{"id":227771,"date":"1974-08-08T00:00:00","date_gmt":"1974-08-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rahim-khan-vs-khurshid-ahmed-ors-on-8-august-1974"},"modified":"2015-05-26T14:19:28","modified_gmt":"2015-05-26T08:49:28","slug":"rahim-khan-vs-khurshid-ahmed-ors-on-8-august-1974","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rahim-khan-vs-khurshid-ahmed-ors-on-8-august-1974","title":{"rendered":"Rahim Khan vs Khurshid Ahmed & Ors on 8 August, 1974"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Rahim Khan vs Khurshid Ahmed & Ors on 8 August, 1974<\/div>\n
Equivalent citations: 1975 AIR 290, \t\t 1975 SCR (1) 643<\/div>\n
Author: V Krishnaiyer<\/div>\n
Bench: Krishnaiyer, V.R.<\/div>\n
           PETITIONER:\nRAHIM KHAN\n\n\tVs.\n\nRESPONDENT:\nKHURSHID AHMED & ORS.\n\nDATE OF JUDGMENT08\/08\/1974\n\nBENCH:\nKRISHNAIYER, V.R.\nBENCH:\nKRISHNAIYER, V.R.\nPALEKAR, D.G.\nBHAGWATI, P.N.\n\nCITATION:\n 1975 AIR  290\t\t  1975 SCR  (1) 643\n 1974 SCC  (2) 660\n CITATOR INFO :\n R\t    1975 SC 308\t (60)\n F\t    1975 SC1045\t (4,12,16)\n RF\t    1975 SC1612\t (15)\n RF\t    1975 SC2299\t (480)\n RF\t    1976 SC1187\t (31)\n RF\t    1976 SC1599\t (6,44)\n R\t    1976 SC1866\t (4)\n RF\t    1976 SC1886\t (23)\n RF\t    1977 SC 587\t (2)\n R\t    1977 SC 813\t (13)\n R\t    1978 SC 351\t (5,7,15)\n R\t    1978 SC1162\t (8)\n R\t    1984 SC1516\t (3)\n R\t    1985 SC 236\t (62)\n C\t    1991 SC2001\t (5,24)\n\n\nACT:\nThe  Representation of the People Act (43 of 1951)  ss.\t 83,\n84,  99(a)  (ii), 116A and 123(1) to (4)--Scope\t of  Court's\npower  to  set aside election--Appellate  Court's  power  to\nupset findings of trial Court--Bribery,\t ingredients--Divine\ndispleasure and undue influence--Court's attitude  to--Names\nof   witnesses\tif  should  be\tmentioned  in\tsources\t  of\ninformation  or as part of particulars.\t Appeal to  religion\nwhat  is--Duty\tof trial Court to name those found  to\thave\nindulged  in  corrupt practices--Reform of election  law  to\ncheck contemporaneous corrupt practices suggested.\n\n\n\nHEADNOTE:\nIn  the\t General Election to a State Assembly  held  from  a\nconstituency  where  the  voting  strength  of\tMuslims\t was\npreponderant, the appellant was declared elected.  The first\nrespondent,  who was a sitting minister before\this  defeat,\nchallenged  the\t election  on  various\tgrounds\t of  corrupt\npractices.   The  High\tCourt  set  aside  the\t appellant's\nelection  holding that he committed corrupt practices  under\ns.  123(1) to (4) of the Representation of the\tPeople\tAct,\n1951.  The High Court found (i) that the appellant placed at\nthe  disposal of another contesting candidate a car 'with  a\npromise that the expenses incur-red in hiring and running it\nin connection with his election campaign would be met by the\nappellant, so that, he may continue to contest the  election\nand  wean away the Harijan votes from the first\t respondent;\nand  (ii)  that the appellant, and his supporters  with\t his\nconsent,  delivered speeches appealing to the Muslim  voters\nto vote for the appellant because he was a true Muslim while\nthe  first  respondent *as a Kafir ; that  they\t distributed\nhandbills  containing  the allegations that  (a)  the  first\nrespondent, though a Muslim got the grave of another  Muslim\ndug up on account of personal enmity; (b) as health minister\nhe  violated the modesty of lady doctors and nurses; (q)  he\ngot certain Muslims arrested on allegations of cow slaughter\nand forced them to eat pork; and (d) if the voters voted for\nthe  first  respondent they would become subject  to  divine\ndispleasure.\nHELD  :-(1) An appeal is a re-hearing but the trial  Court's\nfinding\t will  be  upset only when it is found\tthat  it  is\nwrong. [647 D]\nLaxminarayan v. Returning Officer, A.I.R.<\/a> 1974 S.C. 66,\t 78,\nKaremore's Case, A.I.R. 1974 S.C. 405, 413, 420 followed.\n(2)  After an election had been held defeated candidates  or\ndisgruntled electors should not be allowed to treat it in  a\nlight-hearted\tmanner\tby  filing  election  petitions\t  on\nunsubstantial  grounds and irresponsible  evidence.   Courts\nmust respect the verdict rendered by the electorate and show\nextreme reluctance to set it aside or declare it void unless\nclear  and cogent testimony, compelling the court to  uphold\nthe corrupt practice alleged against the returned candidate,\nis  adduced.  Further, where corrupt practices\tare  imputed\nthe proceedings are of a quasi-criminal nature where  strict\nproof  is  necessary  and the burden is\t heavy\ton  him\t who\nassails\t the election. in agents cases where  the  witnesses\nare  partisans,\t being\tthe polling agents  or\tcounting  or\nworkers\t of the candidates ; or of the turn coat  type,\t who\nclaimed to be the polling agents, counting agents or workers\nof  the returned candidate till the election over,  but,  in\nthe  post-election  period, when  the  defeated\t candidate's\nparty  had  formed a government, shifted their\tloyalty\t and\ngave evidence in proof of the averments in the petition ; or\nofficials   working   under  sitting  Ministries   who\t are\ncandidates  for\t election, the Court must scan the  evidence\nof  the corrupt practices alleged with scrupulous  care\t and\nseverity. [650 E-H, 655 F-H]\n(3)  The  corrupt practice of bribery under  s..  123(1)  by\nplacing\t a car at the disposal of another candidate, is\t not\nproved.\t  Assuming that such candidate got the use of a\t car\nat the expense of the appellant such financial aid would not\namount\tto  corrupt practice unless it was  to\tinduce\tthat\ncandidate not to withdraw from the election.\n644\nIn  the present case, there is no proof on this\t aspect\t and\nthere  is no finding to that effect by the High Court.\t[652\nH, 654 B-C]\n(4)  Divine  displeasure on account of prandial\t impropriety\nand  undue influence for fear of forced pork eating,  cannot\nbe inferred from the allegations in the handbill.  No one in\nIndia to-day will shiver with fear that a candidate, when he\nwins  an  election, will force down his\t throat\t distasteful\npork.\tSuch chimerical apprehensions are unreal and  cannot\nreceive judicial approval.  Therefore, the corrupt  practice\nalleged under s. 123(2) is not proved. [669 F-H]\n(5)  But  the  hand  bills exhort  Muslims  to\tsupport\t the\nappellant  in the name of religion and\tcontain\t allegations\namounting  to character assassination and so, the  appellant\nis guilty of the corrupt practices under s. 123 (3) and (4).\n[670 A-B]\n(a)  There is no credible proof that speeches had been\tmade\nby the appellant or his supporters at meetings. [655-C-F]\n(b) But on the distribution of the damaging handbills  there\nis  acceptable,\t direct and circumstantial  testimony.\t The\nappellant  had\ta motive for publishing\t the  handbills\t and\nthere is evidence to show that the handbills existed at\t the\nrelevant  time.\t  The  circumstances of\t the  case  and\t the\nevidence  of  disinterested witnesses show that\t hand  bills\nwere  distributed  with\t the knowledge and  consent  of\t the\nappellant. [668F-H]\n(c) Neither s. 87 nor s.83 nor r. 94(a) and Form 25  require\nthat  the  names  of the witnesses should  be  mentioned  as\nsources\t of information or as part of particulars.  Rule  12\nframed by the High Court for the trial of election petitions\nrequires  the source of information to be mentioned  at\t the\nearlier stage in order to prevent afterthoughts.  But, every\nwitness\t need not be mentioned as a source and every  source\ninformant  need\t not be examined necessarily.\tWhether\t the\nomission  to  do  so  in  a  given  case  reflects  on\t the\ncredibility  of\t the  evidence\tdepends\t on  the  facts\t and\ncircumstances of the case.  While the court must be  careful\nto insist that the means of knowledge are mentioned right in\nthe   beginning\t to  avoid  convenient\tembellishments\t and\nirresponsible  charges,\t it  should  not  stifle  good\t and\nreliable  testimony or thwart proof of corrupt practices  by\ntechnicalities\tof procedure, especially when no  prejudice,\non  account of deficiency in particulars, is made out.\t[664\nC-E, F-G]\n(d)  What  is  appeal  to  religion  depends  on  time\t and\ncircumstances, the ethos of a community, the bearing of\t the\ndeviation  on the cardinal tenets of the eligion  and  other\nvariables.   Law being a secular social process,  the  Court\nmust avoid over solicitude for ultra-orthodoxies. [660\tA-B.\nD-E]\n(e)  Since  the\t first respondent  has\tcalled\tthe  various\nallegations   relating\tto  womanizing\tas  false  and\t the\nappellant  has\tagreed that he does not believe them  to  be\ntrue,  the corrupt practice under s. 123(4) must be held  to\nhave been made out.\nAmbika\tSaran  Singh v. Mahant Mahader Nand Giri  41  E.L.R.\n183.   Kultar Singh v.Mukhtiar Singh, [1964] 7\tS.C.R.\t790,\nBalwan\t Singh\tv.  Lakshmi  Narain,<\/a>  22.  E.L.R.  273.\t  B.\nRejagopala  Rao v. N.  G. Ranga, A.I.R.<\/a> 1971 S.C.  267,\t 275\nreferred to.\n(6)  If\t a blatant corrupt practice is committed  during  an\nelection there is now no clear statutory mechanism which can\ncontemporaneously be set in motion by the affected party, so\nthat, when it is raw, a record and an instant summary  probe\nis   possible\tthrough\t  an   independent    semi-.judicial\ninstrumentality.   Violations thrive where prompt  check  is\nunavailable.  Effective contemporaneous machinery  providing\nfor  such chocks would greatly curtail\tsubsequent  election\ndisputes  and even act as a deterrent to the  commission  of\ncorrupt\t practices.   Elections are the cornerstone  of\t the\nparliamentary system and electoral purity can be  maintained\nonly  when the virus of corrupt practices is  controlled  by\ncomprehensive  systematic changes in law with emphasis on  a\nfearless enforcement instrumentality and a national  politi-\ncal consensus to abide by norms. [670 D-F, 672 A-B]\nIn the present case, the handbill does not contain the\tname\nof  the printer and publisher although the election  law  so\nrequired.   There is no agency to take prompt  action  after\ndue  investigation, and a propagandist is able\tsuccessfully\nto spread\n645\nscandal without a trace of the source, knowing that  nothing\nwill  happen until long after the election the\tquestion  is\nraised in an election petition. [665 F-G]\n(7)  The High Court having found the commission\t of  corrupt\npractices by the appellant and one of his supporters, who is\na sitting member of Parliament, and a large number of  other\npersons, was under the statutory duty to name all those\t who\nhave been proved at the trial to have been guilty of corrupt\npractices,   under  s.\t99(a)  (ii)  after   following\t the\nprescribed  procedure.\tIf only courts would name all  those\ninvolved  in the pollution of the electoral  process,  there\nwould  be some hesitation on their part to indulge  in\tsuch\nimproper practices.  No such action is however necessary  by\nthis  Court  in the present case, because this\tCourt  found\nonly the appellant guilty of corrupt practice. [670 F-671 H]\nD.  P.\tMishra\tv.  K. N. Sharma [1971] S.C.R.\t8  ;  R.  M.\nSeshadri v. G. Vasantha Pai.<\/a> [1969],2 S.C.R. 1019, and Janak\nSritar\tv. Mahant R. K. Dos, A.I.R. 1972 S.C. 359,  referred\nto.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 816 of 1973.
\n(Appeal under Section 116-A of the Representation of  People
\nAct, 1951 from the Judgment and Order dated the 12th  March,
\n1973  of the Punjab and Haryana High Court at Chandigarh  in
\nElection Petition No. 7 of 1972.)
\nN. S. Bindra, R. H. Dhebar, B. S. Malik, P. R. Ramasesh\t and
\nR. C. Bhatia, for the Appellant.\n<\/p>\n
K.  C.\tSharma,\t K. C. Agarwal,\t M.M.L.\t Srivastava,  E.  C.
\nAgarwala and Prem Malhotra, for Respondent No. 1.
\nK. L. Hathi, and P.C. Kapur, for Respondent No. 2.
\nA.T.M. Sangpath for Respondent No. 3.\n<\/p>\n
S. K. Bagga and S. Bagga, for Respondent No. 4.
\nThe Judgment of the Court was delivered by-
\nKRISHNA IYER, J.-By a plurality of less than 2,000 votes the
\nappellant was declared elected from the Nuh constituency  to
\nthe  Haryana Assembly in the general election held on  March
\n11,  1972. lie was an Independent candidate while  his\tmain
\nrival, the first respondent, represented the Indian National
\nCongress.  There were three others in the field two of\twhom
\nwere  independents and the third a Jan Sangh nominee-all  of
\nthem  polled  poorly.\tIn  the\t electoral  history  of\t the
\nconstituency  fickle  fortune has been smiling\tnow  on\t the
\nappellant,  now\t on the first respondent.  It  also  happens
\nthat while the appellant had been a Deputy Minister when  he
\nwas  elected to the Haryana Legislative Assembly  last\tfrom
\nthe  same  constituency in 1967, at  the  following  general
\nelection  in May 1968 to the same Assembly (before its\tterm
\nthe  Assembly was dissolved and the non-Congress  Government
\nwent out of office) the first respondent was elected and  he
\nbecame a Member of the Cabinet formed by the Congress party.
\nThe  next  election  fell  in 1972  where  both\t figured  as
\ncombatants  from Nuh and we are concerned with the  validity
\nof the result declared in favour of the appel-\n<\/p>\n
-185 SCI\/75
\n646<\/span>
\nlant  by  the returning officer in the present\tappeal,\t the
\nHigh Court having set aside the election.\n<\/p>\n
It  is\tapparent that the competitive politics\tof  the\t Nuh
\nconstituency has expressed itself through the appellant\t and
\nthe  first respondent for quite a long time now and  as\t the
\nvoting\tfigures\t of the latest poll shows, the\tcontext\t has
\nbeen  contentious and close.  In such battles of the  ballot
\nwhere  personal feuds foul the air, the decencies and  norms
\nset by the law may often be the first casualty.\t Anyway, the
\ndisappointed  first  respondent hastened  to  challenge\t the
\nappellant’s   election\ton  various  grounds   of   “currupt
\npractices”.   The  High Court has upheld a few of  them\t and
\nvoided\tthe appellant’s election, a miss being as good as  a
\nmile.\tThe  campaign pollutants must be kept  down  at\t the
\npolls if electoral disenchantment is not to grip the general
\ncommunity.   The Court, in this regard, is the\tsentinel  on
\nthe qui vive.\n<\/p>\n
Shri  Bindra, learned counsel for the appellant, has  argued
\nthe case in minute detail, countered by Shri Sharma for\t the
\nfirst  respondent ; but since at the appellate level  jejune
\ninfirmities  and  probative trivialities may  not  tilt\t the
\nscales even on the principle of juncta juvant, we will focus
\nlargely\t on the major circumstances.- The-correct  appellate
\nperspective  in an election case has been indicated by\tthis
\nCourt and we are bound to set our sights on those lines.  In
\nLaxminarayan V. Returning Officer<\/a>(1) the implied limitations
\non the appellate power under S.116A were stated thus :\n<\/p>\n
\t      “It  can re-appraise the evidence and  reverse
\n\t      the trial court’s findings of fact.  But\tlike
\n\t      any  other power it is not unconfined;  it  is
\n\t      subject  to  certain inherent  limitations  in
\n\t      relation\tto a conclusion of fact.  While\t the
\n\t      trial court has not only read the evidence  of
\n\t      witnesses\t on record but has also\t read  their
\n\t      evidence in their faces, looks and  demeanour,
\n\t      the  appellate  Court  is\t confined  to  their
\n\t      evidence on record
\n\t      *\t  *   *\t   *\t*    *\t  *
\n\t      In an appeal the burden is on the appellant to
\n\t      prove how the judgment under appeal is  wrong.
\n\t      To  establish this he must do  something\tmore
\n\t      than  merely  ask for a  reassessment  of\t the
\n\t      evidence.\t He must show wherein the assessment
\n\t      has gone wrong”.\n<\/p><\/blockquote>\n
\t      In  Karemore’s Case(2) this position  was\t re-
\n\t      stated thus:\n<\/p><\/blockquote>\n
\t      “Before a finding of fact by a Trial Court can
\n\t      be  set aside it must be established that\t the
\n\t      Trial  Judge’s findings were clearly  unsound,
\n\t      perverse\tor have been based on grounds  which
\n\t      are  unsatisfactory  by  reason  of   material
\n\t      inconsistencies or inaccuracies.\tThis is\t not
\n\t      to  say that a Trial Judge can be\t treated  as
\n\t      infallible   in  determining  which  side\t  is
\n\t      indulging in falsehoods or exaggerations ….\n<\/p><\/blockquote>\n
\t      *\t  *    *    *\t *    *\t   *
\n\t      While, as we have said earlier, it is open  to
\n\t      this  Court  to reappraise  the  evidence\t and
\n\t      consider the propriety, correctness
\n(1)  A.I.R. 1974 S.C. 66, 78.\n<\/p><\/blockquote>\n
(2)  A.I.R. 1974 S.C. 405, 413, 420.\n<\/p>\n
647<\/span><\/p>\n
\t      or  legality of the findings recorded  by\t the
\n\t      Trial  Court  ordinarily it will\tbe  slow  to
\n\t      disturb  the findings of fact recorded by\t the
\n\t      High Court unless there are cogent reasons  to
\n\t\t\t    do so.”\n<\/p>\n
An appeal is a re-hearing but the trial Court’s finding will
\nbe  upturned not when it is short of right but only when  it
\nis wrong.  We wilt view the case from this angle.
\nIn  a loose sense, Nuh is a Muslim constituency by which  we
\nmean   that   the  voting  strength  of\t  the\tMuslims\t  is
\npreponderant.  Both the candidates are Muslims and,  indeed,
\nto  some extent the Islamic “dosage” of each  candidate\t has
\nitself\tbeen highlighted in the Election Petition as a\tbone
\nof  contention\tin  the\t poll  confrontation,  as  will\t  be
\npresently   discussed.\t Had  parties\tprofessing   secular
\npolitics  and  revolutionary ideologies\t never\t“stooped  to
\nconquer”  by  sub rosa appeal to the religion and  caste  of
\nblocks\tof  voters  by\texciting  their\t sympathy  for\t the
\ncandidate via this sense of “tribal” identity, our elections
\nwould  long  ago have lived down  this\tinjurious  political
\nirrelevance.   On the contrary, the unerring  instinct\twith
\nwhich  political parties frequently choose candidates  whose
\nreligion  or  caste  tallies with that of the  bulk  of\t the
\nconstituents  appetises,  if not excites, covertly,  if\t not
\novertly,  the caste consciousness and  religious  separatism
\notherwise asleep in the bosoms of the common people.  In the
\nname  of  pragmatism many parties offer\t allegiance  to\t the
\nsuper-party—Caste  and  the law (Sees. 123  &\t 125)  fails
\noperationally  because\tthe  societal mores  are  not  being
\nseriously secularised by big Parties.  What is surprising is
\nthat the die-hard sense of caste has affected not merely the
\nHindu  heirarhcy  but also the Muslim  Brotherhood  and\t the
\nevidence  in  the present case reveal that Gote\t (gothra  or
\nclan  )\t is a binding force socially and  electorally  among
\nMuslims\t here.\t Exploitation  of  this\t susceptibility\t  is
\nsuggested against the appellant.\n<\/p>\n
The  first  respondent, in his petition,  has  imputed\tmany
\ntypes  of  corrupt  practices  to  the\treturned  candidate.
\nParagraph  8  of  the  petition sets  out  the\tfacts  about
\nbribery.   The next paragraph furnishes the  particulars  of
\nappeal\tby the returned candidate and\/or his election  agent
\nand by others with their consent, to vote for the  appellant
\non grounds of religion and caste and to refrain from  voting
\nfor  the  first\t respondent on the score  that\the  violated
\nIslamic tenets and was in fact a kafir.\t The gravamen of the
\nvices flung at the appellant is that he and others with\t his
\nconsent\t did broadcast to their constituents orally  and  in
\nwriting personal aspersions about the first respondent, cal-
\nculated\t to darken his poll prospects.\tUndue  influence  by
\ninvocation  of\tdivine displeasure by dietary  deviation  is
\nalso  alleged, based on the potential threat, if  respondent
\nwere returned of the pious Muslims being forced to eat pork-
\na prandial anathema for true Muslims.\n<\/p>\n
Not  all  of  these grounds have been held  proved  and\t the
\nappellate  I subject-matter is confined to that part of\t the
\ncanvas\t where\tfindings  of  corrupt  practice\t have\tbeen
\nrecorded.   We\twill switch the forensic spotlight  only  on
\nthem.  The High Court has wound up thus:\n<\/p>\n
648<\/span><\/p>\n
\t      “My  conclusions from the\t evidence  discussed
\n\t      under this issue may be summed up as follows:\n<\/p><\/blockquote>\n
\t      (a) Handbill Exhibit P. W.4\/3 was in existence
\n\t      before the 12th
\n\t      of March, 1972.\n<\/p><\/blockquote>\n
\t      (b) The returned candidate supplied copies  of
\n\t      the  handbill  to his agents and\tworkers\t for
\n\t      distribution amongst Muslim voters.\n<\/p><\/blockquote>\n
\t      (c) The returned candidate and his  supporters
\n\t      with  his\t consent, made an appeal  to  Muslim
\n\t      voters  to  vote for  the\t returned  candidate
\n\t      because he was a true Muslim whereas the peti-
\n\t      tioner  was a kafir.  This appeal was made  on
\n\t      the  9th\tand 10 th of  March,  1972,  through
\n\t      speeches\tdelivered by the returned  candidate
\n\t      and  his\tsupporters and\tby  distribution  of
\n\t      handbill\tExhibit P. W. 4\/3, in the  following
\n\t      villages of the Nuh Assembly constituency:
\n\t      Notki   Gohana,  Khedli  Nuh,  Mewli,   Malab,
\n\t      Nagina,\tKarherrha,  Pinangwan,\tBhadas\t and
\n\t      Gliagas.\n<\/p><\/blockquote>\n
\t      It is conceded before me that the appeal\tjust
\n\t      above found by
\n\t      me to have been made by the returned candidate
\n\t      was  an  appeal  to  vote\t for  the   returned
\n\t      candidate\t and to refrain from voting for\t the
\n\t      petitioner  on the ground of  their  religion,
\n\t      for  the furtherance of the prospects  of\t the
\n\t      election\tof  the returned candidate  and\t for
\n\t      prejudicially  affecting the election  of\t the
\n\t      petitioner  so that it falls within the  ambit
\n\t      of  the corrupt practice detailed\t in  section
\n\t      123 (3) of the Act, which corrupt practice the
\n\t      returned\tcandidate  must\t be  held  to\thave
\n\t      committed.  The issue is accordingly found  in
\n\t      favour of the petitioner.”\n<\/p><\/blockquote>\n
\t\t\t      *\t      *\t    *\t   *\t   *
\n\t      “From   the   evidence  accepted\tby   me\t  as
\n\t      trustworthy  under  that issue it\t is  further
\n\t      made out that practically all those statements
\n\t      with slight variations were made\tthe-subject-
\n\t      matter  of speeches by the returned  candidate
\n\t      and, with his consent, by Shri Tayyab Hussain,
\n\t      which speeches were delivered to gatherings in
\n\t      the  said\t ten villages.\tThe  publication  of
\n\t      those statements by the returned candidate and
\n\t      by Shri Tayyab Hussain, with his consent\tthus
\n\t      stands fully proved.  The petitioner has sworn
\n\t      as P. W. 76 that all the statements  contained
\n\t      in  the  handbill are false.   Thus  assertion
\n\t      stands wholly unrebutted.\t Appearing as R.I.W.
\n\t      37   the\treturned  candidate   averred\tthat
\n\t      according to his belief the statements made in
\n\t      the  handbill were incorrect.  This being\t so,
\n\t      all  the ingredients of the  corrupt  practice
\n\t      under  examination must be held to  have\tbeen
\n\t      fully brought home to the returned candidate”.\n<\/p><\/blockquote>\n
\t\t\t    *\t *    *\t   *\t*    *\t  *
\n\t      I have already held under issue No. 4 that  as
\n\t      claimed  by petitioner handbill Exhibit  P.  W.
\n\t      4\/3  was\tdistributed amongst  voters  by\t the
\n\t      returned candidate and his supporters with his
\n\t      consent.\t So the only question which  remains
\n\t      to be answered is
\n649<\/span>
\n\t      whether  the  publication\t of  the  statements
\n\t      above  extracted\tamounted to  any  direct  or
\n\t      indirect interference or attempt to  interfere
\n\t      with the free exercise of any electoral right.
\n\t      in opinion, this question must be answered  in
\n\t      the  affirmative.\t  According  to\t the  Muslim
\n\t      faith,  eating of pork is\t considered  sinful.
\n\t      The   impugned  statements  declared   in\t  no
\n\t      uncertain\t terms\tthat if the  petitioner\t was
\n\t      elected,\the  would force all Muslims  to\t eat
\n\t      pork.   The effect of those statements on\t the
\n\t      mind  of an average Muslim voter would  be  so
\n\t      powerful\tas to leave no free will to  him  in
\n\t      the  exercise of his choice of  the  candidate
\n\t      for whom he was to vote.\tThe inducement would
\n\t      result in a mental compulsion for the voter to
\n\t      vote for the petitioner and would,  therefore,
\n\t      fall  within  the\t ambit\tof  any\t attempt  to
\n\t      interfere\t  with\tthe  free  exercise  of\t  an
\n\t      electoral right.”\n<\/p><\/blockquote>\n
\t      *\t    *\t  *\t*      *    *
\n\t      “…..the\t  publication  that   the   returned
\n\t      candidate and others
\n\t      in handbill Exhibit P. W. 4\/3 amounted to\t the
\n\t      commission  of the corrupt practice  of  undue
\n\t      influence as defined in section 123(2) of\t the
\n\t      Act.”\n<\/p><\/blockquote>\n
\t      *\t    *\t   *\t *    *\t    *
\n\t      “Having found that the returned candidate\t and
\n\t      others with his consent committed the  corrupt
\n\t      practice- defined in clauses (1), (2), (3) and
\n\t      (4)  of section 123 of the Act, I\t accept\t the
\n\t      petition\tand  declare  the  election  of\t the
\n\t      returned candidate to the Haryana\t Legislative
\n\t      Assembly from the.  Nub Assembly\tconstituency
\n\t      to be void.”\n<\/p><\/blockquote>\n
The cornerstone of the election petition is the destribution
\nof libellous handbills and making of slanderous speeches  by
\nthe  candidate\tand  his companions  which  overflowed\tmere
\npersonal invective into many areas of corrupt practice.\t The
\nCourt was also satisfied with part of the charge of  bribery
\nwhich it expressed thus :\n<\/p>\n
\t      “As a result of the above discussion I find it
\n\t      proved that on the 14th of February 1972,\t the
\n\t      returned\tcandidate placed at the disposal  of
\n\t      respondent  No.  3  Car No.  DLF\t675  with  a
\n\t      promise that these expense incurred in  hiring
\n\t      the car and running it in connection with\t the
\n\t      election campaign of respondent No. 3 would be
\n\t      met by the returned candidate.”\n<\/p><\/blockquote>\n
Thus  it  is seen that while the embittered  petitioner\t has
\nblack-brushed\this  rival  with  many\tbrands\tof   corrupt
\npractices, he has failed to convince the Court on several of
\nthem.\tHis  counsel  gave  up many  of\t the  charges  after
\nevidence had been led.\tEven the residue has not fully found
\nfavour with the High Court and the only substantial  grounds
\nwhich have survived the screening process are two, viz : (a)
\nthe  ‘automobile’  bribe;  and\t(b)  the  dissemination\t  of
\nprejudicial and prohibited appeals.  The limited controversy
\nbefore us centres round the certitude of this fatal modicum.
\nThe  election  law invalidates a poll verdict  if  a  single
\nillegal\t adulterant has been admixed in the  campaign.\t The
\nlaw is jealously qualitative, not clumsily quantitative,  in
\nits nullification test and two vices or twenty are the\tsame
\nin the ultimate result.\n<\/p>\n
650<\/span><\/p>\n
A few prefatory observations are necessary before we discuss
\nthe  evidence, apply the law and reach our conclusions.\t  It
\nis  of the first importance that elections must be free\t and
\nfair  if the democratic system is not to founder.  Not\tlong
\nago a Chief Justice of this Court, delivering the  Lajpatrai
\nMemorial Lecture, observed:\n<\/p>\n
\t      “Untruths\t before elections, during  elections
\n\t      and  after elections seem to be too  prevalent
\n\t      for a healthy political society.”
\n\t      He also tartly remarked in that speech:
\n\t      “There  is always a danger of the\t failure  of
\n\t      democracy.    ‘Remember’,\t said  John   Adams,
\n\t      ‘remember,  democracy  never lasts  long.\t  It
\n\t      soon  wastes,  exhausts  and  murders  itself.
\n\t      There  never  was\t a democracy  that  did\t not
\n\t      commit suicide.  We must realise that this  is
\n\t      entirely true.”\n<\/p><\/blockquote>\n
The  Court is the conscience-keeper of the constituency,  as
\nit  were, in the maintenance of the purity of  elections  to
\nthe  extent  they  are litigated in  Court.   Shah,  J.,  in
\nHarcharan Singh’s Case (1) observed
\n\t      “The primary purpose of the diverse provisions
\n\t      of  the  election law which may appear  to  be
\n\t      technical\t is to safeguard the purity  of\t the
\n\t      election\tprocess,  and the  Courts  will\t not
\n\t      ordinarily minimise their operation.”\n<\/p>\n
We have therefore to insist that corrupt practices, such  as
\nare  alleged in this case, are examined in the light of\t the
\nevidence with scrupulous care and merciless severity.
\nHowever,  we have to remember another factor.\tAn  election
\nonce held is not to be treated in a light-hearted manner and
\ndefeated  candidates or disgruntled electors should not\t get
\naway  with it by filing election petitions on  unsubstantial
\ngrounds\t and irresponsible evidence, thereby  introducing  a
\nserious\t element  of  uncertainty  in  the  verdict  already
\nrendered  by the electorate.  An election is  a\t politically
\nsacred public act, not of one person or of one official, but
\nof  the collective will of the whole  constituency.   Courts
\nnaturally  must\t respect  this\tpublic\texpression  secretly
\nwritten and show extreme reluctance to set aside or  declare
\nvoid  an election which has already been held  unless  clear
\nand  cogent  testimony compelling the Court  to\t uphold\t the
\ncorrupt\t practice alleged against the returned candidate  is
\nadduced.  Indeed election petitions where corrupt  practices
\nare  imputed  must be regarded as proceedings  of  a  quasi-
\ncriminal  nature  wherein strict proof\tis  necessary.\t The
\nburden\tis  therefore heavy on him who assails\tan  election
\nwhich has been concluded.\n<\/p>\n
There are many who are cynical about the enforcement of\t the
\nelection law, which is too moral for the pragmatic skills of
\nthe politicians when locked in pitched battles.\t They regard
\nthese vices as
\n(1) [1969] 1 SCA 138, 145.\n<\/p>\n
651<\/span><\/p>\n
inevitable   and  therefore  remain  indifferent  to   their
\nprevalence.   Sydney  Harris’ statement in this\t context  is
\napposite :\n<\/p>\n
\t      “Once  we\t assuage our conscience\t by  calling
\n\t      something a necessary evil’, it begins to look
\n\t      more  and\t more necessary and  less  and\tless
\n\t      evil.”\n<\/p><\/blockquote>\n
For  this  very reason the Court has to be stern  so  as  to
\ninduce\tin  the\t candidates, the parties  and  workers\tthat
\ntemper\tand truthfulness so appropriate to the\tprocess\t and
\nnot  bewail, as the Report of the Fifth General Election  in
\nIndia (1971-72, issued by the Election Commission) does\t (at
\np. 198 thereof) :\n<\/p>\n
\t      “But how can we expect that elections will  be
\n\t      absolutely  and totally  corruption-free\twhen
\n\t      the   whole  country  in\tevery\tsphere\t and
\n\t      department of life and activity is plunged  in
\n\t      the  ocean of corruption ? It  is\t everybody’s
\n\t      complaint that there is no business, trade  or
\n\t      industry\twhere black-marketing or bribery  is
\n\t      not   pracctised….  Remove   corruption\t  in
\n\t      general  and corruption in election will be  a
\n\t      thing of the past.”\n<\/p><\/blockquote>\n
The  charge  of\t bribery has been made in  this\t case  in  a
\npeculiar  setting  and has been held proved in part  by\t the
\nlearned\t Judge.\t Before going into the\tprincipal  skein  of
\ncorrupt\t practices wound round the alleged propaganda,\toral
\nand  documentary, we may dispose of the lesser\tbut  equally
\nlethal\tepisode\t of bribe-giving. A glance at  the  communal
\ncomposition  of the constituency and its behavioral  pattern
\nis  necessary to appreciate this ground covered by issue  1.
\nNo part of Indian geography is a religious monolith and\t Nuh
\nis  no exception to this social diversity and communal\tmix.
\nThe majority are Meo-muslims (converts from Rajputs carrying
\ntheir  caste  and gothra memory into their  Islamic  genetic
\ncode  and  observing in life the clan habit) but  there\t are
\nalso  Hindus including Harijans. The Harijans, according  to
\nthe  petitioner, traditionally vote for the Congress  except
\nwhen  lured away by a fellow Harijan figuring as  candidate.
\nTo  wean  away Harijans from the Congress ballots  was\tvery
\nmuch  to  the  appellant’s  interest  and  so  the  petition
\nalleged, he exploited their communal pathology by setting up
\nSohanlal, Respondent 3, as a ghost candidate not to win\t but
\nto defeat.\n<\/p>\n
Human  homogenisation in elections, breaking down  religious
\nbarriers,  is  social  heroism unaccomplished  even  in\t the
\ncommunal  pluralism of the U.S.A. and the U. K. although  it
\nis  exaggerated\t by tradition in. India and hurts  it  more,
\nbeing  a developing country. The political pity is that\t the
\nsecular\t and social objectives of our  Constitutional  order
\nare  obfuscated by a system of mass electoral  participation
\nwhere  separate electorates, written with the invisible\t ink
\nof life, are partially perpetuated by political\t leaderships
\nbent on shortcuts to power. The law should so develop as  to
\ndis-induce communal-reli-gious appeal by the crypto-casteism
\nof the candidature itself We say this not as a strange\tevil
\nof our society but as an inadequacy of our election life and
\nlaw.  Newton D. Baker observes about the U. S.\n<\/p>\n
652<\/span><\/p>\n
situation  while  considering the harm of a  switch-over  to
\nproportional representation :\n<\/p>\n
\t      “We have groups of all sorts and kinds  formed
\n\t      around religious, racial, language, social and
\n\t      other contentious distinctions.\tProportional
\n\t      representation invites these groups to seek to
\n\t      harden  and  intensify  their  differences  by
\n\t      bringing them into political action where they
\n\t      are  irrelevant,\tif not disturbing.   A\twise
\n\t      election\tsystem would invite them  to  forget
\n\t      these distracting prejudices.”\n<\/p><\/blockquote>\n
The 1st respondent’s case is that the appellant persuaded  a
\nfinancially  incompetent Sohanlal-respondent No. 3-to  stand
\nas candidate over-ruling his reluctance by offer of Rs.\t 125
\nand  promise of footing his campaign bill, in a bid to\tskin
\naway  the Harijan pro-Congress votes.  This was on  February
\n9,  1972.  Since the lower Court has rejected this  episode,
\nwe  too\t ignore it.  But the official date  for\t withdrawal,
\nFebruary  14,  found the hesitant Sohanlal  hovering  around
\nretirement from an expensive context.  The 1st\trespondent’s
\nstory  is  that\t the appellant gave a shot  in\tthe  arm  by
\nproffer of Rs. 1,000 and a car for use till the election was
\nover.\t This  stroke  of  bribery  continued  the   Harijan
\ncandidate  in the arena.  The finale of this shady  chapter,
\ndisbelieved  by the Court, is that a couple of\tdays  before
\nthe   actual   poll  the  appellant   purchased\t  Sohanlal’s
\nretirement  and exhortation to his followers to support\t the
\nappellant  at a price of Rs. 2,000 paid on March  10,  1972.
\nThis facet of the case has been eliminated at the High Court
\nlevel  and  need  not  detain us.   The\t narrow\t point\tthat
\nsurvives  for our scrutiny as to whether the  appellant\t did
\ncommit\t the  corrupt  practice\t under\ts.  123(1)  of\t the
\nRepresentation of People Act, 1951 (the Act , for short), by
\nplacing\t at  the  disposal of candidate\t Respondent  3,\t car
\nD.L.F.\t675 and promising him the hire charges\tand  running
\nexpenses   thereof  with  a  view  to  his  continuance\t  as
\ncandidate,  the\t ultimate gain being the  seduction  of\t the
\nHarijan electors away from the Congress candidate
\nIt  is\tnot  necessary\tto  examine  whether  the   evidence
\njustifies the finding that Sohanlal got the use of a car  at
\nthe  expense of the appellant.\tWe will assume that  is\t so.
\nBut  it\t is  not  every help by\t a  candidate  to  a  fellow
\ncandidate  that constitutes corrupt practice.  Stich  finan-
\ncial  aid must be to induce the latter not to withdraw\tfrom
\nthe  section.  May be, a candidate may wish to fight but  do
\nit so bloodlessly that he     may  not reach  his  potential
\nsupporters  and\t if  his  effective  canvassing\t is  in\t the
\ninterests of another candidate (the electoral chemistry\t has
\nmany  actions and reactions) then the latter may  invigorate
\nhis  campaigning  with funds or aid in kind,  not  for\tnon-
\nwithdrawal but for full-blooded electioneering.\t To jack tip
\nis  different  from preventing a jump down.  This is  not  a
\ncorrupt\t practice under the law and so the key\tquestion  is
\nnot whether a car was provided but whether the provision  of
\nthe car was to prod the candidate not to withdraw.  A close-
\nup  of the evidence on this significant facet leaves  us  in
\nserious\t doubt about the sufficiency and reliability of\t the
\nproof.\n<\/p>\n
653<\/span><\/p>\n
From the evidence in this case it looks as if Sohanlal,\t the
\nthird  respondent, is an indigent person and handicapped  by
\nsocial backwardness.  Nevertheless he is needed as a  magnet
\nto  polarise  all Harijan votes away from the cow  and\tcalf
\nsymbol.\t It is a worthwhile reflection on the Sohanlal drama
\nthat   in  order  to  invest  elections\t with  equality\t  of
\nopportunity in a country of poverty, inexpensiveness must be
\nstamped\t on the campaigning process.  This may be  attempted
\nin  many ways by adapting to Indian  conditions\t experiences
\nelsewhere,.   But  the\tpresent\t methodology  of  fixing  up
\ncandidates at the last minute as a product of many pressures
\nmakes  for more inputs than consultation with the  community
\nin  the\t concerned area, a sort of  informal  “primary”\t and
\nannouncement  of the choice will ahead for the\tconstituency
\nto  know  and  understand the candidate\t likewise  if  Party
\ncadres work constructively and continuously for solution  of
\npeoples’  grievances  instead  of  going  into\telection-eve
\ncampaigning  with all the sound and fury of hectic  pre-poll
\nduel  to  win votes, the project will cost  less  and  vote-
\ncatching   stratagems  will  yield  poor  pay  off.    Large
\npecuniary lay-out in the business of power politics must  be
\narrested  if the system is not to sink.\t Today, the  average
\nHarijan,  like\tSohanlal, has as much chance of\t winning  an
\nelection  as  a camel has of passing through the  eye  of  a
\nneedle.\t  Naturally he looks around for help.  Money  is  of
\nkey  importance if enormous sums must be spent to reach\t the
\nvast  electorate  to break down public\tinertia\t and  secure
\nsubstantial  polling.  In such a background Rahim Khan\t(RI)
\nis  alleged  to\t have prayed upon  Sohanlal’s  inability  to
\nfinance\t his election by offering the sinews of war  thereby
\nindirectly  deriving  good negative return  for\t his  money.
\nSohan lal himself has backed a good part of this case,so far
\nas  the\t giving of a car is concerned.\t Straight  from\t the
\nhorse’s mouth, as it were, we have this :\n<\/p>\n
\t      “On  the\t14th of February 1972,\tRahim  Khan,
\n\t      Tayyab  Hussain, Faquira, Chet Ram  and  Yamin
\n\t      Khan  came to me, and offered me money  and  a
\n\t      car.  Rahim Khan paid Rs. 1,000 to Faquira for
\n\t      expenses\ton  the\t car.\tI  was\tcarrying  on
\n\t\t\t    propaganda for my election.”\n<\/p><\/blockquote>\n
On  the\t crucial point whether the car (and all\t found)\t was
\ngiven  to make him continue the contest there is silence  in
\nchief-examination  and denial in cross-examination  although
\nhis  ambiguous\tsympathies seem, if at all, to be  with\t the
\nCongress  candidate in the election case.  The testimony  of
\nP.  W. 22 (Ram Kishan), P. W. 23 (Habib), P. W. 24  (Jaswant
\nSingh) and R 3. W. 1 (Faquira) has been pressed into service
\nin  this  connection.  The evidence of P. W. 22, 23  and  24
\ndoe,,,,\t not bear on the condition of non-withdrawal as\t the
\nbasis for the supply of free transport R3 W. 1 swears :\n<\/p>\n
\t      “During  the  last  general  election  I\t was
\n\t      supporting  Rahim\t Khan respondent. 20  or  25
\n\t      days  before  polling  I\twent  to  Sohan\t Lal
\n\t      respondent in the company of Rahim Khan, Badri
\n\t      Parshad  respondent, Tayyab Hussain  and\tMauj
\n\t      Khan.  Sohan Lal respondent said that although
\n\t      he had stood for the election, lie was feeling
\n\t      handicapped  on account of lack  of  financial
\n\t      resources.   Rahim Khan told him not to  worry
\n\t      inasmuch as he
\n654<\/span>
\n\t      (Rahim  Khan)  would  provide  him   necessary
\n\t      :finance.\t  In my presence no money was  paid,
\n\t      but Rahim Khan placed a car at the disposal of
\n\t      Sohan Lal respondent.  Rahim Khan told me that
\n\t      I should support Sohan Lal and that Rahim Khan
\n\t      would   reimburse\t me  for  all  expenses\t  in
\n\t      connection with the car.”\n<\/p><\/blockquote>\n
Here also the vital element of inducement not to withdraw is
\nabsent.\t  Of course even regarding giving the car  there  is
\nsome evidence contra of the appellant and of Tayyab  Hussain
\n(R3  W.\t 9).  But the crux of the matter  is  the  pecuniary
\npressure put on a candidate to persist in the candidature  ;
\nthis latter limb is unproven and not even formally found  by
\nthe  lower  Court.  The serious scrutiny of  law  and  facts
\nexpected  of election tribunals before unseating a  returned
\ncandidate is wanting in the High Court’s finding and we hold
\nthat, suspicions apart, the charge of bribing Sohanlal\tinto
\nfighting  a  futile  battle has not  been  brought  home  as
\nrequired by s. 123(1) of the Act.. At the last stages of the
\nargument  before us Shri Sharma made a virtue  of  necessity
\nand did not press the case of bribery.\n<\/p>\n
The  decisive and deadly chapter of the petition relates  to
\nthe multipointed propaganda violating the canons of election
\nlaw  set  out in s. 123(2), (3) and (4).   Question  of\t law
\nabout  the correct construction of the\trelevant  provisions
\narise  but  the primary issue is one of fact.\tWere  public
\nmeetings held on 9th and 10th of March maligning orally\t and
\nthrough\t handbills  the\t Congress  candidate  for  lack\t  of
\npersonal morals, for heathen and bohemian ways and for being
\na potential danger to good mussalmans ? Were pamphlets\tlike
\nEx.  P-3 made and distributed on or about March 9 and 10  by
\nthe  returned  candidate  and  his  agents,  describing\t his
\nCongress rival as a pork-eater and taker of virginities,  as
\na  coercive agent getting muslim graves dug up\tand  forcing
\ntrue muslims eat roast pig ?\n<\/p>\n
A  few phenomena appear in this case which deserve  judicial
\nnotice for the purpose of appreciating the evidence on\tthis
\nbranch\tof  the\t story\tof  corrupt  practices.\t  Both\t the
\ncontesting  parties, the appellant and the  1st\t respondent,
\nare  strong men with considerable hold on large\t numbers  of
\npeople\tin the constituency, as the polling result  reveals.
\nBoth  of them have been in and out of office  and  naturally
\nthe  bid  for  power would whet their  appetite.   The\twild
\nallegations in the petition, if true, would suggest that the
\nappellant  tried  many\tmethods\t of  assuring  victory\t for
\nhimself,  such\tas setting up a Hindu  candidate  who  would
\ncarry  away the Hindu votes, a Harijan candidate  who  would
\nwean away Harijan votes and the Muslim votes being attracted
\ninto  his count by painting his Congress rival a  kafir\t and
\nhimself\t a Muslim good and true.  At this stage it is  clear
\nthat  the theory of ex-communication set up in the  petition
\nhas  been  abandoned.  Likewise, bribery based\ton  the\t Jan
\nSangh candidate has also been dropped.\tThe supply of a\t car
\nas  an\tinducement  not to withdraw  from  the\telection  to
\nSohanlal  has  been upheld by the trial Court, but  we\thave
\nalready expressed our view to the contrary.
\nWe are left ultimately with the story of the public meetings
\nwhere  slanderous  speeches  were  made\t and  of   libellous
\nleaflets having been
\n655<\/span>
\ndistributed.  There is no doubt that tension had mounted and
\nthe  candidates\t were frantic.\tAn order under\ts.  144\t Cr.
\nP.C.  had been clamped down on the whole constituency and  a
\nlarge  police  force was moving around to maintain  law\t and
\norder  in  the\twhole area.   The  argument  of\t appellant’s
\ncounsel\t is that since meetings of five or more\t persons  in
\npublic\tplaces\thad been prohibited, it\t was  unlikely\tthat
\nthere would have been open violation in many villages by the
\nappellant  himself,  a\tformer Deputy  Minister\t and  Tayyab
\nHussain,  a  sitting Member of Parliament.   Nor  could\t the
\npolice\thave  been  so\tinsouciant  as\tto  ignore  numerous
\nbreaches  of the ban on public meetings.  Equally strong  is
\nthe circumstance that had there been meetings in  contraven-
\ntion  of  prohibitory  orders,\tthe  Congress  candidate,  a
\nCabinet Minister at the time of the election, would not have
\nkept  quiet at all.  It is also note-worthy that s.  126  of
\nthe Act prohibits holding of public meetings within 48 hours
\nof  the\t close\tof the poll.  We are  impressed\t with  these
\ncircumstances  and would have unhesitatingly held as  unsafe
\nthe oral testimony in proof of public meetings.\t However  we
\nare  not  prepared to discredit outright  all  the  evidence
\nabout gatherings in the villages, where the appellant  spoke
\nto  people, solely on the ground of the order under  s.\t 144
\nCr.  P. C. What we see from the evidence is that there\twere
\nno  regular meetings prearranged and public.  It was more  a
\ncase  of the appellant running around from place  to  place,
\nmeeting\t persons who gathered when he went to a\t place,\t his
\nsitting on a cot and talking impromptu to the men who turned
\nup within a short time and leaving the place after a  little
\nwhile.\t It  is\t difficult to  describe\t these\ttiny  groups
\nspontaneously  assembling and melting away after quarter  of
\nan hour or so, as public meetings.  Technically they may  or
\nmay  not  be  breaches\tof the\tban  order  but\t such  minor
\nliberties  are\tnot  infrequently taken by  both  sides\t and
\nwinked\tat  by\tthe  police,  lest  genuine   house-to-house
\npropaganda  by\tthe candidates and their supporters  on\t the
\nvery last day should be interfered with and tension mount up
\non  the ground that the authorities thwarted a\tnon-Congress
\ncandidate’s  canvassing.  Certainly we have to bear in\tmind
\nthe  circumstances  mentioned  earlier\tin  evaluating\t the
\nevidence  of  witnesses, giving the  benefit  of  reasonable
\ndoubt to the appellant.\n<\/p>\n
Many  witnesses examined in support of the 1st\trespondent’s
\ncase  are  partisans,  being the  polling  agents,  counting
\nagents of workers of the Congress candidate.  Their evidence
\nhas  naturally\tto be viewed with  circumspection,  but\t not
\ndismissed outright [See Ambika Saran Singh v. Mahant Mahadev
\nNand  Giri(1)].\t But more curious is the turn-coat  type  of
\nwitnesses  who\tclaimed\t to be and often  were\tthe  polling
\nagents, counting agents or workers of the appellant till the
\nelection was over, but, in the post-election period when the
\n1st  respondent’s  party had formed  a\tGovernment,  quietly
\nshifted\t their\tloyalty and gave evidence in  proof  of\t the
\naverments  in  the petition.  It is conceivable\t that  these
\npersons who had collaborated with the appellant in the\tmal-
\npractices  alleged  were possessed of the urge\tto  unburden
\ntheir  bosoms  of  the truth of\t their\town  evil-doing\t and
\nhurried\t into the witness to swear veraciously to what\ttook
\nplace actually.\t But the more probable
\n(1) 41 E.L.R.183
\n656<\/span>
\nexplanation would be that these swivel-chair witnesses\twith
\nIndia rubber consciences came under the influence of the 1st
\nrespondent  for invisible consideration and spoke  dubiously
\nin  support  of their present patron.  Of course,  if  their
\nevidence  is  intrinsically  sound, if\ttheir  demeanour  is
\nimpressive  otherwise,\tif the\tincontrovertible  facts\t and
\nbroad  probabilities  fit in with their\t version  and  other
\ndisinterested testimony on the same point is forthcoming, we
\nshould\tnot disbelieve the case merely because some  tainted
\nevidence is also placed on the record. In this view, we have
\nto scan the oral evidence rather carefully, lest the verdict
\nof the people at the polls should be nullified on  uncertain
\nand dubious evidence.\n<\/p>\n
Counsel\t for  the  appellant and, to some  extent,  the\t 1st
\nrespondent’s advocate also, read before us rulings galore as
\nto   when  witnesses  should  be  believed  and\t when\tnot.
\nPrecedents on legal propositions are useful and binding, but
\nthe  variety of circumstances and peculiar features of\teach
\ncase cannot be identical with those in another and judgement
\nof  Courts  on\twhen  and why a\t certain  witness  has\tbeen
\naccepted or rejected can hardly serve as binding  decisions,
\nLittle assistance can therefore be derived from case law  on
\ncredibility.   There are no legal litmus tests\tto  discover
\nthe  honest  conscience of a human being and the  canons  of
\ntruthfulness  of  oral evidence sans  commonsense,  are\t but
\nmisleading  dogmas.  The golden rule is, as  George  Bernard
\nShaw  tells  us, that there are no golden rules.   For\tthis
\nreason we are not referring to the many rulings cited before
\nus.   But  we certainly inform ourselves  with\tthe  general
\ntouchstones of reliability.  The fact that we are not  ready
\nto act on the testimony of a person does not mean that he is
\na  perjurer.  It merely means that on such testimony  it  is
\nnot safe to conclude in a quasi-criminal proceeding that the
\n‘corrupt  pratice’ has been proved beyond reasonable  doubt.
\nThe whole constituency is silently present before us it must
\nbe remembered (See observations of Dua I, J. in I.L.R.\t1969
\nI Punj 625.)
\nWe must emphasize the danger of believing at its face  value
\noral  evidence\tin an election case without the\t backing  of
\nsure  circumstances  or indubitable documents.\tIt  must  be
\nremembered  that corrupt practices may perhaps be proved  by
\nhiring\thalf-a\tdozen witnesses apparently  respectable\t and
\ndisinterested, to speak to short of simple episodes such  as
\nthat a small village meeting took place where the candidates
\naccused\t his  rival of personal vices.\tThere  is  no  x-ray
\nwhereby the dishonesty of the story can be established\tand,
\nif the Court were gullible enough to gulp such oral versions
\nand  invalidate\t elections, a new menace  to  our  electoral
\nsystem\twould  have  been  invented  through  the   judicial
\napparatus.  We regard it as extremely unsafe, in the present
\nclimate\t of kilkennycat election competitions  and  partisan
\nwitnesses  wearing  robes of veracity to upturn a  hard\t won
\nelectoral  victory merely because lip service to  a  corrupt
\npractice has been rendered by some sanctimonious  witnesses.
\nThe   Court  must  look\t for  serious\tassurance,   untying
\ncircumstances  or  unimpeachable documents to  uphold  grave
\ncharges\t of corrupt practices which might not merely  cancel
\nthe  election  result, but extinguish many  a  man’s  public
\nlife.\n<\/p>\n
657<\/span><\/p>\n
With  these  background observations we\t shall\tanalyse\t the
\nevidence adduced on both sides.\t We are not deterred by\t the
\nnegative evidence on the side of the appellant to the effect
\nthat  within the ken of the witnesses concerned\t no  meeting
\ntook  place or no distribution of pamphlets had\t been  made.
\nNot only can such evidence be procured but it is  hopelessly
\ninconclusive  in  the  face of\tdefinite  and  positive\t and
\nprobable  testimony, if any to the contrary.  Therefore,  we
\nhave to search for the evidence in support of the  petition,
\nits reliability arid sufficiency.\n<\/p>\n
Shri Bindra, for the appellant, made a blistering attack  on
\nthe learned Judge’s wrong approach to testimonial renegades.
\nFor, strategic documents like Ex P2\/P3 and P5\/P6 and  lethal
\ncircumstances  like  addressing\t slandering  speeches,\t are
\nsought\tto  be\tproved by the  1st  respondent\tthrough\t the
\npolling\t agents and other erstwhile activists of the  appel-
\nlant during the election.  The Court somehow thought that  a
\ntrace  of treachery was the signature of truth and that\t the
\npost  election\tsupport\t to the defeated  candidate  in\t the
\nwitness\t box,  speaking to collaboration with  there  turned
\ncandidate in pre-election corrupt practices, makes assurance
\ndoubly\tsure.  We cannot understand how\t tergiversation\t can
\nbecome\ta virtue.  Defection in politics is becoming a\tper-
\nvasive\tvice and its projection into election cases must  be
\nfrowned\t upon  by Courts.  It scandalises us that  a  person
\nshould\tbe  the\t campaign  agent  of  one  candidate  during
\nelections  and\tshould shift loyalties during  the  election
\ncase  to  undo the victory he contributed  to  attain.\t The
\nprice of post-election swivelling must slump.  It is naivete
\nto pin faith on such probative circus and it is necessary to
\ndiscourage such defection in the interests of the purity  of
\nthe  Court process.  Except in special\tcircumstances  which
\nare not present in the present case we decline to  dismantle
\nan electoral result by the technique of turn coat testimony.
\nHere  we may clear the ground by removing  Sohanlal’s  near-
\nconfessional  evidence from the area of reliable  testimony.
\n‘Whatever   his\t role  before  the  election,  his   written
\nstatement  and\tevidence  smack\t of  the  1st\trespondent’s
\nvocabulary  and\t either\t he  is a fool or  a  knave  or\t too
\ntruthful to be credible.  For he admits receiving a car\t and
\nexpenses from the appellant, pleads to a mood of  withdrawal
\nand  in\t evidence lends lip service to distribution  of\t the
\nobjectionable handbills and to a last minute withdrawal from
\nthe election at the instance of the appellant.\tAll that  we
\nneed  say  is  that  his word does  not\t have  the  ring  of
\nreliability and we leave it at that.\n<\/p>\n
Yet  another aspect of the case may be dealt with  here,  to
\nclear  the  deck for a consideration of the  serious  issues
\nthat survive.  Running right through the war and woof of the
\npetitioner’s   averments  and  evidence\t and  haunting\t the
\npolitical life of the petitioner for long years is a sitting
\nMember of Parliament on the Congress benches, R3 W9,  Tayyab
\nHussain.  He is charged with visiting village after  village
\nwith  the appellant an\tex- Congress man and now the  bitter
\nopponent  of  the  Congress  candidate\tto  deliver  vicious
\npersonal attacks on the petitioner, a Minister belonging  to
\nhis  own  Party.  The Mec-Muslims had the father  of  Tayyab
\nHussain\t as  their  leader and\tafter  him,  Tayyab  Hussain
\nhimself apparently a political family claiming
\n658<\/span>
\nvirtually  hereditary hegemony over a small community.\t The
\narrival\t of  an\t educated Meo like  the\t petitioner,  a\t law
\ngraduate, on the political scene was a potential threat to a
\nvested interest.  We find from the evidence personal rivalry
\nbetween\t the two writ large, Tayyab Hussain being  ready  to
\nchange\tParty  and ally with enemies for personal  ends\t and
\ngetting suspended from the Congress in the bargain.  He\t has
\nbeen  a Deputy Minister once and has tasted power.   May  be
\nthe petitioner’s political presence is a spectre for him and
\nso  he may be prone to run that rival down.  Even so,  there
\nare  boundaries to his hostile operations.  Let us  look  at
\nhim  as in 1972.  He knows that anti-Party  activities\twill
\nimperil\t his Congress future.  He has vital stakes  in\tthat
\nparty, being a sitting member of Parliament with four  years
\nto  go.\t  He was Chairman of the Wakf Board  for  which\t his
\nparty  position must have partly accounted.  The Party\tHigh
\nCommand was so near Nuh that had he acted publicly he  would
\nhave been pulled up instantly.\tIt is difficult to  believe,
\neven if the man was an adventurist master in the art of\t the
\npossible,  that this M. P. would have openly and  stridently
\ncampaigned  in\tthe company of the  anti-Congress  candidate
\nWith vituperative vigour.  His heart may have been with, the
\nappellant Rahim Khan but he could not have so lost his\thead
\nas  to strike publicly at Khurshid Ahmed.  The heap of\toral
\nevidence  adduced in the case does not persuade us  to\thold
\nwith  the  1st\trespondent on the public  doings  of  R3  W9
\nhostile to his candidature.\n<\/p>\n
Now  let  us  get to the meat of the  matter.\tFor  by\t all
\naccounts the piece de resistance is the pamphlet part of the
\ncase.\tA  manouvre to malign was resorted  to\tat  critical
\nstage  of the poll battle, according to the 1st\t respondent.
\nAlthough there is a volume of oral testimony regarding small
\nbut  numerous whistle-stop meetings held in street  corners,
\ncommon\ton  election eve everywhere, we feel  it  unsafe  to
\nstake  a  verdict  of  corrupt\tpractice  on  such   dubious
\nmaterial.  By passing these oral adventures in vilification,
\nwe  proceed  to turn the spotlight on the  handbills,  their
\nauthorship, existence, implications and circulation.  We may
\nstraightway   state  that  once\t we  grant   this   pamphlet
\npublicity,  it\twill depress the victim’s  chances  and\t may
\namount\tto an appeal to religion.  Both the  candidates\t are
\nMuslims but one is less muslim than the other almost a kafir
\nbecause he eats pork.  The other imputations in the handbill
\nrelate to character assassination and undue influence  which
\nwe will refer to presently.\n<\/p>\n
We  may as well set out here Ex.  P. W. 413,  the  offending
\nhandbill
\n\t\t   “INTRODUCTION OF CH.KHURSHID AHMED AND
\n\t\t\t  SOME QUESTIONS TO HIM.\n<\/p>\n
\t      1.  You  being a Muslim got dug a grave  of  a
\n\t      Mohammadan  and got the dead body out  due  to
\n\t      your  personal enmity, which is against  Islam
\n\t      and its Shariat.\tDo you still claim  yourself
\n\t      to be a Muslim ?\n<\/p>\n
\t      2.  Since you have become a Minister you\thave
\n\t      taken bribery from the public for each work of
\n\t      the public.  Do you call this public service ?\n<\/p>\n
659<\/span><\/p>\n
\t      3.  You  being Health  Minister  violated\t the
\n\t      modesty  of numerous lady doctors\t and  nurses
\n\t      and till they did not surrender their body  to
\n\t      your  lust you did not do any of their  works.\n<\/p>\n
\t      Do  you want to be elected again so  that\t you
\n\t      can continue your debauchery\n<\/p>\n
\t      4. You while being a Minister got some Muslims
\n\t      of  village Utawad arrested on allegations  of
\n\t      cow slaughter and made them to eat meat of the
\n\t      pig.Do  you want to be elected again  so\tthat
\n\t      you  may be able to make all Muslims  eat\t the
\n\t      meat of the pig ?\n<\/p>\n
\t      Khurshid Sahib  public wants to tell you\tthat
\n\t      you  yourself have become a ‘Kafir’ by  eating
\n\t      the meat of the pig. but the remaining muslims
\n\t      do not want to become ‘Kafirs’ at your  hands.
\n\t      Public  should pay attention and\tshould\tgive
\n\t      crushing\tdefeat\tto  such a  ‘Kafir’.   I  am
\n\t      rightly entitled to your vote.\n<\/p>\n
\t\t\t\t\t  Rahim Khan.”\n<\/p>\n
Appeal\tto religion, in this context, is influencing  Muslim
\nvoters to prefer the appellant for his authentic Islamic way
\nof  life  and to repel the 1st respondent  for\this  heathen
\nhabits.\t  A  plate for pork is the main\t un-Islamic  conduct
\nimputed to the 1st respondent.\tIs it appeal to religion  if
\nvoters are told that a candidate consumes unorthodox food  ?
\nThat  a brahmin eats beef, that a muslim eats pork,  that  a
\nJain  eats  at\tnight ? Should the law\tlend  itself,  in  a
\nsecular\t State, to the little susceptibilities\tof  orthodox
\ntenets\t? If we push it for, particularly in religions\tlike
\nHinduism  and  Islam which contain  prescriptions  regarding
\ndress,\tbath, shave, ablutions and diet,  many\tdifficulties
\nwill  arise.  Eating garlic, radish and uncooked onions\t and
\neven the flesh of cattle killed without invocation of  Allah
\nis un-Islamic (See “Who is a Muslim” by G. Ghous Ansari, pp.
\n39-42).\t  Can you set aside an election because\t the  losing
\ncandidate was described as eating raw onion ? This situation
\nbecomes\t worse\tin the Hindu fold.  It is strange  law\tthat
\ndoes  not  quarrel  with an appeal not to  vote\t for  a\t man
\nbecause he does not eat vitamins but nullifies the  election
\nfor  appeal based on radish or pig’s flesh.  True, the\tvice
\nis  injection  of  religion into  politics  and\t playing  up
\nfanaticism to distract franchise.  But the back lash of this
\nprovision  is a legal enquiry into what is the basic  faith,
\nnot its frills and filigrees. it has been held by the Madras
\nand  the Kerala High Courts (71 I.C. 65 and 1971 K.L.T.\t 68-
\nImbichi Koya Thangal v. Ahamed Koya) that the credal core to
\nidentify  a Muslim as Muslim is not food and dress  but\t the
\ntriune items of One God, Universal Brotherhood and the Great
\nProphet Mahomet, being the last of the Prophets (although on
\nthis  last limb there is some dispute).\t No charge on  these
\nthree aspects has been made in the handbills.  Thus apostasy
\nhas  not been alleged.\tNevertheless, having regard  to\t the
\nruling in Kultar Singh v. Mukhtiar Singh<\/a>(1) and the  popular
\nsentiment  tied up rightly or wrongly with Muslim  religion,
\nwe  do not disagree with the view of the High Court and\t the
\nstand  of both counsel.\t The secular texture of the  law  is
\nprimarily  the legislator’s responsibility  although  Caesar
\nand God should
\n(1) [1964] 7 S.C.R. 790.\n<\/p>\n
660<\/span><\/p>\n
not get mixed up in areas of food, clothing and housing\t and
\nother temporal matters not inherently interlinked with man’s
\ncommunion  with\t the Supreme.  What is\tappeal\tto  religion
\ndepends on time and circumstance, the ethos of a  community,
\nthe  bearing  of the deviation on the  cardinal\t tenets\t and
\nother  variables.   To confound communal passion  and  crude
\nbigotry\t with  religion\t is  to\t sanctify  in  law  what  is
\nirreligion in fact.  It is good to remind ourselves of Roman
\nRolland on Ramakrishna, quoted in Nehru’s Autobiography
\n\t      “..many souls who are or who believe they\t are
\n\t      free  from  all religious belief, but  who  in
\n\t      reality  live  immersed in a  state  of  super
\n\t      consciousness,  which  they  term\t  Socialism,
\n\t      Communism,  Humanitarianism,  Nationalism\t and
\n\t      even  Rationalism.   It  is  the\tquality\t  of
\n\t      thought  and not its object  which  determines
\n\t      its source and allows us to decide whether  or
\n\t      not  it emanates from religion.  If  it  turns
\n\t      fearlessly towards the search for truth at all
\n\t      costs  with single-minded\t sincerity  prepared
\n\t      for any sacrifice, I should call it  religious
\n\t      ; for it presupposes faith in an end to  human
\n\t      effort  higher  than  the\t life  of   existing
\n\t\t\t    society,  and  even\t higher than  the
\n life  of
\n\t      humanity as a whole.  Scepticism itself,\twhen
\n\t      it proceeds from vigorous natures true to\t the
\n\t      core, when it is an expression of strength and
\n\t      not  of  weakness, joins in the march  of\t the
\n\t      Grand Army of the religious Soul.”\n<\/p>\n
The Court must avoid over-solicitude for  ultra-orthodoxies,
\nlaw, being a secular social process.  It is curious that the
\nElection  Commission,  in its Report on\t the  Fifth  General
\nElection  in India (1971-72) refers to objections  regarding
\nthe  symbol  ‘Cow  and\tCalf’  on  the\tscore  of  religious
\nassociations  from  eminent persons and in  overruling\tthem
\ncites  George  Barnard\tShaw  (Everybody’s  Political\tWhat
\nWhat’s? who said
\n\t      “The   apparent  multiplication  of  Gods\t  is
\n\t      bewildering at the first glance ; but you soon
\n\t      discover\tthat  they are all the same  God  in
\n\t      different\t aspects  and  functions  and\teven
\n\t      sexes.  There is always one uttermost God\t who
\n\t      defies  personification.\tThis makes  Hinduism
\n\t      the  most\t tolerant  religion  in\t the  world,
\n\t      because its one transcendent God includes\t all
\n\t      possible\tGods, from elephant Gods, bird\tGods
\n\t      and snake Gods right upto the great Trinity of
\n\t      Brahma, Vishnu and Shiva, which makes room for
\n\t      the Virgin Mary and modern feminism by  making
\n\t      Shiva  a\twoman as well as a man.\t  Christ  is
\n\t      there as Krishna, who might also be  Dionysos.
\n\t      In  fact Hinduism is so elastic and so  subtle
\n\t      that the profoundest Methodist and the crudest
\n\t      idolator are equally at home in it.”\n<\/p>\n
And  yet  the  electoral law  construes\t religion  based  on
\napparel,  approved  food  and other  externals.\t  How  about
\nappeal\t to  anti-religion  ?  That  one  is  a\t Royist\t  or
\nrationalist  and the rival a religious soul and\t too  other-
\nwordly\t? Rabid Communalism is the real enemy.\tLet that  be
\nidentified  by law.  A second look at this labyrinth of\t law
\nis  in\tkeeping\t with changing times.\tThe  ‘voice  in\t the
\nwilderness’  words  of this Court in  Ambika  Saran  Singh’s
\nCase(Supra) at p. 181 bear repetition
\n661<\/span>
\n\t      “Indian\tleadership   has   long\t   condemned
\n\t      electoral campaigns on the lines of caste\t and
\n\t      community\t  as   being  destructive   of\t the
\n\t      country’s\t integration  and  the\tconcept\t  of
\n\t      secular  democracy which is the basis  of\t our
\n\t      Constitution.   It is this condemnation  which
\n\t      is  reflected  in s. 123(3) of  the  Act.\t  In
\n\t      spite of the repeated condemnation, experience
\n\t      has   shown  that\t where\tthere  is   such   a
\n\t      constituency  it\thas been  unfortunately\t too
\n\t      tempting\tfor a candidate to resist  appealing
\n\t      to  sectional elements to cast their votes  on
\n\t      caste basis.”\n<\/p>\n
Every  Party silently says “He who has not sinned,  let\t him
\ncast the first stone ” For the purpose of this case, suffice
\nit  to say both sides, agree that Ex.  P. W. 4\/3 appeals  to
\nreligion.\n<\/p>\n
Of  course,  if Ex.  P. W. 4\/3 had been\t circulated  it\t did
\ncontain\t personal  vilification like “womanizing”  which  in
\nmost countries and among the current generation is a vicious
\npersonal imputation under s. 123(4) of the Act.\t So we\twill
\nascertain whether on March 9 and 10, handbills like Ex.\t  P.
\nW. 4\/3 had been published by Rahim Khan and his agents.\t The
\nrival  version is that the appellant was innocent  of  these
\nleaflets which must have been concocted after defeat by\t the
\n1st respondent for demolishing the election through Court.
\nMany  materials have been marshalled to make out  factum  of
\npamphlet  publicity.  The granite foundation for it is\tlaid
\nby Ex.\tP. 18, an application to the Deputy Commissioner  of
\nthe  District  to  which were annexed  Ex.   P.\t W.  4\/3-4-5
\n(copies\t of  handbills) and Ex.\t P. 19\ta  similar  petition
\ndespatched by post to the Chief Electoral Officer along with
\nEx.  P. 20 and 21 handbills.  P. W. 54 Usman has sworn\tthat
\nhe had got a few handbills (the offending ones) on March  10
\nfrom one Nihal Khan and made them over to the 1st respondent
\nP.  W.\t76.   Maybe, this careerist who\t has  been  changing
\nparties,  has been a dismissed sarpanch and is\totherwise  a
\npartisan  and may not by myself embolden us to\tbelieve\t the
\nleaflet story.\tBut Ex.P.18 was undoubtedly presented to the
\nDeputy\tCommissioner  on  March 10, 1972 in  his  office  at
\nGurgaon.  His endorsement and that of his General  Assistant
\nP.  W.\t4  of  even date lend strength\tto  the\t case.\t The
\npetition has had a natural journey into the Election  Office
\nunder the Deputy Commissioner. Thus quite a few officers and
\nofficial entries support the presence of Ex.  P. 18 and\t the
\naccompanying handbills on March 10.  The smoke of  suspicion
\nabout  the records and the obliging unveracity of  the\thigh
\nofficials, glibly alleged, have no substance.  We have care-
\nfully  examined\t the criticism levelled by Shri\t Bindra\t and
\nconsidered  the possibility of antedating but are  satisfied
\nthat  the  hypothesis of conspiracy for fabrication  is\t too
\nfantastic to merit acceptance and the nonexamination of\t the
\nDeputy Commissioner, in addition to his General Assistant P.
\nW.  4,\tdoes not militate against the acceptability  of\t the
\ncase.\tThe endorsement on Ex.\tP. 18, relevant under s.  35
\nof  the Evidence Act, clinches the issue, read in the  light
\nof  P. W. 4’s evidence.\t Ex.  P. 19, a\tsimilar\t application
\nwas  also  presumably  posted on the  10th  March.   It\t was
\nreceived  on 13th March, which is probable since 12th was  a
\nSunday.\t The suggested interpolation in the register kept in
\n20-185 Sup.  CI\/75
\n662<\/span>
\nthe  office of the Chief Electoral Officer is a\t mirage.  it
\nhas no meaning in the absence of cross-examination.  A close
\ntook at Ex.  P. 19 and Ex.  P. W. 2\/2 dispels doubts and the
\nentries corroborate P. W. 2’s testimony as well as the\tfact
\nof  the\t leaflets having been in existence on  the  10th  of
\nMarch.\t Let us probe the likelihood of a later\t fake.\t The
\npetitioner had no reason to be desperate about a defeat.  In
\nfact  the lead of the appellant was narrow.  Only after\t the
\nresult\twas  declared  on  12th could  he  have\t thought  of
\ncreating evidence to undo the election.\t Both Ex.  P. 18 and
\nEx.   P.  19 became inexplicable on that basis\tunless\tmany
\npublic\tdocuments  and public servants\thave  tampered\twith
\ntruth  in a chain conspiracy too nefarious to  be  credible.
\nSome  officers\tmay oblige but it is unfair to\timpute\tsuch
\ngross  misconduct  to responsible men  and  flimsy  fancies.
\nOther  minor attempts to cavil at the evidence on this\tpart
\nof  the case merit little serious study.  We  broadly  agree
\nwith the High Court that the arguments of the appellant\t for
\nrejection  of Ex.  P. 18 and P. 19 and\tconnected  documents
\ncannot be contemplated without importing criminal conspiracy
\nfor which there is no foundation and they must be  repelled.
\nHowever we will advert to them briefly.\n<\/p>\n
We  have earlier indicated our dissent from the\t High  Court
\nwhen  it  trusts P. W.’s 12, 13 , 20 and 23 as\treliable  on
\nleaflet\t distribution because they were pre-election  agents
\nof the opposite party.\tTile Court observes
\n\t      “The evidence above set out under this head is
\n\t      fully  acceptable\t to  me.   I  am   specially
\n\t      impressed by the depositions of Din Mohd.\t (P.
\n\t      W.  12), Roshan (P.  W. 13), Mohd.   Khan\t (P.\n<\/p>\n
\t      W.  20)  and Habib (P.  W. 23).  All  of\tthem
\n\t      worked  for the returned candidate during\t the
\n\t      election and there is no reason why they would
\n\t      make false depositions against the interest of
\n\t      the returned candidate.”\n<\/p>\n
Our  credibility sense is sceptical of this evaluation.\t  We
\ndisapprove  of\tthis method and approach  in  assessment  of
\nevidence.   Even so, let us go into the major criticisms  of
\nthe  1st  respondent’s\tcase.\tWe  are\t not  blind  to\t the
\npossibility  of\t executive  officers  designing\t to   oblige
\nMinisters  in elections as happened in Ambika Saran  Singh’s
\nCase(Supra).   Maybe, there is some embarrassment  for\tweak
\nofficials when sitting Ministers are candidates but what can
\nbe  done  about it ? We have appreciated the  evidence\twith
\nthis  factor  also  in mind.  However,\tthe  many  may\tbe’s
\nsuggested   by\tShri  Bindra  to  disbelieve  the   official
\ndocuments  are\tingenious but the cross-examination  of\t the
\nwitnesses is innocent of them.\n<\/p>\n
The appellant had applied, under Exhibit R. 1 W. 21\/1 to the
\nDeputy Commissioner for a copy of the entry in the  register
\nof  Miscellaneous  Branch with regard to  election  posters,
\ni.e. handbills made mention of in the election petition.  He
\nreceived  a reply (Exhibit R.1\/A) that no such\tposters\t had
\nbeen  received\tin the Miscellaneous Branch  of\t the  Deputy
\nCommissioner’s\toffice and therefore the question  of  their
\nentry  in the register did not arise at all and in  fact  no
\nsuch register had
\n663<\/span>
\nbeen  maintained in the Miscellaneous Branch.  Actually\t the
\nmore  important document for which a copy should  have\tbeen
\napplied for was the letter Exhibit P. 18 which was mentioned
\nin the List of Reliance filed along with the petition.\t Nor
\nis   it\t correct  to  say  that\t the  returned\t candidate’s
\napplication  was comprehensive one.  He confined himself  to
\nthe   Miscellaneous   Branch   Register\t  in   the    Deputy
\nCommissioner’s office.\tWhat is more prevaricatory,  counsel
\nfor  the appellant showed us a certified copy of Exhibit  P.
\n18  which his client had got from the Deputy  Commissioner’s
\noffice\tlong before the written statement was filed and\t yet
\nhe  pleaded  there in ignorance of its existence.   We\thave
\nexamined  this\tcase  from  every  angle  possible  and\t are
\nsatisfied  that\t Exhibits  R1\/A\t is  of\t little\t service  in
\ndebunking Exhibit P. 18 and the leaflets accompanying it.
\nRepeated  criticism was made by Shri Bindra that the  Deputy
\nCommissioner  was the Deputy Secretary in the Department  of
\nwhich the 1st respondent was the Minister and that therefore
\nhe  was\t prone\tto  help  the  latter.\t Counsel   contended
\nvehemently  that officers are liable to be  pressurised\t and
\nwhen  a whole election turns on documents in the custody  or
\nwriting\t of  officials, free and fair  elections  and  their
\nsurvival  through election petitions become precarious.\t  He
\ndrew  our attention to the observations of Grover, J. in  P.
\nR. Belagali v. B. D. Jatti<\/a>(1) which make a vain echo in\t the
\npresent case.  The learned Judge there observed :\n<\/p>\n
\t      Free   and   fair\t elections  are\t  the\tvery
\n\t      foundation of democratic institutions and just
\n\t      as  it is said that justice must not  only  be
\n\t      done but must also seem to be done,  similarly
\n\t      elections\t should\t not  only  be\tfairly\t and
\n\t      properly\theld but should also seem to  be  so
\n\t      conducted\t as  to inspire\t confidence  in\t the
\n\t      minds of the electors that everything has been
\n\t      above  board and has been done to ensure\tfree
\n\t      elections.   It  will  be a  sad\tday  in\t the
\n\t      history of our country when the police and the
\n\t      government officers create even :an impression
\n\t      that  they are interfering for the benefit  of
\n\t      one   or\t the  other  candidate.\t   This\t  is
\n\t      particularly  so if a candidate is holding  an
\n\t      important\t  position   or\t  assignment\tlike
\n\t      respondent No.1, who at the material time\t was
\n\t      a Minister in the State.”\n<\/p><\/blockquote>\n
However,  these observations, pertinent as they are  in\t the
\ncircumstances of that case-and guidelines as they should  be
\nfor Government to follow-do not detract from the reliability
\nof the official records relating to Exhibits P. 18 and P. 19
\nor  the acceptability of the General  Assistant’s  evidence.
\nIt is true that the Deputy Commissioner could well have been
\nexamined  by the Court, particularly when his plea was\tonly
\nfor  a\tpostponement by two days on account  of\t high  blood
\npressure  and his evidence would have been  of\tconsiderable
\nassistance to the Court in arriving at the truth.  But\tthis
\nomission on the party of the Court, avoidable though it was,
\nhas  not  affected materially the evidentiary value  of\t the
\ndocuments and we are prepared to repose confidence in them.\n<\/p>\n
664<\/span><\/p>\n
Considerable criticism about P. W. 54 Usman was levelled, on
\na,.  general ground based on non-mention of him either as  a
\nsource of information or as part of particulars.  Of course,
\nhis name was mentioned in the list of witnesses but that was
\nin  September, 1972.  We are not inclined to the  view\tthat
\nthe  name  of  every  witness should  be  mentioned  in\t the
\nparticulars  except where his name becomes a necessary\titem
\nof particulars.\t Shri Bindra analysed the various  witnesses
\nincluding  P..W.  54, Usman under  a  microscope,  dissected
\ntheir  evidence\t in the\t crucible  of  pleading-particulars-
\ninformation  source  with  reference  to  villages,   public
\nmeetings,  pamphlet  distribution  and\tthe  like.   We\t are
\nsatisfied  that the High Court’s approach is right  and\t the
\nhyper-technical\t analysis resorted to by counsel should\t not
\nbe  pushed  to the point of defeating justice.\t No  corrupt
\npractice  can be established if processual  impediments\t are
\nheaped up against the credibility of witnesses.\t Nor can any
\npetitioner  go\tinto  such  minutiae as\t the  names  of\t all
\nwitnesses even at the time of election petition is prepared.
\nNeither\t S. 87 nor even S. 83 nor even rule 94A and Form  25
\nrequire this drastic attitude.\tRule 12, framed by the\tHigh
\nCourt for the trial of election petitions, it is true,\tdoes
\nrequire\t the  source of information to be mentioned  at\t the
\nearliest stage and it is a wholesome rule, to prevent after-
\nthoughts.   But\t every witness need not be  mentioned  as  a
\nsource\tand  every source inform and need  not\tbe  examined
\nnecessarily.  Whether the omission to do so in a given\tcase
\nreflects  on the credibility of the evidence depends on\t the
\nfacts  and  circumstances of the case.\tIt  depends  on\t the
\noverall\t circumstances and the fairness of the\ttrial.\t The
\nobservations  in Ambika Saran Singh’s Case(Supra) at P.\t 190
\nare apposite :\n<\/p>\n
\t      “The question as to the extent of\t particulars
\n\t      which  the Court would demand depends  on\t the
\n\t      circumstances of each case, the nature of\t the
\n\t      charge alleged and the quality and reliability
\n\t      of evidence before it.”\n<\/p><\/blockquote>\n
While the Court must be careful to insist that the means  of
\nknowledge  are\tmentioned right in the\tbeginning  to  avoid
\nconvenient  embellishments  and\t irresponsible\tcharges,  it
\nshould\tnot  stifle good and reliable  testimony  or  thwart
\nproof\tof  corrupt  practices\tby  the\t technicalities\t  Of
\nprocedure.   We agree with the observations made in  Balwant
\nSingh  v.  Lakshmi  Narain<\/a>(1)  and  are\t not  deterred\tfrom
\nconsidering  the evidence of P. W. 54 and  others  similarly
\ncircumstanced.\t No  prejudice on account of  deficiency  in
\nparticulars is made out.  We have already. indicated that we
\nwould  not be prepared to base our conclusion solely on\t the
\ntestimony  of such a witness as P. W. 54, but that does\t not
\nmean  that  we\tshould\tblackout  all  evidence\t where\t the
\nwitnesses are liable to some criticism and not consider such
\nevidence   even\t  though  there\t are   other   reliable\t  or
\nincontrovertible  materials  which  lend  assurance  to\t its
\ncredibility.\n<\/p>\n
The  other  point  made is that there is  no  entry  in\t the
\nregister maintained in the office of the Deputy Commissioner
\nabout Exhibit P.-18
\n(1) 22 E.L.R. 273.\n<\/p>\n
665<\/span><\/p>\n
This is not correct because, in a sense, the Election Branch
\nis  also part of the Deputy Commissioner’s Office and  there
\nis an entry in the register there.  The suggestion that\t the
\nDeputy\tCommissioner succumbed to the petitioner’s  pressure
\nand antedated Ex.  P. 18 is difficult to digest.   Similarly
\nthe  suspicion sought to be raised about Register P. W.\t 2\/2
\nkept  in the Chief Electoral Officer’s office on  the  basis
\nthat  there  are two entries bearing serial number  5072  is
\nunsound.  The entry with which we are concerned is 5072A and
\nthis  is  not unusual when by mistake a\t clerk\thas  written
\nidentical  figures  for two entries.  Moreover there  is  no
\ncross-examination on this point and in the absence of cross-
\nexamination giving an opportunity to the witness to  explain
\nthe  circumstances from which an inference is sought  to  be
\ndrawn,\tno  such  inference-.particularly  of  forgery\t and
\npublication of documents can be permitted to be raised.
\nA rather trivial argument has been made that if a letter had
\nbeen sent to Chandigarh on March, 10, the postal expenses of
\na  few paise should have been entered in the return  of\t the
\nelection expenses.  Admittedly such an entry does not find a
\nplace  in  the\treturn.\t For one thing,\t the  amount  is  so
\nnegligible that its non-mention means nothing.\tFor another,
\nit  is difficult to accept the plea that this candidate\t who
\nwas a Cabinet Minister and was locked in bitter battle\twith
\na  strong opponent in a do-or-die Struggle would have  spent
\nonly  a mail sum of over Rs. 4,000.  It is a notorious\tfact
\nthat  huge  sums  of money are\tlavished  by  candidates  on
\nelection,  thus\t closing  the door for\tordinary  people  to
\ncontest\t democratic  elections.\t  The  point  is  that\twhen
\nsuspiciously  small sums are returned as election  expenses,
\nno  machinery to investigate and take action is\t found\twith
\nthe result that return of election expenses becomes an\tidle
\nritual\tand not an effective check.  If parties\t pour  funds
\nfor  campaigning  the law is silent and helpless.   This  is
\ncertainly  a  matter for the Election Law to  consider.\t  It
\nmust  make  provision deterrent enough-so as to\t enable\t the
\nsmall man to negotiate with elective opportunities.
\nEven  at  this\tstage we may notice  that  the\thandbill  in
\nquestion  does\tnot  contain the name  of  the\tprinter\t and
\npublisher   although   the   election\tlaw   so   requires.
\nUnfortunately when such printed material is circulated there
\nis no agency of the law which takes prompt action after\t due
\ninvestigation, with the result that no printer or  candidate
\nor other propagandist daring elections bothers about the law
\nand  he\t is able successfully to spread\t scandal  without  a
\ntrace of the source, knowing that nothing will happen  until
\nlong  after  the election, when in a  burdensome  litigation
\nthis question is raised.  Timely enforcement is as important
\nto the rule of the law as the making of legislation.
\nWe may conclude by holding that we accept Exhibits P. 18 and
\nP.  19 as genuine and concomitantly find that the  handbills
\ncontaining  injurious  statements were in  existence  on  or
\nbefore the 10th of March.  The only question that remains is
\nwhether\t a nexus is established between these handbills\t and
\nthe appellant and the factum of their prepoll circulation by
\nhim   or  his  agents  is  proved.   Without   this   latter
\nrequirement  being  made  out, mere leaflets  do  not  spell
\ninvalidation.\n<\/p>\n
666<\/span><\/p>\n
Once   we   find  that\tExbits\t P.18  and  P.19   are\t not
\nfabrications.ante-dated\t or  planted in the offices  of\t the
\nDeputy Commissioner and the Chief Electoral Officer  bearing
\nendorsements  and entries, involving in the process a  chain
\nof officials willing to tamper with public records, we\thave
\nto  seek  their\t probable author.   The\t appellant’s  cross-
\nexamination of the witnesses who proved the handbills merely
\ncoquetted   with  speculative  possibilities  and   shifting
\nsuggestions without putting forward a credible\talternative,
\nexplaining  their presence around March 10.  The  handbills,
\npurport to be issued by Rahim Khan and the motive for him to
\ndo  so\tis strong.  After all, the evidence  discloses\tthat
\nthere  were allegations in the Haryana Assembly against\t the
\nfirst respondent as a womanizer and in fact there was a cow-
\nslaughter  case\t and  dis-interring of a  muslim  grave\t and
\nallegations of the hand of the first respondent behind these
\ndoings.\t Quite possibly capitalising on these straws in\t the
\nwind,  the appellant who was fitting his opponent hard\tmade
\nan  attack  involving personal imputations circulated  by  a
\nleaflet\t engagingly presented as a string of questions\twith
\nanswers self-evident and involving appeal to ‘religion’\t not
\neven thinly concealed.\tSince a number of handbills had come
\ninto  the  possession of the first respondent  on  the\t10th
\nwhich lie forwarded to the two officials along with Exhibits
\nP.  18\tand  P.\t 19,  the  circumstances  be  speak.   prior
\ncirculation.   The  question  is  whether  Rahim  Khan,\t the
\nappellant,  has\t been directly shown to be linked  with\t it.
\nOne  cannot presume such an important ingredient  against  a
\nreturned  candidate  unless the sure facts compel.   In\t the
\npresent case some clever manouvres have been made by the 1st
\nrespondent  to\tconnect the appellant  with  the  handbills.
\nCourts\tmust be astute enough to discourage  over-cleverness
\nof  parties and decline to rely on materials  which  perhaps
\nmay  be true but bear the stamp of shadiness on their  face.
\nFor  instance, we have Exhibit P. 5 a note written by P.  W.
\n21  Din Mohammad on the reverse of Exhibit P. 6, a  copy  of
\nthe  offending\thandbill, Exhibit P.W. 4\/3.  P.W.  21  is  a
\npolling\t agent\tof  the returned  candidate  but  swears  in
\nsupport\t of the defeated candidate in a plausible  way.\t  He
\nstates on oath that Exhibit P. 6 reached his hands on  March
\n11, when it was being distributed in his village.  While  in
\nthe polling station he made a note on the reverse of Exhibit
\nP. 6 Which runs :\n<\/p>\n
“Shri Samad Khanji,
\nVery few voters are coming from your village.  The time
\nleft is short.\tHave the voters sent quickly.\n<\/p>\n
Nangal Shahpur.\t\t\t\t   Din Mohd.\n\t\t\t\t      Dated, the 11-3-1972\"\n<\/pre>\n
He  wants  us  to believe that finding that  the  voters  of
\nNangal Shahpur had not turned out he sent this note to Samad
\nKhan, a.-worker of the returned candidate.  But how did this
\nP. 5 get back,into the hands of Din.  Mohd, while it  should
\nnormally  have\tbeen with Samad Khan ? To fill up  this\t gap
\nP.W.  75,  Sharif Khan is pressed into service.\t  He  has  a
\nstory  that one Subhan Khan delivered it to him and lie,  in
\nturn,  gave  it\t to the advocate of the\t petitioner  in\t the
\ncourse of the
\n667<\/span>
\ntrial  of  the case.  How can Exhibit P.6with  the  valuable
\nendorsement Exhibit P. 5, move to and from Subhan Khan\t(not
\nexamined)  to  Sharif  Khan,  P.W. 75  ?  The  obliging\t Din
\nMohammad, who had come under the spell of the 1st respondent
\nmust have made this telltale endorsement during the pendency
\nof  the\t case and the document itself is kept  back  till  a
\nsurprise  is sprung when P.W. 21 is in the  witness  box-for
\ntoo  unfair  for its to place reliance.\t One  lie  leads  to
\nanother\t till  a blind alley of\t improbability\tis  reached.
\nAnother Din Mohammad, P.W. 12, who also was a polling  agent
\nof  the returned candidate has turned turtle to support\t the
\npetitioner  during  the\t case by producing  a  copy  of\t the
\nhandbill  and  a letter Exhibit P. 11\/1,  addressed  to\t one
\nRoshan\tof  Mewli village.  This letter, Exhibit  P.W.\t11\/1
\npurports  to  be a confidential circular by  the  appellant,
\nRahim  Khan,  requesting that the handbills  be\t distributed
\ndiscreetly among ‘Muslim brethren’ eschewing ‘the workers of
\nthe opposite party’.  This letter, it is said, was addressed
\nto  Roshan but was not delivered to him directly by P.W.  12
\nsince  the  former was not in his house.  The tale  told  by
\nP.W.  12  further  is that he made an  endorsement  on\tthis
\nletter\t(separately marked as P.W. 11\/2) requesting  Roshan,
\nP.W.  13, to act on the letter.\t What follows is still\tmore
\nstrange.  Roshan, P.W. 13, claims to have received P.W.\t 11\/
\n1  with the note Exhibit P.W. 11\/2 and fifty handbills.\t  He
\ndelivered  them\t to  P.W. 11 Ibrahim, some  days  after\t the
\npolling, although this Ibrahim, P.W. 11, is a worker in\t the
\nopposite   camp.    The\t whole\tstory  sounds\tabsurd\t and
\noverworked, difficult to be accepted.\n<\/p>\n
Another adventurist piece of documentary evidence is Exhibit
\nP.  3  with  the endorsement Exhibit P. 2  on  its  reverse.
\nMohammad Khan, P. W. 20, was a polling agent of the returned
\ncandidate and now with easy conscience goes over to  testify
\nin support of the 1st respondent. He alleges that Exhibit P.
\n3  which is a copy of the circular letter Exhibit P. W.\t 11\/
\n1,  together  with  some of  the  offending  handbills,\t was
\nreceived  through one Raj Khan and that he distributed\tthem
\nin  the\t village.   For this reason he\tmust  be  guilty  of
\nabetting  corrupt  practice, apart from being  a  turn-coat.
\nBut  what  startles us is that P. W. 20 returns\t the  letter
\nExhibit\t P.  3 to Raj Khan after making Exhibit\t P.  2\tnote
\nthereon, addressed to the appellant. it reads
\n\t      “Ch.  Rahim Khanji,
\n\t      I\t have  received the  handbills\tthrough\t Raj
\n\t      Khan.  I shall distribute them properly.\t You
\n\t      have  not\t sent  me the  polling\tagent  forms
\n\t      although\tyou had told me you would.   Arrange
\n\t      to have them sent at once.\n<\/p>\n
\t\t\t\t     Mohd. Khan
\n\t\t\t\t      9-3-1972″\n<\/p>\n
Surprisingly enough Raj Khan does not deliver the letter  to
\nthe  addressee Rahim Khan but shows it to Sharif Khan P.  W.\n<\/p>\n
75.  The letter asks for it but Raj Khan seemingly  faithful
\nrefuses\t to give it.  Nevertheless this Raj Khan  leaves  it
\noutside and goes inside to get a
\n668<\/span>
\ncup  of tea for P. W. 75.  When his back is turned, the\t man
\nwith  little scruples, P. W. 75, abstracts this\t letter\t and
\nRaj Khan never bothers about the loss.\tThe tortuous  course
\nof  Exhibit P. 3 is too true to be credible.  There is\tsome
\nmore oral evidence of this devalued class.  We do not  think
\nwe  can\t base  our conclusions safely on  salvaged  bits  of
\ntestimony of this contaminated sort.\n<\/p>\n
There is also oral evidence identifying the signature of the
\nreturned  candidate  on\t Exhibits  P.  3  and  P.  W.  11\/1,
\nparticularly  in the deposition of Habib, P. W. 23.  He\t has
\nnot  spoken to his familiarity with the handwriting  of\t the
\nappellant.  Opinion evidence is hearsay and becomes relevant
\nonly if the condition laid down in s. 47 of the Evidence Act
\nis first proved.  There is some conflict of judicial opinion
\non  this matter, but we need not resolve it  here,  because,
\nalthough there is close resemblance between the signature of
\nRahim  Khan on admitted documents and that in Exhibits P.  3
\nand  P.\t W. 11 \/ 1, we do not wish to  hazard  a  conclusion
\nbased on dubious evidence or lay comparison of signatures by
\nCourts.\t In these circumstances, we have to search for other
\nevidence,  if  any, in proof of circulation of\tthe  printed
\nhandbills by the returned candidate or with his consent.
\nMany villages have been mentioned, where meetings were\theld
\nand handbills released, but the trial Court has played safe,
\nif  we\tmay say so, rightly and refused to act\ton  evidence
\nunclear\t and uncertain and has upheld the case for only\t ten
\nvillages out of a larger area.\tWe have pointed out how\t the
\nlearned\t Judge has failed to show discernment in relying  on
\ndefectionist witnesses (and in two instances, by over sight.
\ntreated\t 1st  respondent’s  polling  agents  as\t independent
\nwitnesses).   So that we are not inclined to go\t the  length
\nthe lower Court has gone regarding these villages.  But non-
\nacceptance  of the case of public meetings addressed by\t the
\nappellant  together  with  Tayyab Hussain,  R3W9,  does\t not
\nnecessarily  mean handbills were not handed over to  people.
\nEven  where  good evidence, not parrot-like  repetition,  is
\nforthcoming, as an appellate Court we hesitate to interfere,
\non questions of fact where the trial Court has discarded the
\nevidence.  In our view even the ten villages where  speeches
\nwere proved to have been made, according to the High  Court,
\ndo not sound strong enough, for reasons already given.\t But
\non  the\t distribution  of the damaging\thandbills,  we\tfeel
\nconfident    that   there   is\t acceptable,   direct\t and
\ncircumstantial\ttestimony,  to accept the  1st\trespondent’s
\nversion.   For one thing, we have found that  these  printed
\nappeals\t did  exist  on\t March\t10-not\tfor  secreting\t but
\ncirculating.   For another, the motive for publishing  these
\nstatements  is for the appellant.  Again,  the\tcircumstance
\nthat the 1st respondent came by many copies thereof on March
\n10  probabilises  prior\t distribution,\tcertainly  with\t the
\nknowledge  and consent of the appellant.  Finally, there  is
\ndisinterested  evidence\t on this fact.\tFor  instance,\ttake
\nvillage Akerrha.  P.Ws. 45, 46, 47 and 48 have\tconcurrently
\ntestified  that the returned candidate and R3W9 had  visited
\nthe  villages, talked, to voters and  circulated  handbills.
\nThe  learned  Judge discredits P. W. 46 because\t he  was  an
\nagent  of the 1st respondent.  Quite right.  But  the  other
\nwitnesses are not discussed at all.  So we have read them
\n669<\/span>
\nto  ascertain  their  credibility,  particularly  since\t the
\ncontrary  witnesses of the appellant have been\tdisbelieved.
\nNegative  evidence  is ordinarily no good  to  disprove\t the
\nfactum of meetings.  But to disbelieve a witness because  he
\ncame  without  summons,\t as the trial  Court  has  done,  is
\naltogether wrong.  Evenso,the evidence of R1 W13, R1 W14 and
\nR1W15  was rightly rejected by the trial Judge\tas  useless.
\nHowever,   we  are  satisfied  that  no\t ground\t exists\t  to
\ndisbelieve  P.\tW. 45, an apparently  disinterested  person.
\nThe non-mention of every name in the affidavit in support of
\nElection  Petition is no ground to reject witnesses.   P.Ws.
\n45  and\t 47 sound natural and disinterested  and  no  reason
\nexists\tto  discard their evidence regarding  the  nocturnal
\ncirculation of printed handbills like, P. W. 4\/3.  No formal
\nmeeting\t was  held, no chair, no mike, no  announcement\t nor
\neven petromax light.  Not the speeches, but the distribution
\nof  pamphlets is the credible part of the case.\t The  former
\ndepends only on the oral testimony of witnesses, the  latter
\nis  reinforced\tby actual handbills.  The same\tthing  holds
\ngood  regarding\t the villages where positive  findings\thave
\nbeen   recorded\t  by  the  trial  Court.   We\tthink\tthat
\nirrespective  of the election speeches by the appellant\t and
\nR3W9,  which  may  or  may  not\t be  true  the\tlast  minute
\ncirculation of handbills, must be accepted.
\nWe  are\t aware,\t as noticed in B. Rajagopala Rao  v.  N.  G.
\nRanga<\/a>(1)  that\tthe enemies of a winning candidate  may\t get
\nsuch notices printed and distributed as part of the strategy
\nof  subverting\tan unfavourable election  result.   We\talso
\nremember  the  words  of  caution  in  other  dicta  already
\nreferred to and do not rule out the possibility of  officers
\nnot being above-board where Ministers are engaged in hot and
\nrearlosing battles.  It is after anxious consideration\tthat
\nwe have come to the ultimate inference already expressed  on
\nEx.   P. 18, P. 19 and P. W. 4\/3 and the publicity given  to
\nthe handbills.\n<\/p>\n
On this finding that the appellant did distribute Ex.  P. W.
\n4\/3  type handbills, what corrupt practices are\t constituted
\nthereby?\n<\/p>\n
‘Character  assassination’-to use a cliche-comes  within  s.
\n123  of\t the Act, since the 1st respondent has\tcalled\tthem
\nfalse and the appellant has agreed he does not believe\tthem
\nto be true.  On the present view of the law, the  handbills,
\nin  their  climatic  part, exhort  Muslims  to\tsupport\t the
\nappellant   in.\t  the  name  of\t ‘religion’.\tBut   divine
\ndispleasure’  on account of prandial impropriety and  ‘undue
\ninfluence’  for\t fear  of  forced  pork\t eating,  cannot  be
\ndistilled from these handbills without doing violence to the
\nprevailing  protection\tof the rule of law in  the  country.
\nHalf serious apprehensions are not ‘undue influence’ by\t any
\nstandards.   No\t one in India in the ’70s will\tshiver\twith
\nfear that a candidate, when he wins an election, will  force
\ndown   his   throat  distasteful  pork.\t   Such\t  chimerical
\napprehensions are unreal and cannot receive judicial  appro-
\nval.  Equally untenable is the trepidation in the hearts  of
\nthe voters that if they cast their ballots in favour of\t one
\nwho eats pig’s meat, the wrath of God would annihilate them.
\nRealism\t is a component of judicial determination.   Neither
\nundue  influence nor divine displeasure looms large in\tthis
\ncase.\n<\/p>\n
(1) A.I.R. 1971 S.C. 267, 275.\n<\/p>\n
670<\/span><\/p>\n
In the ultimate analysis we hold that the appellant did\t get
\nthe  handbills, Exhibits P. W. 4\/3 printed  and\t distributed
\namong  his constituents.  Thereby he made  statements  which
\nwere untrue and which he did not believe to be true and knew
\nto  be\tfalse,\tabout the rival candidate  with\t a  view  to
\ndiminish the latter’s prospects in the election.  We further
\nhold  that  Exhibit  P.\t W. 4\/3\t constitutes  an  appeal  to
\nreligion  for the purpose of voting for and against.   Thus,
\nunder  these two heads, a contravention under s. 123 of\t the
\nAct  has been committed and for these two corrupt  practices
\nthe unseating of the appellant becomes inevitable
\nWe may mention here that while meticulous criticism has been
\nmade by both sides of the numerous witnesses examined in the
\ncase,  not  the many ripples but the major waves  shape\t the
\ncourse of the stream in our view, so that we have paid\tmore
\nattention  to the broad sweep of the evidence  rather  that.
\nthe  little details picked up here and there  and  magnified
\nbefore\tus.   Therefore,  while\t not  endorsing\t the  entire
\nfindings  of  the  High Court, we uphold two  of  its  major
\nfindings-of   corrupt  practices-sufficient  to\t  undo\t the
\nelection  of the appellant.  Further in this case the  first
\nrespondent  cannot  claim  to have been\t clean\tin  alleging
\nuntenable  corrupt practices and adducing  shoddy  evidence.
\nWhere  both  sides  have soiled their  hands  in  the  legal
\nprocess, both must bear their individual burden of costs.
\nOne  last disquieting reflection is prompted in\t this  case.
\nIf  a  blatant\tcorrupt\t practice  is  committed  during  an
\nelection,  there is now no clear statutory  mechanism  which
\ncan contemporaneously be set in motion by the affected party
\nso  that  when it is raw, a record and\tan  instant  summary
\nprobe  is possible through an independent semi-judicial\t in-
\nstrumentality.\t Violations  thrive where  prompt  check  is
\nunavailable.   On the other hand, effective  contemporaneous
\nmachinery  providing for such checks would  greatly  curtail
\nsubsequent election disputes and even act as a deterrent  to
\nthe  commission\t of corrupt practices.\t Elections  are\t the
\ncornerstone  of the parliamentary system and the arm of\t the
\nlaw should not hang limp in the face of open contravention.
\nWe cannot also close this judgment without exposing what  is
\nreally\ta  patent flaw in the judgment of  the\tHigh  Court.
\nHaving\tfound  the commission of corrupt  practices  by\t the
\nappellant,  Tayyab Hussain (a sitting Member of\t Parliament)
\nand  a large number of other persons, it was  the  statutory
\nduty of the Judge to name all those who have been proved  at
\nthe trial to have been guilty of any corrupt practice [s. 99\n<\/p>\n
(a)  (ii).]  The  serious disqualification  which  would  be
\nvisited\t upon a person who is thus named has  compelled\t the
\nlegislature  to\t introduce  the canons\tof  natural  justice
\nbefore\ttaking this punitive step.  The proviso to s.  99(a)
\ninhibits  the naming of a person who is not a party  to\t the
\npetition without giving him notice to appear and show  cause
\nand  a further opportunity of cross-exam-dining any  witness
\nwho  has  already been examined in the case  and  has  given
\nevidence against him of calling evidence in his defence\t and
\nof being heard.\t This Court has emphasized
\n671<\/span>
\nthe  obligation of the Election Tribunal in this behalf\t and
\nindicated  the\t procedure  that  may  be  adopted  in\tSuch
\nSituation in B. P. Mishra v. K. N. Sharma(1) R.\t  M.
\nSeshadri v. G. Vasantha Pai<\/a> (2); and Janak Sritar v. Mahalit
\nR.K.  Das  (3).\t Indeed before delivering  judgment  in\t the
\nelection,  case\t the  Court  has to  inform  and  extend  an
\nopportunity to the collaborators in corrupt practice and  in
\nthe  light of the totality of evidence on record decide\t the
\nelection  petition and the issue of naming those      guilty
\nof\t corrupt     practices.This is\tnot   a\t facultative
\npower of the Court but a bounden duty cast on it.  The\thigh
\npurpose\t of  ensuring purity of elections is  the  paramount
\npolicy\tinspiring this provision.  The Court  must  strongly
\ndeter  those  who seek to achieve election ends\t by  corrupt
\nmeans.\t It  is\t unfortunate that  Courts  and\tcounsel\t are
\nsomewhat indifferent to this requirement of the statute.  If
\nonly  at  the  end of an election  case\t where\tverdicts  on
\ncorrupt practices are rendered, Courts would name all  those
\ninvolved  in the pollution of the electoral  process,  there
\nwould  be  some\t hesitation  on\t the  part  of\tcitizens  in
\nexecuting these improper projects.\n<\/p>\n
Counsel for the 1st respondent in this case suggested to  us
\nthat the distributors of pamphlets or, for that matter, even
\nthe authors thereof may\t easily\t  escape    punishment\t  of
\n‘naming’  by proving that since responsible  candidates\t had
\nmade such speeches,they did not believe the statements to be
\nfalse  or even believed them to be true.  We are clearly  of
\nthe view that belief in this context means reasonable belief
\nand  not  easy\tfancy  or  foolish  credence.\tUnless\t the
\ndistributor of mala fide statements establishes that he\t had
\nreasonable grounds in support of his belief, tile Court will
\nnot  accept  his plea and will name him.   It  is  therefore
\nplain  that s. 123 (4) read with s. 99 cannot  stultify\t the
\nprovision for naming of men who deserve to be named,
\nHowever, in the present case, we have held that neither R3W9
\n(Tayyab\t Hussain)  nor the third respondent  (Sohanlal)\t has
\nbeen proved to be guilty of corrupt practice.  Similarly, we
\nhave  not accepted the case that many polling agents of\t the
\nappellant  had circulated the handbills.  In this view,\t the
\nneed  to  name\tanyone\tdoes  not  arise.   Of\tcourse,\t the
\nappellant  being  a  party  and guilty\thas  to\t suffer\t the
\npenalty.   We  are  holding  against him  that\the  got\t the
\nhandbills  printed  and distribute but on other\t grounds  we
\nhave  exonerated  him for want\tof  compelling,,,  probative
\nmaterial.\n<\/p>\n
(1) (1971) 1 S.C.R. 8.\t    (2) (1969) 2 S.C.R. 1019.
\n(3) AIR 1972 SC\/359.\n<\/p>\n
672<\/span><\/p>\n
The  appellant,\t in this case, is less guilty than  the\t 1st
\nrespondent  depicts  him  but  is  less\t innocent  than\t  he
\nprofesses.   Electoral purity must claim its victim  and  we
\nset aside the appellant’s election, nothing that :the  virus
\nof   corrupt   practices  cannot  be  controlled   save\t  by
\ncomprehensive  systemic changes with emphasis on a  fearless
\nenforcement   instrumentality  and  a\tnational   political
\nconsensus  to abide by norms-a consummation devoutly  to  be
\nwished.\t Today the yawning gap between law in the books\t and
\nunlaw  in action has made inhibition of corrupt practices  a
\nonce-in-a-blue-moon- tribunal phenomenon.
\nFor  the reasons set out above, we dismiss the\tappeal\twith
\nthe direction that parties will bear their respective  costs
\nthroughout.\n<\/p>\n
V.P.S.\t\t\t\tAppeal dismissed.\n673<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Rahim Khan vs Khurshid Ahmed & Ors on 8 August, 1974 Equivalent citations: 1975 AIR 290, 1975 SCR (1) 643 Author: V Krishnaiyer Bench: Krishnaiyer, V.R. PETITIONER: RAHIM KHAN Vs. RESPONDENT: KHURSHID AHMED & ORS. DATE OF JUDGMENT08\/08\/1974 BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. PALEKAR, D.G. BHAGWATI, P.N. CITATION: 1975 AIR […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-227771","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRahim Khan vs Khurshid Ahmed & Ors on 8 August, 1974 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rahim-khan-vs-khurshid-ahmed-ors-on-8-august-1974\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rahim Khan vs Khurshid Ahmed & Ors on 8 August, 1974 - 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