Samant N. Balakrishna Vs. George
Fernandez & Ors  INSC 37 (12 February 1969)
12/02/1969 HIDAYATULLAH, M.
(CJ) HIDAYATULLAH, M. (CJ) MITTER, G.K.
CITATION: 1969 AIR 1201 1969 SCR (3) 603 1969
SCC (3) 238
CITATOR INFO :
RF 1970 SC2097 (264) R 1972 SC 515 (19) E
1972 SC1302 (19) E 1973 SC1419 (5) R 1974 SC 47 (13) R 1975 SC1417 (33) RF 1975
SC1788 (8) RF 1975 SC2299 (503) RF 1976 SC 744 (34) RF 1976 SC1187 (6) F 1976
SC1599 (29) R 1979 SC 154 (38) R 1979 SC 234 (40) R 1982 SC1559 (26) D 1983
SC1311 (8) R 1984 SC 146 (3,5) R 1984 SC 621 (17) R 1984 SC1161 (9) R 1985 SC
24 (2) RF 1986 SC 3 (21,151) R 1986 SC 25 (1) R 1988 SC1275 (26) F 1990 SC 19
(19) R 1990 SC1731 (6) RF 1991 SC1557 (18)
Representation of the People Act (43 of
1951), ss. 81, 86(5), 100 (1)(b), 100(1)(d)(ii) and 123(4)-Difference between
'material facts' and 'particulars'-What amendments are permissible after the
period of limitation-Candidate's lack of belief in statements made by agents to
be established-Difference between s. 100(1)(b) and s.
100(1)(d)(ii)-Necessity of proof that
Candidate consented to specific corrupt practice-Editor of newspaper attacking
one candidate-When can be deemed to be agent of a rival candidate-Consent of
candidate, if can be inferred Knowledge, if sufficient proof of
consent-Statements in newspapers, weight of-Proof that result of election was
materially affected-Burden of proof.
Under s. 81 of the Representation of the
People Act, 1951, an election can be challenged by means of an election
petition filed within 45 days of the date of election, on the grounds specified
in s. 100(1). Section 100 (1) (b) and (d) (ii) deal with corrupt practices, and
s. 123 sets out what shall be deemed to be corrupt practices. To establish the
corrupt practice under s. 123(4) the election petitioner must prove: (a) the
publication of a statement of fact by (i) a candidate, or (ii) his agent, or
(iii) any other person with the consent of the candidate or his election agent;
(b) that the statement is false or the candidate believes it to be false or
does not believe it to be true;
(c) that the statement refers to the personal
character and conduct of another candidate; and (d) that it is reasonably
calculated to prejudice that other candidate's prospects of election. Under the
Explanation to the section, the word 'agent' includes an election agent, a
polling agent or any person who is held to have acted as an agent in connection
with the election with the consent of the candidate. If-the corrupt practice is
committed by the returned candidate or his election agent, under s. 100(1) (b),
the election is avoided without any further condition being, fulfilled, but if
the petitioner relies on a corrupt practice committed by any other agent other
than an election agent the petitioner must prove that it was committed with the
consent of the returned candidate or his election agent as required by s.
100(1) (b), or, that the corrupt practice which was committed in the interests
of the returned candidate materially affected the result of the election in so
far as it concerned the returned candidate. [617 A-B; 618 B-D] Section 83
requires that the petition must contain a concise statement of the material
facts on which the petitioner relies and the fullest possible particular of the
corrupt practice alleged. 'Material facts' and 'particulars' may overlap but
the word 'material' shows that the ground of corrupt practice and the facts
necessary to formulate a complete cause of action must be stated. The function
of the Particulars is to present as full a picture of the cause of action as to
make the opposite party understand the case he will have to meet. Under s.
86(5), if a corrupt practice. is alleged in the petition the particulars of
such corrupt practice may be amended or amplified for ensuring a fair and
effective dial, that is, more and better particulars of the charge may be given
later, even after the period of limitation; but if a corrupt practice is not
previously alleged in the petition, an amendment which will have the effect of
introducing particulars of such a corrupt practice will not be permitted, after
the period of 'limitation, because, it would be tantamount to the making of a
fresh petition. Merely repeating the words of the statute does not amount to a
proper statement of material facts where the allegation of corrupt practice is
the making of a false statement. The false statement must appear in the
petition. if the corrupt practice is the publication of an article in a
newspaper no incorporation of the contents by reference can be allowed, for, if
a newspaper is not exhibited and only the date is mentioned, the material fact,
namely, the exact offending portion of the newspaper, would not have been
stated. If the charge is that an agent did something, it cannot be amplified by
giving particulars of acts on the part of the candidate or vice versa, because,
in the scheme of: election law, publication of false statements by an agent is
one cause of action and publication of false statements by a candidate is quite
a different cause of action. They are separate corrupt practices which cannot
be said to grow out of the material facts related to another person. Since a
single corrupt practice committed by the candidate or by his election agent, or
by any other person with the consent of the candidate or his election agent is
fatal to the election, the case must be specifically pleaded and strictly
proved; if not, such corrupt practice cannot be alleged later on after the
period of limitation [619 C-H; 621 B-D; 622 A-D, F-G; 623 E-H; 629 A-B] In the
present case, the election of the first respondent to Parliament from Bombay
South Parliamentary constituency, was challenged by the appellant (an elector
in the constituency) on the ground that corrupt practices were committed. The
result of the poll was declared on February 24, 1967. The first respondent
secured 1,47,841 votes and his nearest rival, the second respondent, secured
1,18,407 votes. The petition was filed on April 7, 1967. The corrupt practice
alleged was that the first respondent made some speeches, and that the first
respondent and two others, with the consent and for the benefit of the first
respondent, made false statements, casting aspersions on the character and
conduct of the second respondent, and that those and other false
statements-were published as news items in the daily newspaper 'Maratha'.
Extracts from the newspapers were annexed. It was also stated that similar
false statements were published in some other issues of the newspaper but no
attempt Was made either to specify the offending portions of the newspapers or
to file the extracts or the original issues, but only the dates were given.
There was also no averment that the first respondent believed the statements to
be false or did not believe them to be true. After the period of limitation,
the originals of all the issues of the newspapers were filed and after the
examination of the election petitioner as a witness, applications for amendment
were made. The High Court allowed the following amendments: (a) Speeches
attributed to the first respondent and a speech said to have been made at a
meeting, when the first respondent presided, casting aspersions on the second
respondent, to be included among the list of corrupt practices. Reports of
those speeches appeared in the issues of the 'Maratha' which were filed later.
(b) An article in the 'Blitz, written by the first respondent defamatory of the
second respondent also to be included in the list of corrupt practices. (c) An
averment that the editor of the newspaper 'Maratha' and the first respondent
believed the statements to be false or that they did not believe them to be
true. And (d) an averment that the editor of the newspaper and the two others
were the agents of the first respondent. The High Court however, dismissed the
election petition. [614 E-F; 616 B] In appeal to this Court, on the questions :
(1) Whether all or any of the amendments should be allowed; (2) Whether the
editor of the 'Maratha' and the two others committed corrupt practices under s.
100 605 (1) (b) by publishing the statements about the second respondent with
the consent of the first respondent and (3) Whether the result of the election
in so far as it concerned the first respondent was materially affected by the
publication as required by s. 100(1) (d) (ii),
HELD: (1) The amendments relating to the
speeches of, the first respondent and his article in the Blitz should not be
allowed; but the amendments relating to the agency of the editor of the
'Maratha' and the two others, and that seeking to incorporate the averment
about the lack of belief of the editor of 'Maratha and the first respondent
should be allowed. [616 E-G] In the petition as originally filed, the agency of
the editor of 'Maratha, and the two others was the basis of the charge and the
first respondent was left out. Only one allegation was made personally against
the first respondent namely that he made some speeches but that was not relied
upon and no evidence regarding it was adduced. The other allegation in the original
petition was that he made some statements, and that the 'Maratha' published
them; and the extracts from the 'Maratha were filed as exhibits. Since
publication of a false statement is the gist of the election offence the charge
was against the 'Maratha, and its editor.
If it was intended that the first respondent
should be held responsible then the allegation should have been what statement
he made and how it offended the election law.
'Mere was however no reference to any
statement by the first respondent himself throughout the petition as it was
originally filed and in fact there was no charge against him. During the
election the second respondent did not once protest that the first respondent
was spreading false propaganda and even after election he did not attribute
anything to the first respondent. Therefore, the amendments which had the
effect of introducing new corrupt practices relating to the candidate himself
which had not been pleaded earlier should not be allowed, as that kind of
amendment, sought after the period of limitation, is prohibited under the law.
But the allegation that in publishing the statements in the 'Maratha' its
editor acted as the agent of the first respondent, that the statements were
false or were believed to be false by the first respondent and the editor, and
that they were calculated to prejudice the second respondent's chances and did
so prejudice, should be allowed. They are merely particulars to be added for
completing the cause of action relating to a current practice already alleged.
The result is that the 'case is confined to that of a candidate sought to be
made responsible for the acts of his agent other than an election agent. [620
G; 624 A-F; 632 A-B] Jagan Nath v. Jaswant Singh,  S.C.R. 892-895, Bhim Sen
v. Gopali,  22 E.L.R. 288 (S.C.), Chandi Prasad Chokani v. State of
Bihar,  2 S.C.R. 289, Sheopat Singh v. Ram Pratap,  1 S.C.R. 175
and Kumara Nand v. Brij Mohan, 1 2 S.C.R. 127, followed.
Harish Chandra Bajpai v. Triloki Singh,
 S.C.R. 370, explained.
Din Dayal v. Beni Prasad, 15 E.L.R. 131,
Balwant Singh, ;v. Election Tribunal, 15 E.L.R. 199, Sasivarna Thevar v.
Arunagiri, 17 E.L.R. 313, Hari Vishnu Kamath v. Election Tribunal, 14 E.L.R.
147, Devaiah v. Nagappa, A.I.R. 1965 Mys. 102, Babulal Sharma v. Brijnarain
Brajesh, A.I.R. 1958 M.P. 175 (F.B.), Beal v. Smith L. R. 4 C. P. 1 1 5; Bruce
v. Odhams Press Ltd.  1 K.B. 697 and Phillips v. Phillips,  4
Q.B.D. 127, referred to.
(2) Regard however being had to the
activities of the editor of 'Maratha' as editor and his own personal hostility
to the second respondent L10Sup./69-4 606, every act of the editor could not be
attributed to the first respondent. The editor's field of agency must be
limited to what he said as the agent of the first respondent and would not
embrace the field in which he as acting as editor of his newspaper unless the
first respondent's consent to the corrupt practices was established. [636 E-F;
638 B-C] Consent need not be directly proved and could be inferred from
circumstantial evidence, such as a consistent course of conduct of the
candidate. But the circumstances must point unerringly to the conclusion and
must not admit of any other explanation. Although an election petition is tried
in accordance with the Civil Procedure Code, a corrupt practice must be proved
in the same way as a criminal charge is proved. English cases dealing with
illegal practices in which the candidate is held :responsible for the acts of
his agent, are not a proper guide, because English law, unlike Indian law,
makes a distinction between 'illegal practices' and 'corrupt practices'. Fourth
the consent of the candidate must 'be specific and must be proved for each
corrupt practice. If every act of an agent is presumed to be with the consent
of the candidate there would be no room for the application of the extra
condition laid down by S.
100(1)(d), namely, the material effect on the
result of the election, be ,cause, whenever agency is proved either directly or
circumstantially, the finding about consent under s. 100(1) (b) will hive, to
follow. [637 A-H] In the present case, though the newspaper ran a special
column as an ,election front of the first respondent, no article or comment in
that column was relied on for proving a corrupt practice. It was not even
suggested that the first respondent wrote any article for the 'Maratha. The
statements which were relied on as corrupt practices we're made by the editor
of the newspaper in the normal course of running a newspaper, as news items or
in the editorial.
They stated the policy of the newspaper and
its comments upon the events. Many of the news items ,appeared. in more than
one paper. If it could not be said that the editors of-each of those papers
acted as an agent for the first respondent there is no reason for, holding that
the editor of 'Maratha' alone acted as such agent. It was not as if the matter
was left entirely in the hands of the ,editor who acted as a whole time agent
or solely as the agent of the first respondent, nor is it a case of some
persons setting up the first respondent as a candidate and sponsoring his
cause. The editor did not publish any propaganda material such as leaflets or
pamphlets. Therefore, though the editor was a supporter and agent of the first
respondent, it could not be said that the first respondent consented to each
publication as it appeared or even generally consented to the publication of
items defaming the character and conduct of the second respondent. The first
respondent denied knowledge of the. articles. From his false suppression of
some other facts and denial of others, it could not be said that his denial of
knowledge of the articles in the 'Maratha' was also false. But even if he had
knowledge, it would not be sufficient, because, the law requires some concrete
proof, direct or circumstantial, of consent, and not merely 'of knowledge or
connivance. Further, no such inference regarding the first respondent's consent
could be drawn from the comments and speeches attributed to the first
respondent by the 'Maratha' and other newspapers or from any similarity of
ideas or language, because, news items when published are garbled versions and
cannot be regarded as proof of what actually happened or was said without other
acceptable evidence through prom witnesses. [629 B-H; 630 AB: 632 F-H; 633 A-D;
634 A-H; A-G; 636 AD; 638 A-G; 639 A-B] As regards the other two persons, even
evidence regarding their agency was non-existent and there was no material on
which the first respondent's consent to their statements could be presumed or
inferred. [640 A-B] 607 Therefore, since the consent of the candidate to the
corrupt Practice was not proved the case will have to be judged under s. 100
(1) (d) (ii) and not under s. 100(1)(b). [640 D] Rama Krishna's case, C.A. No.
1949/67 dated 234-68, Inder Loll Yugal Kishore v. Lal Singh, A.I.R. 1961 Raj.
122, Gopal Swami v. Abdul Hamid Chowdhury, A.I.R. 1959 Assam 200, Adams v. Hon.
E. F.. Leveson Gower, 1 O'Malley & Hardcastle 218, Christie v. Grieve, 1
O'Malley & Hardcastle 251, Spencer, John Blundell v. Charles Harrison, 3
O'Mally & Hardcastle 148, Biswanath Upadhava v. Haralal Das, A.I.R. 1958
Assam 97, Abdul Majeed v., Bhargavan, A.I.R. 1963 Kerala 18, Rustom Satin v.
Dr. Sampoornanand 20 E.L.R. 221, Sarala Devi Pathak T. Birendra Singh, 20
E.L.R. 275, Krishna Kumar v. Krishna Gopal, A.I.R. 1964 Raj. 21, Lai Singh v.
Vallabhdas, A.I.R. 1967 Guj. 62, Badri Narain v. Kantdeo Prasad, A.I.R. 1961
Pat. 41, Sarat Chandra v. Khagendranath, A.I.R. 1961 S.C. 334 and Taunton's
case, I O'Malley & Hardcastle 181, 185, referred to.
Bayley v. Edmunds, Byron & Marshall
(1894) 11 T.L.R. 537, distinguished.
(3) To bring a case under s. 100(1) (d) (ii)
it is not sufficient to prove that a person acted as an agent with the consent
of the candidate. The petitioner will have to establish that the conditions
required by s. 100(1).(d)(ii) and s. 123(4) are satisfied, that is : (a) that a
false statement was made by an agent, (b) that the first respondent did not
believe, the statement to be true or believed it to be false; (c) that it
related to the personal character and conduct of the second respondent; (d)
that it was reasonably calculated to harm the chances of the second respondent;
and (e) that it in fact materially affected the result of the election in so
far as the first respondent was concerned. Conditions (a), (b) and (c). were
admitted by the first respondent and, since the articles cast violent
aspersions on the second respondent and showed a deliberate attempt to lower
his character, condition (d) was also satisfied. But as condition (e) was not
satisfied, the election petition should be dismissed. [640 D-H] Even after
considering the nature of attacks made on the second respondent, the frequency
and extent of publicity, the medium of circulation and the kinds of issues
raised before the voters, it could not be said, in the circumstances of this
case, that the result of the. election in so far as the first respondent was
concerned was materially affected. The matter could not be decided on
possibilities or on a reasonable judicial guess, because, the law requires
proof, and though s. 100(1) (d) casts a difficult burden on the election
petitioner, that burden must be successfully discharged by him. [641 B-D; 644 B-D]
There was a large difference (about 30,000) between the votes received by the
two rival candidates, namely the first and second respondents, and as many as
38,565 votes were cast in favour of the remaining candidates and it is
impossible to say how much the second respondent lost or first respondent
gained by reason of the false statements.
After the election the second respondent
never for a moment attributed his defeat to the false propangada of the first
respondent or his supporters and even said that the election was conducted with
propriety. [64-3-E-H; 644 D-F] Vashist Narain Sarma v. Dev Chandra,  1
S.C.R. 509, Surendra Nath Khosla v. Dalip Singh,  S.C.R. 179 and
Inayatullah v. Diwanchand Mahajan, 15 E.L.R. 219, 235, 236, followed.
Hackney's case, 2 O'Malley and Hardcastle,
77, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 895 and 896 of 1968.
Appeals under S. 116-A of the Representation
of the People Act, 1951 from the judgment and order dated January 29, 1968 of
the Bombay High Court in Election Petition No. 6 of 1967.
R. Jethamalani and H. N. Hingorani and K.
Hingorani, for the appellant (in C. A. No. 895 of 1968).
C. K. Daphtary, A. K. Sen, K. S. Cooper and
K. Hingorani, for the appellant (in C. A. No. 896 of 1968).
A. S. R. Chari, Porus A. Mehta, S. B. Naik,
Kumar Mehta, R. Nagaratnam and K. Rajendra Chaudhuri, for respondent No. 1 (in
both the appeals).
The Judgment of the Court was delivered by
Hidayatullah, C.J. In the last General Election to Parliament from the Bombay
South Parliamentary constituency eight candidates had offered themselves. The
answering respondent Mr.George Fernandez secured 1,47,841 votes as against his
nearest rival Mr. S.K. Patil who secured 1,18,407 votes. The remaining candidates
secured a few thousand votes between them. The result of the poll was declared
on February 24, 1967. and Mr. George Fernandez was returned. An election
petition was filed by Mr. Samant N. Balakrishna, an elector in the
constituency. It challenged the election of Mr. Fernandez and was ostensibly in
the interest of Mr. S. K. Patil. The election petition was keenly contested and
Mr. S. K. Patil gave his full support to the petition. The election petition
failed and it was dismissed with an order for costs against the election
petitioner and Mr. S. K. Patil. Two appeals have now been filed against the
judgment of the Bombay High Court, one by the election petitioner and the other
by Mr. S. K. Patil.
They have been heard together and this
judgment will dispose of both of them.
The petition was based on numerous grounds
which were, set out in paragraph 2 of the petition. These grounds were shown
separately in sub-paragraphs A to J. Sub-paragraphs A to D dealt with the
invalidity of the election for noncompliance with s, 62 of the Representation
of the People Act and Arts. 326 and 327 of the Constitution. These concerned
the secrecy of ballot (A), registering of some voters in two constituencies
(B), omission of qualified voters from electoral rolls (C) and impersonation by
persons for dead or absent voters (D). These, four grounds 609 were given up in
the High Court itself and we need not say anything about them. Sub-paragraphs E
to J contained allegations of corrupt practices. The petition was accompanied
by four annexures Nos. A to D which were extracts from newspapers on which the
charge of corrupt practices was based. The grounds may now be noticed in
Sub-paragraph E dealt with statements made at
a meeting dated February 16, 1967 at Shivaji Park by Jagadguru Shankaracharya
charging Mr. S. K. Patil with complicity in arson of November 7, 1966 at New
Delhi and attack on the residence of the Congress President with injuries
caused to people. In these articles from the 'Maratha' and the 'Blitz' extracts
of which were quoted and annexed as Annexure A, Mr. Patil was described as
hypocrite, insincere and dishonest. Similar speeches by Mr. Madhu Limaye,
(,another candidate of the S.S.P. by which party Mr. Fernandez was sponsored)
were relied upon. The statements were "inspired by Mr. Fernandez" and
"with his consent and for his benefit". It was said that they
amounted to a corrupt practice under s. 123(4) of the Representation of the
In Sub-paragraph F, a statement of Jagadguru
Shankaracharya on cow slaughter was made the ground of attack. It was to the
effect that Mr. S. K. Patil only pretended to support the anti-cow-slaughter
movement but had done nothing in furtherance of it. It was contended that the
cow was used as a religious symbol and the speeches offended against the
Election Law as stated in section 123 (3). These statements were also said to
be inspired by Mr. Fernandez and were made with his consent and for his
Sub-paragraph G referred to speeches of Mr.
Fernandez and his workers with his knowledge and consent. In those speeches Mr.
Fernandez is said to have described Mr. S. K. Patil as the enemy of Muslims and
Christians who only professed to discourage slaughter of cows and he Was
charged with interfering with the articles of faith of the Muslims and
Christians and seeking expulsion of Muslims to Pakistan.
This was said to offend against s. 123(3A) of
the Representation of the People Act.
In Sub-paragraph H it was alleged that the
'Maratha' published a false statement to the effect that Mr. S. K. Patil had
paid rupees 15 lacs to Mr. Jack Sequeira to undo the efforts of Maharashtrians
for incorporation of Goa in Maharashtra. The extract from the 'Maratha' of
January 25, 1967 was annexed as Ex. B. The speech of Mr. H. R. Gokhale who
published a similar statement, was also referred to.
These were made the grounds of complaint
under s. 123 (4) of the Representation of the People Act.
610 In Sub-paragraph 1 four issues of the
'Maratha' of the 5th and 31st January, 1967 and 5th and 8th of February, 1967
were exhibited as Ex. C. It was stated in the first two that the Shiv Sena
supported the Maharashtra traitor Sadoba Patil and that the Shiv Sena was
really Sadoba Sena. A cartoon showing Mr. S. K. Patil as Vishwamitra and the
leader of Shiv Sena as Menka with the caption 'Sadoba denies that he has no
connection with Shiv Sena like Vishwamitra Menka episode", was the third.
The last of these articles was headed "harassment from Gondas of Sadoba
Patil Shiv Sena in the service of Sadhshiv (S. K. Patil)". These
statements were said to be false and made by the 'Maratha' in favour of
respondents other than respondent No. 2 (Mr.
S. K. Patil) or at any rate on behalf of Mr.
These were said to prejudice the minority
communities and thus to offend section 123(4) of the Representation of the
People Act. The statements were said to be made with the knowledge and consent
of Mr. Fernandez and for his benefit.
In Sub-paragraph J three issues of 'Maratha'
of the 24th, 28th and 31st December 1966 were referred to. In the first it was
stated that "Shri S. K. Patil will go to Sonapur in the ensuing election.
Fernandez says in his Articles Patil mortgaged India's Freedom with America by
entering into P.
L. 480 agreement and Mr. Patil had no devotion,
love, respect for this country at all." In the second Mr. Patil was
described as Nagibkhan of Maharashtra. The third was a cartoon in which
Shankaracharya was depicted as saying "Cow is my mother. Do not kill
her" and Patil S. K. as saying "Pig is my father". These
extracts were annexed as Ex. D. Then followed a paragraph in which was said :
"Similar false statements in relation to Respondent No. 2's character and
conduct were published in several issues of Maratha Daily" from December
12, 1966 to February 21, 1967 and 33 issues were mentioned by date. These were
also said to be Ex. D.
This was the original material on which the
petition filed on April 7, 1967 was based. Mr. Fernandez filed his written
statement on June 14, 1967 and Mr. S. K. Patil on July 4, 1967. Later five
amendments were asked for. By the first amendment, which was orally asked and
allowed, reference to the 33 articles was altered and they were said to be
contained in Ex. E instead of Ex. D. Ex. E was then introduced and gave the list
of 33 articles in the 'Maratha' and one article in the Blitz, and the extracts
on which reliance was placed. On July 4, 1967 an application for amendment was
made seeking to add two Sub-paragraphs 2-K and 2-L. 2-K is not pressed now and
need not be mentioned. By 2-L the petitioner asked for addition to the list of
corrupt practices of a reference to an article dated November 5, 1966 in the
Blitz. This article was written by Mr.
611 On September 12, 1967, an application was
made for seven additions to paragraph 2J. Seven incidents were sought to be
included. Of these four were ordered by the Court to be included in 2-J on
September 15, 1967 as Sub-sub-paragraphs (i) to (iv) and three were rejected.
In the first of the Sub-sub-paragraphs so, included, a speech at a public
meeting at Shivaji Park by Mr. Fernandez on January 31, 1967 was pleaded in
which Mr. Fernandez is said to have made a statement that even God could not
defeat the second respondent (Mr. S. K. Patil) because unlike the second
respondent God was not dishonest. It was also alleged that Mr. S. K. Patil won
elections by "tampering with the ballot boxes or substituting the
same". These statements were said to be made by Mr. Fernandez deliberately
and maliciously and that he believed them to be false or did not believe them
to be true. The report of the speech was quoted from the 'Maratha' of February
1, 1967 and was included as part of Ex. E. In the second Sub-sub-paragraph a
Press Conference at Bristol Grill Restaurant on February 9, 1967 addressed by
Mr. Fernandez was referred to. At that Conference Mr. Fernandez charged Mr. S.
K. Patil with "unfair and unethical electioneering practices" and as
illustrations of his methods mentioned the release of 70 dangerous characters
from jail on parole and the suspension of externment orders against some and
the allowing of some other externed persons to return, were alleged. It was
also said that these persons were being used by Mr. Patil in his campaign.
Extracts from the issues of the 'Maratha' of
the 10th and 11th February, 1967 were made part of annexure E. In the third
Sub-sub-paragraph a public meeting at Sabu Siddik Chawl, of' February 10, 1967
was referred to. At that meeting, it wag alleged, Mr. Fernandez described Mr.
Patil as an "American Agent, Dada of Capitalists and Creator of Shiv
Sena." All these statements were said to be false and to reflect upon
personal character and conduct of Mr. Patil and thus to be corrupt practices
under s. 123 (4) of the Representation of the People Act. In. the fourth
paragraph a meeting of January 8, 1967 at Chowpati, presided over by Mr.
Fernandez was referred to. Mr. Madhu Limaye was said to have addressed that
meeting and referred to the incident of November 7, 1966. These statements were
also, said to be false and to materially affect the prospects of Mr. Patil.
In this Sub-sub-paragraph it was also alleged
that Mr. P. K. Atrey, Editor and Proprietor of the 'Maratha, Jagadguru
Shankaracharya and Mr. Madhu Limaye were agents of Mr.
Fernandez and had made these statements in
his interest and with his consent.
The petitioner also asked for addition of
three other grounds of corrupt practices, which the Court did not allow to be
included. Paragraph 2-L to which we have referred was an article by Mr.
Fernandez. It was captioned as a fight against political 612 thuggery" and
included the following passage which was made the basis of the following charge
"These men (including the 2nd
Respondent) from the hard core of the coterie which control the destinies of
the nation, even decides who should be the Prime Minister and who should not
be, hounds out the few honest Congressmen from Public life, props up the
Aminchand Pyarelal and Chamanlal and supports them in all their misdeeds and
puts a premium on dishonest businessmen and industrialists." This
allegation was said to suggest dishonesty in Mr. Patil. The other amendments
which were disallowed referred to a speech at Dr.
Vigas Street on February 27, 1967, a speech
by Dr. Lohia at Chowpati on January 1, 1967 published in 'Andolan' of January
9, 1967 and a Press Conference by Mr. Madhu Limaye at Bristol Grill Restaurant
on December 10, 1966.
Prior to the application for amendment
certain events had happened to which it is necessary to refer. On April 7, 1967
the office objected that the originals of Exs. A, B, C and D ha not been filed.
The remark of the office is as follows :"Exhibits A, B, C, D are mere
repetitions of what is mentioned in the body of the petition.
Is it not necessary to annex the original
copies of the said newspaper?" Mr. Kanuga, one of the Advocates for the
petitioner replied to the objection as follows :
"We undertake to file the original
issues and official translations later as the same is (sic) with the Chief
translator, High Court, Bombay before the service of Writ of Summons".
Till July 3, 1967 no effort seems to have
been made to file the originals. On that date the 'Rozanama' read as follows
"Mr. Jethmalani applies for leave to amend the petition by pointing out
that 'D' in last sentence of paragraph 2 on page 12 of the petition be
corrected and read as 'E' and to annex reports in original P. C. leave to amend
granted." The issues were settled on the same day and particulars were
asked for. On July 7, 1967 the 'Rozanaina' read as follows "Mr. Gurushani
tenders the original of the exhibits A (Coll) to Exhibit E (Coll) mentioned in
para 2J of page 1 1 of the petition." A chamber summons was taken out
because the particulars were not supplied and on August 4, 1967 the particulars
were furnish613 ed. It was then on September 12, 1967 that the application for
seven amendments was made, four of which were allowed and three were rejected.
This was by an order dated September 15, 1967.
Before dealing with this appeal it is
necessary to clear the question of the amendments and whether they were
properly allowed. This question consists of two parts; the first is one of fact
as to what was exhibited with the petition as materials on which the petition
was based. The case of the petitioner before us is that in support of 2J copies
of relevant newspapers were filed with the petition. This is denied on behalf
of the answering respondent.
Mr. Daphtary's contention is that if the
originals of the 'Maratha' had not been filed an objection would have been
taken in the court and none was taken. Even witnesses were examined and
cross-exhibited with reference to the statements and the originals must have
been in court. This, in our opinion, is not decisive. The first witness to be
examined was the petitioner himself. Evidence commenced on August 25, 1967. The
petitioner proved the copies of the newspapers and they were marked as
exhibits. By that date the copies of the 'Maratha' had already been filed and
the petitioner in his evidence referred to all of them. The cross-examination,
therefore, also referred to these documents. Nothing much turns upon the want
of objection because (as is well-known) objection is not taken to some fatal
defect in the case of the other side since the party, which can take the
objection, wants to keep it in reserve.
It is true that if the objection had been
taken earlier and had been decided the petitioner would have had no case to
prove on the new allegations and might not have led some evidence. But we
cannot hold from this that any prejudice was caused to him. After all it was
his responsibility to complete his allegations in the petition by inclusion of
the copies of the 'Maratha' and the other side cannot be held to have waived
its objection since that objection was in fact raised and has been answered in
the High Court. The Rozanamas clearly show that the copies of the 'Maratha'
were not filed with the election petition but much later and in fact beyond the
period of limitation. Mr. Daphtary characterises the Rozanamas as inaccurate
but the internal evidence in the case shows that the Rozanamas were correctly
The petition quoted some of the offending
statements in the newspapers and exhibited them as Exs. A to D. In the petition
these 10 extracts are to be found in Sub-paragraphs 2E, H, I and J. The change
of Exs. D to E and the filing of E show that the extracts which were with the
translator were referable to those extracts already mentioned in the petition
and not those mentioned in the last paragraph of 2J. It will be noticed that
614 that paragraph refers to 33 numbers of the 'Maratha'.
Extracts from those were furnished only on
July 3, 1967 when Ex. E was separately filed and according to the Rozanama, the
originals were filed on July 7, 1967. Mr. Kanuga could not have referred to all
the 33 issues of the 'Maratha'.
Only 10 extracts from the 'Maratha' were in
Exs. A to D and of these eight are included in the list of 33 numbers of the
'Maratha' in the last paragraph of 2J. If they were already filed, Mr. Kanuga
would have said so and not promised to file them later. He mentions in his note
that they were with the translation department and would be filed later.
If all the 33 issues of the 'Maratha' were
already filed there would be no occasion for the office objection and the reply
of Mr. Kanuga could apply to two numbers only. They were the issues of 25th
January and 5th February, 1967. The office noting shows that not a single
original was filed with the petition. This appears to us to be correct. We are
satisfied that 10 issues of the 'Maratha' from which extracts were included in
the petition in Exs. A to D were the only numbers which were before the
translator. Mr. Kanuga's remark applies to these 10 issues. The other issues
which were mentioned in the last paragraph of 2J numbering 33 less 8 were
neither in the translator's office nor exhibited in the case. Hence the
amendment of the second reference from D to E and the request to file original
It seems that when the petition was filed a
list was hurriedly made of all the issues of the 'Maratha' to which reference
was likely and that list was included in the last portion of 2J. But no attempt
was made either to specify the offending portions of the newspapers or to file
the extracts or the original issues. All this was done after the period of
limitation. No incorporation of the contents of the articles by reference can
be allowed because if a newspaper is not exhibited and only the date is
mentioned, it is necessary to point out the exact portion of the offending
newspaper to which the petition refers. This was not done. We have to reach
this conclusion first because once we hold that the issues of the 'Maratha' or
the extracts referred to in the petition were not filed, the plea as to what was
the corrupt practice is limited to what was said in the body of the petition in
paragraph 2J and whether it could be amended after the period of limitation was
over. The attempt today is to tag on the new pleas to the old pleas and in a
sense to make them grow out of the old pleas. Whether such an amendment is
allowable under the Election Law is therefore necessary to decide.
Mr. Daphtary arguing for the appellant
contends that he was entitled to the amendment since this was no more than an
amplification of the ground of corrupt practice as defined in S. 123(4) and
that the citation of instances or giving of additional parti615 culars of which
sufficient notice already existed in 2J as it originally stood, is permissible.
According to him, under s. 100 the petition has to show grounds and under s. 83
there should be a concise statement of material facts in support of the ground
and full particulars of any corrupt practice alleged. He submits that under s.
86(5) particulars can be amended and amplified, new instances can be cited and
it is an essence of the trial of an election petition that corrupt practices
should be thoroughly investigated. He refers us to a large body of case law in
support of his contention.
On the other hand, Mr. Chari for Mr. Fernandez
contends that there was no reference to the speeches by Mr. Fernandez in the
petition. The cause of action was in relation to the publication in the
'Maratha' and not in relation to any statement of Mr. Fernandez himself and
that the amendment amounts to making out a new petition after the period of
To decide between these rival contentions it
is necessary to analyse the petition first. Paragraph 2J as it originally
stood, read as follows :
"The Petitioner says that false
statements in relation to character and conduct of the Respondent No. 2 were
made by the 1st Respondent and at the instance and connivance of the' 1st.
Respondent, Maratha published the following articles, as set out hereinafter.
The petitioner says that the said allegations are false and have been made with
a view to impair and affect the prospects of Respondent No. 2's elections to
Some of the extracts are : etc."
Here three issues of the 'Maratha' of 24th,
28th and 31st December, 1966 were referred to.
Of the extracts, the last two make no
reference to Mr. Fernandez. The first spoke thus "Maratha Dated 24-12-66.
Pages 1 and 4.
Shri S. K. Patil will go to Sonapur in the
ensuing election. Fernandez says in his Articles Patil mortgaged India's
Freedom with America by entering into P.L. 480 agreement and Mr. Patil had no
devotion, love, respect for this country at all." Then followed this
"Similar false statements in relation to
Respondent No. 2 character and conduct were published in Maratha Daily dated
12th December, 1966, 17th December, 23rd December, 24th December, 28th, 29th
and 31st December issues, January issues dated 4, 5, 7th, 10th, 18th, 20th,
21st, 28th, 30th and 31st.
February issues, 616 1st, 2nd, 3rd, 6th, 7th,
8th, 10th, 11th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st....... These
reports in original are filed and true translation are marked Ex. D to the
petition." We have already held that the newspapers mentioned in the last
paragraph were not filed with the petition but on July 7, 1967 after the period
of limitation was over. The allegations thus were that Mr. Fernandez made the
false statements and they were published in the 'Maratha' at his instance and
with his connivance. There is no mention of any speech at Shivaji Park, or at
Sabu Siddik Chowk or at Dr. Vigas Street or the press inter-view at Bristol
Grill Restaurant. All these statements which are now referred to were said to
be made by Mr. Fernandez himself. By the amendment a charge of corrupt practice
was sought to be made for the first time in this form. In the original petition
(Sub-paragraph 2J) there was no averment that Mr. Fernandez believed these
statements to be false or that he did not believe them to be true and this was
also sought to be introduced by an amendment. It may, however, be mentioned
that in an affidavit which accompanied the election petition this averment was
expressly made and the appellants desire us to read the affidavit as
supplementing the petition. By another application for amendment the petitioner
sought to add a paragraph that the 'Maratha', Jagadguru Shankaracharya and Mr.
Madhu Limaye were agents of Mr. Fernandez within the Election Law. By yet
another application reference to an article in the 'Blitz' was 'Sought to be included
as Subparagraph 2L.
At the conclusion of the arguments on this
part of the case we announced our decision that the amendment relating to the
speeches of Mr. Fernandez at Shivaji Park, Sabu Siddik Chowk and Dr. Vigas
Street and his Press Conferences at Bristol Grill Restaurant and the article in
the 'Blitz' ought not to have been allowed but that the amendment relating to
the agency of the 'Maratha' etc. and that seeking to incorporate the averment
about the lack of belief of Mr. Fernandez were proper. We reserved our reasons
which we now proceed to give.
The subject of the amendment of an election
petition has been discussed from different angles in several cases of the High
Courts and this Court. Each case, however, was decided on its own facts, that
is to say, the kind of election petition that was filed, the kind of amendment
that was sought, the stage at which the application for amendment was made and
the state of the law at the time and so on. These cases do furnish some
guidance but it is not to be thought that a particular case is intended to
cover all situations.
It is always advisable to look at the statute
first to see alike what it authorises and what it prohibits.
617 Section 81 of the Representation of the
People Act, 1951 enables a petitioner to call in question any election on one
or more of the grounds specified in s. 100(1) and s. 101 of the Act. The
petition must be made within 45 days from the date of election. Sections 100
and 101 enumerate the kind of charges which, if established, lead to the
avoidance of the election of a returned candidate and the return of some other
candidate. The first sub-section of section 100** lays down the grounds for
dec*"81. Presentation of petitions.
(1) An election petition calling in question
any election may be presented on one or more of the grounds specified in
sub-section (1) of section 100 and section 101 to the High Court by any
candidate at such election or any elector within forty-five days from, but not
earlier than, the date of election of the returned candidate, or if there are
more than one returned candidate at the election and the dates of their
election are different, the later of those two dates.
Explanation-In this sub-section, 'elector'
means a person who was entitled to vote at the election to which the election
petition relates, whether he has voted at such election or not.
(2) (3) Every election petition shall be
accompanied by as many copies thereof as there are respondents mentioned in the
petition and every such copy shall be attested by the petitioner under his own
signature to be a true copy of the petition." **"100. Grounds for
declaring election to be void.
(1) Subject to the provisions of sub-section
(2) if the High Court is of opinion (a) that on the date of his election a
returned candidate was not qualified or was disqualified, to be chosen to fill
the seat under the Constitution or this Act or the Government of Union
Territories Act, 1963, or (b) that any corrupt practice has been committed by a
returned candidate or his election agent or by any other person with the
consent of a returned candidate or his election agent; or (c) that any
nomination has been improperly rejected; or (d) that the result of the
election, in so far as it concerns a returned candidate, has been materially
(i) by the improper acceptance of any
nomination, or (ii) by any corrupt practice committed in the interests of the
returned candidate by an agent other than his election agent, or (iii) by the
improper reception, refusal or rejection of any vote or the reception of any
vote which is void, or (iv) by any non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders made under this Act, the
High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a
returned candidate has been guilty by an agent, other than his election agent,
of any corrupt practice but the High Court is satisfied :(a) that no such
corrupt practice was committed at the election by the candidate or his election
agent, and every such corrupt practice was committed contrary to the orders,
and without the consent, of the candidate or his election agent;
(c) that the candidate and his election agent
took all reasonable means, for preventing the commission of corrupt practices
at the election, and 618 learning an election to be void. These include corrupt
practices committed by the candidate, his election agent and any person with
the consent of the returned candidate or his election agent. The second
sub-section lays down an additional condition which must be satisfied before
the election can be declared to be void even though the corrupt practice is
committed by an agent other than the election agent. Section 101* sets forth the
grounds on which a candidate other than the returned candidate may be declared
to have been elected. Section 101 actually does not add to the grounds in s. 1
00 and its mention in s. 81 seems somewhat inappropriate. Sections 100 and 101
deal with the substantive law on the subject of elections. These two sections
circumscribe the conditions which must be established before an election can be
declared void or another candidate declared elected. The heads of substantive
rights in s. 100(1) are laid down in two separate parts : the first dealing
with situations in which the election must be declared void on proof of certain
facts, and the second in which the election can only be declared void if the
result of the election in so far as it concerns the returned candidate, can be
held to be materially affected on proof of some other facts. Without attempting
critically to sort out the two classes we may now see what the conditions are.
In the first part they are that the candidate lacked the necessary qualification
or had incurred disqualification, that a corrupt practice was committed by the
returned candidate, his election agent or any other person with the consent of
a returned candidate or his election agent or that any nomination paper was
improperly rejected. These are grounds on proof of which by evidence, the
election can be set aside without any further evidence. The second part is
conditioned that the result of the election, in so far as it concerns a
returned candidate, was materially affected by the improper acceptance of a
nomination or by a corrupt (d) that in all other respects the election was free
from any corrupt practice on the part of the candidate or any of his agents,
then the High Court may decide that the election of the returned candidate is
not void." *"101. Grounds for which a candidate other than the
returned candidate may be declared to have been elected.
If any person who has lodged a petition has,
in addition to calling in question the election of the returned candidate,
claimed a declaration that he himself or any other candidate has been duly
elected and the High Court is of opinion-(a) that in fact the petitioner or
such other candidate received a majority of the valid votes; or (b) that but
for the votes obtained by the returned candidate by corrupt practices the
petitioner or such other candidate would have obtained a majority of the valid
votes, the High Court shall after declaring the election of the returned
candidate to be void declare the petitioner or such other candidate, as the
case may be, to have been duly elected." 619 practice committed in his
interest by an agent other than an election agent or by the improper reception,
refusal or rejection of votes or by any noncompliance with the provisions of
the Constitution or of the Representation of the People Act or rules or orders
made under it. This condition has to be established by some evidence direct or
circumstantial. It is, therefore, clear that the substantive rights to make an
election petition are defined in these sections and the exercise of the right
to petition is limited to the grounds specifically mentioned.
Pausing here, we may view a little more
closely the provisions bearing upon corrupt practices in s. 100. There are many
kinds of corrupt practices. They are defined later in s. 123, of the Act and we
shall come to them later. But the corrupt practices are viewed separately
according as to who commits them. The first class consists of corrupt practices
committed by the candidate or his election agent or any other person with the
consent of the candidate or his election agent. These, if established, avoid
the election without any further condition being fulfilled. Then there is the
corrupt practice committed by an agent other than an election agent. Here an
additional fact has to be proved that the result of the election was materially
affected. We may attempt to put the same matter in easily understandable
language. The petitioner may prove a corrupt practice by the candidate himself
or his election agent or someone with the consent of the candidate or his
election agent, in which case he need not establish what the result of the
election would have been without the corrupt practice. The expression "Any
other person" in this part will include an agent other than an election
agent. This is clear from a special provision later in the section about an
agent other than an election agent. The law then is this : If the petitioner
does not prove a corrupt practice by the candidate or his election agent or
another person with the consent of the returned candidate or his election agent
but relies on a corrupt practice committed by an agent other than an election
agent, he must additionally prove how the corrupt practice affected the result
of the poll. Unless he proves the consent to the commission of the corrupt
practice on the part of the candidate or his election agent he must face the
additional burden. The definition of agent in this context is to be taken from
s. 123 (Explanation) where it is provided that an agent "includes an
election agent, a polling agent and any person who is held to have acted as an
agent in connection with the election with the consent of the candidate."
In this explanation the mention of "an election agent" would appear
to be unnecessary because an election agent is the alter ego of the candidate
in the scheme of the Act and his acts are the acts of the candidate, consent or
no consent on the part of the candidate.
620 Having now worked out the substantive
rights to the making of the petition, we may now proceed to see what the
corrupt practices are. Since we are concerned only with one such corrupt
practice, we need not refer to all of them. For the purpose of these appeals it
is sufficient if we refer to the fourth sub-section of s. 123. It reads :
"123. The following shall be deemed to
be corrupt practice for the purposes of the Act (4) The publication by a
candidate or his agent or by any other person, with the consent of a candidate
or his election agent, 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, of any candidate, being a statement reasonably
calculated to prejudice the prospects of that candidate's election.
This corrupt practice may be committed by (a)
the candidate (b) his agent, that is to say(i) an election agent (ii) a polling
agent (iii) any person who is held to have acted as an agent in connection with
the election with the consent of the candidate.
(c) by any other person with the consent of
the candidate or his election agent.
We are concerned in this appeal with (a) and
(b) (iii) mentioned in our analysis. In the original petition the allegations
were made on the basis of corrupt practices committed by a person alleged to
have acted as an agent with Mr. Fernandezs consent. In the amendment
application the allegation is that the candidate himself committed the corrupt
practice under this subsection.
As we pointed out earlier the difference
between the original petition and the amendments will lie in the degree of
proof necessary to avoid the election. If the corrupt practice is charged
against an agent other than the election agent, a further burden must be
discharged, namely, that the result of the election was 621 materially
affected. If, however, the corrupt practice is charged against the candidate
personally (there is no election agent involved here), this further proof is
not required. Another difference arises in this way. In s. 100 (1) (b) the word
'agent' is not to be found. Therefore an agent other than an election agent
will fall to be governed by the expression 'any other person'. To get the
benefit of not having to prove the effect of the corrupt practice upon the
election the consent of the candidate or his election agent to the alleged
practice will have to be established.
Again for the establishment of the corrupt
practice under s. 123 (4), from whatever quarter it may proceed, the election
petitioner must establish (a) publication of a statement of fact, and (b) the
statement is false or the person making it believes it to be false or does not
believe it to be true, and (c) that the statement refers to the personal
character and conduct of the candidate, and (d) is reasonably calculated to
prejudice the candidate's prospects.
It appears, therefore, that it is a question
of different burdens of proof as to whether the offending statement was made by
the candidate himself or by an agent other than an election agent.
Having dealt with the substantive law on the
subject of election petitions we may now turn to the procedural provisions in
the Representation of the People Act. Here we have to consider sections 81, 83
and 86 of the Act. The first provides the procedure for the presentation of
election petitions. The proviso to sub-section alone is material here. It
provides that an election petition may be presented on one or more of the
grounds specified in subsection (1) of s. 100 and s. 101. That as we have shown
above creates the substantive right. Section 83* then provides that the
(1) An election petition(a) shall contain a
concise statement of the material facts on which the petitioner relies :
(b) shall setforth full particulars of any
corrupt practice that the petitioner alleges, including as full a statement as
possible of the names of the parties alleged to have committed such corrupt
practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in
the Code of Civil Procedure, 1908 for the verification of pleadings :
(provided that where the petitioner alleges
any corrupt practice, the petition shall also be accompained by an affidavit in
the prescribed form in support of the allegation of such corrupt practice and
the particulars thereof.
(2) Any y schedule or annexure to the
petition shall also be singed by the petitioner and verified in the same manner
as the petition.
L10Sup./69--5 622 election petition must
contain a concise statement of the material facts on which the petitioner
relies and further that he must also set forth fun particulars of any corrupt
practice that the Petitioner alleges including as full a statement as possible
of the names of the parties alleged to have committed such corrupt practice and
the date and place of the commission of each such practice. The section is
mandatory and requires first a concise statement of material facts and then
requires the fullest possible particulars.
What is the difference between material facts
and particulars? The word 'material' shows that the facts necessary to
formulate a complete cause of action must be stated.
Omission of a single material fact leads to
an incomplete cause of action and the statement of claim becomes bad. The
function of particulars is to present as full a picture of the cause of action
with such further information in detail as to make the opposite party
understand the case he will have to meet. There may be some overlapping between
material facts and particulars but the two are quite distinct. Thus the
material facts will mention that a statement of fact (which must be set out)
was made and it must be alleged that it refers to the character and conduct of
the candidate that it is false or which the returned candidate believes to be
false or does not believe to be true and that it is calculated to prejudice the
chances of the petitioner. In the particulars the name of the person making the
statement, with the date, time and place will be mentioned. The material facts
thus will show the ground of corrupt practice and the complete cause of action
and the particulars will give the necessary information to present a full
picture of the cause of action. In stating the material facts it will not do
merely to quote the words of the section because then the efficacy of the words
'material facts' will be lost. The fact which constitutes the corrupt practice
must be stated and the fact must be correlated to one of the heads of corrupt
practice. Just as a plaint without disclosing a proper cause of action cannot
be said to be a good plaint, so also an election petition without the material
facts relating to a corrupt practice is no election petition at all. A petition
which merely cites the sections cannot be said to disclose a cause of action
where the allegation is the making of a false statement. That statement must
appear and the particulars must be full as to the person making the statement
and the necessary information. Formerly the petition used to be in two parts.
The material facts had to be included in the
petition and the particulars in a schedule. It is inconceivable that a petition
could be filed without the material facts and the schedule by merely citing the
corrupt practice from the statute. Indeed the penalty of dismissal summarily
was enjoined for petitions which did not comply with the requirement. Today the
particulars need not be separately included in a schedule but the distinction
remains. The entire and complete cause of action must be in the 623 petition in
the shape of material facts,. the particulars being the further information to
complete the picture. This distinction is brought out by the provisions of
section 86 although the penalty of dismissal is taken away. Subsection (5) of
that section provides (5) The High Court may, upon such terms as to costs and
otherwise as it may deem fit, allow the particulars of any corrupt practice
alleged in the petition to be amended or amplified in such manner as may in its
opinion be necessary for ensuring a fair and effective trial of the petition,
but shall not allow any amendment of the petition which will have the effect of
introducing particulars of a corrupt practice not previously alleged in the petition."
The power of amendment is given in respect of particulars but there is a
prohibition against an amendment "which will have the effect of
introducing particulars if a corrupt practice not previously alleged in the
petition." One alleges the corrupt practice in the material facts and they
must show a complete cause of action. If a petitioner has omitted to allege a
corrupt practice, he cannot be permitted to give particulars of the corrupt
practice. The argument that the latter part of the fifth sub-section is
directory only cannot stand in view of the contrast in the language of the two
parts. The first part is enabling and the second part creates a positive bar.
Therefore, if a corrupt practice is not alleged, the particulars cannot be
There is however a difference of approach
between the several corrupt practices. If for example the charge is bribery of
voters and the particulars give a few instances, other instances can be added;
if the charge is use of vehicles for free carriage of voters, the particulars
of the cars employed may be amplified. But if the charge is that an agent did
something, it cannot be amplified by giving particulars of acts on the part of
the candidate or vice versa. In the scheme of election law they are separate corrupt
practices which cannot be said to grow out of the material facts related to
another person. Publication of false statements by an agent is one cause of
action, publication of false statements, by the candidate is quite a different
cause of action. Such a cause of action must be Alleged in the material facts
before particulars may be given. One cannot under the cover of particulars of
one corrupt practice give particulars of a new corrupt practice.
They constitute different causes of action.
Since a single corrupt practice committed by
the candidate, by his election agent or by another person with the consent of
the candidate or his election agent is fatal to the election, the case must be
specifically pleaded and strictly proved. If it has not been pleaded as part of
the material facts, particulars of such 624 corrupt practice cannot be supplied
later on. The bar of the latter part of the fifth sub-section to s. 86 then
operates. In the petition as 'originally filed the agency of Jagadguru Shankaracharya,
Mr. Madhu Limaye and the Maratha (or Mr. Atrey) was the basis of the charge and
the candidate Mr. Fernandez was left out. No allegation was personally made
against him. The only allegations against him personally were contained in
paragraph 2G. There it was said that Mr. Fernandez had made certain speeches to
the effect that Mr. Patil was against the Muslims and Christians. No evidence
was led and they were not even referred to at the hearing before us. The next
reference in 2J is to statements of Mr. Fernandez. and published by the
Maratha. These were specified and only three such statements were included.
Since the gist of the election offence is the publication of false statements,
the charge is brought home to the candidate through the publication by the
Maratha. It is to be remembered that even the allegation that in doing so the
Maratha acted as the agent of Mr. Fernandez, itself came by way of an amendment
which we allowed as it completed the cause of action and is permissible. The
bar of section 86(5) (latter part) does not apply to it and under Order VI rule
17 of the Code of Civil Procedure, which is applicable as far as may be, such
an amendment can be made. Similarly the allegations that such statements were
false or were believed to be false or were not believed to be true by the
Maratha (i.e. Mr. Atrey) and that they were calculated to prejudice Mr. Patills
chances and did so, were allowed by us to be added as completing the cause of
action relating to a corrupt practice already alleged. But we declined to allow
to stand the amendments which had the effect of introducing, new corrupt
practices relating to the candidate himself which had not been earlier pleaded.
This kind of amendment is prohibited under the law when the amendment is sought
after the period of limitation.
The learned Judge in the High Court did not
keep the distinction between material facts and particulars in mind although
the language of the statute is quite clear and makes a clear cut division
between the two. He seems to have been persuaded to Such a course by a reading
of the rulings of this Court and the High Courts. These same rulings were
presented before us and we may now say a few words about them.
The learned Judge in the High Court has
relied upon Harish Chandra Bajpai v. Triloki Singh(1) and deduced the
proposition that where the petition sets out the corrupt practice as a ground,
instances of the corrupt practices may be added subsequently and even after the
period of limitation of filing the petition is over. Following that case the
learned Judge has allowed the (1)  S.C.R. 370.
625 amendments as corrupt practice under s.
123 (4) was alleged in the original petition. We shall come to that case last
of all. It seems to have played a great part in molding opinion in India on the
subject of amendment of pleadings in the Election Law.
To begin with it must be realised that as is
stated in Jagan, Nath v. Jaswant Singh and Others(1) the statutory requirements
of the law of Election in India must be strictly observed. It is pointed out in
that case that an election contest is not an action at law or a suit in equity
but a purely statutory proceeding unknown to common law and that the court
possesses no common law power. Although the power of amendment given in the
Code of Civil Procedure can be invoked because s. 87 makes the procedure
applicable, as nearly as may be to the trial of election petitions, the
Representation of the People Act itself enacts some rules, which override the
Civil Procedure Code. General power of amendment or the power derived from the
Code of Civil Procedure must be taken to be overborne in so far as the election
law provides. In a large number of cases it has been laid down by the High
Courts in India that the material facts, must make out a charge and it is only
then that an amendment to amplify the charge can be allowed or new instances of
commission of corrupt practice charged can be given. If no charge is made out
in the, petition at all the addition of particulars cannot be allowed to include
indirectly a new charge. This was laid down in Din Dayal v. Beni Prasad and
Another (2), Balwan Singh v. Election Tribunal, Kanpur and Others(3) by the
Allahabad High Court, in T.
L. Sasivarna Thevar v. V. Arunagiri and
Others (4 ) by the Madras High Court and in Hari Vishnu Kamath v. Election
Tribunal, Jaipur and Another(5) by the Madhya Pradesh High Court. All these
cases rely upon Harish Chandra Bajpai's case (6) to which we have referred.
Harish Chandra Bajpai's case (6) was based on an English case Beat v. Smith (7
). In that case it was held that under the Parliamentary Election Act of 1868
it was enough to allege generally in the petition that "the respondent by
himself and other persons on his behalf was guilty of bribery, treating and
undue influence before, during and after the election." A summons was
taken out calling upon the petitioner to deliver better particulars of
"other persons". Willes, J. after consulting Martin, B and Blackburn,
J. ordered better particulars. It was contended that the petition should be
taken off the files since the particulars were lacking. Section 20 of that Act
only provided that an election petition should be in such form and should state
such matters as may be prescribed. Rule 2 prescribed that the petition should
state (i) the right of the petitioner to petition and (ii) and should state the
holding and result (1)  S.C.R. 892-895. (2) 15 E.L.R. 131.
(3) 15 5E.L.R. 199. (4) 17. E.L.R. 313.
(5) 14 E.L.R. 147. (7) L.R. 4 C.P. 115.(6)
11957] S.C.R. 370 626 of the election and then should briefly state such facts
and grounds relied on to sustain the prayer. Rule 5 prescribed the form which
required facts to be stated.
Bovill, C.J., said that the form of the
petition was proper and it was quite useless to state anything further. But in
Bruce v. Odhams Press Ltd.(1) the Court of Appeal distinguished 'material
facts' from 'particulars' as they occurred in Order XIX of the Rules of the
Supreme Court of England. The words there were material facts and particulars
and the distinction made by Scott, L.J. bears out the distinction we have made
between 'material facts' and 'Particulars' as used in s. 83 of our statute. The
same view was also expressed in Phillips v. Phillips(2). The observations of
Brett, L.J. in that case also bear out the distinction which we have made.
It appears that this distinction was not
brought to the, notice of this Court in Harish Chandra Bajpai(3) case. The
rules on the subject of pleadings in the English statute considered in Beal's
case(4) were different. We have in our statute an insistence on a concise
statement of material facts and the particulars of corrupt practice alleged.
These expressions we have explained. However,
it is not necessary to go into this question because even on the law as stated
in Harish Chandra Bajpai's(3) case the amendment allowed in this case cannot be
upheld. We shall now notice Harish Chandra Bajpai's(3) case a little more
In that case the material allegation was that
the appellants "could in the furtherance of their election enlist the
support of certain government servants" and that the appellant No. 1. had
employed two persons in excess of the prescribed number for his election
purposes. No list of corrupt practices was attached. Thereafter names were
sought to be added. The amendment was allowed by the Tribunal after the period
of limitation and the addition was treated as mere particulars. It was held by
this Court that an election petition must specify "grounds or
charges" and if that was done then the particulars of the grounds or
charges could be amended and new instances given but go new ground or charge
could be added after the period of limitation. The reason given was that the
amendment "introducing a new charge" altered the character of the
petition. Venkatarama Iyyar, J. emphasised over and over again that new
instances could be given provided they 'related to a 'charge' contained in the
petition. The result of the discussion in the case was summarised by the
learned Judge at page 392 as follows :
"(1) Under s. 83(3) the Tribunal has
power to allow particulars in respect of illegal or corrupt prac(1)  1
(2)  4 Q.B.D. 127.
(3)  S.C.R. 370.
(4) L.R. 4 C.P. 115.
627 tices to be amended, provided the
petition itself specifies the grounds or charges, and this power extends to
permitting new instances to be given.
(2) The Tribunal has power under O.Vl, r. 17
to order amendment of a petition, but that power cannot be exercised so as to
permit new grounds or charges to be raised or to so alter its character, as to
make it in substance a new petition, if a fresh petition on those allegations
will then be barred." What is meant by 'ground or charge' was not stated.
By "ground" may be meant the kind of corrupt practice which the
petitioner alleges but the word "charge" means inclusion of some
material facts to make out the ground.
Applying the same test (although without
stating it) the learned Judge pointed out that the charge made in the petition
was that the appellants 'could' in furtherance of their election enlist the
support of certain government servants and it meant only an ability to enlist
support but the 'charge' which was sought to be levelled against the candidate
later was that he had in fact enlisted the said support. The learned Judge
observed at page 393 as follows :
"the charge which the respondent sought
to level against the appellants was that they moved in public so closely with
high dignitaries as to create in the minds of the voters the impression that
they were favoured by them. We are unable to read into the allegations in para
7 (c) as originally framed any clear and categorical statement of a charge
under s. 123(8), or indeed under any of the provisions of the Election
law." The allegation in the statement was described as worthless and
further it was observed at page 395 as follows :
"But even if we are to read 'could' in
para 7 (c) as meaning 'did', it is difficult to extract out of it a charge
under s. 123(8).
The allegation is not clear whether the
Government servants were asked by the appellants to support their candidature,
or whether they were asked to assist them in furtherance of their election
prospects, and there is no allegation at all that the Government servants did,
in fact, assist the appellants in the election. On these allegations, it is
difficult to hold that the petition in fact raised a charge under s. 123 (8).
It is a long jump from the petition as originally laid to the present
amendment, wherein for the first time it is asserted that certain Mukhiasno
Mukhias are mentioned in the petition-assisted the appellants in furtherance of
their election prospects, and that thereby the corrupt practice mentioned 628
in s. 123 (8) had been committed. The new matters introduced by the amendment
so radically alter the character of the petition as originally framed as to
make it practically a new petition, and it was not within the power of the
Tribunal to allow an amendment of that kind.,' It would appear from this that
to make out a complete charge the facts necessary must be included in relation
to a 'ground' as stated in the Act. Merely repeating the words of the statute
is not sufficient. The petitioner must specify the ground i.e. to say the
nature of the corrupt practice and the facts necessary to make out a charge.
Although it has been said that the charge of
corrupt practice is in the nature of quasi criminal charge, the trial of an
election petition follows the procedure for the trial of a civil suit. The
charge which is included in the petition must, therefore, specify the material
facts of which the truth must be established. This is how the case was
understood in numerous other cases, some of which we have already referred to.
In particular see J. Devaiah v. Nagappa and Others(1) and Babulal Sharma v.
Brijnarain Brajesh and Others(2).
Three other cases of this Court were also
cited. In Chandi Prasad Chokhani v. State of Bihar(3) it was held that the
powers of amendment were extensive but they were controlled by the law laid down
in the Representation of the People Act. It was again emphasised that a new
ground or charge could not be made the ground of attack as that made a new
petition. In Bhim Sen v. Gopali and Others(4) the scope of Harish Chandra
Bajpai's(5) case was considered and its narrow application was pointed out.
Indeed in that case the observations in Harish Chandra Bajpai's(5) case were
not followed to the utter most limit. In Sheopat Singh v. Ram Pratap(6) the
only allegation was that the appellant (Hariram) got published through him and
others a statement but there was no allegation that Hariram believed the
statement to be false or did not believe it to be true. It was held that in the
absence of such averment it could not be held that there was an allegation of corrupt
practice against Hariram. The publication with guilty knowledge was equated to
a kind of mens rea and this was considered a necessary ingredient to be alleged
in the petition.
From our examination of all the cases that
were cited before us we are satisfied that an election petition must set out a
ground or charge. In other words, the kind of corrupt practice which was
perpetrated together with material facts on which a charge (1) 1965 Mysore,
(2) 1958 Madhya Pradesh 175 (F.B.).
(3)  2 S.C.R. 289.
(4) 22 E.L.R. 288.
(5)  S.C.R. 370 (6)  1 S.C.R.
629 can be made out must be stated. It is
obvious that merely repeating the words of the statute does not amount to a
proper statement of facts and the section requires that material facts of
corrupt practices must be stated. If the material facts of the corrupt practice
are stated more or better particulars of the charge may be given later, but
where the material facts themselves are missing it is impossible to think that
the charge has been made or can be later amplified. This is tantamount to the
making of a fresh petition.
Reverting therefore to our own case we find
that the allegation in paragraph 2J was that Mr. Fernandez made some statements
and the 'Maratha' published them. Extracts from the 'Maratha' were filed as
Exhibits. Since publication of a false statement is the gist of an election
offence the charge was against the 'Maratha'. If it was intended that Mr.
Fernandez should be held responsible for what he said then the allegation
should have been what statement Mr. Fernandez made and how it offended the
election law. In 2J itself only three statements were specified and two of them
had nothing to do with Mr. Fernandez and the third was merely a news item which
the 'Maratha' had published. There was no reference to any statement by Mr.
Fernandez himself throughout the petition as it was originally filed. In fact
there was no charge against Mr. Fernandez which could have brought the case
within s. 101 (b) of the Act. The attempt was only to make out the case under
s. 100 (1) (d) against the 'Maratha' (or Mr. Atrey) pleading Mr. Atrey as agent
of Mr. Fernandez. That too was pleaded in the amendments.
The result is that the case gets confined to
that of a candidate responsible for the acts of his agent. In the argument
before us Mr. Chari for Mr. Fernandez conceded the position that Mr. Atrey
could be treated as the agent of Mr.
Fernandez. We are therefore relieved of the
trouble of determining whether Mr. Atrey could be held to be an agent or not.
The trial Judge was also satisfied that Mr. Atrey could be held to have acted
as the agent of Mr. Fernandez.
The case as originally pleaded fell within s.
100(1) (d) with the additional burden. Although Mr. Daphtary was content to
prove that the consent of Mr. Fernandez was immaterial as the corrupt practice
of his agent was equally fatal to the election and attempted to prove his case
under s. 100 (1) (d) of the Act, Mr. Jethamalani who took over the argument
from him contended that the case fell to be governed by s. 101 (b) that is to
say, of any person who did the act with the consent of Mr. Fernandez. It is
therefore necessary to pause here to decide, whether Mr. Atrey had the consent
of Mr. Fernandez to the publications in his newspaper.
The difference between Mr. Daphtary's
argument and that of Mr. Jethamalani lies in this. In the latter the consent of
the 630 candidate must be proved to each corrupt practice alleged, in the
former there is only need to prove that a person can be held to have acted as
an agent with the consent of the candidate. An agent in this connection is ;not
one who is an intermeddler but one acting with the consent, express or implied,
of the candidate. According to Mr. Jethamalani when an agent works regularly
for a candidate the consent to all his acts must be presumed and he contends
that the court was wrong in requiring proof of prior consent to each
publication. On the other hand, Mr. Chari's case is that when Mr. Atrey acted
as an agent and when he did not act as an agent, is a question to be considered
in respect of each publication in the 'Maratha'. According to him it is not
sufficient merely to say that Mr. Atrey was an agent because Mr. Atrey was also
editor of the newspaper and in running his newspaper his activities were his
own and not on behalf of Mr. Fernandez. Mr. Jethamalani relies strongly upon
the case of Rama Krishna (C.A. No. 1949 of 1967 decided on April 23, 1968) and
Inder Lall Yugal Kishore v. Lal Singh(1).
Rama Krishna's case was decided on its
special facts. There the agent was one who had been employed regularly by Rama
Krishna not only in the last election but also in two previous elections. Rama
Krishna stated that the arrangements for his election were completely left in
that agent's hands. The agent had got printed some posters which had defamed
the candidate and these posters were exposed on the walls. Rama Krishna
admitted that he had seen these posters and also that he had paid for the
posters when the bill was presented to him. In fact he included the amount in
his return of election expenses. It was from these combined facts that the
consent of Rama Krishna to the corrupt practice of. making false and defamatory
statements was held proved. The case therefore is not one in which the person
while acting in a different capacity makes a defamatory statement.
In the case from Rajasthan the rule laid down
was that the association of persons or a society or a political party or its
permanent members, who set up a candidate, sponsor his cause, and work to
promote his election, may be aptly called the agent for election purposes. In
such cases where these persons commit a corrupt practice unless the exception
in s. 100(2) apply the returned candidate should be held guilty.
We shall consider this question later.
Before we deal with the matter further we
wish to draw attention to yet another case of this Court reported in Kumara
Nand v. Brijmohan Lal Sharma(2). In that case s. 123(4) was analysed. It was
held that the belief must be that of the candidate himself. The word
"he" in the subsection where it occurs for the first time was held to
mean the candidate. This Court observed as follows (1) A.T.R. 1961 Rajasthan
(2)  2 S.C.R. 127.
631 "The sub-section requires : (i) publication
of any statement of fact by a candidate, (ii) that fact is false, (iii) the
candidate believes it to be false or does not believe it to be true, (iv) the
statement is in relation to the personal character or conduct of another
candidate; and (v) the said statement is one being reasonably calculated to
prejudice the prospects of the other candidate's election. (See Sheopat Singh
v. Ram Pratap(1) This case thus lays down that the person with whose belief the
provision is concerned is ordinarily the candidate who, if we may say so, is
responsible for the publication. The responsibility of the candidate for the
publication arises if he publishes the thing himself. He is equally responsible
for the publication if it is published by his agent. Thirdly he is also
responsible where the thing is published by any other person but with the
consent of the candidate or his election agent. In all three cases the
responsibility is of the candidate and it is ordinarily the candidate's belief
that matters for this purpose. If the candidate either believes the statement
to be false or does not believe it to be true he would be responsible under s.
123(4). In the present case. the poem was not actually read by the appellant,
but it was read in his presence at a meeting at which he was presiding by
In these circumstances. the High Court was
right in coming to the conclusion that the recitation of the poem by Avinash
Chander at the meeting amounted to the publication of the false statement of
fact contained in it by another person with the consent of the candidate, and
in this case, even of his election agent who was also present at the meeting.,
But the responsibility for such publication in the circumstances of this case
is of the candidate and it is the candidate's belief that matters and not the
belief of the person who actually read it with the consent of the candidate.
What would be the position in a case where the candidate had no knowledge at
all of the publication before it was made need not be considered for that is
not so here. It is not disputed in this case that the statement that the
respondent was the greatest of all thieves, was false. It is also not seriously
challenged that the appellant did not believe it to be true. The contention that
Avinash Chander's belief should have been proved must therefore fail."
From this case it follows that to prove a corrupt practice in an agent is not
enough, the belief of the candidate himself must (1)  1 S C.R. 175.
632 be investigated with a view to finding
out whether he made a statement which he knew to be false or did not believe to
be true. When we come to the facts of the case in hand we shall find that most
of the statements were made by a newspaper editor in the normal course of
running a newspaper. Some of the passages which are criticised before us were
made as news items and some others were put in the editorial. It is to be
remembered that the newspaper ran a special column called "George
Femandez's Election Front".
No article or comment in that column has been
brought before us as an illustration of the corrupt practice. A newspaper
publishes news and expresses views and these are functions normal to a
newspaper. If the same news appeared in more than one paper, it cannot be said
that each editor acted as agent for Mr. Fernandez and by parity of reasoning a
line must be drawn to separate the acts of Mr. Atrey in running his newspaper
and in acting as an agent. Mr. Atrey was not a wholetime agent of Mr. Fernandez
so that anything that he said or did would be treated as bearing upon the
belief of Mr. Fernandez as to the truth of the statements made by Mr. Atrey.
Therefore, every act of Mr. Atrey could not be attributed to Mr. Fernandez so
as to make the latter liable.
We have therefore to analyse these articles
to find out which of them answers the test which we have propounded here. But
the fact remains that the case was pleaded on the basis of corrupt practices on
the part of an agent but by the amendment the candidate was sought to be charged
with the corrupt practices personally. As there was no such charge or ground in
the original petition and as the application for amendment was made long after
the period of limitation was over the amendment could not be allowed.
Accordingly we ruled out the amendments
concerning the personal speeches of Mr. Fernandez and the article in the
After we announced our conclusion about the
amendments Mr. Daphtary with the permission of the Court left the case in the
hands of Mr. Jethamalani and the argument to which we have already referred in
brief was advanced by him. As pointed out already Mr. Jethamalani attempted to
prove that the case would be governed by s. 100 (1) (b) that is to say that the
statements in the 'Maratha' were published with the consent of Mr. Fernandez.
Mr. Jethamalani deduced this from the course of events and argued that on proof
of the corrupt practices committed by the 'Maratha', Mr. Fernandez would be
personally liable. He based himself on the following, facts. He pointed out
that Mr. Fernandez had admitted that he desired that the newspapers should
support his candidature and therefore must have been glad that the 'Maratha'
was Supporting him. and the articles in the 'Maratha' were uniformly for the
benefit of Mr. Fernandez.
Sampurna Maharashtra Samiti was also
supporting the candidature of Mr. Fernandez and the 'Maratha' had made common
cause with the Sampurna Maha633 rashtra Samiti, the offices of both being
situated in the same building which was also Mr. Atrey's residence. Mr. Atrey
was the editor of the 'Maratha' and Chairman of the Sampurna Maharashtra
Samiti. Mr. Atrey was also a candidate supported by the Sampuma Maharashtra
Samiti. Mr. Fernandez and Mr. Atrey had a common platform and they supported
each other in their respective constituencies. The 'Maratha' carried a column
"George Femandez's Election Front" which was intended to 'be a
propaganda column in favour of Mr. 'Fernandez. He contended that Mr. Fernandez
could not be unaware of what Mr. Atrey was doing. He pointed out several
statements of Mr. Fernandez in which he sometime unsuccessfully denied the
knowledge of various facts. He contended lastly that Mr. 'Fernandez had social
contacts with Mr. Atrey and could not possibly be unaware that Mr. Atrey was vociferously
attacking Mr. Patil's character and conduct. Mr. Jethamalani therefore argued
that there was knowledge and acquiescence on the part of Mr. Fernandez and as
there was no repudiation of what the 'Maratha' published against Mr. Patil, Mr.
Fernandez must be held responsible.
The learned trial Judge in his judgment has
given a summary of all these things at page 695 and it reads "To sum up,
it is clear from the above discussion that respondent No. 1 is a prominent
member of the SSP, that the SSP is' a constituent unit of the SMS, that both
Acharya Atrey and respondent No. 1 participated in the formation of the SMS
that they both participated in the inauguration of the election campaign by the
SMS, that the SMS, carried on election propaganda for candidates supported by
it including respondent No. 1, that Acharya Atre was the president of the
Bombay Unit of the SMS and was a prominent and a leading member thereof, that
each of them addressed a meeting of the constituency of the other to carry on
election propaganda for the other, that Acharya Atre through the columns of his
newspaper Maratha carried on intensive and vigorous campaign for success of
candidates supported by the SMS including respondent No. 1, that Acharya Atre
started a special feature in Maratha under the heading "George Fernandez
These factors amongst others show that
Acharya Atre had authority to canvass for respondent No. 1, that be made a
common cause with respondent No. 1, for promoting 'his election, that to the
knowledge of respondent No. 1 and for the purpose of promoting his election, he
(Atre) canvassed and did various things as tended to promote his election. This
in law is sufficient to make Acharya Atre an agent of respondent No. 1, as that
term is understood under the election law." 634 Mr. Jethamalani contended
in further support that there was a clear similarity in the statements and
utterances of Mr. Fernandez and Mr. Atrey. He inferred a high probability of
concept between them. In this connection he referred in particular to the
speech of Mr. Fernandez at Shivaji Park and the conduct of Shanbhag, one of his
workers, in following up what Mr. Fernandez had said. We shall refer to this
last part later on which a considerable part of the time of the Court was spent,
although we had ruled out the amendment with regard to the speech at Shivaji
Park. Mr. Jethamalani referred to the following cases among others in support
of his contention that consent in such circumstances may be assumed : Nani
Gopal Swami v. Abdul Hamid Choudhury and Another(1), Adams and Others v. Hon.
E.F. Leveson Gower (2) Christie v. Grieve(3) and W. F. Spencer; John Blundell
v. Charles Harrison(4). There is no doubt that consent need not be directly
proved and a consistent course of conduct in the canvass of the candidate may
raise a presumption of consent. But there are cases and cases. Even if all this
is accepted we are of opinion that consent cannot be inferred. The evidence
proves only that Mr. Atrey was a supporter and that perhaps established agency
of Mr. Atrey.
It may be that evidence is to be found
supporting the fact that Mr. Atrey acted as agent of Mr. Femandez with his
consent. That however does not trouble us 'because Mr. Chari admitted that Mr.
Atrey can be treated as an agent of Mr. Fernandez. It is however a very wide
jump from this to say that Mr. Fernandez had consented to each publication ;as
it came or ever generally consented to the publication of items defaming the
character and conduct of Mr. Patil. That consent must be specific. If the
matter was left entirely in the hands of Mr. Atrey who acted solely as agent of
Fernandez something might be said as was done
in Rama Krishna's case(5) by this Court. Otherwise there must be some
reasonable evidence from which an inference can be made of the meeting of the
minds as to these, publications or at least a tacit approval of the general
conduct of the agent.
If we were not to keep this distinction in
mind there would be no difference between s. 100(1)(b) and 100(1)(d) in so far
as an agent is concerned. We have shown above that a corrupt act per se is
enough under s. 100 (1) (b) while under s. 100 (1) (d) the act must directly
affect the result of the election in so far as the returned candidate is
concerned. Section 100(1) (b) makes no mention of an agent while S. 100 (1) (
(d) specifically does. There must' be some reason why this is so. The reason is
this that an agent cannot make the candidate responsible unless the candidate
has consented or the act of the (1) 1959 Assam 200.
(2) 1 O'Malley and Hardcastle 218.
(3) 1 O'Malley and Hardcastle 251.
(4) 3 O'Malley and Hardcastle 148.
(5) C.A. No. 1949 of 1967 decided on April
635 agent has materially affected the
election of the returned candidate. In the case of any person (and he may be an
agent) if he does the act with the consent of the returned candidate there is
no need to prove the effect on the election. Therefore, either Mr. Jethamalani
must prove that there was consent and that would mean a reasonable inference
from facts that Mr. Fernandez consented to the acts of Mr.
Atrey or he must prove that the result of the
election was seriously affected. If every act of an agent must be presumed to
be with the consent of the candidate there would be no room for application of
the extra condition laid down by s. 1 00 ( 1 ) (d), because whenever agency is
proved either directly or circumstantially, the finding about consent under s.
1 00 ( 1 ) (b) will have to follow. We are clearly of opinion that Mr.
Jethamalani's argument that s.
100 (1) (b) applies can only succeed if he
establishes consent on the part of Mr. Fernandez.
We have already pointed out that Mr. Atrey
was also the editor of a newspaper which, as Mr. Patil has himself admitted,
was always attacking him. Mr. Atrey had opened a column in his newspaper to
support Mr. Ferandez's candidature. Although nine articles appeared in the
column between December 3, 1966 to February 2, 1967, not a single false
statement from this column has been brought to our notice. There was not even a
suggestion that Mr. Fernandez wrote any article for the 'Maratha' or
communicated any fact. It is also significant that although Mr. Atrey addressed
meetings in the constituency of Mr. Fernandez, not a single false statement of
Mr. Atrey was proved from his speeches on those occasions. The petitioner
himself attended one such meeting on February 4,1967, but he does not allege
that there was any attack on his personal character or conduct. The learned
trial Judge has also commented on this fact. We think that regard being had to
the activities of Mr. Atrey as editor and his own personal hostility to Mr.
Patil on the issue of Sampuma Maharashtra Samiti, we cannot attribute every act
of Mr. Atrey to Mr.
Fernandez. Mr. Chari is right in his
contention that Mr. Atrey's field of agency was limited to what he said as the
agent of Mr. Fernandez and did not embrace the field in which he-was acting as
editor of his newspaper. It is also to be noticed that Mr. Atrey did not
publish any article of Mr. Fernandez, nor did he publish any propaganda
The meeting at Shivaji Park about which we
shall say something presently, was not held in Mr. Fernandez's constituency.
The similarity of ideas or even of words cannot be pressed into service to show
consent. There was a stated policy of Sampuma Maharashtra Samiti which wanted
to, join in Maharashtra all the areas which had not so far been joined and
statements in that 636 behalf must have been made not only by Mr. Atrey but by
several other persons. Since Mr. Atrey was not appointed as agent we cannot go
by the similarity of language alone. It is also very significant that not a
single speech of Mr. Fernandez was relied upon and only one speech of Mr.
Fernandez namely, that at Shivaji Park was brought into arguments before us
came by an amendment which we disallowed. The best proof would have been his
own speech or some propaganda material such as leaflets or pamphlets etc. but
none was produced. The 'Maratha' was an independent newspaper not under the
control of the Sampurna Maharashtra Samiti or the S.S.P. which was sponsoring
Mr. Fernandez or Mr. Fernandez himself. Further we have ruled out news items
which it is the function of the newspaper to publish. A news item without any
further proof of what had actually happened through witnesses is of no value.
It is at best a secondhand secondary evidence. It is well-known that reporters
collect information and pass if on to the editor who edits the news item and
then publishes it. In this process the truth might get perverted or garbled.
Such news items cannot be said to prove themselves although they may be taken.
into account with other evidence if the other evidence is forcible. In the
present case the only attempt to prove a speech of Mr. Fernandez was made in
connection with the Shivaji Park meeting. Similarly the editorials state the
policy of the newspaper and its comment upon the events. Many of the news items
were published in other papers also. For example Free Press Journal, the Blitz
and writers like Welles Hengens had also published similar statements. If they
could not be regarded as agents of Mr. Fernandez we do not see any reason to
hold that the 'Maratha' or Mr. Atrey can safely be regarded as agent of Mr.
Fernandez when acting for the newspaper so as to prove his consent to the
publication of the defamatory matter. We are therefore of opinion that consent
cannot reasonably be inferred to the publications in the 'Maratha'. We are
supported in our approach to the problem by a large body of case law to which
our attention was drawn by Mr. Chari. We may refer to a few cases here :
Biswanath Upadhaya v. Haralal Das and Others(1), Abdul Majeed v. Bhargavan
(Krishnan) & otherS(2), Rustom Satin v. Dr. Sampoornanand and Others(3),
Sarla Devi Pathak v. Birendra Singh & OtherS(4), Krishna Kumar v. Krishna
Gopal(5), Lalsing Keshrising Rehvar v. Vallabhdas Shankerlal Thekdi and
Others(6), Badri Narain Singh and Others v. Kamdeo Prasad Singh and Another (7)
and Sarat Chandra Rabba v. Khagendranath Nath and others(8). It is not
necessary to (1) (1959) Assam 97. (2) A.I.R. 1963 Kerala 18.
(3) 20 E.L.R. 221. (4) 20 E.L.R. 275.
(5) A.I.R. 1964 Rajasthan 21. (6) A.I.R. 1967
(7) A.I.R. 1961 Patna 41. (8) A.I.R. 1961
637 refer to these cases in detail except to
point out that the Rajasthan case dissents from the case from Assam on which
Mr. Jehamalani relied. The principle of law is settled that consent may be
inferred from circumstantial evidence but the circumstances must point unerringly
to the conclusion and must not admit of any other explanation. Although the
trial of an election petition is made in accordance with the Code of Civil
Procedure, it has been laid down that a corrupt practice must be proved in the
same way as a criminal charge is proved. In other words, the election
petitioner must exclude every hypothesis except that of guilt on the part of
the returned candidate. or his election agent. Since we.
have held that Mr. Atrey's activities must be
viewed in two compartments, one connected with Mr. Fernandez and the other
connected with the newspaper we have to find out whether there is an
irresistible, inference of guilt on the part of Mr. Fernandez. Some of the
English cases cited by Mr. Jethamalani are not a safeguide because in England a
distinction is made between "illegal practices" and "corrupt
practices". Cases dealing with "illegal practices" in which the
candidate is held responsible for the acts of his agent are not a proper guide.
It is to be noticed that making of a false statement is regarded as
"illegal practice" and not a "corrupt practice" and the
tests are different for a corrupt practice. In India all corrupt practices
stand on the same footing. The only difference made is that when consent is
proved on the part of the candidate or his election agent to the commission of
corrupt practice, that itself is sufficient. When a corrupt practice is
committed by an agent and there is no such consent then the petitioner must go
further and prove that the result of the election in so far as the returned
candidate is concerned was materially affected. In Bayley v. Edmunds, Byron and
Marshall(1), strongly relied upon by Mr. Daphtary the publication in the
newspaper was not held to be a corrupt practice but the paragraph taken from a
newspaper and printed as a leaflet was held to be a corrupt practice. That is
not the case here. Mr. Patil's own attitude during the election and after is
significant. During the election he did not once protest that Mr. Fernandez was
spreading false propaganda, not even when Mr. Fernandez charged his workers
with hooliganism. Even after the election Mr. Patil did not attribute anything
to Mr. Fernandez. He even said that the Bombay election was conducted with
propriety. Even at the filing of the election petition he did not think of Mr.
Fernandez but concentrated on the 'Maratha'.
Mr. Daphtary sought to strengthen the
inference about consent from the inter-connection of events with the comments
in the 'Maratha'. He refers to the news item appearing in the (1)  11
L10Sup./69--6 638 'Times of India' of
February 10, 1967 in which the letting loose of bad characters was alleged to
be commented upon by Mr. Fernandez. He connected this with the activities of
Shanbhag who wrote to the Election Commission and then pointed out that the
'Maratha' came out with it. But if the 'Times of India cannot be regarded as
the agent no more can the 'Maratha'. A newspaper reporting a meeting does so as
part of its own activity and there can be no inference of consent. What was
necessary was to plead and prove that Mr. Fernandez said this and this. Then
the newspaper reports could be taken in support but not independently. Here the
plea was not taken at all and the evidence was not direct but indirect.
Mr. Jethamalani referred to some similarity
in the reaction of the 'Maratha' and Mr. Fernandez to the events. The Babubhai
Chinai incident was said to be a fake by both the 'Maratha' and Mr. Fernandez,
the Sayawadi meeting (not pleaded) was said to be followed by similar
statements in the 'Maratha', the Bristol Grill Conference was reported in the
'Maratha'. All this shows that the rival party believed in certain facts but it
does not show that the 'Maratha' was publishing these articles with Mr. Fernandez's
consent. In fact this argument has been wrongly allowed. Before this there was
not so much insistence upon consent as thereafter.
Now it may be stated that mere knowledge is
Consent cannot be inferred from knowledge
alone. Mr. Jethamalani relied upon the Taunton case(1) where Blackburn. J.
said that one must see how much was being
done for the candidate and the candidate then must take the good with the bad.
There is difficulty in accepting this contention.
Formerly the Indian Election Law mentioned
'knowledge and connivance' but now it insists on consent. Since reference to
the earlier phrase has been dropped it is reasonable to think that the law
requires some concrete, proof, direct or circumstantial of consent, and not
merely of knowledge and connivance. It is significant that the drafters of the
election petition use the phrase 'knowledge and connivance' and it is
reasonable to think that they consulted the old Act and moulded the case round
'knowledge and connivance' and thought that was sufficient.
We cannot infer from an appraisal of the
evidence of Mr. Fernandez that he had consented. His denial is there and may be
not accurate but the burden was to be discharged by the election petitioner to
establish consent. If Mr. Fernandez suppressed some other facts or denied them,
there can be no inference that (1) 1 O'Malley and Hardcastle 181, 185.
639 his denial about knowledge of the
articles in the 'Maratha' was also false. M. Fernandez denied flatly that he
saw the articles explaining that there was no time to read newspapers, a fact
which has the support of Mr. Patil who also said that he had no time to read
even cuttings placed by his secretary for his perusal. We may say here that we
are not impressed by the testimony of Mr. Fernandez and we are constrained to
say the same about Mr. Patil. We cannot on an appraisal of all the materials
and the arguments of Mr. Daphtary reach the conclusion that Mr. Fernandez was
responsible for all that Mr. Atrey did in his newspaper or that his consent can
be inferred in each case.
The most important argument was based on the
meeting at Shivaji Park on January 31, 1967 where Mr. Fernandez spoke.
As the subject of the charge in the original
petition did not refer to this speech and we disallowed the amendment, Mr.
Jethamalani attempted to reach the same result by using the speech as evidence
of consent to the publication of the report in the 'Maratha'. Here we may say
at once that the speech could not be proved because it was not pleaded. Much
time was consumed to take us through the evidence of witnesses who gave the
exact words of Mr. Fernandez. Mr. Fernandez was alleged to have said that Mr.
Patil was not honest and won elections by changing ballot boxes. Mr. Fernandez
did not admit having made the speech. Four witnesses Tanksale, Bhide, Khambata
and Bendre who alleged that they were present at the meeting deposed to this
We have looked, into their evidence and are
thoroughly dissatisfied with it. Ramkumar, a reporter was also cited.
He covered the meeting for the 'Indian
Express' but his newspaper had not published this part and Ramkumar was
examined to prove that it was deleted by Rao the Chief Reporter. The evidence
of Ramkumar was so discrepant with that of Rao that the trial Judge could not
rely on it and we are of the same opinion. The fact that in Ex. 56 Mr.
Fernandez had spoken of the 'ways and means' of winning elections of Mr. Patil
cannot be held to be proof nor the activities of Shanbhag in arranging for a
watch of the ballot boxes. Every candidate is afraid that the ballot boxes may
be tampered with and there is no inference possible that because Mr. Fernandez
or Shanbhag 'his worker took precautions, Mr. Fernandez must have made a
particular speech. It was said that Randive in his evidence admitted that Mr.
Fernandez made such comments. We do not agree.
His version was different. There is reason to
think that there was an attempt to suborn witnesses and make them support this
part of the case or to keep away from the witness box. One such attempt was
made on Randive. We are not impressed by the witnesses who came to disprove the
petitioners case but that does not improve it either. It seems that attempts
were being made to enlist support for such a contention and the evidence shows
that the wit640 nesses were not free from influence. It is not necessary to go
into the evidence on the other side such as that of Dattu Pradhan and Prafulla
Baxi. They do not impress us either. We are, accordingly not satisfied that Mr.
Fernandez made any such comment. If he did that would be a ground of the very
first importance to an election petition.
It is a little surprising that it was alleged
so late and appears to be an afterthought and intended to put into the mouth of
Mr. Fernandez one of the statements of the 'Maratha'. Consent to the making of
the statement in the 'Maratha' had, therefore, to be proved and there is no
For the same reasons we cannot regard
Jagadguru Shankaracharya or Mr. Madhhu Limaye as the agents of Mr. Fernandez.
The evidence regarding their agency itself is
nonexistent and there is no material on which consent can be presumed or
The result of the foregoing discussion is
that this case will have to be judged of under s. 1 00 ( 1 ) (d) and not under
s. 100 (1) (b). In the arguments before us Mr. Chari conceded that some of the
articles contain false statements regarding the character and conduct of Mr.
He mentioned in this connection five
articles. It is, not, therefore, necessary to examine, each of the 16 articles
separately. If the conditions required by S. 100, (1) (d) read with s. 123 (4)
are satisfied, a corrupt practice avoiding the election will be established.
The first condition is that the candidate's belief in the falsity of the statements
must be established That was laid down by this Court in Kumara Nand v.
Brijmohan Lal Sharma(1). The second condition is that the result of the
election in so far as Mr. Fernandez is concerned must be shown to be materially
affected. Thus we have not only to see (a) that the statement was made by an
agent, (b) that it was false etc., (c) that it related to the personal
character and conduct of Mr. Patil, (d) that it was reasonably calculated to
harm his chances but also (e) that it in fact materially affected the result of
the election in so far as Mr.
Fernandez was concerned. Of these (a) and (c)
are admitted and (b) is admitted by Mr. Fernandez because he said that he did
not believe that there was any truth in these statements. The question next is
whether they were calculated to affect the prospects of Mr. Patil. Here there
can be no two opinions. These articles cast violent aspersions and were false
as admitted by Mr. Fernandez himself. The course of conduct shows a deliberate
attempt to lower his character and so they must be held to be calculated to
harm him in his election. So far the appellants are on firm ground. Even if all
these findings are in favour of the appellants, we cannot declare the election
to be void under S. 100(1) (d) (ii) unless we reach the further conclusion that
the result of the election in so (1)  2 S.C.R. 127.
641 far as Mr. Fernandez was concerned had
been materially affected. The section speaks of the returned candidate when it
should have really spoken of the candidate who was defamed or generally about
the result. However it be worded, the intention is clear. The condition is a
Mr. Jethamalani argued that the words
"materially affected" refer to the general result and not how the
voting would have gone in the absence of the corrupt practice. According to him
s. 94 of the Act bars disclosure of votes and to attempt to prove how the
voting pattern would have changed, would involve a violation of s. 94.
According to him the court can give a finding by looking to the nature of the
attacks made, the frequency and extent of publicity, the medium of circulation
and the kind of issue that was raised before the voters. He contends that to
tell the Maharashtrians that Mr. Patil paid a bribe to the voters of Goa to
keep it centrally administered, to call Mr. Patil a Najibkhan of Maharashtra
i.e. a traitor, to dub him as the creator of Shiv Sena which terrorized the
minorities, to describe him as a goonda and leader of goondas who organised
attacks on voters, to charge him with the responsibility of attack on
Parliament and the Congress President's residence and to describe him as
dishonest to the extent of switching ballot boxes, is, to materially affect the
result of the voting. According to him these circumstances furnish a _good
basis for the finding that the result of the election was positively affected
and nothing more is needed.
According to Mr. Jethamalani the capacity of
Mr. Atrey when making these violent attacks was irrelevant as he was acting in
support of the canvass of Mr. Fernandez.
Mr. Jethamalani further submits that
different false statements were intended to reach different kind of voters. The
Maharashtrians were affected by the Goa and border issues, the minorities by
the Shiv Sena allegations, the law-abiding citizens by the allegations about
goondaism. Thus there must have been a land-slide in so far as Mr. Patil was
concerned and there must have been corresponding gain to Mr. Fernandez. He
relies upon Hackney case(1) where Grove, J.
made the following observations at pages 81
and 82 "I have turned the matter over in my mind, and I cannot see,
assuming that argument to express the meaning of that section, how the tribunal
can by possibility say what would or might have taken place under different
circumstances. It seems to me to be a problem which the human mind has not yet
been able to solve, namely, if things had been different at a certain period,
what would have been the result of the concatenation of events upon that
supposed change of circum(1) 2 O' Malley and Hardcastle's Election Reports 77.
642 stances. I am unable at all events to
express an opinion upon what would have been the result, that is to say, who
would have been elected provided certain matters had been complied with here which
were not complied with. It was contended that I might hear evidence on both
sides as to how an elector thought he would have voted at such election.
That might possibly induce a person not
sitting judicially to form some sort of vague guess, out that would be far
short of evidence, which ought to satisfy the mind of a judge of what any
individual who might express that opinion would really do under what might have
been entirely changed circumstances.
But, besides that, one of the principles of
the Ballot Act is that voting should be secret, and voters are not to be
compelled to disclose how they voted except upon a scrutiny after a vote has
been declared invalid.
Notwithstanding that, I am asked here,
assuming the construction for which Mr. Bowen contends to be correct, to
ascertain how either the 41,000 electors of this Borough, or any number of
them, might have wished to vote had they had the opportunity of doing so, and
what in that event would have been the result of the election. It seems to me that
such an inquiry would not only have been entirely contrary to the spirit of the
Act, but also that it would be a simple impossibility. I should, therefore, say
that even if the wording of the Act, taking it literally and grammatically,
required me to put sucha construction upon it, it would lead to such a manifest
absurdity (using now the judicial term which has generally been used with
reference to the construction of statutes) that unless I were in some way
imperatively obliged, and unless the Act could by no possibility admit of any
other construction, I should not put a construction upon it which really
reduced the matter to a practical impossibility. Such a construction would
practically render it necessary, in the case of any miscarriage at an election,
however great the miscarriage might be (if, that is to say, only a very small
number of persons had voted, and all the rest of tile Borough had been entirely
unable to vote) that the judge should then enquire as to how the election would
have gone. As I ventured to remark in the course of the argument, where a
miscarriage of this sort took place it would be virtually placing the election
not in the hands of the constituency, but in the hands of the election _judge,
who is not to exercise a judgment as to who is to be the member, but who is
only to see whether the election has been properly conducted according to
law." 643 Justice Grove then gave the meaning of the provision at page 85
as follows :
"If I look to the whole, and to the
sense of it as a whole, it seems to me that the object of the Legislature in
this provision is to say this-an election is not to be upset for an informality
or for a triviality, it is not to be upset because the clerk of one. of the
polling stations was five minutes too late, or because some of the polling
papers were not delivered in a proper manner, or were not marked in a proper
way. The objection must be something substantial, something calculated really
to affect the result of the election.
I think that is a way of viewing it which is
consistent with the terms of the section. So far as it seems to me, the
reasonable and fair meaning of the section is to prevent an election from
becoming void by trifling objections on the ground of an informality, because
the judge has to look to the substance of the case to see whether the
informality is of such a nature as to be fairly calculated in a reasonable mind
to produce a substantial effect upon the election." Mr. Jethamalani
invites us to apply the same test and in the light of his facts to say that the
result of the election in so far as Mr. Fernandez is concerned was materially
On the other hand, Mr. Chari relies upon the
facts that there was a difference of 30,000 votes between the two rivals and as
many as 38,565 votes were cast in favour of the remaining candidates. He says
that Mr. Patil had contested the earlier elections from the same constituency
and the votes then obtained by him were not more in faithless. He says it is
impossible to say how much Mr.
Patil lost or Mr. Fernandez gained by reason
of the false statements and whether the affected voters did not give their
votes to the other candidates. He argues that the best test would be to see
what Mr. Patil's reactions were on hearing of his defeat. In this connection he
referred to Ex. 120 in which Mr. Patil commented on the elections in Bombay
being orderly. In Ex. 128 he said that the voters of Bombay had rejected him
and that he has disappointed his supporters and they must pardon him, and that
he must have been punished for some sin committed by him. Mr. Chari says that
never for a moment did Mr. Patil attribute his defeat to false propaganda by
Mr. Fernandez or his supporters, which if it had been a fact Mr. Patil would
have lost no time in mentioning. All this shows that Mr. Patil maintained his
position in this constituency. Mr. Fernandez had earlier announced that be
would organise support for himself from those who had voted in the past for his
rivals, or had refrained from voting and this Mr. Fernandez was successful in
achieving. Mr. Chari relies upon the rulings of this Court where it has been
laid down how the 644 burden of proving the affect on the election must be
discharged. He referred to the case reported in Vashist Narain Sharma V. Dev
Chandra(1) and Surendra Nath Khosla v.
Dilip Singh(2) and the later rulings of this
Court in which Vashist Narain's(1) case has been followed and applied.
In our opinion the matter cannot be
considered on possibility. Vashist Narain's(1) case insists on proof. If the
margin of votes were small something might be made of the points mentioned by
Mr. Jethamalani. But the margin is large and the number of votes earned by the
remaining candidates also sufficiently huge. There is no room, therefore, for a
reasonable judicial guess. The law requires proof. How far that proof should go
or what it should contain is not provided by the Legislature. In Vashist's(1)
case and in Inayatullah v. Diwanchand Mahajan, (3) the provision was held to
prescribe an impossible burden. The law has however remained as before. We are
bound by the rulings of this Court and must say that the burden has not been
successfully discharged. We cannot overlook the rulings of this Court and
follow the English ruling cited to us.
To conclude and summarize our findings : We
are satisfied that Mr. Atrey as the Editor of the 'Maratha' published false
statements relating to the character and conduct of Mr. Patil, calculated to
harm the prospects of Mr. Patil's election, that Mr. Atrey was the agent of Mr.
Fernandez under the election law, but there is nothing to prove that he did so
with the consent of Mr. Fernandez, nor can such consent be implied because in
making the statements Mr.
Atrey was acting as the editor of his own
newspaper the 'Maratha' and not acting for Mr. Fernandez. We are further
satisfied that the petitioner has failed to establish in the manner laid down
in this Court, that the result of the election was materially affected in so
far as Mr. Fernandez was concerned. We are also satisfied that if the
petitioner had pleaded corrupt practices against Mr. Fernandez personally
(which he did not) the result might have been different. The election petition
was it considered and left out the most vital charges but for that the
petitioner must thank himself.
In the result the appeals failed and as
already announced earlier they are dismissed with costs.
V.P.S. Appeal dismissed.
(1)  1 S.C.R. 509.
(2)  S.C.R. 179.
(3) 15 E.L.R. 210, 235-236.