VIRENDRA KUMAR SAKLECHA

JAGJIWAN AND ORS.

March 22, 1972

!A. N. GROVER AND A. N. RAY, JJ.J

E/ection'Peti.donorrupt practices under s, 123 (2), <3) and (4) alle1?ed-Proof_.:._Atfidavit i.'1 suvvort of petition alle1?in1? a fact on in}orn1ation must give .source of i11for1nation. (-) There is. no inconSistency between form 25 of Conduct of Election Rules, 1961 and Rule 7 of Madhya Pradesh HiRh Court Rules.

The appellant and the three respondents were candidates for election to the Madhya Pradesh Assembly at the general election held in. 1967.

The appellant was succe¥ful at the eleotion.

Respondent no. I challenged .bis election in an election pet:tion charging him with corrupt practices. It was alleaed by the election petitioner that in speeche. made to the voters on the basis of religion w.thin the meaning of s. 123 (3) of the Representation of the People Act 195 J; the voters were threatened with divine displeasure within the meaning of s. 123 (2), a•d also &tale meots were made about the election petitioner within the meaning of s. 123 ( 4). The affidavit in support of the petition did not disclote the source \Of information whereby respoident no. 1 learnt the speeches ton stituting corrupt practice.

The High Court however believed the ma! ev:dence produced on behalf of the respondent, disbel eved that produced on behal'f of the appella"t and allowed the election petition. Appeal to this Court was fi:ed under s. 116-A of the Representatio~ of the People Act, 1951.

Allowing the appeal,

HELD: (i) The affidavit filed by the respoodent aloog with the election petition ~'d not disclose the source of information in respect of the speeches alleged to have beei made by Jhe appellant. Although the res F p. an(fent c. !aim. ed in his evidence that he am. e to know. of the speeohes

tJir<zilg!i notes made by certain persons wh6 heard them, neither the \11Q.t.etnor these perso'ls were produced in Court. The non-, prodU'"'HO., of

thee notes and the persons who made them must lead to an irresistible inference against -the monde"t th•t the same would not have supported , responde_nt's cas~. [959 H; 962 A-BJ

Rule 7 of the Madhya_ Pradesh High Court Rules states that every G affidavit should clearly express how much is a statement and declaratioi

from knowledge and" how much .is a statement made on information or :belief.and must also state the source or l!rOU"ds of info•mation or belief

will! sufficient particularity. Form No. 25 of •he Conduct of Ele"fon Rules, 1961 requires the deoonent of an affidavit to set out which statements are true to the knowledge of the depcMent and wltich sta•e mentil are true tn his i.rforma'ion.

Jn so far as form No ... 25 requireil the deoondent to state which stateme, ts are true .to knowledge there is 01lno soei:iftc mentioi of the sources of informaticm in the form. The form of the affidavit and the Hieb Court Rules are not ;, co"si•te0 t. 'fhe 1"'eh Court Rliles l!iv, e effect topto'lisions of Order 19 of the Code of Cid Procedure .. [960 C-1'] . '

The non-disclosure of grounds or sources of information in an election A peti 'ion which is to be fi1ed within 45 days from the date of elec; tion of the returned candidate, will have to be scrutinised from two points of view. 'fhe non-d, sclosu -e df the grounds will indicate that the elect:on petitioner did not come forwa d with the sources of information at the first oppor-tunit~! The real 1n1portance of setting QUt th~ sources of informatio 1 at the time of the presentation. of the peti'rion is to give the other side notice of the co.1temporaneous evidence o:i. which the elet- B tion petition is based.

That will give an opportunity to the other s:de to test the genuineness and varacity of the sources of informati;)1. T~ other point of view is that he election petitioner will not be able to make any departure from the sources of grou'lds.

If there is any embellis~ ment of the case it wJl be discovered ... 961 E-F]

State of Bombay v .. Parshottam Jog Naik, [19521 S.C.R. 674, Padmabati Das" v. Ra ik Lal Dhar, I.L.R. 37 Cal. 259, Barium Chemicals Ltd. & C Anr. v. Company Law Board and Ors., [19661 Supp. S.C.R. 331 ad A. K. K. Nambiar v. Union of India, f.1970] 3 S.C.R. 121, referred to.

(ii) The High Court was wrong in pronouncing observations O'l the First Informafon Report relating to an incident at one of election meetings in question when a criminal case based on that Report was pending.

,964 F-0]

(iii) The overwhelming impresSio':J. produced by the witnes.ses on behalf of the respondent is that they were all prepared O'l the' S"m~ pattern of evide'lce.

On the entireevidence it could not be held that the allegations constituting corrupt pract:ce were proved .. L971 H-972 A]

CIVIL APPELLATE JURISDICTION: C.A. No. 2509 of 1969.

Appeal under Section 116-A of the Representa•ion of the People Act, 1951 from the Judgment and Order dated the 30th September, 1969 of the Madhya Pradesh High Court, Indore Bench in Election Petitions NJs. 19 and 19A of 1967. -

S. L. Sibbal, A iyocate-General for the S ate of Punjab, S. L.

GarK and S. K. Gambhir, for the appellant.

M. N. Phadke. U. N. Bachawat, P. C. Bhar•ari, J. B. Dad+i- ' chanfi, O. C. Mathur, Ravinder Narain, for respondent No. 1.

N. K. Shejwalla, Pramod Swarup, S. S. Khanduja and lalita Kohli, for respondent No. 4.

The fudgment of the Court was delivered by G

Ray, J.

This is an appeal from the judgment dated 30 September, 1969 of the High Court of Madhya Pradl'Sh setting aside the election of the appellant.

The High Court held the appellant to .be guilty of corrupt practice under section 123(4) of the Representation of the People Act, 1951 (hereinfater referred

o as the Act) with reference to a speech at Singoli on 29 Januaty, H 'l-9e'r speech at Athana on 9 February, 1967 and a speech at 1hatla, ®.o-1.2 Fbruary, 1967. , :J'he High Court further held the

'; ..

appellant to be guilty of corrupt practice of appealing on !he ground of religion as defined in section 123 (3) of the Act and also threatening the electors with divine displeasure being a corrupt practice as defined in section 123(2) of the Act in regard to the speech at Jhatla oh 12 Febiuary, 1967. The High Court also held the appellant to be guil!Y of corrupt practice of appealing on the ground of religion and threatening with divine" displeasure those who voted for the Congress in the three speeches delh'.ered on 15 February, 1967 at Morwan, SiiJ.goli and Diken by the Swamiji of Bhanpura at. the instance, and in the presence, and after introduction by the appellant of the Swamiji of Bhanpura to the audience at those three places.

On 31 January, 1972 'we delivered the order holding that we did not agree with the finding of the High Court and we also held the appellant to be not guilty of any corrupt practice.

We stated then that we would give the reasons later.

We now give those reasons. ·

The appellant and the respondent Jagjiwan Joshi and the other two respondents were four. candidates from Jawad Constituency f?r electin to the Madhya radesh ssembly at the general e.loc- !ion held m the year 1967. i'lie appellant was successful at the election.· The respondent Joslji cnallenged the election of the appellant. ·

The allegations under section 123 ( 4) of the Act falf under two classes.

The first.relates to the speech delivered by the appellant at Singoli on 29 January, 1967 and a speech delivered by the &ppellant at Athana on 9 February, 1967.

The speech at Singoli was alleged to be as follows : :-

"The Congress candidate has on payment of Rs. 5000 set up Kajod Dhakad ...... so that the Jan Sangh votes may be split and he might . win. If he practises such corruption even now what service can he do to the public later on.

You, should not vote for such . corrupt men".

The speech at Athana in addition to the allegations already made , in respect of the speech at Singoli was as follow8 :-

. "Joshi has set up Kajod Dhakad on payment of Rs. 5000."

The other allegations of corrµpt praotlce under section 123 ( 4) of the Ac~ were in relatiOO to the. wne. speech at Athamt on 9 •• 14--,.l.lo61SupCIJ72 ·

February, 1967 and a speech at Jhatla on 12 February, 1967.

The alleged speech at Athana was as follows :-

"Shri Joshi has set up a man to hit me with a knife.

Accordingly, if he becomes a legislator the rule of violence (goonda gardi) would be permanently established.

Therefore, the public should not only defeat such bad characters ( badmash) of the Congress but also see that their deposit is forfeited".

The alleged speech at Jhatla was as follows :-

"This Congress candidate gave a knife to Moham-. mad Kasai and got him to attack me.

But I have the strength of the janata janardhan and my life is dedicated to you.

It lies with you whether to save such goondas who try to commit murder or to get their deposit . forfeited."

The allegations of corrupt practice as defined in sections 123(2) and 123(3) of the Act in relation to the same speech at Jhatla on 12 February, 1967 were as follows :-

"The votes shall be cast on the 20th and it is fortunate that it is a sacred day being a Monday gyaras. To give a vote to the cow-killing Congress on that day is equivalent to cutting down ot\e cow and it will be on you to bear the responsibility for this sin".

The. allegations of corrupt practice within the meaning of sections 123(2) and 123(3) of the Act against the appellant in regard to three speeches delivered on 15 Fel:lruary, 1967 at N'.orwan, Singoli and Diken by the Swamiji of Bhanpura were as follows:-

At Morwan :-

"Today the Hindu dharma is being destroyed.

Sadhus and sanyasis are being shot.

The Congress is killing the cow-progeny (go-vansh) of Bhagwan Gopal. so this time you should cast your invaluable vote for uprooting that government. You put your seal on the deepak symbol (Jan Sangh symbol) on the 20th which '1.s Monday gyaras. To vote for the Congress on such a sacred day is to commit the sin of cow-killing".

At Singoli :-

- '.'In the. Congress Government sixteen cows are being killed every minute.

How long will this cow-killing .

Congress rule the country?. How long will it show indifference to 'the feelings of the overwhelming Hindu

majority just on the strength of the support of a handful of cow-eating Musalmans ? If you love the Hindu dharma, if there is Hindu blood in your veins, do not vote for the Congress; but uproot it.

Form a new Government by putting your seal on the Jan Sangh deepak.

Shri Saklecha is your Chief Minister to be.

The 20th February as a sacred day being Monday gyras.

Do not on such a sacred day vote for the cow-killing Congress and bring yourself td hell ( narak ke bhagi na bane)".

At Diken :-

\ 'There was a yagna for putting an end to the cow killing in this country.

Many sadhus and sanyasis have sacrificed their life for this, but the Congress, intoxicated with power has along with cow-killing killed sadhus also. It is the dharma of every Hindu not / to vote for such murderous Congress.

The 20th is Monday gyaras and a sacred day.

So put your seal on the deepak and make the Jan Sangh successful.

The Jan Sangh will put an end to the cow-killing and you will get merit (punya) and endlless Bliss (akhand sukh)".

With regard to the speech at Athana on 9 February, 1967 the E allegations within the meaning of section 123 ( 4) of the Act were twofold.

First that the appellant published the false allegation that the respondent had bribed Kajod Dhabad with Rs. 5000 and had set up him as a candidate. The second allegation was tht at the same speech the appellant publisheq the false story that the respondent had set up a man to hit the appellant with a knife. The High Court accepted the oral evidence of tlie respondent and four F witnesses Kishan. Lal Teli P.W. I, Ghisa Dhakad P.W. 2. Laxmi Lal P.W. 5 and Chand Mohammad P.W. 6.

The High Court did not accept the oral evidence of the appellant or of the witnesses on behalf of the appellant.

The High Court found the witnesses on behalf of the respondent to be straightforward and impartial.

On the other hand, the High Court found the witnesses on behalf G of the appellant to be persons who knew what they had come for and asserted general statements of denial.

The respondent filed an affidavit along with the election petition.

The affidavit did not disclose the source of information in respect of the speeches alleged to have been made by the appellant Section 83 of the Act requires an affidavit in the prescribed form H in support of allegations of corrupt practice.

Rule 94-A of the Conduct of Election Rules 1961 requires an affidavit to be in form No. 25.

Form No. 25 requires the deponent to state which statements are true to knowledge and which statements are true to

infonnation.

Under section 87 of the Act very 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 to the trial of suits.

Under section 102 of the Code the High Court may make rules regulating their own procedure and the procedure of the Civil Courts subject to their supervision an..; may by such rules vary, alter or add to any of the rules in the First Sched.ule to the Code.

Rule 9 of the Madhya Pradesh High Court Rules in respect of election petitions states that the rules of the High Court shall apply in so far as they are not inconsistant with the Representation of the People Act, 1951 or other rules, if any, made thereunder' or of the Code of Civil Procedure in respect of all matters including inter alia affidavits.

Rule '7 of the Madhya Pradesh High Court Rules states that every affidavit should clearly express how much is a statement and declaration from knowledge and how much is a statement made on information or belief and must also state the source or grounds of information or belief with sull)cient particularity.

Form No. 25 of the Conduct of Election Rules requires the deponent of an affidavit to set out which statements are true to the knowledege of the deponent and which statements are true to his information. The source of information is required to be given under the provisions in accordance with Rule 7 of the Madhya Pradesh Hjgh Court Rules.

In so far as form No. 25 of the Conduct of Election Rules requires the deponent to state which statements are true to knowledge there is no specific mention of the sources of information in the form.

The form of the affidavit and the High Court Rules are not inconsistant.

The High Court Rules give effect to provisions of Order 19 of the Code of Civil Procedure.

The importance of setting out the sources of information in affidavits came up for consideration before this Court from time to time.

One of the earliest decisions is State of Bombay v.

Parshottam Jog Naik, [1952], S.C.R. 674, where this Court endorsed the decision of the Calcutta High Court in Padmabati Dasi v. Rasik Lal Dhar, I.L.R. 37 Cal. 259, and held that the sources of information should be clearly disclosed.

Again, in Barium Chemicals Ltd. & Anr. v. Company Law Board and Ors., [1966] Supp. S.C.R. 331, this Court deprecated 'slip short verifications, in an affidavit and reiterated the ruling of th.is Court in Bombay, case (supra) that verification should. invariably be modelled on the lines of Order 19 rule 3 of the Code 'Whether the Code applies in terms or not'.

Again, in A. K. K.

V. K. SAKLECHA v. JAGJJWAN (Ray, J.) 961

A Nambiar v. Union of India, (1970] 3 S.C.R. 121 this Court said that the importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations.

Counsel on behalf of the appellant contended _ that non-!lis- B closure of the sources of information in the affidavit was a fatal dcfei:t and the petition should not have been entertained. rt is not necessary to express any opinion on that contention in view of the Uict that the matter was heard for several months in the High Court and thereafter the appeal was heard by this Court. The grounds or sources of, information are to be set out in an affidavit c in_ an election petition.

Counsel on behalf of the respondent submitted that the decisions of this Court were not on election petitions.

The rulings of this Court are consistent. The grounds or sotirces of information ilre to be set out in the affidavit whether the Code a:pplies or not.

Section 83 of the Act states that an election petition shall be verified in the manner laid down in the Code.

The verification is as to information received.

The affidavit is to D be modelled on the provisions contained in Order 19 of the Code.

Therefore, the grounds or sources of information are required to be stated.

The non-disclosure of grounds or sources of information in an election petition which is to be filed within 45 days from the date of election of the returned candidate, will have to be scrutinised from two points of view.

The non-disclosure of the grounds will indicate that the election petitioner did not come forward with the sources of information at the first opportunity.

The real importance of setting out the sources of information at the. time of the presentation of the petition is to give the other side notice of the contemporaneous evidence on which the election peti_tion is baied.

That will gj¥e an opportunity to the other side to test the genuineness and veracity .of the sources of inforination.

The other point of view is that the election petitioner will not be able to m-0 l; e any departure from the sources or grounds. If there is any emJellishment of the case it will be discovered.

The non-disclosure of grounds or sources of information in the affidavit of the election petitioner in the present case assumed importance by reason of the fact that the respondent said that he had a written report about the alleged speech at Athana and the

report was given to the respondent by Ram Kumar Aggarwal.

Ram Kumar Aggarwal was also a candidate of the Congress party at the same election from the same constituency which is the subject matter of the appeal.

Ram Kumar Aggarwal was not examined <ts a witness.

The written notes of Ram Kumar Aggarwal were admitted by the responde_nt to be with him.

The respondent gave the explanation for non-production of Ram Kumar Aggarwal that he produced only such wimesses who either opposed him in the election or were independent.

As to persons who opposed him in the election the respondent stated that they were summoned by him through court and those who were independent

wer~ brought by him personally to court. The . non-production

of Ram Kumar Aggarwal and of the notes made by him at the B meeting at Athana raises as irresistible. inference against the respondent that the same would not have supported the respondent's case.

Witnesses on-behalf of the respondent Kishan Lil Tell, Ghisa Dhakad, Laxmi Lal, Chand Mohammad and Bansi Dhar Bairagi gave oral evidence in identical words and language that the respondent had instigated Mohd. Kasai to attack the appellant with a knife and that the respondent had set up Kajod Dhakad paying Rs. 5000 and if Joshi became a legislator there will be rule of goondas.

Kishan Lal Teli was the polling agent of the respondent.

He denied that he was one.

He was shown the polling agent forms Exhibits R-1/39 and .R-1/40.

H~ stated that the signatures might be his.

The respondent admitted that Exhibits R.1/S9 and R-1/40 were signed by him but Kishan Lal as not prepared to admit his own signatures on the polling agent forms.

Kishan Lal Teli was neither straightforward nor impartial.

Kishan Lal Teli said that there were 5 or 6 metings in the village during the time of the election but the only meeting which he attended was at Athana.

That is indeed strange and significant.

Kishan Lal Teli said that there were 6 speakers and he remembered the sequehce in which the speaker spoke.

Kishah Lal Teli said that he spoke entirely from memory.

Ghisa Dhakad also spoke from piemory.

He mentioned about 6 speakers.

Ghisa Dhakad also happened to be a. witness who attended the meeting at Athaµa only.

A curious feature of Ghis.a Dhakad's evidence is that he did riot speak about the speech

to anybody till he gave evidence in court. It would be beyond comprehension as to how the respondent would cite Ghisa Dhakad . G as a witness to support the allegations , wjlen Ghisa Dhakad remained silent and unknown. It is also in i:\tidence that Ghisa Dhakad was the worker of the appellant's opponents . .

Laxmi Lal P .W. 5 also happened to have attended the solitary meeting at Athana and no other meeting.

Laxmi Lal also mentioned the speakers in the same sequence as the other witnesses H did.

Laxmi Lal said that he remembered the speeches of everybody who spoke.

Laxmi Lal in cross-examination stated t!Jat the appellant also talked of 'Lagan'. When he was asked as to why

A he did not meµtion this fact in his examination-in-chief, his ans"1er was that the appellant had mentioned of 'Lagan' at the end of the speech, and, the.refore, he did not speak about it in examination in-chief.

This indicates as to how Laxmi Lal tried to impart oti ginality to his version of remembrance of things.

B Chand Mohammad was believed by the High Court with regard to his presence at Athana but was disbelieved with regard to his presence at Sarwania Masania.

It may be stated here that the High Court did riot accept the case of the respondent with regard to Sarwania Masania.

Chand Mohammad happened to be a casual witness with regard to the meeting at Athana.

His evi C dence was that he was going to the house of Dhakad J(heri and he stopped for a minute or two to listen to Jaq Sangh speakers.

That is how he heard the appellant peaking. The fortuitous manner in which Chand Mohammad attended the meeting at Athana shows that he was introduced to support the respondent by rej>eating what the previous witnesses said about the Athana meeting.

This will be apparent in view of the fact that when D Chand Mohammad was examined for the second time like some other witnesses he said that he heard the speech of th apllant for a minute or two but he left th~ meeting before tlie appellant's speech was over. When Chand Mohammad was confronted with his previous statement his explanation was that on the earlier occasion he was thinking about the meeting of Kajod Dhakad, yet the High E Court accepted the evidence of Chand Mohammad to be impartial and impressive.

Bansi Dhar Bairagi P. W. 4 was found by the High Court to be angry with the appellant's party.

But the High Court accepted . the evidence of Bansi Dhar Bairagi on the ground that his evidence was corroborated by the statements of Laxmi Lal, Ghisa Dhakad and Chand Mohammad.

Bansi Dhar Bairagi proposed the name of Ram Kumar Aggarwal who was supposed to have taken notes of the Athana meeting and who never came to the witness box.

Bansi Dhar Bairagi was also associated with Kajod Dhakad. Bansi Dhar Bairagi's evidence was that he went to propose the name of Kajod Dliakad but when he was going to propose the name his G hand began' to shake.

That is indeed a very shaky explanation.

A curious part of the evidence of Bansi Dhar Bairagi is that the appellant spake of cow killing at the Athana meeting.

That was not the case even of the respondent.

Bansi Dhar Bairagi's evi dence in respect of his presence at Sarwania Masania was not accepted by the Court on the ground that he was a casual witness.

H Banst Dhar Bairagi was the election agent of Kajod Dhakad. The nomination paper ()f Kajod Dhakad was proposed by Ram Chand

Nagla brother of Badri Nath Nagla the President of Jawad Mand Congress. Badri Nath Nagla was the proposer and the counting

agent of the respondent.

These features point to the inescapable A conclusion that the witness was not only interested but also partisan.

The witnesses on behalf of the respondent appeared to be present only at the Athana meeting.

They did not attend any other meeting.

They spoke entirely from memory.

Their version of B the speeches was in the same words and language. One of the witnesses was unknown to the respondent and the respondent also did not know anything about him until he gave evidence in court.

The witnesses on behalf of the respondent seemed to have phenomenal memory.

Each witness spoke in the same sequence.

Each . witness spoke in the same language.

Each witness mentioned the C names oi the speakers in the same order.

The entire evidence on behalf of the respondent is tutored and prompted to support the respondent. The High Court was wrong in relying on the oral evidence of the respondent and his witnesses.

I.n the ckground of the entire oral evidence adduced on behalf of the respondent it is apparent as to why the respondent did not mention the grounds or sources of information in the affidavit.

There were no real sources.

Sources were fabricated.

There is not a single piece of D documentary evidence to support.the ca8e of the respondent.

The alleged notes of the meeting at Athana wh\ch were admitted by the respondent to be in existence never saw the light oi the day. The withholding of that document gives a J, ie to the respondent's case.

It is obvious that if there were in exislence any notes the respoO:- E. dent would have exhibited them at the earlier opportunity.

The High Court not only disbelieved the witnesses produced on behalf of the appellant with regard to the meeting at Athana but also made certain observations about the first information report lodged by Sunder Lal Petlia R.W. 35. with regard to an incident F at Athana at the day of the meeting .. A criminal case is pending as a result of that report lodged by Petlfa.

The High Court held that the first information report is a forgery.

It is true that the High Court in one part of the judgment stated that whateve( was stated by the High Court abput the first information report should not affect the judgment of the Magistrate.

The High Court was wrong in pronouncing observations on the report lodged by Petlia.

G We are unable to accept the views o4' the High Court on the report lodged by Petlia inasmuch as the criminal case is pending.

The respondent's allegations with regard to the meeting at Jhatla on 12 February, 1967 are under two heads.

First, that the apoellant is guilty of corrupt practice as defirned in section 123 ( 4) H pf the Act inasmuch the appellant published falsely that the respondent had set up somebody armed with a knife to attack the appellant.

The second head was that the appellant was guilty of cOITUpt

practice as defined in sections 123(2) and 123(3) of the Act by appealing to voters on the ground of religion and threatening them with divine displeasure if they voted for the Congress candidate.

The speech alleged to be made by the appellant at Jhatla on 12 February, 1967 was that 20 February, 1967 was the sacred day bemg a Monday gyaras and to give a vote to the cow killing Congress on that day was equivalent to cutting doWill one cow and it would be on the voters to bear the responsibility for the sin. The High Court accepted the oral evidence of the respondent and his witnesses.

The respondent said that Mohan Lal Ramji Lal took notes of the meeting at Jhatla.

Mohan Lal Ramji Lal was not examined by the respondent.

The alleged notes were also not produced.

These features indicate that there were no such notes for if the notes were in existence the relipondent would have produced the same in proof of the allegatfons.

The respondent is a lawyer.

The respondent not only understands but also appreciates the importance of documents if they happen to be contemporaneous documentary evidence.

The witnesses on behalf of the respondent with regard to the speech at JJratla were Daulat Ram Sharma P.W. 12, Kastur Chand Jain P.W. 13, Ratan Lal Jain P.W. 14 and Prabhu Lal P.W. 15.

The common features of all these witnesses are that each witne><

spoke in identical words and in the same sequence about the speeches of the appellamt.

Daulat Ram Sharma admitted that he had no occasion to repeat the speech to anybody except when he came to depose\in court.

Daulat Ram Sharma went in search of his cattle to the pond at Jhatla.

He could not find his cow.

He went to purchase tobacco.

When he reached the shop he saw a meeting oi Jan Sangh going F on.

He heard the speech of the appellant.

He does not belong to Jhatla but lives at Jhabarka Rajpura at a distance of 3 furlongs . from Jhatla.

It is indeed remarkable that a person who by chance walked to the meeting would not only remember the entire speech ascrited to the appellant in the election petition but also depose to it in court without ever !raving mentioned the speech to anybody G . and in particular the respondent.

Daulat Ram Sharma stated that this was th~ only meeting attended by him in his life.

Such a witness cannot inspire any confidence.

Kastur Chand Jain was the polling agent of the respondent. He discussed with the respondent the latter's defeat about two months after the election.

He told the respondent that he would give evidence in court without any summons.

He attended the Congress Session and is associated with the organisation.

As an instance of his power of memory he said tlrat he could repeat the speech of

the Congress Parliamentary candidate delivered on 24 February, 1967.

This witness appears to be partisan.

. Ratan Lal Jain was also associated with the Congress organisat10n.

He went to the extent of saying that he did not know that voting for Congress meant voting for the respondent who was a Congress candidate. ' Prabhu Lal came to give evidence along with Ratan Lal Jain P.W. 14 and Kastur Chand Jain P.W. 13.

They all stayed together at Mahalaxmi Lodge. 'They also met the respondent though they denied that they h_ad any talk with the respondent about the evidence.

It is incomprehensible as to how the respondent would cite such persons as witnesses unless the respondent knew what they were going to spe, ak about. A witness is not called by a party unless the party knows that the person can testify to the facts in the <:ase.

Witnesses on behalf of the respondent gave the impression that they never mentioned to anyone about what they knew. If that be the position it would not be possible for the respondent to cite them as witnesses.

These features indicate that the witnesses appeared to give a semblance of disinterestedness whereas in fact they were all tutored to support the case of the respondent. . The impression produced by the witnesses is that their version of the speeches was similar to reading cyclostyled copies of the speech.

We are uinable to accept the conclusion reached by the High Court about the speeches ot the appellant at Jhatla.

The respondent alleged that the appellant delivered a speech .· at Singoli on 29 January, 1967. The allegations are that the appellant committed the corrupt practice within the definition of section 123 ( 4) of the Act by publishilll.g the false allegations that the respondent had paid Rs. 5000 to Kajod Dhakad to set him up as a candidate. The respondent also alleged that besides the appellant one Swami Brahmananda of Himach!l] Pradesh and Khuman Singh of Nimech also spoke at the meeting at Singoli on the same day.

The High Court accepted .the oral evidence of P.W. 16 Paras Ram, P.W. 17 Bhanwar Lal, P.W. 18 Ram Chandra Sharma, P.W. 19 Nathu Lal and P.W. 22 Mange Lal Pancholi.

P.W. 18 Ram Chandra Sharma admitted his signatures on Exhibits R-1/5 and R-1/6.

These two documents are minutes of meeting of the Congress party of Singoli helg in the months of August and October, 1966.

Ram Chandra Sharma's _name appears in the notices of the meetings of the Congress Party m the months of August and October, 1966' at Silll.goli which are J?-xhibiits R-1/7 and R-1/8.

Ram Chandra Sharma appears as a signatory to. the minutes.

After having admitted the signatures Ram Chandra

A Sharma made attempts to disown his signatures. Exhibits R-1/9,

R-1/10, R-1/11, R-1/12, R-1/13 and R-1/14 are receipts signed by the witness Ram Cham.dra Sharma. These receipts relate to expenses for meals and refreshments arranged for the workers near about th~ time of the election.

Ram Chandra Sharma denied his signatures but he admitted that the Congress workers and other B customers paid him for the meals. He denied that he gave the ' respondent any receipt.

R:am Chandra Sharma obviously wanted to extricate himself from the receipts which nullified his oral evidence.

Ram Chandra Sharma was a very interested , witness and he was directly associated with the respondent.

Ram Chandra Slrarma said that the only meeting he attended in his life was the c one at Singoli on 29 January, 1967.

Such singular attendance is not only suspicious but also mendacious.

Ram Chandra Sharma not only gave from! his memory the speech of the appellant at Singoli but also added a gloss to it by stating that the appellant spoke about tax on sugar.

It was not even the case of the respol)- dent that the appellant spoke about tax on sugar.

D P.W. 22 Mange Lal also suppbrted the case of the respondent about the appellant's speech at Singoli on 29 January, 1967. •Like Ram Chamdra Sharma he also said that the appellant talked about tax on sugar.

This shows how this pair of witnesses played the parrot in giving evidence. Mange Lal was confronted with Exhibit R-1/19 and Exhibit R-1/19A.

These two receipts are in respect E of rent of the building owned by Mange Lal.

The receipts are on account of rent from the respondent. Mange Lal said that he gave the receipts at the instance of Radha Kishan.

The further explanation given by the witness was tliat the house was mortgaged with Radha Kishan.

No document was produced to prove the

F mortgage.

Radha Kishan is Mange Lal wife's uncle.

Mange Lal's attempt to explain away the receipts for rent was futile.

Mange Lal also appears to be one of the conveners of the Congress meeting as' will appear from Exhibits R-117 and R-118. He is also signatory to the minutes Exhibits R-1/6. Mange I.:al said that the only meeting he ever attended was at Singoli on 29 February, 1967. He had never any talk with the respondent about the G speech at Singoli.

These wilinesses establish wjthout any doubt that they were not truthful witnesses but came prepared to support the respondent's case.

The other witnesses P.W. 17 Bhanwar Lal and P.W. 19 Nathu H Lal. also spoke about the appellant's alleged speech at Singoli on 29 January, 1967.

These two witnesses also gave evidence about the speech of Swamiji of Bhanpura at Singoli on 15 February,

1967. The High Conti accepted the evidence of these witnesses.

~UPREME COURT REPORTS

(1972] 3 S.C.R.

We are unable to accept the evidence of Bhanwar Lal and Nathu A Lal for the reasons to be given while discussing their evidence in connection with the meeting at Singoli on 15 February, 1967.

The respondent alleged that the appellant was guilty of corrupt practice within the meaning of sections 123(2) and 123(3) of the Act by reason of the three speeches delivered by the Swamiji of B Bhanpura on 15 February, 1967 at Morwan, Diken and Singoli.

The respondent alleged that the speeches were at the insta/lce of audie; nce.

With regard to the speech at Morwan apart from the respondent there were three witnesses on his behalf. They were P.W. 7 Manek Lal, P.W. 8 Ratan Lal Gaur Banjara and P.W. 9 Gulzari Lal Mahajam.

Manek Lal gave evidence twice.

The second time he gave evidence was in accordance with the understanding given by the respondent before this Court to produce some of the witnesses at his own cost.

That undertaking was giv(Jll at the hearing of an application by the appellant in this Court for transfer of the case to another court.

When Manek Lal gave evidence on the first occasion he did not mention that Swamiji of Bhanpura said at the meeting at Morwan on 15 February, 1967 that 20 February was a sacred day and to vote for CQtlgress on such a sacred day would be to commit the sin of cow killing.

Manek Lal said that he attended the meeting of the Congress and of the Jan Sangh and he voted.

Gulzari Lal said that the Morwan meeting was the o.nly meeting he ever attended.

Both Manek Lal and Gulzari Lal like other witnesses gave evidence about the speecb. of Swamiji of Bhanpura in identical language and in the same sequence.

The hollowness of the evidence adduced on behalf of the respondent is revealed by the testimony of Ratan Lal Banjara: He was confronted with Exhibit R-1/27.

The Higb. Court described this document to be "purloined brief." Exhibit R-1/27 is a docu- . ment which contains the date and hour of the meeting at Morwan, the text of the speech at Morwan.

Thereafter there are 7 questions

and answers.

The questions are as to when did Swamiji come; how be came; who came with him; and it is also written in that document that the appellant came and listened to the speech and expressed gratitude and thanks to the public.

Ratan Lal Banjara denied that he was tutored through that document The alleged speech of Swamiji of Bhanpura is typed in Hindi.

One of. the notes in that document is that Moti Khema Jat and Gordhan Smgh were not seen at the meeting.

Those two persons were cited by H the appellant as witnesses.

It is indeed curious. that witnesses would spcifically say as to who were not present and the names of such persons who were not present are those who are cited by the

V. K. SAKLECHA v. JAGJ!WAN (Ray, J.) 969

respondent as witnesses.

It is not only unnatural but extraordinary that witnesses would notice as to who were not present at the meeting which, according to the witnesses, was attended by 500 persons.

The respondent was shown Exhibit R-1/27.

His explanation was that the notes were prepared for instructions to his counsel.

The tenor of the document and the que 'lions and answers point with unerring accuracy that the documer. t was prepared to coach witnesses.

The respondent said that he had prepared such note's for every meeting.

Other documents did not see the light of the day.

That would support the conclusion that other witnesses had been similarly prepared. It explains why all witnesses spoke the same language.

All witnesses were coached.

The respondent said that Jai Ram Jat had taken notes of th meeting at Morwan and gave the same to the respondent.

The respondent said that the notes were not of significance, and, therefore, he did not take the notes from Jai Ram Jat. If the notes D were not significani the Morwan meeting also ame insignificant.

The non-production of the notes and of the author of the notes are additional features to establish the vacuity of the respondent's allegations about the speech of Swamiji of Bhanpura at Morwan.

The High Court referred to an article published in 'Sudesh' in the issue dated 30 November, 1966. There was an article written by Swamiji of Bhanpura. The High Court observed that Swamiji of Bhanpura wrote in that article that the killing of cow was one manner of killing God, and, therefore, it was exfremely probable that a person who held that view would while speaking of cow protection give a deeply religious complexion and would condemn those who did not share his views.

This is a strange logic.

We are unable to accept the evidence of the respondent and his witnesses that there was any speech at Morwan that to vote for the Congress would be to commit the sin of cow killing.

The respondent's further case is that Swamiji of Bhanpura delivered a speech at Singoli on 15 February, l967. This speech was illso alleged by the respondent to be an appeal on the ground of religion and a threat that the voters. would incur divine displeasure if they voted for the 'cow killing Congress'.

The High Court relied on the evidence of P.W. 16 Paras Ram and P.W. 17 Bhanwar Lal.

Paras Ram was confronted with a document Exhibit R-1/50. That document contains the minutes of the meeting of the Congress party at Singoli on 26 August, 1966.

The name Of Paras Ram is mentioned there.

The name of one Ratan Lal is also mentioned there.

The High Court held that Paras Ram was a common name and there was nothing to show that Paras

Ram in Exhibit R-1/50 was the same Paras Ram who appeared A as a witness.

Paras Ram said that Madan Lal Sharma a Jan Sangh worker made an announcement about the meeting.

Madan Lal Sharma R.W. 16 gave evidence on behalf of the appellant and denied that he made any announcement.

The High Court relied on the crossexamination of Bhanwar Lal P.W. 17.

Bhanwar Lal in his evidence stated that Madan Lal Sharma of Singoli made the announc~ ment.

It was suggested to Bhanwar Lal in cross-examination that there was no such announcement.

The High Court read that suggestion to mean that there was no person of the name of Madan Lal Sharma in existence.

That is totally misreading the suggestion.

Ir is also not reading the evidence of Madan Lal Shanna R.W. 16 in the correct perspective.

Paras Ram was living at Nimech for the last 15 years.

The respondent also admitted that Paras Ram lived at Nimech.

Paras Ram said that he never attended any meeting excepting the one

at Singoli.

Paras Ram .narrated the speech oi Swamiji from D memory.

He also said that he never had any discussion with any witness or even with the respondent about the speech. 'If that were so, the respondent would not be able to call Paras Ram as a witness.

This attitude is typical of almost all the witnesses on behalf of the respondent.

The witnesses wanted to give the appearance of detachment and disinterestedness.

The evidence indicates that they were coached and they were not only interested in the Congress E organisation but also in the case of the respondent.

Paras Ram denied that there was any case pendinii: against him under section 107 of the Criminal Procedure Code.

When he was confronted with Exhibit R-1/4 he admitted that he WR$ prosecuted.

He also admitted that the respondent was his counsel in suits which F were pending against him.

Paras Ram also admitted that his father went on a pilgrimage and Bha.nwar Lal P.W. 17 was taken by his father.

Paras Ram said that he came to court in the company of Bhanwar Lal.

Bhanwar Lal was known to the respondent.

The respondent ivas his lawyer.

Bhanwar Lal cooked for Congress workers.

He G came to Singoli for election purposes.

Bhanwar Lal admitted that he went with the father of Paras Ram on a pilgrimage.

Bhanwar Lal remembered the speech of the appellant at Singoli, on 29 January, 1967 as also the speech of Swarniji of Bhanpura.

Bhanwar Lal and all other wilJlesses who spoke about the speech , H of Swarniji narrated the same in the same language and :Hi 'the same order. The first pan of the speech related to cow, the second

part being an appeal to religion and the third part related to. ah

-.-~

::t

appeal to voters that voting for Congress would amount to a sin.

Reading the evidence in print one gets the impression that each witness came prepared to play the part assigned to him.

Exhibit R-1/8 dated 26 August, 19fi6 is a notice for a meeting of the Congress Committee at.Singoli.

Exhibit R-1/50 dated 26 August, 1966 is the draft resolution of that committee meeting. It is written biy the respondent.

Exhibit R-1/5 dated 26 August, 1966 contains the minutes oi the meeting at Singoli.

Exhibit R-1/6 contains the minutes of the meeting of the CQ!lgress committee at Singoli on 2 October, 1966.

These documents show that Paras Ram, Bhanwar Lal and Ram Chandra Sharma were connected with the Congress organisation.

The respondent was also associated with the Congress committee: The minutes showed that Ratan Lal Petlia was a member of the committee.

The respondent's witnesses stated that Ratan Lal Petlia was a worker of the Jan Sangh.

The reason for saying so was that Ratan Lal Petlia was cited by the appellant as a witness.

Tue records show that Ratan Lal Petlia was associated with the Congress organisation.

D Ratan Lal Petlia R.1 W. 10 said that he was associated with the tongress organisation at Singoli.

He denied that Swamiji of Bhanpura made any appeal to the voters that voting for Congress would amount tiJ the sin of killing cow.

The respondnes witnesses wanted to condemn Ratan Lal Petlia by saying that Ratan Lal Petlia made arrangements for Jan Sangh.

That is another illus- E

tration of the partisan character of the respondent)_.witnesses.

Nathu Lal P.W. 19 was believed by the High Court.

It transpired in the evidence that N athu Lal became liable to pay Rs.· 372.06 to Krishi Sewa Sehkari Samiti and also to account for 73 bagHlf super-phosphate.

Nathu Lal signed the document R-1/15, At the ume of giving evidence he said it was Chhote Lal who promised to pay and account for the phosphate. He did not rest content with that position.

He said. that he signed the document as a member.

The High Court did not consider these justi-· tied criticisms of the evidence adduced on behalf of the respondent.

Manna Lal P.W. 20 gave evidence not only about the speech of Swamiji of Bhanpura at Singoli on 15 February, 1967 t also of the speech of the appellant at Singoli on 29 January, 1967. As tiJ the appellant's speech Manna Lal said that the appellant talked of 'cow killing Congress 10 times' and !hat is how he remembered the speech.

He narrated the speech of !he appellant like other witnesses. in the same language.

Manna Lal said that Swamiji of Bhanpura spoke about voiing for dharrna and cow.

Manna Lal came to court from Singoli along with Ram Chandra Sharma.

The overwhelming impression produced by the witnesses on. behalf of the respondent is that they were all prepared on the same

pattern of evidence.

We are unable , o hbld on the entire evidence A that there was any appeal on the ground of religion or that there was any threat to voters of divine displeasure if they voted for the Congress.

The respondent alleged that there was a meeting at Di.ken on 15 February, 1967 where Swamiji of Bhanpura spoke.

The al!e- B gations are that there was an appeal o.n the ground of religion.

The respondent produced two witnesses Shanti Lal P.W. 10 and Ram Bilas P.W. 11.

Shanti Lal's evidence was that the cow slaughter should be stopped and Monday gyaras was a holy day and all should vote for Jan Sangh and thus earn happiness an.d bliss and it was the duty of every Hindu not to vote for cow killing Congress.

This evidence does not support the respondent's case.

Shanti Lal said that his family left on 10 February, 1967.

His family members went to Byama in Rajasthan to attend a marriage ceremony.

Shanti Lal however said that he stayed on.

He left on 16 February, 1967 and returned on 28 February, 1967. This was to make it possible for him to l:je present at Di.ken on 15 February, 1967.

Ram Bilas P.W. 11 narrated the speech.of Swamiji of Bhanpura.

He however said that he had no talk with the respondent.

It becomes difficult to follow as to how the respondent would know about the presence of the witness at Diken and then cite him as a witness.

The respondent gave an undertaking to this Court to produce the witness for cross-examination.

The witnesses however were not produced.

That is another reason to hold that the-respondent's case was not true.

For the foregoing reasons the judgment of. the High court is F set aside.

The election petition is dismissed.

The trial in the High Court lasted over 180 days.

Both parties should .have conducted the case with precision and clarity.

The parties could have shortened the matter. Both parties are to pay and bear their own costs in the High Court as well as in this Court.

G.C.

Appeal allowed.

VIRENDRA KUMAR SAKLECHA

JAGJIWAN AND ORS

March 22, 1972

A. N. GROVER

A. N. RAY, JJ

Conduct of Election Rules, 1961

Madhya Pradesh HiRh Court Rules

s. 123

Representation of the People Act

s. 123

s. 123

s. 116

People Act, 1951

Pradesh High Court Rules

1970] 3 S.C.R. 121

Section 116

People Act, 1951

S. L. Sibbal

S. L.

GarK

S. K. Gambhir

M. N. Phadke

U. N. Bachawat

P. C. Bhar•ari,

B. Dad+i- ' chanfi

O. C. Mathur

Ravinder Narain

N. K. Shejwalla

N. K. Shejwalla, Pramod Swarup, S. S. Khanduja and lalita Kohli, for respondent No.

Pramod Swarup

S. S. Khanduja

lalita Kohli

G

Ray

section 123(4)

Representation of the People Act, 1951

section 123

the Representation of the People Act, 1951

the Representation of the People Act, 1951

section 123(2)

Jhatla

Morwan

SiiJ.goli

Diken

Bhanpura

31 January, 1972

Jagjiwan Joshi

The appellant and the respondent Jagjiwan Joshi and the other two respondents were four.

Jawad

section 123

Singoli

Athana

Kajod Dhakad

5000 set up Kajod Dhakad ...... so that the Jan Sangh votes may be split and he might .

Joshi

Joshi has set up Kajod Dhakad on payment of Rs.

section 123

Moham-. mad Kasai

sections 123(2) and 123(3)

12 February, 1967

sections 123(2) and 123(3)

15 Fel:lruary, 1967

N'.orwan

Bhagwan Gopal

The Congress is killing the cow-progeny (go-vansh) of Bhagwan Gopal.

Saklecha

Shri Saklecha is your Chief Minister to be.

Diken

At Diken :-

\ 'There was a yagna for putting an end to the cow killing in this country.

9 February, 1967

section 123

Kajod Dhabad

Kishan. Lal Teli

The High Court accepted the oral evidence of tlie respondent and four F witnesses Kishan.

Ghisa Dhakad

Laxmi Lal

Laxmi Lal P.W. 5 and Chand Mohammad P.W. 6.

Chand Mohammad

Section 83

Conduct of Election Rules 1961

section 87

the Code of Civil Procedure

section 102

Representation of the People Act, 1951

the Code of Civil Procedure

the Code of Civil Procedure

Calcutta High Court

Bombay

Order 19 rule 3

(1970] 3 S.C.R. 121

Section 83

Ram Kumar Aggarwal

Kishan Lil Tell

Bansi Dhar Bairagi

Mohd. Kasai

Kishan Lal Teli

Kishan Lal Teli was the polling agent of the respondent.

Kishan Lal

Kishah Lal Teli

Kishah Lal Teli said that he spoke entirely from memory.

Ghis.a Dhakad

Ghisa Dhakad

It is also in i:\tidence that Ghisa Dhakad was the worker of the appellant's opponents . .

Laxmi Lal

B Chand Mohammad

Sarwania Masania

Dhakad J(heri

Chand Mohammad

D Chand Mohammad

Bansi Dhar Bairagi

Bansi Dhar Bairagi

Bansi Dhar Bairagi was also associated with Kajod Dhakad.

Kajod Dliakad

H Banst Dhar Bairagi

H Banst Dhar Bairagi was the election agent of Kajod Dhakad.

Ram Chand

Nagla

Badri Nath Nagla

Jawad Mand Congress

Sunder Lal Petlia

Petlfa

Petlia

The High Court was wrong in pronouncing observations on the report lodged by Petlia.

section 123

sections 123(2) and 123(3)

20 February, 1967

Mohan Lal Ramji Lal

The respondent said that Mohan Lal Ramji Lal took notes of the meeting at Jhatla.

Mohan Lal Ramji

Mohan Lal Ramji Lal was not examined by the respondent.

JJratla

Daulat Ram Sharma

Kastur Chand Jain

Ratan Lal Jain

Prabhu Lal

Daulat Ram Sharma

Daulat Ram Sharma went in search of his cattle to the pond at Jhatla.

Jan Sangh

When he reached the shop he saw a meeting oi Jan Sangh going F on.

Kastur Chand Jain

Kastur Chand Jain was the polling agent of the respondent.

Prabhu Lal

section 123

Swami Brahmananda

Khuman Singh

Nimech

Paras Ram

Bhanwar Lal

Ram Chandra Sharma

Nathu Lal

Mange Lal Pancholi

Ram Chandra Sharma

Ram Chandra Sharma

Ram Chandra Sharma appears as a signatory to.

Ram Chandra

A Sharma

Ram Cham.dra Sharma

R:am Chandra Sharma

Ram Chandra Slrarma

Mange Lal

29 January, 1967

Ram Chamdra Sharma

•Like Ram Chamdra Sharma he also said that the appellant talked about tax on sugar.

Mange Lal

Radha Kishan

Mange Lal said that he gave the receipts at the instance of Radha Kishan.

Mange I.:al

Mange I.:al said that the only meeting he ever attended was at Singoli on 29 February, 1967.

Nathu H Lal

The other witnesses P.W. 17 Bhanwar Lal and P.W. 19 Nathu H Lal.

Swamiji of Bhanpura

Bhanwar Lal

Nathu A Lal

sections 123(2) and 123(3)

B Bhanpura

Manek Lal

They were P.W. 7 Manek Lal, P.W. 8 Ratan Lal Gaur Banjara and P.W. 9 Gulzari Lal Mahajam.

Ratan Lal Gaur Banjara

Gulzari Lal Mahajam

Manek Lal

Swamiji of Bhanpura

15 February, 1967

Gulzari Lal

Gulzari Lal said that the Morwan meeting was the o.nly meeting he ever attended.

Gulzari Lal

Both Manek Lal and Gulzari Lal like other witnesses gave evidence about the speecb.

Ratan Lal Banjara

Swamiji

Moti Khema Jat

Gordhan Smgh

Jai Ram Jat

30 November, 1966

15 February, l967

Paras Ram

Paras Ram was confronted with a document Exhibit R-1/50.

26 August, 1966

Paras Ram

The name Of Paras Ram is mentioned there.

Ratan Lal

The name of one Ratan Lal is also mentioned there.

Paras

Ram

Madan Lal Sharma

Paras Ram said that Madan Lal Sharma a Jan Sangh worker made an announcement about the meeting.

Madan Lal Sharma

Madan Lal Shanna

Ir is also not reading the evidence of Madan Lal Shanna R.W. 16 in the correct perspective.

section 107

Bha.nwar Lal

Swarniji

Ram Chandra Sharma

Ratan Lal Petlia

Jan Sangh

The respondent's witnesses stated that Ratan Lal Petlia was a worker of the Jan Sangh.

D Ratan Lal Petlia

Swamiji of Bhanpura

N athu Lal

It transpired in the evidence that N athu Lal became liable to pay Rs.·

Krishi Sewa Sehkari Samiti

372.06 to Krishi Sewa Sehkari Samiti and also to account for 73 bagHlf super-phosphate.

Nathu Lal

Chhote Lal

Manna Lal

Manna Lal

Manna Lal said that Swamiji of Bhanpura spoke about voiing for dharrna and cow.

Shanti Lal

The respondent produced two witnesses Shanti Lal P.W. 10 and Ram Bilas P.W. 11.

Ram Bilas

Shanti Lal

Shanti Lal said that his family left on 10 February, 1967.

Byama

His family members went to Byama in Rajasthan to attend a marriage ceremony.

Rajasthan


~·

D. N. BHATIACHARJEE & ORS.

STATE OF WEST BENGAL & ANR.

March 22, 1972

[A. N. GROVER AND M. H. BEG, JJ.]

Code of Criminal Procedure (Act 5 of 1898), s. 203-Power of Magis trate to dismiss complaint.

An order of dismissal of complaint under s. 203 Cr. P.C .. has to be made on judicially sound grounds.

It can only be made where the reasons given disclose .that the proceedings cannot terminate \luccessfully in a convicton. A Magistrate is not debarred, at this stage, from goi'lg into .the merits df the ev; denee produced by the complainant, but the object of such consideration could only be to determi 1e whether 1here are sufficient grnund!i for proceeding furtoor.

The mere existence of some grounds which would be material in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessary fail.

On the other hand, such grounds indicate the need for proceeding further in order to discover the truth after a full and 'proper investigation. If, however, a bare perusal of a complaint or the evidence led in supjll)rt of it show that the essential ingred'ents of the offences alleged are ab6ent or that too dispute is only of a cvil nature or that there are such patent absurdit es in the evidence produced that it would be a waste of time to proettd further, the complaint _could be properly dismissed under the section. [9'76 E-Hl

Where, therefore, the Magistrate dismies a complaint on a misread .. ing df the oral evidence and 'he evidence, in fact, does not reveal a'ly absurdity so as to merit a forthright dism:&sal of too complaint under the section, such an order is fit to be set aside by the High Cotirt.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 156 of 1969.

Appeal b!y. special leave from the judgment and order dated April 15, 1969 of the Calcutta High Coutt in Criminal Revision No. 1114 .of 1963.

C. K. Daphtary and D. N. Mukherjee, for the appellants.

G I>. K. Chatterjee and G. S. Chatterjee, tor respondent No. I.

P. K. Mukherjee, for respondent No. 2.

The Judgment of the Court was delivered by

BeJl, J.

On 1f .. 7 -1963 Sunilakshva Choudhry a :Oirector of the Metropolitan Indu1trial Corporation Ltd., CIcut a, havi"g

been authorised by its Boa•d of Directors, filed a complaint agaiqst the appllant Debndra Na•h Bhattacharjee (or Bhattacharya), a former Director, and Banamali Pathak, Cashier of the Bengal 16-L106ISupcin2 .

Luxrni Cotton Mills Ltd., and Hiran Roy, Chief Accountant of the Bengal Luxmi Cotion Mills Ltd., alleging offence punishable under Sec.ions 406/409/467/471/477A/109 JndiJn Penal CJde.

The c:mplainant alleged that, when the Life Insurance business was natioiialbeJ in 1956 the Metrvp !Lan Insurance Co. Ltd.

(hereina, ter referred to as 'the Oimpany') received a sum of about Rs. 10,25,523/· as compensation, a.nd the Company was transformed in.-.:i Metropohtan Industrial Corporaiion (hereinafter referred to as 'the Corporation').

The bu; iness of the Corporation wa; s"id to be c:mfined to making of loans, and dea ings in socks and shares. The complainant was Director of the Company in 1957 and the accused app:llant D. N. Bhattasharjee was albged to be its Managim Di ec or with abs'.llu\e control over the funds of the Company and the only person au'horised to operate the t11anking account of the Company with the Metropolitan Bank Ltd. Jloundabbut October, 1958, alth. ui; h. th: appellant Bhattach1rj 'e was said to have ceased to be the Managing Di-ector, yet, he is alleged to have continued to exrcise the powers he had possessed a; M 1n1ging Director.

Af•er the Company became the Corp ration certain activities of the appellant D N. Bhattacha•jee ae al'eged to hwe come to light and ccmpelbd his resignation on 28-2-1963 so that he hande1 over s0me of the B01ks and reco•ds of the Corporation to the complainant.

The c'>mnlainant, after having examined the records hmded over by D. N. Bhattacharjee, claimed to have found m 1n'bly pay shee•s containing mimes of certain

em~Joyees who were not emnloyees d the Corporatio.n at n and who wee smpced to be fictitiouc as they could not be trased. The comphinant alleed that, .., n furthe• enquiry, he 'qurid that the Corporation had not employed anybbdy at all but h 0 d taken occasional holp from cera•n empJyees of sister concerns which hqd th•ir cfli"es in the s1me building.

Tn o•her words. •he c0mrlainant claimed to have disc've•e1 that the pay-<h~;~ of the Co-voration were totallv f1lse and fabri"ated.

He also comuhined that Jictitious signatures of suppose0ly different persons appeare1 to him to have been m1de by a single pe•s0n so as to appear as signatures of diffre>lt actually existing individuals.

The comota'nant al'eed that his susnicions were confirmed by sending these alloge'1 sigoatur_es t~ a H •ndwriting Exuert f"r ouinion: Accoding to the comulainant, all •hh was dne at the instance of or with the complicity of D. N. Bhattach1riee and wi•h the aid of the two other co-accused.

Tt was asser•e<i that D. N. Bb<i.•t•charjee h•d full lmowled•e f'f what was taking place and had disbonestlv misanoro. priated e.nd c 0 nver'e'1 to his own ue lare sums of money relongilllr .to the cmoration. He aiid •lie .. two cO-•ccmed, who are said ti;) /iil.ve actually Jll'a'de >the e11•iies, wee alleged to have been tJ'eaRed in a GOfl<.nlr'l.C:.V. . 'l'b"- comtill>inant gWe a tis• of five Wis, :lncJudliig µiat .d. • ):land~ &flert, -..id he ielied

D. N. BHATTACHARJEE v. WEST BENGAL (Beg, J.) 97$

upon a number of account books, documents, and records of the Company and the CorporatiJn.

After an enquiry into the allegations contained in the complaint a Presidency Magistrate found p. ima facie evidenc.e of a conspiracy to commit beach of trust by foring receipts and use of forged receipts and falsification of accounts.

On 2-8-1963, the Presi-· dency Magistrate, ordered the case to l6e put up before the Chief Presidency Magistrate for further orders.

On 10-8-1963, the Chief Presidency Magistrate, after giving particulars of the prosecution case and the evidence produced to support it, went on to observe : "In assessing the evidence adduc; d C for the purpose of taking out a process, certain broad tacts and circumstahces and probabilities cannot, in my opinion, be overlooked".

The Chief Preiidency Magistrate . then mentioned the reasons which, in his opinion, justified a dismiss1l of the complaint

wihout issue of process.

He pointed out : firs•ly, that the Company, which was admitted to be a going concern, 'must have had D some of its own employees who must have been taken ove~ by the Corporation in 1960; secondly, that D. N. Bhattacharjee, at the time of his resignation on 28-2-1963 had handed over the records and accunt books of the Company to the complainant which fact indicated that he "probably" did not know th'at any of these were

fored for fabricated; thirdly, that it was "improbable" that the E Corporation could carry on its business without its own emrybyees; fourthly, that evidence had not been led to show what enquiries were made to indicate that .the names on the pay sheet were fictitious; fifthly, that the complainant had h; mself admitted that one or two persons shoMI in the pay sheet might have been employed by the Corporation and that this demoliihed" the wh0]e prosecution ca'e of fictitious entries; and~ six'hly, that the opinbn of the F Handwriting Expert "does not appear to be empJiatic" and w1s. "]"' not supported by "sufficient reasons''. On...trrese grounds, the Chief Presidency Magistrate, after holding thilt there were "rea11v, no sufficient grounds to proceed furth"t'" dismissed the complaint under Sec. 203 Criminal Procedure Code.

G The complainant then invoked the Revisional jurisdition of the Calcutta High Cou-t. That Court, af'er an examination o.f the com'l!aint, the evidence produced for the purpose of i; suing proce's to the accused persons, and the order of the Chief P•esidency Magistrate, came to the conclusion •hat the order of dismiss1! of the complaint under Sec. 203 Criminal Procedure Code was imoroner. ll The High Court held that the o•der contained a pre-mature verdict on the merits of thP, case.

Furthermore, the High Court pointed out that the Chief Presidency Magistrate had .misread the oral evidence in findinp; that the complainant said that one or two persolll'

mentioned in the pay sheets might have been employed by the _A Company sometimes. . A correct reading of the evidence of the complainant, which we have also examined, was that one <Jr two persons may have been employed by the Company from time to time but none of the persons whose names appeared in the pay sheets were any of those persons.

Even if the complainant Jiad said that some of the entries in the account books appeared to be R deliberately false, the complaint would . not have merited a forthright dismissal without further enquiry. The High Court, in our opinion, rightly considered the order pronouncing a judgment on the merits of the case on bare probabilities. and surmises to be premature. The High Court, very rightly, did not express any opinion on merits of the. prosecution case beyond saying \hat the C case call'ed for further enquiry.

Jt, therefoe. set aside the order · of dismissal under Section 203 of the Criminal Procedure Code and' sent back the case for farther enquiry in accordance with law.

The accused have come up to this Court by Special leave against the above--mentioned order of the High Court for further enquiry into the case. It is urged that the High Court should not have, in exercise of its revisional jurisdiction, set aside the Chief Presidency Magistrate's order. We are unable to accept this contention because we think that the Presidency Magistrate had not cor ectly understood the scope and pupose of the powe.r to dismiss a complaint under Section 203 Criminal Procedure Code.

It has to be remembered that an order of dismissal or a complaint under Section 203 Criminal Procedure Code has to be made on judicially sound grounds.

It can only be made where the reasons given disclose that the poceedings cannot terminate successfullv in a conviction.

It is true that the Magistrate is not debarred, at this stage, from going into the merits of the evidence produced by the complainant.

But, the object of such considera-. lion of the merits of the case, at this stage, could only be to determine whether there are sufficient grounds for poceeding further or not.

The mere existence of some grounds which would be mate•ial in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessaily fail.

On the other hand, such grounds may indicate the need for. proceeding further in order to discover the truth after a full and proper investigation.

If, however, a bare perusal of a ccmolaint or the evidence led in supprt of it shw that essen•ial in°redients of the offences alleged are absent or ti)at the dispute is only of a civil nature or that there are such patent absurditi 'S in evidence produced that it would be a waste of time to proceed further, the comphint could be properly dismissed under Section 203 Criminal Procedure Code.

D '

D. N. BHATTACHA!lJEE v. WEST BENGAL (Beg, /.) 977

In the case before us, the learned Magistrate Wl!S in error in assuming that merely because the names of one or two former employees of the Company may be mentioned in the pay-sheets the whole prosecution case was actually demolished. Moreover, as the High Court had rightly pointed out, the complainant's actual evidence had fully supported and not contradicted any part of the complaint.

No such ab urdity was rev, i!aled by .he complainant's evidence as to merit a forthright di-missal of the complaint under Section 203 Criminal Pocedure Code.

What the M gi; trate had to-determine at the stage of issue of proccis was not the correctness or the probability or improbability of individual items of evidence on disputable grounds, but the existence or otherwise of a prima facie ca5e on the assumption that "'hat was stated could be true unless the prosecution allegations were so fantastic that they could not reasonably held to be true.

As e. in agreement with the High Court, think that the 6rder Of the Chief Presidency Magistrate in dismissing the complaint was pre-mature and was also based 01!_ obvious misconceptions, we dismiss this appeal.

V.P.S.

Appeal dismissed:

D. N. BHATIACHARJEE & ORS

STATE OF WEST BENGAL & ANR

March 22, 1972

A. N. GROVER

M. H. BEG, JJ.

Code of Criminal Procedure

s. 203

s. 203

C. K. Daphtary

D. N. Mukherjee

G I>. K. Chatterjee

G. S. Chatterjee

P. K. Mukherjee

BeJl

Sunilakshva Choudhry

Debndra Na•h Bhattacharjee

Luxrni Cotton Mills Ltd.

Hiran Roy

Metrvp !Lan Insurance Co. Ltd.

D. N. Bhattasharjee

D N. Bhattacha•jee

D. N. Bhattacharjee

D. N. Bhattach1riee

D. N. Bb

Chief Presidency Magistrate

Sec. 203

Criminal Procedure Code

Calcutta High

Sec. 203

Criminal Procedure Code

Jiad

Section 203

Section 203

Criminal Procedure Code

Section 203

Criminal Procedure Code

Section 203

Criminal Procedure Code

Section 203

Criminal Pocedure Code