Guruji Shrihar Baliram Jivatode Vs.
Vithalrao & Ors [1968] INSC 281 (19 November 1968)
19/11/1968 HEGDE, K.S.
HEGDE, K.S.
MITTER, G.K.
CITATION: 1970 AIR 1841 1969 SCR (2) 766 1970
SCC (1) 82
CITATOR INFO :
R 1971 SC1262 (22) E 1973 SC 38 (10) R 1985 SC
89 (17) E 1990 SC1731 (8)
ACT:
Representation of the People Act, (43 of
1951) s.
123(4)--Object section--Corrupt practice as
defined in section, ingredients of.
HEADNOTE:
The appellant was the returned candidate from
the Rajura constituency Maharashtra State Legislative Assembly in the general
election held in February 1967. The first respondent who was one of the
defeated candidates challenged the appellant's election in an election
petition. The High Court held that the appellant had made false statements
about the personal character and conduct of the first respondent and was guilty
of corrupt practice within the meaning of s. 123(4) of the Representation of
the People Act, 1951. On this view the High Court allowed the election petition
and set aside the election of the appellant who appealed to this Court.
HELD: (i) The election law in this country as
in England guarantees freedom of criticism of political nature at the time of
election. The freedom of criticism may sometimes be misused, but the advantage
gained from free criticism--though sometimes it may turn out to be
irresponsible --in the long run outweighs the disadvantages.
It is in the interests of democracy that such
criticism should be allowed. However democracy will be a farce if interested
persons are allowed to freely indulge in character assassination during
election. A political party may not be affected by passing winds but a campaign
of slander against an individual is likely to create prejudice in the mind of
the people against him. Section 123(4) is designed to achieve the dual purpose
of protecting freedom of speech and prevention of malicious attack on the
personal character and conduct of rivals. [769 C] (b) The ingredients of the
corrupt practice mentioned in s. 123(4) are (1) the publication by a candidate
or his election agent or by any other person with the consent of that candidate
or his election agent of any statement of fact; (2) which statement is false
and which was believed by the candidate to be false or at any rate was not
believed by him to be true; (3) the said statement relates to the personal
character or conduct of a candidate or is in relation to his candidature or
withdrawal; and (4) the same being a statement reasonably calculated to
prejudice the prospects of that candidate's election. The burden of proving
'every one of the ingredients of the corrupt practice alleged is on him who
alleges it. [768 G; 77] (c) Every false allegation does not come within the
mischief of s. 123(4). The language of the section is 'any statement of fact
which is false' and that language must be used in contrast to a false statement
of opinion. The statement in question must be in relation to the personal
character of candidate. It is when the false allegation pierces the politician
and touches the person of the candidate that s. 123(4) is contravened. Further
one of the ingredients of the corrupt practice under the section is that the
statement complained of must be one reasonably calculated to prejudice the
prospects of the election of the person against whom it is' made. 'Calculated'
means designed: it denotes more than mere 767 likelihood and imports a design
to affect voters. The emphasis in the last limb of the section is not so much
on the intention of the publisher but on the probable effect on the election of
the candidate against whom those statements are directed. [769 F--G; 770 E]
(ii) In the present case the statements alleged to have been made by the
appellant did not amount to corrupt practice within the meaning of s. 123(4) as
they amounted either to fair political criticism or were mere expressions of
opinion. The complaint that the appellant had stated that the respondent had a
share in the profits earned by a contractor is neither alleged in the election
petition nor satisfactorily proved. [777 D, F] Sheopat Singh v. Ram Pratap,
[1965] t S.C.R. 175, T.K. Gangi Reddy M.C. Anjaneya Reddy & Ors., XXII
E.L.R.p. 266 and Dattatraya Narayan Patil v. Dattatraya Krishnaji Khenvikar
& Ors. A.I.R. 1964 Bom. 244, relied on.
Cumberland (Cockermouth Division) Case,
(1901) 50 M&H. 155, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1778 of 1967.
Appeal under s. 116-A of the Representation
of the People Act, 1951 from the judgment and order dated October 3, 1967 of the
Bombay High Court, Nagpur Bench in Election Petition No. 14 of 1967.
C.B. Agarwala and A.G. Ratnaparkhi, for the
appellant.
R.M. Hazarnavis, B.A. Masodkar, S. B. Wad,
V.D. Chetande and M.S. Gupta, for respondent No. 1.
The Judgment of the Court was delivered by
Hegde, J. The appellant is the returned candidate from the Rajura constituency
of the Maharashtra State Legislative Assembly in the general election held in
February 1967. In that election he secured 21,435 votes as against 17,521 votes
secured by his nearest rival, the first respondent herein, the nominee of the
Indian National Congress.
The first respondent was representing that
constituency prior to the said general election. The first respondent
challenged the validity of the appellant's election in Election Petition No. 14
of 1967 in the High Court of Judicature at Bombay (Nagpur Bench) on two grounds
namely (1) that the appellant was disqualified to be a candidate in that
election and (2) that he was guilty of corrupt practices under s. 123(4) of the
Representation of the People Act, 1951 (to be hereinafter referred to as the
Act).
The High Court allowed the petition and set
aside the election of the appellant on the ground that he was guilty of
publishing statements of facts which are false and which he either believed to
be false or did not believe them to be true, in relation to the personal
character and conduct of the first respondent. It did not uphold the contention
of the first respondent that the appellant was disqualified to be a candidate.
768 Though at one stage Mr. Hazarnavis,
learned Counsel for the first respondent attempted to support the judgment of
the trial court on the ground that the appellant was disqualified to be
candid.ate, he finally gave up that contention. Therefore it is no necessary to
examine the same.
The High Court has found that the appellant
was responsible for the publication of Exhs. 55 and 56 which ,according to
contained statements of facts relating to the personal character and conduct of
the first respondent and those statements were either false to his knowledge or
at any rate he did not believe them to be true. It further came to the
conclusion that in some of the election meetings the appellant had falsely
stated that the first respondent had a share in the contract secured by him for
Abid Hussain.
The bulk of the evidence adduced in this case
relates to the controversy whether the appellant was responsible for the
printing and publication of Exhs. 55 and 56. The High Court has accepted the
case of the first respondent that the appellant was responsible for printing
and publishing those pamphlets. We have been taken through that evidence and we
agree with the High Court on that aspect of the case. It is not necessary to
deal with that evidenced as we are of opinion that the statements contained in
those pamphlets do not amount to corrupt practice under s. 123 (4) of the Act
Section 123(4) reads:
"The publication by a candidate or his
agent or by any other person (with the consent of a candidate or his election
agent) of any statement of fact which is false, and which he either believes to
be false or does. not believe to be true in relation to the personal character
or conduct of any candidate, or in relation to the candidature or withdrawal of
any candidate, being a statement reasonably calculated to prejudice the
prospects of that candidate's election." The ingredients of the corrupt
practice mentioned in this section are (1 ) the publication by a candidate or
his election agent or by any other person with the consent of that candidate or
his election agent of any statement of fact; (2) which statement is false and
which was believed by the candidate to be false or a any rate was not believed
by him to be true; (3) the said statement relate to the personal character or
conduct of a candidate on in relation to his candidature or withdrawal and (4)
the same being a statement reasonably calculated to prejudice the prospects of
that candidate's election.
As explained by this Court in Sheopat Singh
v. Ram Pratap(1) s. 123(4) is designed to achieve the dual purpose of
protecting (1) [1965] 1 S.C.R. 175.
769 freedom of speech and prevention of
malicious attack on the personal character ,and conduct of rivals. A statement
which reflects on the mental or moral character of a person is one relating to
his personal character or conduct whereas any criticism of a person's political
or public activities and policies is outside it. Section 123 (4)further
requires that the candidate who made a false statement should have believed it
to be false or did not believe it to be rue and lastly it should be a statement
reasonably calculated to prejudice the prospects of the election of the
candidate against whom it was made. The word 'calculated' means designed: it
denotes more than mere likelihood and imports a design to affect voters.
The election law in this country as in
England guarantees freedom of criticism of political nature at the time of
election. It is true that the freedom of criticism given might be sometime misused.
The political history of even countries like England shows that sensational
false election propaganda against a political party, particularly on the eve of
election might upset the party's electoral fortune. But the advantage gained
from free criticism --though sometimes it may turn out to be irresponsible--in
the long run outweighs the disadvantages. It is in the interest of democracy
that such criticism should be allowed. This is the view of political thinkers.
A political party's reputation is not built on shifting sands.
It has, at any rate, it should have, firmer
foundation and should not be affected by passing winds. But in the case of
individuals a different approach is necessary. A campaign of slander is likely
to create prejudice in the mind of the people against him. It cannot be put
down as cynicism when it is sometimes said that the bigger the lie the greater
is the chance of its being accepted as true. There is unfortunately a tendency
in the minds of the unwary public to believe the worst about individuals.
Democracy will be a farce if interested persons are allowed to freely indulge
in character assassination during election. Section 123(4) as we understand it
embodies the two principles discussed above. Every false allegation does not come
within the mischief of s. 123(4). When any false allegation of fact pierce the
politician and touches the person of the candidate then s. 123(4) is
contravened.
Dealing with the meaning of the expression
'personal character and conduct' found in s. 123(4) Subba Rao J.
speaking for the Court in T.K. Gangi Reddyv.
M.C. Anjaneya Reddy and Ors.(1) observed at p. 266 of the report:
"the words 'personal character or
conduct' are so clear that they do not require further elucidation or
definition. The character of a person may ordinarily (1) XXH, E.L.R. p. 266.
770 be equated with his mental or moral
nature. Conduct connotes a person's actions or behaviour." Dealing with a
provision similar to s. 123(4) Darling J., Cumberland (Cockermouth Division)
case(x) observed:
"What the Act forbids is this. You shall
not make or publish any false statement of fact in relation to the personal
character or conduct of such candidate; if you do, it is an illegal practice.
It is not an offence to say something which may be severe about another person
nor which may be unjustifiable nor which may be derogatory unless it amounts to
a false statement of fact in relation to the personal character or conduct of
such candidate; and I think the Act says that there is a great distinction to
be drawn between a false statement of fact which affects the personal character
or conduct of a candidate and a false statement of fact which deals with the
political position or reputation or action of the candidate. If that were not
kept in mind, this statute would simply have prohibited at election times all
sorts of criticism which was not strictly true relating to the political
behaviour and opinions of the candidate. That is why it carefully provides that
the false statement, in order to be an illegal practice, must relate to the
personal character and personal conduct." The language of s. 123 (4) is
'any statement of fact which is false', and that language must be used in
contrast to a false statement of opinion. The language used is not merely a
'false statement' .but a 'statement of fact which is false'. The statement in
question must be in relation to the personal character or conduct of a
candidate, which means a false statement of fact bearing on the personal
character or conduct of a candidate. Further one of the ingredients of the
corrupt practice under s. 123 (4) is that the statement complained of must be
one reasonably calculated to prejudice the prospects of the election of the
person against whom it is made. It may be noted that the section does not
merely say 'being a statement calculated to prejudice the prospects of the
candidate's election' but on the other hand it says 'being a statement
reasonably calculated to prejudice the prospects of that candidate's election'.
The meaning of that expression is as held by a Division Bench of the Bombay
High Court in Dattatraya Narayan Patil v. Dattatraya Krishnaji Khenvikar and
Ors.(2) that the publication of false statement of fact relating to the
personal character or conduct must be such as would, in the estimation of the
Court, having regard to the nature of the publication, the evidence ten- (1)
(1901) 5, O'M & H.p. 155.
(2) A.I R. 1964 Bom. 224.
771 dered in Court and the surrounding
circumstances have its natural and probable consequence of prejudicing the
prospects of the candidate relating to whose personal character or conduct the
publication has been made. So far as the last limb of s. 123(4) is concerned,
the emphasis is not so much on the intention of the publisher but on the probable
effect on the election of the candidate against whom those statements are
directed.
It is trite to say that the burden of proving
everyone of the ingredients of the corrupt practice alleged is on him who
alleges it. If he fails to establish any one of them to the satisfaction of the
Court he must fail.
We shall now proceed to consider whether the
statements of facts contained in Exhs. 55 and 56 fall within the mischief of s.
123(4). Before doing so it is necessary to give the background under which the
statements complained of were made. As mentioned earlier the first respondent
was representing the constituency in question prior to the general election in
1967. Sometime before the election the cultivators in the Rajura constituency
as in other places were required to deliver to the Government a portion of the
juwar crop raised by them in pursuance of the levy orders made. This
circumstance must have undoubtedly caused dissatisfaction to the rooting.
Rajura Taluka was previously a part of the Nizam's State and thereafter the
State of Hyderabad till the formation of the Maharashtra State. We understand
that in that Taluka, the boundary stones had not been fixed. The State of
Maharashtra 'appears to have directed the landowners to fix the necessary boundary
stones for their property within a certain period. As some of them did not
comply with that direction, the., Government took upon itself the
responsibility of fixing those boundary stones at the cost of those ryots. That
work was given on contract to one Abid Hussain. It was suggested that charges
fixed were excessive. It may be mentioned at this. stage that during the time
when the juwar levy was imposed and the contract for fixing the boundary stones
was given (as also at present ), the Congress Party was in power in the State
of Maharashtra. The first respondent was a Congress M.L.A. In the past tolls
were levied on every vehicle entering the municipal limits of Rajura but some
years before the election that levy had been .abolished but the same was again
reimposed sometimes before the election At the time of the reimposition of that
levy Shri Shankarrao Deshmukh, a Congressman was the Chairman of the Rajura
Municipality.
Having mentioned these facts we shall now
proceed to examine the statements in Exhts. 55 and 56.
Erda. 55 is a Marathi poem composed by the
appellant's election agent Dr. Suresh Vishvanathrao Upaganlawer (R.W.
3). Its English rendering is as follows:
772 "Request to Voters.
Rise Rise Oh Voters Awake at least now
Understand and begin to work.
You have suffered for five years, auspicious
day has dawned now, truthful to your conscience, wake to vote, Oh brothers wake
to vote.
Today kick off (this) slavery in the freedom
(and) you should expose; you should expose the sins of Vithalrao.
He held out to be the leader of the people
(but) he put burden of stones (on the people) By those very stones (you) build
his grave, brothers build his grave.
For recovery of levy (from us) unlimited
force used against us.
They take white juwar and give red millow (to
us) and now confront him (with this).
Today our luck has dawned (in that) we got a
great leader.
For protecting the interests of poor people
see this Guruji has taken an Avatar.
(His) name is Jivtode Shrihari, has responded
to our immediate call.
By giving your invaluable vote.
To Jivtode and Kaushik Pleader, Elect them
this time.
Take vow like Bhishma and begin working today
brothers.
begin working today, Seeing Lion Symbol, by
affixing rubber stamp on it We will show to the world, Brother we will show our
candidates that success garlands (him.)" Exh. 56 is a pamphlet published
in Marathi. It purports to be an appeal by one Ganpat Patil Dhote. The English
translation of it is found at p. 563-565 of.the paper-book.
It reads thus:
VOTERS BE CAREFUL In the forthcoming General
Elections the sitting M.L.A. Shri Vithalrao Dhote is standing for Maharashtra
Legislative Assembly on behalf of Congress. The poor people have had experience
of Shri Vithalrao Dhote as M.L.A.
773 Having been elected in the 1St General
Elections Shri Vithalrao Dhote would work for the benefit, of the people and
develop the backward Rajura Taluka was our expectation.
But the People of Rajura Taluka have been
utterly disappointed by Shri Vithalrao Dhote. In the this Taluka the High
School which was there in the times of Nizam the High School is there in whole
of Rajura Taluka till to-day.
Shri Vithalrao Dhote could not construct a
Single Pucca Road. Could not supply electricity to any village anywhere.
Could not make arrangements for watering
agriculture. In this Taluka though there is thousands of acres of fallow land,
for distributing it to landless no effort was made by Shri Vithalrao Dhote. In
the last five years no work for the benefit of the people has been done by
Vithalrao Dhote.
On the contrary, through his selfish and
fraudulent companion Shri Shankarrao Deshmukh, the Municipal President of
Rajura (he got) imposed the stopped toll tax on the bullock cart (Rengi and
Bandi) of poor people coming to Rajura. Its effect has been surely felt by
every poor man in the Taluka. Similarly by fixing boundary stones on the Dhuras
of the cultivators in Rajura Taluka and by recovering price of stones Shri
Vithalrao Dhote has worked for the benefit of Abid Husain Thekedar alone. In
this taluka the cultivators could not get Taccavi loans without giving bribe at
the time of distributing taccavi, Shri Vithalrao Dhote could not check bribery.
Shri Vithalrao Dhote has neglected the poor people by looking to the interests
of Thekedar (contractor) alone. By this, poor people have lost all faith in
Shri Vithalrao Dhote in Rajura Taluka. By this the poor people are very much
harassed.
When I myself moved in the villages in this
Taluka, I found that public opinion is inclined against Shri Vithalrao Dhote.
People are organised as Shri Vithalrao Dhote
has harassed the poorer for furthering interests of his selfish and deceitful
companion. Because of this and with great reluctance and keeping interests of
public in view I am publishing this pamphlet against Amdar Vithalrao Dhote to
keep the true facts before the public. The man who is proving dangerous to the
majority in the Society and poorer section of the public has to be pulled down
from his office (and) except this, there is no other way is' my belief.
Hence I humbly request the voters in Rajura
Constituency that they should not vote for the Congress candi- 774 date Shri
Vithalrao Dhote. Contesting candidate from Rajura Constituency Shri Jivatode
Guruji has 'worked for spread of Education by opening Janata High Schools. Shri
Jiotode Guruji has benefited the poor people by opening all kinds of colleges
of Chanda. "Shri Jiotode Guruji" will bring about the development of
backward Rajura Taluka positively.
Hence by putting a cross on the Lion Symbol
of Vidarbha Joint Front's Shri Jiotode Guruji, Shri Jiotode Guruji be elected
by a large majority is my humble and earnest request to the voters.
yours humbly Symbol of Lion Ganpat Patil
Dhote Put Cross only on Lion.
-------------------------------------------------------------
In small type Publish: Ganpat Patil (Shivshakti of Chote r/o Nimani T. Rajura
Chandrapur).
-------------------------------------------------------------
The various statements contained in these two pamphlets are summarised by the
learned Trial Judge thus:
"(a) (The Petitioner) has imposed the
toll tax on poor citizens on their bullock carts through his selfish and bogus
companion Shri Shankarrao Deshmukh, President of Rajura Municipality, which has
caused undue suffering to every poor citizen residing in this part.
(b) Vithalrao Dhote has only secured
advantage for Abid Husain, Contractor, by imposing the burden of paying for the
border stones which were compulsorily ordered to be fixed.
(c) In this taluq no cultivator has been able
to get taccavi without payment of bribe 'and Vithalrao is unable to prevent it.
(d) Vithalrao Dhote has solely protected the
interest of the contractor and neglected the poor citizens and on that account
Vithalrao Dhote has forfeited confidence of poor persons in Rajura taluq.
(e) The poor population is simply harassed
and I have found that the inclination of the people is against Vithalrao Dhote
when I went around in the village.
(f) Poor persons are simply harassed on
account of exploitation and ruin caused by Vithalrao Dhote solely for the
benefit of his selfish and bogus companions.
775 (g) Persons (meaning the petitioner) who
is a menace W the majority of the community and poor persons must be sacked
from the office in my firm conviction." None of the afore-mentioned
allegations can be hold to relate to the personal character or conduct of the
first respondent. They are undoubtedly criticism, true, false or exaggerated,
of the first respondent's roll as politician.
Those statements do not make any reflection
on the moral or mental qualities of the first respondent. As mentioned earlier
a Congressman was the President of the Rajura Municipality 'at the time the
tolls were reimposed. It may be that the first respondent had no hand in the
matter of reimposition of the tolls and that the accusation that he got it
reimposed is not true but that in no manner can be said to reflect on the
personal character or conduct of the first respondent. Similarly the accusation
that the first respondent secured advantage for Abid Hussein by imposing a
burden on the land owners by making them pay for the boundary stones cannot be
said to reflect on the private character of the first respondent whether the
statement in question is true or false. The appellant had a right to hold the
first respondent responsible for the actions of the Government as he was a
member of the party in power. The allegation that in the Rajura Taluka no
cultivator had been able to get Taccavi loans without payment of bribe and that
the first respondent was unable to prevent it, is undoubtedly a legitimate
criticism. The allegation that he solely protected the interests of the
contractor and ignored that of the poor citizens and on that account he has
forfeited the confidence of the poor persons in his constituency is an
expression of an opinion, whether the same is true or not. The allegation that
the poor population is simply harassed and that the signatory to the pamphlet
found that the inclination of the people is against the first respondent when
he went around in the village, is merely an opinion and not a statement of
fact.
Similarly the allegation that the poor
persons are being harassed on account of the exploitation and ruin caused by
the first respondent solely for the benefit of his selfish and bogus companions
is an expression of an opinion and it is a permissible criticism in a political
debate. The assertion that the first respondent is a menace to the majority as
also to the poor and therefore he must be sacked from the office is as stated
in the pamphlet itself is purported to be the conviction of the person who
issued the statement. He is entitled to hold that opinion and propagate it. It
must be remembered that during election time passions are roused; election
propaganda should not be tested by the standards to be adopted in a debate
carried on by intellectuals. It may be that many of the charges levelled
against a candidate as regards his political past or about his capacity to be a
useful representative 776 are not true. It is for the electorate 'to judge
those accusations. So long as those accusations do not affect the personal
character or conduct of the candidate, the election law will not take note of
it. That is why it is said that a politician must be thick skinned and more so
at election time. As mentioned earlier it is not a corrupt practice to say
something which may be severe about another person, nor which may be
unjustifiable nor which may be derogatory unless it amounts to a false
statement of fact in relation to his personal character or conduct.
It is unfortunate that the High Court
exclusively focussed its attention on the question whether or not the appellant
caused to get Exhs. 55 and 56 printed and published and completely ignored the
true effect of the statements contained therein. It proceeded on the erroneous
impression that every false or unjustified criticism of a candidate amounts to
a contravention of s. 123(4). Dealing with Exhs. 55 and 56 this is what the
learned Trial Judge observed:
"To say against anybody that he is
responsible for imposition of a tax without' justification through. that
person's selfish and pretentious friend like the President of the Municipal
Council is, to say the least, to suggest that such person is the direct cause
of 'harassment on account of such taxation on poor people. It is said in the
third paragraph of the pamphlet and then there is a direct allegation against
the petitioner that it is the petitioner who caused the cultivators in the
Rajura taluq to be burdened with. the expense of fixing. the border stones and
that in doing so the petitioner Vithalrao Dhote has solely secured an advance
for Abid Hussain Thekedar. In the fourth paragraph, it is categorically alleged
that the petitioner Vithalrao Dhote has exploited and harassed poor people in
order to benefit his i.e.
Vithalrao selfish and pretentious friends and
such harassment has caused untold miseries.
That these allegations are scurrilous does
not admit of any doubt. They are defamatory per se. Every citizen is entitled
to be presumed to be innocent until contrary is proved. If therefore an
allegation of a personal character is made against anyone, it is the maker of
the allegation who has to establish that there is truth in the
allegation." It is clear that the High Court failed to examine the effect
of the statements contained in Exhs. 55 and 56 by the tests prescribed in s.
123(4). Further there is no proof in this case that the statements contained in
Exhs. 55 and 56 are reasonably calculated to prejudice the election of the
respondent. The Trial Court did not give any finding effect.
777 This leaves us with the question whether
the appellant had announced in his election meetings that the first respondent
had a share in the profits earned by Abid Hussain in the matter of fixing
boundary stones. The High Court has held that the-appellant made that
accusation while 'addressing election meetings at two places. If that finding
is correct then undoubtedly there is a contravention of s. 123(4) but after
carefully examining the material on record we have come to the conclusion that
finding is unsustainable.
The election petition was filed on April 11,
1967. That petition merely sets out what according to the petitioner are the
contents of Exts. 55 and 56. It is not stated therein that apart from the
statements contained in those pamphlets any other false statement of fact
relating to the personal character or conduct of the first respondent had been
made either by the appellant or his supporters.
The allegation that the appellant in his
election meetings had stated that the first respondent had a share in the
profits earned by Abid Hussain in the matter of fixing the boundary stone is
not mentioned there. An application to amend the election petition was made on
June 24, 1967. In that application also there is no reference to the allegation
in question. The election petition was again amended on 3-7-1967. It was only
then the following allegation was made:
"He (the appellant) was falsely alleging
that the petitioner was or had actively helped Abid Hussain for his selfish
ends to make illegal gains and thus allege false corrupt motives to him."
Even this allegation is vague. That apart it is a highly belated allegation. It
appears to be an afterthought. It is not necessary for us to decide in this
case whether such an amendment could have been permitted after the limitation
for filing the election petition had expired. But the very circumstance that
the allegation in question was made several months after the election petition
was filed by itself casts serious doubt on the veracity of that allegation.
This circumstance was completely overlooked by the High Court.
The witnesses who spoke in support of the
said allegation are the first respondent (P.W. 2), P.W. 9, Arjan Kashinath
Masirkar and P.W. 12, Nazir Hussain Akbar Ali. So far as P.W. 2 is concerned he
is undoubtedly an interested witness. In the circumstances mentioned above, his
evidence can have very little persuasive value. So far as P.W. 9 is concerned
on his own showing he was highly interested in the first respondent and the
Congress Party. As elicited during his cross examination he was a Congress
candid.ate for election as Sarpanch and as a member of the Panchayat Samiti.
The appellant's cousin was his rival in that election. Admittedly during the
last election he canvassed for the 778 first respondent. Under these
circumstances much reliance cannot be placed on the testimony of this witness.
Then we come to the evidence of P.W. 12. During his cross- examination this is
what he stated:
"I have not received a summons.
Vithalrao had asked me to produce the
register where the hire of cycles is noted and that is how the chits which I
have filed came with the register ....." His evidence is to the effect
that the appellant while presiding over the meeting at Rajura on February 13,
1967 stated that the first respondent had a share in the contract for fixing of
border stones which was produced for him by Vithalrao. When he was cross examined
about that meeting this is what he stated:
"I don't remember who was the President
of the meeting. I will' not be able to name at this distance of time the names
of persons from the town or the villagers who were listening at the meeting. I
will not be able to name a single person from amongst these." Obviously he
is a procured witness. No reliance can be placed on his evidence.
For the reasons mentioned above we hold that
the election petitioner (first respondent herein ) has failed to make out that
the appellant had contravened s. 123(4). Hence this appeal succeeds and the
election petition stands dismissed. We are of opinion that we should not award
any costs to the appellant. He had come forward with a false case and had
protracted the trial of the case by adducing voluminous false evidence. Hence
we direct the parties to bear their own costs both in this Court as weld as in
the High Court.
G.C. " Appeal allowed.
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