958, D/- 16-4-1958 (All) and we agree with that view. This issue is also, therefore, decided against the respondent.
71. No other point was urged before us, and, in view of our decision on the different issues argued, this appeal must succeed.
72. We accordingly allow the appeal, set asidethe order of the Election Tribunal declaring the election of the appellant to be void and dismiss the election petition with costs in both the Courts, The costsof hearing before the Election Tribunal will be thesum of Rs. 350/- as held by that Court, and the costof hearing this appeal will be Rs. 500/- on accountof counsel's fee, in addition to the other expenditureincurred in printing and other incidental proceeding.The appellant will get the costs of both the Courtsfrom the respondent.