Full Judgment Text
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PETITIONER:
BANSILAL KOHISTANI
Vs.
RESPONDENT:
RISHI KUMAR KAUSHAL
DATE OF JUDGMENT23/03/1971
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
VAIDYIALINGAM, C.A.
SHELAT, J.M.
CITATION:
1971 AIR 1262 1971 SCR 146
ACT:
Jammu & Kashmr Representation of the People Act,
1957--Corresponds to s. 123(4) of the Representation of the
People Act, 1951--Corrupt Practice--Statement as to
character and conduct of candidate, what constitutes--Onus
to prove that statement is false is on petitioner.
HEADNOTE:
In the General Election held in 1967 the appellant and the
respondent had filed their nomination papers for election to
the Jammu and Kashmir Legislative Assembly from the Reasi
Assembly Constituency. The appellant was declared duly
elected. The respondent filed an election petition
challenging the election of the appellant on the ground of
corrupt practices committed by the appellant his agents and
other persons with his consent. The High Court held the
election to be void on the sole ground that the matters
mentioned in paragraphs 16, 17 and 20 of the booklet Ex.
P.W. I/II constituted corrupt practices under s. 132(4) of
the Jammu & Kashmir Representation of the People Act, 1957
corresponding to s. 123(4) of the Representation of the
People Act, 1951. In regard to certain other passages in
the booklet namely paragraphs 7, 8, 10, 18 and 19 of Ex. P.
W. 1/II the High Court held that the allegations therein
were not proved to be false. and therefore fell outside the
ambit of s. 132(4) of the Jammu & Kashmir Act. Appeal
against the High Court’s judgment was filed in this Court by
the appellant. In regard to the allegations in paragraphs
16, 17 and 20 of the offending booklet the appellant urged
that the facts mentioned therein did not relate to the
personal character and conduct of the appellant. The
respondent sought and obtained leave of the Court to
question the finding of the High Court in regard to
paragraphs 7, 8, 10, 18 and 19 of the booklet.
HELD:(i) In order to constitute corrupt practice under
s. 123(4) of the Indian Act and a. 132(4) of the Jammu &
Kashmir Act the false statement should have been in relation
to the personal character of the candidate. If a false
statement is made with regard to the public or political
character of the candidate, it would not constitute a
corrupt practice even if it is likely to prejudice the
prospects of the candidate’s election. Circulation of false
statement about the private or personal character of the
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candidate during the period preceding the election is likely
to work against the freedom of election itself, inasmuch as
the effect created by false statement cannot be met by
denial in proper time and so the constituency has to be
protected against the circulation of such false statements
which are likely to affect the voting of the electors. If a
statement of fact affects the man beneath the politician it
touches the private character; if it affects the politician
it does not touch his private character. Some allowance
will have to be made in respect of statements made in
election meetings as the atmosphere is usually surcharged by
partisan feelings and emotions. Allegations of depravity or
immorality or affecting the moral or mental qualities of a
person are statements relating to the personal character or
conduct of a person. Attributing acts of violence to a
candidate even if such acts are done during his political
career, is a statement relating to the personal character
and conduct. If the conditions of s. 123(4) are satisfied
it is irrelevant to inquire whether the statement has been
made as a counter blast to another statement issued by the
opponent.
147
The statement must be one reasonably calculated to prejudice
the prospects of the candidate’s election. The initial onus
establishing the circumstances mentioned in s. 123(4) is on
the election petitioner and when once he discharges that
onus, the burden shifts to the candidate making a false
statement of fact to show what his belief was. [156G-157D]
Case-law referred to.
(ii)There were no statements of fact in paragraphs 17 and
20 of the Ex. P. W.1/11 in relation to the personal
character or conduct of the respondent. There was no
allegation in paragraph 16 that the respondent was an
associate of drunkards. The averment in the said paragraph
that some of the companions of the respondent on Whose
political support the respondent relied were found drinking
from morning till evening, did not relate to the personal
character or conduct of the respondent. The allegation in
the said paragraph regarding the respondent extricating
himself from a criminal case had been proved to be true and
as such fell outside the mischief of s. 132(4) of the Act.
It followed that the finding of the High Court that the
statements contained in paragraphs 16, 17 and 20 amounted to
corrupt practice under s. 132(4) of the Act, could not be
sustained. [164D-F]
(iii)It is permissible for a respondent in this Court
to support the judgment of the High Court by attacking the
findings recorded against him. However on an examination of
the findings recorded by the High Court in respect of
paragraphs 7, 8, 10, 18 and 19 it could not be held that the
findings therein were erroneous as contended by the
respondent. [165A]
[71B]
Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji & Ors.
[1965] 1 S.C.R. 712 and Shri Thepfulo Nakhro Angami v.
Shrimati Raveluei of Rani M. Shaiza, [1971] 3 S.C.R. 424,
referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 204 of 1970.
Appeal under Section 123 of the J. & K. Representation of
the People Act, 1957 from the judgment and order dated
December 15, 1969 of the Jammu and Kashmir High Court in
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Election Petition No. 37 of 1967.
R.K. Garg, D. P. Singh, A. K. Gupta, R. K. Jain, V. J.
Francis and S. P. Singh, for the appellant.
Ramnath Bhalgotra, Swaranjit Sodhi and S. S. Khanduja, for
the respondent.
The Judgment of the Court was delivered by
Vaidialingam, J.-This appeal, under Section 123 of the Jammu
& Kashmir,Representation of the People Act, 1957
thereinafter to be referred as the Act) as amended by Act 11
of 1967, is directed against the judgment and order dated
December 15, 1967 of the High Court of Jammu & Kashmir in
Election Petition No. 37 of 1967. Section 123 of the Act
corresponds to Section 116A of the Representation of the
People Act, 1951.
148
In the General Election held in 1967, the appellant and the
respondent had duly filed their nominations for election to
the Jammu & Kashmir Legislative Assembly from the Reasi
Assembly Constituency. Scrutiny of the nomination papers
was conducted on January 23, 1967 and the polling took place
on February 21, 1967. The counting of the ballot papers
took place on February 27, 1967 and the appellant was
declared duly elected by a majority of 418 votes. The
respondent filed an election petition on April 8, 1967 being
No. 37 of 1967 challenging the election of the appellant on
the ground that various corrupt practices, set out in the
petition, had been committed by the appellant, his agents
and other persons with his consent in the said election. In
consequence the respondent prayed for declaring the election
of the appellant from the said constituency as null and
void.
In paragraph 6 of the election petition, the respondent enu-
merated the various corrupt practices stated to have been
committed during the election, in consequence of which the
election of the respondent was void. It is not necessary
for us to set out the various corrupt practices referred to
in paragraph 6 of the election petition. The election of
the appellant had been declared to be void by the High Court
only on the ground that the matters mentioned in paragraphs
16, 17 and 20 of the booklet Ex. P. W. 1/II constitute
corrupt practices under Section 132 (4) of the Act
corresponding to Section 123 (4) of the Representation of
the People Act, 1951. We may have to deal with certain
other matters referred to in paragraph 6 of the election
petition in the later part of the judgment, as the learned
counsel for the respondent has tried to support the judgment
of the High Court by attacking the finding recorded against
him in respect of some of those allegations.
Item No. 2 of paragraph 6 refers to the appellant, his
agents, polling agents and other persons with his consent
having published certain posters and booklets containing
statements of facts, which were false and which they either
believed to be false and did not believe to be true in
relation to the personal character and conduct of the
respondent. Sub-item (a) of item No. 2 refers to the
publication of a booklet under the caption "open letter from
Dehati (Rural) Conference to Mr. Rishi Kumar Kaushal and
other Jan Sangh leaders". This is Ex. P. W. 1/ II. It was
published by one Lal Singh R. W. 53, an active worker of the
Indian National Congress and the agent of the appellant.
Lal Singh was later on appointed by the appellant as his
polling agent. Ex P. W. 1 / II was alleged to contain wrong
facts in several paragraph enumerated in the petition.
There were other allegations of corrupt practices mentioned
in paragraph 6 of the election petition.
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149
the allegations that had been made against him by the
respondent in the election petition contained material facts
constituting the alleged corrupt practices. He further
pleaded that the respondent had not mentioned the parties
who are alleged to have committed the corrupt practices nor
the dates and places when the, corrupt practices are alleged
to have been committed. Regarding the various allegations
of corrupt practices, the appellant denied that he had
committed any such corrupt practice and that in any event
the allegations do not amount to corrupt practice in law.
With reference to Ex. P. W. 1/ II, the booklet, the
appellant averred that the publication was really a
rejoinder issued to a poster Ex. P. W. 1/ B issued by the
Jan Sangh party, to which the respondent belonged. He
further pleaded that P. W. 1/ II was published long before
the respondent became a candidate in the election and its
object was to educate the voters of the constituency. With.
reference to the various paragraphs in Ex. P. W. 1/ II,
relied on by the election petitioner as constituting corrupt
practice, the appellant pleaded that the matters referred to
in the booklet do not affect the personal character or
conduct of the respondent and that they never affected him
beneath the politicians. Those matters contained in Ex. P.
W. 1/II dealt only with the respondent as a politician and
they were only criticism of the respondent in his public
character as a politician and of the political party, the
Jan Sangh, to which he belonged. It was only a criticism of
the Jan Sangh party and its economic and political ideology.
He also controverted the various other allegations made in
the election petition.
R.W. 53 Lal Singh has given evidence that he published
the open letter Ex. P. W. 1 / II as a reply to the poster
Ex. P. W. 1/ B issued by the Jan Sangh. He has also stated
that the contents of Ex. P. W. 1 /II are correct and that
the publication was made in the first week of December,
1966.
Issue No. 2 runs as follows :
"Whether the respondent, his election agent
and agents published the booklet "Dehati
Conference kee Taraf se Shri Rishikumar
Kaushal "aur deegar Jansanghi leaderon ke nam
Khuli Chitthi" in the name of one Lal Singh an
active worker of the Congress and distributed
it amongst the voters of the Constituency from
1-2-67 to 20-2-1967 and whether the said
booklet contained facts in relation to Rishi
Kumar petitioner which were false and which
were either believed to be false or were not
believed to be true?".
150
Ex. P. W. 1/11 is a pamphlet. It Purports to be from the
Dehati (Rural) Conference-to Mr. Rishi Kumar Kaushal and
other Jan Sangh leaders. Rishi Kumar is the respondent
herein and he was at the material time a sitting member of
the Legislative Assembly. There is a photo of Lal Singh in
the said pamphlet. It calls itself an open letter. It
consists of 21 paragraphs and the relevant paragraphs for
the purpose of this appeal are Nos. 16, 17 and 20. There
are mistakes in the official English translation of the
pamphlet and there are also mistakes in the translation of
the said paragraphs by the High Court. Both the learned
counsel have agreed before us that the following translation
of the said three paragraphs is substantially correct.
"Paragraph 16-
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Who raised the question of the village and the
town ? When in the month of September, 1966,
two persons of the rural area Sailanjan--Dhani
Ram and Baldev Singh came to Riasi, and they
caught a shop keeper sawing wood in an
unauthorised manner and you with the aid of
your urban colleagues made an attack on them
and raised the question; that these people
from the village come to town and drink and
roam aimlessly like vagabonds etc’ and they
were kept in jail for a night, the doctors and
the lawyers who were in Reasi were instructed
not to take up their cause and they received
no aid. It was the next day that they were
bailed out from jail. No one from Riasi town
came to their rescue. Thereafter they went to
the court of the D.C. Udhampur and there they
instituted a case against 10-11 persons,
including you. Then you gave them some small
coins paise and asked for a pardon. But it
has been seen that some of you sathis are
found drinking from morning till evening. You
rely on their support. Have you ever taken
action against them ? Or is it that we alone
from the village are bad characters ? The
urban question has been raised by you
and now
you are preaching separation between the urban
and the rural people, and that two foundations
are being laid now. Who has laid these
foundations ? And who raised the rural
question?
Paragraph 17.
"It is an incident of four years ago that you
had in this very manner incited our village
brethren. On that account a few Hindus and
Muslims of Talwada jointly seized the cattle
and livestock of the peasants living in the
hills, when they were taking them to their
home. Their cattle and livestock were
impounded. For this.
151
these peasants filed cases in courts against
their own brethren and a few persons of
Talwada were arrested. The case against them
has been going on till recently. But have you
ever rendered any help to them in courts ?
They had to suffer and thus incur expense upto
the courts in Srinagar-but you merely did
propaganda about cow slaughter, you never took
into consideration that the peasants
invariably carry on the sale and purchase of
cattle and livestock. The livestock keeps
moving up and down. What marks these cattle
carried to indicate that they were on their
way to the slaughter house. What work you
have done for the benefit of the village
Every effort has been made that in every way
the villagers are rendered weak. For this
reason alone, you have been knocking at every
door and staggering around saying : Vote for
me. Have you the face to ask for votes ? "yeh
munh aur masoor ki dal". Now you secure the
votes from your town. Don’t hope for the
village. You commit deception and people from
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the village get a bad name. We from the
village have done everything for you and after
20 years this is the reward you have given us.
Now you reap as you sowed (Jaisa kiya waisa
bhogo). Take a razor and shave the heads of
the villagers. Kaushal Sahib, that is all
that is left to be done. Now you cousider,
who should be voted. Strike off the name of
’taking’ and insert the name of ’giving’.
Paragraph 20.
"Now we have set up the Dehati Conference on
November 20, 1966. Now you do what you
please. Now no villager will come to you for
being hurt, nor shall anyone else. Now you
fix an iron curtain outside your town, so that
nobody casts eyes on your golden city and you
enjoy the wealth robbed from the poor."
The High Court with reference to paragraphs 16, 17 and 20 of
the pamphlet Ex. P. W. 1/11 held that the allegations con-
tained therein constitute statements of fact in relation to
the personal conduct and character of the respondent. With
reference to paragraph 16, the High Court held that the
respondent is shown to have apologized after paying some
money and that he extricated himself from a criminal case
and that the respondent is shown to be an associate of
drunkards on whose support he comes and that these
statements of fact were false and have not been proved by
the appellant to have been made in a bona-fide manner.
Again with reference to paragraph 17, the High Court is of
the view that the respondent is charged with negligence and
is stated to be responsible for the misfortune of certain
arrested
152
persons. In particular the High Court has held that in this
paragraph "the petitioner is shown to have preached cow-
slaughter (which is indeed heinous from Hindu point of
view)." The High Court has further held that there are also
allegations that the respondent has committed acts of fraud.
These averments have been held by the High Court to be wrong
and false statements of facts and not proved to be correct
and such a type of propaganda has materially affected the
prospects of the respondent’s election as they touched his
personal conduct.
With reference to the averments in paragraph 20 of the Ex.
P. W. 1 /II, the High Court is of the view that there is an
allegation that the respondent has looted the property of
the poor and that he is further charged with appropriating
the looted property. Such an allegation, which is false,
relates to the personal character of the respondent. The
High Court winds up its discussion on paragraphs 16, 17 and
20 of Ex. P. W. 1/11 as follows:
"The above referred to allegations made in
paras 16, 17 and 20 are in my opinion
statements of fact which are in relation to
the personal character and conduct of the
petitioner. He is described as one who
apologized for extricating himself from a
criminal case by paying money to the other
side. He is shown to be an associate of
drunkards on whose support he counts and in
whose company he moves. He is also shown to
be a preacher of cow-slaughter (a malafide
statement which is likely to rouse the wrath
of Hindu Janta against him and to malign him).
He is said to be begging for votes from door
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to door (on humiliating terms). He is said to
have committed acts of fraud and in the end
what is worst is that he is asked to
appropriate the looted property of the poor.
The statements of facts have been made in the
booklet Ex. P. W. 1/ II with the clear
intention of maligning and defaming the
petitioner and degrading him in the eyes of
the voters. These statements are false and
have not been proved to be correct. These
statements of fact have been made by an active
worker of the Congress who was not only a
worker in election of the respondent but also
his polling agent. It is true that the
booklet was published before the notification
calling upon the candidates to file n
omination
papers in the Constituency was made. May be
also that the booklet was published only in
reply to the poster Ex. P. W. 1/ b entitled
’Dihati Bhai Hoshiar Bash’ issued by Jan Sangh
as is argued. But it was issued on the eve of
the election and in this there is a clear
mention of election propaganda."
153
Finally the High Court held that the allegations referred to
in paragraphs 16, 17 and 20 of the booklet Ex. P. W. 1/ II
are statements of fact, which are false and have been made
in relation to the personal character and conduct of the
petitioner and therefore fall within the ambit of s. 132(4)
of the Act. The High Court further finds that there is
overwhelming evidence on record to show that the said
booklet was distributed and circulated by the author of the
booklet R. W. 53 and other workers of the Congress party
including the election agent of the appellant and the
appellant himself amongst the people in different villages
of the Constituency during the election and also just
before, the poll.
All other allegations of corrupt practice made in the
election petition were either held to be true or not proved.
But on the basis of the finding on paragraphs 16, 17 and 18
of Ex. P. W. 1 / II the High Court held the appellant
guilty of corrupt practice and as such set aside his
election after declaring it void.
Mr. R. K. Garg, learned counsel for the appellant, urged two
contentions : (1) that the statements contained in the above
three ’paragraphs do not relate to the personal conduct or
character of the respondent and, that, on the other hand,
they are only by way ,of a criticism of the respondent as a
politican and the political .activities of the Jan Sangh
Party to which he belongs. The High ,Court has
misinterpreted and misunderstood the various statements made
in the above paragraphs when it came to the conclusion that
they amount to corrupt practice ; (ii) regarding publication
and distribution of the pamphlet by the appellant, his
agent, or by any person with his consent, the learned Judge
has merely extracted the evidence on the side of the
appellant and the respondent and has entered a finding that
there is overwhelming evidence on record to show that Ex.
P. W. 1 / II has been distributed and circulated in
different villages during the election and before the poll.
The learned Judge has not expressed any opinion as to which
evidence he accepts or rejects, and as such the finding in
this regard is grossly vitiated.
Section 132 of the Act corresponding to Section 123 of the
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Representation of the People Act, 1951 deals with corrupt
practices and sub-section (4) is as follows :
"The publication by a candidate or his agent
or by any other person, of any statement of
fact which is false, and which he either
believes to be false, or does not believe to
be true, in relation to the personal character
or conduct of any candidate, or in relation to
the candidature, or withdrawal, or retirement
from contest, of any candidate being a
statement reasonably calculated to prejudice
the prospects of that candidate’s election."
154
Sub-section (4), quoted above is the same as Section 123 (4)
of the Representation of the People Act, 1951 and the
contents of the said sub-section have been laid down in
several decisions of this Court. We will first refer to the
broad principles laid down in those decisions and then
advert to the relevant paragraphs of the booklet Ex. P. W.
1 /II and will then deal with the contentions of Mr.
Bhalgotra, supporting the findings of the High Court in
relation to those paragraphs.
In T. K. Gangi Reddy v. M. C. Anjaneya Reddy and others(1)
this Court stated that the words "Personal character and
conduct" are so clear that they do not require further
elucidation or definition. The character of a person may
ordinarily be equated with his mental or moral nature.
Conduct connotes a person’s actions or behaviour". It has
been further held that if otherwise a statement comes under
sub-section (4) of Section 123 as corrupt practice, it will
be no answer to plead that the statement was made as a
counter blast to a rival statement of an opponent.
In dealing with sub-section (4) of Section 123 in Inder Lal
vLal Singh (2) this Court observed as follows :
"It would be noticed that in prescribing the
requirement that the false statement should
have relation to the personal character of the
candidate, a distinction is intended to be
drawn between the personal character of the,
candidate and his public or political
character........ Dissemination of false
statements about the personal character of the
candidate thus constitute a corrupt practice."
In the same decision it has also been pointed out that
though it is clear that the statue wants to make a broad
distinction between public and political character on the
one hand and private character on the other, it is obvious
that a sharp and clear cut dividing line cannot be drawn to
distinguish the one from the other. But nevertheless the
courts will have to draw a working line to distinguish
private character from public character.
It has further been pointed out in Kultar Singh v. Mukhtiar
Singh (3) that the document must be read as a whole and its
purport and effect determined in a fair, objective and
reasonable manner and that at the election time the
atmosphere is usually surcharged with partisan feelings and
emotions and soma allowance must be made in that regard.
(1) (1960) 22 E. L. R. 261.
(2) [1962] Suppl. 3 S.C.R. 114.
(3) [1964] 7 S.C.R. 790.
155
Dealng with sub-section (4) of Section 123, in Sheopat Singh
v. Ram Pratap (1) this Court observed as follows :
"The sub-section is designed to achieve this
dual purpose, namely, freedom of speech and
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prevention of malicious attack on personal
character or conduct etc. of rivals. The
purity of an election is sought to be main-
tained without affecting the freedom of
expression. The sub-section prohibits any
statement of fact in relation to personal
character or conduct of any candidate, which
is not only false but also the candidate
making it either believes it to be false or
does not believe it to be true. It implies
that a statement of fact relating to the
personal character or conduct etc. of a
candidate can be made, if it is true. Even if
it is false, the candidate making it is
protected, unless he makes it believing it to
be false or not believing it to be true, that
is to say statements which are not true made
bona fide are also outside the ambit of the
provision. To be within the mischief of sub-
section (4) of Section 123 of the Act, such a
statement shall satisfy another test, namely,
it shall be a statement reasonably calculated
to prejudice the prospects of the election of
the candidate against whom it is made. The
word "calculated" means designed : it denotes
more than mere likelihood and imports a design
to affect voters. It connotes a subjective
element through the actual effect of the
statement on the electoral mind reflected in
the result may afford a basis to ascertain
whether the said statement was reasonably
calculated to achieve that effect. The
emphasis is on the calculated effect, not
on the actual result, though the latter proves
the former."
It has been further stated in the said
decision :
"The boundary between personal character and
conduct and public character and conduct is
well drawn, though, sometimes, it is thin.
Sometimes a statement may appear to touch both
the candidate’s personal as well as public
character."
In Dev Kanta Barooah v. Golok Chandra Baruah and others (2
this Court had to consider whether an allegation calling as
"Deshdrohita" a person who was having military contracts
during the 1942 movements was a statement in relation to his
personal character or conduct. It was held that the said
allegation was only a reflection on the political conduct of
the person
(1) [1965] 1 S.C.R. 175.
(2) [1970] 1 S.C.C.392.
156
concerned in siding with the British Government rather than
joining the Congress, which was carrying on a movement
against the British for achieving independence of the
country. In that context it was held that the statement was
not In relation to the personal character or conduct of the
party concerned as there is no imputation of any depravity
or immorality".
In Guruji Shrihar Baliram Jivatode v. Vithalrao and
others(1) it was held by this Court that the statements
which were Linder consideration do not make any reflection
on the moral or mental qualities "of the person against whom
those statements had been made." The following observation
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of Darling J. in Cumberland (Cockermouth Divisional) (1)
case has been quoted with approval in some of the decisions
of this Court referred to above :
"What the Act forbids is this. You shell not
make or publish any false statement of fact in
relation to the personal character or conduct
of such candidate ; if you do, it is an
illegal practice. It is not an offence to say
something which may be severe about another
person nor which may be unjustifiable nor
which may be derogatory unless it amounts to a
false statement of fact in relation to the
personal character or conduct of such
candidate ; and I think the Act says that
there is a great distinction to be drawn
between a false statement of fact which
affects the personal character or conduct of a
candidate and a false statement of fact which
deals with the political position or
reputation or action of the candidate. If
that "were not kept in mind, this statute
would simply have prohibited at election times
all sorts of criticism which was not strictly
true relating to the political behaviour and
opinions of the candidate. That is why it
carefully provides that the false statement,
in order to be an illegal practice, must
relate to the personal character and personal
conduct."
Darling J. was dealing with a provision similar to Section
123 (4).
From a review of the decisions referred to above, it follows
that in order to constitute corrupt practice under Section
123(4), the false statement should have been in relation to
the personal character of the candidate. If a false
statement is’ made with regard to the public or political
character of the candidate, it would not constitute a
corrupt practice even if it is likely to prejudice the
prospects of that candidate’s election. Circulation of
(1) [1969] 1 S.C.R. 766. (2) [1901] 5, O’ M. & H. 155.
157
false statement about the private or personal character of
the candidate during the period preceding the election is
likely to work against the freedom of election itself
inasmuch as the effect created by false statement cannot be
met by denial in proper time and so the Constituency has to
be protected against the circulation of such false
statements which are likely to affect the voting of the
electors. If a statement of fact affects the man beneath
the politician, it touches the private character; and if it
affects the politician it does not touch his private
character. Some allowance will have to be made in respect
of statements made in election meetings as the atmosphere is
usually surcharged by partisan feelings and emotions.
Allegations of depravity or immorality or affecting the
moral or mental qualities of a person are statements relat-
ing to the personal character or conduct of a person.
Attributing acts of violence to a candidate even if such
acts are done during his political career, is a statement
relating to the personal character and conduct. If the
conditions of Section 123 (4) are satisfied it is irrelevant
to inquire whether the statement has been made as a counter-
blast to another statement issued by the opponent. The
statement must be one reasonably calculated to prejudice the
prospects of the candidate’s election. The initial onus of
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establishing the circumstances mentioned in Section 123 (4)
is on the election petitioner and when once he discharges
that onus, the burden shifts to the candidate making a false
statement of fact to show what his belief was.
Bearing in mind the above propositions, we will now proceed
to consider whether the statements in paragraph 16, 17 and
20 in Ex. P. W. 1/ II are statements in relation to the
personal character or conduct of the respondent.
In considering this question it is necessary to note that
the respondent was then a sitting member of the Legislative
Assembly and the pamphlet itself is addressed not only to
the respondent but also to other Jan Sangh leaders. There
is no controversy that the respondent belonged to Jan Sangh
Party.
Before we consider the contents of the said three paragraphs
of Ex. P. W. 1/ II, we can deal with and dispose of the
contentions raised on behalf of the appellant that the
booklet was issued as a counter blast to the pamphlet issued
by the Jan Sangh Party Ex. P. W. 1 /B. As stated by this
Court in T. K. Gangi Redd), and others (1), case Section 123
(4) defining corrupt practice, is not conditioned by any
proviso to the effect that it would cease to be a corrupt
practice if the statement was made to counteract the rival
statement of an opponent. Therefore, it follows that if the
conditions mentioned in sub-section (4) of Section 123 are
held to be satisfied, it is irrelevant to inquire whether
the booklet
(1) [1960] 22 E.L.R. 261.
158
Ex. P. W. 1/ II, has been published as a counter-blast to
Ex. P. W. 1/B.
Now coming to the material portion of the pamphlet itself,
we are of the opinion that the High Court has misunderstood
and misinterpreted the averments contained in paragraphs 16,
17 and 20. Before we deal with paragraph 16, we Will
consider the nature of the statements made in paragraphs 17
and 20.
Paragraph 17 in substance refers to seizure of cattle and
livestock of the persons when they were being taken to their
home. There is a reference to the cattle being impounded
and the persons filing a case in the court. The charge is
that the respondent never rendered any help to those persons
who had been arrested and tried by the courts. There is a
reference to the respondent doing propaganda about the cow-
slaughter and his not having done anything for the benefit
of the villagers. In spite of not doing anything to the
villagers, the respondent is alleged to be asking for votes
from the villagers. It is further stated that the people of
the village have been helping the respondent for over 20
years and the latter had done nothing to help the villagers.
This paragraph, unfortunately, has been understood by the
learned Judge as containing the statements to the effect:
(a)that the respondent is a preacher of
cow-slaughter and that it is a malafide
statement made to rouse the wrath of Hindu
Janta against him and to malign him;
(b) that the respondent is begging for votes
from door
to door on humiliating terms;
(c) that the respondent has committed acts
of fraud.
None of the above conclusions drawn by the High Court from
paragraph 17 are supported by the statements contained
there. in. 0n the other hand, it is a wholesale attack
against the respondent as a politician for having ignored
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the requirements of the village and the villagers but at the
same time trying to woo their votes which he does not
deserve. There is no statement to the effect that the
respondent has preached cow-slaughter in which case it will
be a very serious allegation. On the other hand the
statement is that the respondent did propaganda about cow-
slaughter. Nor is there any allegation that he is begging
for votes on humiliating terms. Even if such a statement is
there, it will not be a statement in relation to the
personal character or conduct. On the other hand, every
candidate during elections makes requests for votes and for
this purpose he may be visiting the voters from door to
door. To say that a candidate is asking for votes, has no
reference to the personal character or,conduct of that
candidate. But the actual statement in paragraph 17 is that
he
159
is knocking at every door and staggering around saying "vote
for me". In our opinion, this statement has no relation to
the personal character or conduct of the respondent and it
only criticizes him for asking for votes from the voters
when he has not done any good to them :" nor is there any
statement to the effect that the respondent has committed
acts of fraud. An argument was made by Mr. Bhalgotra,
learned counsel for the respondent that there is an averment
that the respondent has committed deception and the people
from the village get bad name. Deception, according to the
learned counsel, consists in the respondent having misled
the people in believing that the cattle were being taken for
slaughter and when the villagers got into trouble, when they
attempted to prevent the cattle from being so taken, the
respondent did not render any help to them. We are not
inclined to accept this interpretation sought to be placed
on these averments in paragraph 17. The deception that is
referred to is attributed to the people of the town
generally and the people from the village suffering on
account of that. This only reveals the antagonism of the
villagers to the town people on the ground that the latter
exploit the village people for their own purpose. There-
fore, none of the reasons given by the learned Judge for
coming to the conclusion that paragraph 17 contained
statements in relation to the personal character or conduct
of the respondent appeal to us.
Coming to paragraph 20, the learned Judge had taken the view
that there is an allegation that the respondent has been
asked to appropriate the looted property of the poor. Here
again there is a fallacy underlying the reasoning of the
High Court. Paragraph 20 in substance is only to the effect
that there is a wide disparity between the people in the
town and in the villages and that the former are gaining at
the expense of the latter. It is in this context that it is
sarcastically mentioned that the people of the town can put
up an iron curtain and enjoy the advantages gained from the
poor. The sentiments underlying paragraph 20 reveal only
the grievance of the people in the village that their claims
are being neglected and that the people in the town are hav-
ing all the benefits at the expense of the village people.
The words "wealth robbed" have been understood by the
learned judge as the property looted from the poor. There
is no warrant for such an interpretation. Those expressions
have been used only to bring out very forcibly that the
people in the town are having all the benefits at the:
expense of the people of the villages who are comparatively
stated to be poor. Therefore, paragraph 20 again, in our
opinion, does not contain any statement relating to the
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personal character or conduct of the respondent.
Taking up paragraph 16, the High Court has held that it con-
tains two I statements which relate to the personal
character or
160
conduct of the respondent, namely, (a) that- the respondent
apologized for extricating himself from a criminal case by
paying money to the other side, and (b) the respondent is
shown to be an associate of drunkards on whose support he
counts and in whose company he moves. Broadly, the
statements in paragraph 16, relate to the attack of two
persons by the urban people including the respondent, their
arrest and the case instituted by them being dropped or
compromised on the respondent asking for a pardon by paying
some small amount. There is a further statement that the
respondent relies on the support of his companions who are
found drinking from morning till evening and the respondent
not having taken any action against them, cannot blame the
villagers
Here again the theme seems to be the same, namely, of the
town people receiving a more favorable treatment than the
people in the villages. There is no such averment as
understood by the High Court that the respondent is an
associate of drunkards on whose support he counts and in
whose company he moves. On the other hand, there is a
statement that some of the sathis of the respondent are
found drinking from morning till evening and that the
respondent relies on their support. This support, referred
to, must relate to the political support that the respondent
derives from such persons. This averment will have to be
taken along with the statement contained in the earlier part
of Paragraph 16, that the respondent along with his urban
friends after attacking the two persons mentioned therein
has raised the question that the people from the village
come to town and drink and roam aimlessly like vagabonds.
Read in his manner the idea is quite clear, namely, that the
respondent and his other urban friends charge the-villagers
of drinking when they come to town and the villagers in turn
charge the respondent that his own companions in the town
are also persons who drink. There is no reference in these
allegations to the personal character or conduct of the
respondent. But, on the other hand, it is really a
criticism by the village people of the habits and manners of
the people in the town in retaliation to the allegations
made against the village people. Therefore, it follows that
there is no such statement in paragraph 16 to the effect
that the respondent is an associate of drunkards on whose
support he counts and in whose company he moves.
This leads us with the question whether the High Court is
correct in its finding that in paragraph 16, the respondent
is described as one who apologized for extricating himself
from a criminal case by paying in money to the other side.
So far as this aspect is concerned, Mr. Garg, referred us to
the evidence to show that a criminal complaint was actually
filed against the respondent and others and that the matter
was compromised on an apology tendered by the respondent.
If that is so, the counsel urged, the statements contained
herein, even assuming that they relate to the
161
personal character of the respondent, are true and
therefore they do not amount to corrupt practice under
Section 123 (4). On, the other hand, Mr. Bhalgotra, learned
counsel for the respondent, pointed out that
the"evidence"regarding the filing of a complaint and the
respondent having tendered an apology is unsatisfactory and
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such evidence should not be acted upon. The evidence bear-
ing on this matter may be referred to. in paragraph 16,the
two persons who are stated to have come to Riasi and
assaulted are Dhani Ram and Baldev Singh. Baldev Singh has
given evidence as R. W. 37. He has deposed that about two
years prior to his giving, evidence. he and Dhani Ram had
gone to the town of Riasi and visited the shop of Shyam Lal
Jargar.When a piece of timber was sought to be used as fire
wood by Shyam Lal, Dhani Ram tried to seize the piece of
timber on the ground that it belonged to the firm of jodha
Mal and Company, in which lit was employed.On this a hue and
cry was raised by the people of the townwhich included
the respondent. ’All of them beat the witness andDhani
Ram. After refering to the fact that their com that he went
With Dhani Ram and Amar Nath R. W. 43 to udhampur to file a
complaint before the court. die, speaks further to the fact
of filing of the complaint and that on the next day a
compromise was brought about between the parties. He has
produced Ex. R.W. 37 / 1, the complaint and the vakalat
executed by him in favour of Durga Dutt,Vakil, R. W. 18, has
been produced as R. W. 18/2A. R. W. 12, Fatch Singh also
refers to the incident of attack on Beldev Singh R. W. 37
and Dhani Ram, in which the respondent and certain other
town people also took part. He speaks to having stood as a
surety for Baldev Singh and Dhani Ram for obtaining their
release. He refers to having delivered a letter to Durga
Dutt Vakil, a Udhampur and to Baldev Singh and Dhani Ram
coming to Udhampur to file the complaint. R. W. 18 is a
lawyer at Udhampur. He speaks of Baldev Singh and Dhani Ram
having come to him on September 19, 1966 with a letter from
Mr. Raghunath Das Advocate, Riasi. He has also spoken to
Baldev Singh and Dhani Ram giving him instructions to file
the criminal complaint. He has produced the vakalats Ex.
R. W 18/2 and Ex. R. W. 18/2A, executed by Dhani Ram and
Baldev Singh respectively in respect of the criminal
complaint, He has referred to the fact that he signed the
complaint petitions and filed them in the Court of the A. D.
M. Udhampur on September 20. 1966. The Magistrate forwarded
the two complaints to the Station House Officer, Riasi, for
investigation. He has stated the reasons as to why the
vakalats were retained by him, by saying that when a
complaint petition is sent by the court to the police for
inquiry through the complainant In self, the vakalats are
retained by the lawyer. He has no doubt admitted that he is
the maternal uncle of the appellant.
11- 1 S.C. India/71
162
R.W. 43 Amar Nath has spoken to his knowing Baldev Singh
and Dhani Ram and also to the incident which took place in
Riasi and their being beaten by the people including the
respon- dent. He has further referred to R.W. 12 requesting
him to accompany Baldev Singh and Dhani Ram to Udhampur for
filing a criminal complaint and to his having actually
accompanied them. He further deposed to R. W. 18 being
engaged as a counsel and to the filing of the complaints by
Baldev Singh and Dhani Ram. in cross-examination this
witness has stated that the respondent got the case
compromised and the various accused in the ceiminal
complaints were told that if any fine was imposed on them,
it will be paid by the respondent and his party, the Jan
Sangh.
R.W. 5 3 Lal Singh, who is the author, of Ex. P. W. I /
11, in which these allegations have been made has deposed to
the effect that the statements contained therein are all
true. and correct.
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Mr. Garg very strenuously pleaded for the acceptance of the
evidence, referred to above, which, according to him,
establishes the truth of the averments regarding the
filing; of the criminal complaints and the proceedings being
dropped in view of the corn promise entered into between the
parties. Mr. Bhalgotra, learned counsel for the respondent,
on the other hand, pointed out that even if the above
evidence is accepted, in toto, that the allegations that the
criminal proceedings were dropped-because of the respondent
paying money and asking for a pardon will not stand estab-
lished. The allegation a person paid money to a complainant
to drop the criminal proceedings is a statement relating to
the personal character or conduct of that person. If so,
the counsel urged that the finding of the High Court that
the appellant is guilty of corrupt practice is justified.
We are of the opinion that the evidence referred to above is
acceptable and it substantially proves the truth of the
allegations regarding the incident referred to in paragraph
16 leading to the filing of the criminal complaints and
their not being proceeded with due to compromise arrived at
between the parties. So far as we could see, the learned
Judge has not properly considered the above evidence when he
recorded a finding that the allegations regarding the filing
of the criminal complaints and the respondent entering into
a compromise are false and have not been proved to be
correct. The allegations regarding the attack said to have
been made against Baldev Singh and Dhani Ram by some of the
people in Riasi including the respondent, is established by
the evidence of R. Ws. 37,.12, and 43. Their evidence is
corroborated by Ex. P. W. 37 / 1, the complaint, stated to
have been made before .he A. D. M., Udhampur. The ninth
defendant in the said complaint is Rishi Kumar Kaushal, the
respondent. The substance
163
of the complaint is that R. W. 37 and Dhani Ram had come to
Riasi on September 14, 1966 where they were given a beating
by the accused, named, in the complaint which included the
respondent. It also refers’ to the fact that the Notice did
not take the ,complaint on the file and that is Why it Was
being presented before the court. That ’complaint is dated
September 19, 1966. That the police declined to entertain
the original complaint made by R. W. 37 and Dhani Ram is
borne out by the evidence of R. Ws. 12 and 43 That R. W. 37
and Dhani Ram went to Uhampur to file the complaint is also
established by the evidence of R. Ws. 12 and 43. in fact R.
W. 43 speaks to having accompanied Baldev Singh and Dbani
Ram to Udhampur to contact the lawyer and have the complaint
filed before the court.
Ample; corroboration is found for the above evidence in the
testimony of an independent witness R. W. 18. Durga Dutt R.
W. 18 is a practising lawyer at Uhdampur and he has spoken
to Baldev Singh and Dhani Ram coming to him on September 19,
1966 with a letter of recommendation from one Raghunath Dass
and he has also produced the said letter as R. W. 18 / 1. He
has also produced the two vakalats executed in his favour by
Baldev Singh and Dhani- Ram and they have been marked, as
Ex. R. W. 18 / 2 and Ex. R. W. 18/2A. He has further
referred to the filing of the complaint before the A. D. M.
Udhampur and to the court handing over the complaint with a
endorsement to the police at Riasi to investigate and
report. No doubt, this witness has admitted that he is the
maternal uncle of the appellant herein, but that
circumstance alone will not warrant the rejection of the
evidence of this witness. Therefore, it is clear that there
was an incident as spoken to by R. W. 37 in which the
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respondent also was involved and in connection with that
incident a complaint was actually filed before the A. D. M.,
Udhampur and as we have already said .the respondent was the
ninth defendant in the complaint.
R.W. 43 has stated that the respondent Rishi Kumar
Kaushal got the criminal case compromised and that the
respondent further represented that if any fine was imposed
the same will be paid by the respondent and his party. This
is an answer elicited from R. W. 43 in cross-examination.
This answer clearly establishes that the criminal complaint
evidenced by Ex. R. W. 37/1 did not proceed further and the
matter ended by the parties entering into a compromise. No
doubt the respondent has ’gone to the extent of denying even
about the incident of attack spoken to by R. W. 37 and the
filing of the complaint. He has further denied that he ever
entered into any compromise in respect of any criminal com-
plaint.
We are not inclined to accept the evidence of the respondent
,on this point in view of the overwhelming oral and
documentary
164
evidence, which conclusively establishes the events leading
up to the filing of the compliant Ex. R. W. 37 /II and to
the proceedings being dropped because of a compromise. No
doubt R. W. 37, who was one of the complainants does not
speak to any apology being given by the respondent, but we
have already pointed out that R. W. 43 has clearly stated
that the criminal case was compromised. In view of all
these circumstances the inference is irresistible that the
criminal case must have come to a close because of a
compromise arrived at by the parties and probably due to
some sort of apology given by the respondent. But even if
it is held that there is no evidence that the respondent
actually tendered any apology, nevertheless, as the other
allegations are held to have been substantially true, any
reference to respondent asking for a pardon in paragraph 1,
must only be considered to be a highly exaggerated version
given by the author of the booklet. But on that ground it
cannot be held that the allegations regarding the filing of
the criminal complaint are not true. Therefore, the view of
the High Court that the statement in paragraph 16 that the
respondent apologized and extricated himself from criminal
case by paying money, is false, cannot be accepted, as we am
of the opinion, that the said allegation has been proved to
be correct. To conclude there are no statements of fact in
paragraphs 17 and 20 of Ex. R. W. 1/ II in relation to the
personal character or conduct of the respondent. There is
no allegation in paragraph 16 that the respondent is an
associate, of drunkards. The averment in the said paragraph
that some of the companions of the respondent on whose
political support the respondent relies are found drinking
from morning till evening, does not relate to the personal
character or conduct of the respondent. The allegation in
the said paragraph regarding the respondent extricating
himself from a criminal case filed by Baldev Singh and Dhani
Ram has been proved to be true and as such falls outside
Section 132(4) of the Act. Therefore, it follows that the
finding of the High Court that the statements contained in
paragraphs 16, 17 and 20 amount to corrupt practice under
Section 132(4) of the Act, cannot be sustained.
On the above conclusion arrived at by us it becomes unneces-
sary to consider the second contention of Mr. Garg that the
High Court’s finding regarding the publication and
distribution of the booklet Ex. P. W. 1 /11, is erroneous
and is not based upon the evidence in the case.
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Mr. Bhalgotra, learned counsel for the respondent however,
has attempted to support the judgment of the High Court by
attacking the findings recorded against his client in
respect of paragraphs 7, 8, 10, 18 and 19 in Ex. P. W. 1/
II. He has not attacked the findings recorded by the
learned Judge on other allegations of corrupt practice made
by the respondent in his election petition. In Ramanbhai
Ashabhai Patel v. Dabhi Ajitkumar Fulsinji and
165
,others (1) it has been held by this Court that On a
consideration of justice, this Court should permit the
respondent to Support the judgment in his favour even upon
the grounds which were, negatived in that judgment. The
same view has been reiterated recently by this Court in Shri
Thepfulo Nakhro Angami v. Shrimati Raveluei alias Rani M.
Shaiza (2). Though the above decisions were given under the
Representation of the People Act, 1951, Mr. Grag, learned
counsel for the appellant, accepted the position that the
same principles are applicable to the present appeal which
has been filed under the Act. We have permitted the
respondent to support the judgment in his favour by
establishing, if he can, that the findings recorded by the
High Court against him with regard to paragraphs 7, 8, 10,
18 and 19, are erroneous.
There is a slight mistake in the Official translation of
these paragraphs and the learned counsel for both the
parties agreed that the following translation may be
adopted. The said paragraphs are as follows :
"Paragraph 7
In the last 20 years whichever Government was
formed one after the other And "whenever their
Ministers and Government Officers visited
Reasi, you threw stones at them and made
personal attack on them. Instead of welcoming
the guests, alongwith city folks and other
strayed .Jansanghies insulted them. Did Jan
Sangh give you such instructions as to assault
with the help of Riasis Jan Sanghi Goondas the
Minister and other Government officers when
they visit Reasi. Is this called democracy?"
"Paragraph 8.
Whenever you started any agitation against the
Government, you put forward the misguided
groups of the village folks and such of the
urban people who were with you, all
themselves went underground,. Thus the poor
Villagers faced lathi charge, tear gas and
even bullets. Who did this deception and who
got it done?"
"Paragraph 10..
In the past when famine conditions arose due
to shortage of wheat, you instead of rendering
help got wheat supply Stopped to village
people through a city Panchayat and rotten
atta (wheat powder) which was full of worms,
distributed in villages, which our children
and
(1) [1965] 1 S.C.R.712.
(2) [1971]3 S.C.R.424.
166
women and elders people had to eat Were the
villagers, not human beings?"
"Paragraph 18,
Which of the Ministers or Government Officers
have you allowed to go, out of the Reasi
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City without being stoned in-the last twenty
years. Often the villagers had, problems to
be resolved but you did not let them be solv-
ed’, Did you alone have the right,to think of
good and evil and thus. safe the roots of the
villages and, bring bad name-to the village
people."
"Paragraph 19.
Last year when Khan Saheb had come to Reasi to
resolve the difficulties of uprooted persons,
some of the uprooted villagers were suddenly
instigated and some Jan Sanghi Goondas made an
attack on him. At whose instance all this
happened. The villages were already ruined,
you again made them your target by giving them
wrong advice and you started leading them all.
Demands were to be put up to the Hon’ble
Minister but you did the reverse. We were
again the victims. Think for your-self. Who
is responsible for downfall of the uprooted
ones ? Who has taught the people not to let
officials go back alive from Reasi and to
throw stone at them. Where did you get all
this power? There are many other areas,
cities which are thickly populated but there
human beings are treated, like humans."
The High Court considered paragraphs 7, 18 and 19 together-
and has held that the evidence establishes that the
respondent was responsible for organisings demonstrations
and instigating assaults on ministers and other Government
Officers. In this view the High Court held that the’
statements contained in the said paragraphs do not come
under Section 132 (4) of the Act as those statements were
not false. Dealing with paragraphs 8 and 10 the High Court
has held that the allegations made therein do not relate to
the personal character and conduct of the respondent and
therefore, is outside Section 132 (4) of the Act. It has
further held that in any event the respondent has not
satisfactorily discharged the burden of proving the falsity
of those allegations. It is in consequence of these
findings that the High Court held the Section 132 (4) of the
Act does not apply to the allegations made in these
paragraphs.
Mr. Bhalgotra learned counsel for the respondent, very
strenuously attacked the finding recorded by the High Court
on this aspect. We will first take up paragraph 10. It has
to be
167
brone in mind that, the respondent was a sitting member of
the Legislation Assembly. The allegation in paragraph 10 is
that when there was a shortage of wheat, the respondent, was
responsible for stopping than supply of. wheat to village
people and in turn got rotten wheat powder,distributed to
the villaders, which had to be consumed by the people of the
village. The insinuation is that the village people have
not been properly treated by the respondent when he was
representing their Constituency in the Assembly.- As we have
already pointed out from the decisions cited earlier that
the public,and political character of a candidate are open.
to the public view and public criticism and even if any
false statements are made about the political or public
conduct or character the elector would be able to judge the,
allegation on merit and may not be misled by any false
allegation in that behalf. Even if a false statement is
made in regard to the public or political character of a
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candidate, it would not constitute a corrupt practice even
if it is likely to prejudice the-prospects of that
candidate’s election, In our opinion, the statements
contained in paragraph 10, quoted above, has no reference to
the personal character or conduct of the respondent. Mr.
Bhalgotra has, no doubt, drawn our attention to the evidence
of R. Ws. 5, 6. 12 and 28 to establish that no wrotten atta
was supplied to the villagers and that the respondent in any
event was not responsible for the same. On the other hand,
according to the counsel, the evidence shows that far from
being responsible for the supply of rotten atta to the
villagers, whenever any complaints were received, the
respondent did his best to help the villagers. We do not
think it necessary to go into this evidence because of the
view that we take that the statement in paragraph 1.0 has no
relation to the personal character or conduct of the
respondent. On the other hand, they are statements relating
to the respondent as a politician and even if those
statements are false, they will not come under Section 132
(4) of the Act.
Coming to paragraph 8, it deals with the role played by the
respondent and his urban associate in agitations against the
govern. ment. Here again the implication is that the urban
people including the respondent start agitation against the
government and always put the villagers in the forefront.
The villagers had to bear the brunt of any action that was
taken by the government to put down the agitation and in
that connection it is stated that the villagers had to face
lathi charge, tear gas and even bullets.
Mr. Bhalgotra, urged that the allegations contained in this
paragraph really relate to the personal character or conduct
of the respondent. The learned counsel pointed out that the
insinuation in this that the villagers were fired upon by
the authorities is absolutely mischievious and false. In
this connection, the
168
learned counsel drew our Attention to the evidence of R. Ws.
22 and 53 to the effect that there has been no firing in
Reasi. He also referred us to the evidence of respondent as
P. W. 41 that there wag no firing in Reasi. In our opinion
the statements contained in paragraph 8 have no relation to
the personal character or conduct of the respondent. On the
otherhand the whole tenor of the allegation made therein is
to the effect that in all agitations against the government,
villagers are made to suffer and urban people like the
respondent conveniently keep themselves in the background.
The reference to the villagers having to face lathicharge
and tear-gasand even bullets is only to emphasis the
hardship that the villagers have to suffer in carrying out
the agitations against the government and specially when the
urban people like the respondent’s let them down by making
themselves scarce. The attack is against the urban people
as a whole and it has nothing to do with the respondent’s
personal character or conduct. Hence we are of the opinion
that the statements contained in paragraph 8 do not
attract Section 132 (4) of the Act.
It leaves us for. consideration paragraphs7, 18 and 19.
All thes paragraphs will have to be read together.
According to Mr. Bhalgotra,these paragraphs make very
serious allegations that the respondents active part in
violent activities such as stone throwing etc. and that the
appellant has failed to establish that those allegations are
true. In this connection the counsel relied on the decision
of this Court in T. K. Gangi Reddy v. M. C. Anjaneya Reddy
and others(1) wherein it has been held that a statement
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which attributes acts of violence, for example, instigation
of murder, throwing of stones at public meetings etc. even
though such acts are done during his political career is a
statement relating to the personal character and conduct of
the candidate. On this basis the learned counsel argued
that the appellant while publishing the statements contained
in the said paragraphs is guilty of corrupt practice under
Section 132 (4) of the Act. The averment that respondent
was. guilty of throwing stones against the Ministers or
government officers, who had come on tour to the
Constituency is certainly a very serious statement in
relation to the personal character or conduct of the
respondent as it attributes acts of violence onhis part.
The High Court has found that these allegations are
true. That finding is now attacked. The Khan Saheb,
referred toin paragraph 19, is Mohammad Ayub Khan, who
was then the Minister for Health in the State. He has given
evidence as R. W. 50. According to Mr. Garg, the
allegations in these paragraphs are really directed against
the Jan Sangh party, to which party the respondent belonged
to espouse theirattitude towards the Ministers and
Government Officers when they come on tour to the
Constituency. The Jan Sangh party instead
(1960) 22 E.L.R. 261.
169
of being helpful by placing before the authorities the
difficulties experienced by the villagers, created
obstrucles in the way of any redress being granted to the
villagers and were also causing annoyance to the said
officers. There is nothing personal against the respondent.
Paragraph 7 charges the respondent of having thrown
stones .against the Ministers and Government officers when
they visited Reasi. Again in paragraph 18 the insinuation
is that the Ministers and the Government officer"s were not
allowed to go out of Reasi without being stoned. Again in
paragraph 19 the insinuation is that the respondent along
with others instigated the uprooted villagers and Jan Sangh
Goondas to attack the Minister R. W 50 when he visited Reasi
to look into the grievances of the people. These
allegations, in our opinion are of a very serious nature and
they attribute acts of violence to the respondent. The
question is whether thes allegations are true. It must be
noted that in paragraph 18, Mr. Bhalgotra, has drawn our
attention to the question that is asked : whether the
respondent has allowed within the last 20 years any Minister
or Government Officer to .go out of Reasi without being
stoned ? Mr. Bhalgotra referred us to the evidence of the
Tehsildar, R. W. 28 and R. W. 50, the ,Minister to the
effect that, though there was a demonstration when R. W. 50
visited Reasi, the respondent was not present. Therefore,
he urged that the allegation that the respondent threw
stones is false.
We have been taken through the material evidence bearing on
this aspect both by Mr. Garg and Mr. Bhalgotra and we are of the
opinion that the finding of the High Court that these
allegations Were not false, is correct. The main evidence
is that of R. W. 50 Mohammad Ayub Khan, who was Minister of
Health. He has referred to the fact that when he visited
Reasi, he attended :a public meeting held by the the then
Chief Minister Bakshi Gulam Mohammad. At that meeting there
was a pelting of stones by :some le in order to create
confusion and that the people who pelted stones were people
from the Jan Sangh party. He then referred to the fact that
in September, 1965 when he visited Reasi there was a very
violent demonstration against him by the Jan Sangh party
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near the Dak Bungalow where he was staying. The Assistant
Commissioner, Mr. Behari Lal Sharma, after the demons-
tration, complained to the witness that he had been
assaulted and manhandled by the respondent and other Jan
Sangh workers ; .and that the witness states that he
believed that the demonstration was organised by the
respondent as he, was leading the crowd. He has also stated
that the demonstration was very violent and fully of fury.
He then refers to his vehicle being stonned on the way to
Jammu. No doubt he has stated that at that time the respon-
dent was not present but his father and his election agent
Babu
170
Lal were present And made violent speeches and in his
presence one of his companions was manhandled.
In-cross-examination, no doubt, he has stated that he is not
able to remember whether the incident of pelting stones was
reported to the police. R. W. 28, the Tehsildar while
stating about the violent demonstration, against- the ,Mini
ster R. W. 50, no doubt, says that the responsible was
not present. R. W. 31, who was accompanying the Minister’s
party has referred to the obstruction caused to the Minister
and to the violent demonstration conducted against the
Minister in 1965. He clearly refers to the fact that the
Minister and others were abused and one member of the Minis-
ter’s group was manhandled. Amongst the persons who abused
the ministerial party was a vakil of Reasi belonging to the
Jan Sangh party. ’The obvious reference is. to. the
respondent.
The respondent as P. W. 41, no doubt, denies that- he was
ever a party to the violent demonst ration, against the
Minister orany other Government Officer. but he has admitted
that he was a prominent leader of the Praja Parishad party
in 1952 and the said party had launched an agitation against
the Government. During that agitation there were incidents
of lathi charges and firing and some people were killed. He
has also admitted that. he was arrested in connection with
the agitation.
Great emphasis has been laid by Mr. Bhalgotra,learned
counsel, that as the evidence of R. Ws. 28 and 50 is to-
the, effect that the respondent was not present at the time
of the demonstration, he would not have taken any part in
any violent activities as alleged in paragraphs 7, 18 and,
19. We are not inclined to accept this contention of the
learned counsel. From the evidence the following facts
emerge : there was a pelting of stones. by the Jan, Sangh
party in’ the meeting attended by Mohd. Ayub. Khan R. W.
50; the respondent was a member of the, Jan Sangh party;
there was a violent demonstration against R. W. 50 and’
though this witness does not speak to the presence of the
respondent, it is clear that the respondent’s father and his
election agent were actively participating in the violent
demonstration and the inference is that the demonstration
must have been at the instance of the respondent. The
evidence of R. W. 31, shows that a vakil of Reasi was
present when there was a very violent demonstration against
the Minister. The reference to the vakil must be to the,
respondent. P. W. 41 himself has admitted that he was
arrested’ in connection with a demonstration against the
ruling party in which several people died due to police
firing. All these circumstances, in our opinion, do
establish that the respondent must have either instigated or
had been a party to the violent demonstration referred to in
paragraphs 7, 18 and 19 and it cannot be said that
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the allegations contained therein are false. It cannot also
be stated that in view of these circumstances the appellant
either believed those allegations to be false or did not
believe them to be true. Therefore, the High court was
justified in coming to the conclusion that these statements
in the said paragraphs do not come within the purview of
sub-section (4) of Section 132 of the Act and we also agree
with the High Court in this respect.
It follows that the finding of the, High Court that
paragraphs 7, 8, 10, 18 and 19 of Ex, P, W. 1 /II are
outside the ambit of Section 132 (4) of the Act is correct.
As we are accepting the findings of the High Court in this
regard, we consider it unnecessary to deal with the question
of Republication and circulation of the booklet Ex. P.,. W.
1 / II We have already held that the statements in
paragraphs 16,’17 and 20 do not amount to corrupt practice
under Section 132 (4) of the Act. The appeal is consequenay
I allowed. The decision of the High Court is set aside and
the election petition is dismissed, with costs throughout.
G. C. Petition dismissed.
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