PETITIONER:
THAKUR VIRENDRA SINGH
Vs.
RESPONDENT:
VIMAL KUMAR
DATE OF JUDGMENT08/09/1976
BENCH:
SINGH, JASWANT
KHANNA, HANS RAJ
UNTWALIA, N.L.
CITATION:
1976 AIR 2169 1977 SCR (1) 525
1977 SCC (1) 718
ACT
Representation of the People Act, 1950--Election Peti-
tion--Not accompanied by impugned pamphlet--If liable to be
rejected--Printer---If could be called an accomplice--Fail-
ure to send pamphlet to District Magistrate as required by
S. 127--A(2)--If makes the Printer an accomplice.
HEADNOTE
The respondent, who was an unsuccessful candidate in the
general election to the State Assembly, impugned the appel-
lant’s election on the ground that he had committed a cor-
rupt practice within the meaning of s. 100(1)(b) of the
Representation of the People Act, 1950, in that he had
printed and circulated a pamphlet maligning the respondent.
Allowing the petition, the High Court set aside the elec-
tion.
In appeal to this Court it was contended on behalf of
the appellant as a preliminary objection (i) that since the
election petition served on the appellant was not accompa-
nied by a copy of the impugned pamphlet, the petition _was
liable to be dismissed and (ii) that the evidence of the
Manager (P.W. 24) of the Press in which the pamphlet had
been printed, being that of an accomplice could not be
relied upon.
Dismissing the appeal,
HELD: (1) (a) The petition could not have been dismissed
in view of s. 99 of the Code of Civil Procedure which clear-
ly says that a defect which does not affect the merits of
the case or the jurisdiction of the Court cannot invalidate
the decision. [529 D]
(b) It is well settled that failure to give particulars
of printing of the pamphlet is not detrimental and cannot
lead to the dismissal of the petition. [529 D]
Prabhu Narayan v.A.K. Srivastava, [1975] 3 S.C.C. 788 re-
ferred to.
In the instant case, the allegations of corrupt practice
and particulars thereof given in the election petition were
sufficiently clear and precise. The affidavit conforms to
the form prescribed for the purpose. Moreover, the appel-
lant had an easy access to the Court record and could have
no difficulty in gathering the necessary material to meet
the case set up by the respondent by a reference to the
leafet. [529 C]
(2) (a) The mere fact that P.W. 24 printed the offending
leaflet could not clothe him with the character off a guilty
associate or partner in the crime of corrupt practice within
the meaning of s. 123(4) of the Act. [530 D]
(b) Moreover, the omission on the part of P.W. 24 to
send to the concerned District Magistrate a copy each of the
declaration and the printed material as required by s. 127-
A(2) of the Act may lay him open to prosecution for art
offence under sub-s. (4) of that section but would not make
him an accomplice or render his statement untrustworthy.
[530 F]
In the instant case, P.W. 24 was neither an election
agent of the appellant nor was there any allegation that he
published the offending leaflet. Despite the searching
cross-examination to which he was subjected, his credit had
remained unshaken. [530 E]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1212 of 1974.
From the Judgment and Order dated 26-4-74 of the Madhya
Pradesh High Court in Election Petition No. 4/72.
526
Hardayal Hardy and S.K. Gambhir, for the Appellant.
D.V. Patel, B. Jindal, M.M.L. Srivastava and E.C. Agarwa-
la, for the respondent.
The Judgment of the Court was delivered by
JASWANT SINGH, J.--This appeal under section 116-A of
the Representation of the People Act, 1951 (hereinafter
referred to as ’the Act’) is directed against the judgment
and order dated April 26, 1974, of Indore Bench of the High
Court of Madhya Pradesh whereby the election of the appel-
lant to the Madhya Pradesh Legislative Assembly from Kha-
chrod Assembly Constituency No. 247 at the general
elections of 1972 has been set aside under section
100(1)(b) of the Act on the election petition filed by Vimal
Kumar Choudhury, respondent herein, who Was an elector in
the said constituency.
Pursuant to the notifications issued under section 30
of the Act calling upon the aforesaid constituency to elect
a member to the M.P. Legislative Assembly, nomination papers
by the appellant and some others were filed on February 8,
1972. On scrutiny of the nomination papers held by the
Returning Officer on February 9, 1972, nomination of 8
candidates was found valid. Out of the said 8 candidates, 3
withdrew their candidature with the result that only five
candidates including the appellant who was set up by Bhar-
tiya Jan Sangh and Rajendra Jain (p.W. 39) who was set up
by the Indian National Congress contested the election.
The poll took place on March 8, 1972. On March 12, 1972,
the appellant was declared elected as a result of counting
of the polled votes which showed that he had secured 23,572
votes as against 22,327 secured by Rajendra Jain (P.W. 39),
his nearest rival. On April 24, 1972, the respondent
herein presented an election petition challenging the elec-
tion of the appellant alleging commission by the latter of
various acts of corrupt practices. The particulars of cor-
rupt practices alleged to have been committed by the appel-
lant were set out by the respondent in Paragraphs 13, 14 and
15 of his election petition. In paragraph 13 of the elec-
tion petition, it was inter alia stated as under :--
"(13). That the respondent has committed the
corrupt practice of publication of false statement
of fact in relation to the personal character
and/or conduct of Shri Rajendra Jain (hereinafter
referred to as the ’Congress Candidate’) falling in
the purview of section 123(4) of the Act as per
the facts and particulars mentioned hereinafter.
Leaflet
(13)(xi). That the Congress candidate is the
follower of the Jainism wherein the eating of cow
meat is absolutely prohibited. Shri Rajendra Kumar
Jain does not eat meat at all. Amongst Hindus who
form a majority of the voters in the Constituency,
cow is regarded as a sacred animal and worshipped
like God. Persons who eat cow meat are looked with
hatred by the Hindus and are discarded from the
society.
527
(13) (xii).That the respondent/Election
Agent got printed and distributed a leaflet enti-
tled:
"Beware, understand the Congress Candidate."
(Leaflet is attached hereto and marked as Annexure
’A’).
(13)(xiii). That the leaflet Annexure ’A’
contains the following statement of facts which are
false, which the respondent either believed to be
false or did not believe to be true in relation to
the personal character and for conduct of the
Congress Candidate, being the statement reasonably
calculated to prejudice the prospects of Congress
candidate’s election:
" .... What to speak of other things, Rajendra
Jain went on tour to those countries where beef is
prepared and served in Hotels and there he took
beef even. Do you want to cast your vote in
favour of a person who is atheist who is a beef
eater and is devoid of Dharma .... "
(13) (xiv) . That the pararticulars re-
garding the date, place, time and name regarding
the distributors of Annexure ’A’ are given herein-
below :--
Sr. Date Place Name of Time
Distribution
(a) 5.3. 72 Khachrod (Shukar- Rampartap s/o About
variya Chouk)in Ramsukh 3.00 P.M.
the meeting of Jan Khachrod
Sangh at which
the respondent and
his election age-
nt Shri Amrudda Heda
were also present.
(b) 6. 3.72 Ramsingh 9.00 A.M. to
R/o Ganesh 11.00 A.M.
Chowk,
Birlagram,
Nadga.
The election petition was vigorously contested by the
appellant.In the course of the written statement filed by
him, the appellant denied to have any concern with or
knowledge of the aforesaid leaflet and averted that during
the election time, he never saw any such leaflet; that it
was only in the course of the election petition that he came
to know of the leaflet and that he had no knowledge of the
truth or falsity of the contents thereof. The appellant
further averred that it was only after the defeat of Rajen-
dra Jain that the story of the leaflet was manouvred and
manufactured for the purpose of the election petition.
The appellant further averred that he did not do anything to
prejudice the prospects of the election of Rajendra Jain.
On the pleadings of the parties, the learned Judge (to
whom the election petition was .assigned for trial and
disposal by the Chief Justice of the High Court) framed a
number of issues but it is only with the following issues
with which we are concerned in this appeal:--
528
"4) (a). Whether the leaflet Annexure ’A’ was
published by or with the consent of the respondent
by the persons and on the dates mentioned in para
(13)(xiv) of the petition ?
(b) If so, whether the said leaflet contained
false statements in relation to the personal char-
acter and conduct of the congress candidate Rajen-
dra Jain which the respondent did not believe to be
true or believed to be false ?"
On consideration of the evidence adduced by the parties
during the course of the regular trial of the petition, the
learned trial Judge allowed the election petition and set
aside the election of the appellant under section 100(1)(b)
of the Act. The findings arrived at by the learned Judge in
so far as they are relevant for the purpose of this appeal
are as follows :--
"Though the findings on most of ,the issues
are against the petitioner yet it has been found
that the pamphlet Ex. P-10 which was a false state-
ment with regard to the personal conduct and char-
acter of the candidate Rajendra Jain was got print-
ed by the respondent at the printing press of
P.W.34 Ramprasad. The defence raised by the re-
spondent with regard to this pamphlet has been
found to be not established. It has been held that
it was the respondent who himself by letter Ex.P-20
got this pamphlet printed in the printing press of
P.W. 34. Ramprasad. The evidence given by the
petitioner about its distribution by Ram Singh
(P.W. 21) and Rampratap Dhakad (not examined) with
the consent of the respondent has been disbelieved.
However, it has been found as a fact that it was
the respondent himself who got 2000 copies of this
pamphlet printed and published. This is, therefore,
a clear case where the respondent is guilty of
getting this pamphlet printed and published against
the congress party candidate Rajendra Jain. The
respondent is, in the light of the aforesaid
finding clearly guilty of committing the corrupt
practice as mentioned in sub-section (4) of section
123 of the Representation of the People Act. When
such a pamphlet is published by the returned candi-
date the only inference that can be drawn is that
the publication was reasonably calculated to
prejudice the prospects of the election of the
other contesting candidate Rajendra Jain; Conse-
quently under section 100(1)(b) the election of the
respondent is liabIe to be declared void and set
aside."
The trial Judge, however, left the parties to pay and
bear their own costs of the petition. It is against this
judgment and order that the present appeal has been pre-
ferred.
Mr. Hardy, who has taken great pains to present the case
of the. appellant has, in the first instance, attempted to
lead us to the realm of hyper-technicalities. He has tried
to pick up faults in the verifica-
529
tion on the election petition and the affidavit accompanying
the petition and has urged that the petition ought to have
been dismissed by the High Court in limine under
section 86 of the Act in view of the fact that the
verification and the affidavit ,did not contain sufficient
particulars of the corrupt practices attributed to the
appellant and did not at all give particulars ,of printing
of the offending leaflet. He has further urged that the
petition was also liable to be dismissed as the copy of the
petition meant to be served on the appellant was not accom-
panied by a copy of annexure ’A’ i.e. Exh. P-10. We find
ourselves unable to accede to these contentions. The alle-
gations of corrupt practice and particulars thereof as
given in paragraph 13 of the election petition reproduced
above are sufficiently clear and precise. The affidavit
accompanying the petition in support of the allegations of
corrupt practice and the particulars thereof also conform to
the form prescribed for the purpose. The appellant had an
easy access to the court record and could have no difficulty
in gathering the necessary material to meet the case set up
by the respondent by a reference to the leaflet (Exh. P-10)
which formed an annexure to the election petition. It is
also now well settled that failure to give pariculars of
printing of the pamphlet is not detrimental and cannot lead
to the dismissal of the petition. (See Prabhu Narayan v..
A.. K. Srivastava) (1). That apart, the petition could also
not have been dismissed in view of section 99 of the Code of
Civil procedure which clearly says that a defect which does
not affect the merits of the case or the jurisdiction of the
Court cannot invalidate the decision. The preliminary con-
tentions of Mr. Hardy cannot, therefore, be sustained.
Continuing his arguments, Mr. Hardy, while fairly. and
rightly conceding that the contents of the aforesaid leaflet
(Exh.P-10) do cast a reflection on the personal conduct and
character of Rajendra Jain (P.W. 39) and as such fall within
the mischief of section 123(4) of the Act, has vehemently
assailed the aforesaid findings of the trial Judge with
regard to the printing and publication of the leaflet (Exh.
P-10) by the appellant. He has contended that the evidence
adduced in the case does not at all establish that it was
the appellant or his election agent or any one of his sup-
porters who got the offending leaflet (Exh. P-10) printed
or published or that the leaflet was distributed to the
members of the public of Khachrod Constituency with the
consent of the appellant or his election agent to prejudice
the election prospects of Rajendra Jain (P.W.39).
In view of the concession made by Mr. Hardy that the
contents of the aforesaid leaflet (Exh. P-10) do cast a
reflection on the personal conduct and character of Rajendra
Jain (P.W. 39) and as such would fail within the mischief of
section 123(4) of the Act, the only point that survives for
decision in this appeal is whether the High Court was right
in setting aside the election of the appellant on the ground
of ’publication’ by him or with his consent: of the leaflet
which according to the respondent contained false statement
of facts as to the personal character and conduct of
Rajendra Jain (P.W. 39) and was reasonably calculated to
prejudice the prospects of the latter’s election to the
State Legislative Assembly in the general elections of 1972.
(1)[1975] 3 S.C.C. 788.
530
The first and foremost question which is required to be
determined in this connection is whether it was the appel-
lant who got the offending leaflet printed. It is necessary
to go into the question of printing of the leaflet (Exh. P-
10) as the finding in respect thereof is bound to have as
held by this Court in Prabhu Narayan’s case (supra), an
important bearing on the question of its distribution either
by the appellant or with his consent and a discussion of the
evidence regarding printing provides a satisfactory method
of assuring oneself as to whether the distribution was
made, as alleged, by the appellant or with his consent.
Now the proof regarding printing of the leaflet (Exh.
P-10) consists of the evidence of Ramprasad (P.W.24) who is
the Manager of Kamla Printing Press, Ujjain, which is
owned by his wife. Mr. Hardy has stressed that the statement
of Ramprasad is untrustworthy; that his conduct does not
inspire confidence and that his statement being that of an
accomplice cannot be relied upon without independent corrob-
oration. Though Mr. Hardy his levelled trenchant criticism
against the evidence of Ramprasad (P.W. 24,), we are not
inclined to agree with him. There is nothing strange about
the conduct or behaviour of Ramprasad which may impel us to
discard his testimony. Despite the searching cross-examina-
tion to which he was subjected, his credit has remained
unshaken. The mere fact that he printed the offending
leaflet cannot clothe him with the character of a guilty
associate or partner in the crime of corrupt practice
within the meaning of ,section 123 (4) of the Act, which
consists in the publication by the candidate or his agent or
by any other person with the consent of the candidate or.
his election agent, of any statement of fact which is false
or which he either believes to be false or does not believe
to be true, in relation to the personal character or conduct
of any candidate which is reasonably calculated to prejudice
the prospects of that candidate’s election. In the instant
case, Ramprasad (P.W. 24) was neither the election agent of
the appellant nor is there any allegation that he published
the offending leaflet. Section 127-A of the Act on which
Mr. Hardy has placed strong reliance in support of his
contention that Ramprasad (P.W. 24) was in the position of
an accomplice has no relevance. It has nothing to do with
the offence in question. The ommission on the part of
Ramprasad to send to the concerned District Magistrate a
copy each of the declaration and the printed material as
required by sub-section (2) of section 127-A of the Act may
lay him open to prosecution for an offence under sub-section
(4-) of section 127-A of the Act but would not make him an
accomplice or render his statement untrustworthy. Ramprasad
(P.W. 24) has affirmed that on February 22, 1972, Rajaram
from Khachrod .came to him and made inquiries from him
regarding the printing charges of a leaflet, and that he
turned up again on the following day with letter (Exh. P-20)
from the appellant and told him that he had been sent by
him. The witness has further deposed that Rajaram departed
after handing over to him the letter (Exh. P-20), the draft
or manuscript of the leaflet (Exh. P-21) which had to be
printed and the printing charges amounting to Rs. 45/-. He
has further stated that the charges were acknowledged by him
the same day by means of a receipt of the even date; that on
February 24,
531
1972, when he had completed the composition of draft of the
leaflet, Anirudh Hada (R.W. 1), an advocate of Ujjain, came
to him and after telling him that he was the
representative and worker of the appellant, went through
the printed proof (Exh. P-.23) of the leaflet (Exh. P-10)
and advised him that the name of Rajaram Parmar appearing at
one place on the first sheet and at two places on the second
sheet in the proof should be removed and replaced by the
words ’a citizen of Khachrod’. The witness has further
stated that 2,000 copies of the leaflet were printed by him
on February 25, 1972 and handed over to Rajaram. The state-
ment of Ramprasad (P.W. 24) receives strong corroboration
not only from the various documents viz. the draft (manu-
script) (Exh. P-21), carbon copy of receipt (Exh. P-22),
proof (Exh. P-23) of the offending leaflet, carbon copy of
the bill (Exh. P-24), entry (Exh. P-25) in his cash book
dated February 24, 1972 regarding the payment of the print-
ing charges of Rs. 45/- and entry (Exh. P-26) in his Order
Book Register in respect of the leaflet produced by him but
also from the letter (Exh. P-20) which admittedly bears the
signatures of the appellant and contents whereof are in the
handwriting of his brother, Surendra Singh. The letter runs
as follows :--
" 23.2.72
Shri Ramprasadji,
KamaIa Press,
Ujjain.
Please print 2000 pamphlets of the matter
which I have sent through Rajaram. I need this
pamphlet early. Hence print it within a day or
two. I am sending Rs. 45/- with Rajaram, which
please accept. The proof will be seen by Hadaji,
who will come to you.
Sd/- Kunwar Virendra-
singh,
Member, Legislative
Assembly, M.P.
Constituency Khachrod,
District Ujjain."
The above letter, it would be seen, contains intrinsic
evidence which goes a long way to support the testimony of
Ramprasad (P.W. 24). It clearly establishes (i) its own
despatch to the witness by the appellant through Rajaram;
(ii) the despatch to the witness by the appellant through
Rajaram of the draft or manuscript of the matter to be
printed, (iii) the placing of the order by the appellant for
printing of 2,000 copies of the manuscript (Exh. P. 2.1) in
the form of leaflets; (iv) the remittance by the appellant
through Rajaram of Rs. 45/- to defray the printing charges;
and (v) the advice by the appellant to the witness that the
proof would be seen by Mr. Anirudh Hada. Although Mr.
Hardy has tried hard to persuade us to hold that the letter
could not have been written by or at the instance of the
appellant, we are not inclined to agree with him. There is
nothing unusual in the contents of the letter being in the
hand of
532
Surendra Singh in view of the statement of Chander Singh
(R.W. 25) (corroborated as it is by the clear admission of
the appellant himself that the relations between the two
brothers i.e. Surendra Singh and the appellant remained
cordial from the time of the wedding of the appellant’s
daughter which took place in August, 1967 to nearly four
months after the general elections of 1972. and that in the
said general elections, Surendra Singh worked with the
appellant and also accompanied him sometimes.
That Ramprasad’s (P.W. 24’s) statement possesses a ring
of truth and he was not trumped up by any of the arch ene-
mies of the appellant including Surendra Singh and Rajendra
Jain (P.W. 39) as Mr. Hardy would have us believe is mani-
fest from another telling circumstance viz. the significant
omission on the Part of the appellant to contradict Rampra-
sad (P.W. 24) by examining Rajaram who was no other than his
own polling agent as is evident from Exhibit P-30 which
admittedly bears the signatures of the appellant. It can,
therefore, be safely presumed that Rajaram was not prepared
to support the appellant by refuting the statement of Ram-
prasad (P.W.24).
The assertion of the appellant that he deputed his
brother, Surendra Singh alongwith Chander Singh (R.W. 25)
to go to Ranasan in the State of Gujarat to bring his jeep
from his relative, Thakur Harish Chander Singh, who was not
returning, the same despite several demands made from him
through letters and telegrams; that while so deputing his
brother he handed over to him six blank official letter
heads which were used by him as a Member of the State Legis-
lative Assembly after putting his signatures and affixing
the rubber stamp of his designation thereon so that they
might be utilized for making reports/complaints to the
Police or other officials of the Transport Department in
case his relative refused to return his jeep and that
Surendra Singh misused one of the aforesaid letter heads and
fabricated Exh. P-20 as his relations with him became
strained over the demand for division of the landed property
which was got mutated by his father during his lifetime in
the name of Surendra Singh’s son is nothing but a tissue of
lies woven to escape the grave consequences of addressing
the letter (Exh. P-20) to Ramprasad (P.W. 24). The
contents of the letter (Exh. P-26) being, therefore, in the
hand of Surendra Singh is not a circumstance which can rea-
sonably arouse suspicion regarding its genuineness. On the
contrary, it is consistent with the normal course of human
conduct. It may well be that the appellant being otherwise
busy, dictated the contents of the letter (Exh. P-20) to
his brother,Surendra Singh and thereafter put his own
signature thereon.
It cannot also be overlooked that the appellant has been
shifting his stand from time to time with regard to the
aforesaid blank sheets to suit his own convenience. Whereas
at one place in the complaint (Exh. P-33) filed by him on
July 31,1973, in the Court of Magistrate 1st Class, Khahrod,
he averted that he delivered those forms
533
to Chand Singh Raghubanshiand Berulal, Driver, at another
place in the same complaint, he made a veiled averment to
the effect that the letter heads were handed over by him to
his brother, Surendra Singh. The plea taken by the appellant
that he gave six blank letter heads with his signatures
thereon to his brother, Surendra Singh, is also falsified
by the .First Information Report (Exh. R-79) made by him to
the station House Officer, Police Station, Chhatripura,
Indore, on September 26, 1973 wherein he appears to have
stated that Surendra Singh sold his Fiat car No. MPO. 1241
by forging his signatures on a document. If the appellant
had in fact handed over. six blank letter heads with his
signatures thereon to Surendra Singh, as asserted by him,
the latter could have easily used one of those letter heads.
It is also worthy of note that whereas at the foot of
the complaint (Exh. P-33), the appellant cited Chand Singh,
s/o Saman Singh Raghubanshi, resident of Mosi Gate, Khachrod
as his witness, in the instant election petition he has
produced Chander Singh, s/o Chandrabhansingh of Khachrod as
his witness in proof of the handing over of the afore-
said six letter heads bearing his signatures to Surendra
Singh. It is also difficult to believe that the appellant
would hand, over half a dozen blank letter heads bearing his
signatures to his brother, Surendra Singh specially when his
wife, according to his own admission in the report (Exh. R-
84) dated July 26, 1973 accompanied his brother to Ranasan.
All these circumstances furnish a proof positive of the
falsity of the statement of the appellant in regard to
the circumstances in which letter (Exh. P.20) came into
existence.
The foregoing discussion leaves no room for doubt that
it was the appellant who got the offending leaflet printed
at the Kamla Printing Press, Ujjain.
This takes us to the crucial question of the distribu-
tion of the offending leaflet by the appellant or his
election agent or by some other person with the consent
either of the appellant or his election agent.
Though the appellant and his election agent, Anirudh
Hada, advocate (R.W. 1) have asserted that they had no
connection with the distribution of the leaflet and the
learned counsel for the appellant has also sought to make
capital out of the High Court’s observation at one place
that the distribution of the, leaflet was not by the appel-
lant or with his consent and at another place that the
appellant himself was responsible for the publication of the
leaflet (which according to the decision of this Court in
Prabhu Narayan’s case (supra) means distribution of the
printed material). We shall show by reference to the unim-
peachable direct and circumstantial evidence which the High
Court has failed to consider in its proper perspective that
the only conclusion which could reasonably have been arrived
at was that the distribution of the leaflet (which has not
been disbelieved by the High Court to have been made) was by
and with the consent of the appellant or his election agent.
534
As already stated the respondent had alleged in the
election petition that the leaflet was distributed on two
different dates and at two different places in his constit-
uency--(1) on March 5, 1972 at Shukravariya Bazar,
Khachrod at the meeting of Jan Sangh at which the appellant
and his election agent, Anirudh Hada, Advocate were
seated on the dais and (ii) on March 6, 1972 at
Nagda. The distribution of the leaflet on March 5, 1972 is
alleged to have been made by Rampratap and on March 6, 1972
by Ram Singh (P.W. 21). We propose to discuss the evidence
with regard to these two distributions separately.
That a public meeting was organised and held on the
afternoon of March 5, 1972 by the Jan Sangh Party in
Shukravariya Bazar, Khachrod, at which the Rajmata of
Gwalior, the appellant and his election agent, Anirudh
Hada, advocate (R.W. 1 ) were seated on the dais and which
was addressed by the Rajmata of Gwalior admits of no doubt
as the same is admitted by both the appellant and his
election agent, Anirudh Hada, (R. W. 1) as also by the
appellant’s witness, Ramdas (R.W. 24). It is only the
distribution of the leaflet (Exh. P-10) at this meeting
which is denied by them. The denial cannot, however, be
sustained in view of clear and convincing evidence of Badri-
lal (P.W. 15), Nanalal (P.W. 27) Khursheed Ahmed (P.W. 35)
and Shaitanmal Sisodia (P.W. 38). All these witnesses have
categorically stated that at the aforesaid meeting at
which besides others the Rajmata of Gwalior, the appellant
and his election agent, Anirudh Hada (R.W. 1) were seated
on the dais, they saw leaflet (Exh. P-10) which appeared to
have been issued in the name of a Nagrik of Khachrod being
distributed to the persons who had assembled to attend the
meeting by Rampratap Dhaked of Khachrod. The witnesses have
further stated that in the aforesaid leaflet (Exh. p-10)
it was inter alta written that Rajendra Jain "while touring
abroad had taken cow meat." If the appellant or Anirudh
Hada had nothing to do with the distribution of the leaflet,
there was nothing to stop them from restraining Rampratap
from distributing the same or admonishing him for doing
so. It is no doubt true that the respondent has not been
able to produce Rampratap in proof of his allegation but it
cannot be lost sight of that the former did summon the-
latter as his witness but he did not appear despite serv-
ice. the course of the statement made by him as his own
witness, the respondent has explained that on Rampratap’s
omission to appear before the Court as his witness despite
service, he contacted the latter to enquire about the
reason for his non-appearance and was told by the latter
that he could not attend the Court since his brother was
married to the niece of Vardiram (R.W. 30) and his appearing
as a witness in the Court would strain his relations with
Vardiram. In the course of his statement, Vardiram (R.W.
30,), who is staunch worker of Jan Sangh and who appears to
have worked for Jan Sangh and addressed public meetings in
support of its candidates during the last general elections
had to admit that his real nephew was engaged to the daugh-
ter of Rampratap. It is also significant that though Ram-
pratap was also summoned as a witness by the appellant, the
latter gave him upon December 12, 1973. It is, therefore,
crystal clear that the non-appearance of Rampratap as a
witness for the
535
respondent was entirely due to his anxiety to maintain
cordial relations with Vardiram. The totality. of the
evidence adduced in the case, therefore, leaves no room for
doubt that the distribution of the leaflet (Exh. P--10) at
the meeting of the Jan Sangh Party held on the afternoon of
March 5, 1972 in Shukravariya Bazar, Khachrod, was with the
consent of the appellant or his election agent, Anirudh
Hada, advocate (R.W. 1). The distribution of the copies of
the leaflet (Exh. P-10) at Nagda on March 6, 1972 also
stands proved. by the direct evidence of Ram Singh (P.W.
21), Ajit Singh (P.W. 22), Shanker Singh (P.W. 23) and
Jawahar Lal (P.W. 37).
Ram Singh (P.W. 21) who besides being an employee of
the Gwalior Rayon Mills is a newspaper hawker has stated
that during the last general elections, he worked for Thakur
Virendrasingh who was a candidate of the Jan Sangh party.
He has further stated that two days before the date of
voting, he distributed free of cost about 300 copies of
leaflet (Exh. P-10) in which it was stated that Rajendra
Jain was a meat eater, that he eats flesh and that the
voters should know him. The witness has unequivocally
stated that it was the appellant who gave him the leaflets
and asked him to distribute the same and told him that his
remuneration for this job would be duly paid to him and that
subsequently, Rs. 4/- were paid to him as remuneration for
distributing the leaflets by the President of Nagda Nagar
Jan Sangh Party. Although it has been emphasized by Mr.
Hardy that the statement of Ram Singh (P.W. 21) cannot be
relied upon as he is a staunch worker of the Congress organ-
isation and is also a member of the Indian National Trade
Union Congress which is a subsidiary institution of the
Indian National Congress, it cannot be ignored that the
Indian National Congress and the Indian National Trade Union
Congress did not see eye to eye with each other in the
matter of choice of the candidates for election during the
last general elections. This is evident from the statement
of appellant’s own witness, Vishnu Singh (R.W. 2) who has
deposed that the Indian National Trade Union Congress sup-
ported Maheshchandra Lala who was an independent candidate.
The statement of Ram Singh (P.W. 21) receives ample
corroboration from the evidence of Shanker Singh (P.W. 23)
and Jawahar Lal (P.W. 37) (who is a non-Congressman). These
witnesses have clearly stated that one or two days before
the date of voting, Ram Singh (P.W. 21) who is also a news-
paper hawker distributed copies of leaflet (Exh. P-10)
without any charge in Nagda in which it was inter alia
mentioned that Rajendra Jain was a cow meat eater and
during his trip abroad he stayed at the places where cow
meat was served. Ajit Singh (P.W. 22) has also affirmed
that about two days before the date of polling when he had
gone to Nagda Mandi for shopping, he came across a leaflet
wherein it was mentioned that "while Rajendra Jain was
abroad, he stayed in hotels where cow meat was served and
that he being a Jain, stayed in such hotels." Even if the
testimony of Ram Singh (P.W. 21) which has been disbelieved
by the High Court is excluded from consideration, even then
there are some unimpeachable and telling pieces of =circum-
stantial evidence to establish the distribution of the
leaflet (Exh. P-10) by the
536
appellant or with his consent which cannot be easily
ignored. These circumstances are--(i) it was the-appellant
who as already observed caused the election leaflet (Exh.
P-10) to be printed by Ramprasad (P.W. 24.) at the Kamla
printing Press, Ujjain;-(ii) in the normal course of human
conduct, no one gets any material printed without a purpose
and in the instant case, the purpose manifestly was to
malign the conduct and character of Rajendra Jain by distri-
bution of the leaflet (Exh. P-10) amongst the inhabitants
of Khachrod Constituency, (iii) the selection of time and
place for distribution of the leaf-. let (Exh. P-10)) which
openly denounced Rajendra Jain and cast aspersions on his
personal character and conduct and appealed to the elector-
ate not to vote for him. The offending leaflet was got
distributed at a largely attended election meeting held at
Khachrod to canvass support for the appellant where both the
appellant and his election agent were present and at other
places in Nagda which were frequented by the voters of
Khachrod Constituency at a time when the tempo of the elect-
iion campaign was at its climax, and (iv) the omission on
the part of the appellant to prove that the leaflet (Exh.
P-10) emanated from a source which had no connection with
the appellant or his election agent.
Not only is the distribution of the offending leaflet
proved to have been made by the appellant or his election
agent or with their consent but it has also been proved by
the unrebutted testimony of Rajendra Jain that the leaflet
contained false statement of facts calculated to injure his
personal conduct and character with a view to prejudice the
prospects of his election..
In the result, the appeal fails and is hereby dismissed with
costs.
P.B.R. Appeal dismissed.
18-- 1104SCI\76
537