Full Judgment Text
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PETITIONER:
PRABHU NARAYAN
Vs.
RESPONDENT:
A. K. SRIVASTAVA
DATE OF JUDGMENT14/02/1975
BENCH:
ALAGIRISWAMI, A.
BENCH:
ALAGIRISWAMI, A.
KRISHNAIYER, V.R.
SARKARIA, RANJIT SINGH
CITATION:
1975 AIR 968 1975 SCR (3) 552
1975 SCC (3) 788
CITATOR INFO :
F 1975 SC1788 (6)
F 1976 SC2169 (7,9,18)
RF 1991 SC1557 (25)
ACT:
Representation of the People Act (43 of 1961) Section 83 and
123 and Conduct of Election Rules, r. 94A--Proviso to s.
83(1)--Scope of.
HEADNOTE:
In the election to the State Legislative Assembly the
respondent was declared elected and the appellant, the
congress candidate filed an election petition challenging
the election on various grounds, one of which was that the
respondent was guilty of corrupt practice under s. 123(4)
’of the Representation of the People Act, 1951, in that
certain pamphlets were published by him or with his consent.
The petition was dismissed by the High Court,
Allowing the appeal to this Court,
HELD : I (a) There is no substance in the preliminary
objection of the respondent that the election petition
should have been dismissed on the ground that it did not
comply with the requirements of s. 83 of the Act and that
the evidence of printing the pamphlets, in any event, should
not have been admitted. [553D-F]
The charge against the respondent in the election petition
was that the respondent was responsible for the publication
of the pamphlets and not their printing. Evidence regarding
printing was only relied upon to corroborate the evidence
regarding distribution of the pamphlets. )"en s. 123(4)
speaks of publication it means distribution. Therefore,
failure to give particulars of the printing in the affidavit
in support of the election petition cannot lead to the
dismissal of the petition; nor could evidence regarding it
be shut out. The proviso to s. 83(1) lays down that where
the petitioner alleges any corrupt practice the petition
should also be accompanied by an affidavit in the prescribed
form in support of the allegation of such corrupt practice
and the particular,-, thereof. It does not say that the
allegation of corrupt practice and particulars thereof
should be given in the affidavit. The election petition
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contains the ,allegations of corrupt practice and
particulars thereof. The Form 25, which is the one
prescribed under r. 94A of the Conduct of Election Rules
also show.,; that this was the intention of the Legislature.
In the present case the affidavit filed in support of the
election petition is in accordance with that prescribed
form. [553F-H]
Virendra Kumar Saklecha v. Jagjivan, [1972] 1 SCC 826 and
Krishan Chander v. Ram Lal, [1973] 2 SCC 789, referred to.
(b) Furthermore, according to s. 86 of the Act only
petitions which do not comply with the provisions of ss. 81,
82 and 117 are liable to be dismissed. [555C]
(2) The High Court was wrong in rejecting wholesale every
bit of evidence adduced on behalf of the appellant. Even
taking the evidence adduced on behalf of the appellant of
only non-congress witnesses. that evidence establishes that
the people who got printed the various pamphlets are close
supporters of the respondent. Those persons had no special
grievance against the appellant but all the pamphlets have
been printed with the definite purpose of harming the
chances of the appellant in the election and thereby aiding
those of the respondent. The plan and the direction could
therefore have come only from one source and that is the
respondent. Hence, it must be held that the respondent was
guilty of the corrupt practice under s. 123(4) in respect of
the pamphlets. [561D-E, G; 562C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1174 of
1973.
From the judgment and order dated the 5th April, 1973 of the
Madhya Pradesh High Court in Election Petition No. 29 of
1972.
553
Y. S. Dharamadhikari, T. P. Naik and A. G. Ratnaparkhi,
for the appellant.
S. K. Gambhir and V. J. Francis, for the respondent.
The Judgment of the Court was delivered by
ALAGIRISWAMI, J. In the election held on 11th March, 1972 to
the Legislative Assembly of Madhya Pradesh from Damoh
constituency the respondent, an independent candidate, was
declared elected. The appellant, the Congress candidate
filed an election petition for declaring the election of the
respondent void on various grounds all of which were found
not proved by the learned Judge of the High Court of Madhya
Pradesh who tried the petition. The petition was
consequently dismissed and this appeal is against that
dismissal.
We are concerned only with the charge of corrupt practices
under section 123(4) of the Representation of the People Act
in respect of five pamphlets marked Exs. P-3, P-4, P-5, P-6
and P-8 and two public meetings held on 4-3-1972 and 8-3-
1972.
At the beginning of the arguments an objection wag raised on
behalf of the respondent that the election petition should
have been dismissed on the ground that it did not comply
with the requirements of section 83 of the Representation of
the People Act. This was on the basis that the affidavit
filed in support of the election petition did not give
details as to the material particulars in respect of the
various corrupt practices with which the respondent was
charged. It was argued in the alternative that in any case
no evidence should have been admitted. As far as this
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appeal is concerned both amount to the same thing because
charges with which we are concerned are charges under
section 123(4). We do not think that there is any substance
in this contention on behalf of the respondent.
On behalf of the appellant it was made clear that the only
charge made in the petition was the charge of publication of
the pamphlets and not their printing and evidence regarding
the printing was relied upon only to corroborate the
evidence regarding distribution of the pamphlets. It is
obvious that when section 123 (4) speaks of publication it
means distribution. Mere printing of the pamphlets would
not fall under section 123 (4). Therefore the failure to
give particulars of the printing cannot lead to the
dismissal of the petition. Nor could evidence regarding it
be shut out. The proviso to section 83(1) lays down that
where the petitioner alleges any corrupt practice, the
petition shall also be accompanied by an affidavit in the
prescribed form in support of the allegation of such corrupt
practice and the particulars thereof. It does not say that
the allegation of corrupt practice and particulars thereof
should be given in the affidavit. The election petition
contains the allegation of corrupt practices and particulars
thereof. That this is the intention of the Legislature is
also clear from a perusal of Form 25, which is the one
prescribed under Rule 94A of the Conduct of Elections Rules.
The affidavit filed in support of the election petition is
in accordance with that form.
554
Reliance was placed on behalf of the respondent on the
decision of this Court in Virendra Kumar Saklecha v.
Jagjivan(1). In that case Rule 9 of the Madhya Pradesh High
Court Rules in respect of election petitions, which states
that the rules of the High Court shall apply in so tar as
they are not inconsistent with the Representation of the
People Act, 1951 or other rules, if any made thereunder or
the Code of Civil Procedure in respect of all matters
including inter alia affidavits, was referred to. On the
basis of that rule Rule 7 of the Madhya Pradesh High Court
Rules which-states that every affidavit should clearly
express how much is a statement made on information or
belief and must also state the source of or grounds of
information or belief with sufficient particularity, was
stated to mean that grounds or sources of information are to
be set out in the affidavit. This would really mean that
the allegations found in the body of the election petition
would have to be repeated in the affidavit. However, in
that case the failure to conform to Rule 9 and Rule 7 of the
Madhya Pradesh High Court Rules was not held to be fatal to
the. election petition. What was said was that it would be
helpful in assessing the value of the evidence. But that
purpose is served by the allegations in the election
petition itself. Moreover, it appears to us that the
provisions of Rule 9 of the Madhya Pradesh High Court Rules
regarding the election petitions framed by the Madhya
Pradesh High Court by reference to Rule 7 of the Madhya
Pradesh High Court Rules found in Chapter III regarding
affidavits cannot be made use of for this purpose. The
former set of rules are made under Article 225 of the
Constitution and cannot make any substantive law and the
rules themselves on a perusal of them would show that they
relate merely to procedural matters unlike rules made under
section 122 of the Code of Civil Procedure.
In Krishan Chander v. Ram Lal(2) it was
pointed out that :
"When there are specific Rules made under the
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Act which govern the election petitions, no
other Rules are applicable. Nor is disclosure
of the source of information a requisite under
Order- 6, Rule 15 (2), C.P.C. Decisions
rendered under Order 6, Rule 15 and Order 19,
Rule 2 of the Code of Civil Procedure have no
relevance and do not support the submission
that if the affidavit in support of the
petition does not state the source of
information on which the several allegations
in the petition are based, those allegations
cannot be deemed to have been made.
The provision for setting out the sources of
information where the allegations have been
verified as having been made on information
and knowledge of the petitioner is not a
requisite prescribed under Rule 94-A of the
Conduct of Election Rules, 1961, which are
applicable to the filing of an election
petition.
The affidavit in support of an election
petition need not itself disclose the sources
of information. The election petition under
Section 83 (1) (b) itself must contain all the
(1) [1972] 1 SCC 826.
(2) [1973]2 SCC 759.
555
particulars that are necessary and in the
affidavit in support of the petition( the
petitioner is required to say which of the
allegations made in various paragraphs of the
petition are true to his knowledge, and which
of them are true to his information. If any
source of information has not been set out and
the respondent cannot answer them without
particulars, he can always apply for better.
particulars. If the petition and the
affidavit conform to the provisions of the Act
and the Rules made thereunder, it cannot be
said that because the sources of the
information have not been given, the
allegations made in the petition have to be
ignored.
This accords with the view which we have taken.
Furthermore, according to section 86 of the Representation
of the People Act only petitions which do not comply with
the provisions of Section 81 or Section 82 or Section 117
are liable to be dismissed. We, therefore, overrule the
preliminary objection.
With respect to these five documents there is no dispute
that they fall within the mischief of section 123 (4) and it
is there fore unnecessary to set out the contents of these
pamphlets, nor was it seriously contended except in the case
of Ex. P-8 that they were not circulated. The only
question is whether the circulation was made by the
respondent or with his consent. In considering this
question it is important to bear in mind that all the
persons who admit that they printed these pamphlets are
workers of the respondent. We will deal with the evidence
in due course. It is necessary to go into the question of
the printing of these pamphlets because evidence regarding
it will have a bearing on their distribution either by the
respondent or by his supporters with his consent. Though as
many as 67 witnesses were examined and 28 of them with
regard to publication, the learned trial Judge has rejected
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all of them. Where the question of publication and
distribution is a matter to be decided on the basis of oral
evidence, it is easy to dispose of them by saying that it is
of persons interested in the appellant. That is why a
discussion of the question regarding the printing should
provide a satisfactory method of assuring oneself as to
whether the distribution was made as alleged by the
appellant.
We shall now take up the question regarding Ex.P-3 first.
It has admittedly been printed by M. S. Suman. It was
printed at Chhabi Printing Press. This M. S. Suman was
polling agent of the respondent. Chhabi Printing Press
was next to the residence of the respondent. P.W.66, the
son of the owner of the printing press gave evidence that
the manuscript for the pamphlet was given to Suman for
correction and the respondent himself made the correction.
P.W.67 gave evidence that Suman placed the order for Ex.P-3
and produced the Order Book, Ex.P-19. He also gave evidence
that the manuscript was given to him by the respondent who
was accompanied by Suman and one Vinod Kumar Rai. Exs. R.9
and R.10 are the declarations in respect of the pamphlet
given by Suman. Admittedly also the respondent bad placed
other orders with Chhabi Printing Press. Ex.P-3 and Ex.P-52
show that one of the payments out of the total sum of Rs.
130 mentioned in these receipts corresponds to a sum of Rs.
50 said to bave been paid for this printing. Ex.P-52 was
556
filed by the respondent along with the account of his
election expenses. P.W.1 gave evidence that Suman worked
for the respondent in the election and he and Vijay Kumar
Agarwal, who is responsible for the printing of Ex.P-4,
accompained the respondent on his election propaganda.
Respondent’s witness, Vijay Kumar Malaiya, R.W. 3, also
admits that Suman worked for the respondent. Therefore,
even if that part of the evidence of P.Ws.66 and 67, where
they speak to the respondent’s part in the printing of this
pamphlet is not accepted, it is obvious that Suman is a
person very much interested in the respondent and there is
no particular reason why he should print a defamatory
pamphlet against the appellant. We are led to believe that
inspiration for printing that pamphlet must have come from
the respondent. We are not impressed with the evidence of
Suman that the pamphlets were not handed over to him before
11.3.72 and so it was not distributed. It was merely an
attempt indirectly to deny distribution. He even went to
the extent of saying that he did not work for the
respondent.
The next pamphlet is Ex. P-4. It was got printed by one
Vijay Kumar Agarwal, a mere boy of 14 or 15 years. It was
printed at the Jawahar Press where his father’s paper was
printed. According to Vijay Kumar Agarwal, who was examined
as R.W.18, he got this Ex.P-4 printed because Ex.R-24
contained the merits of the appellant and the demerits of
the respondent. But Ex.R-24 does not say anything about the
merits of the appellant. He says that he gave the order for
printing it at 8.30 p.m. and he got it at 11.30 p.m. and he
distributed it to any person who met him in the bazar and
went home thereafter. We are unable to accept this part of
the evidence. This is merely an attempt to belittle the
distribution. Though he also gives as a reason for his
printing Ex.P-4 that his father was called to the police
station, that was nearly four years earlier and that is
hardly likely to be a reason for his printing it. He went
to the extent of saying that he did not work for the
respondent in the election and he did not support the
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respondent in the election. A reading of the pamphlet
clearly shows that it could not be his handiwork, that the
brain behind it is some body else’s, whether it is Santosh
Bharti’s to whom he took it or not. He is one of the
persons whose name prominently appears among those who
worked for the respondent in the election. He is also a
young boy of 14 or 15. Here again we are led to believe
that Ex.P-4 was not printed by Vijay Kumar Agarwal on his
own but that it should have been done at somebody else’s
instance and that being incompatible with any other author,
could only be the respondent.
Exhibit P.5 was printed by one Om Prakash Rai. It was
printed at the Chhabi Printing Press on 18-2-72. This Om
Prakash Rai was a very prominent worker of the respondent.
The respondent did not even dare to put Om Prakash Rai on
the witness stand to deny the fact that he printed Ex.P-5
with the consent of the respondent. He was so deeply
committed to the respondent that it would have been very
difficult for him to explain why he printed it. In the
circumstances we do not think that the learned judge was
correct in rejecting
557
the evidence of P.Ws. 66 and 67 who speak to the
respondent’s part in it and the payment made by him. We see
no improbability in the receipt for the payment being dated
27.2.1972 and the payment being made on 18.2.1972. This
expenditure, also is shown in respondent’s account of the
election expenses.
Then we come to Ex.P-6. This purports to have been published
by a certain Jagruk Matdata Parishad. Whether there was
such a Parishad or not, there was a Samyukta Morelia and
that Morelia was supporting the respondent. It consisted of
almost all non-Congress parties. The declaration in respect
of this document was given by one Ajit Modi who also is an
active worker of the respondent. His brother and father
also were respondent’s partisans. Our conclusion about this
document is the same as in respect of the other documents.
The last document for consideration is Ex.P-8. It was
printed in the Kailash Printing Press and the son of the
proprietor was examined as P.W.64. He spoke to the
respondent’s part in the printing of this document. One of
the reasons for disbelieving him was that his father also
gave evidence. But his father did not give any evidence
prejudicial to the respondent. The printing of this
pamphlet was admitted by R.W.2, Ramesh Chand Jain, an
advocate, who got it printed along with Atul Kumar
Shrivastaya, a cousin of the respondent. But their case was
that it was printed in order to present it to the Chief
Minister, Mr. P. C. Sethi when he was expected to visit
Damoh on 28-2-1972 and as he did not do so the pamphlets
were destroyed.- It is an impossible story and we refuse to
believe it. If they wanted-to make any representation it
was not necessary to print 2000 copies. We do not believe
those would have been destroyed. This again is an attempt
to meet the case of distribution. Both Atul Kumar
Shrivastaya and Ramesh Chand Jain are very strong partisans
and workers for the respondent and here again we are
satisfied that they should have been printed with the
consent of the respondent.
The learned Judge has, as we have already observed,
disbelieved all the evidence on behalf of the appellant. If
the witness was a Congress man he was not to be believed
as he was a Congress man. The respondent would not have
been foolish enough to hangover the pamphlets to the
witness. If he was a non-Congress man he was a tenant of a
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Congress man or a tenant of a relative of a Congress man and
therefore could not be believed. In certain cases he has
disbelieved the evidence of witnesses on the ground that
they were not on visiting terms with the respondent. But
elections being what they are no candidate could afford to
ignore a voter on the ground that the voter had not visited
him nor he could be disbelieved on the ground that he had
not gone to the voter earlier. Elections take the
candidates to all sorts of places. If a witness said that he
did not tell the appellant about his having received the
pamphlet a doubt is raised as to how the appellant knew
about the distribution of the pamphlet. Many of the
criticism are very unsubstantial. However we would discuss
this question solely on the evidence of non-Congress
witnesses and show how the evidence regarding distribution
is quite acceptable.
558
P.W.1 is a member of the Bhartiya Jan Sangh. He is the Vice
President of the Mundal Jan Sangh of Damoh. The respondent
had the support of the Bhartiya Jan Sangh Bhartiya Kranti
Dal and Congress (0). He had gone along with Om Prakash Rai
for canvassing for the respondent. Vijay Kumar Agarwal and
Suman also accompained him. According to this witness
Raghubar Modi, father of Ajit Modi, who printed Ex.P-6,
Umanath Agarwal father of Vijay Kumar Agarwal, and Vinod Rai
were workers of the respondent. Om Prakash Rai was an
active canvasser in the election campaign of the respondent.
The only criticism against him was that he is a tenant of
Shri Prabhudayal Mukhariya, a good Congress worker. Om
Prakash Rai is an active member of the Jan Sangh. We see no
reason why his evidence as far as it goes cannot be
accepted. It helps to fix the role of many of the persons
who played an important part in the publication of the
pamphlets.
P.W.2 is a doctor holding a M.B.B.S. degree, who has been
practising in Damoh since 1936. He is a member of the Hindu
Mahasabha. He was also the President of the Hindu Mahasabha
at Damoh and a Secretary of the Provincial Hindu Mahasabha.
He speaks to having attended the meeting dated 4th March,
1972 and of Vijay Kumar Malaiya, Om Prakash Rai, and
Raghubarprasad Modi father of Ajit Modi, being present on
the dais and to the respondent proposing Vijay Kumar Malaiya
to the Chair. Om Prakash Rai also spoke at that meeting.
He also speaks to the respondent having given him Exs.P-3,
P-4 and P-5 on 10th March, 1972. It was elicited from him
that he was a tenant of a cousin of the appellant. To a
question by the Court he said that he had no visiting terms
with the respondent but he added that the respondent must
have come to his house as he was distributing the leaflets.
We see no reason why this witness should not be believed.
The learned judge’s criticism regarding this witness and the
rejection of his evidence cannot be supported.
P.W.4 is a kirana shopkeeper. He had taken no interest in
the election of any candidate. He speaks about the meeting
presided over by Vijay Kumar Malaiya who was proposed by the
respondent as the president. He speaks to Raghubar Prasad
Modi speaking at that meeting as also to Om Prakash Rai’s
speech. He speaks to the presence of P.W.2 at that meeting.
P.W.5 is a retired Sub-Inspector of Police. He speaks to
his having attended the meeting on 4-3-1972 and refers-to
the speech made by Raghubar Prasad Modi, Om Prakash Rai and
the respondent. He also speaks to the respondent having
given him Exs.P-3, P-4 & P-5 on 10th March. He was not
working for any candidate in the election. A suggestion
made to him was that his brother was sentenced to death in a
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murder case and the murdered man was a relative of the
respondent.
P.W.6 does not belong to any political party nor did be work
for any of the candidates in the election. He speaks to the
meeting held on 4th March 1972 to support the respondent
addressed by Om Prakash Rai; Vijay Kumar Malaiya and also to
the respondent giving him pamphlets Exs.P-3 and P-4.
559
P.W.7 is a retired Assistant Conservator of Forest and
belongs to no political party and he did not work for any
body in the election. He speaks to the respondent giving
him Exs.P-3 and P-4.
P.W. 11 speaks to respondent having given him Ex.P-3. He is
not shown to belong to, any party.
P.W.19 is a member of the Jan Sangh and he publishes-a news-
paper ’Bundeli Garjanis’. He speaks to P.W.1 and Om Prakash
Rai working for respondent, as also Raghubar Prasad ’Modi
and his sons Ajit Modi and Kamal Modi, Uma Agarwal and his
son V. K. Agarwal as well as Atul Kumar Shrivastav,
respondent’s cousin.
P.W.24 is a member of the Jan Sangh party who worked for the
respondent in his election. He speaks to respondent giving
him Exs. P-3 and P-4. He speaks to Om Prakash Rai being
present along with the respondent at that time. He speaks
to respondent giving him 10 or 11 leaflets for
distribution.
P.W.26 worked for the respondent in his election. He
speaks to respondent accompanied by Vinod Kumar Rai having
come to his Mohalla and his being given leaflets for
distribution. He also speaks of having gone to the
respondent’s house and having seen Vinod Kumar Rai there.
P.W.65 is another witness who was engaged by the respondent
to distribute the pamphlets.
It is unnecessary to go on multiplying the evidence. We
have deliberately excluded the evidence of Congressmen,
Congress sympathisers or people who had worked for the
Congress candidate. It is interesting to see the way that
the learned Judge has dealt with this question of
distribution He says that the respondent is a practicing
lawyer and had contested three elections and it does not
look probable that he would have gone with Suman and Vinod
Kumar Rai to the printing press for getting Ex.P-3 printed.
P.W.2’s evidence is not believed on the sole ground that if
the respondent had been careful ,’enough to have Ex.P-3
printed through a worker he would not himself go on
distributing the pamphlet. There is also a factual mistake
in that the learned Judge seems to proceed on the basis that
P.W.2 is a Congressman which he is not. P.W.5’s evidence is
not accepted because he had not told anybody about the
distribution of the pamphlet. P.W.6 is taken to be an
interested witness because he had shown the pamphlet to the
appellant. But immediately thereafter the learn-,-,-’ Judge
goes on to say that it is worthy of note that no one amongst
the witnesses, although they were local and some of them
were very much interested in the appellant, either gave the
pamphlets said to be received by them to the appellant
himself or to his brothers. We lo not see the interest for
them to give the pamphlets to the appellant is the
distribution seems to have been well-known. P.W.7 is said
to be an interested witness because he said he only received
two pamphets and that he was not aware whether any pamphlets
on behalf of the Congress candidate was distributed or not.
P.W. 11 is disbelieved on the basis that the respondent
would not have had time to distribute it at Damoh having
been present at village Bhuri some time earlier and in Bilai
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some time later. It appears one has to pass through Damoh
560
on way from Bhuri to Bilai. Nor could we agree that because
this witness’s brother, who is an advocate was not given a
pamphlet it is surprising that the respondent would himself
distribute the Newspaper and the pamphlet to the witness in
the presence of his brother lawyer and involve himself in a
corrupt practice. The substance of the learned Judge’s
criticism about most of the evidence regarding distribution
is that the respondent an advocate a person well seasoned in
election matters would not himself distribute the pamphlets.
The evidence of P.Ws.38 and 39 is not believed, one of the
reasons for that being that respondent had engaged P.Ws. 26
and 65 for distribution, he himself would not do so. We
consider that the evidence of P.Ws.26 and 65 has been
rejected on unsubstantial grounds.
We should mention, however, that we do not place any
reliance upon the evidence of Raghvendra Singh Hazari, R.W.5
about the distribution of the pamphlets. We are thus
satisfied that the distribution has been made by the
respondent himself in some cases as also through P.Ws.26 and
65. The part played by his storng supporters and relatives
in bringing into existence the various pamphlets goes to
probabilise the distribution of the pamphlets either by the
respondent or at his instance.
We shall now see how the learned Judge deals with the
question of printing. The learned Judge considers that
P.W.66 has been brought in simply to connect the respondent
with Ex.P-3. Vijay Kumar Malaiya says that Raghubar prasad
Modi of the B.K.D. as well as Ramesh Chand Jain used to
attend sometime the meetings of the Samyukta Morcha.
Raghubar prasad Modi is the proprietor of the Jawahar
Printing Press. He gives the names of Vijay- Kumar Agarwal,
Om Prakash Rai, Vinod Kumar Rai, Ramesh Chand Jain and
Rammanohar Shrivastaya the election agent of the respondent
as respondent’s supporters. He also says that whatever
election campaign was done for the respondent by the
Samyukta Morcha it was by occasional consultation with the
respondent that he is not able to say whether each worker
and supporter of the respondent did every thing in
connection with the election in consultation with the
respondent. He speaks of Om Prakash Rai working for the
respondent. R.W.2, Ramesh Chand Jain, gives the name of
Raghubar prasad Modi, Ajit Modi’s father as one of the
members of the Samyukta Morcha, In the face of this evidence
it is difficult to accept the respondent’s evidence that
Atul Kumar Shrivastav, Suman, Om Prakash Rai and Ajit Modi
were not his agents; so also the assertion that Om Prakash
Rai had never accompanied him in his election campaign.
Similarly his denial that he was not financed by the
Samyukta Morcha and he himself did not finance it. He
however had to accept that Ramesh Chand Jain, Atul Kumar
Shrivastav and Om Prakash Rai worked for him. He went to
the length of denying that the cash memo Ex.P.5 1, which
bears the name of his own election agent, Ram Manoharlal
Shrivastaya relates to his election expenses and he does not
know who is that person. He has filed Exs.P-52 and P-53
along with his election expenses and admits that Ex.P-52 is
the original of Ex.P-23 and Ex.P-53 is the original of Ex.P-
51. Only thereafter was he compelled to admit
561
that he had got some printing done from the Chhabi Printing
Press. He even pretended- that he did not know that R. K.
Shrivastava’s signature is found it Ex.P-53 and could not
say whether he was the son of his election agent
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Rammanoharlal Shrivastava or not. R. K. Shrivastava as well
as Raghubarprasad Modi’s son Suresh Chand were his polling
agents. He had to admit that Ex.P-68 bears the signature of
Om Prakash Rai, which is a declaration for Fx.P-5. He had
also. to admit that Ex.P-69 and Ex.R-21 bear Om Prakash
Rai’s signatures. He had to admit that Ex.P-71, the
declaration from for Ex.P-70, which’ was printed by him,
bears his signature and one of the identifying witness is
Vinodkumar Rai. His extensive prevarication during the
course of his evidence clearly shows that he is not a person
on whose evidence much reliance can be placed. See paras 38
to 40 and 43 to 47 of his evidence.
It is difficult to accept the assertion of Sum-an who says
that cc did not work for the election of the respondent. He
was his polling agent and a person who gets a pamphlet like
Ex-P-3 printed is certainly
not a disinterested person.
After a thorough and anxious examination of the evidence in
this case we have come to the conclusion that the people who
got printed Exs.P-3, P-4, P-5, P-6 and P-8 are close
supporters of the respondent. They have no special
grievance against the appellant, certainly not enough to
make them go to the extent of having them printed of their
own. Two of them, Vijay Kumar Agarwal and Suman are mere
boys of 14 and 15. They have merely been made use of by
somebody and that somebody in the proved circumstances of
this case could only be the respondent. We are not able to
accept the evidence of Vijay Kumar Agarwal that he got the
pamphlets at 11.30 p.m. on the night of the 10th March and
he distributed it to a few people. Nor are we able to
accept the evidence of Suman that though he gave the matter-
for printing on the 10th he got the pamphlets only on the 1
1 th and so he did not distribute them. We find the
evidence of P.Ws.66 and 67 that it was given for printing on
the 9th more acceptable. We are unable to accept the
assertion of Ramesh chand Jain that he got Ex. P-8 printed
in order to band it over to the Chief Minister- when he was
due to arrive at Damoh on he 28th of February but that he
destroyed them because the Chief Minister did not turn up.
AR these pamphlets have been printed with a definite purpose
that is of harming the chances of the appellant in the
election and thereby aiding the respondent. The plan and
the direction could have come only from one source that is
the respondent. He has made use of his supporters, two of
them young boys of 14 and 15, to get the pamphlets printed
in their names so that they could take the responsibility
and he may disown the responsibility for them.
We have discussed the evidence of only non-Congress
witnesses and we can see no reason to reject them. We do
not agree with the learned Judge who rejected wholesale
every bit of evidence adduced on behalf of the appellant.
Whether the evidence of P.Ws. 66 and 67 about the part
played by the respondent with regard to the pamphlets
printed in the Chhabi Printing Press and of Kailash Chand
Nakra with
562
regard to the pamphlets printed in the Kailash Press are
correct or not, we are convinced beyond reasonable doubt
that the respondent is the ,guiding brain and hand behind
all of them. He and his supporters must have planned all
these things together. He has made his witnesses admit just
enough so that a red herring might be drawn across the trail
and blame may attach to them and not to him. The fact that
’be is an advocate or that it is the third election in which
he is standing is no guarantee against his being responsible
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for this.
Then there is the question of two meetings dated 4.3.1972
and 8.3.1972. We do not think it necessary to examine this
branch of the case in view of the earlier findings.
In the result therefore we hold that the respondent is
guilty of a ,corrupt practice under section 123(4) in
respect of the pamphlets Exs.P-3, P-5, P-6 and P-8.
The appeal is allowed and the respondent’s election is
declared to be void. The respondent will pay the
appellant’s costs.
Appeal allowed.
V.P.S.
563