Narbada Prasad Vs. Chhagan Lal &
Ors  INSC 166 (30 July 1968)
30/07/1968 HIDAYATULLAH, M. (CJ)
HIDAYATULLAH, M. (CJ) GROVER, A.N.
CITATION: 1969 AIR 395 1969 SCR (1) 499
CITATOR INFO :
R 1969 SC 734 (11) E 1969 SC 851 (33) RF 1972
SC 580 (21) F 1974 SC 66 (55) F 1974 SC 951 (6) R 1979 SC1148 (4) D 1985 SC 89
(9) F 1988 SC1796 (8)
Representation of the People Act (43 of
33(5), 116-A and 123---Compliance with s.
33(5), what is--Threatening voters that they voted for rival candidate they
would be committing the sin of gohatya--If election offence--Assessment of
evidence by this Court under s. 116A.
The election of the appellant to the Madhya
Pradesh Legislative Assembly from Khategaon constituency was challenged on two
grounds: (1) That the nomination paper of one of the contesting candidates was
wrongly rejected by the Returning Officer; and (2) that there was a violation
of s. 123 of the Representation of the People Act, 1951, in that the appellant
and his election agent made speeches, wherein they stated, that Congress had
not abolished cow slaughter in India and-that to vote for the Congress
therefore was to commit the sin of gohatya. The trial Judge of the High Court
allowed the petition on both the grounds.
In appeal to this Court under s. 116-A the
HELD: (1) The candidate whose nomination
paper was rejected was not registered as a voter in the Electoral Roll relating
to Khategaon constituency but to a different constituency. Under s. 33(5) of
the Act, he had to produce before the Returning Officer at the time of
scrutiny, a copy of the Electoral Roll of that constituency, or of the relevant
part thereof, or a certified copy of the relevant entry in such Roll, or should
have filed any of those documents earlier with his nomination paper. He did not
do any of these but instead, filed with his nomination paper a certificate
giving only a gist of an entry from the Electoral Roll of the other
constituency, and that too from an officer who was not proved to have the authority
to issue a certified copy of the Electoral Roll. The provisions of the section
were thus not complied with and the Court had no power to dispense with the
Therefore, the rejection of the nomination
paper of the candidate, by the Returning Officer, was justified and the trial
Judge erred in holding that it was wrongly rejected [501 F-H; 502 A-E] (2) By
stating that if the voters voted for congress they would be committing the sin
of gohatya, the appellant and his agent attempted to induce the voters to
believe that they would become objects of divine displeasure or spiritual
censure and thus committed an election offence under s. 123 of the Act. [506 G;
507 B] Since the witnesses who spoke about the speeches were believed by the
trial Judge not on the probabilities of the case, but, on his observation of
their demeanour this Court would be slow to depart from the trial Judge's
assessment of the evidence. According to that evidence, the voters were
reminded that they would be committing the sin of gohatya.
Since the cow is venerated in this Country
and it is also beleved that gohatya is one of the cardinal sins, such a
reminder would be equivalent to reminding them that they would be objects of
divine displeasure of spiritual censure.
The case therefore fell within s. 123(2)(ii)
and the 500 trial Judge was right in holding that the election of the returned
candidate should be set aside. [505 D-E; 506 H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2 of 1968.
Appeal under section 116-A of the
Representation of the People Act 1951 from the judgment and order dated
November 30, 1967 of the Madhya Pradesh High Court, Indore Bench in Election
Petition No. 5 of 1967.
S.V. Gupte, R.K. Vijayavargiya and S.S.
Khanduja, for the appellant.
V.K. Sanghi, G.L. Sanghi and/1. G.
Ratnaparkhi, for respondent No. 1.
The Judgment of the Court was delivered by
Hidayatullah, C.J. This is an appeal against the judgment, November 30, 1967,
of a learned Single Judge of the High Court of Madhya Pradesh at Indore setting
aside the election of the appellant to the Khategaon Legislative Assembly
Constituency No. 259. The facts on which the petition was based and the
judgment of the High Court has been rested, may now be stated.
At the last General Election to the Madhya
Pradesh Legislative Assembly from the Khategaon Constituency there were five
contesting candidates. They were the appellant and respondents 2 to 5. The
appellant received 9622 votes as against the second respondent who obtained
The other contesting candidates received
fewer votes in comparison. The present election petition was filed, not by any
of the defeated candidates, but by an elector to the Legislative Assembly
Constituency. In the array of the respondents in the High Court one Ram Kishen
s/o Lakshmi Narain Deswali was also joined because his nomination paper was
rejected by the Returning Officer. A point was made about this rejection in the
High Court and we shall come to it in due course.
The election petition was based on two broad
facts. The first was that the nomination paper of Ram Kishen was wrongly
rejected and the other fact comprised allegations of corrupt practices on the
part of the returned candidate and his election agent. These corrupt practices
consisted of oral speeches connected with the Manifesto of the Jan Sangh
relating to cow slaughter in India. During the course of the speeches, it was
alleged the returned candidate, who belongs to the Jan Sangh and his election
agent Ram Niwas Somani made speeches at 19 villages in which they referred to
this election manifesto and claimed that the Congress had not abolished cow
slaughter in India and on the other hand was promoting it and that the Jan
Sangh would stop cow slaughter. They added to these statements, which might
have been quite innocuous, two other statements, namely, that to vote for the
Congress was to commit the sin of gohatya and that the Congress candidate 501
Shrimati Manjulabai herself ate beef. There were other allegations regarding
exhibition of posters which depicted the Congress as a butcher intent upon
slaughtering a cow.
This part of the case however, was not
accepted in the High Court and we need not say anything about it. The petition
therefore succeeded on the two grounds which we have mentioned, namely, that
the nomination paper of Ram Kishen was wrongly rejected and that the corrupt
practice attributed to the Jan Sangh candidate and his election agent was
In this appeal we are only required to
consider these two points and we shall take them in the same order. In so far
as the rejection of the nomination paper is concerned it may be pointed out
that Ram Kishen s/o Lakshmi Narain Deswali was registered as a voter, not in
the Electoral Roll relating to Khategaon Tehsil but in the Harda Tehsil. Along
with this nomination paper Ram Kishen produced a certificate from the Tehsildar
of Harda which reads as follows :-- "I certify that there is an entry of
the name of Ram Kishan son of Laxmichand, village Dholgaon, at Anukaran No.
Harda 217, Electoral roll of 1966, part of Anukaran No. 177, District
Hoshangabad, Tehsil Harda, under the heading Ra-Ni-Ma, Serali, Serial No. 196,
House No. 91/2, with particulars Ramkishen Laxmi Chand, male, aged 45 years. 16-1-1967
Sd/- 16-1-1967 Tehsildar Harda." He did not produce the kind of evidence
which section 33(5) of the Representation of the People Act, 1951, requires to
be produced when a candidate is registered as a voter in some other
constituency. Section 33(5) of the Representation of the People Act requires
that where the candidate is an elector of a different constituency, a copy of
the electoral roll of that constituency or of the relevant part thereof or a
certified copy of the relevant entries in such roll shall, unless it has been
filed along with the nomination paper, be produced before the returning officer
at the time of scrutiny. The nomination paper of Ram Kishen was filed on
February 20, 1967. The date of scrutiny was 21st of the same month. Ram Kishen
had two alternatives before him. One was to produce any of the documents
mentioned before the returning officer or to have filed it earlier with his
nomination paper. He did neither.
He produced a certificate from an officer who
it is not proved to our satisfaction had the authority to issue a certified
copy of the electoral roll. He also added an affidavit on his own part in which
the gist of the entry was given. Indeed the certificate of the Tehsildar was
based on the affidavit which was annexed to the certificate. There was no compliance
with the provisions of s. 33(5) of the Representation of the People Act and
there was no power in the court to dispense with this requirement. It is a
well-understood rule of law that if a thing is to be done in a particular
manner it must be done in that manner or not at all, Other modes of compliance
are excluded. Even the certificate of the Tehsildar was not a certified or a
true copy of the entry.
It only gave the gist of the entry taken from
It contains a mistake because the village
"Dholgaon" is mentioned without the addition of the word 'Kalan'. It
appears that there are two villages, Dholgaon Kalan and Dholgaon Khurd. The
entry in the electoral roll clearly shows that it is Dhalgaon Kalan. In other
words the certificate was inaccurate. The affidavit of Ram Kishen was also
inaccurate inasmuch as it described the house as No. 91 whereas in Electoral
Roll the house is given them. number 91/2. We, however, do not go by these
small inaccuracies because again the law is that which can be made certain is
certain, but the fact is clear that the requirements of s. 33(5) had to be and
were not complied with. The rejection of the nomination paper of Ram Kishen by
the Returning Officer was' thus justified. Ram Kishen explained that he was running
about trying to get the other evidence and indeed he did arrive at 5 p.m.
having earlier sent a telegram that he was coming with the required evidence.
Unfortunately both the telegram and Ram
Kishen arrived after the rejection of the nomination paper and therefore the
Returning Officer could not recall what he had ordered. We are satisfied that
the learned Single Judge erred in holding that the nomination paper of Ram
Kishen was wrongly rejected. It was rightly rejected.
If the matter had rested there the appellant
would have been entitled to succeed, but there remains still the question of
corrupt practice. A great deal of argument was addressed to us on this subject
and we were taken through the evidence of all the witnesses who have deposed to
the corrupt practice on the part of the returned candidate and his election
agent. We are satisfied that the reading of this evidence by the learned Judge,
although sometimes strained, was clearly right and that the corrupt practice
had been brought home to the candidate and his election agent. Without going
too much into the details we shall scan that evidence once again to show that
this fact stood duly proved.
Out of the 19 villages at which speeches were
made the learned Judge selected two, for basing his conclusion and we shall
therefore confine ourselves to evidence relating to those villages. They are
Khategaon and Kannod. The speeches at Khategaon took place on the 11 th and at
Kannod on the 16th February. It appears that February 11, was a day of many
speeches. Earlier in the day the Congress held its own session to persuade the
voters to 503 vote for that party. The Chief Minister (D. P. Misra) addressed a
gathering of about 2000 persons. The speeches made at that meeting need not be
referred to here because they do not bear upon the present matter. The Jansangh
then followed and held its own meeting. Many spoke at that meeting including
the returned candidate, Narbada Prasad who also goes under the name of
Kinkarji. The election petitioner examined in this connection three witnesses
and also examined himself. These witnesses are Bulchand (P.W. 2), Babulal (P.W.
7) & Chandragopal (P.W. 15). The election petitioner is P.W. 17. It is
argued by the learned counsel for the appellant that the testimony of PWs. 2, 7
and 15 should not have been accepted because there were many discrepancies in
the versions of these witnesses as to what was said at the meeting. There are
also some arguments regarding the credibility of each of these witnesses and we
shall briefly refer to these two points now.
P.W. 2 Balchand stated that he had not gone
specifically to the meeting but that the meeting was thrust upon him. He had
gone on the 11th to the house of an ailing relative and was with him in the
evening when the meeting took place.
This meeting was held right opposite the
residence of his relative and he was therefore in a position to hear what was
said. He did say that he attended the meeting but he might well have being so
close to it although his explanation of how he happened to be there is
acceptable. He stated that Kinkarji was one of the speakers. Kinkarji
complained of the division of Kashmir and also that the Congress 'had increased
price level.' He stated further that to bring Hindu Raj, the voters must not vote
for Congress but cast their votes for the Jansangh. He added:
"In the Congress Raj thousands of cows
are cut every day. To vote to Congress is to take on your heads the sin of
Manjula Bai the Congress candidate herself
eats cow-flesh. You' should go away from here after swearing to yourselves that
you would not vote congress and bring on yourself the sin of gohatya." It
is convenient to compare what the other two witnesses said in this behalf P.W.
7's (Babulal) version was that Kinkarji "spoke of Kashmir, Pakistan and
said that 'the Congress-walas' did not get sugar or grain for them". He
"The congress men get thousands of cows
killed. Manjula Bai Wagle who stands on the congress ticket eats cow's flesh.
It is necessary to bring the Hindu Raj and so give vote to the deepak and make
it victorious. You better swear by the cow that you will not vote congress but
vote Jan Sangh. If you do not vote Jan Sangh you will be getting the sin of cow
killing." 504 The version of P.W. 15 (Chandergopal) was to this effect.
When he went there Kinkarji was speaking and said:
"The congress party is a hatyara party.
It gets thousands of cows and bulls killed. The candidate who stands against me
in this election is Manjula Bai set up by the congress and she eats cow's
flesh. I have been set up by the Jansangh for bringing the Hindu Rajya. To
bring it please vote on my deepak mark." A point is made by the learned
counsel for the appellant that since P.W. 15 does not speak of the sin of
gohatya, we should discount the evidence of the other two witnesses who have
exaggerated the whole story. He also contends that even if the words were used
about the sin of gohatya we should not give too much meaning to the word 'sin'
which bears different shades of meanings and the strongest meaning need not
necessarily be chosen. He also contends that this speech, even if it is
accepted from the version of P.W.s 2 and 7 did not amount to the kind of
corrupt practice which is made a ground for setting aside elections under s.
Whether we should believe the witnesses or
not involves how far we should enter into facts. No doubt, an appeal before
this Court under section 116A is an appeal as of right and is open both on
facts and law; still the practice of the courts has uniformly 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 re-assessment of the evidence. He must show wherein the
assessment has gone wrong. Where the court of first instance relies upon
probabilities alone, the appellate court may be in as good position as the
court of trail in judging of the probabilities; but where the court of trial
relies upon its own sense of the credibility of a witness the appellate court
is certainly at a disadvantage, because it has not before it the witness but
the dead record of the deposition as recorded. If it was a question only of the
probabilities of the case, we would have undoubtedly gone into the matter more
closely. The matter has however been put before us strictly on the ground of
credibility of the witnesses and it is there we feel that the appellate court
is at a disadvantage. This has been laid down both by this Court and the Privy
Council in cases which are quite familiar and need not be quoted.
Applying these tests, we go once again into
the submissions of the learned counsel for the appellant to see how far he has
been 505 able to prove to our satisfaction that the appraisal of the evidence
of these witnesses is such that we must reject the conclusion of' the learned
High Court Judge and substitute for it another conclusion. It is said about
P.W. 2 (Balchand) that he claimed that he was not interested in the Congress
but P.W. 11 Parasram stated that Balchand worked for the Congress. Learned
counsel submits that here at the very start we have a lie from the witness and
we should not therefore believe him. He further comments that P.W.2.
(Balchand) did not attend the meeting that he
only heard what was being said at the meeting, that he was an unsummoned
witness and did not go to Manjula Bai but went to Chaganlal the elector who had
no connection with the election and thus has shown considerable interest in the
success of the election petition. All these things were before the learned
Judge who tried the case. In spite of them he has chosen to draw an inference
from the testimony of these witnesses taken with the other material on the
record. In this connection it is pertinent to point out that the learned Judge
referred to the evidence of Tiwari P.W. 10 and Ramchandra Agrawal P.W. 13
(particularly the former) about whom he said that he was considerably impressed
by the way in which he deposed and it appeared to him that that witness was
speaking the truth. Where there is evidence which the Judge considers truthful not
on the probabilities of the case but because the Judge on his observation of
the manner in which the witness deposed, the appellate Court should be slow to
depart from the conclusion of the trial Judge. In this case Kunjilal Tiwari
P.W. 10 admitted that he was a member of the Jansangh. He further said that he
did not approve of the methods of the Jansangh in making such speeches and had
therefore come forward to depose truthfully as to what had happened. This
witness no doubt spoke' about Kannod but he lent assurance to the statements of
P.W.2 (Balchand), P.W. 7 (Babulal) and P.W. 15 (Chandergopal) about Khategaon.
The learned Judge although he examined the two, incidents separately, seemed to
have viewed the entire propaganda of Kinkarji as integrated and has drawn the
conclusion from both aspects of the case taken together. Therefore the case
comes to this, that the witnesses who spoke about the speech at Khategaon were
not unanimous as to the version of the speech, but that in our opinion is not a
circumstance of vital importance, because.
speeches were also made at Kannod in which
the returned candidate made similar observation about the sin of gohatya.
The witnesses here are P.W. 4. (Narsingh
Dass), P.W. 8 (Mazharul Haq) and P.W. 10 (K. L. Tiwari). We shall now refer to
what they stated. P.W 4 (Narsingh Das) stated that on February 16, 967 there
was a meeting in his village in front of Ramniwas Somani's house. This Somani
was the election agent of the returned candidate. At this meeting both Somani and
Kinkarji spoke. When he went there Kinkarji was speaking. This is the' version
which he gave of the speech.
506 "The congress gets cows killed so
you should not vote for congress, but you should put your stamp on the deepak
our emblem. If you still vote for Congress you shall get the sin of killing a
cow." P.W. 8 (Mazharul Haq) also said that Kinkarji recited some slokas
and when he came to the end of the speech he said:
"Congress gets cows killed. The congress
candidate Manjula Bai Wagle eats cow's flesh. We have to bring Hindu Raj; put
the seal on the deepak mark." P.W. 10's (Kunji Lal Tiwari) version was
that Kinkarji said that the Congress was getting the cows killed. Manjula Bai
should not be given any votes. If she was voted for there would be a sin. He
also spoke that the congressmen were doing blackmarketing.
It thus appears that at Kannod also there was
a repetition of the same kind of speech which the other witnesses stated had
been made at Khategaon. The question is do we believe these witnesses or not ?
In our judgment there is ample evidence in this case that there was a reference
to cow slaughter and the campaign of the Jan Sangh that cow slaughter should be
abolished in India. One cannot say that it is wrong to make such a propaganda.
It would be perfectly legitimate for any party to promise that if it came into
power it would abolish cow slaughter. That is not the gravamen of the charge.
The gravamen of the charge is that it was added that if the voters voted for
the Congress candidate, they would be guilty of the sin of gohatya and here the
law of election steps in. Section 123 provides that it is an election offence
of undue influence, that is to say, any 'direct or indirect interference or
attempt to interfere on the part of the candidate or his agent or of any other
person with the consent of the candidate or his election agent with the free
exercise of any electoral right when any such person, as is referred to
therein, induces or attempts to induce a candidate or an elector to believe that
he or any person in whom he is interested, will become or will be rendered an
object of divine displeasure or spiritual censure.
The question is whether in stating that if
they voted for the Congress or a Congress candidate, they would be committing
the sin of gohatya amounted to an attempt to induce the voters to believe that
they would become or would be rendered an object divine displeasure or
spiritual censure. In our opinion a statement of this kind falls within this
provision of the section. It is not necessary to enlarge upon the fact that cow
is venerated in our country by the vast majority of the people and that they
believe not only in its utility but its holiness. It is also believed that of
the cardinal sins is that of gohatya. Therefore it is quite obvious that to
remind the voters that they would be committing the sin of gohatya would be to.
remind them that they would be 507 objects of divine displeasure or spiritual
censure, Kinkarji went beyond the permitted limits of canvassing and exhortation
when he added to the legitimate manifesto of his party this observation that by
voting for the congress or the congress candidate the voters would be objects
of divine displeasure or spiritual censure. In our opinion both spiritual
censure and divine displeasure are implicit in the speeches as made. The case,
therefore, falls clearly within s. 123 (2)(ii) of the Representation of the
People Act, 1951.
It will be encumbering this judgment if we
record the incidents which relate to the election agent, except to say that the
election agent Somani made similar speeches and the fact has been well
established by reliable evidence. We are accordingly satisfied that the
returned candidate was guilty of corrupt practice and the High Court was right
in holding that the election of the returned candidate should be avoided.
We may point out that ,there was a further
statement that the congress candidate Manjula Bai ate beef. Manjula Bai did not
appear in the witness-box to deny this. In fact she showed little interest in
the election petition and is reported to have left the matter to the elector
who filed this petition. No one on her behalf appeared to deny this fact and
therefore we leave the matter there. We do not express any opinion that any
corrupt practice in relation to that statement was committed either in fact or
In the result the appeal must fail. It will
be dismissed with costs.