PETITIONER:
LAKHI PRASAD AGARWAL
Vs.
RESPONDENT:
NATHMAL DOKANIA
DATE OF JUDGMENT:
06/09/1968
BENCH:
MITTER, G.K.
BENCH:
MITTER, G.K.
HIDAYATULLAH, M. (CJ)
CITATION:
1969 AIR 583 1969 SCR (2) 41
ACT:
Representation of the People Act, 1951 s. 123(2), (3) and
(4)-Allegations of corrupt practice-Necessity of proper
pleadings-Contentions cannot be considered if not borne out
by pleadings-Arrest of candidate immediately before
election-Whether inference of mala fide or collusion with
opposing candidate can be drawn.
HEADNOTE:
The election of the respondent to the Bihar Legislative
Assembly at the 1967 general election was challenged by the
appellant---one of the defeated candidates- in an election
petition. Annexure 2 to the petition was a pamphlet alleged
to have been issued by the respondent and his supporters in
which reference was made to the call of two Muslim religious
heads that Muslims should not vote for the Congress party to
which Islam was opposed. The High Court dismissed the
election petition whereupon appeal was filed in this Court.
The appellant urged that (i) In the aforesaid pamphlet an
attempt was made to induce muslim voters not to vote for a
Congress candidate in opposition to the mandate of two named
religious heads and this amounted to the corrupt practice of
"undue influence" under s. 123(2) of the Representation of
the People Act 1951; (ii) The reference to the mandate of
Islam amounted to the use of a religious symbol within the
mischief of s. 123(3); (iii) The said pamphlet also came
within the mischief in s. 123(4); (iv) The Returning Officer
who was also the Sub-Divisional Officer of the District
ordered the arrest of the appellant immediately before the
election; this was done mala fide, in collusion with the
respondent and the appellant was thereby hampered in his
election campaign.
HELD: (i) The pleadings in the appellant's election
petition did not permit consideration of his contention
based on s. 123(2) of the Act.
In order that a pleading may be sufficient to make out
a case of undue influence it must set out full particulars
of it in compliance with s. 83(1)(c) of the Act comparable
to Order 6 r. 4 of the Code of Civil Procedure. The said
provision of the Act read with s. 123(2) makes it obligatory
on a party setting up a case of corrupt practice by exercise
of undue influence as suggested, to give full particulars
thereof by stating inter alia who attempted' to induce
electors to believe that .voting for a particular person
would render them objects of divine displeasure or
spiritual censure and in what manner such attempts were
made. The real charge in the relevant paragraph of the
petition in the present case was that the pamphlet
complained of misled the electors by false statements. Such
a pleading falls short of an allegation of unique influence
by an attempt to make electors exercise their franchise in a
particular manner. [43 H---44 C]
(ii) The contention that the case fell under s. 123.(3)
because of the use of the mandate of Islam as a religious
symbol was 'also not borne out by the pleadings and
therefore could not be considered. [44 D]
(iii) To bring the case under s. 123(4) there must be
a publication by the candidate or his agent of any
statement of same fact which is up. CI/69--4
42
false, and which is believed to be false or not believed to
be true, in relation to the personal character or conduct of
any candidate, or in relation to the candidature or
withdrawal of any candidate being a ,statement reasonably
calculated to prejudice the prospects of that candidate's
election. The pamphlet in question did not cast any
aspersion on the personal character or conduct of the
election petitioner. Nor was there any false statement in
relation to the candidature, of the petitioner. .Section
123(4) was therefore not attracted to the case. [44 E-F]
(iv) The. evidence in the case did not prove that the
Returning Officer caused the appellant to be arrested mala
fide or in collusion with the respondent. The arrest
immediately before the election surely hampered the
campaign of the election petitioner, but by itself the mere
fact of arrest does. not lead to the conclusion that the
Returning Officer was trying to bring pressure on the
election petitioner not to contest the election and much
less that the arrest was made in collusion with the
successful candidate. [45 G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 20 of 1968.
Appeal under Section 116-A of the Representation of
the People Act, 1951 from the judgment and order dated the
November 30, 1967 of the Patna High Court in Election
Petition 19 of
967.
Danial A. Latifi, and R.A. Gupta, for the appellant.
D. Goburdhun, for the respondent.
The Judgment of the Court was delivered by
Mitter, J. This is an appeal by an unsuccessful
candidate at an election held in February 1967 for the Bihar
State Legislative Assembly from the Single Member Rajmahal
Constituency No. 139. Originally there were eight
candidates.: we are concerned only with two of them, namely,
the election petitioner and respondent, Nathumal Dokania,
the returned candidate as a result of the election. The
election petitioner lost before the High Court. The main
ground on which he presses this appeal are based on paras
4(c) and 4(e) of the petition. The relevant issue framed by
the learned trial Judge with regard to paragraph 4 (c) issue
No. 5 reading :-
“Did the respondent or his election
agent or his workers with his or his election
agent’s consent resort to corrupt practices in
the election, as alleged by the petitioner and
has the result of the election been materially
affected thereby ?”
para 4(c) it is pleaded that the respondent himself and his
agents and workers including certain named persons with his
consent “committed a corrupt practice of publication of
statements of facts throughout the constituency and mainly
at Shahebganj, Teen Pahar and Rajmahal during the election
campaign during
43
the period 11th February 1967 to 15th February 1967 which
induced and caused deception in the mind of the electors
whereby the respondent procured a large number of votes
which he would not otherwise have secured but for the
corrupt practice aforesaid.” Copies of the pamphlets from
Annexure 2 series to the petition.
Mr. Latifi appearing for the appellant submitted that
Annexure 2(A) does not further his client’s cause. His
grievance is based on Annexure 2. The translation of this
Annexure of which the original was in Hindi shows that it
was a call to the Muslim voters of Rajmahal to “hear the
message and prepare the graveyard for the Congress.”
Reference was made therein to “the appeal of the day by
Maulana Syed Usman Ghani Saheb of Phulwari Sharif Khankah”
“that nobody should be in illusion that Muslims have to vote
for the Congress. this. time also.”. It was also suggested
that on account of high-handedness of the Congress group
Muslims should not support it. There was also a reference
to the appeal of Pit Saheb of the Dargah of Phulwari Sharif
that Muslims should not vote for any Congress candidate.
The appeal ends with the sentence, “when you have life-long
connection with Sri Nathmal Dokania, the candidate of the
Swantantra Party and when the Head of your religion, your
Islam also opposes the Congress, then it becomes your duty
to come out victorious by affixing stamps on the “Star”
symbol.”
Mr. Latifi tried to argue that by the publication of the
pamphlet an attempt was made to. induce Muslim electors not
to vote for a Congress candidate in opposition to the
mandates of the two. named religious heads. In other
words, his contention was that undue influence within the
meaning of s. 123(2) of the Act was sought to be exercised
on the Muslim voters in the name of the religious heads
mentioned in the pamphlet under the threat of divine
displeasure or spiritual censure. He also sought to argue
that the reference to the mandate of Islam in the
pamphlet amounted to the use of a religious symbol and as
such the appeal by the pamphlet came within the mischief of
s. 123 (3) of the Act.
Under 8. 123(2), a candidate may be guilty of corrupt
practice if he uses “undue influence” which in the words of
the section means any direct or indirect interference or
attempt to interfere with the free exercise of any electoral
right of a voter. Mr. Latifi’s submission was. that the
pamphlet came within the mischief of subclause (ii) of
proviso, (a) to section 123(2). Unfortunately for Mr.
Latifi, although the pamphlet might have sustained a plea of
undue influence about which we express no opinion, there is
no pleading to that effect in the petition. In order that a
pleading may be sufficient to make out a case of undue
influence, it must
44
set out full particulars of it under the provisions of s.
83(1)(c) of the Act which may be compared with Order 6 rule
4 of the Code of Civil Procedure. The said provision of the
Act read with s. 123(2) makes it obligatory on a party
setting .up a case of corrupt practice by exercise of undue
influence as suggested, to give full particulars thereof by
stating inter alia who attempted to induce electors to
believe that voting for a particular person would render
them objects of divine displeasure or spiritual censure and
in what manner such attempts were made. The real charge in
paragraph 4(c) of the petition is that the pamphlet
complained of misled the electors by false statements. Such
a pleading falls far short of an allegation of undue
influence by an attempt to make electors exercise their
franchise in a particular manner. Para 4(c) does not even
mention Muslim voters and does not contain any averment to
the effect that they were sought to be influenced by the
opinion of the religious heads.
Mr. Latifi’s attempt to bring his case under s. 123(3)
is equally futile. Mr. Latifi sought to argue that Islam
was a religious symbol of Muhamedans and the publication of
the pamphlet containing a reference to the mandate of Islam
was an attempt to prejudicially affect the election of the,
petitioner. This case too is not borne out by the
pleadings. Failing in his attempt to bring the’ case under
the two sub-sections mentioned already, he tried to bring
his case under s. 123 (4) of the Act. In this too, in our
view, he cannot succeed. To bring the case under this sub-
section, there must be a publication by the candidate or his
agent of any statement of some fact which is false, and
which he believed to be false or did not believe to be true,
in relation to the personal character or conduct of any
candidate, or in relation to the candidature or withdrawal
of any candidate, being a statement reasonably calculated to
prejudice the prospects of that candidate’s election. The
pamphlet does not cast any aspersion on the personal
character or conduct of the election petitioner. Nor is
there any false statement in relation to the candidature of
the petitioner. In fact there is no reference to him at
all. Consequently, the election petition does not attract
the operation of the aforementioned sub-sections of s. 123
of the Act. The learned trial Judge should not have
entertained any argument under subsections 3 and 3A of s.
123 of the Act as in view of the pleadings issue No. 5 did
not permit the raising of such contentions. In view of the
pleadings we did not permit Mr. Latifi to pursue his
arguments on this issue on the basis of s. 123 sub-ss. (2)or
(3) of the Act.
That leaves us only with the allegation in para 4(e) of
the petition which runs thus:
“The election of the respondent is void, because the
Returning Officer who is also the Sub-Divisional Magis-
45
trate of the area, in collusion with the
respondents harassed the petitioner in all
possible ways so much so that a mere
application for correction in the petitioner’s
name was allowed at the last juncture and the
petitioner had been arrested the very next day
of the said application, was put in jail for
eight valuable days and thereby prevented from
pursuing the election campaign.”
The issue under which the above complaint was sought to be
raised was the general one, namely, whether the election of
the respondent is liable to be set aside ? Mr. Latifi drew
our attention to portions of the testimony of the
Returning Officer where he denied that he was in
collusion with Nathmal Dokania or that because of such
collusion he got the petitioner arrested after he had
filed applications for correction of the entries with
respect to his name in the electoral roll. He also denied
that he got the petitioner arrested with any mala fide
intention so that he might not be able to contest the
election. in his cross-examination, the Returning. Officer
referred to. the proceedings started against the petitioner
and said that the petitioner had been arrested once in
January and for a second time in February 1967. The arrest
in January 1967 was in connection with proceedings under s.
107 of the Code of Criminal Procedure. The arrest in
February 1967 was in connection with a case for some
substantive offences. He added however that he was not in
a position to say what was the offence alleged to have been
committed by the petitioner by a mere reference to the
certified copy of the order sheet. On this evidence there
was nothing before the court to justify a conclusion in
favour of the petitioner on the general issue. Only some
suggestions had been made to the Returning Officer in his
cross-examination that he had ,acted mala fide and that he
had a acted in collusion with the successful candidate. No
details with regard to the complaints leading to or the
grounds for the arrests were forthcoming. We find it
difficult to believe that the petitioner did not know the
‘grounds on which he was put under arrest. The arrest
immediately before the election surely hampered the campaign
of the election petitioner, but by itself the arrest does
not lead to the conclusion that the Returning Officer was
trying to bring pressure upon the election petitioner not to
contest the election and much less that the arrest was made
in collusion with the successful candidate.
These being the only two points which were urged before
us in the appeal, the appeal must fail and it is hereby
dismissed with costs.
G.C. Appeal dismissed.
46