Laxminarayan & ANR Vs. Returning
Officer & Ors  INSC 181 (28 September 1973)
REDDY, P. JAGANMOHAN
CITATION: 1974 AIR 66 1974 SCR (1) 822 1974
SCC (3) 425
CITATOR INFO :
R 1974 SC 405 (29) E 1975 SC 290 (3) R 1975
SC1788 (25) RF 1976 SC1866 (39) R 1985 SC 89 (13)
Representation of the People Act (43 of
1951). Ss. 98, 116A, 119, 123(4)Corrupt practice--Scope of review by appellate
Court--'Incurred' in s. 119, meaning of--Conduct of Election Rules, 1961, r.
Evidence Act (1 of 1872) Ss. 98 and 159 to
161--Record of speeches in shorthand and long hand--Admissibility.
'Bhrashtachar', meaning of.
JD and RS were two of the five candidates for
election to the Lok Sabha. JD was the returned candidate and RS polled the next
highest number of votes. After the counting of the votes, RS applied for a
recount under r. 63 of the Conduct of Election Rules, 1961. In the petition he
alleged that the difference in votes obtained by JD and himself was marginal, that
more than 7000 votes were declared invalid;
that votes have not only been declared as
invalid but also that "admitted disputed votes" were not properly
counted, and that the number of votes declared invalid materially affected the
result of the election. He also alleged certain irregularities. The Returning
Officer directed that all the votes cast in favour of JD and RS as welt as the
rejected votes should be recounted. There was a slight discrepancy in the
number of votes obtained by each of the two candidates, and in the number of
rejected votes, in the recount, but there was no effect on the result of the
In a petition challenging the election of JD
the following grounds were urged, (1) that the election should be set aside
under s. 100(l) (iii) and (iv) of the Representation of the People Act, 1951,
because, the votes have not been properly counted as valid or invalid and there
was a violation of rule 63; and (2) that JD was guility of corrupt practice
under s. 123(4) of the Act in that statements were made and documents
published, by person, with the consent of JD attacking the personal character
of RS; that his election agent distributed a weekly containing an attack on the
personal character of RS; and that JD himself made such statements and
published such documents. The petition was dismissed by the High Court.
Dismissing the appeal to this Court (except
in respect of costs),
HELD (1) The plea in the election petition
that valid votes have been counted as invalid and invalid votes as valid would
not include the plea that any valid votes of RS and other candidates have been
counted as valid for JD.
Therefore, it was not necessary to recount
the votes of candidates other than JD and RS. On the allegations contained in
the application to the Returning Officer he could not have ordered a recount of
all the votes and his order directing recount was not in contravention of rule
The discrepancies in the number of votes was
satisfactorily explained and there was no acceptable evidence of the alleged
irregularities. [826 C; 827 A-B] (2)(i) Section 116A of the Act provides for
appeal to this Court from an order of the High Court dismissing an election
petition and an appeal lies on issues of both of law and of facts. Section 116C
applies the Code of Civil Procedure as nearly as possible in the determination
of the appeal. The power of the appellate courts is very wide. it can
reappraise the evidence and reverse the trial court's findings of fact, but the
practice of the appellate court, however, has uniformly been to give the
greatest assurance to the assessment of the evidence made by the judge who
hears the witnesses and watches their demeanour and judges of their credibility
in the first instance. The appellate court may interfere with a finding of fact
if the trial court is shown to have overlooked any material feature in the
evidence of a witness or if the balance of probabilities as to the credibility
of the witness is inclined against the opinion 823 of the trial court. This
limitation on the power of the appellate court in a first appeal from decrees
will also apply to an election appeal under s. 116A. In an appeal burden is on
the appellant to prove how the judgment under appeal is wrong. To establish
this he must do something more than merely ask for reassessment of the
evidence. He must show wherein the assessment had gone wrong. This is
especially so when the alleged corrupt practice is of a quasi criminal nature;
and this Court would be slow to disagree with the finding of the High Court that
such a charge was not established. [839 G-840 E] Saraveeraswami v. Talluri,
A.I.R. 1949 P.C. 32, Sarju Pershad v. Raja Jwalesliwari Pratap Narain Singh,
 S.C.R. 781 at p. 784 per Mukherjea J., Narbada Prasad v.Chhagaul, 
1 S.C.R. 499 at p. 504 by Hidayatullah C.J., D. P. Misra v. Kam Narain Sharma,
 3 S.C.R. 257 at p. 261 per Shah. J., Virendra Kumar Saklecha v. Jagjiwan
 1 S.C.C. 826, referred to.
(ii) In the present case, the High Court was
right in holding that there is, no acceptable evidence, (a) of any consent
given by JD to any one for them making of the various statements or the
publishing of documents containing statements against the personal character of
RS and (b) of the distribution of the weekly, either by JD or his followers or
agents. [834 B-C; 849 F; 850 F. H] (iii) As regards the statements attributed
to JD himself the evidence consists of the oral evidence of some witnesses who
claimed to have heard the statements being made at various meetings, and the
oral evidence of two police witnesses who took down his speeches in shorthand
and one speech in long hand. While assessing the probative value of the oral
evidence of the police witnesses it is necessary to remember that the report of
a shorthand writer is strictly speaking not substantive evidence as such, and
it can only be used as a part of the oral evidence. Three conditions are,
however, necessary for admitting such statements in evidence,, under s. 159 to
161 of the Evidence Act; (a) the notes must have been taken down by the
witnesses as and when the speeches were being delivered or so soon afterwards
that the speeches were fresh in their memory, (b) the witnesses must be sure
that the speeches have been correctly recorded by them, and (c) the notes must
be produced and shown to the adverse party if he requires them. In the present
case the first condition may be taken to be satisfied. The third condition was
also satisfied. It could not be said that merely because the notes of speeches
were in shorthand they would not be admissible in evidence and that they should
have been recorded in a language which could be understood by the adverse
party. According to section 98 of the Evidence Act evidence may be given to
show the meaning of illegible or not commonly intelligible characters or of
abbreviations etc. Notes in shorthand may be said to in 'not commonly
intelligible characters' and 'abbreviations. [841 A-842 D] However, the record
of the speeches, made by one of these witnesses, is not admissible in the present
case, because the second condition is not satisfied. The evidence shows that
there are various infirmities and that the extracts were not a correct
recording of the speeches made by JD.
[842 F-G] Kanti Prasad layshanker Yagnika.
Purshottamdas Ranchhoddas Patel  3 S.C.R. 400 and P. C. Purshothama
S. Perumal  2 S.C.R. 646,
(iv) As regards the other police witness
according to his notes JD is alleged to have made the following statements.
(a) That RS was "Bhrasthachar," (b)
This is a war between truth and power. We have to see whether truth wins or
power wins. We have to see whether truth wins or power loses, whether falsehood
wins or truth wins. We have to see whether corruption wins or purity, wins' and
(c) 'You know his (RS) achievements and capacity. I do not wish to speak
anything about him.' The word "Bhrashtachar" means a man of fallen
conduct. The High Court, however, translated it to mean 'Corruption', but in
the context it is susceptible of the interpretation of a person who has fallen
from orthodox conduct. It is824 one of those flourishes or hyperboles which are
the common stock-in-trade of election speakers of exploit the emotions of the
audience and to augment their popular support.As regards the other statements
they do not refer to statements of fact in relation to the personal character
or conduct of RS. Therefore, the speeches attributed to JD do not make out any
corrupt practice. The evidence of the other witnesses was rightly rejected by
the High Court.
[846 F; 847 D-E] (v) The application for
production of the summaries of the notes of the speeches said to have been sent
by the police witnesses to the government for corroborating the two witnesses
should not be allowed, because apart from the fact that an elaborate inquiry
will have to be made by examining a number of police witnesses and admitting a
large number of documents for finding out whether summaries or full reports
were sent to the government, in view of the findings that the record by one of
the writings is subject to infirmities and that the statements in the record of
the other witness did not amount to corrupt practice, the production of such
records will not advance the case of the appellants. [847 F848 C] (vi) The
contention of the appellants that those records would establish other instances
of corrupt practice against JD cannot be entertained, because, such other
instances were not pleaded in the election petition and JD had no opportunity
to deny them or disprove them. [848 C-D] (3) While dismissing the petition the
High Court ordered that JD would be entitled to his costs including costs at
the scheduled rate of Rs. 400/per day for 52 hearings, from the petitioners.
The sum of Rs. 400/per day is prescribed by the Bombay High Court Rules for
fees of counsel.
Under s. 119 of the Representation of the
People Act which deals with costs, "Costs shall be in the discretion of
the High Court provided that whether a petition is dismissed under clause (a)
of section 98 the returned candidate shall be entitled to the costs incurred by
him in contesting the petition and accordingly the High Court shall make an
order for costs in favour of the returned candidate". The petition in the
present case was dismissed by the High Court under s. 98(a). But the word
'incurred' means actually spent. There is no proof of payment of any fee to
counsel by JD. Therefore, he was not entitled to the amount of Rs.
400/per diem awarded by the High Court. [851
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
1014 of 1972.
Appeal under section 116 of the
Representation of People Act 1951, from the Judgment and Order dated 21st
January, 1972 of the Bombay High Court (Nagpur Bench) at Nagpur in Election
Petition No. 3 of 1971.
M. N. Phadke, V. G. Palshikar, D. K. De and
H. E. Devani and A. G. Ratnaparkhi, for the appellants.
A. K. Sen, S. N. Sirpurkar, G. L. Sanghi, D.
N. Mishra, 0.
C. Mathur, J. B. Dadachanji, for respondent
V. R. Manohar, B. K. De, H. C. Devani, A. C.
Ratnaparkhi and S. Balakrishnan and N. M. Ghatate, for respondent No. 3.
H. R. Khanna and S. P. Nayar, for respondents
Nos. I and 21.
The Judgment of the Court was delivered by
DWIVEDI, J. The appellants, Laxminaray an and Marotrao, filed an election
petition challenging the election of Jambuwantrao Dhote to the Lok Sabha from
21 Nagpur Parliamentary Constituency. There were five candidates in the run.
Dhote was one. He was 825 elected. The, poll was on April 18, 1971. Dhote
obtained 1,25,665 votes. The next highest votes were obtained by Rikhabchand
Sharma. He polled 1,23,615 votes.
The election was challenged on diverse
grounds. There were as many as 13 issues. The record of evidence is voluminous.
The judgment of the High Court runs to 244
pages. The High Court decided all the issues against the appellants. Hence this
Sri Phadke, counsel for the appellants, has
not covered the whole ground again; he has confined his arguments, to issues 2,
4, 5, 8 and 9. Thus the scope of inquiry is much narrower in the appeal.
Issue No. 2 :
Section 100 of the Representation of the
People Act, 1951 (hereinafter called the Act) specifies the grounds on which
the election of a returned candidate may be set aside.
According to s. 100(l) (d) (iii), the
election may be set aside if the result of the election of the returned
candidate has been materially affected by the improper reception, refusal or
rejection of any vote or the reception of any vote which is void. Section
100(l) (d) (iv) provides that the election may be set aside if the result of
the election of the returned candidate has been materially affected by any
non-compliance with the provisions of the Constitution or of the Act or of any
Rules or Orders made under the Act.
Paragraphs 14, 15 and 16 of the election
petition allege facts in respect of this issue. According to paragraph 14,
votes were counted in the YMCA Hall on April 19, 1971.
There were no proper arrangements for
admission of the candidates and their counting agents at the count. A large
number of people had entered into the Hall. The counting was not complete on
the said date. There was some counting on the day following, that is, on April
20, 1971. The counting when completed revealed that 3,46,093 votes were polled
in all. J. B. Dhote received 1,25,665 votes; R. C. Sharma, 1 , 23,615, 7425
votes were rejected votes.
Paragraph 15 states that at the end of the
counting R. C. Sharma made an application to the Returning Officer claiming
recount of votes. The Returning Officer directed that all votes cast in favour
of J. B. Dhote and R. C. Sharma as well as all the rejected votes should be
recounted. He did not order that the votes of other candidates also should be
recounted. Paragraph 16 states that after the recount it was declared that
3,46,079 votes were polled in all. The total of J. B. Dhote came down to
1,25,550; of R. C. Sharma to 1,23,493. The number of rejected votes went up to
It is further alleged that the recount showed
that 14 votes were missing, that many rejected votes were counted as valid and
that there is a difference in the aggregate of different candidates.
Paragraph 15 then sums up : "It is,
therefore, clear that the votes have not been properly counted as valid or
invalid, without a proper 826 scrutiny required under the law. This has very
much materially affected the result of the election. In fact the recount should
have been for the entire votes cast in the election." Paragraph 16 states
that it was necessary to count all the votes as there was no proper recount by
the Returning Officer. The recount itself shows that many rejected votes were
counted as valid and many valid votes were rejected.
The tendered votes were not counted and 14
votes were missing.
The plea in paragraph 16 that valid votes
have been counted as invalid and invalid votes as valid would not include the
plea that many valid votes of R. C. Sharma and other candidates have been
counted as valid for Dhote. It was accordingly not necessary to recount the
votes of candidates other than Dhote and R. C. Sharma. The recount of the
rejected votes and of the votes of these two candidates was enough. The
appellants gave an application in the High Court for inspection of all the
votes. This application was rejected by an order on November 15, 1971. For the
reasons already discussed the application was rightly rejected.
Rule 63 of the Conduct of Election Rules,
1961 provides for the recount of votes. According to sub-rule (2) thereof
recount of all votes or any part may be claimed on behalf of any candidate. An
application should be made on his behalf to the Returning Officer. The
application should state the ground on which the recount is claimed. The
Returning Officer shall decide the question of recount and make an order either
accepting or rejecting the application. The order should set forth the reasons.
He may allow the application in whole or in part. The application for recount
made by R. C. Sharma is Ex. P. 21 Paragraph I of the application states that
more than 7000 votes were declared invalid. They were neither shown to him nor
to his agents. Lighting arrangements were not satisfactory so that marks could
not be properly read at the counting. Paragraph 6 states that the difference in
votes obtained by Dhote and R. C. Sharma is marginal. The number of votes
declared invalid has materially affected the result of the election.
Many unauthorised persons entered the hall
and they were interfering with the process of counting. Paragraph 8 states that
the votes declared invalid were not so declared in accordance with the
prescribed procedure. "Admitted disputed votes" were not admitted
according to the prescribed procedure. So the prayer for recounting of votes
was made. The main charge is that the votes have not only been declared as
invalid but also that "admitted disputed votes" were not properly
counted. The Returning Officer allowed partial recounting. He directed that all
votes cast in favour of Dhote and R. C. Sharma and all the rejected and invalid
votes should be recounted. The reason given by him is that the difference of
votes cast in favour of Dhote and R. C. Sharma is only 2049. He says that
"the margin is small and in the interest of justice I agree to have a
recount of votes" as directed. Accordingly, the votes of Dhote and R. C.
Sharma were recounted as also invalid votes.
The recounting had no effect on the result of
827 On the allegation contained in the
application the Returning Officer could not have ordered recount of all the
votes. In our view, the order of the Returning Officer directing recount was
not in contravention of Rule 63. The appellants have examined several witnesses
in support of the alleged irregularities, but that evidence has not been
accepted by the High Court. Nothing has been shown to us for taking a different
view. The Returning Officer has been examined by the appellants. He has stated
that the count and recount have been done in accordance with the prescribed
He has also explained the apparently missing
14 votes on recount. According to the Returning Officer the discrepancy of 14
votes might be due to the mistake in counting the votes and making them into
bundles of 50 each. In the recount they recounted only some of those bundles
and not all.
For the reasons discussed above, we accept
the finding of the High Court on this issue.
Issue No. 4 :
Three or four days prior to poll the Nagpur
City District Congress Committee published an appeal in the name of Smt.Indira
Gandhi to the voters of the constituency for supporting Rikhabchand Sharma. On
the left top of this printed appeal there is a photograph of Smt. Indira
on the right top there is the picture of a
cow and a calf, the symbol of the Congress candidate. On the left bottom there
is printed "New Delhi, 8 April, 1971;" on the right bottom appears
the signature of Smt. Indira Gandhi. On April 16, 1971 one Satya Narain Sharma
issued a statement to the press in respect of this appeal. The next day, that
is, April 17, Tarun Bharat, a newspaper, published a summary of his statement.
The summary states that Satya Narain Sharma has expressed "doubt about the
genuineness of the letter by the Prime Minister calling upon the voters to vote
for. Mr. Rikhabchand Sharma." The summary further states that "there
is no seal of the Prime Minister's Secretariat on this letter, nor it is
mentioned to whom this letter is addressed." Satya Narain Sharma is also
stated to have, expressed doubt that the Prime Minister, who has avoided even
to mention the name of a candidate, would have issued a letter in support of
him. The election petition states that Satya Narain Sharma was an agent of
Dhote and that he issued the statement with the consent of Dhote. The statement
was false and was believed to be false by Dhote. It was reasonably calculated
to prejudice the prospects of the election of R. C. Sharma. Thus a corrupt
practice under s. 123 (4) of the Act has been committed. The High Court has
held that no such corrupt practice was committed by Dhote.
It has held that Satya Narain Sharma did not
make a statement of fact. He has expressed an opinion. It has also held that
the statement was not false and that it did not relate to the personal
character or conduct of R. C.
Sharma or to his candidature. It has also
held that Satya Narain Sharma did not make this statement with the consent of
Dhote. We shall first consider whether the statement was issued by Satya Narain
Sharma with the consent of Dhote.
828 Satya Narain Sharma was examined by
Dhote. He has denied that he made the statement with the consent of Dhote.
Dhote has stated that he had not given his consent to any such statement. The
High Court has believed Dhote. Nothing has been shown to us to take a different
view. It is true that according to the evidence on record Satya Narain Sharma
seems to have addressed several meetings in support of Dhote and that in some
of those meetings Dhote had also delivered speeches. But this circumstance
alone would not prove the consent of Dhote. As we agree with the High Court
that the statement is not proved to have been made with the consent of Dhote,
it is not necessary for us to record a finding on the other aspect of issue No.
4. We agree with the High Court that the appellants have failed to establish
this particular corrupt practice.
Issue No. 5 :
In his return of election expenses Dhote is
shown to have spent Rs. 648/on the publication of a pamphlet. The nature of the
pamphlet does not seem to have been disclosed in the return. The appellants
have alleged in the election petition that document C attached to the petition
is that pamphlet. Dhote has emphatically denied that it was document C.
According to him, it was document 2R 20.
Document C opens with : "I am contesting
this Lok Sabha election ........against a corrupt candidate of Congress.
The appellants say that this is a false
statement relating to the personal character of Rikhabchand Sharma. 2R 20 is an
innocuous document. It was printed by the Narkesari Press and it bears the
print line of the press. The close question is whether document C or document
2R 20 was published by Dhote. To prove their case, the appellants have examined
one witness Prabhakar Sakhardande. He was employed on the relevant date as a
printer in the Narkesari Press. He says that document C was printed in the
Narkesari Press on Sunday, April 11, 1971. According to him, it is printed in
mono type. He also says that only the Narkesari Press in Nagpur has a
mono-machine. The High Court has not believed him. He is the President of the
Rashtriya Press Kamgar Sangh which is affiliated to the Indian National Trade
Union Congress. He does not give out the name of the person who printed the
document C in the Narkesari Press, nor does he disclose the name of the person
who delivered the printed copies to the appropriate authority in the Narkesari
Press. Although he admitted in cross-examination that he had not been to any
other press in Nagpur, he has said that except Narkesari Press no other press
in Nagpur has a mono-machine. Evidently, this part of his evidence does not
inspire confidence. Not having seen any other press in Nagpur, he could not say
that the Narkesari Press alone has got a mono-machine. For these reasons, we
find it difficult to place any reliance on his testimony.
Dhote has examined Manohar Bokare in support
of his case that the document 2R 20 was published in the Narkesari Press.
Manohar Bokare is the Manager of the Job Section of the Narkesari Press. He
says that he receives orders from customers, hands over printed material to
them, examines and makes bills and prepares quotations for printing jobs.
Initially, be was summoned by the appellants
as their 829 witness. But later they gave him up. So he was examined by Dhote..
He has said that document 2R 20 was published in the Narkesari Press. He
produced the original of the document.
He has stated that B. N. Gaikwad had given
him the original for printing. He has also filed the counter-foil of the bill
issued by him in connection with, the printing of the document 2R 20. He has
denied that the document C was printed in the Narkesari Press. The High Court
has believed his evidence. Nothing has been shown to us to enable us to.
take a different view.
Sri Phadke has made several comments on his
Firstly, he has not produced the order book.
But he was never asked by the appellants to produce the order book. In
cross-examination he, simply said that he has not brought the order book.
Secondly, while he. has said that the printed matter was delivered by him to a
boy, B. M. Gaikwad has stated that it was sent for by him through one Doonger
aged about 50 years. This discrepancy is not sufficient to discredit his
evidence. He was examined several months after the event. Such a minor mistake
is accordingly not unnatural and may be a slip of memory. Thirdly, document C
is printed on news print paper. It is, said that news print paper is not available
in the market and that document C must have been printed in the Narkesari Press
where Tarun Bharat was also being printed. But there is some evidence on record
to show that neswprint paper was available in the open market. That aside, B.
M. Gaikwad has stated that the paper for printing document 2R 20 was supplied
by him from the, stock of paper belonging to his party at Chhindwara from where
a weekly organ of his party was being published.
Manohar Bokare has deposed that there is an
endorsement on the original of 2R 20 that paper was given by the party who got
it printed. The endorsement was according to him necessary for the purpose of
sales-tax. On his copy of the bill there is an endorsement "not
taxable". He has explained that it was necessary to obtain the signature
of the customer if the paper was given by the press.. Fourthly, the Narkesari
Press did not comply with the provisions of s.
127A of the Act in regard to document 2R 20.
So it should be held that this document was not published by the Narkesari
Press. Section 127A(2) provides that no person shall print or cause to be
printed any election pamphlet or poster-(I) unless a declaration as to the
identity of the publisher thereof, signed by him and attested by two persons to
whom he is personally known, is delivered byhim to the printer in duplicate;
and (2) unless, within a reasonable time after the printing of the document,
one copy of the declaration is sent by the printer, together with one copy of
the document, if printed in the capital of the State to the Chief Electoral
Officer and in any other case to the District Magistrate of the District in
which it is printed.
Manohar Bokare has admitted in
cross-examination that he has neither obtained a declaration from B. M.
Gaikwad, nor has he sent a copy of the document 2R 20 to the District
Magistrate, Nagpur. This is incomplete and ineffective cross-examination.
Manohar Bokare should have been also asked if he had any explanation for those
omissions. The omissions might have been of some assistance to the appellants
if Bokare could not give a proper explanation.
The possibility of a good explanation cannot
be ruled out.
We agree with the High 830 Court that no
adverse inference can be drawn from these breaches of law. Fifthly, he could
not give the exect date of the printing of 2R 20. But he has said that no
record of the date of printing is maintained by him. Lastly, Dhote has admitted
that the diction of the document C resembles his own. It would show that he has
published this document.
This criticism has little force. Dhote has
also said that he had made numerous speeches in the course of his ,election. So
it was quite easy to pick out words and phrases from his speeches and piece
them together in the document C.
Now, the case of the appellants is that the
document C was printed. The case of Dhote that is 2R 20 was printed. It is
significant that it is not the case of the appellants that two documents were
published at once and the same time, one innocuous. and the other offending
This has an important bearing on probabilities. It is highly improbable that a
candidate would publish an offending document and show .the expenses incurred
on its printing in his return of election expenses.
The appellants have examined several
witnesses to prove the distribution of the document C during the election. The
High Court 'has disbelieved those witnesses. It has held that from their
demeanour they appear to be tutored witnesses. Their evidence has not been
pressed in service before us on behalf of the appellants. So we do not deal
Issue No. 8 This is the crucial issue in the
appeal. The appellants' case is -that Pundalik Masurkar and Satya Narain Sharma
had delivered speeches in three meetings during the election.
Those meetings were held on March 29 and 30,
1971, and April 7, 1971. They were held respectively at Nawi Mangalwari Ganji
Peth and Maska Sath. By their speeches they have committed the corrupt practice
specified in s. 123(4) of the Act. They committed the corrupt practice with the
.consent of Dhote. Dhote, it is alleged, delivered speeches in the said
meetings as well as in the meetings in Chamar Nala and Kasturchand Park. The
meetings in the latter two places were held on April 14 and 15, 1971. By his
speeches, he also has committed the aforesaid .corrupt practice. The High Court
has recorded these findings on this issue : (1) the appellants have failed to
prove that Dhote' made any -offending statements in the aforesaid meetings; (2)
they have also failed to prove that Pundalik Masurkar and Satya Narain Sharma
made any offending statements in the aforesaid meetings; (3) they -have also
failed to prove that Pundalik Masurkar and Satya Narain Sharma made any
offending statements in those meetings with the consent of the Dhote.
It has further held that they have failed to
-prove that the statements attributed to Dhote, Pundalik Masurkar and Satya
Narain Sharma constituted the corrupt practice specified in 123(4) of the Act.
The ground of challenge in the petition is
one covered by s. 100(l) (b) and not s. 100(l) (d). So we shall first examine
the ,evidence to find out whether Pundalik Masurkar and Satya Narain 'Sharma
made the allegedly offending statements with the consent of 831 Dhote. If his
consent is not proved, it will not be necessary to examine the other aspects of
this part of the issue.
Nawi Mangalwari Meeting: 29-3-1971 The
appellants have examined Marot Rao, Ishwar Giri, Shanker Laxman and Manhor
Kashinath Kalankar. Dhote has examined himself, Pundalik Masurkar and Satya
According to Ishwar Giri, Dhote was not
present in the meeting while Pundalik Masurkar and Satya Narain Sharma were
sneaking. Dhote came to the meeting just five minutes before the end 'ofSatya
Narain Sharma's speech. Marto Rao and Shanker Laxman say nothing about the
presence of Dhote during the speeches of Pundalik Masurkar and Satya Narain
Sharma. Manohar Kashinath Kalankar is the C.I.D. Shorthand Writer. He says that
he was present in the meeting and he took down the notes of speeches of various
speakers including the aforesaid two speakers. He says that he remembers that
Dhote was present in the meeting from the very beginning. But there is no note
to that effect in his note-book. It will accordingly be not safe to depend on
his memory, especially when Ishwar Giri contradicts him.
Pundalik Masurkar has said that Dhote was not
present while he was speaking. Dhote has said that he was not present when
Pundalik Masurkar and Satya Narain Sharma delivered their speeches. He arrived
in the meeting just when Satya Narain Sharma was finishing his speech. He has
further said that Pundalik Masurkar and Satya Narain Sharma had spoken in the
meeting without his knowledge and consent. He has said that it was not his
business to arrange election meetings and to invite speakers. His election
office used to attend to these matters. His workers use to take, him to various
meetings without any prior information of the meetings on his part. Satya
Narain Sharma has said that he did not report to any one the contents of his
speeches. He has also said that B. M. Gaikwad, the election agent of Dhote,
used to invite him to speak in the meetings held in support of Dhote. This is
the entire evidence on the question of consent. This evidence would show that
Dhote was not present in the meeting when Pundalik Masurkar and Satya Narain
Sharma were speaking. He had no prior knowledge of the fact that they would
speak in the meeting. He had not invited them to the meeting. He denies his
consent to their speeches. There is no direct evidence of consent from the side
of the appellants. It is not possible to infer constructive consent from the
foregoing facts and circumstances.
Ganji Peth Meeting: 30-3-1971 :
The appellants have examined Manohar
Kashinath Kalankar, Shesh Rao Kambale, another C.I.D. Shorthand Writer, Mohd.
Yakub Qamar and Dr. Ram Narain. Dhote has
examined himself and Satya Narain Sharma. There is no direct evidence of
consent Mohd. Yakub Qamar and Dr. Ram Narain say nothing about the presence of
Dhote while Satya Narain Sharma was speaking. Manohar Kashinath Kalankar says
that he remembers that Dhote was present in the meeting from the very
beginning. Shesh Rao, refreshing his memory from his notes, said that his notes
show that Dhote was welcomed and 832 "therefore I say he was present from
the very beginning." The note book of Manohar Kashinath Kalankar does not
record that Dhote was present from the very beginning. it will not be safe to
rely on his memory. It is true that Shesh Rao has noted in his note book that Dhote
was welcomed. But from this fact it does not necessarily follow that he was
present from the very being. He could be welcomed whenever he arrived in the
meetings Dhote has said that when he reached the meeting, Satya Narain Sharma
was 'halt way through his ,.speech'. But we do not know when Satya Narain
Sharma made the allegedly offending remarks in the course of his speech. It
cannot therefore be said that those remarks were made in the presence of Dhote.
So we agree with the High Court that the appellants have failed to prove that
Dhote had given his consent to the speech of Satya Narain Sharma in this
Maska Sath Meeting : 7-4-1971 :
The witnesses of the appellants for this
meeting are Manohar Kashinath Kalankar, Shesh Rao Kambale, Manohar Tajane, Yadao
Shripurkar and Marot Rao, Dhote has examined himself and Satya Narain Sharma
Manohar Kashinath Kalankar and Shesh Rao Kambale are the C.I.D. Shorthand
Writers. The appellants' witnesses have deposed that offending speeches were
delivered by Dhote and Satya Narain Sharma. According to Manohar Kashinath
Kalankar, Gunawant Nagpure had spoken before Satya Narain Sharma. He says that
Dhote arrived in the meeting while Gunawant Nagpure was speaking and that
Gunawant Nagpure continued speaking after his arrival. He also says that he has
made a note about Dhote's arrival while Gunwant Nagpure was speaking in his
note-book. He has produced his note-book. It begins with the speech of
Chandrabhan Bodkar. The speech is written in shorthand.
Two-third of the page is covered by the
speech of Chandrabhan Bodkar, and over the remaining seven lines of the page no
speech is recorded. The speech of Satya Narain Sharma is taken down in
short-hand on the next page. The contents recorded over seven lines of the
preceding page are these :
"Kamal Kishore Upadhyaya Something in
Short-hand Gunwant Nagpure ,(F.B.) -/2 Sri J. B. Dhote arrived.
Sri Nagpure continued speaking." There
is absolutely no difference in the ink of the notes of the speeches of
Chandrabhan Bodkar and Satya Narain Sharma.
But the ink of the aforesaid quoted lines
written in English is visibly different. This difference is suggestive of later
interpolation of the aforesaid quoted lines, the purpose being to prove the
presence of Dhote during Satya Narain Sharma's speech and his implied consent
to that speech. it may, however, be observed that Manohar Kashinath Kalankar
was not cross-examined by Dhote on the difference in ink. However, suspicious
the entry of the aforesaid lines may be, we are reluctant to draw any adverse
inference against Manohar Kashinath Kalankar from the difference in ink for
want of cross-examination. But in view of certain other circumstances we do not
think it safe to rely on the aforesaid 833 note in his note-book. One, Shesh
Rao Kambale, another C.I.D. Shorthand writer, was also present in the meeting.
He has taken down in short-hand the speeches
of Kamal Kishore Upadhayaya, Gunwant Nagpure, Keshav Rao Gadekar and Dhote. He
has not deposed that Dhote arrived in the meeting while Gunwant Nagpure was
speaking. Two Manohar Kashinath Kalankar seems to us to be anxious to help the
cause of the defeated Congress candidate, R. C. Sharma. As regards the meeting
held at Nawi Mangalwari and Ganji Peth, he has deposed from memory that Dhote
was present from the very beginning of those meetings. It may be observed that
he has made no such note in his note-book. We have already held that Dhote
arrived in those meetings when Satya Narain Sharma was about to finish his
speech. We have disbelieved his statement made from memory. It seems to us that
he has ventured to speak 'from memory' in order to help the appellants and R.
C. Sharma. Third, Manohar Tajane, Shesh RaoKambale and Marot Rao say nothing in
their evidence about the presence of Dhote during the speech of Gunwant Nagpure
and Satya Narain Sharma. Marot Rao is one of the appellants in this appeal. The
note alleged to have made by Manohar Kashinath Kalankar in his note-book does
not get support from their testimony. Fourth, Yadao Shripurkar said that Dhote
was present when Satya Narain Sharma was speaking. The High Court has
disbelieved him. We see no reason to differ with the High Court. He has
admitted that he was the Vice-President of the Nagpur City Congress Committee.
He has also admitted that he has canvassed and given speeches in support of R.
C. Sharma He has distributed cards for R. C. Sharma. He was R. C. Sharma's
counting agent also. He is thus a partisan witness. The High Court has made an
adverse note about his demeanour. He is unable to explain his presence in the
meeting, for his evidence shows that he had no prior information of the
Although he was very closely connected with
the election campaign of R. C. Sharma, he admits that he informed neither the
Congress Election Office nor R. C. Sharma of the offending speeches of Dhote
and Satya Narain Sharma. According to him, he and Manohar Tajane went together
to the meeting. He further says that when Satya Narain Sharma finished his
speech, both of them were away to Itwari Chowk for about 11/2 hours for taking
tea. When both of them returned to the meeting, Dhote was speaking. Manohar
Tajane does not support him there. According to him, he did not go with Yadao
Shirpurkar to Itwari Chowk. They parted company after the end of Satya Narain
Sharma's speech. Yado Shirpurkar betrays a tendency of giving evasive answers
to awkward questions in cross-examination by merely saying "I do not
remember." For all these reasons, we are not inclined to place reliance on
In his cross-examination, Satya Narain Sharma
has stated that he arrived at the meeting when Kesho Rao Gadekar was speaking.
He further said that Dhote spoke after him. He was not asked as to whether
Dhote was present in the meeting when he arrived or while he was speaking. In
his examination-in chief, Dhote stated that he reached the meeting after the
speech of Satya Narain Sharma. In his cross-examination he stated that he
generally arrived in the meetings at the end as several meetings were addressed
by him every day. He further stated 834 that he did not remember whether
Gunwant Nagpure spoke in this meeting. He was not specifically asked whether it
was a fact that he arrived at the meeting when Gunawant Nagpure was speaking.
It may also be observed that the appellants did not come forward with, a
positive case in their petition that Dhote was present during tic speech of
Satya Narain Sharma and that he did not protest against the allegedly offending
statements of Satya Narain Sharma. This lack of a positive statement is a
characteristic of the appellants' allegation of consent in respect of all the
meetings discussed earlier. In the circumstances of this case and for the
reasons already discussed we think that the High Court has rightly held that
the appellants have failed to prove the consent of Dhote to the speech of Satya
Narain Sharma in this meeting.
The Case against Dhote We shall now examine
the appellants, evidence against Dhote.
The High Court has elaborately discussed and
commented upon the evidence. As we are in agreement with the High Court, we
shall indicate only the salient features of the evidence.
Nawi Mangalwari Meeting-29-3-1971 It is
alleged in paragraph 23(a) of the election petition that Satya Narain Sharma
and Pundik Masurkar said that Rikhabchand Sharma ';is a man having no character
and is a smuggler of gold." Satya Narain Sharma, it is alleged, also -said
that Rikhabchand Sharma "has taken a bribe of Ps. 5 lakhs from powerloom
owners and, therefore, the recommendations of Ashok Mehta Committee to the
effect that the Coloured saris should not be printed on powerloom has not been
given effect to." It is further alleged that Dhote "also made
personal attack on Shri Sharma saying that he has no character." In his
written statement Dhote has admitted that he had spoken in the meeting. But he
said that he made no adverse remarks against Rikhabchand Sharma.
To prove their case, the appellants examined
Marot Rao (on.of them), Ishwargiri, Shankar Laxman Nandankar and Manohar
Kashinath Kalankar. We shall discuss the evidence of the last witness at a
later stage and under the general heading of police witnesses. For the present,
we shall confine ourselves to the evidence of the remaining witnesses.
As regards Marot Rao, the High Court says
that his evidence is not reliable. The High Court has further remarked that
counsel for. the appellants did not rely on his evidence.
According to the High Court, Ishwar Giri did
not attend the meeting and has given a tutored version. Shankar Laxman
Nandankar was a chance witness and is not believed by the High Court. Counsel
for the appellants has not been able to show us that the High Court is wrong in
the appraisal of the evidence of the aforesaid witnesses.
Marot Rao is an appellant in this case. He is
an interested witness. He is also an omnibus witness. He claims to have been
present not only in this meeting but also in the Ganji Peth and Kastur835 chand
Park meetings Admittedly, he, did not take down notes of the speeches. His
evidence does not completely correspond to the pleadings in paragraph 23 (a).
In his evidence he says that Pundlik Masurkar called him a smuggler of gold. In
his evidence he says that Satya Narain Sharma said that Rikhabchand Sharma has
received Rs. 5 lakhs from powerloom owners, and that he was a man of no
Ishwar Giri is a chance witness. He has
admitted that in his life he has never attended any meeting except this
meeting. He pretended to have an excellent memory. But a vigorous
cross-examination has shattered his tall claim and has shown that he is a man
of short memory. He has admitted that he did not take notes of the speeches in
According to him, Pundlik Masurkar said that
Rikhabchand Sharma was carrying on smuggling business and was corrupt.
Satya Narain Sharma said that when the Bunker
Sena made a statement on the production of coloured saris on power loom, the
Maharashtra Government "hung up the Ashok Mehta Committee Report on a
peg". Rikhabchand Sharma was "a leader of the people who manufacture
illicit liquor in Nagpur and who run gambling dens in Nagpur." Dhote said
that corrupt and characterless Rikhabchand Sharma was talking of purchasing
poor people. Corrupt and characterless Sharma has committed the political
murder "of my friend Deoghare." Corrupt Sharma has secured 500
powerlooms for the Momins.
He has taken Rs. 5 lakhs from them and he has
distributed that amount lavishly for election purposes. He runs distillation
centres, gambling dens and brothels in Nagpur.
Obviously be is making preceptible improvements
on the pleading in paragraph 23(a) of the petition.
Shanker Laxman Nandankar also is a chance,
witness. Nawi Mangalwari is three miles from his house. He says that he went to
the house of his aunt's son who is living there because he was called by the latter
to his house. But for this explanation he would not have been present in the
meeting. Admittedly, he did not take down notes of the speeches. Although
several speakers spoke in the meeting, he does not remember the speeches of the
speakers other than Dhote, Pundlik Masurkar and Satya Narain Sharma. According
to him, Pundlik Masurkar said that Rikhabchand Sharma was selling land which he
had purchased during his Mayorlity of the Nagpur City Corporation and using
that money for election. He also said that Rikhabchand Sharma was carrying on
'smuggling business'. Satya Narain Sharma said that Rikhabchand Sharma was a
corrupt man and that he had taken money from powerloom owners and was utilising
that money for elections. He also said that Rikhabehand Sharma carried on
'smuggling business' and that be was a corrupt and cbaracterless man. Dhote
said that Rikhabchand Sharma was a corrupt man. While paragraph 23(a) of the
petition alleges that Rikhabchand Sharma was called a man of no character, he
says that Rikhabchand Sharma was also spoken of as a corrupt man. He makes
other variations and omissions from the pleadings in his evidence.
Having regard to the foregoing discussion, we
agree with the High Court that it will not be safe to rely upon the evidence of
836 Ganji Peth-30-3-1971 Paragraph 23 (d) of
the petition alleges that Satya Narain Sharma and Dhote spoke in this meeting.
Satya Narain Sharma said that Rikhabchand Sharma "is a supporter of gundas
and gangs involved in smuggling." Dhote said that Rikhabchand Sharma
"is trying to purchase votes by money". He also said that Rikhabchand
Sharma "is a corrupt man and in fact Rikhabchand Sharma is thy name
corruption." The appellants examined three witnesses, Marot Rao (one of
them), Mohd. Yakub Qamar and Dr. Ram Narain. The High Court has not relied upon
the evidence of Marot Rao. Regarding Mohd.
Yakub Qamar, it has held that he did not
attend the meeting.
Dr. Ram Narain, according to the High Court,
has given false evidence.
We have already rejected the testimony of
Marot Rao in regard to Nawi Mangalwari meeting. Obviously, there is variance
between the pleading and his evidence, in regard to the speeches of Satya
Narain Sharma and Dhote. Mohd. Yakub Qamar seems to have a grouse against Dhote.
He is the Chairman of the powerloom society. He has admitted that Dhote led an
agitation against the production of coloured saris on powerlooms and that the
powerloom society was opposed to the agitation. He was a Congress candidate for
the Nagpur Corporation in the elections held in 1959, 1962 and 1969. He is an
'active' member of the Congress. He has admitted that he did not take notes of
the speeches in the meeting. He has also admitted that he did not inform
anybody about the speeches in the meeting he did not inform even the Congress
Election Office. With his interest in the Congress candidate, it is difficult
to believe that if Satya Narain Sharma and Dhote had made objectionable
speeches, he would have failed to inform Rikhabchand Sharma or the Congress
Election Office. He is a man of weak memory. He could not reproduce the speech
of Satya Narain Sharma which he had repeated earlier in his evidence. He, could
not explain as to how the appellants came to know that he was present in the
meeting. There is variance between the pleading and hi& evidence as regards
the speeches of Satya Narain Sharma and Dhote,. According to him, Satya Narain
Sharma said that Rikhabchand Sharma was the protector of the goondas and that
he arranged for regular payments to be made to the police by person who
maintained gambling dens and that he also indulged in smuggling gold. Dhote,
according to him, said that Rikhabchand Sharma was a Bhrasbtachari (corrupt)
Dr. Ram Narain has appeared as a witness for Rikhabchnd Sharma. He was the
counting agent of Rikhabchand Sharma and was in the hall where counting was
done from 8.00 a.m. to 10.00 p.m. He was a Congress candidate in the Nagpur
Corporation election in 1969. He is an 'active' member of the Congress. So, be
is a highly interested witness. He has admitted that he did not inform
Rikhabchand Sharma and the appellants about his presence in the meeting. Having
regard to his interest in Rikhabchand Sharma, it is difficult to believe that
if any objectionable speeches had been made in the meeting, by Satva Narain
Sharma and Dhote, he would have failed to inform Rikhabchand Sharma of the
offending speeches. There is variance bet837 ween the pleading and his evidence
in regard to their speeches. According to him, Satya Narain Sharma and Dhote
both said that Rikhabchand Sharma "was arranging regular payment to the
police, that he was siding with the goondas and that he carried on smuggling
business." They also said that he was a corrupt and discredited man. He
also said that Dhote asked a question "whose name was Bhrashtachari and
himself answered by saying the Congress cha nam Bhrashtachari (Congress is
corrupt). He also said that the Congress men were Haram Khor (bad living) and
they purchased votes with tainted money. He further said that Rikhabchand
Sharma was a Bhrashtachari (corrupt).
In view of the foregoing discussion, we are
in agreement with the High Court that no reliance can be placed on the evidence
of these witnesses.
Maska Sath-7-4-1971 The appellants examined
two witnesses, Manohar Tajane and Yadao Shirurkar. The High Court has held that
the former is a tutored witness and the latter is not reliable.
There is variance between the pleading and
the evidence of Manohar Tajane. He also tried to improve on the pleading.
Paragraph 23(c) of the petition alleges that
Satya Narain Sharma said that Rikhabchand Sharma "is a man of no
character." Dhote said that "the fight is between corruption and
purity represented by him and corruption by respondent No. 3." According
to Manohar Tajane, Satya Narain Sharma said that Rikhabchand Sharma "is
corrupt and deals in smuggling of gold." He also said that Rikhabchand
Sharma was "characterless and is a protector of people who are dealing in
liquor, ganja, satta and gambling." According to him, Dhote said that it
is a fight between "corruption and characterless and purity and good
character. On one side there is corrupt Sharma, on the other good character and
purity." Yadao Rao Shirpurkar, as discussed earlier, is highly interested
in Rikhabchand Sharma. His evidence suffers from the same infirmities as that
of Manohar Tajane. The High Court did not rely on their testimony, and neither
do we. Chamar Nala -14-4-1971.
The appellants examined Laxminarayan Ganjli
(one of them) and Shankerlal. The High Court says that the evidence of the
former is thoroughly unreliable and counsel for the appellants did not refer to
his evidence at all.
Shankerlal, the High Court has found, did not
attend the meeting. Laxminarayan is one of the appellants. He is accordingly an
interested witness. Admittedly, he took no notes of the speech. Although he
says that both the appellants gave information to the lawyer who drafted their
election petition, he did not inform the lawyer about his presence in the
meeting and about the offending speech delivered by Dhote. He makes improvement
upon the pleading.
Paragraph 23 (d) of the petition alleges that
Dhote said that Rikhabchand Sharma "is a corrupt man supported by corrupt
Naik Govern838 ment." In his evidence, he says that Dhote said that
Pikhabchand Sharma has become rich by indulging in corruption and black-market.
Rikhabchand Sharma was trying to purchase votes by money. A corrupt man like
Rikhabchand Sharma could not usher in the socialist society. He was the symbol
of sin in the city of Nagpur.
Shankerlal could not tell the name of the
President of the meeting. Admittedly, he took no notes of the speech. He also
admits that he did not tell anybody of his presence in the meeting. He also
makes' improvement upon the pleading.
According to him, Dhote said that Rikhabchand
Sharma was a Bhrashtachari and that all his money was earned by corruption. He
also said "Ye Rikhamchot Sharma earns money by corruption." We agree
with the High Court that it is not safe to rely upon the evidence of these
Kasturchand Park-15-4-1971 The appellants
have, examined Marot Rao (one of them) Janaklal and Namdeo Rao. The High Court
held that Marot Rao was not present in the meeting and is an unreliable
It has also held that Namdeo Rao is an
interested witness and that he did not attend the meeting. Janaklal's evidence
is not helpful to the appellant's case. According to him, Dhote delivered an
innocuous speech. It has found that Namdeo Rao is an interested witness and was
not present in the meeting, Marot Rao, being an appellant, is an interested
The dais in the meeting was improvised on a
truck which had been used in the procession taken out before the meeting.
But he did not say that the dais was
improvised on a truck.
He improved upon the pleading. We have
already rejected his evidence in regard to other meetings.
Janaklal also could not say that the dais was
improvised on a truck. He is a chance witness. Moreover, according to him,
Dhote simply said that "he did not want to say anything about Sri Sharma,
that they would learn about him after reading Gram Sewak." This evidence
does not attribute to Dhote any statement of fact which would fill within the
grip of section 123(4).
Namdeo Rao is an interested witness. He is a member
of the Congress which has set up Rikhabchand Sharma as a candidate.
He was Rikhabchand Sharma's counting agent in
He did not inform anyone about the speech of
Dhote. It is difficult to believe that if Dhote had in fact made any objectionable
remarks, he would have failed to inform Rikhabchand Sharma. He has improved
upon the pleading.
Paragraph 23(e) alleges that Dhote said that
Fikhabchand Sharma "is corrupt." According to his evidence, Dhote
said that Rikhabchand Sharma was a corrupt man and has no character. He also
said that Rikhabchand Sharma was dealing in illicit liquor and was running
brothels and was a smuggler of gold. There is one curious thing about him.
While according to Janaklal Dhote said that
"he did not want to say anything about Sri Sharma and that they would
learn 839 about him after reading Gram Sewak", he says that Dhote first
said that he did not want to speak anything about Sri Rikhabchand Sharma and
that the audience knew about the work of Rikhabchand Sharma. Thereafter he says
that Dhote further made the aforesaid false statement regarding the character
of Rikhabchand Sharma. Thus he seeks to reconcile his statement to that of
Like the High Court, we are unable to rely on
the evidence of these witnesses.
Police witnesses We shall now consider the
evidence of the two C.I.D. Shorthand writers, Manohar Kashinath Kalankar and
Shesh Rao Kambale.
Manohar Kashinath Kalankar was it is said
present in the Nawi Mangalwari, Ganji Peth, Maska Sath, Chamar Nala and Kasturchanci
Park meetings. Shesli Rao Kambale was present in the Gauji Peth, Maska Sath,
Chamar Nala and Kasturchand Park meetings. One or the other of them took down
the notes of the speeches of Pundalik Masurkar, Satya Narain Sharma, Dhote and
other speakers. The notes were taken down in short-hand except in the case of
Dhote's speech in the Nawi Mangalwari meeting. That speech was taken down in
long hand in Marathi by Manohar Kashinath Kalankar. The transcribed note of
speeches recorded by Manohar Kashinath Kalankar at the Nawi Mangalwari are Ex.
70, at Ganji Peth Ex. 71, at Maska Sath, Ex. 72, at Chamar Nala Chowk, Ex. 73.
The transcribed notes of speeches recorded by Shesh Rao Kambale in the meeting
at Ganji Peth are marked Ex. 79, and at Maska Sath Ex. 80. The transcribed
notes of the speech of Dhote in the Kasturchand Park meeting are marked Ex. 81.
It appears that the High Court was not sure that the speeches have been
correctly recorded in the note-books. The High Court has also found that they
were "too ready and willing to help the petitioners," and it will not
be safe to rely on their testimony. Three preliminary questions arise for our
consideration: (1) the scope of appellate review in this case, (2) the
admissibility of notes of speeches recorded by the aforesaid witnesses; and (3)
Scope of appellate review :
Section 116A of the Act provides for an
appeal to this Court from an order of the High Court dismissing an election
petition. The appeal lies both on issues of law and of facts. Section 116C
applies the Code of Civil Procedure as nearly as possible. Hence the present
appeal is in the nature, of a first appeal from decree under that Code, The
power of the appellate Court is very wide. It can reappraise the evidence and
reverse the trial court's findings of fact. But like any other power it is not
unconfined: it is subject to certain inherent limitations in relation to a
conclusion of fact. While the trial court has not only read the evidence of
witnesses on record but has also read their evidence in their faces, looks and
demeanour. The appellate Court is confined to their evidence on record.
Accordingly "the 840 view of the trial judge as to where credibility lies
is entitled to great weight." (See Saraveeraswami v.
Talluri(l). However, the appellate court may
interfere with a finding of fact if the trial court is shown to have overlooked
any material feature in the evidence of a witness or if the balance of
probabilities as to the credibility of the witness is inclined against the
opinion of the trial court. (See Sarjy Pershad v. Raja Jwaleshwari Pratap
Narain Singh. (2) This limitation on the power of the appellate court in a
first appeal from decree, on principle, will also apply to an election appeal
under section 11.6A. It has been so extended by this Court. Whether we should
believe the witnesses or not involves how far we should enter into facts.
"No doubt, an appeal before this Court under S. 116A is an appeal. . .. on
facts and law; still the practice of the courts has uniformaly been to give the
greatest assurance to the assessment of evidence made by the Judge who hears
the witnesses and watches their demeanour and judges of their credibility in
the first instance. In an appeal the burden is on the appellant to prove how
the judgment under appeal is wrong. To establish this he must do something more
than merely ask for a reassessment of the evidence. He must show wherein the
assessment has gone wrong." (See Narbada Prasad v. Chhagaul(2). It should
also be borne in mind that in the instant case the High Court has held Dhote
not guilty of the alleged corrupt practice which is a quasil-criminal charge.
This Court should be slow to disagree with the finding of the High Court based
on appreciation of evidence. (D. P. Misra v. Kam Narain Sharma(4). The
appellant should put their case within the scope of this limited review;
otherwise they should not succeed.
Counsel for the appellants points out that in
Reddiar (supra) and Virendra Kumar Saklecha v. Jagjiwan(5) this Court has reappraised
evidence and reversed findings of facts relating to corrupt practice recorded
by the High Court. Reddiar (supra) is plainly distinguishable from the present
case. We have earlier referred to this case. The oral evidence in the case was
corroborated by "un impeachable documentary evidence" of applications
to police for permission to hold meetings and by police reports of speeches
delivered in the meetings. As regards the reports of speeches the Court said
that the police witnesses were "not shown to be inimically disposed
towards the respondent or his party." Saklecha is indeed against the
There the High Court bad believed the oral
evidence in proof of corrupt practices. This Court, on a reappraisal of the
evidence, came to the reassuring conclusion that the witnesses " were all
prepared on the same pattern of evidence." In the present case the High
Court has recorded a similar finding.
1. A. I. R. 1949 P. C. 32.
2.  S. C. R. 781 at p. 784 per
3.  1 S. C. R. 499 at p. 504 by
Hidayatullah C. J.
4. (1971] 3 S. C. R. 257 at p. 261 per Shah
5.  1 S. C. C. 826.
841 Admissibility of their evidence :
Counsel for Dhote has submitted that their
evidence is inadmissible. in this connection it will be necessary to refer to
ss. 159, 160 and 161 of the Indian Evidence, Act.
"S. 159. A witness may, while under
examination refresh his memory by referring to any writing. made by himself at
the time of the transaction concerning which he is questioned, or so soon
afterwards that the Court considers it likely that the transaction was at that
time fresh in his memory.
The witness may also refer to any such
writing made by any other person, and read by the witness within the time
aforesaid, if when he read it he knew it to be correct. Whenever a witness may
refresh his memory by reference to any document, he may, with the permission of
the Court, refer to a copy of such document :
Provided the Court be satisfied that there is
sufficient reason for the non-production of the original:
S. 160. A witness may also testify to facts
mentioned in any such document as is mentioned in section 159, although he has
no specific recollection of the facts themselves, if he is sure that the facts
were correctly recorded in the document. (emphasis added).
S. 161. Any writing referred to under the
provisions of the two last preceding sections must be produced and shown to the
adverse party if he requires it; such party may, if he pleases, cross-examine
the witness thereupon." There are thus three conditions for admitting
their evidence. The first condition is that the notes must have been taken down
by them as and when the speeches were being delivered or so soon afterwards
that the speeches were fresh in their memory. The second condition is that the
witnesses must be sure that the speeches have been correctly recorded by them.
The third condition is that the notes must be produced and shown to the adverse
party if he requires them.
Such party may cross-examine them if he so
It does not appear to have been the case of
Dhote that the witnesses were not present in the meetings except one in which
the offending speeches were delivered. The witnesses have stated that they took
down the notes of the speeches as and when they were being delivered.
Accordingly, the first condition is satisfied. Counsel for Dhote says that the
third condition was not satisfied. The transcribed notes of the speeches were
given to Dhote on demand and he has crossexamined the witnesses. But counsel
says that the notes of speeches are in short-band which Dhote cannot decipher
at all. According to him the notes must have been recorded in the language
which can be understood by the adverse party.
We are unable to appreciate this extreme
contention. It means that the notes of a speech recorded in Bengali or 842
Oriya will be inadmissible if the adverse party is ignorant of that script and
language. Not any uniform rational principle, but the literacy and
multi-linguality of the adverse party will determine the admissibility of
This interpretation of S. 161 is absurd as
well as impracticable. The Evidence Act itself furnishes cogent evidence
against this interpretation. According to s. 98, evidence may be given to show
the meaning of illegible or not commonly intelligible characters, of foreign,
obsolctte, technical, local and provincial expressions or abbreviations, and of
words used in peculiar sense. Under s. 162, where a witness asked to produce a
document in Court objects to its production, the Court shall decide on such
objection. For this purpose the Court may inspect the document, unless it
refers to matters of State. The Court may get the document translated if it
cannot read the original. Notes in short-hand may be said to be in 'not
commonly intelligible characters' and 'abbreviations' under.
S. 98. Evidence can be given to show their
meaning. It is a matter of every day experience that commercial documents
recorded in mahajani are admitted in the civil courts.
Claims are even founded on those documents.
We go by English translations of documents on record. So we eject this
However, the note of the speech taken down by
Manohar Kashinath Kalankar in the Nawi Mangalwari meeting is inadmissible under
160. The relevant extract from his notes of Dhote's speech is this
"Bhrashtachari Sharma is speaking the language of purchasing poor People..
. at the time of election (you) will get note (money) but for the movement I am
willing to shed my blood." In his examination-inchief Kalankar has deposed
that the extract was correctly recorded by, him while Dhote was speaking. But
in his crossexamination he has made this admission : "It is possible that
if the speaker had said : "Bhrashtachari Congesscha Sharma" a word
might have been missed. ,Now, I say that the word "Congresscha" might
have been missed." Now, there is a world of difference between
"Bhrashtachari Sharma" and "Bhrashtachari Congresscha
Sharma". The former means 'fallen conduct Sharma'; the latter means 'Sharma
of the fallen conduct Congress.' if Dhote had really said "Bhrashtachari
Congresscha Sharma" it would not amount to a corrupt practice. This
admission of Kalankar in his crossexamination casts doubt on the accuracy of
his recording of Dhote's speech in this meeting.
Two other circumstances also enhance our
doubt. Admittedly, Dhote spoke in Marathi. Kalankar is not a Marathi shorthand
writer. So he says that he took down the speech of Dhote in long hand in
Marathi. It is quite possible that in the long hand recording of a speech some
words might be missed by the reporter. Again, while the election petition
alleges that in this meeting Dhote said only that Rikhabchand was a
'characterless man' (Charitrahin), in the aforesaid extract the charges ire of
Rikhabehand Sharma being of fallen-conduct and of the electors getting money in
the election. On account of all these circumstances, we are not sure that the
extract is a correct recording of the speech of Dhote. Hence we will exclude
from evidence the aforesaid extract as being inadmissible in evidence.
843 Counsel for the appellant has referred us
to Kanti Prasad Jayshanker Yagnik v. Purshottamdas Ranchhoddas Patel(') and P.
C. Purshothama Reddiar v. S. Perumnal(2). These cases do not help him. In the
former case, the police reporters who took down the speeches of Shambhu Maharaj
had stated that they had correctly recorded the speeches. Nothing was elicited
from their cross-examination to cast doubt on their asserted correct recording
of the speeches. The High Court believed the police witnesses, and this Court
affirmed the view of the High Court. In the latter case, the police reports of
speeches were not cited for the purpose of proving the commission of any
corrupt practice. They were cited merely to prove that the returned candidate
had held certain meetings, the expenses of which he had not shown in his return
of election expenses. The corrupt practice charged was of spending more than
the authorised amount in election. The Court was not concerned with the
question whether the police reports of speeches were admissible in proof of a
corrupt practice under s. 123(4).
Credibility of the evidence of the aforesaid
Dhote spoke in Hindi in the Chamar Nala
meeting. Kalankar claims to have recorded his speech in the meeting. The
relevant extract from his speech is as follows : "Sharma and Naik
(reference is to Rikhabchand Sharma and Vasant Rao Naik, Chief Minister of
Maharashtra) have become rich by corruption. Corruption thy name is
Rikhabchand." He also said : "You have to cast your vote after
It will be decided in this election whether
people here will choose corruption or a social worker." it will not be
safe to place implicit reliance on Ms testimony in regard to this meeting.
While assessing the probative value of his evidence, it win be necessary to
remember that "the report of a short-hand writer is, strictly speaking,
not substantive evidence as such, and the document can only be used as a part
of the oral evidence sanctified by oath." (Kanti Prasad Jayshanker Yagnik,
There are several reasons why his testimony
does not inspire confidence. Firstly, there is some evidence to show that the
Nagpur police must have had a strong prejudice against Dhote. Rikhabchand
Sharma has filed a written statement.
He has annexed a schedule to the written
statement. The schedule gives a list of 25 cases against Dhote. On May 4, 1964
Dhote along with his associates assaulted Head Constable Deo Narain who was on
duty at Yeotmal. In a public meeting held at Pimpari he is alleged to have
delivered a speech instigating the people for looting godowns and assaulting
public servants. On April 11, 1968 he delivered a speech in a public meeting at
Hinganghat instigating people to assault government officials. On October 17,
1968 at Akola Railway Station he forcibly entered into a first class
compartment in which the late Shri Gopalrao Khedekar, a minister of
Maharashtra, was travelling, by pushing the police inspector aside. On May 5,
1970 he is said to have delivered a speech at Wardha threatening Police (1)
 3 S. C. R. 400.
(2) (1972] S. C. R. 646.
844 Sub-inspector Pawar for prosecuting
Forward Block workers and demanding his transfer and threatening revenge if he
was not transferred. On November 22, 1970, Dhote along with his followers led a
procession and is alleged to have threatened the police and caused damage to
the police wireless van.
Secondly, Manohar Kashinath Kalankar has
evidently made exaggerations in his oral evidence. For instance, in his
examination-in-chief he said that he had attended meetings of different
parties. But in cross-examination he was forced to admit that he had attended
only one meeting of the Hindu Mahasabha. He said in his cross-examination that
he could not tell from memory what speeches were delivered in the meetings
which he attended. It will indicate that he is not a man of super-human memory.
Nevertheless he has ventured to vouchsafe from memory that Dhote was present
from the very beginning in the meetings in which Pundalik Masurkar and Satya Narain
Sharma were speakers. On crossexamination, he admitted that there is no note to
that effect in his note-book. We have already held that he seems to be
interested in helping the cause of Rikhabchand Sharma and appellants. From a
witness of speeches he has converted himself to a witness of Dhote's consent
for the speeches of Pundalik Masurkar and Satya Narain Sharma. We have already
rejected his evidence in that connection. So he is not an impartial witness.
Thirdly, it is not free from doubt that he was present in the Chamar Nala
meeting. The relevant extract from his notes of the speech is : "Sharma
and Naik had become rich by corruption.. . Corruption thy name is Rikhabchand.
. you have to cast your vote after thinking properly. It will be decided in
this election whether people here will choose corruption or a social
worker." Counsel for the appellants says that Kalankar was not
specifically cross-examined in regard to his presence in the meeting. It is
true that he was not confronted with the straight question, that he was not
present in the meeting and was falsely deposing. But the trend of crossexamination
unmistakably shows that the crossexaminer was questioning his presence in the
meeting. The relevant cross-examination elicits: "My notes show that the
Chamar Nala meeting of 14-4-1971 was called by the Azad Bhim Sena.
Generally we short-hand reporters do not
attend cultural functions or meetings held to celebrate birth anniversaries or
death anniversaries. I cannot tell whether the names of the speakers who were
to address the meeting on 14-4-1971 were earlier announced. Nobody had told me
nor did I ask anybody whether Shri Jambusantrao Dhote was going to speak at the
meeting." His presence having been questioned, it was incumbent on the
appellants to produce documentary evidence in proof of his presence. There is
no doubt that if he were really present in the meeting, convincing police
documentary evidence will be available to prove his presence. He has admitted
that for going to the meeting a conveyance was given to him by the Department.
No evidence has been produced to prove this fact also.
The meeting was called to celebrate Ambedkar
Dhote spoke in Hindi. But in the whole of
Dhote's speech, which Kalankar has noted down in his note-book, there is a
solitary reference 845 to the late B. R. Ambedkar and that too in Marathi. He
is reported to have said : "Today we are celebrating the Jayanti of a
great man." (emphasis added). The use of tile mild epithet 'great' (and
that too only once) is rather starting and unexpected of Dhote. He had gone
there with an eye on vote-catching. He should accordingly have devoted the
major part of his speech in recognising the qualities and services of the late
Dr. B. R. Ambedkar to the downtrodden and thus winning their heart and mind.
The probability is that he would have merely alluded to the aspect of election
from the side-lines. But his entire speech as recorded by Kalankar is devoted
to election. It is highly improbable to expect that from a shrewd speaker like
Dhote. It creates misgivings in our minds about the presence of Kalankar in the
meeting. Again, Kalankar has admitted in his cross-examination that "Shri
Dhote's speech is always systematic and there is no incoherence in it.
"Yet when one specific incoherent
portion in Dhote's speech as recorded by him was pointed out to him, he
admitted that the said portion does not fit in with what precedes andsucceeds
it. Dhote is recorded to be speaking about the poverty of the people. In that
context he said that "in the meeting at Lakarganj, Chief Minister Vasant
Rao Naik had said that they are poor who have committed sins in their past
life. This is a humiliating statement. No sooner, he said so, people raised
slogans that Chief Minister Naik should go away. Chief Minister who talks of
ushering in socialism should disclose in which book it is written that poverty
is the consequence of the sins of the past life." After this portion the
incoherent portion begins : "You should consider how Rikhabchand Sharma
and Vasant Rao Naik can usher in socialism. When the whole country was fighting
for independence, Sharma Ji was doing the work of puncture repairing. There are
others who are doing that work, but they have not become capitalists. Sharma Ji
and Naik have become rich by corruption. Sharma is rich. Therefore, we are
poor. Sharmji's brain is fitted in reverse and he is a candidate of the
Congress." Thereafter the speech continues : "Taking the aid of their
wealth, Congress leaders like the Chief Minister Naik and Yashwant Rao Chauhan
are caricaturing the poor. In this Republic those who have got ill-earned
income are rulers. We are being looted and there is a fight for power. I can
fight for the same. But poverty cannot be eliminated by such conduct as that of
Sharma." Kalankar has made this admission in his crossexamination It is
correct that if the (sandwiched incoherent) portion is omitted, the continuity
of the speech will remain and that the portion following the (sandwiched)
speech fits in the context of the portion preceding it".
This admission also casts doubt on his
presence in the meeting.
Dhote has examined himself and Rajababu
Dhote has denied that he had made any
offending remarks against Rikhabchand Sharma which Kalankar attributed to him
in his notebook. Let us keep aside his denial for he is interested in denial.
But Rajababu Ganpatrao Meshram's evidence cannot be overlooked. According to
Kalankar, he presided over the meeting. He has deposed: "Ambedkar Jayanti
falls on 14th of April. On 14th April, a meeting was held in Chamar Nala
locality. This meeting was called by Azad Bhim Sena in connection with the
I presided over 846 this meeting" He
said that the photograph of Dr.B.R.Ambetker and Buddha were placed on the dais,
and that they were garlanded. According to him, Ajabrao Ingle spoke about the
Bauddha community and Dr. Ambedkar. The other speakers dwelt on the work (A Dr.
Ambedkar for the labourers. In his cross-examination on behalf of Rikhabchand Sharma,
he admitted that Dhote also spoke about the election. In his cross-examination
on behalf of the appellants, he said that Dhote first spoke, on the problems of
labour, then on Di-.
Ambedkar and in the concluding part of Ms
speech be said that he was standing as a candidate in the election. The High
Court appears to have believed his evidence. He does not seem to be an
interested witness. He has stood the test of cross-examination. There appears
to be no reason why we should not believe his testimony'.
It is a curious feature of this case that
neither during the election nor after the election there was a whisper of
protest by anyone including Rikhabchand Sharma against the alleged commission
of corrupt practices. His statement issued after his defeat was published in
the Nagpur Times of 23-4-1971. Even there he does not complain against the
commission of corrupt practices by Dhote and his supporters.
The High Court did not consider it safe to
rely on Kalankar's evidence. Its view is bottomed on appreciation of evidence
based oil the credibility of the witness. For the reasons already discussed, we
are unable to hold that the High Court has gone wrong in its view. It has not
overlooked any material feature in the evidence. Nor can its view be said to be
Shesh Rao Kambale has recorded in short-hand
the Marathi speeches of Dhote in the Ganji Peth, Maska Sath and Kasturchand
Park meetings. In the Ganji Peth meeting Dhote is reported to have said :
"Bhrashtachar thy name is Rikhabchand.. . . . you should not cast your
vote in favour of fallen-conduct (Bhrashtachar) and if you do not want to elect
me, you may vote for other candidates. Do not vote for a man of fallen-conduct
(bhrashtachari). Do not allow it to be proved that you are companions of fallen-conduct
(bharashtachar)."' Counsel for the appellants says that this portion of
Dhote's speech makes out a corrupt practice under s. 123(4). We are reluctant
to take that view. It is well to remember that it is one of those flourishes or
hyperboles which are the common stock-in-trade of election speakers to exploit
the emotions of the audience, and to argument their popular support. Election
speeches should be understood broad-mindedly, not literally. Election speakers
often do not mean what they say, and the audience generally does not take them
by their words. Even literally, "bhrashtachar" and
"bhrashtachari" will not inevitably establish a corrupt practice.
"Bhrashtachar" is a compound Sanskrit word. It is compounded of "bhrashta"
and "achar". The word "bhrashta" is derived from the root
"bhransh" which means, inter alia, 'fallen'. [sir
MonierMonier-Williams: A Sanskrit English Dictionary 1956 Edn. p. 769). So
"Bhrashtachar" means, inter alia, 'fallen-conduet'; .(compare Kalidasa's
phrase, in the Meghaduta (fallen old leaves).
"Bhrashtachari" will also mean a
'man of fallen conduct'.
847 The High Court has given a uniform
meaning of 'corruption' to the word bhrashtachar' in the reported speeches of
It appears to us from the context of the
Ganji Peth speech that Dhote might have used the word 'bhrashtachar' in the
sense indicated by us. In any case, the context does not plainly exclude this
innocuous interpretation. It is well-known that a person who takes liquor, etc.
is even now regarded by the common folk as a 'bhrashtachari'. So it cannot be
said that the aforesaid portion of Dhote's speech is susceptible of one and
only one construction which will establish a corrupt practice. And Dhote cannot
be put in peril on an ambiguity.
In the Maska Sath meeting Dhote is reported
to have said :
'This is a war between truth and power. We
have to see whether truth wins or power wins. We have to see whether truth wins
or power loses, whether falsehood wins, or truth wins. We have to see whether
corruption wins or purity wins." By no stretch and strain of these words,
it is possible to make out a corrupt practice. In this speech Dhote does not in
our view make, any statement of fact in relation to the, personal character or
conduct of Rikhabchand Sharma.
In the Kasturchand Park meeting Dhote is
reported to have said: "In the Chitra Talkies meeting the Chief Minister
of Maharashtra, his discipiles, Mandani or Sukhadani had said that Jambuwantrao
Dhote would be buried seven patals deep.
In democracy the language of burying seven
patals is spoken and that also by the Chief of a State. What is the meaning of
this?" As regards Rikhabchand Sharma he is reported to have said:
"You know his achievements and his capacity. I do not wish to speak
anything about him." This speech also does not amount to a corrupt
The police witnesses have said that they used
to send transcribed summaries of their notes of speeches to the Maharashtra
government at Bombay. An application was made on behalf of the appellants in
the High Court for summoning the appropriate offirers to produce those
summaries, for it was said that they would corroborate these; witnesses. The
High Court rejected the application because it appears to have been made, at a
late stage in the course of arguments.
An application has been made to the same
effect in this Court also. We do not think that it will be proper to allow the
application for various reasons. Firstly, Kalankar said in his
examination-in-chief that full reports of the speeches were sent to the
Government at Bombay, but in his cross-examination he admitted that only
summaries of the speeches were sent. Shesh Rao Kamble has no doubt uniformly
said that only the summaries were sent. But in view of the statement of the
former witness we do not feel reassured that only summaries were sent.
Secondly, the mere admission of summaries in evidence at this stage will not
avail the appellants, A number of police witnesses from Nagpur as well as from
Bombay will have to be summoned to give evidence. A numbei, of documents,
especially the dispatch registers, %ill have to be admitted in evidence to
ascertain whether full reports or summaries were sent to Bombay. It is relevant
to mention that Dhote has accused the witnesses of making interpoliations in
their note-books. It is neither proper prudent to launch an enquiry of such a
magnitude at this stage, 848 Thirdly, as regards the reported speeches of
Pundlik Masurkar and Satya Narain Sharma, we have already held that they were
not made with the consent of Dhote. As regards the speeches of Dhote, we have
earlier held that one of them is not admissible in evidence, and three others
do not make out a corrupt practice. As regards the remaining one recorded by
Kalankar in the Chamar Nala meeting, we have earlier expressed doubt about his
presence in the meeting.
So summaries will not advance the case of the
appellants. it will remain as it is now. In short, it will be a mere waste of
time to summon them. The High Court has exhibited not only extracts from the
reported speeches of Dhote but has also admitted the full reports of his
speeches. It is argued on behalf of the appellants that the full reports
establish other instances of the pleaded corrupt practice against Dhote. The
High Court was also addressed on this aspect. It did not accept them. argument.
Nor can we. The other instances were not pleaded in the petition. The
appellants did not seek to amend the petition by incorporating those instances.
Dhote got no opportunity to deny them or to disprove them. He did not even
crossexamine the police witnesses with respect to those instances. He confined
his cross-examination mainly to the instances pleaded in the petition. Taking
notice of the new instances will cause serious prejudice to him.
Issue No. 9:
It is alleged that in the Kasturchand Park
meeting Dhote and his followers distributed copies of the weekly Gram Sewak
which was published by Atal Bahadur Singh with the consent of Dhote. Dhote has
denied that he had consented to its publication. He has also denied that he and
his followers distributed the Gram Sewak in the meeting. There is no doubt that
the Gram Sewak contains an attack on the personal character of Rikhabchand
Sharma and falls within the grip of s. 123 (4) of the Act. But the High Court
has found that neither Dhote nor his followers distributed it. It has also
found that Atal Bahadur Singh did not publish it with the consent of Dhote.
Accordingly the issue has been decided against the appellants.
Satya Narain Sharma, a witness for Dhote, has
admitted that the copies of Gram Sewak were not distributed free but were sold
on the road running from the Kasturchand statue to the Assembly building after
the close of the meeting.
Similarly, another witness of Dhote, B. M.
Gaikwad, has admitted that he saw copies of the Gram Sewak being sold outside
the Kasturchand Park. So the important questions to be decided are: (1) whether
the Gram Sewak was published by Atal Bahadur Singh with the consent of Dhote;
(2) whether Dhote himself distributed the copies of the Gram Sewakin the
meeting; and (3) whether any of his followers distributed the copies of the
Gram Sewak in the meeting.
Re. (1) There is no direct evidence to prove,
that Atal Bahadur Singh published the Gram Sewak with the consent of Dhote.
Consent, however. may be inferred from
circumstances. (See Sheopat Singh v. 849 Harish Chandra(l) and R. M. Seshadri
v. G. Vasantha Pai(2).
Admittedly, Atal Bahadur Singh is the editor
of the Gram Sewak. He has been examined by Dhote. He has stated that he had
published the offending Gram Sewak on his own initiative. He has denied that it
was published by him with the consent of Dhote. He has also stated that 1000
copies of the Gram Sewak were printed on his order by Sri Sharda Mudranalaya.
He had sent out of Nagpur 200 copies for sile;
about, 180 complimentary copies were sent Lo
the advertising agencies; 200 copies were sent to the book stalls in Nagpur;
200 copies were given to hawkers for sale.
Out of the 400 copies given to the book-stall keepers and hawkers, 70 copies
were returned to him. He received the price for 330 copies sold by them. He has
stated in cross-examination that he maintains accounts relating to the
publication of the Gram Sewak. He further said : "If I am asked to produce
these tomorrow, I am willing to do so." No such demand was made on behalf
of the appellants. His evidence supports the evidence of Satya Narain Sharma
that the Gram Sewak was sold and not distributed free outside the meeting.
There is nothing inhis evidence to discredit his testimony. He has been
believed by the High Court. So we share the view of the High Court that it was
sold by hawkers only. Atal Bahadur Singh has admitted that he had been
canvassing for Dhote in his ward. He has also admitted that he had pasted
certain posters in his ward soliciting support for Dhote at his expense. He has
also admitted that he had been working with Dhote in certain associations and
in the Maha Vidarbha Andolan. His association with and his canvassing for Dhote
could not establish that the Gram Sewak was published with the consent of
Dhote. Evidence shows that when Dhote was canvassing from door to door in the war
in which Atal Bahadur Singh resides, he was not accompanied by the latter.
This will show that the latter was working on
his own initiative. We have believed his evidence that the copies of the Gram
Sewak were sold and not distributed free. it is hardly probable that if Dhote
had given his consent to the publication of the Gram Sewak, it would have been
sold and not distributed free. The sale suggests want of consent of Dhote. So
we agree with the High Court that the appellants have failed to prove the
publication of Gram Sewak with the consent of Dhote.
Re. (2) To prove distribution of the copies
of Gram Sewak in the meeting as alleged in the election petition, the
appellants have examined Nepat Rao, Janak Lot, Namdeo Rao, Govind Marot Rao and
Marot Rao (one of the appellants). Nepat Rao and Namdeo Rao have stated that
Dhote, Atal Bahadur Singh and B. M. Gaikwad had distributed the copies of the
Both of them also say that Dhote gave one
copy of the Gram Sewak to them. Marot Rao says that Dhote and Atal Bahadur
Singh distributed the copies of the Gram Sewak. So his evidence is not material
in regard to the distribution of the Gram Sewak by Dhote. Nepat Rao is the
General Secretary (1) A.I.R. 1960 S.C. 1217.
(2)  2 S.C.R, 1019.
850 of the Lal Bahadur Sastri Dal.
Laxminarayan (one of the appellants) is the President of the Dal. He is also a
member of the Yuvak Congress, an affiliate of Congress (R), which had sponsored
Rikhabchand Sharma's candidature. He has also admitted that he had been
canvassing for Rikhabchand Sharma till April 15, 1971. Namdeo Rao is also a
member of the Congress (R). He has admitted that he had been canvassing for
Rikhabchand Sharma. He has also admitted that he was the counting agent of
Rikhabchand Sharma. Janak Lal appears to be a chance witness. He says that he
went to the Sitabadi market at about 9 p.m. for purchasing a clutch wire for
his motor-cycle and on his way back be went to the meeting in -the Kasturchand
Park. Re has admitted that ordinarily the Sitabadi market is closed at 8.30
p.m. He has admitted that after the meeting he had never spoken about the
distribution of the Gram Sewak to Rikhabchand or to the appellants till the
date of his evidence. His presence in the meeting, acoordingly, is very
doubtful. Marot Rao has denied that he had been canvassing to.Rikhabchand
Sharma, but he has admitted that be went to Umred to see how the polling was
proceeding as he was interested in the success of the Congress candidate. Nepat
Rao, Nemdeo Rao and Marot Rao are evidently highly interested witnesses. It is
surprising that no independent witness has been examined by the appellants in
order to prove distribution of the Gram Sewak by Dhote, especially because the
meeting was attended by a large number of important reason. It has come in
evidence of other witnesses of the appellants that the meeting was addressed by
Dhote from an improvised dais or a truck which was used in the procession
before the meeting. These witnesses were cross-examined about the nature of the
dais. None of them stated that the dais was improvised on the truck. Had they
really attended the meeting, they could not have failed to notice this striking
improvisation. Dhote has denied that he had distributed the copies of the Gram
Having regard to the nature of the appellants
evidence, we are in entire agreement with the High Court that they have failed
to prove the distribution of the Gram Sewak by Dhote in the meeting.
Govind Marot Rao has deposed that B. M.
Gaikwad had given him a copy of the Gram Sewak in the Chitnis Park from where
the procession started before the meeting. Now, the distribution of the Gram
Sewak in the Chitnis Park is not pleaded in the petition. D. M. Gaikwad was the
election agent of Dhote. A corrupt practice committed by an election agent
avoids the election. It is not necessary to prove the consent of the returned
candidate. If B. M. Gaikwad had really distributed the copies of the Gram Sewak
in the meeting or in the Chitnis Park, it is difficult to believe that the
appellants would have failed to make a mention of it in their election
petition. Govind Marot Rao is an active member of the Congress (R). Admittedly,
he had canvassed for Rikhabchand Sharma. The High Court has &believed him,
and we find no reason to disagree with the High Court.
Re. (3) We have already held that the High
Court rightly rejected the evidence of the appellants, witnesses in regard to
the distribution of the 851 Gram Sewak by Dhote in the meeting or anywhere
else. That being so, we do not accept their evidence of distribution of copies
of the Gram Sewak by Atal Bahadur Singh, B. M. Gaikwad and others in the
We agree with the High Court that the
appellants have failed to prove issue No. 9 in their favour.
The last argument of the appellants is about
the costs awarded by the High Court to Dhote while dismissing the election
petition. The High Court's order is : "I, dismiss the petition with costs
with the direction that the respondent No. 2 (Dhote) will be entitled to his
costs at the scheduled rate of Rs. 400/per day for 52 hearings front the
petitioners and that respondent No. 11 will get Rs. 1500/a.-, his costs payable
by the petitioners." Counsel for the appellants points out that Rs. 400/per
day is prescribed by the Bombay High Court Rules for fees of counsel and the
High Court has awarded costs to Dhote in accordance with that rule. He has also
pointed out that counsel who appeared for Dhote and respondent No. II did not
file a certificate in the High Court in proof of payment of any fees to them.
There is also no other evidence in proof of payment of fees to them. The
opposing counsel do not contradict this statement of counsel for the
Accordingly we are proceeding on the
assumption that there is no evidence on the record to show that any fees were
paid to counsel for Dhote and respondent No. 11.
Section 96 provides that "the reasonable
expenses incurred by any parson in attending to give evidence may be allowed by
the High Court to such person and shall, unless the High Court otherwise
direct-,, he deemed to be part of the costs." Section 119 deals with costs
in the cause' It reads : "Costs shall be in the discretion of the High
Provided that where a petition is dismissed
under clause (a) of section 98, the returned candidate shall be entitled to the
costs incurred by him in contesting the petition and accordingly the High Court
shall make an order for costs in favour of the returned candidate."
It may be observed that the word 'incurred'
occurs both in section 96 and section 119. 'Incurred' means "actually
spent". The petition was dismissed by the High Court under cl. (a) of
s.98. Accordingly, it was incumbent on the High Court to award costs to Dhote.
But he is entitled to only such costs as are shown to have been incurred by
Admittedly, there is no proof of payment of
any fee to counsel by Dhote. So he is not entitled to the amount of Rs. 400/per
diem awarded by the High Court. However, he will be entitled to any other costs
which are shown to have been incurred by him.
Having regard to the foregoing discussion,
the appeal is allowed only with respect to counsel's fees awarded to Dhote and
the respondent No. 1 1 by the High Court. As for the rest, the appeal is
dismissed. Dbote will be entitled to such costs as have been incurred by him in
this Court as well as in the High Court.
V.P.S. Appeal allowed re : costs.