B.P. Maurya Vs. Prakash Vir Shastri
& Ors  INSC 180 (14 August 1969)
14/08/1969 RAY, A.N.
CITATION: 1970 AIR 522 1970 SCR (1) 894 1969
SCC (2) 634
Representation of the People Act, 1951, s.
123(3)(3A) & (4)-- Corrupt practice--Allegations against "personal
character and conduct".
The appellant challenged the election of the
respondent on the ground that the respondent committed various corrupt
practices including that of publication of false statements in relation to the
personal character of the appellant. The High Court held the allegations not
proved. Dismissing the appeal,
HELD: The provisions contained in sub-s. (4)
of s. 123 are traveled when "any false allegation of fact pierces the
politician and touches the person of the candidate". It is the personal
character and conduct of the candidate which is to. be protected from malicious
or false attacks. The words "personal character and conduct" are to
be equated with mental or moral nature and the word "conduct"
connotes a person's actions and behavior. The statement in question has to be
first a false statement bearing on the personal character and conduct of the
candidate. and secondly, the statement complained of must be one which is
reasonably calculated to. prejudice the prospects of the election of the
person. [903 H] T.K. Gangi Reddy v.M.C. Anjaneya Reddy,  1 S.C.R.
175, reference to.
The electorate at the time of the election
has to be kept in the forefront in judging whether a publication can be said to
offend the provisions relating to corrupt practices. The Court is to ascertain
whether the statement is reasonably calculated to prejudice the prospects of
the candidate's election. In reading the documents it would be unrealistic to
ignore that when appeals are made by candidate there is an element of partisan
feeling and there is extravagance of expression in attacking one another and it
would be unreasonable to ignore the question as to what the effect of the
pamphlet would be on the mind of the ordinary voter who reads the pamphlet.
[905 D] Kultar Singh v. Mukhtiar Singh,  7 S..C.R. 790, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1573 of 1968.
Appeal under s. 116-A of the Representation
of the People Act, 1951 from the judgment and order dated April 12, 1968 of the
Allahabad High Court in Election Petition No. 19 of 1967.
The appellant appeared in person.
L.M. Singhvi, Veda Vyasa, Rishi Ram,
Bishambhar Lal, H.K. Puri, U.P. Singh and K.K. Jain for respondent No. 1.
The Judgment of the Court was delivered by
Ray, J. This is an appeal against the judgment and order of the High Court at
Allahabad dated 12 April, 1968 dismissing the election petition filed by the
895 The appellant contested the General Election
to the Lok Sabha from Hapur Parliamentary Constituency in the year 1967. There
were seven rival candidates numbered respondents 1 to 7. The appellant
contested the election on the ticket of the Republican Party. He was then a
sitting member of Parliament. Among the rival candidates, Prakash Vir Shastri
was an independent candidate. The election symbol of the appellant was elephant
and the election symbol of Prakash Vir Shastri was lion. Prakash Vir Shastri
secured 1,49,943 votes while the appellant secured 1,01,875 votes.
The Swatantra candidate Sri Naseem secured
34,274 votes. The Congress candidate respondent Smt. Kamla Chaudhury secured
33,988 votes. The appellant challenged the election on grounds of corrupt
practices as mentioned in sub-sections (2), (3) and (4) of the Representation
of the People Act, 1951 (hereinafter referred to as the Act).
At the hearing of the appeal the appellant
appeared in person after counsel on his behalf had obtained leave of this Court
to withdraw and to allow the appellant to appear in person.
The various corrupt practices on which the
appellant relied relate to occurrences at six places. The appellant did not
press the other occurrences. The first occurrence relates to. a meeting held at
the Town Hall Maidan at Hapur on 7 February, 1967. The appellant alleged that
at the Hapur meeting respondent Prakash Vir Shastri and his supporters
delivered inflammatory speeches against the appellant and thereafter the said
respondent Shastri's supporters entered the office of the Republican Party, to
which the appellant belonged, assaulted the workers of the appellant, tore
posters, abused the appellant and threatened his workers. In support of the
allegations the appellant relied on Exhibit 28 the news report in the
'Hindustan' published on 8 February, 1967 and also on Exhibit 23 the' news.
report in the newspaper named 'Vir Arjun' published on 8 February, 1967 and
exhibit 22 being the editorial in the Vir Arjun published on 7 February, 1967.
The newspaper report in the 'Hindustan' Exhibit 28 published on 8 February,
1967 contains the note of the correspondent from Hapur bearing the date 7
February, 1967 stating that a big meeting was held in support of respondent
Shastri Lok Sabha candidate from Hapur-Ghaziabad Constituency. In the 'Vir
Arjun' dated 8 February, 1967 Exhibit 23 it is stated that the supporters of
the Republican Party were raising slogans that they were championing the cause
of Harijans and Muslim youths from Aligarh University were brought for that
purpose. It was also stated in the said newspaper that Muslim students of
Aligarh were raising the slogans "Harijan Muslim are brothers and where
from Hindu community has come.
Black face be of Brahmin, barbar and lala.
Throw shoes on Bhat, Gujar and Rajput". The appellant in paragraph 11
L15SupCI/69 -13 896 Of the petition further alleged that respondent Shastri was
associated with the 'Vir Arjun' and K. Narendra, Editor of Vir Arjun who was a
colleague of respondent Shastri wrote an editorial by way of an appeal to support
the candidature of respondent Shastri in that newspaper on 7 February, 1967
Exhibit 22 and the said appeal was also an instance of corrupt practice. The
further allegations in the petition were that at the meeting which was held at
the Town Hail Maidan at Hapur on 7 February, 1967 respondent Shastri and the
said K. Narendra, Editor of Vir Arjun delivered inflammatory speeches.
The appellant generally impeached the
judgment of the High Court on two grounds. First, that there was no discussion
of the entire evidence and, secondly, that there was rejection of the evidence
on behalf of the appellant on consideration that the appellant's witnesses
belonged to particular castes and sects.
The criticism on behalf of the appellant with
regard to Hapur meeting was that respondent Shastri in answer to the petition
did not state that there was a meeting on 6 February, 1967 and thereby the
appellant was denied the opportunity of meeting that case. The appellant relied
on the decision of this Court in Badat & Company v. E. I. Trading(1) and
the observations appearing at page 547 of the report in support of the
contention that under the provisions of the Code of Civil Procedure 'and, in
particular, the provisions contained in Order VIII of the Code, respondent
Shastri should have alleged in the pleadings that the meeting was held on 6
February, 1967 and in the absence of such allegations respondent Shastri should
not have been allowed to make that case. The decision of this Court is of no
aid to the appellant. In the case of Badat & Company(1) the question was
whether there was a contract between the parties and it was alleged by the
plaintiff with reference to two letters that the letters would indicate some of
the terms of the transaction. The defendant in the written statement did not
specifically deny the said two letters. This Court observed that a mere denial
of the contract was not sufficient and the rules of the Code enjoined denial of
the existence of the letters. In the present case, the question was whether a meeting
was held at Hapur Town Hail Maidan on 7 February, 1967. The respondent denied
such a meeting. The respondent was not called upon to state as to whether there
was a meeting on 6 February, 1967.
The news item in the newspaper 'Hindustan'
Exhibit 28 gave news from Hapur under the date 7 February, 1967 that a meeting
was held at Hapur. Exhibit 23 was a news item in the newspaper 'Vir Arjun'
under the date 7 February, 1967 that Shri Narendra, Editor of Vir Arjun spoke
at an election meeting 'at Hapur. Neither (1)  4 S.C.R. 19 :A.I.R. 1964
897 the Vir Arjun news item dated 7 February,
1967 nor the news item appearing under the date 7 February, 1967 Hapur
published in the Hindustan on 8 February, 1967 contains any intrinsic evidence
that a meeting was held at Hapur on 7 February, 1967.
Further, of the witnesses on behalf of the
appellant P.W. 25 Bal Kishan spoke of the meeting at the Hapur Town Hall Maidan
on 7 February, 1967 and he also stated that three pamphlets were distributed
and two issues of newspapers were also distributed, namely, the Vir Arjun and
Pratap. No such pamphlet was produced. The two witnesses on behalf of
respondent Shastri, Bhagwati Prasad Jain D.W. 16 and Rameshwar Prasad Goel D.W.
18 said that a Congress election meeting was held at the Town Hall Maidan,
Hapur and no election meeting was held in support of respondent Shastri at the
Town Hall Maidan, Hapur on 7 February, 1967.
With regard to the meeting at the Town Hail
Maidan at Hapur 'alleged by the appellant to have been held on 7 February,
1967, the oral evidence on behalf of the appellant is that the meeting was held
and the oral evidence on behalf of the respondent is that the meeting was not
held. In the case of conflicting oral testimony it is safer to place reliance
on documentary evidence. First, the newspaper report on which the appellant
relies contained intrinsic evidence which totally nullifies the appellant's
Exhibit 28 being the 'Hindustan' dated 8
February, 1967 indicates the news about Hapur under the date 7 February, 1967
that a meeting was held "yesterday night" meaning thereby 6 February,
1967, in support of respondent Prakash Vir Shastri. Secondly, the newspaper
'Vir Arjun' published on 8 February, 1967 gave the news at Hapur under the date
7 February, 1967. The news referred to an election meeting at Hapur but did not
mention that the meeting was held on 7 February or on 6 February., 1967.
Thirdly, Exhibit A-12 which is an application by one Lakhi Ram seeking
permission from the Municipal Board for holding a meeting on 7 February, 1967
in the Town Hall Maidan, Hapur throws light on this aspect. The permission
given by the authorities which is marked Exhibit A-13 required the persons
holding the meeting to pay certain charges towards the use of the electricity.
Exhibit A-14 is a receipt for payment of Rs. 5. These three documents indicate
that the meeting which was held on 7 February, 1967 was a meeting organised by
the supporters of the Congress Party. Fourthly, Exhibit A-2 which is a General
Diary of Thana Hapur bearing the date 7 February, 1967 shows that a constable
was sent to the Town Hall Maidan to make arrangements in connection with the
meeting which was to be 'addressed by one Kailash Prakash.
The witnesses on behalf of the respondent Shastri
mentioned the name of Kailash Prakash and Smt. Kamla Chaudhury as speakers on
behalf of the Congress candidate. It is highly improbable that two meetings of
898 the two rival candidates, namely of the Congress and of the respondent
Prakash Vir Shastri would both be held on the same date and at the same place.
Fifthly, the reports which were lodged by the supporters of the appellant with
regard to the attack on the office of the Republican Party on 7 February, 1967
do not mention or refer at all to any meeting on behalf of respondent Prakash
Vir Shastri on 7 February, 1967 at the Town Hall Maidan, Hapur. It would be
natural if a meeting had been held on 7 February, 1967 that there would have
been reference to the same.
The other allegations of the appellant were
that respondent Shastri's supporters on 7 February, 1967 attacked the office of
the Republican Party, to which the appellant belonged. There was the First
Information Report dated 7 February, 1967 about the attack on the office of the
Republican Party. This report is significantly silent about any meeting having
been held on 7 February, 1967 at Hapur Town Hall Maidan. Though there was the
alleged complaint about the attack on the office of the Republican Party, it
appears that there was no investigation. The attack on the party office was not
proved by the appellant to have been made by respondent Shastri's workers and
supporters. The High Court correctly came to the conclusion that no meeting was
held at Hapur on 7 February, 1967 and there was no attack on the office of the
With regard to. the 'attack on the office of
the Republican Party to which the appellant belonged though the first
information report gave the news about the art, ok it is strange that there was
no investigation. The report of the Joint Secretary of the Republican Party to
the President of the Republican Party bearing the date 8 February, 1967 alleged
that the supporters of Prakash Vir Shastri attacked the office of the
Republican Party on 7 February, 1967, forcibly took necessary papers and a flag
of the Party. Dal Chand Nimesh, Joint Secretary of the Republican Party, P.W.
71 in his evidence stated that none of the processions went to his office and
further he hid himself in an adjoining room. He did not prove the truth of the
statements contained in his report which was marked as Exhibit 11. The attack
on the office of the Republican Party was not mentioned at all either in the
Vir Arjun of 8 February, 1967 or in the Hindustan dated 8 February, 1967.
It is obvious that if in fact any attack had
been made on the office of the Republican Party, the supporters of the
appellant would have taken steps for investigation and publication.
The second occurrence on which the appellant
alleged to have happened at a place called
Nagola. The appellant's case was that on 18 February, 1967, Prakash Vir Shastri
and his 899 supporters who were mostly Tyagi by caste asked the Tyagis to stop
the Jatav voters from going to the polling station to cast their votes. It was
alleged that Thawariya made the announcement by beat of drums that the Muslim,
Chamar, Bhangi and Jatav voters would not be allowed to go to the polling
station to cast their votes. The other part of the appellant's case about the
Nagola incident was that there was an assault on Shamshad Elahi, a worker of
the appellant. The appellant relied on the oral testimony of PW. 11, P.W. 12,
P.W. 15, P.W. 16, P.W. 17, P.W. 19, P.W. 23, P.W. 65 and P.W. 80. The witnesses
on behalf of the respondent were D.W. 4, D.W. 12, D.W. 13, D.W. 30 'and D.W.
33. The oral evidence is in support of the rival contentions, namely, that the
Jatav voters would not be allowed to vote and the denial of the same by the
respondent. The appellant also lied on Exhibit N that the Jatav voters would
not be allowed to cast their votes by the Tyagis.
In support of the case with regard to assault
on Shamshad Elahi the appellant relied on the oral evidence of Shamshad Elahi
P.W. 11 and the injury report Exhibit 30 and other documents, namely, Exhibits
31, 32 and 35. The 'appellant criticised the judgment by contending that there
was no discussion of the oral evidence of P.W. 17, Satya Pal Malik. P.W. 11,
Shamshad Elahi said that he went to Nagola at about 3.30 p.m. on 19 February,
1967, the date of the election and the voters told him about the proclamation
by beat of drums on the previous night and the voters further said that they
would be insulted and they should remain there. Shamshad Elahi further said
that he met Sevak Ram and Surajbhan Tyagi and 10 or 12 other persons were with
them and they beat the witness with lathis and he received a number of
The other witnesses on whose testimony the
appellant relied said that people wearing lion badges which was the election
symbol of Prakash Vir Shastri asked the witnesses not to cast their votes and
they also said that it was announced by beat of drums that no Chamar or Bhangi
should cast a vote.
Nagola is a village within the circle of
Badhnauli. R. K. Aggarwal, D.W. 33 who was the Presiding Officer at Badhnauli
polling station gave evidence. He said that the votes of village Nagola were
polled and no Harijan or Mohammedan voter was stopped from casting votes and
that there was no complaint that Harijan and Mohammedan voters were being
stopped from casting their votes. In cross- examination the witness said that
no voters from Haidernagar or Nagola were brought to the polling station under
900 P.W. 80, Sukhbir Singh who was posted as
Station Officer Thana Kharkoda said that he received information from Shamshad
Elahi that voters at Badhnauli were being stopped from casting their votes.
Sukhbir Singh went to Badhnauli.
He also went to Nagola. He said that 30 or 40
Harijan voters went to Badhnauli to cast their votes. He said that there was no
voter who was taken by him to a polling station in a truck. Sukhbir Singh
proved Exhibit 35 which was a contemporaneous report to the effect that no one
was stopped from voting at Nagola.
Satya Pal Malik on whose testimony the appellant
relied said that Prakash Vir Shastri came to Badhnauli polling station on 19
February, 1967 and there were 40 to 50 persons around him with lion badges on.
His further evidence was that Prakash Vir Shastri asked the Pradhan to beat the
voters to make them run away. Prakash Vir Shastri however denied having asked
Sheoraj Singh Pradhan to drive away the voters.
Thanwaria, P.W. 23 on whose evidence the
appellant relied said that he beat the drum in Nagola village on 'a day before
the polling. He said that there were two parties of the Tyagis. One was of
Sheoraj Singh and the other was of Pyare Lal. The Jatavs, according to his
testimony, were in Pyare Lal's party and the Bhangis were in Sheoraj's party.
The appellant said that Thanwaria was disbelieved only because he belonged to
the Chamar caste. That is misreading the judgment. The High Court said that the
evidence of Thanwaria did not inspire confidence. That criticism of the
evidence of Thanwaria is justified because he came to support the case of the
appellant and he belonged to the appellant's camp.
Pyare Lal, D.W. 12 said that no Harijan was
stopped from casting his vote at Badhnauli polling station and no worker of
Prakash Vir Shastri threatened any Harijan voter at the polling station. The
appellant criticised the evidence of Pyare Lal that he did not know as to what
was happening in the village. Satya Pal Malik, P.W. 17 mentioned the name of
Pyare Lal as the leader of one of the parties and Sheoraj Singh as Pradhan of
the village Nagola.
The oral evidence on behalf of the appellant
is not acceptable for two reasons. First, if there had been any incident of a
voter being prevented from voting 'a complaint would have been made to the
polling officer of the polling station. Secondly, Vireshwar Tyagi and Mahendra
Singh Verma who were the supporters of the appellant and who are alleged to
have said that voters at Nagola were prevented from voting did not lodge any
report about the alleged corrupt practice particularly when it was said to be
committed by Prakash Vir Shastri himself.
901 The assault on Shamshad Elahi which was
also said to be an incident of corrupt practice is unacceptable for these
reasons. First the injury report Exhibit 30 has to be considered along with the
statement of Shamshad Elahi being Annexure M and the report of the appellant
being Exhibit 32 and the complaint of Shamshad Elahi being Annexure N being
Exhibit 30. The appellant., in the report dated 17 February, 1967 Exhibit 32
spoke of voters not being allowed to exercise their votes. Shamshad Elahi in
his complaint said that 10 or 12 persons beat him with lathis. All this
happened on 19 February, 1967. The doctor's report was about the injuries.
First it is peculiar that there was no complaint about the injuries after the injury
Secondly, there is no evidence that the
assault was by the workers of Prakash Vir Shastri. Shamshad Elahi in his
evidence mentioned the names of Sevak Singh and Surajbhan Tyagi. These names
were not mentioned in the complaint being Exhibit 30. In cross-examination
Shamshad Elahi was asked 'as to how he had obtained the names and his answer
was that he met the grass cutter who gave the names. It is curious that the
grass cutter who gave the names was not examined.
The third incident on which the appellant
relied took place at Chhajjupur. The allegations are that on 2 February, 1967
an election meeting was organised in support of the candidature of the
appellant 'and the supporters of respondent Prakash Vir Shastri created
disturbance with the result that the meeting could not be continued and the
supporters of respondent Prakash Vir Shastri are alleged to have chased the
appellant. The High Court rightly commented on the absence of any report having
been made by the appellant to the Election Commissioner or the police about the
alleged occurrence. It is Obvious that if the appellant had been chased he
would have made report to the Election Commission or to the police. The
appellant relied on the news item in the Patriot dated 5 February, 1967. The
news item was referred to by Mahesh Chandra Agarwal, P.W. 14 who, however, was
not present at the meeting at Chhajjupur. He referred to a conversation with
the Superintendent of Police. The Senior Superintendent of Police was not
examined. No police report was produced. The truth of the newspaper report was
not corroborated nor was the statement in the ,news item proved. On the
contrary, Mahesh Chandra Agarwal nullified the news item by admitting that he
was not present at the meeting.
P.W. 18 Tejpal Singh spoke of the incident of
2 February, 1967 and mentioned about the shouting of slogans and throwing of
brick-bats. P.W. 10, Som Prakash spoke of charge sheet under sections 147, and
342 of the Indian Penal Code against certain persons. He spoke of the report of
3 February, 1967 and a report of 9 February, 1967. The report dated 3 February,
1967 902 relates to the occurrence on 2 February, 1967 at Chhajjupur.
The report of 9 February, 1967 also relates
to the alleged incident of 2 February, 1967 at Chhajjupur. The witness Sofa
Prakash P.W. 10 admitted that no investigation was made. It is significant that
the name of the appellant is not mentioned in either of complain,rs or reports.
The allegations in the report are that some disturbances were created and names
of various persons are mentioned as having tried to run towards. The jeep which
carried the leaders of the Republican Party. One of the witnesses Devi Dayal
Sen, P.W. 63 said that when the appellant rose to speak some people pelted
stones at him.
The alleged incident at Chhajjupur is
unacceptable because, first, there was no complaint by the appellant to the
Election Commissioner, secondly, there was no police case and no investigation,
thirdly, the reports did not mention the name of the appellant as having been
assaulted or chased and fourthly, the news item in the Patriot was not proved
as to the truth of the contents therein.
The ,fourth occurrence on which the appellant
relied was at a place called Opehra. The appellant alleged that some persons
were stopped from casting their votes. The appellant relied of the oral
evidence of PWs. 58, 59 and 60.
P.W. 60 is Manzoor Ahmad, M.L.A. The other
two witnesses were Durga Das and Ram Prasad. The appellant criticised the
judgment that there was no mention of the name of Manzoor Ahmad. The diaries
being Exhibits A-23, A-32 and A-29 were produced to show that the election at
Opehra polling station passed off peacefully and therefore no one stopped any
voter from casting vote. Manroof Ahmad his oral evidence said that he saw
people armed with lathis and ballams. He said that he made a complaint to the
Presiding Officer and admitted in cross-examination that there was no written
complaint. Manzoor Ahmad did not prove that any person was stopped from voting.
The fifth and the sixth occurrences on which
the appellant relied took place at Datiyana and Bankhanda. It is alleged by the
appellant that at Datiyana the agents and the supporters of respondent Prakash
Vir Shastri threatened the Scheduled Caste and Harijan voters and prevented
them from going to the polling station. The allegations about the occurrence at
Bankhanda are to similar effect. The appellant relied on Exhibit 18 which was a
memorandum addressed by several voters who stated that they remained within the
house and could not vote because the village Tyagi Kailash Chand threatened to
kill them if they would vote. P.W. 65, Vireshwar Tyagi spoke of the incidents
at Nagola, Bankhanda and Hapur and his wife Smt. Prakash Vireshwar Tyagi spoke
of the alleged ;incident at Datiyana.
The respondents 903 witnesses denied that any
person was prevented from casting vote at Datiyana.
The 'allegations with regard to the Bankhanda
were referred to by Vireshwar Tyagi and other witnesses. The diary which
produced with regard to the polling station disproved any such incident. The
diaries are Exhibits A-19 and A-21. D.W. 20, Chandoo Singh stated that he was
at the polling station at Bankhanda and no one was stopped from exercising the
right of franchise. D.Ws. 21 and 22 also spoke of polling at Bankhanda having
been peaceful. The appellant referred to. religious songs which were said to be
praise of respondent Prakash Vir Shastri. Mere praise-worthy songs will not be
an instance, of corrupt practice.
All the allegations about the voters having
been stopped from casting their franchise followed the same pattern of oral
evidence. The absence of any report either to the Election Commission or to the
Police authorities is an important and noticeable feature and therefore the
oral evidence is not acceptable.
The other allegations relied on by the
appellant are that respondent Prakash Vir Shastri is guilty of corrupt practice
under sub-sections (3), (3A) and (4) of section 123 of the said Act. The
appellant contended that respondent Prakash Vir Shastri made communal
propaganda against the appellant and also published false statements in
relation to the personal character of the appellant. In aid of the contentions
the appellant relied on annexures KK and MM. The appellant relied on the upper
portion of annexure KK in support of the contention that the slogans amounted
to communal propaganda. The lower portion of annexure KK was contended by the
appellant to be allegations against the personal character of the appellant.
Annexure MM was said by the appellant to contain slogans amounting to communal
propaganda against the appellant. It was said by the appellant that respondent
Prakash Vir Shastri promoted feelings of enmity or hatred against the appellant
and further raised communal propaganda. The appellant also relied on Exhibit 22
being the editorial in Vir Arjun dated 7 February, 1967 in support of the
contention that the editorial constituted communal propaganda against the
In Guruji Shrihar Baliram Jivatode v. Vithalrao
and Others,(1) this Court dealt with the scope and content of subsection (4) of
section 123 of the Act. The Act is intended to protect freedom of speech on the
one hand and to restrain malicious propaganda on the other. The provisions
contained in subsection (4) of section 123 were said by this Court to be
contra- (1)  2 S.C,R. 766 904 vened when "any false allegation of
fact pierces the politician and touches the person of the candidate". It
is the personal character and conduct of the candidate which is to be protected
from malicious or false attacks. The statement in question has to be first a
false statement bearing. on the personal character and conduct of the candidate
and secondly, the statement complained of must be one which is reasonably
calculated to prejudice the prospects of the election of the person.
Under the provisions contained in sub-section
(3A) of the said Act the promotion of, or attempt to promote, feelings of
enmity or hatred between different classes of citizens of India on grounds of
religion, face, caste, community, or language, is the mischief which is sought
to be avoided by making the same a corrupt practice. The sub- section further
says that such promotion or attempt to promote enmity or hatred is for the
furtherance of the election of the candidate or for prejudicially affecting the
election of any candidate.
The words "personal character or
conduct" were explained by this Court in T.K. Gangi Reddy v. M.C. Anjaneya
Reddy and others(1) "to be equated with his mental or moral nature.
Conduct connotes at person's actions or behaviour". Annexure KK was not
proved and therefore it cannot be said to constitute any communal propaganda.
Assuming it were proved there is no appeal to
vote for a person on the ground of religion nor is there any appeal not to vote
for a person on the ground of his religion.
Further, the provisions contained in
sub-section (4) of section 123 require the publication with the consent of the
candidate or his election agent. In the present case, annexure KK has not been
established to be published with the consent of the respondent Prakash Vir
Shastri or his election agent. It, therefore, follows that annexure KK offends
neither the provisions contained in sub-section (3A) nor in sub-section (4) of
section 123 of the Act.
Annexure MM was said by the appellant to be a
communal propaganda. Arnexure MM was not proved. Even if it were proved the
slogans do not offend the provisions of either subsection (3A) or sub-section
(4) of section 123 of the Act.
The publication in the newspaper 'Vir Arjun'
Exhibit 22 is to the effect that differences between Hindus and Harijans were
being spread by the supporters of the Republican candidate meaning thereby the
appellant and if students from Muslim University were brought in by them then
students from Ghaziabad would be brought into the field. The newspaper
certainty (1)  1 S.C.R. 175 905 Was inclined in favour of respondent
Prakash Vir Shastri but the newspaper publication said that Prakash Vir Shastri
would not unlike the Congress candidate preach communal hatred. The statements
in Exhibit 22 do not make any reflection on the moral or mental nature of the
appellant and they do not touch the personal character of the appellant, nor do
they promote enmity or hatred on grounds of religion.
The appellant failed to prove that respondent
Prakash Vir Shastri committed any corrupt practice in relation to the personal
character and conduct of the appellant. The newspaper publication Exhibit 22
was an appeal on behalf of respondent Prakash Vir Shastri. As long as the
publication is not tainted by corrupt practice, such an appeal will not be an
infraction of the provisions as to corrupt practices as contemplated in the
Representation of the People Act. Suggestions that attempts are made to
accentuate the differences between the Hindus and Harijans in the article
cannot be extracted in isolation from the entire context. The electorate at the
time of the election has to be kept in the forefront in judging whether the article
can be said to offend the provisions relating to corrupt practices. The Court
is to ascertain whether the statement is reasonably calculated to prejudice the
prospects of the candidate's election. This Court observed in Kultar Singh v.
Mukhtiar Singh(1) that in reading the documents it would be unrealistic to
ignore that When appeals are made by candidate there is an element of 'partisan
feeling and there is 'extravagance of expression attacking one another and
"it would be unreasonable to.
ignore the question as to what the effect of
the pamphlet would be on the mind of the ordinary voter who reads the
pamphlet". In the light of these principles, we are of opinion that there
is no infraction of the provisions contained in sub-sections (3A) and (4) of section
123 of the Act.
For the reasons mentioned above, this appeal
fails and is dismissed with costs.