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Khilumal Topandas Vs. Arjundas Tulsidas - Court Judgment

LegalCrystal Citation
SubjectMedia and Communication;Election
CourtRajasthan High Court
Decided On
Case NumberElection Appeal No. 43 of 1958
Judge
Reported inAIR1959Raj280
ActsRepresentation of the People Act, 1951 - Sections 123, 123(3) and 123(4); Code of Civil Procedure (CPC) , 1908; Evidence Act, 1872 - Sections 63 and 81; Press and Registration of Books Act, 1867 - Sections 7
AppellantKhilumal Topandas
RespondentArjundas Tulsidas
DispositionAppeal dismissed
Cases ReferredRobertson v. Day
Excerpt:
media and communication - corrupt practices - election petition challenging it - whether circulation of pamphlets appealing to members of purusharthi panchayat to vote should be deemed to be corrupt practice under section 123(3) - community does not mean communal and means body formed or organized or has come into existence on basis of caste, race and religion -members of this panchayat was not organization organized on basis of caste, religion, or community - hence, appeal by candidate to this panchayat does not satisfy requirement under section 123 (3) so as to make it corrupt practice - election petition dismissed. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir &.....bhandari, j. 1. this is an appeal under section 166a of the representation of the people act (hereinafter called the act) by shri khilumal topandas whose electionpetition has been dimissed by the election tribunal, ajmer- on the 10th of september, 1967. the petitionrelates to the ajmer cily west constituency of the rajasthan assembly. the insult of the election was declared on the 9th of march, 1957 and shri arjundas tulsidas respondent was declared elected. the appellant is an elector in that constituency. he presented an election petition before the election commission.the trial of the petition took place before shri kishan lul dhabai, member of the election tribunal, ajmer, the election was challenged on various grounds but in this appeal the learned counsel for the appellant frankly.....
Judgment:

Bhandari, J.

1. This is an appeal under Section 166A of the Representation of the People Act (hereinafter called the Act) by Shri Khilumal Topandas whose electionpetition has been dimissed by the election Tribunal, Ajmer- on the 10th of September, 1967. The petitionrelates to the Ajmer Cily west Constituency of the Rajasthan Assembly. The insult of the election was declared on the 9th of March, 1957 and Shri Arjundas Tulsidas respondent was declared elected. The appellant is an elector in that constituency. He presented an election petition before the Election Commission.

The trial of the petition took place before Shri Kishan Lul Dhabai, Member of the Election Tribunal, Ajmer, The election was challenged on various grounds but in this appeal the learned counsel for the appellant frankly conceded that he confined his case to the corrupt practices which fell within the definition of Sub-sections 3 and 4 of Section 123 of the Act. In that elcction Dr. Pohumal was the candidate on behalf of the Congress party. Shri Kishen Gurnani was an independent candidate but he withdrew from the contest before the election. The particulars relating to the corrupt practices alleged to have been committed under Section 123(3) are given in paragraphs 10, 11 and 12 of the election petition, while the particulars about the corrupt practices alleged to have been committed under Section 123(4) are given in paragraphs 4 to 9 of the petition.

2. So far as the corrupt practices under Section 123(3) are concerned, learned counsel for the appellant confined his arguments before us to the documents Exs. 2, 3, 4, and 9 to 14, all in the Sindhi language & it was urged that the publication of these by the respondent or his agents or his party amounted to a systematic appeal to the Sindhies in that constituency to vote in favour of the respondent on the ground of community. It was urged that soon before or after the partition of India in 1947 a large number of residents of Sind who were known as Sindhies migrated to Ajmer City and they formed the Sindhi Community. The respondent or his agents systematically appealed to the Sindhies to vote in favour of the respondent who was himself a Sindhi by publication of the aforesaid documents.

3. Ex. 2 is a pamphlet under the signature of the respondent. It is published in the Hindu Printing Press, Ajmer. Ex. 3 is a pamphlet purporting to be issued by one Shri Hiranand and published in Qurbani Press, Diggi Chowk, Palaza Road, Ajmer. Ex. 4 is another pamphlet purporting to be issued by Respondent Shri Arjundas Tulsidas. Exs. 9 to 14 are extracts from the newspaper Hindu Daily, the Chief Editor of which was Shri Govindram Hassaram and the Editor Shri Shewaram Tilokchand. This newspaper was published at Hindu Press, Ajmer.

The respondent admitted that Exs. 2 and 4 were published by him but he denied that any other documents were published by him or his agents. We first take into consideration Ex. 2. The respondent has also produced Ex. A4 and Ex. A5 two pamphlets which are substantially the translations of Ex. 2 in Hindi and English respectively and which were also distributed by the respondent during the election, As there is no dispute about the English translation we may take it that the Ex. 2 when translated in English is as given in Ex. A5. As this pamphlet is the subject-matter of the corrupt practice under Section 123(4), we may quote it in verbatim the whole pamphlet.

'Request For Assembly Election.

You have proved in last Municipal election that you have enough of regard for Pujya Kaka Sahib and Pujya Pursharthi Panchayat and those friends who tried to demolish our wall, their hopes were not fulfilled. For that you have my thanks. For the coming Assembly election, I am a candidate under orders of Pujya Pursharthi Panchayat from Ajmer West Constituency i.e., from Wards Nos. 1 to15, and 21, 22 and 32. We can win one seat from this constituency for RajasJian Assembly and can make our voice reach that place. In this consti-tuenqy there are in all fifty thousand two hundred votes out of which our votes are twenty five thousand seven hundred, 3600 of Muslims, 1300 of Reigars and 2500 of other scheduled castes. If we show courage it is easy to win the seat. But our opponents having given money, have set up one brother to spoil the votes of Punchas and this brother refuses to compromise in any manner and says that he would certainly try to see that this seat is lost by the Punchas.

In the last Assembly, I tabled three Bills, viz., Cow Slaughter Prohibition Bill, No Smoking in Cinemas Bill, and Dawry Restraint Bill and kept about 15 resolutions like. No Recovery of Rent from Purshar-thies, no fees from students up to Matric. Some of trie proposals were accepted. No other member tabled any bill in the Assembly.

Outside assembly, I tried to support the public in all its activities, in spite of the fact that the Government tried that I should leave you, and join them. Some brothers are raising fancy rumours against me that I had promised and had given them in writing that if Rr. Pohumal gets the Congress Ticket Pur-sharthi Panchayat shall not put up a candidate against him. This is not true. We both had jointly agreed that in that case we shall leave it to the Pursharthi Panchayat and we shall act according to their orders. Certainty I have accepted the judgment of the Pursharthi Panchayat. I have already mortgaged myself with you Punchas and the Pursharthi Panchayat and never have I mortgaged you anywhere.

I shall request you for the coming election, that forgetting all the connections, and without coming under any pressure by casting all your valuable votes for Pursharthi Panchayat i.e., casting your votes for yourself, enhance your reputation, and strengthen your own fort.

Constituency is big. It is possible I may not be able to meet some punchas for which I beg your pardon.'

Yours ever at Service

Arjundas Tulsidas

Advocate.'

It is urged by the learned counsel for the appellant that the respondent had clearly admitted in this pamphlet] that he was a candidate of Pursharthi Panchayat which was nothing but a body of Sindhies. It is further urged that the words 'our votes' referred to in para 1 of the pamphlet have reference to the votes of Sindhies. In the last but one paragraph there is an appeal for votes for Pursharthi Panchayat which again is interpreted by the learned counsel for the appellant as an appeal to the Sindhies.

4. The constitution of Pursharthi Panchayat has not been brought on record but it is admitted by the witnesses of the parties that it was founded by Kaka Tilokchand who died sometime in 1955. Dr. Pohumal P. W. 8 admitted that Kaka Tilokchand was the political head of Pursharthi Panchayat. He himself was the member of that Panchayat. Shri Kishen Gurnani P. W. 13 also admitted that Kaka Tilok Chand was the founder of the Pursharthi Panchayat. Shri Mahadeo P. W. 12 also admitted that Kaka Tilokchand was the founder of Pursharthi Panchayat in Ajmer. The appellant stated that Kaka Tilokchand was regarded as the religious head amongst the Sindhies, but in cross-examination he said that he did not know whether Shri Tilokchand was attached to any religious institution. He further stated that lie was not his disciple rather on the contrary he was his opponent in the political and other spheres of life. We need not refer furtherto the evidence as to who founded the Pursharthi Panchayat. We proceed to consider how it functioned after its foundation.

5. In the first genaral elections held in 1952. several candidates were set up by the Pursharthi Panchayat for election to the Ajmer Legislative Assembly. Numerous political bodies put up their claims before the Chief Electoral Officer to be recognised as State parties in the former State of Ajmer as it then was. The Pursharthi Panchayat was recognised as a State party and the symbol of ladder was allotted to it. After the first general elections were over, the Commission decided that if the total number of valid votes polled by all the candidates sec up by a political party formed too low a percentage of the total number of valid votes cast in the general election such a party had no claim to have a symbol reserved to itself.

Ultimately a decision was taken on the 6th of May, 1953 and the Pursharthi Panchayat continued to be recognised as a State parry in the Ajmer state. (See the Report of Ihe First General Election in India 1951-52 Volume I pages 87,92 and 93). In the Municipal Elections to the Ajmer Municipal Committee held in January 1957, the Pursharthi Panqhayat set up several candidates of whom Maha-dev R. W. 12 and Suganchand Raigar R. W. 6 were not Sindhies but were local men.

6. In the second general elections the respondent stood on the Pursharthi Panchayat ticket from the Ajmer City West Contituency. No other candidate was set up by that party. In the list of the validly nominated candidates filed by the respondent he is shown to be belonging to that political party.

7. This evidence is sufficient in our opinion to hold that the Pursharthi Panchayat had become a political party and was functioning as such at the time of second general elections.

8. It was argued by the learned counsel for the appellant that in spite of this the Pursharthi Panchayat was a body composed of Sindhies only and of none others. On this point also the Tribunal has come to the conclusion that non-Sindhies and even non-refugees were the members of the Pursharthi Panchayat. There is the evidence of Suganchand Raigar R. W. 6 and Sayed Mahommed Anis R. W. 8 to this effect. There is also the statement of the respondent on this point. We are not prepared to differ from the finding of the Tribunal that even the non-Sindhies are the members of the Pursharthi Panchayat. But we may treat this as a minor point in the view that we have taken of the case.

9. The most important point that emerges front the evidence is that the Pursharthi Panchayat assumed the form of political organisation in the city of Ajmer and was recognised as such even by the Election Commission. It may have been a minor political body. Read in the light of the aforesaid circumstances Ex. 2 as a whole is nothing but an appeal to the members of the Pursharthi Panchayat to vote for the Panchayat. Learned counsel for the appellant took up the position that even if the refugees who were migrated from Sind had formed a party which may have become a political party for the purpose of election, the members or adherents or supporters of such party formed a 'community' within the meaning of that term in Section 123(3).

10. We may consider the language of Section 123(3) of the Act in this connection:

'The systematic appeal by a candidate or his agent by any other person, to vote or refrain from voting on grounds of caste, race, community or religion, shall be deemed to be corrupt practices for the purposes of this Act',

The words 'caste, race and religion' present no difficulty. Caste and religion have often exerted bane-ful influences on the body politic of the State to undermine its strength. These have more often than not been a source of breaking the solidarity of the State. In the political history of India, caste race and religion have played a part dividing the people from one another. Under our Constitution, we have made our country a secular State granting every citi-zen the right of equality of status and discrimination 011 grounds of religion, race and caste, sex or place of birth has been prohibited. Reference in this connection may be made to Articles 15 and 16 of the Constitution. Under Article 325, the right of vote is granted to all and it has been provided that no person shall be ineligible for inclusion in any electoral roll tor any such constituency on grounds only of religion, race, caste, sex or any of them.

11. The Parliament went a step further by providing in Section 123(3) of the Act that a systematic appeal on grounds of caste, race, community or religion was a corrupt practice as a candidate elected on such basis must be deemed to be not a true representative of the people as a whole. In Section 123(3), the word 'community' has been inserted which has not been used anywhere in the Constitution. The dictionary meaning of the word 'community' is very wide. It may even mean the body of men having common interest. Such interest may be social, economic or political.

It is evident that the word 'community' cannot be construed in its wider sense when it is used in Section 123(3). In India a community is often organised on the basis of caste or religion. We speak of the Khatri community or the Agarawal community on the basis of caste. We speak of the Hindu community or the Muslim community on the basis of religion. Of course our history is so old that we have obliterated all kinds of racial prejudices, but a community may be organised on the basis of racial distinctions. When a community is organised on the basis of caste, race or religion, it is evident that such an organisation does come within Section 123(3). At the same time we have communities organised not on the basis of caste, race or religion but on social, economic or political basis.

12. Thus we may have an organisation of the mercantile community based on economical considerations aiming at the development of trade. We have also political bodies organised on different ideologies. The word 'community' used in Section 123(3) has only to be confined to such an organisation which in effect divides the citizens of the country into groups sometimes opposed to one another. It is only when the organisation of the community is such as aims to devide the citizens of the country and releases forces antagonistic to the unity of the country that it comes within the purview of Section 123(3). Communities organised for the purpose of cementing the citizens for the purpose of social, economic and political progress of the country, do not come under Section 123(3).

The words which are used immediately before and after the word community in that sub-section are 'caste, race and religion.' The word 'community' must be construed by reference to the words 'caste, race and religion'. 'It is a legitimate rule of construction to construe words in an Act' of Parliament with reference to words found in immediate connection with them'. Robertson v. Day (1879) 5 AC 63 at p. 69. This is merely an application of the rule of noscitur a sociis. In Wharton's Law Lexicon 14th Edition at page 697 this rule is referred as follows:

'Where there is a string of words in an Act of Parliament and the meaning of one of them is doubt-ful, that meaning is given to it which it shares with the other words'.

The word 'community' must take its meaning from the other words used by the Parliament in close association with that word. The intension of the Parliament cannot be to use the word in its wider meaning as it would be obviously absurd to think that the Parliament intended to include even a political organisation by using that word.

13. In this connection it is pertinent to refer to the word 'communal' which is adjective of the word 'community'. Communal means 'of or for the community but in India the word has acquired a notorious meaning. That meaning is given in the Concise Oxford Dictionary as 'of the antagonistic religious and racial communities in a District (for example communal voting, communal elections, communal disturbances etc.). We may say that word 'communal' in India conveys the sense 'of the antagonistic communities formed on the basis of 'caste. race or religion'.

In our humble opinion the sense in which the word 'communal' is commonly used in India truly represents the intention of the legislature while using the word 'community' in Section 123(3) of the Act. It has a tinge of its adjective communal. Having regard to the intention of the legislature and to the association of words 'caste, race and religion' with the word 'community' we are of opinion that the meaning of 'the word 'community' must be restricted and it should be read as meaning a body which has been formed, organised or has come into existence on 'the basis of caste, race or religion or any other factor contributing or leading to the decision of the nation.

14. In this light we proceed to consider whether the Pursharthi Panchayat comes within Section 123(3). We think that there is no material on record placed by the appellant to suggest that the Pursharthi Panchayat even if it was merely a refugee organisation had organised itself into a community so as to operate as a dividing factor amongst the citizens of Ajmer. It is on record that the members of the Pursharthi Panchayat were of different castes and had come from different places not necessarily from Sind, It is further on record that in organising the Panchayat the refugees were only trying to rehabilitate themselves. If they were organising on political basis they were doing so, so that their grievances may be ventilated more forcibly on the political platform in the Municipality and the Legislature.

15. An appeal by a member of political body to the other members of that political body to vote for him cannot be called an appeal based on caste, race, community or religion unless it is proved that that organisation is purely organised on the basis of either caste or race or religion and a candidate is appealing on the basis of caste, race, religion or community. In our opinion on the material on record, we cannot place the Pursharthi Panchayat in that category and we are not prepared to hold that the publication of Ex. 2 amounted to a corrupt practice within the meaning of Section 123(3).

16. Now, wo may take up Ex. 4. It is headed as 'Last request 'to the Panchas of Ajmer City Wes't Constituency'. Learned counsel for the appellant argued that the Panchas meant Sindhies and the' appeal was addressed to the Sindhies to vote for the respondent. The Tribunal has found that Panch meant a member of 'the Pursharthi Panchayat. At one stage learned counsel for the appellant conceded that the word 'Panch' used by the respondent; meant a member of the Pursharthi Panchayat but he tried to modify this concession by saying that as the Pursharthi Panchayat was aa organisation of the Sindhies only, the word 'Panch' must mean only a Sindhi,

We have already discussed that Pursharthi Pan-chayat was not an organisation solely of Sindhies. It was an organisation of non-Sindhies including the non-refugee citizens who were also members. At worst it was an organisation of the refugees who had migrated from West Pakistan, whether such refugees came from Sind or other parts of West India now forming part of Pakistan. In our opinion for the reasons already given, the publication Ex. 4 is not hit by Section 123(3).

17. Now we come to Exs. 9 to 14. Ex. 9 is the report of the proceedings of a meeting held on 24-2-1957 in support of the candidate of the Pursharthi Panchayat which appeared as a news item in the Hindu Daily of 27-2-1957. It is stated in Ex. 9 that a meeting was held on 24-2-1957 in support of the candidate of the Pursharthi Panchayat in Durgah Bazar where about 5000 persons were present. One speaker Shri Ram said that Shri Kishen Gurnani and Dr. Pohumal have never supported the public but have only worked as agents of the Government officials. The respondent himself addressed the meeting and said that with the blessings of Kaka, difficult task will also be easy.

He further said that with the support of Jansang the success of Panchas will be easy. The statement of Shri Ram as reported in Ex. 9 has not been relied on as amounting to a corrupt practice under Section 123(3) in the petition. Only the speech of the respondent as reported in Ex. 9 has been relied on. The respondent said it was an abridged translation of what he had said in Hindi and there was no appeal to vote made by him much less on the ground of race, caste, or religion. We do not find 'that there is anything in Ex. 9 which may come within Section 123(3). Further there is no appeal to vote in the speech made by the respondent. Learned counsel for the appellant relied on the words 'success of Panchas' as meaning success of Sindhies, but this contention we have already rejected. We therefore, found nothing objectionable in Ex. 9.

18. Ex. 10 and Ex. 11 are the news item appearing in the Hindu Daily of the 1st of March, and 2nd of March, 1957. We reproduce below the English translation of the offending passages in them as relied on by the petitioner.

'In the meeting on 26-2-1957 at Diggi Post Office in support of Arjundas candidate of Pursharthi Panchayat at Ajmer where about 5000 panchas were present, Shri Arjandas said that the Panchas have considered this elec'ion as their own and with the blessings of Kaka Tilokchand success is at most certain. Taking apology from Panchas he further said that if you want success by 8 or 10 thousand voles permit me to go to local brothers and take their votes in thousands for you Panchas. The panchas in loud voice permitted him and said Don't come in sindhi Mohallas but go to local voters'.

In the meeting held on 27-2-1957 in Nala Bazar in support of Shri Arjundas candidate of Pursharthi Panchayat, Ajmer, where Panchas were present in thousands, Shri Arjundas said that paid workers of Dr. Pohumal are making false propoganda and are abusing panchas.

Dr. Mulchand Sobhraj said that on account of giving ticket of Pursharthi Panchayat to Vir Arjundas, Dr. Pohumal as usual spoke ill of Puj Panchayat which he had heard himself. Shri Madanlal in his speech said that Raja of Bhinai has sent a message for Panchas that seeing the strength in the constituency the congress has not only set up Dr. Pohumal as its Candidate but some one else also has been set up and his expenses are coming from Srinagar Road. He therefore, requested to the Panchas to make Vir Arjundas successful by solidly voting for him'.

The appellant in paragraph 10 has referred to the respondent as being personally guilty by making systematic appeals to the Panchas (sindhi refugees). In this connection he has referred to the meeting of 26-2-1957 and has reproduced what is said to be stated by the respondent in Ex. 10. The respondent in his written statement stated that it was an abridged translation of what the respondent said in Hindi. He denied that he used the words 'Local brothers' and stated that in its place mentioned some people who were not with the Pursharthi Panchayat.

In paragraph 11 of his petition the appellant stated that corrupt practices were. committed by the agents of the respondent and other persons i.e., Dr. Mulchand and Messrs. Madanlal, Shewaram by making systematic appeals with the consent of the respondent to the Panchas (Sindhi community and the refugees) on the ground of caste, race, community, religion etc. to vote for the respondent and not to vote for Dr. Pohumal and Shri Kishen Gurnani. Paragraph 5(c) gives the offending passages in speeches of Shri Arjundas, Dr. Mulchand and Shri Madanlal in substantially the same language as quoted above.

So far as his speech is concerned, the respondent admitted that it was the abridged version of what he said. So far as the speech of Dr. Mool Chand is concerned, the respondent stated in his reply that it was an abridged and wrong translation of what he had said. According to the respondent, he had said that on Vir Arjun's getting the ticket of the Purcharthi Panchayat, Dr. Pohumal as usual spoke ill of panchas which he himself heard, but he did not request the panchas to vote for the respondent.

With regard to Madanlal's speech it was' stated in reply that it was an abridged and wrong version. Shri Madanlal had requested the panchas to vote for Vir Arjun with courage and make him successful. He further denied that any reference was made by him to Shri Kishen Gurnani and Shri B. K. Kaul. The appellant had also relied on these speeches for holding the respondent guilty for having committed corrupt practices under Section 123(4). We shall deal with this matter separately. At present we are dealing with Exs. 10-11 in connection with Section 123(3).

19. The appellant made no attempt to prove that in fact such speeches as are referred to in Exs. 10 and 11 were delivered and there is no proof that the speeches were reported in Exs, 10 and 11 as correct. A report of a speech made in the newspaper is not admissible in evidence to prove the speeches. The appellant should have produced the persons who had made the speeches or the persons in whose presence such speeches were made or the reporter of the Hindu Daily in whose presence the speeches were made and who had sent the report to be published in the paper. In the absence of such evidence we can rely only on the version of the speeches given by the respondent in the written statement and we do not find there is anything in them which may attract the provisions of Section 123(3).

20. Even if we take that Exs. 10 and 11 gave the correct versions of the speeches made, we arrive at the same conclusion. We do not find anything significant in the use of the words 'panchas' by the respondent in the speech of 26-2-1957, nor do we find that there was anything in the nature of corrupt practice if the respondent said that if the Panchas wanted success by 8 or 10 thousand votes, they should permit him to go to local brothers. A candidate at an election may very well say that his time may be spared for going for canvassing to persons who might not be present in the meeting, or might not be such ardent supporters of his as those present in the meeting.

Learned counsel for 'the appellant has argued that when he used the words 'local brothers' the respondent distinguished them from the refugees. The respondent lias staled on oath that he had not used the words 'local brothers' but even if used these words it does not much matter as the meeting may be mainly composed of the refugees. On reading the passage as a whole it conveys the sense thai the respondent took it for granted that the Panchas would vote tor him and he should be spared 'lime to go to the local brothers.

It would not be improper to draw an inference from this that the respondent appealed to the Panchas to vote solidly for him, and even if there was such an appeal there was nothing in it which could be said to be on the ground of caste or community. Race and Religion do not come in at all. Viewed in the light that the Pursharthi Panchayat was a political organisation it means that members of it would no doubt solidly vote him and he might be permitted to canvass amongst others.

21. There is nothing in the speeches of 27-2-1957 which may be made the subject matter of criticism under Section 123(3).

22. Now welcome to Ex.. 12. It is the news item appearing in Hindu Daily of the 6th of March 1957 and relates to the meetings held on 4-3-1957 on behalf of the Pursharthi Panchayat, Shri Shewaram is reported to have addressed the meeting. In the written statement the respondent denied the contents of Ex. 12 and stated that it was an abridged version of what Shri Shewaram said. The appellant should have proved the speech when it was denied. Moreover, we find nothing in it which may fall under Section 123(3). Shri Shewaram is reported to have said that the statement of Dr. Pohumal that the respondent had betrayed him was not correct. The respondent was a sepoy of the Panchayat.

He had to obey the order of panchas. If he did not, he was a traitor. Then he gave the example of Arjun of Geeta and said that as at the orders of Shri Bhagwan Krishna Arjun had to fight in the war and conquered it, similarly their Arjun had also come in the field at the orders of the Panchas and he was bound to succeed. This speech was a reply to the contention of Dr. Pohumal that the respondent had promised him to withdraw in case Dr. Pohumal was given the congress ticket. The speaker meant to say that the respondent had no will of his own as he was a party candidate and had to contest the election at the mandate of the Pursharthi Panchayat. We do not find that there is anything which can remotely come under Section 123(3).

23. Coming to Ex. 13, it is the news item published in the Hindu Daily of 7-3-1957 of the meeting of the Pursharthi Panchayat held on 5-3-1957 in Moti Katla. The speeches reported to have been made by Shri Rupchand and Shri Shewaram on 5-3-1957 have not been made the subject of any charge of corrupt practice in the petition under Section 123(3). The meeting of 5-3-1957 has not been referred to in para 12 of the petition. The news items published in the Hindu Daily on 7-3-1957 is referred in paragraph 6 of the petition in connection with another allegation of making false statements in relation to Dr. Pohumal and Shri Kishen Gurnani. Under these circumstances we do not think that it is open to the appellant to rely on Ex. 13 in connection with the corrupt practice under Section 123(3).

24. Then we come to Ex. 14. It is the news item appearing in the Hindu Daily of 8-3-1957 relating to the meeting held on 6-3-1957 outside Delhi Gate. It is reported that Shri Shewaram in his speech referred to- the withdrawal of Shri Kishen Gurnani and interpreted it as ensuring the success ofthe respondent in the election. The second paragraph of Ex. 14 which was the subject matter of comment by the learned counsel for the appellant may be quoted:

'Shri Shewaram with folded hands requested all to vote Shri Arjandas and make him successful so that on 9th March there should be slogans of Pursharthi Panchayat ki Jai and that voice should reach the Pursharthi of Beawar, Nasirabad and Kishengarh'.

It was urged that by appealing to raise slogans of 'Pursharthi Panchayat Ki Jai' there was an appeal to vote in the name of community. Slogans like 'Pur-sharthi Panchayat Ki Jai' cannot amount to an appeal in the name of community, once it is held that that body was, a political body.

25. Now there remains only Ex. 3 to be considered. Exhibit 3 is a pamphlet issued in the nams of Hiranand. In paragraph 7(a) of the petition, the petitioner has referred to Ex. 3 in connection with making of the false statements in relation to the personal character and conduct of Dr. Pohumal. This pamphlet is again referred to in paragraph 13 of the petition in which it is stated that Shri Hiranand with the consent of the respondent committed a corrupt practice by making sppeals to Sindhi community on the ground of community, caste; race, religion etc. not to vote for Dr. Pohumal but vole for Shri Arjandas respondent. Paragraph 7(a) is denied in the written statement,

It was also denied that the contents of the said pamphlet were false or were made with the knowledge of the maker or that it was published with the consent of the respondent. Paragraph 13 was also denied for want of knowledge. It was stated that the respondent did not know that such a pamphlet was printed and distributed. If it was distributed it was not with the consent of the respondent. It was further denied that there was any appeal in it on the ground of caste, race or religion. In the face of these denials by the respondent it was the duty of the appellant to prove that Hiranand had distributed the pamphlet Ex. 2 with the consent of the respondent.

The only evidence on record is to the effect that such a pamphlet was distributed. But it is not sufficient to prove that it was distributed with the consent of the respondent. It has not been established by the evidence on record as to who this Hiranand was. Sardar Sadhu Singh, proprietor of Qurbani Press, was summoned by the appellant but was not examined and was given up. Dr. Pohumal only stated that Hiranand was a man of Shri Arjandas, but in cross-examination he seated that he did not know the father's name of Shri Hiranand or his business. He did not know his place of residence.

He had no meeting with him prior to the election. This evidence is insufficient to establish the identity of the person who got Ex. 3 printed and distributed. Khilumal appellant stated that Shri Hiranand was the client of the respondent and that he was the same Hiranand who issued a pamphlet against him in 1952. The respondent denied that Ex. 3 was printed and distributed at his instance or with his consent. Under these circumstances we are not prepared to hold that Ex. 3 was dstributed with the consent of the respondent.

26. Now we consider the contents of Ex. 3 which runs thus:

'Request and i'act. Dear brothers,

Dr. Pohumal has stood for Assembly election from Ajmer town on congress ticket. In whole of Rajasthan, there are six lakhs Sindhies, but congress ticket has been given to only one Sindhi in Ajmer Town because congress is certain that this scat willbe won by Pursharthi Panchayat under any circumstances. On the other hand in the whole of Rajasthan congress has given 17 tickets to Muslims. From this it is clear that the attitude of congress is anti-Sindhi.

The Sindhi elected on congress ticket will not even be able to speak. He will only raise his hand and be a yes man.

The attitude of Dr. Pohumal in the past has been to please congress and congress officials at any cost. In the Ajmer Town he always sided with Shri Gurg. On the question of Tehlla wala, he instead1 of fighting with Shri Garg, sided with him. On the question of Foot paths in Dargah Bazar he forgetting Sindhies, supported Shri Gurg. On the question of Cabins of Madar Gate he also sided with Shri Gurg and strengthened his hands. When Shri Gurg terminated services of Sindhi employees, Dr. Pohumal cooperated with him but Shri Arjandas raised voice on their behalf. Being supporter of Shri Brijmonhanlal Sharma Dr. Pohumal was not able to do anything for Sindhies of Ajmer.

Dr. Pohumal is a weak man and always likes to seek office at the, cost of Sindhies. Dr. Pohumal on getting only meagre power thought himself like anything and tried to ruin many Sindhies for instance Shri Daulahram of Education Department, many teachers and others. If such a weak minded person went into Assembly, no Sindhi will gain. He will sell Sindhies but no benefit will be received by Sindhies from him. His rough nature and abusive language is well known. At the same time if a courageous and clever Sindhi who feels for Sindhies went in the Rajasthan Assembly, he will raise the voice and will safeguard some rights of Sindhies. Hence considering all the above facts, every Sindhi should give his vote accordingly and thus brighten his name. Hiran-and'.

It is an appeal to every Sindhi to vote for a courageous and clever Sindhi who feels for Sindhies as such a man will raise the voice of the Sindhies. Implicit in this document is an appeal not to vote for Dr. Pohumal who was a weak man and who always liked to seek office at the cost of Sindhies. There is also a reference that the seat will be wan by the Pursharthi Panchayat under any circumstances. (26a) It may be mentioned that Dr. Pohumal was also a Sindhi. Thus the appeal cannot be construed to vote for a Sindhi only. The two candidates did not belong to two different communities but were backed by two political parties and the writer advised the voters to vote for the candidate backed by the Pursharthi Panchayat. In his appeal the writer of Ex. 3 wants the voters to vote or refrain from voting not on the ground of caste or community but on the ground that the future of the Sindhies would not be safe in the hands of one gentleman who belonged to one party but would be safe in the hands of another person who belonged to another party.

27. Further, it is not proved that Shri Hiranand was an agent of the respondent and in order that an election may be declared void, it is necessary that the corrupt practice must be committed with the consent of returned candidate or his election agent. For this reason also we hold that the election con-not be declared to be void on the basis of Ex. 3.

28. It was further urged by the learned counsel for the appellant that Shri Shewaram and Shri Govindram were the agents of the respondent and in publishing Exs. 9 to 14 they may be taken to be making systematic appeals to the voters to vote in favour of the respondent on the ground that he was a Sindhi. In order to prove that the aforesaid persons were agents, the learned counsel relied onthese circumstances. Shri Govindram was the Chief Editor of the Hindu Daily and was also the General Secretary of the Pursharthi Panchayat.

Shri Shewaram was the Editor of the Hindu Daily and had intimate connections with the Pursharthi Panchayat. The Hindu Daily was published at the Hindu Press of which these two gentlemen and the respondent were the proprietors. It was further urged that the responden. and Messrs. Govindram, Bhagwandas and Shewaram were the proprietors of the Hindu Daily. The respondent admitted all these cirsums'tances except that he was the proprietor of the paper.

29. In order to prove that the respondent was one of the proprietors of the paper, the appellant produced Ex. 15 which was the statement about the ownership and other particulars of the paper published in its issue dated the 25th of March, 1957 at the foot of which was published a declaration made by Shri Shewaram dated the 26th of February, 1957. All the four persons referred to by the appellant are shown to be the owners of the newspaper. This document was denied by the respondent and it was not attempted to be proved by the appellant.

Learned counsel for the appellant relied on Section 7 of the Press and Registration of Books Act and urged that the statement contained in Ex. 15 was binding on the respondent. But this section cannot bind him as according to it, the printing of the name of the editor is sufficient evidence only aagainst the editor to the extent that he was the editor of every portion of that issue of which a copy is produced. So far as the respondent is concerned, it has no such binding effect. But apart from Ex. 15, we are of opinion that there is sufficient evidence to prove that the respondent was one of the proprietors of the newspaper though he denied it.

The appellant has produced two witnesses Dr. Pohumal P. W. 8 and Shri Mahadeo P. W. 12 who stated on oath that the respondent was a partner in the Hindu Press as well as the Hindu Daily. Shri Mahadeo P. W. 12 was the sub-editor of the newspaper for about five years upto the 8th of June, 1957. The learned Tribunal has not discussed this point and has not discarded this evidence. We see no reason to disbelieve the evidence of Shri Mahadeo P, W. 12. We, therefore, hold that the respondent was one of the proprietors of Hindu Daily newspaper in the Months of January and Fabruary, 1957 during the period the election took place.

30. The circumstances relied on by the appellant may be sufficient for holding Shri Shewaram and Shri Govindram as agents of the respondent in making any speeches or any canvassing even without direct proof of agency as 'a candidate's liability to have his election avoided under the doctrine of election agency is distinct from, and wider than, his liability under the criminal or civil law of agency.' (See Halsbury's Laws of England Third Edition, Volume 14 page 169).

But it is not possible to attract this theory of agency to the publication as news item by a paper the proceedings of the meetings held by one party or another. It wits the normal function of the Hindu Daily to publish the proceedings of the meetings. It is on record that it published the proceedings of the meetings of Shri Dhebar who was the President of the Congress and Shri Mehar Chand Khanna, the Rehabilitation Minister. It is not the case of the appellant that the Hindu Daily had come into existence solely for the purpose of making propoganda for the respondent.

It is not also case of the appellant that in the news item published in it, there were any departurefrom the facts and any attempt to twist the proceedings of the meetings reported in it in order to support the respondent. The publication of the proceedings of the meetings by the Chief Editor and the Editor of Hindu Daily cannot by itself constitute them as agents of the respondent.

31. We have also considered the various documents except Ex. 13. In it also there is nothing falling under Section 123(3). For reasons which we have already given in connection with the speeches, we are of opinion that these documents contain no appeal to vote on the ground of caste, race, community or religion.

32. We are therefore, of opinion that the charge of the appellant against the respondent that he committed corrupt practices by making systematic appeals to vote or refrain from voting on grounds of caste, race, or community or relation, is not substantiated. We hold that the appellant has failed to prove his case in this respect.

33. Now we come to the next question whether the respondent or his agent or any other person made any statement of fact which was false and which he either believed to be false or did not believe it to be true in relation to the personal relation or conduct of any candidate, and such statement was reasonably calculated to prejudice the prospects of that candidate's election.

34. In paragraph 4 of the petition, the appellant relied on Ex. 2 which was issued by the respondent The first is 'if we show courage it is easy to win the seat, but our opponents have set one brother by giving him money with a view to spoil votes of pan-chas, and that brother is not prepared to have compromise and is saying that he will try his level best to lose this seat.' It is stated in the petition that this pertains to Shri Kishen Gurnani and was altogether false.

The respondent denied that it pertained to Shri Kishen Gurnani. According to him it had reference to Dr. Pohumal who was set up as a candidate by the Congress party. The tribunal has accepted the version given by the respondent. Before us it was urged that it referred to Shri Kishen Gurnani and it was a statement which imputed to him that he had stood as a candidate by taking money and as such it was a false statement relating to the personal character or conduct of Shri Kishen Gurnani. We have first to examine whether the finding of the Tribunal on this point is vitiated to this extent that it should be set aside in appeal. Learned counsel for the appellant relied on the statement of Dr. Pohumal P. W. 8 that the words 'one brother' used in Ex. 2 referred to Shri Kishen Gurnani. Shri Kishen Gurnani stated that the words 'one brother' used in Ex. 2 referred to him.

He also stated that it was not a fact that he was set up by Shri B. K. Kaul or was financed by him. Nobody had set him up or bore any of his expenses. Shri Jhumromal P. W. 4 stated that he was a worker of Shri Kishen Gurnani and 'one brother' in Ex. 2 had reference to him. As against this there was the evidence on behalf of the respondent mentioned by the Tribunal that by one brother the respondent meant Dr. pohumal. The respondent stated that one brother in this paragraph referred to Dr, Pohumal. His witness Shri Amri Kanwar Pleader R. W. 14 stated that he had rendered Hind translation of Ex. A5 which was Ex. A4 and that the respondent had told him at the time of translation that one brother referred to Dr. Pohumal.

Shri Rupchand R. W. 1 another witness produced by the respondent stated that he had asked therespondent as to who was the person referred to as Bhai in Ex. 2 & Shri Arjandas replied that Bhai referred to Dr. Pohumal. The Tribunal also took note of the evidence to the effect that Dr. Pohumal had brotherly relations with the respondent. Taking all this evidence into consideration the Tribunal held that it was Dr. Pohumal who was referred to as one brother in paragrapn (1) of Ex. 2.

35. The evidence produced by the appellant is not direct evidence but it is only to the effect that the witnesses produced by the appellant understood Ex. 2 in the sense that it was Shri Kishen Gurnani who was referred to in paragraph(l). The respondent has stated on oath that he had written this passage in connection with Dr. Pohumal and there appears to be no reason why his statement on oath should be rejected specially when the other circumstances support it. When it mentioned in Ex. 2 that our opponents have set up one brother' it is more probable that the respondent meant to refer to his stronger rival i.e., Dr. Pohumal.

The context of this passage is that it was easy to win the seat but the impediment was that the opponents had set up one brother of their own as a candidate. Then there is also another circumstance which may be taken into account in this connection. Soon after the controversial passage, it is stated m Ex. 2 that that brother was not prepared to have compromise. The respondent had stated that there were talks with Dr. Pohumal for compromise and there was no talk of compromise with Shri Gurnani. Shri Gurnani had himself admitted that there was no talk with Shri Arjandas respondent before the 6th of March, 1957 and that Arjandas had come to him after his withdrawal.

It may be taken that there might have been a talk of compromise between the respondent and Dr. Pohumal at the time when Ex. 2 was published. Learned counsel for the appellant argued that no money was given by the congress to Dr. Pohumal till the date Ex. 2 was published. Shri Mukat Behari Lal Bhargava R. W. 4 was the President of the Congress Pradesh. Committee at the time of the election and he stated that Dr. Pohumal was given a contribution of Rs. 1000/- from congress fund towards the end of February, 1957. May be that congress had not supplied any funds to Dr. Pohumal before the date when Ex. 2 was published of distributed.

This will only make the statement false but this cannot lead to the conclusion that it was not Dr. Pohumal who was referred to in the controversial passage, rather it shows that Dr. Pohumal was to be supplied some funds by the congress for the purpose of fighting the election and the respondent wanted to take advantage of it by pointing out to the voters that he had been, set up by the opponents by giving him money. Learned counsel for the appellant has further argued that it was Shri Gurnani only who could spoil the votes of the panchas. His contention is that Dr. Pohumal was sure to stand as he was on congress ticket and a third Sindhi candidate also stood as a candidate to spoil the votes of Dr. Pohumal.

But it cannot be lost sight of that there were other candidates in the field and the respondent might have been placing before the voters that had Dr. Pohumal not stood up as candidate he had the sure chance of election. We are, therefore, of opinion that there are not sufficient reasons for us to differ from the finding of the Tribunal that Dr. Pohumal was referred by the word 'one brother' in Ex. 2.

36. Apart from this it cannot be lost sight of that there is no express mention of Shri Gurnani in the controversial passage. Even if the contentionsof the appellant are accepted, it would require more or less elaborate process of reasoning to come to the conclusion that it referred to Shri Gurnani. At best the passage could apply to both the candidates Dr. Pohumal and Shri Gurnani. When the person against whom a false statement is said to have been made cannot be fixed up with certainty, it cannot be said that there was any publication in relation to the personal character or conduct of any candidate. Even under the law of defamation a person who is alleged to be defamed must be fixed with some certainty. We may refer to the following passage in Fraser on Libel And Slander, 7th Edition page 9:

'But where it is uncertain whether the plaintiff was the particular individual aimed at, no action lies, e.g., where after the trial of an action at which there were three witnesses, the defendant said, 'One of you three is perjured', it was held that no action lay, as there was nothing to show that the plaintiff was the particular witness referred to.' (Sir John Bourn's case, cited Cro. Eliz. 497). We may also refer to the case of Government Advocate, B and O v. Gopabandhu Das, ILR 1 Pat 414: (AIR 1922 Pat 101) in which it was observed by Dawson Miller, C. J., that: 'The rule is that if the words used contain no reflection upon a particular, individual or individuals but may equally well apply to others although belonging to the same class an action will not lie. 'So if the words reflect impartially upon either A or B or upon some one ot a certain number or class and there is nothing to shew which one was meant no one can sue. Where the words reflect on each and every member of a certain class each or all can sue' (Odgers on Libel and Slander, 5th Edition 147)'.

We are therefore of opinion that the passage referred to does not come within the definition of corrupt practice under Section 123(4).

37. The second passage in Ex. 2 relied on by the learned counsel for the appellant in paragraph 4 of the Election Petition is as follows:

'Some brothers have been spreading different kinds of rumours that I have given in writing and have premised that if Dr. Pohumal was given congress ticket, Pursharthi Panchayat will not set up any candidate against him. This is not correct. We both had agreed that in that case, we will leave to the Panchayat and act according to its orders. No doubt I have accepted the decision of Pursharthi Panchayat and Panchas and never have I mortgaged you anywhere'.

There is nothing in this passage which can be said to be regarding the personal character or conduct of Dr. Pohumal. The respondent has merely given his version of the understanding that was arrived at before Dr. Pohumal was given a congress ticket.

38. This takes us to Paragraph 5 of the petition. In it it is stated that corrupt practices were committed by the respondent and his agents and several other persons Messrs. Mahendra Singh Pan-war, Ramchand Mansharamani, Dr. Mulchand Sibh-raj, Madanlil, Rupchand Tulsidas and Shewaram Tiiokchand with the consent of the respondent by making false statements. Before us the alleged statements made by Shri Mahendra Singh and Shri Ramchand have not been argued as amounting to corrupt practices. The speeches of other persons have not been proved by any evidence on record and they may be taken to be proved only so far as they have been admitted by the respondent. The first statement which may be considered is attributed to the respondent that he in the meeting held on 27-2-1957 said that paid workers of Dr. Pohumal were speaking ill of the panchas..

It is not conceivable how this passage can come as a corrupt practice under Section 123(4). There is nothing in it relating to the personal character and conduct of Dr. Pohumal. The statement attributed to Dr. Moolchand is also innocent so far as Section 123(4) is concerned.

39. Coming to the speech of Madanlal referred to in paragraph 5(c) it is stated in this paragraph that Madanlal in his speech said that Raja of Bhiani had sent a message for panchas that seeing the strength of the panchas in the constituency, the congress had not only set up Dr. Pohumal as its candidate but some one else also has been set up and his expenses are coming from Srinagar Road. It is urged that the reference to some one else pertains to Shri Kishen Gurnani and the reference to Srinagar Road pertains to Shri B. K. Kaul. The respondent has denied that in the speech there was any reference to Shri Gurnani or Shri B. K. Kaul. There was no proof on record that any such speech was made. We, therefore, hold that there was no corrupt practice committed by Shri Madanlal. Moreover, there is no reference to the personal character or conduct of Shri Gurnani in the statement.

There is only a reference to the circumstances in which Shri Gurnani was set up as a candidate. This statement may be false or true but it refers to the political conduct of Shri Gurnani and not to his personal conduct. Learned counsel tor the appellant argued that Shri Gurnani's private character was attacked as it was suggested by Madanlal in his speech that the expenses of Shri Gurnani were coming from Shri Kaul. The expenses referred to in the context in which the word is used can only mean election expenses, and when construed in this light it again refers to the political conduct of Shri Gurnani and not to his private conduct.

40. Learned counsel for the appellant gave up the statements referred to in paragraphs 5(d) and 5(c), He confined his arguments to paragraph 5(c) which we have already discussed.

41. Now we come to paragraph 6 of the petition. In this paragraph it is stated that Shri Shewaram and Govind Ram Hassaram committed corrupt practices as agents of the respondent and with his consent by publishing the statements false to their knowledge in relation to Dr. Pohumal and Shri Gurnani made by Messrs. Mahendrasingh, Rarn Chand, Dr. Muichand, Shri Madanlal, Shri Rupchand and Shri Shewaram in the public meetings referred to. We have already held that these statements do not amount to corrupt practices, and their publication also cannot amount to any corrupt practice.

42. In paragraph 7(a) of the election petition. the appellant has referred to Ex. 3, published by one Hiranand. We have already quoted Ex. 3. We have to see whether there is any statement in it regarding the personal character and conduct of Dr. Pohumal in it. Learned counsel for the appellant has stated that the following passages fell under the category of corrupt practice:

1. Attitude of Dr. Pohumal in the past had been to please Congress and Congress officials at any cost.

2. Dr. Pohumal is a weak man and always likes to seek office at the cost of Sindhies.

3. Dr. Pohumal getting meagre power thought himself like anything and tried to ruin many Sindhies.

4. He will sell Sindhies, but no benefit will be received by Sindhies from him.

5. His rough nature and abusive language is well known.

43. It is clear that in the first passage the political conduct of Dr. Pohumal has been criticised and it is not covered by Section 123(4).

44. Again in the second passage also there is reference to the political conduct of Dr. Pohumal and when he is referred to as a weak man it is to be understood in the sense that he is not likely to stand up for any cause. The statement may be raise but a false statement with regard to the political conduct of a candidate is not covered by Section 123(4). The same remarks apply to the third statement referred to therein.

45. Coming to the fourth statement it is only an estimate of the writer as to what Dr. Pohumal is likely to do in future if he is elected. Such a statement cannot be a statement of fact. It is only an opinion of the writer as to how Dr. Pohumal is likely to act in future. Such a statement does not come under Section 123(4).

46. The last statement imputes rough nature and abusive language to Dr. Pohumal. Even though this statement refers to the personal character of Dr. Pohumal it is a statement which in our opinion was not reasonably calculated to affect the prospects of his election. Rough nature in a certain candidate may be taken by the voters as an asset to him in his political life and when it is said about a candidate that he is well known for using abusive language it cannot be said that the chances of such a candidate for election are in any way prejudiced. For this reason, this statement also does not come under Section 123(4).

47. We have discussed all the points that have been raised before us and we do not think that the respondent can be held guilty of having committed any of the corrupt practices referred to in the election petition. In our opinion the Tribunal has come to the right conclusion.

48. We, therefore dismiss the appeal with costs. The Advocate's fee shall no; be taxed as the respondent argued the case himself.


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