Prabhu Narayan Vs. A. K. Srivastava
[1975] INSC 36 (14 February 1975)
ALAGIRISWAMI, A.
ALAGIRISWAMI, A.
KRISHNAIYER, V.R.
SARKARIA, RANJIT SINGH
CITATION: 1975 AIR 968 1975 SCR (3) 552 1975
SCC (3) 788
CITATOR INFO :
F 1975 SC1788 (6) F 1976 SC2169 (7,9,18) RF
1991 SC1557 (25)
ACT:
Representation of the People Act (43 of 1961)
Section 83 and 123 and Conduct of Election Rules, r. 94A--Proviso to s. 83(1)--Scope
of.
HEADNOTE:
In the election to the State Legislative
Assembly the respondent was declared elected and the appellant, the congress
candidate filed an election petition challenging the election on various
grounds, one of which was that the respondent was guilty of corrupt practice
under s. 123(4) 'of the Representation of the People Act, 1951, in that certain
pamphlets were published by him or with his consent.
The petition was dismissed by the High Court,
Allowing the appeal to this Court,
HELD : I (a) There is no substance in the
preliminary objection of the respondent that the election petition should have
been dismissed on the ground that it did not comply with the requirements of s.
83 of the Act and that the evidence of printing the pamphlets, in any event,
should not have been admitted. [553D-F] The charge against the respondent in the
election petition was that the respondent was responsible for the publication
of the pamphlets and not their printing. Evidence regarding printing was only
relied upon to corroborate the evidence regarding distribution of the
pamphlets. )"en s. 123(4) speaks of publication it means distribution.
Therefore, failure to give particulars of the printing in the affidavit in
support of the election petition cannot lead to the dismissal of the petition;
nor could evidence regarding it be shut out. The proviso to s. 83(1) lays down
that where the petitioner alleges any corrupt practice the petition should also
be accompanied by an affidavit in the prescribed form in support of the
allegation of such corrupt practice and the particular,-, thereof. It does not
say that the allegation of corrupt practice and particulars thereof should be
given in the affidavit. The election petition contains the ,allegations of
corrupt practice and particulars thereof. The Form 25, which is the one
prescribed under r. 94A of the Conduct of Election Rules also show.,; that this
was the intention of the Legislature.
In the present case the affidavit filed in
support of the election petition is in accordance with that prescribed form.
[553F-H] Virendra Kumar Saklecha v. Jagjivan, [1972] 1 SCC 826 and Krishan
Chander v. Ram Lal, [1973] 2 SCC 789, referred to.
(b) Furthermore, according to s. 86 of the
Act only petitions which do not comply with the provisions of ss. 81, 82 and
117 are liable to be dismissed. [555C] (2) The High Court was wrong in
rejecting wholesale every bit of evidence adduced on behalf of the appellant.
Even taking the evidence adduced on behalf of the appellant of only
non-congress witnesses. that evidence establishes that the people who got
printed the various pamphlets are close supporters of the respondent. Those
persons had no special grievance against the appellant but all the pamphlets
have been printed with the definite purpose of harming the chances of the
appellant in the election and thereby aiding those of the respondent. The plan
and the direction could therefore have come only from one source and that is
the respondent. Hence, it must be held that the respondent was guilty of the
corrupt practice under s. 123(4) in respect of the pamphlets. [561D-E, G; 562C]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1174 of 1973.
From the judgment and order dated the 5th
April, 1973 of the Madhya Pradesh High Court in Election Petition No. 29 of
1972.
553 Y. S. Dharamadhikari, T. P. Naik and A.
G. Ratnaparkhi, for the appellant.
S. K. Gambhir and V. J. Francis, for the
respondent.
The Judgment of the Court was delivered by
ALAGIRISWAMI, J. In the election held on 11th March, 1972 to the Legislative
Assembly of Madhya Pradesh from Damoh constituency the respondent, an
independent candidate, was declared elected. The appellant, the Congress
candidate filed an election petition for declaring the election of the
respondent void on various grounds all of which were found not proved by the
learned Judge of the High Court of Madhya Pradesh who tried the petition. The
petition was consequently dismissed and this appeal is against that dismissal.
We are concerned only with the charge of
corrupt practices under section 123(4) of the Representation of the People Act
in respect of five pamphlets marked Exs. P-3, P-4, P-5, P-6 and P-8 and two
public meetings held on 4-3-1972 and 8-3- 1972.
At the beginning of the arguments an
objection wag raised on behalf of the respondent that the election petition
should have been dismissed on the ground that it did not comply with the
requirements of section 83 of the Representation of the People Act. This was on
the basis that the affidavit filed in support of the election petition did not
give details as to the material particulars in respect of the various corrupt
practices with which the respondent was charged. It was argued in the
alternative that in any case no evidence should have been admitted. As far as
this appeal is concerned both amount to the same thing because charges with
which we are concerned are charges under section 123(4). We do not think that
there is any substance in this contention on behalf of the respondent.
On behalf of the appellant it was made clear
that the only charge made in the petition was the charge of publication of the
pamphlets and not their printing and evidence regarding the printing was relied
upon only to corroborate the evidence regarding distribution of the pamphlets.
It is obvious that when section 123 (4) speaks of publication it means
distribution. Mere printing of the pamphlets would not fall under section 123
(4). Therefore the failure to give particulars of the printing cannot lead to
the dismissal of the petition. Nor could evidence regarding it be shut out. The
proviso to section 83(1) lays down that where the petitioner alleges any
corrupt practice, the petition shall also be accompanied by an affidavit in the
prescribed form in support of the allegation of such corrupt practice and the
particulars thereof. It does not say that the allegation of corrupt practice
and particulars thereof should be given in the affidavit. The election petition
contains the allegation of corrupt practices and particulars thereof. That this
is the intention of the Legislature is also clear from a perusal of Form 25, which
is the one prescribed under Rule 94A of the Conduct of Elections Rules.
The affidavit filed in support of the
election petition is in accordance with that form.
554 Reliance was placed on behalf of the
respondent on the decision of this Court in Virendra Kumar Saklecha v. Jagjivan(1).
In that case Rule 9 of the Madhya Pradesh High Court Rules in respect of
election petitions, which states that the rules of the High Court shall apply
in so tar as they are not inconsistent with the Representation of the People
Act, 1951 or other rules, if any made there under or the Code of Civil
Procedure in respect of all matters including inter alia affidavits, was
referred to. On the basis of that rule Rule 7 of the Madhya Pradesh High Court
Rules which-states that every affidavit should clearly express how much is a
statement made on information or belief and must also state the source of or
grounds of information or belief with sufficient particularity, was stated to
mean that grounds or sources of information are to be set out in the affidavit.
This would really mean that the allegations found in the body of the election
petition would have to be repeated in the affidavit. However, in that case the
failure to conform to Rule 9 and Rule 7 of the Madhya Pradesh High Court Rules
was not held to be fatal to the. election petition. What was said was that it
would be helpful in assessing the value of the evidence. But that purpose is
served by the allegations in the election petition itself. Moreover, it appears
to us that the provisions of Rule 9 of the Madhya Pradesh High Court Rules
regarding the election petitions framed by the Madhya Pradesh High Court by
reference to Rule 7 of the Madhya Pradesh High Court Rules found in Chapter III
regarding affidavits cannot be made use of for this purpose. The former set of
rules are made under Article 225 of the Constitution and cannot make any
substantive law and the rules themselves on a perusal of them would show that
they relate merely to procedural matters unlike rules made under section 122 of
the Code of Civil Procedure.
In Krishan Chander v. Ram Lal(2) it was
pointed out that :
"When there are specific Rules made
under the Act which govern the election petitions, no other Rules are
applicable. Nor is disclosure of the source of information a requisite under
Order- 6, Rule 15 (2), C.P.C. Decisions rendered under Order 6, Rule 15 and
Order 19, Rule 2 of the Code of Civil Procedure have no relevance and do not
support the submission that if the affidavit in support of the petition does
not state the source of information on which the several allegations in the
petition are based, those allegations cannot be deemed to have been made.
The provision for setting out the sources of
information where the allegations have been verified as having been made on
information and knowledge of the petitioner is not a requisite prescribed under
Rule 94-A of the Conduct of Election Rules, 1961, which are applicable to the
filing of an election petition.
The affidavit in support of an election
petition need not itself disclose the sources of information. The election
petition under Section 83 (1) (b) itself must contain all the (1) [1972] 1 SCC
826.
(2) [1973]2 SCC 759.
555 particulars that are necessary and in the
affidavit in support of the petition( the petitioner is required to say which
of the allegations made in various paragraphs of the petition are true to his
knowledge, and which of them are true to his information. If any source of
information has not been set out and the respondent cannot answer them without
particulars, he can always apply for better.
particulars. If the petition and the
affidavit conform to the provisions of the Act and the Rules made thereunder,
it cannot be said that because the sources of the information have not been
given, the allegations made in the petition have to be ignored.
This accords with the view which we have
taken.
Furthermore, according to section 86 of the
Representation of the People Act only petitions which do not comply with the
provisions of Section 81 or Section 82 or Section 117 are liable to be
dismissed. We, therefore, overrule the preliminary objection.
With respect to these five documents there is
no dispute that they fall within the mischief of section 123 (4) and it is therefore
unnecessary to set out the contents of these pamphlets, nor was it seriously
contended except in the case of Ex. P-8 that they were not circulated. The only
question is whether the circulation was made by the respondent or with his
consent. In considering this question it is important to bear in mind that all
the persons who admit that they printed these pamphlets are workers of the
respondent. We will deal with the evidence in due course. It is necessary to go
into the question of the printing of these pamphlets because evidence regarding
it will have a bearing on their distribution either by the respondent or by his
supporters with his consent. Though as many as 67 witnesses were examined and
28 of them with regard to publication, the learned trial Judge has rejected all
of them. Where the question of publication and distribution is a matter to be
decided on the basis of oral evidence, it is easy to dispose of them by saying
that it is of persons interested in the appellant. That is why a discussion of
the question regarding the printing should provide a satisfactory method of
assuring oneself as to whether the distribution was made as alleged by the
appellant.
We shall now take up the question regarding
Ex.P-3 first.
It has admittedly been printed by M. S. Suman.
It was printed at Chhabi Printing Press. This M. S. Suman was polling agent of
the respondent. Chhabi Printing Press was next to the residence of the
respondent. P.W.66, the son of the owner of the printing press gave evidence
that the manuscript for the pamphlet was given to Suman for correction and the
respondent himself made the correction.
P.W.67 gave evidence that Suman placed the
order for Ex.P-3 and produced the Order Book, Ex.P-19. He also gave evidence
that the manuscript was given to him by the respondent who was accompanied by
Suman and one Vinod Kumar Rai. Exs. R.9 and R.10 are the declarations in
respect of the pamphlet given by Suman. Admittedly also the respondent bad
placed other orders with Chhabi Printing Press. Ex.P-3 and Ex.P-52 show that
one of the payments out of the total sum of Rs. 130 mentioned in these receipts
corresponds to a sum of Rs. 50 said to bave been paid for this printing.
Ex.P-52 was 556 filed by the respondent along with the account of his election
expenses. P.W.1 gave evidence that Suman worked for the respondent in the
election and he and Vijay Kumar Agarwal, who is responsible for the printing of
Ex.P-4, accompained the respondent on his election propaganda.
Respondent's witness, Vijay Kumar Malaiya,
R.W. 3, also admits that Suman worked for the respondent. Therefore, even if
that part of the evidence of P.Ws.66 and 67, where they speak to the
respondent's part in the printing of this pamphlet is not accepted, it is
obvious that Suman is a person very much interested in the respondent and there
is no particular reason why he should print a defamatory pamphlet against the
appellant. We are led to believe that inspiration for printing that pamphlet
must have come from the respondent. We are not impressed with the evidence of
Suman that the pamphlets were not handed over to him before 11.3.72 and so it
was not distributed. It was merely an attempt indirectly to deny distribution.
He even went to the extent of saying that he did not work for the respondent.
The next pamphlet is Ex. P-4. It was got
printed by one Vijay Kumar Agarwal, a mere boy of 14 or 15 years. It was
printed at the Jawahar Press where his father's paper was printed. According to
Vijay Kumar Agarwal, who was examined as R.W.18, he got this Ex.P-4 printed
because Ex.R-24 contained the merits of the appellant and the demerits of the
respondent. But Ex.R-24 does not say anything about the merits of the
appellant. He says that he gave the order for printing it at 8.30 p.m. and he
got it at 11.30 p.m. and he distributed it to any person who met him in the
bazar and went home thereafter. We are unable to accept this part of the
evidence. This is merely an attempt to belittle the distribution. Though he
also gives as a reason for his printing Ex.P-4 that his father was called to
the police station, that was nearly four years earlier and that is hardly
likely to be a reason for his printing it. He went to the extent of saying that
he did not work for the respondent in the election and he did not support the respondent
in the election. A reading of the pamphlet clearly shows that it could not be
his handiwork, that the brain behind it is some body else's, whether it is
Santosh Bharti's to whom he took it or not. He is one of the persons whose name
prominently appears among those who worked for the respondent in the election.
He is also a young boy of 14 or 15. Here again we are led to believe that
Ex.P-4 was not printed by Vijay Kumar Agarwal on his own but that it should
have been done at somebody else's instance and that being incompatible with any
other author, could only be the respondent.
Exhibit P.5 was printed by one Om Prakash
Rai. It was printed at the Chhabi Printing Press on 18-2-72. This Om Prakash
Rai was a very prominent worker of the respondent.
The respondent did not even dare to put Om
Prakash Rai on the witness stand to deny the fact that he printed Ex.P-5 with
the consent of the respondent. He was so deeply committed to the respondent
that it would have been very difficult for him to explain why he printed it. In
the circumstances we do not think that the learned judge was correct in
rejecting 557 the evidence of P.Ws. 66 and 67 who speak to the respondent's
part in it and the payment made by him. We see no improbability in the receipt
for the payment being dated 27.2.1972 and the payment being made on 18.2.1972.
This expenditure, also is shown in respondent's account of the election
expenses.
Then we come to Ex.P-6. This purports to have
been published by a certain Jagruk Matdata Parishad. Whether there was such a
Parishad or not, there was a Samyukta Morelia and that Morelia was supporting
the respondent. It consisted of almost all non-Congress parties. The
declaration in respect of this document was given by one Ajit Modi who also is
an active worker of the respondent. His brother and father also were
respondent's partisans. Our conclusion about this document is the same as in
respect of the other documents.
The last document for consideration is
Ex.P-8. It was printed in the Kailash Printing Press and the son of the
proprietor was examined as P.W.64. He spoke to the respondent's part in the
printing of this document. One of the reasons for disbelieving him was that his
father also gave evidence. But his father did not give any evidence prejudicial
to the respondent. The printing of this pamphlet was admitted by R.W.2, Ramesh
Chand Jain, an advocate, who got it printed along with Atul Kumar Shrivastaya,
a cousin of the respondent. But their case was that it was printed in order to
present it to the Chief Minister, Mr. P. C. Sethi when he was expected to visit
Damoh on 28-2-1972 and as he did not do so the pamphlets were destroyed.- It is
an impossible story and we refuse to believe it. If they wanted-to make any
representation it was not necessary to print 2000 copies. We do not believe
those would have been destroyed. This again is an attempt to meet the case of
distribution. Both Atul Kumar Shrivastaya and Ramesh Chand Jain are very strong
partisans and workers for the respondent and here again we are satisfied that
they should have been printed with the consent of the respondent.
The learned Judge has, as we have already
observed, disbelieved all the evidence on behalf of the appellant. If the
witness was a Congress man he was not to be believed as he was a Congress man.
The respondent would not have been foolish enough to hangover the pamphlets to
the witness. If he was a non-Congress man he was a tenant of a Congress man or
a tenant of a relative of a Congress man and therefore could not be believed.
In certain cases he has disbelieved the evidence of witnesses on the ground
that they were not on visiting terms with the respondent. But elections being
what they are no candidate could afford to ignore a voter on the ground that
the voter had not visited him nor he could be disbelieved on the ground that he
had not gone to the voter earlier. Elections take the candidates to all sorts
of places. If a witness said that he did not tell the appellant about his
having received the pamphlet a doubt is raised as to how the appellant knew
about the distribution of the pamphlet. Many of the criticism are very
unsubstantial. However we would discuss this question solely on the evidence of
non-Congress witnesses and show how the evidence regarding distribution is
quite acceptable.
558 P.W.1 is a member of the Bhartiya Jan
Sangh. He is the Vice President of the Mundal Jan Sangh of Damoh. The
respondent had the support of the Bhartiya Jan Sangh Bhartiya Kranti Dal and
Congress (0). He had gone along with Om Prakash Rai for canvassing for the
respondent. Vijay Kumar Agarwal and Suman also accompained him. According to
this witness Raghubar Modi, father of Ajit Modi, who printed Ex.P-6, Umanath
Agarwal father of Vijay Kumar Agarwal, and Vinod Rai were workers of the
respondent. Om Prakash Rai was an active canvasser in the election campaign of
the respondent.
The only criticism against him was that he is
a tenant of Shri Prabhudayal Mukhariya, a good Congress worker. Om Prakash Rai
is an active member of the Jan Sangh. We see no reason why his evidence as far
as it goes cannot be accepted. It helps to fix the role of many of the persons
who played an important part in the publication of the pamphlets.
P.W.2 is a doctor holding a M.B.B.S. degree,
who has been practising in Damoh since 1936. He is a member of the Hindu
Mahasabha. He was also the President of the Hindu Mahasabha at Damoh and a
Secretary of the Provincial Hindu Mahasabha.
He speaks to having attended the meeting
dated 4th March, 1972 and of Vijay Kumar Malaiya, Om Prakash Rai, and
Raghubarprasad Modi father of Ajit Modi, being present on the dais and to the
respondent proposing Vijay Kumar Malaiya to the Chair. Om Prakash Rai also
spoke at that meeting.
He also speaks to the respondent having given
him Exs.P-3, P-4 and P-5 on 10th March, 1972. It was elicited from him that he
was a tenant of a cousin of the appellant. To a question by the Court he said
that he had no visiting terms with the respondent but he added that the
respondent must have come to his house as he was distributing the leaflets.
We see no reason why this witness should not
be believed.
The learned judge's criticism regarding this
witness and the rejection of his evidence cannot be supported.
P.W.4 is a kirana shopkeeper. He had taken no
interest in the election of any candidate. He speaks about the meeting presided
over by Vijay Kumar Malaiya who was proposed by the respondent as the
president. He speaks to Raghubar Prasad Modi speaking at that meeting as also
to Om Prakash Rai's speech. He speaks to the presence of P.W.2 at that meeting.
P.W.5 is a retired Sub-Inspector of Police.
He speaks to his having attended the meeting on 4-3-1972 and refers-to the
speech made by Raghubar Prasad Modi, Om Prakash Rai and the respondent. He also
speaks to the respondent having given him Exs.P-3, P-4 & P-5 on 10th March.
He was not working for any candidate in the election. A suggestion made to him
was that his brother was sentenced to death in a murder case and the murdered
man was a relative of the respondent.
P.W.6 does not belong to any political party
nor did be work for any of the candidates in the election. He speaks to the
meeting held on 4th March 1972 to support the respondent addressed by Om
Prakash Rai; Vijay Kumar Malaiya and also to the respondent giving him
pamphlets Exs.P-3 and P-4.
559 P.W.7 is a retired Assistant Conservator
of Forest and belongs to no political party and he did not work for anybody in
the election. He speaks to the respondent giving him Exs.P-3 and P-4.
P.W. 11 speaks to respondent having given him
Ex.P-3. He is not shown to belong to, any party.
P.W.19 is a member of the Jan Sangh and he
publishes-a news- paper 'Bundeli Garjanis'. He speaks to P.W.1 and Om Prakash
Rai working for respondent, as also Raghubar Prasad 'Modi and his sons Ajit
Modi and Kamal Modi, Uma Agarwal and his son V. K. Agarwal as well as Atul
Kumar Shrivastav, respondent's cousin.
P.W.24 is a member of the Jan Sangh party who
worked for the respondent in his election. He speaks to respondent giving him
Exs. P-3 and P-4. He speaks to Om Prakash Rai being present along with the
respondent at that time. He speaks to respondent giving him 10 or 11 leaflets
for distribution.
P.W.26 worked for the respondent in his
election. He speaks to respondent accompanied by Vinod Kumar Rai having come to
his Mohalla and his being given leaflets for distribution. He also speaks of
having gone to the respondent's house and having seen Vinod Kumar Rai there.
P.W.65 is another witness who was engaged by
the respondent to distribute the pamphlets.
It is unnecessary to go on multiplying the
evidence. We have deliberately excluded the evidence of Congressmen, Congress
sympathisers or people who had worked for the Congress candidate. It is
interesting to see the way that the learned Judge has dealt with this question
of distribution He says that the respondent is a practicing lawyer and had
contested three elections and it does not look probable that he would have gone
with Suman and Vinod Kumar Rai to the printing press for getting Ex.P-3
printed.
P.W.2's evidence is not believed on the sole
ground that if the respondent had been careful ,'enough to have Ex.P-3 printed
through a worker he would not himself go on distributing the pamphlet. There is
also a factual mistake in that the learned Judge seems to proceed on the basis
that P.W.2 is a Congressman which he is not. P.W.5's evidence is not accepted
because he had not told anybody about the distribution of the pamphlet. P.W.6
is taken to be an interested witness because he had shown the pamphlet to the
appellant. But immediately thereafter the learn-,-,-' Judge goes on to say that
it is worthy of note that no one amongst the witnesses, although they were
local and some of them were very much interested in the appellant, either gave
the pamphlets said to be received by them to the appellant himself or to his
brothers. We lo not see the interest for them to give the pamphlets to the
appellant is the distribution seems to have been well-known. P.W.7 is said to
be an interested witness because he said he only received two pamphets and that
he was not aware whether any pamphlets on behalf of the Congress candidate was
distributed or not.
P.W. 11 is disbelieved on the basis that the
respondent would not have had time to distribute it at Damoh having been
present at village Bhuri some time earlier and in Bilai sometime later. It
appears one has to pass through Damoh 560 on way from Bhuri to Bilai. Nor could
we agree that because this witness's brother, who is an advocate was not given
a pamphlet it is surprising that the respondent would himself distribute the
Newspaper and the pamphlet to the witness in the presence of his brother lawyer
and involve himself in a corrupt practice. The substance of the learned Judge's
criticism about most of the evidence regarding distribution is that the
respondent an advocate a person well seasoned in election matters would not
himself distribute the pamphlets.
The evidence of P.Ws.38 and 39 is not
believed, one of the reasons for that being that respondent had engaged P.Ws.
26 and 65 for distribution, he himself would not do so. We consider that the
evidence of P.Ws.26 and 65 has been rejected on unsubstantial grounds.
We should mention, however, that we do not
place any reliance upon the evidence of Raghvendra Singh Hazari, R.W.5 about
the distribution of the pamphlets. We are thus satisfied that the distribution
has been made by the respondent himself in some cases as also through P.Ws.26
and
65. The part played by his storng supporters
and relatives in bringing into existence the various pamphlets goes to
probabilise the distribution of the pamphlets either by the respondent or at
his instance.
We shall now see how the learned Judge deals
with the question of printing. The learned Judge considers that P.W.66 has been
brought in simply to connect the respondent with Ex.P-3. Vijay Kumar Malaiya
says that Raghubar prasad Modi of the B.K.D. as well as Ramesh Chand Jain used
to attend sometime the meetings of the Samyukta Morcha.
Raghubar prasad Modi is the proprietor of the
Jawahar Printing Press. He gives the names of Vijay- Kumar Agarwal, Om Prakash
Rai, Vinod Kumar Rai, Ramesh Chand Jain and Rammanohar Shrivastaya the election
agent of the respondent as respondent's supporters. He also says that whatever
election campaign was done for the respondent by the Samyukta Morcha it was by
occasional consultation with the respondent that he is not able to say whether
each worker and supporter of the respondent did every thing in connection with
the election in consultation with the respondent. He speaks of Om Prakash Rai
working for the respondent. R.W.2, Ramesh Chand Jain, gives the name of
Raghubar prasad Modi, Ajit Modi's father as one of the members of the Samyukta
Morcha, In the face of this evidence it is difficult to accept the respondent's
evidence that Atul Kumar Shrivastav, Suman, Om Prakash Rai and Ajit Modi were
not his agents; so also the assertion that Om Prakash Rai had never accompanied
him in his election campaign.
Similarly his denial that he was not financed
by the Samyukta Morcha and he himself did not finance it. He however had to
accept that Ramesh Chand Jain, Atul Kumar Shrivastav and Om Prakash Rai worked
for him. He went to the length of denying that the cash memo Ex.P.5 1, which
bears the name of his own election agent, Ram Manoharlal Shrivastaya relates to
his election expenses and he does not know who is that person. He has filed
Exs.P-52 and P-53 along with his election expenses and admits that Ex.P-52 is
the original of Ex.P-23 and Ex.P-53 is the original of Ex.P- 51. Only
thereafter was he compelled to admit 561 that he had got some printing done
from the Chhabi Printing Press. He even pretended- that he did not know that R.
K. Shrivastava's signature is found it Ex.P-53 and could not say whether he was
the son of his election agent Rammanoharlal Shrivastava or not. R. K.
Shrivastava as well as Raghubarprasad Modi's son Suresh Chand were his polling
agents. He had to admit that Ex.P-68 bears the signature of Om Prakash Rai,
which is a declaration for Fx.P-5. He had also. to admit that Ex.P-69 and
Ex.R-21 bear Om Prakash Rai's signatures. He had to admit that Ex.P-71, the
declaration from for Ex.P-70, which' was printed by him, bears his signature
and one of the identifying witness is Vinodkumar Rai. His extensive
prevarication during the course of his evidence clearly shows that he is not a
person on whose evidence much reliance can be placed. See paras 38 to 40 and 43
to 47 of his evidence.
It is difficult to accept the assertion of
Sum-and who says that cc did not work for the election of the respondent. He
was his polling agent and a person who gets a pamphlet like Ex-P-3 printed is
certainly not a disinterested person.
After a thorough and anxious examination of
the evidence in this case we have come to the conclusion that the people who
got printed Exs.P-3, P-4, P-5, P-6 and P-8 are close supporters of the
respondent. They have no special grievance against the appellant, certainly not
enough to make them go to the extent of having them printed of their own. Two
of them, Vijay Kumar Agarwal and Suman are mere boys of 14 and 15. They have
merely been made use of by somebody and that somebody in the proved
circumstances of this case could only be the respondent. We are not able to
accept the evidence of Vijay Kumar Agarwal that he got the pamphlets at 11.30
p.m. on the night of the 10th March and he distributed it to a few people. Nor
are we able to accept the evidence of Suman that though he gave the matter- for
printing on the 10th he got the pamphlets only on the 1 1 th and so he did not
distribute them. We find the evidence of P.Ws.66 and 67 that it was given for
printing on the 9th more acceptable. We are unable to accept the assertion of
Ramesh chand Jain that he got Ex. P-8 printed in order to band it over to the
Chief Minister- when he was due to arrive at Damoh on the 28th of February but
that he destroyed them because the Chief Minister did not turn up.
AR these pamphlets have been printed with a
definite purpose that is of harming the chances of the appellant in the
election and thereby aiding the respondent. The plan and the direction could
have come only from one source that is the respondent. He has made use of his
supporters, two of them young boys of 14 and 15, to get the pamphlets printed
in their names so that they could take the responsibility and he may disown the
responsibility for them.
We have discussed the evidence of only
non-Congress witnesses and we can see no reason to reject them. We do not agree
with the learned Judge who rejected wholesale every bit of evidence adduced on
behalf of the appellant.
Whether the evidence of P.Ws. 66 and 67 about
the part played by the respondent with regard to the pamphlets printed in the
Chhabi Printing Press and of Kailash Chand Nakra with 562 regard to the
pamphlets printed in the Kailash Press are correct or not, we are convinced
beyond reasonable doubt that the respondent is the ,guiding brain and hand
behind all of them. He and his supporters must have planned all these things
together. He has made his witnesses admit just enough so that a red herring
might be drawn across the trail and blame may attach to them and not to him.
The fact that 'be is an advocate or that it is the third election in which he
is standing is no guarantee against his being responsible for this.
Then there is the question of two meetings
dated 4.3.1972 and 8.3.1972. We do not think it necessary to examine this
branch of the case in view of the earlier findings.
In the result therefore we hold that the
respondent is guilty of a ,corrupt practice under section 123(4) in respect of
the pamphlets Exs.P-3, P-5, P-6 and P-8.
The appeal is allowed and the respondent's
election is declared to be void. The respondent will pay the appellant's costs.
Appeal allowed.
V.P.S.
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