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Bhagirath Bilgaiya Vs. Rishabh Kumar and ors. - Court Judgment

LegalCrystal Citation
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 38 of 1963
Reported inAIR1964MP1; 1963MPLJ867
ActsRepresentation of the People Act, 1951 - Sections 77, 83(1), 123(3), 123(3A) and 123(4); Code of Civil Procedure (CPC) , 1908 - Order 12, Rule 4
AppellantBhagirath Bilgaiya
RespondentRishabh Kumar and ors.
Appellant AdvocateG.P. Singh and ;L.S. Baghel, Advs.
Respondent AdvocateB.L. Seth, Adv. for Respondent No. 1
DispositionAppeal dismissed
Cases ReferredK. C. Sharma v. Rishabh Kumar
- - being disgruntled, they left it and became his strong opponents. d cusa**the offensive portion of the other cyclostyled pamphlet (ex. ls nqvdkjk ik ldsa**in the former, it is complained that sanatan dharma is being attacked by jains time and again; meanwhile, ramgulam choube and brijkishore pateria, who had unsuccessfully applied for congress ticket, sent their resignation on or about february 10, 1962. eventually, brijkishore pateria became the election agent of bhagirath. when he failed: 25) also admits in cross-examination that he is on bad terms with the petitioner ever since 1957. in the election of 1962, he applied for a congress ticket, but did not get it. during the progress of the trial, the appellant again made an application on 10-1-1963, complaining that he would be.....shiv dayal, j.1. this is an appeal under section 116a of the representation of the people act, 1951.2. in the general elections of 1962, bhagirati: bilgaiya was returned to the m. p. legislative assembly from bina constituency. rishabh kumar, who was a rival candidate filed an election petition. the petitioner's case was that formerly bhagirath (appellant), ramgulam choubey and brijkishore pateria were members of the congress. being disgruntled, they left it and became his strong opponents. in order to bring about his defeat in the election, they joined hands. they issued cyclostyled pamphlets containing an appeal not to vote for a jain but to vote for a sanatan dharmi hindu and also containing material calculated to promote feelings of hatres between jains and sanatani hindus. they also.....

Shiv Dayal, J.

1. This is an appeal under Section 116A of the Representation of the People Act, 1951.

2. In the general elections of 1962, Bhagirati: Bilgaiya was returned to the M. P. Legislative Assembly from Bina constituency. Rishabh Kumar, who was a rival candidate filed an election petition. The petitioner's case was that formerly Bhagirath (appellant), Ramgulam Choubey and Brijkishore Pateria were members of the Congress. Being disgruntled, they left it and became his strong opponents. In order to bring about his defeat in the election, they joined hands. They issued cyclostyled pamphlets containing an appeal not to vote for a Jain but to vote for a Sanatan Dharmi Hindu and also containing material calculated to promote feelings of hatreS between Jains and Sanatani Hindus. They also got printed' in a newspaper, the joint resignation of Ramgulam, Brijkishore and another which contained false statements In relation to Rishabh Kumar's personal character. The election was challenged on the grounds of bribery, undue influence, appeal to vote on the ground of religion of community, promotion or attempt to promote feelings of enmity or hatred between Hindus and Jains on the ground of religion or community; publication of false statements in relation to the personal character of Rishabh Kumar; hiring and procuring vehicles for the conveyance of electors; and incurring or authorising expenditure in excess of the statutory limit--corrupt practices under Section 123, Sub-sections (IA), (3), (3A), 4, 5 and 6 of the Representation of the People Act, 1951, (hereinafter called the Act). The petition was resisted by the returned candidate, Bhagirath.

3. The learned District Judge, Sagar, who was constituted the Election Tribunal, found that the returned candidate was guilty of corrupt practices tinder Sub-sec lions (3), (3A), 4 and 6, and consequently declared his election void. Bhagirath filed this appeal. Rishabh Kumar, respondent 1 (petitioner), filed cross-objections.

4. The questions canvassed before us are:

(i) Whether there was an appeal by the appellant, cr with his consent, to vote on the ground of religion or community and also to promote or attempt to promote feelings of hatred between Jains and Sanatan Dharmi Hindus within the meaning of Sub-sections (3) and (3A);

(ii) Whether there was publication by the appellant, or with his consent, of false statements in relation to Rishabh Kumar's personal character or conduct within the meaning of Sub-section (4): and

(iii) Whether the expenditure incurred or authorised by the appellant exceeded Rs. 7,000/-.

5. Regarding the first question, the Tribunal has found that the appellant committed the corrupt practices by means of two cyclostyled pamphlets (Exs, P-14 and P-28) containing an appeal to refrain from voting for Rishabh Kumar because he is a Jain and to vote for Bhagirath who is a Sanatan Dharmi Hindu. The impugned pamphlet (Ex. P-28) runs thus:

^^Hkkb;ksa] vkt le; vk x;k gS fd gesavius /keZ dh j{kk dk chM+k mBkuk iM+ jgk gSA gekjs lukru /keZ ij tSfu;ksa }kjkckj&ckj; vke.k fd;k tk jgk gSA jryke esa tSfu;ksa us ,d eafnj ls f'kfyaxgVok fn;kA tcyiwj esa jke vkSj lhrk ds lEcU/k esa , vkifktud iqLrd NiokbZAtSuh ukfLrd gksrs gS bl dkj.k gekjs lukru /keZ dks feVkus ds fy;s vc ;s yksxdkaxszl ds tfj;s lkk gfFk;kuk pkgrs gSa vkSj blds fy, prqosZanhth tSls lukru /keksZdks gjkdj ewypan ns'kygjk tSuh dkaxszl dk izkUrk/;{k cuk cSBk gSA r[krey tSu]feJhyky xaxkoky] n'kjFk tSu Hkh 'kklu ij gkoh gSA vkSj bUgha yksxksa us 'kM+;a=jp dj chuk ls ,d djksMirh tSuh lsB _'kHk dqekj dks yknus dk bjknk dj mlsdkaxszl dk fVdV fnyok;k gSA ;fn vki vius /keZ dh j{kk djuk pkgrs gSa rks /keZ dhnhid Nki isVh ij eqgj yxkdj tSuh lsB _'kHk dqekj [kqjbZ dks gjkusesa lgk;d cusA**

The offensive portion of the other cyclostyled pamphlet (ex. p-14) read thus:

^^------------- brus ij Hkh gekjs ij gfjtuksavkSj eSfu;ksa dks yknuk pkgrh gSA viuh rglhy esa dqy 5000 eqV~Bh Hkj tSuhMs<+ yk[k lukru /keksZa ij 'kklu djuk pkgrs gSaA ,slh lwjr esa vc gesa bl jkT;dks cnyuk gSA bl lc eqlhcrksa ls eqDr gksus vkSj vius lukru /keZ dh j{kk ds fy,vis {ks= ls HkkxhjFk fcyxs;k dks [kM+k fd;k gSA vki yksx vius eafnjksa o eBksaesa ;K djk;s] jke /kqu yxk;s vkSj yksxksa dks Hkxoku ds lkeus nhid ij lhy yxkusdks rS;kj djsa rkfd ge bl lR;kuk'kh jkT; ls NqVdkjk ik ldsA**

In the former, it is complained that Sanatan Dharma is being attacked by Jains time and again; the Jains removed a Shiviinga from a temple at Ratlam; in Jabalpur they published an objectionable booklet on Ram and Sita; Jains are atheist and are bent upon abolishing Sanatan Dharma through the Congress by entering the Government. In the latter, the imputation is that a handful of Jains want to rule one and a half lacs of Sanatan Dharmis; for the protection of Sanatan Dharma, Bhagirath has been set up as a candidate.

6. When a statement is issued to enlist support for one candidate against another and which is alleged to constitute a corrupt practice, its meaning as also its impression and impact on the mind of the reader must be gathered by reference to the setting of facts and the background which then existed. In the earlier election of 1957, Rishabh Kumar (petitioner) was returned to the Assembly from the same constituency on the Congress ticket. He got the Congress ticket in spite of Bhagirath's opposition in the Congress circle. When Rishabh Kumar's name was again being considered for being given a Congress ticket for the election of 1962, Bhagirath again opposed his application. He even went higher up to Bhopal and then to Delhi, but did not succeed in getting Congress ticket for himself. He left the Congress on or about November 22, 1961. He was then set up by the Jan Sangh to contest the election against Rishabh Kumar. Meanwhile, Ramgulam Choube and Brijkishore Pateria, who had unsuccessfully applied for Congress ticket, sent their resignation on or about February 10, 1962. Eventually, Brijkishore Pateria became the election agent of Bhagirath. Rishabh Kumar is a Jain; Bhagirath is a Sanatan Dharmi Hindu. The appellant (R. W. 28) admits that he was a member of the Congress party till November 22, 1961. On both the occasions, that is, in 1957 and 1961, he opposed Rishabh Kumar's. application for being a Congress nominee. He opposed him at Bhopal and then at Delhi also. When he failed: and the petitioner got the Congress ticket, he resigned from the Congress. Then he was approached by the Jan Sangh party to stand as its candidate to which he eventually agreed. Ramgulam (R. W. 25) also admits in cross-examination that he is on bad terms with the petitioner ever since 1957. In the election of 1962, he applied for a Congress ticket, but did not get it. Brijkishore (R. W. 11) admits that ever since 1957 there is a political friction between him and the petitioner. Ramgulam and Brijkishore admit to have resigned from the Congress.

7. In the present case Rishabh Kumar, a Jain was set up by the Congress and his rival candidate Bhagirath, a Sanatan Dharmi Hindu, was set up by the Jansangh Party. There can be no doubt that in each of these pamphlets there was an appeal to the voters on the ground of religion or community. Hindu voters were entreated to vote in favour of Sanatan Dharmi candidate (Bhagirath) and not to vote for a Jain (Rishabh Kumar). This was undoubtedly a corrupt practice. It must be held that

(1) Where one of the contestants is a Jain and another a Sanatan Dharmi Hindu, a cry that Sanatan Dharm is in danger at the hands of Jains, that a Sanatan Dharmi has, therefore, been set up against a Jain, and that votes should be cast in his favour to save Sanatan Dharma, is an appeal on the ground of religion or community within the meaning of Section 123(3) of the Act. (2) To tell Hindu voters that the Jains removed a Shiv Linga or that they published a booklet derogatory to the esteem in which Ram and Seeta are held is provocative and It attempts to promote feelings of hatred or enmity between Jains and Sanatani Hindus, so that the corrupt practice also fell within the purview of Sub-section (3-A). in fact, Shri G. P. Singh, with his usual fairness, did not dispute this position. His only contention is that these pamphlets were not distributed at all; alternatively, even if distributed, they were not distributed by the appellant or by any of his workers with his consent.

8-16. The petitioner adduced evidence to prove that these pamphlets were distributed by the appellant at Bina, Malthone, Gulauwa and Sanai. We would first deal with the evidence about distribution of these pamphlets at Bina. The appellant denied in his statement to have addressed any meeting at any place at any time, except two meetings at Bina which were held on the 19th and the 23rd February. He denied having distributed any of these pamphlets either by himself or by any of his workers. (After discussion of evidence with regard to the distribution of pamphlets His Lordship proceeded.)

17. At this juncture we must consider the appellant's objection about the particulars strenuously pressed before us more than once. Objection was taken in the written statement that full particulars had not been supplied as required by the law. The appellant, by his application dated 8-9-1962, prayed that certain paragraphs of certain schedules be struck off for want of particulars. In his reply dated 17-9-1962, the petitioner while trying to explain how the particulars already supplied were drawn up, resisted the application for striking off any part of his pleadings and invited the attention of the Tribunal to the procedure to be followed as laid down in Balwan Singh v. Lakshmi Narain, AIR 1960 SC 770 : (22 ELR 273), but the Tribunal dismissed the appellant's application saying 'whether or not the particulars which respondent No. 1 expects the petitioner to give in these paragraphs are necessary or not, is a matter which will be decided when the time comes. No decision on that point is necessary at this stage.' Accordingly, he dismissed the appellant's application dated 8-9-1962. In our opinion, this order of the, Tribunal was erroneous. It is a first duly of an Election Tribunal, before issues are framed, to carefully examine the disputed allegations of corrupt practice and to see, side by side, the particulars supplied by 'the petitioner for each one of such allegations. If it finds that they are not as full as required by Section 83(1)(b) of the Act, it must readily record a finding to that effect and give an opportunity to the petitioner to amend the particulars. It is wrong for the Tribunal to leave the matter to the parties and proceed with the trial of those allegations. And it is all the more so when a respondent complains of insufficiency of the particulars. This imperative duty has been pronounced by their Lordships in Balwan Singh's case, AIR 1960 SC 770 (supra). If he had followed the procedure expounded in that case, he' would have decided the question of sufficiency or otherwise of the particulars at the earliest opportunity. During the progress of the trial, the appellant again made an application on 10-1-1963, complaining that he would be prejudiced if better particulars were not supplied. It was then that the Tribunal applied its mind to the question and held that no particulars had been furnished about 'speeches' and that the particulars relating to the distribution of the pamphlets were vague for want of details as to the persons who distributed the pamphlets and as to its time and place. The petitioner was given a day's time to make an application to amend the particulars as regards tlie distribution of the pamphlets. The petitioner complied with this order and applied for leave to amend the particulars of schedule B to the petition. This was allowed. It is significantly remarkable that the petitioner had already filed his list of witnesses as back as on 1-12-62; in fact 10 witnesses had been examined by him before the order dated January 11, 1963, was passed. It is, therefore, not possible to hold that the petitioner produced these witnesses as an afterthought. It is worthy of particular note that the appellant never objected when a witness was asked about such distribution not mentioned in the amended list of particulars. As soon as a witness was asked about such an incident the appellant could and should have promptly objected on the ground that it was not specified in the particulars. He suffered that evidence to be let in; and he cross-examined the witness. What is more, the appellant produced rebuttal evidence to his heart's content on all the matters whether included in the amended particulars or not. For instance, he led evidence to prove that no pamphlets were distributed in the meetings held by him on the 23rd February in spite of the fact that the amended particulars did not mention any meeting having been held at Bina on the 23rd February. Evidence was led about that meeting by both the parties. The appellant endeavoured to rebut the evidence of Ved Prakash (P.W. 25) about private distribution of the pamphlets. It cannot, therefore, be said that there was any prejudice caused to the appellant. Undoubted law is that (1) it is the right of the respondent to insist upon the petitioner furnishing particulars about corrupt practices because it is of paramount importance in the trial of an election petition. (2) But if he goes to trial without full particulars having been supplied, suffers evidence to go in, cross-examines the witness and lead evidence in rebuttal with regard to the corrupt practices alleged, he cannot subsequently be- allowed to make a grievance that the evidence be ignored or disbelieved just for that reason. (3) Material prejudice has to be shown before the judgment of the Tribunal can be; set aside on that ground. In Balwan's case, AIR 1960 SC 770 (supra), their Lordships have laid down that the defect is of procedure; there is no want of jurisdiction of the Tribunal to adjudicate upon a plea in the absence of particulars. Another argument for the appellant was that in the amended particulars it was not mentioned that Bhagirath himself distributed any pamphlet. This is not correct. In the amended particulars filed on January 11, 1963, the second column contains tha names of the persons who distributed the -pamphlets. The first name is of Brijkishore Pateria; the second of Bhagirath Bilgaiya; and the third, of Ramgulam Choube. Then there is a serpentine bracket against these three names, and at the middle point of that bracket is written 'jointly distributed'. The last two columns specify the dates and places respectively. The only meaning is that all the three jointly distributed the pamphlets at those places on those dates. The objection is, then, misconceived and without substance. Bhagirath states in his examination-in-chief that he did not distribute such pamphlets as Ex. P-14 or Ex. P-28, nor the Nirala in any of the two meetings which he admitted were held at Bina on the 19th and the 23rd February. He further says that to his knowledge such pamphlets and papers were not distributed by any of his workers. He denied that any meeting was held by him at Malthone. No objection was raised when evidence had been led to show that Bhagfrath himself distributed the pamphlets (e.g. Lallusingh P.W. 19 and Parmanand P.W. 16). It is quite clear that the appellant went to trial knowing full well not only the accusation but also the particulars in so far as he himself was concerned. He produted rebuttal evidence about it. Thus, at any rate, there was no prejudice whatever. All this apart, there is no infirmity at all so far as the evidence of Lallu Singh P.W. 19 and Parmanand P.W. 16 in relation to the distribution of Ex. P-14 at Bina Bajaria and Malthone . is concerned. The dates and places stated by them are in conformity with the amended particulars filed on January 11, 1963.

18-20. (After discussion of evidence His Lordship concluded :) The above discussion leads us to these conclusions :

(1) Cyclostyled pamphlets (specimen Ex. P-14) were distributed by Bhagirath himself and by his workers with his consent at Bina and Malthone on the 19th and 23rd February respectively when meetings were held at those places. (2) Even if distribution of any of these pamphlets at any of the meetings held at any of these places is proved, the election is vitiated. (3) Cyclostyled pamphlets (Exs. P-14 and P-28) were given by the appellant to Ved Prakash at Gulauwa on the 19th February. (4) We discard the appellant's evidence as incredible, and unreliable, (5) We see no reason to differ from the ultimate opinion reached by the Tribunal which deserves great weight.

21. Turning now to the second question, the Publication of False Statements against the petitioner, let it be said at the outset that the Nirala was a propaganda paper and was but 'seasonal'. It was published from 11-12-61 to 17-4-1962, from Khurai, an adjoining constituency. A number of issues of this paper are on the record. It is certain that this paper disparaged the petitioner and the Congress party, while it strongly canvassed for the appellant and other members of the Jan Sangh party. This Is clear from its captions; for instance, 'Ab Deepak Chamkaa Bail Bichak Gaye Bine Men.' (The bullocks in Bina are strayed because of the glare of the lighted lamp - Bullocks and lamp represented the election symbols of the Congress and the Jan Sangh respectively). 'Bhrastachar Aur Atya-char Men Congressee Angrezon Se Bhi Bazy Maar Gaye' (The Congress, has outrun the Britishers in corruption and tyranny.) 'Pakhandi Poonji Patiyon Ke Baiion Ko Khaded Do, Deepak Jalao Congress Ki Sadi Laash Ko jaldi Gahrl pafnaao.' (The bullocks of the hypocritic capitalists be driven away; the lamp be lighted; the putrefying carcass of the Congress should be buried deep and without delay). 'Nij Aadarshon Ko De Talaaq, Ban Baithi Shrimantoh Ke Rakhel.' (Having divorced its principles, (Congress) has become the mistress of the capitalists). In some of the issues the appellant's photo was printed.

22. In its issue of February 19, 1962, appeared in the Nirala the text of the joint resignation given by Ramgulam and Brajkishore from the Congress. The resignation says that it is in protest against congress ticket having, been given to Rishabh Kumar and it catalogues 15 allegations against him, some relate to his personal character, others to his political or public conduct. Ramgulam and Brijkishore admit that they gave the resignation Ex.' P-45 and it bears their signature, The publication in the Nirala (Ex. P-42) substantially tallies with Ex. P-45. The petitioner took exception to some of them as relating to his persona! character and as being false. The substance of the impugned statements (when rendered into English) reads thus:

(1) After being elected an M.L.A., Rishabh Kumar founded a sham institution called 'Sonabai widows' Ashram' with all his brothers and wife as members.

(2) By defrauding the Government, he got 300 acres, of land worth about 4 lacs for the said institution. The Collector had refused to grant land before he became an M. L. A.

(3) After being elected an M.L.A. he did not put any proposal in the Assembly, nor did he keep contact with the people, while he took about Rs. 50,000/- as travelling allowance, the highest claimed by an M.L.A,

(4) And this has been subject of great criticism in newspapers.

(5) Exerting his influence, he sold at Rs. 500/- per acre his useless land, hardly worth Rs. 50/- per acre, to the Government to be utilised for agriculture farm.

(6) Exerting his pressure on Block Officers, he sold thousands of maunds of inferior wheat to the Government at high rates.

(7) By exerting his influence on officers he got a road, electricity and telephone upto his farm.

(8) He took from the Government several plots of land worth lacs of rupees.

Rishabh Kumar (P.W. 36) examined himself to prove the falsity of these allegations. He says that 'Sonabai Vishwakarama' was established in 1925 when he was only of two years. He made a gift of 300 acres of land in 1948-43, He did not sell any land to any agricultural farm, nor was there any agricultural farm at Khurai. He did not exert any pressure on block officers to purchase his wheat at a higher rate; he sold his wheat to the Government at the prevailing rate. He constructed a road from the railway crossing to his farm at his own expense (corroborated by Kishan Singh, P.W. 24) and gifted it to the Janpad Sabha in 1951. He did not purchase a single inch of land from the State during the tenure of his Assembly membership. Rishabh Kumar's denial on oath sufficiently discharges the initial burden on him. It was then for the appellant to prove that the statements made in the resignation were not false to his belief or that he believed them to be true. This is because the law attaches the ordinary presumption of innocence in favour of a person against whom the allegation concerning his personal character or conduct is made. Mr. Justice Mudholkar (as he then was) said in Bhim Rao v. Ankush Rao, 22 ELR 385 (Bom) .

'Just as a person who is standing his trial for an offence before a Court of law is presumed to be innocent unless he is shown to be guilty, similarly, in our opinion, when a person's character is assailed, he must be presumed to be. of a good character unless and until it is proved that he is of a bad character. No doubt the section is so worded that the petitioner in the election petition must show that the allegations made against him were false, but that provision is a general provision. Where the allegation concerns the character of a person, the ordinary presumption of law must prevail. If that be the correct legal position, the burden would be upon the person who has made defamatory allegations concerning the character of another to prove that they are true.'

This dictum has been followed by this Court in Mohansingh v. Banwarilal, 1963 MPLJ 498. We respectfully concur. No evidence was produced by the appellant to show that the Sonabai Widows' Asylum was founded after the petitioner became an M. L. A., or to prove the truth of any other statement impugned. Ramgulam (R.W. 25) is the only witness produced by the appellant about the allegations in the resignation. He cut a poor figure. His statement is shaky and he pretends to have made in the resignation most of those statements on information as received from some clerks. No such clerk or official record was produ'ced. He admits that he does not know whether the said Widows' Asylum has been in existence since 1924, or that it was established by Mohanlal or that Mohanlal donated 700 acres of land to that asylum. He does not know whether the road beyond municipal limits upto the farm was constructed by Rishabh Kumar at his own cost.

23. The Tribunal has closely scrutinised the questioned statements and the evidence adduced in respect of them. It has reached the conclusion that all of them, except No. 4 and 8, were false. In fact the appellant's learned counsel did not seriously challenge this finding. In our judgment, the Tribunal is right in its conclusion: It will be supererogatory to travel the premises covered by it and repeat the same reasons which we find to be correct and sound.

24. The question is whether the statements condemnatory of the petitioner fall within the mischief of Section 123(4) of the Act being in relation to his personal character or conduct. The criticism that he did not put any proposal in the Assembly for the benefit of his constituency, nor did he maintain any contact with the people, relate to his public character and as much it is outside the purview of the statute. In Inder Lal v. Lal Singh, AIR 1962 SC 1156, their Lordships have laid down the distinction between 'private' character of a candidate and his 'public or political' character. The statute makes a broad distinction between the two, although 'a sharp and clear cut dividing line cannot be drawn to distinguish one from the other'. If a statement affects 'the man beneath the politician it touches his private character. If it affects the 'politician' it does not touch his private character. But there may be cases on the border line, where the false statement may affect both the politician and the man beneath the politician and it is precisely in dealing with the cases on the border line that difficulties are experienced in determining whether the impugned false statement constitutes a corrupt practice or not. A working line has to be drawn to distinguish private character from public character........... In some cases, a false statement may affect the private and the public character as well. 'An impugned statement is not to be read in vacue but has to be read with the setting of facts and existing background in view. It was observed in Cassidy v. Daily Mirror Newspapers Ltd., 1929 All ER 117:

'A person is liable for the reasonable inferences to be drawn from the words used, whether he foresaw them or not, and if he scatters two-edged and ambiguous statements broadcast without knowing or making enquiry about facts material to the statement he makes, and the inferences which may be drawn from them, he must be liable to persons who, knowing these facts, draw reasonable inferences from the words he publishes.'

The House of Lords observed in Tollev v. J. S. Fry and Sons. Ltd., 1931 All ER 131 :

'That which was prima facie innocent might become capable of a defamatory meaning by reason of the circumstances surrounding its publication.'

When we scrutinise the statements which we have foundto be false, it is quite clear to us that (1) the insinuation that 3 person has set up a factitious and sham institution with a view to defraud others has undoubtedly reference to his personal character. For instance, 'widows' Asylum' is a private institution; its creation after the petitioner became an M. L. A, does not convert it into a matter of political character. (2) To accuse a person of cheating the Government or officers for personal gains, undoubtedly casts a reflection on his personal character. The mere fact that he was an M. L. A, when he committed cheating does not divert it so as to be called something pertaining to his politital character. Cheating is not a political activity. (3) To say that because of the political position a certain locality has been better developed by the Government does not bear any adverse impact on the mind of the reader in respect of the personal character of the person. (4) The accusation against a person that after being elected an M. L. A. he did not put up any proposal in the Assembly, nor did he keep a contact with the people, although he took travelling allowance, has reference to his political character as contra-distinguished from his personal character. Thus, there is no shred of doubt that in the present case, at. least some of the false imputations enumerated above relate to Rishabh Kumar's personal character. For instance, founding a factitious institution or society; and obtaining various kinds of. gains by cheating the Government or the officers. They offend against Section 123(4) of the Act This could not be seriously disputed by the appellant.

25-25-A. The appellant's real attack is on the finding that the resignation containing these false statements was published by him or with his consent. It is strenuously argued for him that the petitioner could not prove this; even if Ramgulam and Brijkishore got their resignation published in the Nirala, there is no evidence that the publication was by or with the consent of Bhagiratn. We are unable to accept this argument. Indeed, Balram, the Editor, or Bhaiyalal, in whose press the Nirala was being printed, does not say that Bhagirath himself contacted him in that connection, and there is no direct evidence about it. But the attending circumstances lead us to unhesistatingly concur with the Tribunal in its finding. (After discussion of evidence on this point, His Lordship proceeded.).

26. The conclusion is that at least some of the statements in relation to the personal character of Rishabh Kumar, contained in the resignation, were false to the knowledge of the appellant, or at least he did not believe them to be true. They were got published in the Nirala Newspaper (Ex. P-42J by or with the consent of the appellant. They were also published by the appellant, and by his workers with his consent, by distribution of that paper on the eve of the poll so that it was calculated to prejudice the prospects of Rishabh Kumar's election.

27. It is a celebrated rule that although the election of a successful candidate is not to be lightly inter-. fered with, it is of paramount importance that the purity of election must not be allowed to be sullied and no one can be allowed to get elected by corrupt practices or flagrant breaches of the law. See Jagannath v. Jaswant Singh, 9 ELR 231 at p. 234 : (AIR 1954 SC 210 at p. 212), Sreeniwasan v. Election Tribunal, 11 ELR 278 at p. 293 (Mad), and Kamaraja Nadar v. Kunju Thevar, 14 ELR 270 at p. 283 : (AIR 1958 SC 687 at p. 693J. to the present case, the election process was soiled and polluted, for which the appellant was guilty.

28. This brings us to the question of Election Expenses. The Tribunal has found against the appellant that he did not include in the return of his election expenses a sum of Rs. 1000/- which he paid as hire charges for a Jeep, and some items of the price of petrol and engine oil consumed in his own vehicle and in the vehicles No. 2388, 5579, 53 and 5552 (per schedules II to VII appended to its judgment). According to its calculation, the items omitted amount to Rs. 2163-80 np. The r.p-pellant showed in his return of expenses a total amount of Rs. 5783-37 np., out of which a sum of Rs. 250/-on account of security and another sum of Rs. 370/- on account of telephone installation have been deducted, leaving the balance of Rs. 5278-37 np. The Tribunal has, therefore, held that the appellant incurred expenditure in contravention of Section 77 (the permitted maximum being Rs. 7000/-.

29. The return of election expenses filed by the appellant does not show that he spent anything on anybody else's vehicle after the 8th February. Shri Seth took us through the evidence of a number of witnesses in support of his contention that the appellant did employ some vehicles owned by others in his election campaign even after the 8th February. In our opinion, the petitioner has 'successfulfy proved this, This is also in consonance with the natural probability that the tempo of the election campaign went on increasing as the date of poll approached nearer. To say that the appellant used several vehicles of his supporters or sympathisers upto the 8th, but not thereafter, is not believable off its face. But, at the sam& time there is no justification for jumping to the conclusion that whatever petrol was consumed by those vehicles during the election days was necessarily for the election campaign. Unless proved by affirmative evidence, it cannot be assumed that a person who lends his transport to a candidate ceases to use it himself during those days. Moreover, unless it is proved that a particular expenditure was incurred by the appellant or was authorised by him to be so incurred, it cannot be said that it should have been included in the return. Where a friend of a candidate lends his car or other vehicle to be used, it is not necessary for the candidate to Include in his election expenses the entire cost of the petrol which the owner purchased unless it is shown that the petrol was purchased by the candidate. There is no law that a candidate is required to include in his return money spent by a person interested in him to, help him in his election. It has to be proved that such expenses were incurred or authorised by the candidate. We have, therefore, to scrutinise the disputed items.

30-33. (His Lordship then discussed the evidence with regard to certain items and proceeded). On the above findings, the following items must be added to the said sum of Rs. 5278-37 nP. : Rs. 1,000/- as hire charges for Autarsingh's Jeep; Rs. 247-58 np. under Schedule II; Rs. 295-32 nP. under Schedule III; and Rs. 70-98 nP. under Schedule VI. This produces a total of Rs. 6,892-25 np. Thus, in our opinion, the petitioner has not proved that the election expenses of the returned candidate exceeded Rs. 7,000/-, the permitted maximum. On the third question, we set aside the finding of the Tribunal,

34. In view of our decision on the first two questions, the appellant's election must be avoided,

35. Cross-Objections filed by the petitioner remain to be considered. (1) The petitioner sought to prove by Ex. P-2-A that the appellant offered a bribe of Rs, 5,000/-to Mahendra Kumar, respondent 2, for his withdrawal from the election and that a sum of Rs. 3,000/- he actually paid. The Tribunal has found this letter [Ex. P-2-A) as not proved and has decided the issue against the petitioner. We find ourselves in entire agreement with it in the reasons it has recorded and the conclusion it has reached.

(2) The allegation of publication of false statements was also sought to be proved by a pamphlet (Ex. P-17) which reads thus:

yks pquko dk fcxqy ct x;k I;knksa dh cjkr pyiMhA dkaxszl dh cSy Nki ys tj[kksa dh tekr py iMh turk dh vka[kksa esa ?kwy >ksdusokykssa ls lko/kku&&

ck vnc ck eqykfgtk gksf'k;kj

JheUr lk- dh lokjh vk jgh gSA fdjk;s dsVsDVkjksa vkSj tj [kjhn xqykeks ds lkFk iwjs ikap lky ckn viuh vdeZ.;krk vkSjfu';rk ds ckotwn Hkh ,d ckj fQj viuh frtkMh dk eqg [kksydj dkaxszl ds dU/kksijyns gq;s Jh usg: th ds uke dh nqgkbZ nsrs gq;s [kqjbZ ls vkids ikl oksV ekaxusvk jgs gSA**

Shri Seth has confined his argument to the expression'Tijori Ka Munh Khol Kar.' It is urged that the innuendoagainst the petitioner was that he offered illegal gratification to electors and purchased votes. In our opinion, thatis not necessarily the meaning of that expression. Itcan reasonably be read as to mean that the petitionerwas going to spend lavishly. The Tribunal has rightlyheld that this by itself did not amount to 3 corruptpractice. j

(3) It is urged that Ex. P-29 was also an appeal on ground of religion and further it attempted to promote feelings of hatred against the Congress. Emphasis is laid on two statements contained in this pamphlet. Following the decision of this Court in K. C. Sharma v. Rishabh Kumar, AIR 1960 Madh-Pra 27, the Tribunal has held that an appeal to vote a candidate to protect the 'mother cow' is not an appeal on the ground of religion. There is no force in Shri Seth's further argument that the contemputuous reference to a top-ranking leader of a political party is an attempt to promote haired between two classes of society, that is, between those who belong to that political party and those who do not.

(4) The fourth grievance is that the Tribunal was wrong in not allowing the petitioner to prove his allegation that corrupt practices under sub-sees. (3) and (3-A) were also committed by speeches delivered in certain meetings convened by the appellant and in striking off the word 'speeches' from issue 8 (a). What we find is that the petitioner did not supply particulars, that is, date, time and place where such speeches were delivered. The amended particulars which were filed on January II, 1963, were also confined to the distribution of the pamphlets. In the absence of particulars having been furnished, we see no error in the amendment of issue 8(a). All this aside, the appellant never applied to Tribunal for leave to amend his particulars as regards speeches, nor did he object to the issue being amended in that manner. If the petitioner wanted to amend the particulars or to submit that on the pleadings as they existed, he was entitled to prove corrupt practices having been committed by the speeches, the Tribunal would have considered his request to reinstate the issue in the original form. At any rate, today this has become inconsequential. When we are dismissing the appeal, there is no point in pursuing this objection.

(5) Lastly, it is urged that the Tribunal erred in not allowing the petitioner costs ot proving the letter dated 14-2-1962 (Ex. P-2-A), The petitioner had to arrange for getting it photographed and he examined Shri Bhangey, handwriting expert, to prove the appellant's signature on that document. It is true that notice was given by the petitioner to the appellant to admit his signature on the letter [Ex. P-2-A). The appellant did not admit his signature. In his written statement he admitted this document as forged. The Tribunal has found the document to be not proved. We have concurred in that finding. Order 12, Rule 4, Civil Procedure Code, no doubt enacts that in case a party refused or neglects to admit a document after service of the notice provided in that Rule, the costs of proving such fact or facts shall be paid by the party so refusing or neglecting irrespective of the result o'f the suit. Notwithstanding that directions, the Rule preserves the discretion of the Court to disallow such costs. Such discretion, in our opinion, is to be exercised, as any other discretion, judicially. Having regard to the circumstances surrounding Ex. P-2-A and the discussion about it contained in the Tribunal's judgment, we see no reason to disturb the discretionary order passed by the Tribunal in respect of casts. No other point was urged.

36. In the result, the appeal and the cross-objections are both dismissed. The Tribunal's order declaring Bhagirath's election as void is upheld. Its order as to costs is maintained. Having regard to the circumstances cf the case, parties are left to bear their own costs in this Court.

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