KANTI PRASAD JAYSHANKER YAGNIK A v.

PURSHOTTAMDAS RANCHHODDAS PATEL AND OTHERS

January 24, 1969

[S. M. S!KRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.] B

Represtltllltion of the People Act (43 of 1951), s. 123 (2) and (3 )-Appeal to voters to vote in the name of religion-If corrupt practice -Appetil to vote on the basis of candidate's caste-If corrupt practice- Statement that voting for a part.v would amount to the continuance of cow slaughter and consequent incurring of divine displeasure-If corrupt practice.

Evidence Act (I of 1872), s. 160-Reports made from notes t<•ken down at meetin!lf-lf udmissible-Method of proof-Weight to be attachd to reports.

The poll for election to the Gujarat State Assembly from Mehsana State Assembly constituency was taken on February 21, 1967. 011 February 18, 1967 one S.M. addressed public meetings at various villages which were part of the constituency. The appellant, who was the successful candidate was present at those meetings and did not dissociate himself from any of the remarks in the speeches.

Police constables, under instructions of the Government, took down notes of the speeches and reported to their superior officers.

These police constables did not take down every word spoken by S.M. but whatever was taken down was spoken by S.M.; and in the reports, though the exact words were not reproduced the substance of the speeches was corretly reproduced. These reports showed that S.M. made the following statements in his speeches :-

(i) He appealed to the Hindu voters as such not to vote for the Congress Party lest they might be betraying their religious leader (Jagadguru Sankaracharya of Puri), particularly when be had fasted for 73 days in the cause of preventing cow slaughter;

(ii) He put forward an appeal to the electors not to vote for the Congress Party but to vote for the Swatantra Party in the name of religion;

(iii) He said that a relationship of cause and effect existed between the slaughter of 33,000 bullocks every day and natural calamities like famine and flood;

(iv) Re asked his voters to vote for the appellant because he was a Brahmin; and

(v) He said that if the voters voted for the Congress who are responsible for 24 crore of cows being slaughtered then God will be displeased.

On the questions : (I) Whether the reports made by the police constables V.'ere admissible in evidence; (2) Whether any weight should be attached to them; and (3) Whether they showed that the appellant was gui!ty of corrupt practice within the meaning of s. 123(2) and (3) of the Representation of the People Act, 1951

HELD (Per Sikri and Bachawat, JJ.) : (!) The reports were properly used under s. 160 of the Evid, nce Act, 1872, and were admissible in evidence.

[406 C-D)

JAYSHANKER V, RANCHHODDAS 401

Before a witness testifies to facts stated in a document, unde'r s. 160 of the Evidence Act, two conditions must be satisfied namely : (a) thut

the witness had no specific recollection of the facts themselves; and (b) the witness says that he is sure that the facJs were correctly recorded in the document.

For satisfying the conditions it is however not necessary that the witness should specifically state that he has no specific recollection of the facts and that he is sure that the facts were correctly recorded in tht.: document.

It is enough if it appears from the evidence of the witness that those conditions are established. [ 405 C-E)

In the present case, it could be implied from the circumstances that the conditions of s. 160 were satisfied.

The witnesses were giving their testimony in Court after a lapse of 9 months after the speeches wen:: made and it is implicit that they could have no specific recollection cf the speeches, especially when they attended and reported many .similar meetings as part of their duty during the election campaign.

The second condition is also satisfied because. the witnesses made notes on the spot and made out reports fron1 those notes when the speeches were fresh .in their memory.

The reports are, strictly not substantive evidence as such and could only be used as part of the oral evidence on oath. The 'reports should therefore have been read out in Court and not marked as exhibits. But the practice of marking such a report as an exhibit is wellcstablished and avoids the useless formal cercmgny of reading it out a"

part of the oral evidence. [405 E-G; 406 D-EJ

Wigmore on Evidence (Third Edn. Vol. III pp. 97-98),

Mylapore Krishnaswami v. Emperor, 3:! Mad. 384, 395 and Mohan

Sinh Laxmansingh v. BhG'nwarla/ Rajmal Nahata, A.I.R. 1964, M.P. 137, 146, referred to.

E Public Prosecutor v. Venkatarama Naidu, I.L.R. [1944), Mad, 113,

approved.

Jagannath v. Emperor, A.I.R. 1932 Lah. 7 and Sodhi Pindi Das v.

Emperor, A.LR. 1938 Lah. 629, disapproved.

(2) Though the reports were not taken down in short-hand nor were the exact words spoken by S.M. taken down by the various police constables. the reports show a remarkable similarity of approach, appeal and attack on the Congress Party; and in those circumstances it must be held the police constables correctly reproduced the substance of the speeches. It 1s not necessary that the exact words must be reproduced before a speech can be held to amount to corrupt practice. [ 414 A--C]

(3) (i) This statement does not amount to corn1pt practice. hc<ause

!ere was no proof .that he Jagdguru WJS the religious head of the maior1ty of the elector~ in this constituency or that he exercised great influence. on thm. and so, 1t could not be held that an ordinary Hindu voter of the constituency would feel that he would be committing a sin if he disregarded the alleged directive of the Jagadguru. [410 A-CJ

Ram Dial v. Sant Lnl, [1959) Supp. 2 S.C.R. 748, distinguished.

(Per Hegde, J. dissenting) : The statement amounted to corrupt practice.

\V!Jat s. 123(2) requies is to induce or attempt to induce 'an elector' -wh.'h means ve~ a smgle lector-that he will be rendered an object ?f sptntul censure 1f he exer~1Ses or refuses to exercise his electoral right in a particular manner.

While undoubtedly the inducement or attempt

to induce complained of should be such as to amount to a direct or

ndirect intrfrence with the free exercise of the electoral right it is not m the pubhc mterest to cut down the scope of the sub-section. Whether a partiCular statement comes within it or not depends on various factors such as the nature of the statement, the person who makes it and the persons to whom it is addressed.

Therefore, when a respected religious preacher induces or attempts to induce the illiterate and superstitious voters who form the bulk of the voters that they will become objects of divine displeasure if they do not exercise their franchise in a particular manner, though his statements are not supported by religious books and he himself

"'ay nt be a religious head of the majority of electors, the statements y yet amount to a corrupt practice in. law. [415 C-G]

(Per Sikri and Bachawat, JJ.) : (ii) There is no bar to a candidate or his supporters appealing to the electors not to vote for the Congress in the name of religion, or appealing to vote for the Swatantra Party because the people in that party are fond of their religion.

What s. 123(2) of the Representation of the People Act bars is-that a candidate or his agent or any other person with the consent of the candidate or his agent should appeal to the voters to vote or refrain from voting for any person on the ground of his religion, that is the religion of the candidate. [410 C-D;

411F]

(iii) This statement does not amount to corrupt practice within s. 123(2) proviso (a)(ii), because, die law does not place any bar on describing a party as irreligious or saying that because that politicjil party is irreligious natural calamities had resulted on account if its disregard of religion.

J4n E-F]

(iv) Asking the voters to vote for the appellant because he was a Brahmin, fell within the mischief of s. 123(3). [411 F-G]

(Per Hegde, J. dissenting) : When he stated that there should be at le<1st one Brahmin Minister in the Cabinet, S.M. was merely giving expres sion to the fact that communal and regional representations in our pohtical institutions have c; ome to stay and was not appealing to the voters to vote on the basis of the appellant's caste.

[415H]

(By Full Court) : (v) As this statemen.t constitutes an attempt to induce the electors to believe that they would become objects of divine displeasure if they voted for the Congress and thereby allowed cow slaughter to be continued, and as in the circumstances of the case, it must be deemed to have been made with the appellant's consent, the appellant was guilty of corrupt practice within the meaning of s. 123(2) proviso (a)(ii). [413C;

415B-C]

Narbada Pra.vad v. Chhagan Lal, [1969] 1 S.C.R., 499 followed.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 979 of 1968.

Appeal under s. 116-A of the Representation of the People Act 1951 from the judgment and order dated December 5, 1967 of the Gujarat High Court in Election Petition No. 3 of 1967.

S. T. Desai, A. K. Verma, A. L. Barot, and/. B. Dadachanji,

for the appellant.

H Purshottamdas Trikamdas and I. N. Shroff, for respondent No. 1.

The Judgment of StKR! and BACHA WAT, J J. was delivered by SIKRI, J. HEGDE, J. delivered a sejarate Opinion.

Sikri, .J.

This appeal under s. 116-A of the Representation of the People Act, 1951, is directed against the judgment and order of the High Court of Gujarat iio Election Petition No. 3 of 1967, B setting aside the election of Kanti Prasad Jayshankar Yagnik, appellant before us, to the Gujarat State Assembly from Mehsana State Assembly Constitucy under s. 123(2), s. 123(3) and s. I 00 (1 )(b) of the Representation of the People Act, 1951hereinafter referred to as the Act. c The High Court held that certain speeches made by Shambhu Maharaj, with the consent of the appellant, amounted to 'corrupt practices' within the meaning of ss. 123(2) and 123(3) of the Act.

Since we are in agreement with some of the cooclusions arrived at by the High Court it is not necessary to deal with all the speeches made by Shambhu Maharaj, but only with the speeches which the High Court held to amount to 'corrupt D practices' within the meaning of ss. 123(2) and 123(3). Before we set out the impugned passages from the speeches we may give a few preliminary facts.

The poll for the election was taken Oill February 21, 1967. and the result of the election declared on February 22, 1967.

Purshottamdass Ranchoddas Patel, the petitioner in the High Court and respondent before us, secured 16,159 votes whereas the appellant secured 23,055 votes. The other candidates, who were respondents to the petition secured 720 votes, l ,017 votes and 454 votes, respectively. The petition out of the which this appeal arises was filed on April 5, 1967, and the petitioner prayed for the relief that the election of the appellant be declared void and further prayed that he be declared duly elected to the Assembly.

Various grounds were urged in the petition but we need only deal with the ground that the appellant and his agents arranged public meetings of Shri Shambhu Maharaj on February

18. 1967, at various villages which were part of the Mehsana Assembly constituency, and Shambhu Maharaj made a systematic appeal in his speeches to a large section of the electors to vote for the appellant on ground of religion, caste, and community, and the electors were told that it would be an irreligious act to vote for the petitioner who was a Congress candidate as Congress allowed slaughtering of cows and bullocks.

It was also alleged that Shri Shambhu Maharaj had used undue influence interfered with the free electoral rights of electors' by inducin~ or attempting to induce them to believe that they would become object of divine displeasure or spiritual censure by his speeches.

The petitioner sought to prove the peeches by producing members of the Police Force, as witnesses, who had under illstructions of Government taken down notes of the speeches and reported them to their officers. The High Court relied on the reports of these members of the Police Force and held that their reports were correctly recorded and fairly represented the speeches made by Shambhu Maharaj. In this cOlllllection, the High Court discarded the testimony of the petitioner's witnesses

(P.W.s 25 to 33) on the ground that it would be safe not to accept the evidence of partisan witnesses unless it was corroborated by independent witnesses.

The learned counsel for the appellant, Mr. S. T. Desai, contends, first, that the reports made by the members of the Police Force are not admissible in evidence, and secondly, that in the circumstances of the case no weight should be attached to these reports. We may first deal with the question of the admissibility of the evidence before we set out the speeches. ·

The learned counsel contends that under the Indian Evidence Act written reports of speeches can only be used in two ways; one, to refresh a witness's memory under s. 159, and secondly, under s. 160 after satisfying two conditions : (I) that the witness has no specific recollection o.f the facts themselves and (2) the witness says that he is sure that the facts were correctly recorded in the document. He urges that in this case the reports were not used to refresh any wi(!ness's memory, and that the conditions requisite under s. I 60 had not been satisfied. It is true that these reports have not been used for the purpose of refreshing the memory of any witness under s. 159, but these have been used undt..-r s. 160.

We may here set out ss. 159, 160 and 161 of the Indian Evidence Act.

"S. 159. A witness may, while under examination, refresh his memory by referring to any writinl! made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court cansiders it likely that the transaction wa~ at that time fresh in his memory.

The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct. Whenever a witness may refresh his memory by reference to any document. he may, with the permission of the Court, refer to a copy of such decument :

Provided the Court be satisfied that there is sufficient reasqn for the non-production of the original.

An expert may refresh his memory by reference to professional treatises.

S. 160. A witness may also testify to facts mentioned in any such document as is mentioned in section 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.

S. 161. Any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon." In this case it is clear that the reports were written by the witnesses themselves at the time of the speeches or soon afterwards when the speeches were fresh in their memory.

It seems to us that it is not necessary that a witness should specifically state that he bas no specific recollection of the facts and that he is sure that the facts were corectly recorded in the document, before the document can be used under s. 160. It is enough if it appears from his evidence that these conditions are established. In this particular case the witnesses were giving their testimony in Court after a lapse of nearly nine months and one would have to have super-human memory to specifically reollect the details of the speeches, especially when the witness may have attended and reported many similar meetings as a part of his duty during the election campaign. It may be implied in this case that the witnesses had no specific recollection of the facts.

The second requirement wouJr! b~ satisfied if the Court comes to the conclusion that the witness wds in a position to correctly record the facts in the document.

Are then the requirements of s. 160 satisfied in this case ?

As an example we may consider the evidence of P.W. 7. who testified regarding the speech, Ex. J., delivered at village Motidav.

He stated that Shambhu Maharaj addressed the meeting at Motidav at about 5.30 p.m. on February 18, 1967, and the appellant was present at that meeting; Maganlal A. Patel was also

present at the time when Shambhu Maharai was speaking; while the speeches were being deliveed he was making notes of what was being spoken; in this manne~ he had written out a report regacding

all that had happened at the meeting; zfter returning to Mehana he submitted his report of the meeting to P .S.I. Choudhary. He was shown two reports about the meetings at Motidav, and he stated :

.. "Both these reports, part of 'X', are in my handwr1tmg.

I wrote out the contents of these two reports at Motidav when the meetings were going on." (The two reports put in. a; nd marked Ex. "J" collectively).

In cross-examination questions were directed to establishing that the reports were not exact reports.

He stated that he was taking down all the speeches of Shambhu Maharaj who was speaking at medium pace and he wrote whatever Shambhu

Maharaj spoke. He further stated that he was writing down from memory immediately after the words were spoken by Shambhu Maharaj. He admitted that "it is true that every word spoken by Shambhu Maharaj was not takqn down by me in my report but what I have taken down was in fact spoken by him." He, however, added that "it it not true that what I have written out in Ex. 'J' was not written down at Motidav village."

On this evidence it seems to us that it is quite clear that both the conditions required by s. 160 have been compiled with. While the speech was delivered QD February 18, 1967, he was giving his evidence on November 7, 1967. It is implicit that he had no specific recollection of the speeches, and the second condition is also satisfied because he made notes and then made out the report from his notes. It may be that the counsel would have been well-advised to have read out Ex. 'J' rather than produce it as an exhibit, but this is apparently done in some Indian Court> to save time and it is now too late in the day to condemn such practice, specially as it is a difference without any substance. It is true that the report is, strictly speaking, not substantive evidence as such, and the document can only be used as a part of the oral evidence sanctified by the oath.

The position seems to be the same in some States in U.S.A., vide Wigmore on Evidence (Third Edition; Vol. III; pp. 97-98, extracted below :

"1871, Per Curiam in Moots v. State, 21 Oh. St. 653: The entry in the book and the oath of the .witness supplement each other. The book was really a part of the oath, and therefore admissible with it in evidence."

"1879, Earl, J., in .Howard v. McDonough 77 N.Y. 592 : After the witness has testified, the memorandum which he has used may be put in evidence,-not as pro\'ijng anything of itself, but as a detailed statement of the items testified to by the witness. The manner in which the memorandum in such a case may be used is very much in the discretion of the trial

Judge."

"1882, Cooley, J., in Mason v. Phelps, 48 Mir, L 126, 11 N.W. 413, 837 : After she had testified that she knew it to be correct, she might have read the entries or repeated them as her evidence.

Showing the book was no more than this".

"1886, Smith, C.J., in Bryan v. Moring, 94 N.C. 687 : The memorandum thus supported and identified becomes part of the testimony of the witness, just as if without it the witness had orally repeated the words from memory."

There is much to be said for the modeIJil doctrine in some of the

States in the United States, which "seems to be that such docu-· ments are admissible evidence and that the Court will not go

through the useless ceremony of having the witness read a document relating to a fact of which he had no present recollecti?n,

except that he knew it was correct when made." (see McCorrmck oo Evidence; p. 593; footnote 3).

The learned counsel relied on the dissenting judgment of Sankaran-Nair, J., in Mylapore Krishnasami v. Emperor(') where he observed :

"If therefore the constable has \llOt recorded correctly the words used by the speaker but only his impression, then the notes would be inadmissible under section 160 of the Indian Evidence Act to prove the words used.

They may be admissible to prove the impression created in the mind of the cqnstable, which is very different."

We are unable to appreciate how this passage assists the appellant.

If it is proved that the constable did not correctly record the words, a fortiori one of the conditions of s. 160 has not been satisfied and the writing cannot be used to prove the words.

The learned cou1nsel also referred to the decision of the Madhya Pradesh High Court in Mohansingh Laxmansingh v. Bhanwarlal Rajmal Nahata('). The High Court seems to have held that on the facts, the statements prepared by the witness in that case did not become primary evidence of the speech said to have been delivered by the speaker and cannot be used as such.

Later on the High Court seems to have held that the notes were taken down for a particular purpose, to wit, for an election petitioin, and raise a reasonable suspicion that what the witness recorded was not a correct record of the speech. If the High Court meant to say that Ex-P-12 (the notes in that case) could not be used

(I) 32 Mad. 384; 395.

(2) A.l.R.1964 M.P.137, 146.

under s. 160 we must hold that the case was wrongly decided, but if the High Court meant to say that there was suspicion that the speech was not a correct record the:n nothing can be said against the decision on this poinl

Blacker, J. in Sodhi Pindi Das v. Emperqr(') held, relying on Jagan Nath v. Emperor(') that it is essential that the witness must state orally before the Court that although he had no specific recollection of the facts themselves, he was sure that the facts were correctly recorded in the document.

We are unable to agree with this interpretation.

As we have already stated, if the requisite conditions can be satisfied from the record, the lack of an express declaration by witness does not make the evidence inadmissible.

In Public Prosecutor v. Venkatarama Naidu(') Mockett, J., rightly dissented from the judgment of the Lahore High Court in

Sodhi Pindi Das v. Emperor(').

In England the Law of Evidence has been changed and many of such documents made directly admissible: (see Phipson on Evidence, Tenth Edition, Ch. 22).

It seems to us that on the facts the report, Ex. J., was properly used under s. 160 of the India~ Evidence Act. The question of the weight to be attached to the various reports of the speeches is another matter and we will deal with the question presently.

The High Court has found three speeches to constitute "corrupt practices". The following three passages in Ex. 'J'- speech delivered by Shambhu Maharaj at village Motidav on February 18, 1967-\\ere complained of by the learned Counsel in the High Court :

" ( 1) I will say on~ fact and that is that at present t11e Congress is stating everywhere that nobody else will make the people happy except themselves.

But I say that apart from God no other Government either Congress or Swatantra Party c11n make people happy.

An agriculturist may have one bigha of land (about half an acre) and he might have sown wheat but if there is heavy frost or locusts or if one bullock worth Rs. 1000/- dies, Government may give him money, may give him bullock, but I do not think that that man can be happy; but nature can make him happy. Today in our India, everyday 33,000 cows are being slaughtered

throu.hout the country. Ten to eleven lacs of bullocks are being -slaughtered during the year and in Ahmedabad Town alone 10,000 bullocks are slaughtered.

(i) A.l.R. 1938 Lah. 629,

(2) A.l.R. 1912 Lah. 7. (J) I.LR. [19441 Mad. 111.

JAYSllANKER V. RANCHHODDAS (Sikri, J.) 40~

( 2) This unworthy Congress Government has cut the nose of Hindu Society. Sant Fateh Singh the reli- . ' g10us preceptor of the Sikhs, fasted for I 0 days; where as Jagadguru fasted for 73 days, still this Government is not even thinking of opening negotiations. This unworthy Government accepted the contention of the Sikhs

after the fast of I 0 days; whereas in spite of the penance undertaken by J agadguru by his fast of 73 days, the Government has not considered any topic in this connection. Your J agadguru had full confidence that, except for ten crores who are the followers of the Congress, twenty to thirty crores from the Hindu Society would help him. ( 3) For exa..'11ple, if any Maulvi from Mucca had fasted for 73 days ad had given such a mandate to our Muslim brothers, then would they have voted for the Congress. That you have to consider, In the same manner, if Fateh Singh, the religious leader of Sikhs, had fasted for 73 days, would they (Sikhs) have voted .for the Congress ? In the same maniner if there were Parsis or Christians, then they also would vote for their religious preceptor. This is what you have to consider.

The mandate of your religious preceptor is that do not cast your vote for anyone, the mandate of the Jagadguru is that let cows be slaughtered, let bullocks be slaughtered.

In Gujarat State though there is ban, still bullocks are allowed to be slaughtered, the bullocks which give every individual happiness throughout the life. This Government asks for votes in the name of. the bullocks (the Congress Party election symbol being a pair of bullocks with yoke on) and I am. therefore, having an experience. Do not vote for the Congress and by putting the mark of vote on the symbol of bullocks amounts to cutting the throat of a bullock by a knife symbolized by your vote. It is my mandate that you should not do this dastardly act." The High Court did not find the first two passages to conti tute "corrupt practices". The third passage was held by the High Court to constitute "corrupt practice" on the groul?-~ that "thogh there is no proof that Shankaracharya had any relrg1ous following

as such in this particular constituency'. there. is no mandate Hl writing from the Jagadguru and there 1s no ~Irect address to his followers by the Jagadguru, Shambhu Mahara1 has clearly appealed to the Hindu voters as such not to vote for the Congres~ Party

Jest they might be betraying thir religious lader. part1cular\Y when he had fasted for 73 days m a cause which had some basis in the religious beliefs of the Hindus."

We are unable to agree with the High Court in this respect.

The decision of this Court in Ram Dial v. Sant Lal(') is clearly .distinguishable because there it was held by this Court that Sbri

Sat Guru wielded great local influence among the large number of Namdbaris who were voters in the Sirsa constitutmey . .In the present case there is no proof that Jagadguru Shankaracharya of Puri was the religious bead of the majority of the electors in this constituency or exercised great influence on them.

It cannot be held on the facts of this case that an ordinary Hindu voter in this constituency would feel that be would be committing a sin if he disregarded the alleged directive o.f the J agadguru.

One other ground given by the High Court is that "there can be no doubt that in this passage (passage No. 3) Shambhu Maharaj had put forward an appeal to the electors not to vote for the Congress Party \n the name of the religion." In our Opinion, there is no bar to a candidate or his supporters appealing to the electors not to vote for the Congress in the name .of religion. What s. 123 ( 3) bars is that an appeal by a candidate or his agent or any other person with the CQ!J, sent of the candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, •i.e., the religion of the candidate.

The following four passages in Ex. K, a speech delivered by .Shambhu Maharaj at Kherwa after mid.night of February 18, 1967, were objected to :

" ( 1) The Congress says that it has brought happiness and will give happiness in future; but even a father cannot give happiness to his son, nor can a son give happiness to his father.

Giving happiness rests in the hands of God. But God gives happiness where there is religion. He does not give happmess to the irreligious.

(2) Formerly there were no famines.

Possibly once in 100 years there might be one famine.

As against that nowadays every year there is some natural calamity like a famine. Either there is no rain or there .is frost or there is visitatiQlli of locust or there is some disease in the crops and some calamity or the other is constantly visting us.

The reason for this is that Congress permits slaughter of 33,000 bullocks everyday.

When slaughter of cows is banned, bullocks are allowed to be slaughtered. In Gujarat 12,000 bullocks are being slaughtered.

(3) Nobody would sit till 12-30 at night to listen to any talks by the Congress-walas. But I have come (I) [1959] Supp. 2 S. C.R. 74q,

to tell the public, which is fond of its religion, to elect the Swatantra Party, so that the slaughter of bullocks might be stopped and all people who are fond of their religion are also keeping away till 12-30 at night. ( 4) Vijaykumarbhai has gone.

A Brahmin minister must be there and hence Kantilalbhai is going to be a minister, hence vote for him. We must have at least one minister who is a Brahmin. Hence vote for Kantilalbhai. At the same time vote for Bhaikaka and H.M.

Patel by putting your voting mark on the star."

The High Court held the first two passages read together to constitute "corrupt practice" on the ground that "they amounted to interference with the free exercise of the electoral right of voters by holding out threats of divine displeasure and spiritual censure." The High Court held that in these passages there was a direct causal relationship between the cow slaughter and the natural calamities and this clearly showed that the voters were told that if they did not want such natural calamities to visit them they should not vote for the CCl\!1gress Party and thus avoid the divine displeasure which was responsible for these natural calamities. It seems to us that this is not a fair reading of these two pas.sages. Cow slaughter is not mentioned in these passages except to say that sow slaughter is banned in Gujarat. The causal relationship, if any, exists between slaughter of 33,000 bullocks every day aind natural calamities.

This, in our view, cannot amount to constitute "corrupt practice" within s. 123 (2) proviso (a) (ii).

The law does not ptace any bar on describing a party as irreligious or saying that because that political party is irreligious natural calamities have resulted because of its disregard of religion.

We do not find anything objectionable in the third passage because here again it is Olllly an appeal to elect the Swatantra Party because the people in that party are fond of their religion.

The last passage in Ex. 'K' clearly fell within the mischief of s. 123 ( 3). The High Court in this connection observed :

"The refesence to Vijaykumarbhai is to Vijaykumar Trivedi, who was a Brahmin and was a minister in the Gujarat Govemmf1nt till March 1967. and when this speech was delivered.

The reference to Kantilalbhai is to the first respondent, who is also a Brnhmin and the reoference to Bhaikaka is to Bhailalbhai Patel, leader of the Swatantra Party and H.M. Patel is another leader of the Swatantra Party and what Shambhu Maharaj was askin11 in this connection was that it was necessary that there should be one Brahmin in the Gujarat State Ministry and if one Brahmin,

• ,

Vii<iykumar Trivedi, was to leave the ministry, another Brahmin Minister, viz., the first respondent should be first elected so that he might get a seat in the Legislature and thereafter become a minister, and thus it is clear that in the passage, Shambhu Maharaj was asking the people to vote for the first respondent because he was a Brahmin by caste. It has b~ >tated as a categorical statement that there must be at least one Minister, who was a Brahmin. Under S. 123(3) of the Act, an appeal by any person to vote for any person on the ground of his caste or community is a corrupt practice, provided, of course, that such person has made such appeal with the c<l\llSent of the candidate concerned.

I will come to the question of consent a bit later on, but it is clear tliat in this particular passage an appeal was being made to the electors to cast their votes for the first respondent because the first respondent is a Brahmin and also because of the promise, which had been put forward in this passage, that there should be at least oue Brahmin Minister in the Ministry.

I may point out that so far as the petitioner is concerned, the petitioner is a Patidar and it is i:n the context of this background that an appeal is made in the name of caste of the first respondent and the people are asked to vote for the first respondent because he was a Brahmin."

It seems to us that the High Court is correct in drawing the inference that Shambhu Maharaj was asking his voters to vote for the first respondent because he was a Brahmin.

Shambhu Maharaj is reported to have adopted the same theme in Ex. 'P' when he said that "Vijaykumarbhai had gone out and Kantilalbhai is going to be the Minister."

Following three pasages were objected in Ex. 'P', a speech made at Dangerwa :

"(1 ) The time of election has arrived. The Congress Party is carrying on its propaganda desparately but what I want to say is that if Swatantra Party comes into power then it will (!lOt turn your roof-tiles into gold.

Only God gives happiness. There is. frost, there is rust in the crops, there is excess of rains, there is a famine all these are due to the workings of God. Every day twenty four crores of cows are being slaughtered, then how God will tolerate that and how will you get happiness?

(2) Look at the Congressmen who are destroyers of Hindu Religion. ( 3) Every year we get QD<: or the other natural calamity like excessive rain, or failure of rain or earthquake. This happens because they ask for votes in the name of live bullocks, whereas they get the bullocks slaughtered. The symbol should be of butcher and except ruthless and hard-hearted Congress nobody else will get bullocks slaughtered."

It seems to us that the first and the third passages, read together, constitute an attempt to induce the electors to believe that they would become objects of divine displeasure ii they voted for the Congress and thereby allowed cow slaughter to be continued.

Hidayatullah, C.J., in Narbada Prasad v. Chhagan Lal('), observed :

"It is not necessary to enlarge upon the fact that cow is venerated in our country by the vast majority of the people and that they believe not only in its utility but its holiness. It is also believed that one of the cardinal sins is that of gohatya. Therefore, it is quite obvious that to remind the voters that they would be committing the sin of gohatya would be to remipd them that they would be objects oi divine displeasure or spiritual censure."

In the first and third passages of Ex. 'P', therefore there is clear implication that if you vote for the Congress who are responsible for 24 crores of cows being slaughtered then God will be displeased; in other words there will be divine displeasure alJd the voters will not get happiness.

The second passage does not seem to be objectionable and the High Court has not found it to be so.

The learned counsel for the appellant contends that very little weight should be attached to the speeches because the reports were IJOt taken in shorthand but from notes and it is very diflicult to be certain of what were the exact words used by Shambhu Maharaj.

The High Court examined the speeches, Exs. 'I', 'J' 'K'. 'L', and 'P', in connection with this question and came to the conclusion that common topics, common language and commop approach existed in all the speeches, and this indicated tat Shambhu Maharaj did deliver the speeches.

Further, accordmg to the High Court, the reports were submitted by different constables at different times and to different Police StatiQllJl, and the learned Judge found that there could possibly be no consultation between the various police constables who took down the state-

(!) [1969] I S.C.R. 499. 8 Sup.C.l/69-8

ments, and that the totality of the effect emerging from different reports made the reports credible.

We agree with the conclusions arrived at by the High Court.

It is true that the exact words were not taken doWtll by the various police constables, but the similarity of approach, appeal and the attack on the Congress is remarkable and in these circumstances it must be held that the police constables correctly reproduced the substance of the speeches. It is , not necessary in these cases that exact words must be reproduced before a speech can be held to amount to "corrupt practice".

The learned counsel further contends that the appellant's consent to these speeches had not been proved. We agree with the High Court that there is no force in this contention. The High Court observed :

"As shown in the handbill setting out the programme, the manuscript of which was written out by the first respondent himself in consultation with Maganlal Abram Patel, this tour programme had been arranged to bring success to the first respondent in his election contest.

Shambhu Maharaj was touring these villages specifically so that the first respO)tldent might succeed in his contest. Further it would be natural on the part of the first respondent to take advantage of being seen in the presence of a good speaker like Shambhu

Maharaj.

Some of the meetings of Shambu Maharaj appear to have been well-attended.

It is highly probable that the first respondent accompied Shambhu Maharaj.

To my mind, therefore, it is clear that the first respondent had accompanied Shambhu Maharaj and was present in each of the meetings at Moti-Dav, Kherwa and Dangerwa when Shambhu Maharaj delivered speeches at these three villages ............ In the instant case also, the first respondent, according to the conclusion that I have reached, was present at the meetings which were addressed by Shambhu Maharai at Moti-Dav, Dangerwa and Kherwa and in each of these three meetings at least, according to the conclusions reached by me, Shambhu Maharaj in the course of his speeches had committed breaches of the provisions of s. 123(2) and s. 123(3) of the Act ........ Under these circumstances, it is clear to my mind, judging by the manner in which the first respondent was touring with Shambhu Maharaj, the manner in which tour programme was arranged and judging from the fact that this tour was speciallv arranged to bring success to the first respondent, that the first respon-

JAYSHANKER v. RANCHHODDAS (Hegde, J.) 415

dent did consent to the commissiOill of the breaches ot the proviso of s. 123(2) and s. 123(3) of the Act by Shambhu Maharaj." We may add that many police witnesses depose that the appellant was present and it has not been shown to us that he dissociated himself with any of the remarks in the speeches.

In the result the appeal fails and is dismissed with costs.

Hegde, J.

I agree that the statements contained in Exh. P amount to a corrupt practice under s. 123(2) of the Representation of the People Act and also agree that those statements were made with the consent of the returned candidate. Hence this appeal has to be dismissed but I am unable to agree that before a statement can be considered as an attempt to induce an elector to believe that he will be rendered an object of spiritual censure if he acts in a particular manner that statement must have been made by a person who is a religious head of the majority of the electors in the constituency concerned. What s. 123 (2) requires is to induce or attempt to induce "an elector"-which means even a single elector-that he will be rendered an object of spiritual censure if he exercises or refuses to exercise his electoral right in a particular manner. But undoubtedly the inducement or an attempt to induce complained of should be such as to amount to a direct or indirect interference or attempt to interfere with the free exercise of electoral right.

Whether a particular statement comes within s. 123 (2) or not depends on various factors such as the nature of the statement, the person who made it and the persons to whom it is addressed.

No doubt the nature of the statements in question is of utmost importance. They may exploit well accepted religious beliefs but that is not the only thing that comes within the mischief of s. 123 (2). A respected religious preacher may inducor attempt to induce the illiterate and superstitious voters who fo m the bulk of our voters that they will become the object of divi displeasure if they do not exercise their franchise in a particular manner. His statements may not have any support from the religious books but yet they may amount to a corrupt practice in law. I see no justification to cut down the scope of s"l23 (2). It will not be in public interest to do so. ·

I am unable to agree that the appeal to vote (in Exh. K) for the appellant on the grt'rnnd that he is likely to be a Minister as according to Shambhu Maharaj there should be at least one Brahmin Minister in the cabinet is an appeal to vote on the ground of the appellant's caste. There is no use hiding the fact that communal and regional representations in all our political institutiom have become a must. Shambhu Maharaj merely gave expression to that fact from public platforms. One may not appreciate his

campaigning for that point of view but I am unable to agree that It. his statements In that regard amount to corrupt practice under s. 123(3). Those statements cannot be considered as an appeal to vote on the basis of the appellant's caste. The caste of the appellant has come into the picture incidentally.

V.P.S.

Appeal dismissed.

KANTI PRASAD JAYSHANKER YAGNIK

January 24, 1969

R. S. BACHAWAT

K. S. HEGDE, JJ.

Represtltllltion of the People Act

s. 123

s. 160

Gujarat State Assembly

February 21, 1967

011 February 18, 1967

S.M.

Congress Party

Jagadguru Sankaracharya

Puri

Swatantra Party

s. 123(2)

Representation of the People Act, 1951

Sikri

Bachawat

s. 160

s. 160

s. 160

Jagdguru

Jagadguru

Per Hegde

s. 123(2)

s. 123(2)

Representation of the People Act

s. 123(2)

s. 123(3)

Hegde

s. 123(2)

CIVIL APPELLATE JURISDICTION

s. 116

Representation of the People Act 1951

S. T. Desai

A. K. Verma

A. L. Barot

B. Dadachanji

H Purshottamdas Trikamdas

I. N. Shroff

StKR

BACHA WAT

SIKRI

HEGDE

s. 116

Representation of the People Act, 1951

High Court of Gujarat

Kanti Prasad Jayshankar Yagnik

s. 123(2)

s. 123(3)

Representation of the People Act, 1951

Shambhu Maharaj

ss. 123(2) and 123(3)

ss. 123(2) and 123(3)

Purshottamdass Ranchoddas Patel

February

18. 1967

s 25 to 33

S. T. Desai

Indian Evidence Act

s. 159

s. 160

s. 159

s. 160

ss. 159, 160 and 161

Indian Evidence Act

S. 159

S. 160

section 159

S. 161

s. 160

s. 160

Maganlal A. Patel

Shambhu Maharai

Mehana

P .S.I. Choudhary

Motidav

Maharaj

Motidav village

s. 160

18, 1967

November 7, 1967

U.S.A.

1882, Cooley

United States

Sankaran-Nair

section 160

Indian Evidence Act

s. 160

Madhya Pradesh High Court

s. 160

Blacker

Mockett

Lahore High Court

England

s. 160

February 18, 1967-\\ere

India

Ahmedabad Town

JAYSllANKER V. RANCHHODDAS

Sant Fateh Singh

Mucca

Fateh Singh

Gujarat

Shankaracharya

Shambhu Mahara1

Sat Guru

Sirsa

Jagadguru Shankaracharya of Puri

s. 123

.Shambhu Maharaj

Kherwa

February 18, 1967

Vijaykumarbhai

Kantilalbhai

Bhaikaka

H.M.

Patel

s. 123

s. 123

Vijaykumar Trivedi

Kantilalbhai

Bhailalbhai Patel

H.M. Patel

Brahmin

Vii<iykumar Trivedi

S. 123(3)

Dangerwa

Hidayatullah

Maganlal Abram Patel

Shambhu

Maharaj

Shambu Maharaj

Moti-Dav

s. 123(2)

s. 123(3)

s. 123(2)

s. 123(3)

s. 123(2)

Representation of the People Act

s. 123

s. 123

s. 123

s. 123(3)


SHEODHAN SINGH

MOHAN LAL GAUTAM

January 24, 1969

(S. M, Suoo, R. S. BACHAWAT AND K. S. HEGDE, JJ.]

Election petition-Whether abates on di.vsolution of legislature-Pre .. sentation by Advocate's clerk in petitioner's prsence ·-If proper presenta. tion.

The responoent's election to the

U.P.

Legislative Assembly in February, 1967, was challenged by the appdlant in an election petitioli on various grounds including allegations of corrupt practices.

The respondent raised two preliminary objections before the High Court namely,

(i) the petition was not maintainable as it was not properly presented; and

(ii) the petition ceased to be maintainable as a result of dissolution of the U.P. Legislative Assembly by virtue of the President's proclamation of April 15, 1968, under article 356 (I) of the Constitution issued during the pendency of the election petition before the High Court. These preliminary objections were rejected by the High Court, which also dismissed the petition on the merits.

On an appeal to this Court, HELD : (i) The High Court was right in holding that the requirements of law as to the presentation of a petition were fully satisfied as the electrnn petition was presented to the Registry by an Advocate's Clerk in the presence of the petitioner. The petitioner in substance, though not in form, himself presented the petition. (ii) There was no force in the contention that the petition had become infructuous in view of the dissolution of the Legislative Assembly. [418H]

The question for consideration was not only the validity of the election but aloo the allegation of corrupt practices which, if established, would involve the respondent incurring certain electoral disqualifications.

It is clear from the provisions of Chapters III and IV. of Part VI of the Representation of the People Act, 1951, that the contest in an elccilion petition ts realty between the constituency and the person or persons complained of.

Onoe the machinery of the Act is moved by a candidate or an elector, the carriage of the case does not entirely rest with the petitioner. fhe reason for these provisions is to ensure to the extent possible that the persons who offend the election law, are not allowed to avoid the con.sequences of their misdeeds.

[421G]

The law relating lo withdrawal and abatement of election petitions is exhaustively dealt with in Chapter IV of Part VI of the Act. In deciding whether a petition has abated or not it was not possible to travel outside the provisions contained in that Chapter. The Act does not provide for the abatement of an election petition either when the returned candidate whose election is challenged resigns or when the assembly is dissolved. [4210]

Carter and Anr. v. Mills 9, Common Pleas p. 117; distinguished; Ghasi Ram v. Dal Singh and Others (1%8) 3 S.C.R. 102: followed,

(iii) On the facts, the High Court had rightly dismissed the petition. 417

Civ1L APPELLATE JURISDICTION : Civil Appeal No. 1564 of A 1968.

Appeal under s. 116-Ai of the Representation of the People Act, 1951 from the judgment and order dated May 23, 1968 of the Allahabad High Court in Election Petition No. 40 of 1967.

Danial Latifi, S. J. Hyder, Rajindra Singh and M. I. Khowaja, for the appellant.

Veda Vyasa, K. K. Jain, H.K. Puri, G. N. Dikshit, R. N. Dik shit, S. N. Sinha, K. C. Sharma and M. K. Garg, for the respon dent.

The Judgment of the Court was delivered by Hegdc, J.

This appeal under s. ll 6A of the Representation of the People At, 1951 arises from the decision in Election Petition No. 40 of 1967 on the file of the High Court of Judicature at Allahabad. In that petition the appellant challenged the election of the respondent to the U.P. Legislative Assembly from lglas Constituency in the general election held in February 1967. In that election the appe!lant, the respondent and four others contested. The respondent secured 10,705 votes more than the appellant.

Other candidates secured Jess votes than the appellant. The appellant challenged the election of the respondent on various grounds, most of which were given up either in the trial court or in this Court. The High Court dismissed the election petition. Against that order the appellant has come up in appeal.

Before going into the merits of the appeal, it is necessary to deal with the preliminary objections to the appeal, taken by the respondent.

The first objection taken was that the petition was not maintainable as it was not properly presented. The second objection was that the petition ceased to be maintainable as a result of the dissolution of the U.P. Legislative Assembly as per the President's Proclamation of April 15, 1968 under Art. 356(1) of the Constitution. That Proclamation was issued during the pendency of this election petition before the High Court.

The High Court rejected both those contentions but those contentions were again pressed for acceptance at the hearing of this G appeal.

The High Court has found as a fact that the election petition was presented to the registry by an advocate's clerk in the immediate presence of the petitioner. Therefore, in substance though not in form, it was presented by the petitioner himself. Hence the requirement of the law was fully satisfied.

We are unable to accept the contention of Mr. Veda Vyasa, learned Counsel for the respondent that the petition must be held

to have become infructuous in view of the dissolution of the assembly.

In this proceeding we are considering the validity of the election of the respondent and not whether he is continuing as a member. If the contention of the appellant that the respondent was guilty of corrupt practices during the election is found to be true then not only his election will be declared void, he is also liable to incur certain electoral disqualifications.

The purity of elections is of utmost importance in a democratic set-up. No one can be allowed to corrupt the course of an election and get away with it either by resigning his membership or because of the fortuitous circumstance of the assembly having beeu dissolved.

The public are interested in seeing that those who had corrupted the course of an election are dealt with in accordance with law. That purpose will stand defeated if we accept the contention of Mr.

Veda Vyasa.

The election petitions in this country are solely regulated by statutory provisions. Hence unless it is shown that some statutory provision directly or by necessary implication prescribes that the pending election petitions stand abated because of the dissolutton of the Assembly, the contention of the respondent cannot be accepted.

Section 80 provides that no election shall be called in question except by an election petition presented in accordance with the provisions of the Act. Section 8H1) says that an election petition calling in question any election may be presented on one or more of the grounds specified in sub-s. (I) of s. 100 and s. 101 to the High Court, by any candidate at such election or any elector.

Section 84 prescribes that a petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidate is void, claim a further declaration that he himself or any other candidate has been duly elected. Chapter III of Part VI deals with the trial of election petitions. Section 86 (I) prescribes that the High Court shall dismiss an election petition which does not comply with the provisions of s. 81 or s. 82 or s. 117. Section 87 (I) says that subject to the provisions of the Act and of any rules made thereunder. every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. Section 97 ( 1) provides for filing recrimination.

Section 98 reads :

"At the conclusion of the trial of an election petition the High Court shall make an order : H

(a) dismissing the election petition; or

(b) declaring the election of all or any of the returned candidates to be void; or

( c) declaring the election of all or any of the return- A ed candidates to be void and the petitioner or any other candidate to have been duly elected." Section 99 (I ) is important for our present purpose. It says :

"At the time of making an order under s. 98 the High Court shall also make an order : B

(a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording-

( i) a finding whether any corrupt practice has or has not been proved to have been committed at the c election and the nature of that corrupt practice; and

(ii) the names of all persons, if any, who have been proved at the trial to have been, guilty of any corrupt practice and the nature of that practice .......... " (emphasis supplied). o

Chapter lV of Part VI deals with withdrawal and abatement of election petitions.

Section I 09 stipulates that an election petition may be withdrawn only by the leave of the High Court and where an application for withdrawal is made notice thereof fixing a date for the hearing of the application shall be given to all other parties to the petition and shall be published in the official gazette. Section 112 says :

" ( 1) An election petition shall abate only on the death of a sole petitioner or of the survivor of several petitioners.

(2) Where an election petition abates under sub-s. (1 ) the High Court shall ca use the fact to be published in such manner as it may deem fit. ( 3) Any person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner and upon compliance with the conditions, if any, as to security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the High Court may deem fit." Section 116 reads:

"If before the conclusion of the trial of an election

petition, the sole respondent dies or gives n<itice that he H does not intend to oppose the petition or any of the res- . pendents dies or gives such notice and there is no other

respondent who is opposing the petition, the High Court

shall cause notice of such event to be published in the Official Gazette, and thereupon any person who might have been a petition.er may, within fourteen days of such publication, apply to be substituted in place of such respondent to oppose the petition, and shall be entitled to continue the proceedings upon such terms as the High Court may think fit."

From the above provisions 1t is seen that in an election petition, the contest is really between the constituency on the one side and the person or persons complained of on the other.

Once the machinery of the Act is moved by a candidate or an elector, the carriage of the case does not entirely rest with the petitioner. The reason for the elaborate provisions noticed by us earlier is to ensure to the extent possible that the persons who offend the election law are net allowed to avoid the consequences of their misdeeds.

The law relating to withdrawal and abatement of election petitions is exhaustively dealt with in Chapter IV of Part VI of the Act. In deciding whether a petition has abated or not we cannot travel outside the provisions contained in that Chapter.

There is no provision providing for the dropping of an election petition for any reason other than those mentioned therein. The act does not provide for the abatement of an election petition either when the returned candidate whose election is challenged resigns or when the assembly is dissolved. As the Jaw relating to abatements and withdrawal is exhaustively dealt with in the Act itself no reliance can be placed on the provisions of the Civil Procedure Code nor did the learned Counsel for the respondent bring to our notice any provision in the Civil Procedure Code under which the election petition can be held to have abated.

In support of his contention that the petition has abated great deal of reliance was placed by Mr. Veda Vyasa on the decision in Carter and Anr. v. Mills('). Therein a pending election petition was allowed to be withdrawn on the dissolution of the Parliamen.t.

In doing so Coleridge, C.J. observed thus :

"I am of opinion that this application should be granted. The Queen having been pleased to dissolve Parliament, of which fact the Court must take judicial cognizance, a case has arisen not expressly provided for in the Act; and under these circumstances we must guide our proceedings by the old parliamentary practice on the subject.

It is common knowledge, that according to the old practice the petition abated or dropped in such a case. We think the result is the same now, and that we therefore have authority, and ought to make an order for the return of the deposit."

(I) 9, Common Pleas p. 117.

422 SlJPREME COURT REPORTS [!969] 3 s.c.R.

Keating, J., the other judge agreed with the learned Chief Justice.

We do not know the facts of that case. It is not known whether the election of the returned candidate was challenged on the ground of any corrupt practice.

The decision in that case rested solely on 'the old parliamentary practice on the subject'.

We have no such practice in this country. That being so that decision is of no assistance for our present purpose. In Ghasi Ram v. Dal Singh and Others(') this Court proceeded on the basis that the dissolution of the assembly does not put an end to the election petition. For the reasons already mentioned we think that the High Court was right in its conclusion that the election petition had not abated.

This takes us to the merits of the case. As mentioned earlier the election of the respondent was challenged on numerous grounds. On the pleadings as many as 10 issues were raised. At present we are concerned only with issues Nos. 7, 8 and 10.

The only question arising under issue No. 7 is whether Exh. 7, was got printed and published by the. respondent. So far as the question of getting it prepared and printed is concerned, the evidence principally relied on is that of P.W. 16 Mohan Singh. We are in agreement with the High Court that Mohan Singh is a wholly unreliable witness. According to him.he was a signatory to that pamphlet and he took active part in getting it printed which means that he was a party to the publication of false statement. He appears to have been on the side of the responderrt at one stage and walked over to the side of the appellant at a later stage, not

1 uncommon during election time. His evidence does not carry conviction. On his own showing he can be a stooge.

In support of the evidence of P.W. 16 reliance was placed on Exh. D-23, one of the vouchers submitted by the respondent along with his return of election expenses. That voucher relates to the printino of two pamphlets on behalf of the respondent. It shows that me of the pamphlet mentioned therein was printed on both sides cf the paper. Exh. 7 is also printed on both sides of a paper. From that we are asked to conclude that the voucher. in question refers to printing of pa, mphlets like Exh. 7. Such an mference would be a far fetched one. According to the respondent D-23 relates to pamphlets similar to Exh. A-154 and A-155. The High Court has not accepted that contention. The basis on which the High Court rejected that contention does not appear to us to be correct. It is not necessary to go into that question as we are of opinion that there is no satisfactory evidence to show that any entry in Exh. D-23 relates to pamphlets similar to Exh. 7. We are also unable to attach any weight to Exh. 3, the complaint given by the appellant to the Returning Officer. The appellant

(1) [196i] J S.C.R 102.

has considerable experience of filing election petitions. This was

the third election petition filed by him. Even as the election was going on he appears to have been preparing for the election petition.

The evidence of P .W. 7, Narayan Singh Bodh throws a great deal of light on this aspect.

Large number of witnesses were examined to show that either respondent himself distributed pamphlets like Exh. 7 or he got them distributed through others.

Their evidence ha• '-en considered by the High Court in detail and reject• ·. we nave been taken through that evidence and we were not impressed by the same. We are satisfied that the High Court has correctly assessed that evidence.

Generally, this Court accepts the findings of fact arrived at by the High Court.

Election petitions are tried by experienced judges of the High Court. They had the benefit of observing the witnesses when they gave vid.ence. Hence their appreciation of evidence is entitled to great weight. We have not been shown any good reason for departing from that rule.

Now coming to issue No. 8 which relates to the complaint of the appellant that the respondent, his agents and workers had hired several vehicles for conveyance of the voters to and from the polling stations.

In the petition, particulars of as many as twelve vehicles which were said -to have been used for conveying voters were given.

But the appellant's learned Counsel confined his arguments to three vehicles only i.e. Truck No. USK 503, :Sus No. RJL 9729 and a Tractor.

So far as Truck No. USK 503 is concerned, the witnesses who were examined are P.Ws. 37, 40, 41, 45 and 48. Among them the most important witness is P .W. 45 Sukhbir Singh. He claims to have worked for the respondent and transported voters to the polling station in the truck in question. Further he deposed that he hired that truck from "Achaltar truck operators' Union" Hathras.

It is now definitely established and that evidence was not challenged before us that in Hathras there was no concern bearing that name. Hence it is obvious that the evidence of this witness is wholly false. We are unable to accept the contention of Mr. Latifi, learned Counsel for the appellant that the name of concern in question was wrongly mentioned by the witness due to some confusion. The fact that P.W. 45 at one stage worked for the respondent is not of much significance. Changing sides during election is nothing unusual. Once the evidence of P.W. 45 is proved to be false very little basis remains for the evidence of other witnesses who spoke to the user of a. truck in question. It is common knowledge that in the trial of election petitions there would be no dearth of witnesses.

The faction spirit generated during election projects itself during the trial of election petition

that follows.

Much value cannot be attached to the complaint given by the appellant's agent to the polling officer (Exh. 18).

That document has several suspicious features which were noticed by the High Court.

Now coming to the tractor, its registration No. was not spoken to by any witness. There is no evidence about its hiring. The witnesses who speak to its user are P.Ws. 33 and 34. The evi dence of P.W. 33 is extremely vague. He deposed that a worker of the respondent Sita Ram carried the voters from the villages to the election booth. lle is unable to give the details of the tractor.

P. W. 34 is an omnibus witness. The evidence relating to owner of that tractor is conflicting. The evidence of P.Ws. 33 and 34 does not carry conviction. It was rightly not relied on by the High Court.

Now coming to the hiring of Bus RJL 9729, according to the petition that bus was owned by one Babu Lal of Jaipur. That Babu Lal has not been examined. The evidence of P.Ws. 30, 31 and 32 who speak to the conveyance of the voters in that bus to the polling stations is far from satisfactory. Their evidence did not commend itself to the trial court. We agree with the High Court that it is unsafe to rely on their evidence.

This takes us to issue No. 10 which relates to the complaint of the appellant that the election expenses incurred by the respondent had exceeded the prescribed limit. In this connection various items of expenses said to have been omitted in the return were particularised in the petition but most of them were not pressed at the hearing.

The evidence relating to the expenses said to have been incurred in procuring and hiring vehicles for conveying voters to the polling; booths has to be rejected in view of our earlier findings.

F Large number of witnesses were examined to show that considerable quantity of wheat, atta, sugar and ghee had been purchased by the rnspondent for feeding his workers and the expenses incurred for that purpose had not been included in the return of expenses. Their evidence has not been believed by the trial court.

We have been taken through the evidence and we do not think it is creditworthy nor are we able to place any reliance on the docu- G ments produced in that connection.

In the result this appeal fails and the same is dismissed with costs.

R.K.P.S.

Appeal dismissed.

SHEODHAN SINGH

MOHAN LAL GAUTAM

January 24, 1969

R. S. BACHAWAT

K. S. HEGDE, JJ.

U.P. Legislative Assembly

April 15, 1968

article 356

s. 116

Danial Latifi

S. J. Hyder

Rajindra Singh

M. I. Khowaja

Veda Vyasa

K. K. Jain

H.K. Puri

G. N. Dikshit

R. N. Dik shit

S. N. Sinha

K. C. Sharma

M. K. Garg

Hegdc

Art. 356(1)

Veda Vyasa

Section 80

Section 8H

s. 100

s. 101

Section 84

Section 86

s. 81

s. 82

s. 117

Section 87

Code of Civil Procedure, 1908

Section 97

Section 98

Section 99

s. 98

Section 112

Section 116

Coleridge

Parliament

R.

Keating

Mohan Singh

Narayan Singh Bodh

Sukhbir Singh

Hathras

Latifi

Sita Ram

Babu Lal

Jaipur