Virendra Kumar Saklecha Vs. Jagjiwan
& Ors  INSC 91 (22 March 1972)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH RAY,
A.N. (CJ) GROVER, A.N.
CITATION: 1974 AIR 1957 1972 SCR (3) 955 1972
SCC (1) 826
CITATOR INFO :
E 1975 SC 968 (5) R 1979 SC 234 (11) D 1991
Election Petition--Corrupt practices under s.
123 (2), (3) and (4) alleged--Proof--Affidavit in support of Petition alleging
a fact on information must give source of information. There is no
inconsistency between form 25 of Conduct of Election Rules, 1961 and Rule 7 of
Mdhya Pradesh High Court Rules.
The appellant and the three respondents were
candidates for election to the Madhya Pradesh Assembly at the general election
held in 1967. The appellant was successful at he election, Respondent no. 1
chatlenged his election in an election petition charging him with corrupt
practices. It was alleged by the election petitioner that in speeches made to
the voters on the basis of religion within the meaning of s. 123 (3) of the
Representation of the People Act 1951, the voters were threatened divine
displeasure within the meaning of s. 123 (2), ad also statements were made
about the election petitioner within the meaning of s. 123 (4). The affidavit
in support of the petition did not disclose the source of information whereby
respondent no. learnt the speeches constituting corrupt practice. The High
Court however believed the oral evidence produced on behalf of he respondent,
dis believed that produced on behalf of the appellant and allowed the election
petition. Appeal to this Court was filed under s. 116-A of the Representation
of the People Act, 1951.
Allowing the appeal,
HELD : (i) The affidavit filed by the
respondent along with the election petition did not disclose the source of
information in respect of , speeches alleged to have been made by the
appellant. Although the respondent claimed in his evidence that he came to know
of the speeches through notes made by certain persons who heard them, neither
the notes nor these persons were produced in Court. The nonproduction of the
notes and the persons who made them must lead to an irresistible inference
against the respondent that the same would not have supported respondent's
[959 H; 962 A-B] Rule 7 of the Madhya Pradesh
High Court Rules states that every affidavit should clearly express how much is
a statement and declaration from knowledge and how much is a statement made on
information or belief aid must also state the source or ground of information
belief' with sufficient particularity. Form No. 25 of 'he Conduct of Election
Rules, 1961 requires the deponent of an affidavit to set out which statements
are true to the knowledge of the dependent and which statements are true to his
information. In so far as form No. 25 requires the dependent to state which
statements are true to knowledge there is no specific mention of the sources of
information in the form. The form of the affidavit and the High Court rules are
not inconsistent. The High Court Rules give effect to provisions of Order 19 of
the Code of Civil Procedure. [960 C-F] 956 The non-disclosure of grounds or
sources of information in an election petition which is to be filed within 45
days from the date of election of the returned candidate, will have to be scrutinised
from two politics of view . The nondisclosure of the grounds will indicate that
the election petitioner did not come forward with the sources of information at
the first opportunity. The real importance of setting out the sources of
information at the time of the presentation of the petition is to give the
other side notice of the contemporaneous evidence on which the election
petition is based. That will give an opportunity to 'the other side to test the
genuineness and varacity of the sourcesof information . The other point of view
is that he election petitioner will not be able to make any departure, from the
sources of grounds. If there is any embellishment of the case it will be
discovered. [961 E-F] State of Bombay v., Parshottam Jog Naik,  S. C. R. 674,
Padmabati Dasi v. Raik Lal Dhar, I.L.R. 37 Cal. 259, Barium Chemicals Ltd.
& Anr. v. Company Law Board and Ors.,  Supp. S.C.R. 331 and A. K. K.
Nambiar v. Union of India,  3 S.C.R. 121, referred to.
(ii) The High Court was wrong in pronouncing
observations on the First Information Report relating to an incident at one of
election meetings in question when a criminal case based on that Report was
pending. [1964 F-G] (iii) The overwhelming impression produced by the witnesses
on behalf of the respondent is that they were all prepared on the same pattern
of evidence. On the entire evidence it could not be held that the allegations
constituting corrupt practice were proved.[1971 H-972 A]
CIVIL APPELLATE JURISDICTION: C.A. No. 2509
Appeal under Section 116-A of the
Representation of the People Act, 1951 from the Judgement and Order dated the
30th September, 1969 of the Madhya Pradesh High Court, Indore Bench in Election
Petitions Nos. 19 and 19A of 1967.
S.L. Sibbal, Advocate-General for the State
of Punjab, S. L. Garg and S. K. Gambhir, for the appellant.
M. N. Phadke, U. N. Bachawat, P. C. Bhartari,
J. B. Dadachanji, O. C. Mathur, Ravinder Narain, for respondent No. 1.
N. K. Shejwalla, Pramod Swarup, S. S. Khanduja
and Lalita Kohli, for respondent No. 4.
The Judgment of the Court was delivered by
Ray, J. This is an appeal from the judgment dated 30 September, 1969 of the
High Court of Madhya Pradesh setting, aside the election of the appellant. The
High Court held the appellant to be guilty of corrupt practice under section
123(4) of the Representation of the People Act, 1951 (hereinafter referred
to-as the Act) with reference to a speech at Singoli on 29 January, 1967 a
speech at Athana on 9 February, 1967 and a speech at Jhatia on 12 February,
1967. The High Court further held the 957 appellant to be guilty of corrupt
practice of appealing on the ground of religion as defined in section 123(3) of
the Act and also threatening the electors, with divine displeasure being a
corrupt practice as defined in section 123(2) of the Act in regard to the
speech at Jhatla on 12 February, 1967. The High Court also held the appellant
to be guilty of corrupt practice of appealing on the ground of religion and
threatening with divine displeasure those who voted for the Congress in the
three speeches delivered on 15 February, 1967 at Morwan, Singoli and Diken by
the Swamiji of Bhanpura at the instance, and in the presence, and after
introduction by the appellant of the Swamiji of Bhanpura to the audience at
those three places.
On 31 January, 1972 we delivered the order
holding that we did not agree with the finding of the High Court and we also
held the appellant to be not guilty of any corrupt practice.
We stated then that we would give the reasons
later. We now give those reasons.
The appellant and the respondent Jagjiwan
Joshi and the other two respondents were four candidates from Jawad
Constituency for election to the Madhya Pradesh Assembly at the general
election held in the year 1967. The appellant was successful at the election.
The respondent Joshi challenged the election of the appellant.
The allegations under section 123 (4) of the
Act fall under two classes. The first relates to the speech delivered by the
appellant at Singoli on 29 January, 1967 and a speech delivered by the
appellant at Athana on 9 February, 1967.
The speech at Singoli was alleged to be as
follows :-The Congress candidate has on payment of Rs.
5000 set up Kajod Dhakad...... so that the
Jan Sangh votes may be split and he might win. If he practises such corruption
even now what service can he do to the public later on.
You, should not vote for such corrupt
The speech at Athana in addition to the
allegations already made in respect of the speech at Singoli was as follows :"Joshi
has set up Kajod Dhakad on payment of Rs. 5000." The other allegations of
corrupt practice under section 123 (4) of the Act were in relation to. the same
speech at Athana on 9 14-L1061SupCI/72 958 February, 1967 and a speech at
Jhatla on 12 February, 1967.
The alleged speech at Athana was as follows
"Shri Joshi has set up a man to hit me with a knife. Accordingly, if he
becomes a legislator the rule of violence (goonda gardi) would be permanently
established. Therefore, the public should not only defeat such bad characters
(badmash) of the Congress but. also see that their deposit is forfeited".
The alleged speech at Jhatla was as follows
"This Congress candidate gave a knife to Mohammad Kasai and got him to
attack me. But I have the strength of the janata janardhan and my life is
dedicated to you. It lies with you whether to save such goondas who try to
commit murder or to get their deposit forfeited." The allegations of
corrupt practice as defined in sections 123(2) and 123(3) of the Act in
relation to the same speech at Jhatla on 12 February, 1967 were as follows :"The
votes shall be cast on the 20th and it is fortunate that it is a sacred day
being a Monday gyaras. To give a vote to the cowkilling Congress on that day is
equivalent to cutting down one cow and it will be on you to bear the
responsibility for this sin".
The allegations of corrupt practice within
the meaning of sections 123(2) and 123(3) of the Act against the appellant in
regard to three speeches delivered on 15' February, 1967 at Morwan, Singoli and
Diken by the Swamiji of Bhanpura were as follows :-At Morwan :-"Today the
Hindu dhartna is being destroyed.Sadhus and sanyasis being shot. The Congress
is killing the cow-progeny (go-vansh) of Bhagwan Gopal. so this time you sho
uld cast your invaluable vote for up-rooting that government. You put your seal
on the deepak symbol (Jan Sangh symbol) on the 20th which is Monday gyaras. To
vote for the Congress on such a sacred day is to commit the sin of cowkilling".
At Singoli :"In the Congress Government
sixteen cows are being killed every minute. How long will this cow-killing
Congress rule the country ? How long will it show in-difference to the feelings
of the overwhelming Hindu 959 majority just on the strength of the support of a
handful of cow-eating Musalmans If you love the Hindu dharma, if there is Hindu
blood in your veins, do not vote for the Congress;
but uproot it. Form a new Government by
putting your seal on the Jan Sangh deepak.
Shri Saklecha is your Chief Minister to be.
The 20th February as a sacred day being
Monday gyras. Do not on such a sacred day vote for the cow-killing Congress and
bring yourself to hell (narak ke bhagi na bane) ".
At Diken:"There was a yagna for putting
an end to the cow killing in this country. Many sadhus and sanyasis have
sacrificed their life for this, but the Congress, intoxicated with power has
along with cow-killing killed sadhus also. It is the dharma of every Hindu not,
to vote for such murderous Congress. The 20th is Monday gyaras and a sacred
day. So put your seal on the deepak and make the Jan Sangh successful.
The Jan Sangh will put an end to the cowkilling
and you will get merit (punya) and endlless bliss (akhand sukh)".
With regard to the speech at Athana on 9
February, 1967 the allegations within the meaning of section 123(4) of the Act
were twofold. First that the appellant published the false allegation that the
respondent had bribed Kajod Dhabad with Rs. 5000 and had set up him as a
candidate. The second allegation was that at the same speech the appellant
published the false story that the respondent had set up a man to, hit the
appellant with a knife. The High Court accepted the oral evidence of the
respondent and four witnesses Kishan Lal Teli P.W. 1, Ghisa Dhakad P.W. 2,
Laxmi Lal P.W. 5 and Chand Mohammad P.W. 6. The High Court did not accept the
oral evidence of the appellant or of the witnesses on behalf of the appellant.
The High Court found the witnesses on behalf of the respondent to be straightforward
and impartial. On the other hand, the High Court found the witnesses on behalf
of the appellant to, be persons who knew what they had come for and asserted
general statements of denial.
The respondent filed an affidavit along with
the election petition. The affidavit did not disclose the source of information
in respect of the speeches alleged to have been made by the appellant. Section
83 of the Act requires an affidavit in the prescribed form in support of
allegations of corrupt practice. Rule 94-A of the Conduct of Election Rules
1961 requires an affidavit to be in form No. 25. Form No. 25 requires the
deponent to state which statements are true to knowledge and which statements
are true to 960 information. Under section 87 of the Act very election petition
shall be tried by the High Court as nearly as may be in accordance with the
procedure applicable under the Code of Civil Procedure to the trial of suits.
Under section 102 of the Code the High Court may make rules regulating their
own procedure and the procedure of the Civil Courts subject to their
supervision and may by such rules vary, alter or add to any of the rules in the
First Schedule to the Code.
Rule 9 of the Madhya Pradesh High Court Rules
in respect of election petitions states that the rules of the High Court shall
apply in so far as they are not inconsistent with the Representation of the
People Act, 1951 or other rules, if any, made there under or of the Code of
Civil Procedure in respect of all matters including inter alia affidavits.
Rule 7 of the Madhya Pradesh High Court Rules
states that every affidavit should clearly express how much is a statement and
declaration from knowledge and how much is a statement made on information or
belief and must also state the source or grounds of information or belief with
Form No. 25 of the Conduct of Election Rules
requires the deponent of an affidavit to set out which statements are true to
the knowledge of the deponent and which statements are true to his information.
The source of information is required to be given under the provisions in
accordance with Rule 7 of the Madhya Pradesh High Court Rules. In so far as
form No. 25 of the Conduct of Election Rules requires the deponent to state
which statements are true to knowledge there is no specific mention of the
sources of information in the form. The form of the affidavit and the High
Court Rules are not inconsistent. The High Court Rules give effect to
provisions of Order 19 of the Code of Civil Procedure.
The importance of setting out the sources of
information in affidavits came up for consideration before this Court from time
to time. One of the earliest decisions is State of Bombay v. Parshottam Jog
Naik, , S.C.R. 674, where this Court endorsed the decision of the
Calcutta High Court in Padmabati Dasi v. Rasik Lal Dhar, I.L.R. 37 Cal. 259,
and held that the sources of information should be clearly disclosed. Again, in
Barium Chemicals Ltd. & Anr. v.Company Law Board and Ors.,  Supp.
S.C.R. 331, this Court deprecated 'slip short verifications, in an affidavit
and reiterated the ruling of this Court in Bombay, case (suppra) that
verification should invariably be modelled on the lines of Order 19 rule 3 of
the Code 'Whether the Code applies in term, or not'. Again, in A. K. K. Nambiar
v. Union of India,  3 S.C.R. 121 this Court said that the importance of
verification is to test the genuineness and authenticity of allegations and
also to make the deponent responsible for allegations.
Counsel on behalf of the appellant contended
that non-disclosure of the sources of information in the affidavit was a fatal
defect and the petition should not have been entertained. It is not necessary
to express any opinion on that contention in view of the fact that the matter
was heard for several months in the High Court and thereafter the appeal was
heard by this Court. The grounds or sources of information a re to be set out
in an affidavit in an election petition. Counsel on behalf of the respondent
submitted that the decisions of this Court were not on election petitions. The
rulings of this Court are consistent. The grounds or sources of information are
to be set out in the affidavit whether the Code applies or not. Section 83 of
the Act states that an election petition shall be verified in the manner laid
down in the Code. The verification is as to information received. The affidavit
is to be modelled on the provisions contained in Order 19 of the Code.
Therefore, the grounds or sources of
information are required to be stated.
The non-disclosure of grounds or sources of
information in an election petition which is to be filed within 45 days from
the date of election of the returned candidates will have to be scrutinised
from two points of view. The nondisclosure of the grounds will indicate that
the election petitioner did not come forward with the sources of information at
the first opportunity. The real importance of setting out the sources of
information at the time of the presentation of the petition is to give the
other side notice of the contemporaneous evidence on which the election
petition is based. That will give an opportunity to the other side to test the
genuineness and veracity of the sources of information. The other point of view
is that the election petitioner will not be able to any departure from the
sources or grounds. If there is any embellishment of the case it will be
The non-disclosure of grounds or sources of
information in the affidavit of the election petitioner in the present case
assumed importance by reason of the fact that the respondent said that he had a
written report about the alleged speech at Athana and the report was given to
the respondent by Ram Kumar Aggarwal. Ram Kumar Aggarwal was also a candidate of
the Congress party at the same election from the same constituency which is the
subject matter of the appeal. Ram Kumar Aggarwal was not examined as a witness.
The written notes of Ram. Kumar Aggarwal were admitted by the respondent to be
with him. The respon962 dent gave the explanation for non-production of Ram
Kumar Aggarwal that he produced only such witnesses who either opposed him in
the election or were independent. As to persons who opposed him in the election
the respondent stated that they were summoned by him through court and those
who were independent were brought by him personally to court. The
non-production of Ram Kumar Aggarwal and of the notes made by him at the
meeting at Athana raises as irresistible inference against the respondent that
the same would not have supported the respondent's case.
Witnesses on behalf of the respondent Kishan
Lal Teli Ghisa Dhakad, Laxmi Lal, Chand Mohammad and Bansi Dhar Bairagi gave
oral evidence in identical words and language that the respondent had instigated
Mohd. Kasai to attack the appellant with a knife and that the respondent had
set up Kajod Dhakad paying Rs. 5000 and if Joshi became a legislator there will
be rule of goondas.
Kishan Lal Teli was the polling agent of the
respondent. He denied that he was one. He was shown the polling agent forms
Exhibits R-1/39 and R-1/40. He stated that the signatures might be his. The
respondent admitted that Exhibits R-1/39 and R-1/40 were signed by him but
Kishan Lal was not prepared to admit his own signatures on the polling_ agent
forms. Kishan Lal Teli was neither straightforward nor impartial. Kishan Lal
Teli said that there were 5 or 6 meetings in the village during the time of the
election but the only meeting which he attended was at Athana. That is indeed strange
and significant. Kishan Lal Teli said that there were 6 speakers and he
remembered the sequence in which the speaker spoke. Kishan Lal Teli said that
he spoke entirely from memory.
Ghisa Dhakad also spoke from memory. He
mentioned about 6 speakers. Ghisa Dhakad also happened to be a witness who
attended the meeting at Athana only. A curious feature of Ghisa Dhakad's
evidence is that he did not speak about the speech to anybody till he gave
evidence in court. It would be beyond comprehension as to how the respondent
would cite Ghisa Dhakad a witness to support the allegations when Ghisa Dhakad
gained silent and unknown. It is also in evidence that Ghisa Dhakad was the
worker of the appellant's opponents.
Laxmi Lal P.W. 5 also happened to have
attended the solitary meeting at Athana and no other meeting. Laxmi Lal also
mend the speakers in the same sequence as the other witnesses Laxmi Lal said
that he remembered the speeches of everybody who spoke. Laxmi Lal in
cross-examination stated that the ant also talked of 'Lagan'. When he was asked
as to why 963 he did not mention this fact in his examination-in-chief, his
answer Was that the appellant had mentioned of 'Lagan' at the end of the
speech, and, therefore, he did not speak about it in examination in-chief. This
indicates as to how Laxmi Lal tried to impart originality to his version of
remembrance of things.
Chand Mohammad was believed by the High Court
with regard to his presence at Athana but was disbelieved with regard to his
presence at Sarwania Masania. It may be stated here that the High Court did not
accept the case of the respondent with regard to Sarwania Masania. Chand
Mohammad happened to be a casual witness with regard to the meeting at Athana.
His evidence was that he was going to the house of Dhakad Kheri and he stopped
for a minute or two to listen to Jan Sangh speakers. That is how he heard the
appellant speaking. The fortuitous manner in which Chand Mohammad attended the
meeting at Athana shows that he was introduced to support the respondent by
repeating what the previous witnesses said about the Athana meeting. This will
he apparent in view of the fact that when Chand Mohammad was examined for the
second time like some other witnesses he said that he heard the speech of the
appellant for a minute or two but he left the meeting before the appellant's
speech Was over. When Chand Mohanunad was confronted with his previous
statement his explanation was that on the earlier occasion he was thinking
about the meeting of Kajod Dhakad, yet the High Court accepted the evidence of
Chand Mohammad to be impartial and impressive.
Bansi Dhar Bairagi P.W. 4 was found by the,
High Court to be angry with the appellant's party. But the High Court accepted
the evidence of Bansi Dhar Bairagi on the ground that his evidence was
corroborated by the statements of Laxmi Lal, Ghisa Dhakad and Chand Mohammad.
Bansi Dhar Bairagi proposed the name of Ram Kumar Aggarwal who was supposed to,
have taken notes of the Athana meeting and who never came to, the witness box.
Bansi Dhar Bairagi was also associated with Kajod Dhakad. Bansi Dhar Bairagi's
evidence was that he went to, propose the name of Kajod Dhakad but when he was
going to propose the name his hand began to shake. That is indeed a very shaky
explanation. A curious part of the evidence of Bansi Dhar Bairagi is that the
appellant spoke of cow killing at the Athana meeting. That was not the case
even of the respondent. Bansi Dhar Bairagi's evidence in respect of his
presence at Sarwania Masania was not accepted by the Court on the ground that
he was a casual witness. Bansi Dhar Bairagi was the election agent of Kajod
Dhakad. The nomination paper of Kajod Dhakad was proposed by Ram Chand Nagla
brother of Badri Nath Nagla the President of Jawad Mand Congress. Badri Nath
Nagla was the proposer and the counting 964 agent of the respondent. These
features point to the inescapable conclusion that the witness was not only
interested but also partisan.
The witnesses on behalf of the respondent
appeared to be.
present only at the Athana meeting. They did
not attend any other meeting. They spoke entirely from memory. Their version of
the speeches was in the same words and language, One of the witnesses was
unknown to the respondent and the respondent also did not know anything about
him until he gave evidence in court. The witnesses on behalf of the respondent
seemed to have phenomenal memory. Each witness spoke in the same sequence. Each
witness spoke in the same language. Each witness mentioned the names of the
speakers in the same order. The entire evidence on behalf of the respondent is
tutored and prompted to support the respondent. The High Court was wrong in
relying on the oral evidence of the respondent and his witnesses. In the
background of the entire oral evidence adduced on behalf of the respondent it
is apparent as to why the respondent did not mention the grounds or sources of
information in the affidavit. There were no real sources. Sources were
fabricated. There is not a single piece of documentary evidence to support the
case of the respondent. The alleged notes of the meeting at Athana which were
admitted by the respondent to be in existence never saw the light of the day.
The withholding of that document gives a lie to the respondent's case. It is
obvious that if there were in existence any notes the respondent would have
exhibited them at the earlier opportunity.
The High Court not only disbelieved the
witnesses produced on behalf of the appellant with regard to the meeting at
Athana but also made certain observations about the first information report
lodged by Sunder Lal Petlia R.W. 35. with regard to an incident at Athana at
the day of the meeting.
A criminal case is pending as a result of
that report lodged by Petlia. The High Court held that the first information
report is a forgery. It is true that the High Court in one part of the judgment
stated that whatever was stated by the High Court about the first information
report should not affect the judgment of the Magistrate. The High Court was
wrong in pronouncing observations on the report lodged by Petlia. We are unable
to accept the views of the High Court on the report lodged by Petlia inasmuch
as the criminal case is pending.
The respondent's allegations with regard to
the meeting at Jhatla on 12 February, 1967 are under two heads. First, that the
appellant is guilty of corrupt practice as defined in section 123 (4 ) of the
Act inasmuch the appellant published falsely that the respondent had set up
somebody armed with a knife to attack the appellant. The second head was that
the appellant was guilty of corrupt 965 practice as defined in sections 123(2)
and 123(3) of the Act by appealing to voters on the ground of religion and
threatening them with divine displeasure if they voted for the Congress
candidate. The speech alleged to be made by the appellant at Jhatla on 12
February, 1967 was that 20 February, 1967 was the sacred day being a Monday
gyaras and to give a vote to the cow killing Congress on that day was
equivalent to cutting down one cow and it would be on the voters to bear the
responsibility for the sin. The High Court accepted the oral evidence of the
respondent and his witnesses. The respondent said that Mohan Lal Ramji Lal took
notes of the meeting at Jhatla. Mohan Lal Ramji Lal was not examined by the
respondent. The, alleged notes were also not produced. These features indicate
that there were no such notes for if the notes were in existence the respondent
would have produced the same in proof of the allegations. The respondent is a
lawyer. The respondent not only understands but also appreciates the importance
of documents if they happen to be contemporaneous documentary evidence.
The witnesses on behalf of the respondent
with regard to the speech at Jhatla were Daulat Ram Sharma P.W. 12, Kastur
Chand Jain P.W.13, Ratan Lal Jain P.W. 14 and Prabhu Lal P.W. 15. The common
features of all these witnesses are that each witness spoke in identical words
and in the same sequence about the speeches of the appellant.
Daulat Ram Sharma admitted that he had no
occasion to repeat the speech to anybody except when he came to depose in
court. Daulat Ram Sharma went in search of his cattle to the pond at Jhatla. He
could not find his cow. He went to purchase tobacco. When he reached the shop
he saw a meeting of Jan Sangh going on. He heard the speech of the appellant.
He does not belong to Jhatla but lives 'at
Jhabarka Rajpura at a distance of 3 furlongs from Jhatla. It is indeed
remarkable that a person who by chance walked to the meeting would not only
remember the entire speech ascribed to the appellant in the election petition
but also depose to it in court without ever having mentioned the speech to
anybody and in particular the respondent. Daulat Ram Sharma stated that this
was the only meeting attended by him in his life.
Such a witness cannot inspire any confidence.
Kastur Chand Jain was the polling agent of
He discussed with the respondent the latter's
defeat about two months after the election. He told the respondent that he
would give evidence in court without any summons.
Heattended the Congress Session and is
associated with the Organisation. As an instance of his power of memory he said
that he could repeat the speech of 966 the Congress Parliamentary candidate
delivered on 24 February, 1967. This witness appears to be partisan.
Ratan Lal Jain was also associated with the
Congress organisation. He went to the extent of saying that he did not know
that voting for Congress meant voting for the respondent who was a Congress
Prabhu Lal came to give evidence along with
Ratan Lal Jain P.W. 14 and Kastur Chand Jain P.W. 13. They all stayed together
at Mahalaxmi Lodge. They also met the respondent though they denied that they
had any talk with the respondent about the evidence. It is incomprehensible as
to how the respondent would cite such persons as witnesses unless the
respondent knew what they were going to speak about. A witness is not called by
a party unless the party knows that the person can testify to the facts in the
Witnesses on behalf of the respondent gave
the impression that they never mentioned to anyone about what they knew,.
If that be the position it would not be
possible for the respondent to ,cite them as witnesses. These features indicate
that the witnesses appeared to give a semblance of disinterestedness whereas in
fact they were all tutored to support the case of the respondent. The
impression produced by the witnesses is that their version of the speeches was
similar to reading cyclostyled copies of the speech. We are unable to accept
the conclusion reached by the High Court about the speeches of the appellant at
The respondent alleged that the appellant
delivered a speech at Singoli on 29 January, 1967. The allegations are that the
appellant committed the corrupt practice within the definition of section
123(4) of the Act by publishing the false allegations that the respondent had
paid Rs. 5000 to Kajod Dhakad to set him up as a candidate. The respondent also
alleged that besides the appellant one Swami Brahmananda of Himachal Pradesh
and Khuman Singh of Nimech also spoke at the meeting at Singoli on the same
The High Court accepted the oral evidence of
P.W. 16 Paras Ram,, P.W. 17 Bhanwar Lal, P.W. 18 Ram Chandra Sharma, P.W.
19 Nathu Lal and P.W. 22 Mange Lal Pancholi.
P.W. 18 Ram Chandra Sharma admitted his
signatures on Exhibits R-1/5 and R-1/6. These two documents are minutes Of
meeting of the Congress party of Singoli held in the months of August and
October, 1966. Ram Chandra Sharma's name appears in the notices of the meetings
of the Congress Party in the months ,of August and October, 1966 at Singoli
which are Exhibition R-1/7 and R-1/8. Ram Chandra Sharma appears as a signatory
to the minutes. After having admitted the signatures Ram Chandra 967 Sharma
made attempts to disown his signatures. Exhibits R1/9, RI / I 0, RI / 1 1, RI /
1 2, RI / 13 and R1 / 14 are receipts signed by the witness Ram Chandra Sharma.
These receipts relate, to expenses for meals
and refreshments arranged for the workers near about the. time of the election.
Ram Chandra Sharma denied his signature but he admitted that the Congress
workers and other customers paid him for the meals. He denied that he gave the
respondent any receipt. Ram Chandra Sharma obviously wanted to extricate
himself from the receipts which nullified his oral evidence. Ram Chandra Sharma
was a very interested witness and he was directly associated with the
respondent. Ram Chandra Sharma said that the only meeting he attended in his life
was the one at Singoli on 29 January, 1967. Such singular attendance is not
only suspicious but also mendacious. Ram Chandra Sharma not only gave from, his
memory the speech of the appellant at Singoli but also added a gloss to it by
stating that the appellant spoke about tax on sugar. It was not even the case
of the respondent that the appellant spoke about tax on sugar.
P.W. 22 Mange Lal also supported the case of
the respondent about the appellant's speech at Singoli on 29 January, 1967.
Like Ram Chandra Sharma he also said that the
appellant talked about tax on sugar. This shows how this pair of witnesses
played the parrot in giving evidence, Mange Lal was confronted with Exhibit
R-1/19 and Exhibit R-1/19A.
These two receipts are in respect of rent of
the building owned by Mange Lal. The receipts are on account of rent from the
respondent. Mange Lal said that he gave the receipts at the instance of Radha
Kishan. The further explanation given by the witness was that the house was
mortgaged with Radha Kishan. No document was produced to prove the mortgage.
Radha Kishan is Mange Lal wife's uncle.
Mange Lal's attempt to explain away the
receipts for rent was futile. Mange Lal also appears to be one of the conveners
of the Congress meeting as will appear from Exhibits R-1/7 and R-1/8. He is
also signatory to the minutes Exhibits R-1/6. Mange Lal said that the only
meeting he ever attended was at Singoli on 29 Februarly, 1967. He had never any
talk with the respondent about the speech at Singoli.
These witnesses establish without any doubt
that they were not truthful witnesses but came prepared to support the
The other witnesses P.W. 17 Bhanwar Lal and
P.W. 19 Nathu Lal also spoke about the appellant's alleged speech at Singoli on
29 January, 1967. These two witnesses also gave evidence about the speech of
Swamiji of Bhanpura at Singoli on 15 February, 1967. The High Court accepted
the evidence of these witnesses.
968 We are unable to accept the evidence of
Bhanwar Lai and Nathu Lai for the reasons to be given while discussing their
evidence in connection with the meeting at Singoli on 15 February, 1967.
The respondent alleged that the appellant was
guilty of corrupt practice within the meaning of sections 123 (2) and 123 (3)
of the Act by reason of the three speeches delivered by the Swamiji of Bhanpura
on 15 February, 1967 at Morwan, Diken and Singoli. The respondent alleged that
the speeches were at the instance of audience.
With regard to the speech at Morwan apart
from the respondent there were three witnesses on his behalf. They were P.W. 7
Manek Lai, P.W. 8 Ratan Lai Gaur Banjara and P.W. 9 Gulzari Lai Mahajan. Manek
Lai gave evidence twice. The second time he gave evidence was in accordance
with the understanding given by the respondent before this Court to produce
some of the witnesses at his own cost. That undertaking was given at the
hearing of an application by the appellant in this Court for transfer of the
Case to another court. When Manek Lai gave evidence On the first occasion he
did not mention that Swamiji of Bhanpura said at the meeting at Morwan on 15
February, 1967 that 20 February was a sacred day and to vote for Congress on
such a sacred day would be to commit the sin of cow killing. Manek Lai said
that he attended the meeting of the Congress and of the Jan Sangh and he voted.
Gulzari Lai said that the, Morwan meeting was
the only meeting he ever attended. Both Manek Lai and Gulzari Lai like other
witnesses gave evidence about the speech of Swamiji of Bhanpura in identical
language and in the same sequence.
The hollowness of the evidence adduced on
behalf of the respondent is revealed by the testimony of Ratan Lai Banjara.
He was confronted with Exhibit R-1/27. The
High Court described this document to be "purloined brief." Exhibit R1/27
is a document which contains the date and hour of the meeting at Morwan, the
text of the speech at Morwan.
Thereafter there are 7 questions and answers.
The questions are as to when did Swamiji come; how he came; who came with him;
and it is also written in that document that the appellant came and listened to
the speech and expressed gratitude and thanks to the public. Ratan Lai Banjara
denied that he was tutored through that document. The alleged speech of Swamiji
of Bhanpura is typed in Hindi.
One of the notes in that document is that
Moti Khema Jat and Gordhan Singh were not seen at the meeting. Those, two
persons were cited by the appellant as witnesses. it is indeed curious that
witnesses would,specifically say as to who were not present and the names of
such persons who were not present are those who are cited by the 969 respondent
as witnesses. It is not only unnatural but extraordinary that witnesses would
notice as to who were not present at the meeting which, according to the witnesses,
was attended by 500 persons.
The respondent was shown Exhibit R-1/27. His
explanation was that the notes were prepared for instructions to his counsel.
The tenor of the document and the questions and answers point with unerring
accuracy that the document was prepared to coach witnesses. The respondent said
that he had prepared such notes for every meeting. Other documents did not see
the fight of the day. That would support the conclusion that other witnesses
had been similarly prepared.
It explains why all witnesses spoke the same
language. All witnesses were coached.
The respondent said that Jai Ram Jat had
taken notes of the meeting at Morwan and gave the same to the respondent. The
respondent said that the notes were not of significance, and, therefore, he did
not take the notes from Jai Ram Jat.
If the notes were not significant the Morwan
meeting also became insignificant. The non-production of the notes and of the
author of the notes, are additional features to establish the vacuity of the
respondent's allegations about the speech of Swamiji of Bhanpura at Morwan.
The High Court referred to an article
published in 'Sudesh in the issue dated 30 November, 1966. There was an article
written by Swamiji of Bhanpura. The High Court observed that Swamiji of
Bhanpura wrote in that article that the killing of cow was one manner of
killing God, and, therefore, it was extremely probable that a person who held
that view would while speaking of cow protection give a deeply religious
complexion and would condemn those who did not share his views. This is a
strange logic. We are unable to accept the evidence of the respondent and his
witnesses that there was any speech at Morwan that to vote for the Congress
would be to commit the sin of cow killing.
The respondent's further case is that Swamiji
of Bhanpura delivered a speech at Singoli on 15 February, 1967. This speech was
also alleged by the respondent to be an appeal on the ground of religion and a
threat that the voters would incur divine displeasure if they voted for the
'cow killing Congress'. The High Court relied on the evidence of P.W. 16 Paras
Ram and P.W. 17 Bhanwar Lal. Paras Ram was confronted with a document Exhibit
R-1/50. That document contains the minutes of the meeting of the Congress party
at Singoli on 26 August, 1966. The name of Paras Ram is mentioned there.
The name of one Ratan Lal is also mentioned
there. The High Court held that Paras Ram was a common name and there was
nothing to show that Paras 970 Ram in Exhibit R-1/50 was the same Paras Ram who
appeared as a witness.
Paras Ram said that Madan Lal Sharma a Jan
Sangh worker made an announcement about the meeting. Madan Lal Sharma R.W. 16
gave evidence on behalf of the appellant and denied that he made any
announcement. The High Court relied on the crossexamination of Bhanwar Lal P.W.
17. Bhanwar Lal in his evidence stated that Madan Lal Sharma of Singoli made
the announcement. It was suggested to Bhanwar Lal in crossexamination that
there was no such announcement. The High Court read that suggestion to mean
that there was no person of the name of Madan Lal Sharma in existence. That is
totally misreading the suggestion. It is also not reading the evidence of Madan
Lal Sharma R.W. 16 in the correct perspective.
Paras Ram was living at Nimech for the last
15 'years. The respondent also admitted that Paras Ram lived at Nimech.
Paras Ram said that he never attended any
meeting excepting the one at Singoli. Paras Ram narrated the speech of Swamiji
from memory. He also said that he never had any discussion with any witness or
even with the respondent about the speech. If that were so, the respondent
would not be able to call Paras Ram as a witness. This attitude is typical of
almost all the witnesses on behalf of the respondent. The witnesses wanted to
give the appearance of detachment and disinterestedness. The evidence indicates
that they were coached and they were not only interested in the Congress
Organisation but also in the case of the respondent.
Paras Ram denied that there was any case
pending against him under section 107 of the Criminal Procedure Code. When. he
was confronted with Exhibit R-1/4 he admitted that he was prosecuted. He also
admitted that the respondent was his counsel in suits which were pending
against him. Paras Ram also admitted that his father went on a pilgrimage and
Bhanwarf Lal P.W. 17 was taken by his father. Paras Ram said that he came to
court in the company of Bhanwar Lal.
Bhanwar Lal was known to the respondent. The
respondent was his lawyer. Bhanwar Lal cooked for Congress workers. He came to
Singoli for election purposes. Bhanwar-lal admitted that he went with the
father of Paras Ram on a pilgrimage.
Bhanwar Lal remembered the speech of the
appellant at Singoli, on 29 January, 1967 as also the speech of Swamiji of
Bhanwar Lal and all other witnesses who spoke
about the speech of Swamiji narrated the 'same in the same language and in the
same order. The first part of the speech related to cow, the second part being
an appeal to religion and the third part related to an 972 pattern of evidence
We are unable to hold on the entire evidence that there was any appeal on the
ground of religion or that there was any threat to voters of divine displeasure
if they voted for the Congress.
The respondent alleged that there was a
meeting at Diken on 15 February, 1967 where Swamiji of Bhanpura spoke. The
allegations are that there was an appeal on the ground of religion. The
respondent produced two witnesses Shanti Lal P.W. 10 and Ram Bilas P.W. 1 1.
Shanti Lal's evidence was that the cow
slaughter should be stopped and Monday gyaras was a holy day and all should
vote for Jan Sangh and thus earn happiness and bliss and it was the duty of
every Hindu not to vote for cow killing Congress. This evidence does not support
the respondent's case. Shanti Lal said that his family left on 10 February,
1967. His family members went to Byama in Rajasthan to attend a marriage
ceremony. Shanti Lal however said that he stayed on. He left on 16 February,
1967 ,and returned on 28 February, 1967. This was to make it possible for him
to be present at Diken on 15 February, 1967.
Ram Bilas P.W. 11 narrated the speech of
Swamiji of Bhanpura. He however said that he had no talk with the respondent.
It becomes difficult to follow as to how the respondent would know about the
presence of the witness at Diken and then cite him as a witness.
The respondent gave an undertaking to this
Court to produce the witness for cross-examination. The witnesses however were
not produced. That is another reason to hold that the respondent's case was not
For the foregoing reasons the judgment of the
High Court is set aside. The election petition is dismissed.
The trial in the High Court lasted over 180
days. Both parties should have conducted the case with precision and clarity.
The parties could have shortened the matter.
Both parties are to pay and bear their own
costs. in the High Court as well as in this Court.
G.C. Appeal allowed.