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PETITIONER: B.P. MAURYA

       Vs.

RESPONDENT: PRAKASH VIR SHASTRI & ORS.

DATE OF JUDGMENT: 14/08/1969

BENCH: RAY, A.N. BENCH: RAY, A.N. HEGDE, K.S.

CITATION:  1970 AIR  522            1970 SCR  (1) 894  1969 SCC  (2) 634

ACT:    Representation  of the People Act, 1951, s. 123(3)(3A)  & (4)--   Corrupt  practice--Allegations   against   "personal character and conduct".

HEADNOTE:    The  appellant challenged the election of the  respondent on the ground that the respondent committed various  corrupt practices including that of publication of false  statements in relation to the personal character of the appellant.  The High Court held the allegations not proved.  Dismissing  the appeal,     HELD:  The provisions contained in sub-s. (4) of s.  123 are traveled when "any false allegation of fact pierces  the politician and touches the person of the candidate".  It  is the personal character and conduct of the candidate which is to. be protected from malicious or false attacks.  The words "personal  character  and conduct" are to  be  equated  with mental  or  moral nature and the word "conduct"  connotes  a person’s  actions and behavior.  The statement  in  question has  to be first a false statement bearing on  the  personal character  and conduct of the candidate. and  secondly,  the statement  complained  of must be one  which  is  reasonably calculated  to. prejudice the prospects of the  election  of the person. [903 H]     T.K. Gangi Reddy v.M.C. Anjaneya Reddy, [1965] 1  S.C.R. 175, reference to.     The  electorate  at the time of the election has  to  be kept  in the forefront in judging whether a publication  can be  said  to  offend  the  provisions  relating  to  corrupt practices.  The Court is to ascertain whether the  statement is  reasonably calculated to prejudice the prospects of  the candidate’s election.  In reading the documents it would  be unrealistic  to  ignore  that  when  appeals  are  made   by candidate there is an element of partisan feeling and  there is  extravagance of expression in attacking one another  and it  would be unreasonable to ignore the question as to  what the  effect  of  the pamphlet would be on the  mind  of  the ordinary  voter  who  reads    the pamphlet. [905 D] Kultar  Singh  v.  Mukhtiar Singh,  [1964]  7  S..C.R.  790, referred to.

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JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1573  of 1968.    Appeal under s. 116-A of the Representation of the People Act,  1951 from the judgment and order dated April 12,  1968 of  the Allahabad High Court in Election Petition No. 19  of 1967. The appellant appeared in person.     L.M. Singhvi,  Veda Vyasa,  Rishi Ram,  Bishambhar  Lal, H.K. Puri, U.P. Singh and K.K. Jain for respondent No. 1. The Judgment of the Court was delivered by     Ray,  J.   This is an appeal against  the  judgment  and order  of the High Court at Allahabad dated 12  April,  1968 dismissing the election petition filed by the appellant. 895     The appellant contested the General Election to the  Lok Sabha  from  Hapur Parliamentary Constituency  in  the  year 1967. There were seven rival candidates numbered respondents 1 to 7.  The appellant contested the election on the  ticket of  the Republican Party.  He was then a sitting  member  of Parliament. Among the rival candidates, Prakash Vir  Shastri was  an independent candidate.  The election symbol  of  the appellant  was elephant and the election symbol  of  Prakash Vir  Shastri  was   lion.   Prakash   Vir  Shastri   secured 1,49,943  votes while the appellant secured 1,01,875  votes. The Swatantra candidate Sri Naseem secured 34,274 votes. The Congress   candidate  respondent   Smt.   Kamla    Chaudhury secured 33,988 votes.  The appellant challenged the election on grounds of corrupt practices as mentioned in sub-sections (2),  (3) and (4) of the Representation of the  People  Act, 1951 (hereinafter referred to as the Act).     At  the hearing of the appeal the appellant appeared  in person  after  counsel on his behalf had obtained  leave  of this Court to withdraw and to allow the appellant to  appear in person.     The  various  corrupt practices on which  the  appellant relied  relate to occurrences at six places.  The  appellant did  not press the other occurrences.  The first  occurrence relates to. a meeting held at the Town Hall Maidan at  Hapur on  7  February,  1967. The appellant alleged that  at   the Hapur   meeting   respondent  Prakash Vir  Shastri  and  his supporters   delivered   inflammatory speeches  against  the appellant  and  thereafter  the  said  respondent  Shastri’s supporters  entered the office of the Republican  Party,  to which  the appellant belonged, assaulted the workers of  the appellant, tore posters, abused the appellant and threatened his  workers.  In support of the allegations  the  appellant relied  on  Exhibit 28 the news report  in  the  ’Hindustan’ published  on 8 February, 1967 and also on Exhibit  23  the’ news. report in the newspaper named ’Vir Arjun’ published on 8  February, 1967 and exhibit 22 being the editorial in  the Vir  Arjun  published  on 7 February,  1967.  The  newspaper report  in  the  ’Hindustan’  Exhibit  28  published  on   8 February,  1967 contains the note of the correspondent  from Hapur  bearing the date 7 February, 1967 stating that a  big meeting was held in support of respondent Shastri Lok  Sabha candidate  from Hapur-Ghaziabad Constituency.  In the   ’Vir Arjun’  dated  8 February, 1967 Exhibit 23 it is stated that the supporters of the Republican Party were raising  slogans that they were championing the cause of Harijans and  Muslim youths  from  Aligarh  University  were  brought  for   that purpose.  It  was  also stated in the  said  newspaper  that

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Muslim students of Aligarh were raising the slogans "Harijan Muslim are brothers and where from Hindu community has come. Black  face be of Brahmin, barbar and lala.  Throw shoes  on Bhat, Gujar and Rajput". The appellant in paragraph 11 L15SupCI/69 -13 896 Of the petition further alleged that respondent Shastri  was associated  with the ’Vir Arjun’ and K. Narendra, Editor  of Vir Arjun who was a colleague of respondent Shastri wrote an editorial by way of an appeal to support the candidature  of respondent  Shastri  in that newspaper on 7  February,  1967 Exhibit  22  and  the said appeal was also  an  instance  of corrupt  practice.  The further allegations in the  petition were  that  at the meeting which was held at the  Town  Hail Maidan  at Hapur on 7 February, 1967 respondent Shastri  and the  said  K.  Narendra,  Editor  of  Vir  Arjun   delivered inflammatory speeches.     The  appellant generally impeached the judgment  of  the High  Court  on  two  grounds.  First,  that  there  was  no discussion of the entire evidence and, secondly, that  there was rejection of the evidence on behalf of the appellant  on consideration  that  the appellant’s witnesses  belonged  to particular castes and sects.     The criticism on behalf of the appellant with regard  to Hapur  meeting was that respondent Shastri in answer to  the petition  did  not  state  that there was  a  meeting  on  6 February,  1967  and thereby the appellant  was  denied  the opportunity  of meeting that case. The appellant  relied  on the  decision  of this Court  in  Badat &  Company  v.E.  I. Trading(1)  and the observations  appearing  at page 547  of the  report  in  support of the contention  that  under  the provisions   of  the  Code  of  Civil  Procedure  ’and,   in particular,  the provisions contained in Order VIII  of  the Code,   respondent  Shastri  should  have  alleged  in   the pleadings that the meeting was held on 6 February, 1967  and in the absence of such allegations respondent Shastri should not  have  been allowed to make that case. The  decision  of this  Court is of no aid to the appellant.  In the  case  of Badat  &  Company(1) the question was whether  there  was  a contract  between  the  parties and it was  alleged  by  the plaintiff  with  reference to two letters that  the  letters would  indicate  some of the terms of the  transaction.  The defendant in the written statement did not specifically deny the  said  two letters.  This  Court observed  that  a  mere denial  of the contract was not sufficient and the rules  of the Code enjoined denial of the existence of the letters. In the  present  case, the question was whether a  meeting  was held  at  Hapur Town Hail Maidan on 7 February,  1967.   The respondent  denied  such a meeting. The respondent  was  not called upon to state as to whether there was a meeting on  6 February, 1967.     The  news item in the newspaper ’Hindustan’  Exhibit  28 gave news from Hapur under the date 7 February, 1967 that  a meeting was held at Hapur. Exhibit 23 was a news item in the newspaper  ’Vir Arjun’ under the date 7 February, 1967  that Shri  Narendra,  Editor of Vir Arjun spoke  at  an  election meeting ’at Hapur. Neither (1) [1964] 4 S.C.R. 19 :A.I.R. 1964 S.C. 539. 897 the Vir Arjun news item dated 7 February, 1967 nor the  news item  appearing  under  the  date  7  February,  1967  Hapur published in the Hindustan on 8 February, 1967 contains  any intrinsic  evidence  that a meeting was held at Hapur  on  7 February, 1967.     Further,  of  the witnesses on behalf of  the  appellant

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P.W.  25 Bal Kishan spoke of the meeting at the  Hapur  Town Hall  Maidan  on 7 February, 1967 and he  also  stated  that three   pamphlets  were  distributed  and  two   issues   of newspapers  were  also  distributed, namely, the  Vir  Arjun and  Pratap.   No  such  pamphlet  was  produced.  The   two witnesses  on behalf of respondent Shastri, Bhagwati  Prasad Jain  D.W. 16 and Rameshwar Prasad Goel D.W. 18 said that  a Congress election meeting was held at the Town Hall  Maidan, Hapur  and  no  election  meeting was  held  in  support  of respondent  Shastri  at  the Town Hall Maidan,  Hapur  on  7 February, 1967.     With  regard to the meeting at the Town Hail  Maidan  at Hapur  ’alleged  by  the appellant to have been  held  on  7 February, 1967, the oral evidence on behalf of the appellant is that the meeting was held and the oral evidence on behalf of the respondent is that the meeting was not held.  In  the case  of  conflicting oral testimony it is  safer  to  place reliance  on documentary  evidence.  First,   the  newspaper report  on  which the appellant relies  contained  intrinsic evidence  which  totally  nullifies  the  appellant’s  case. Exhibit  28  being the ’Hindustan’ dated  8  February,  1967 indicates  the news about Hapur under the date  7  February, 1967  that  a  meeting was held  "yesterday  night"  meaning thereby  6 February, 1967, in support of respondent  Prakash Vir Shastri.  Secondly, the newspaper ’Vir Arjun’  published on 8 February, 1967 gave the news at Hapur under the date  7 February, 1967. The news referred to an election meeting  at Hapur  but  did not mention that the meeting was held  on  7 February  or  on 6 February., 1967.  Thirdly,  Exhibit  A-12 which   is  an  application  by  one   Lakhi  Ram    seeking permission from the Municipal Board for holding a meeting on 7 February, 1967 in the Town Hall Maidan, Hapur throws light on  this  aspect. The permission given  by  the  authorities which  is marked Exhibit A-13 required the persons   holding the  meeting to pay certain charges towards the use  of  the electricity.   Exhibit A-14 is a receipt for payment of  Rs. 5.   These three documents indicate that the  meeting  which was held on 7 February, 1967 was a meeting organised by  the supporters  of  the Congress Party.  Fourthly,  Exhibit  A-2 which  is a General Diary of Thana Hapur bearing the date  7 February,  1967 shows that a constable was sent to the  Town Hall  Maidan  to make arrangements in connection  with   the meeting  which was to be ’addressed by one Kailash  Prakash. The witnesses on behalf of the respondent Shastri  mentioned the  name  of Kailash Prakash and Smt.  Kamla  Chaudhury  as speakers on behalf of the Congress candidate.  It is  highly improbable that two meetings of 898 the two rival candidates, namely of the Congress and of  the respondent  Prakash  Vir Shastri would both be held  on  the same date and at the same place.  Fifthly, the reports which were  lodged by the supporters of the appellant with  regard to  the  attack on the office of the Republican Party  on  7 February, 1967 do not mention or refer at all to any meeting on  behalf of respondent Prakash Vir Shastri on 7  February, 1967   at   the   Town  Hall Maidan,  Hapur.   It  would  be natural if a meeting had been held on 7 February, 1967  that there would have been reference to the same.     The  other  allegations  of  the  appellant  were   that respondent Shastri’s supporters on 7 February, 1967 attacked the  office of the Republican Party, to which the  appellant belonged.   There was the First Information Report  dated  7 February,  1967  about  the  attack on  the  office  of  the Republican Party.  This report is significantly silent about any  meeting having been held on  7 February, 1967 at  Hapur

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Town  Hall Maidan.  Though there was the  alleged  complaint about  the attack on the office of the Republican Party,  it appears that there was no investigation.  The attack on  the party  office was not proved by the appellant to  have  been made  by respondent Shastri’s workers and  supporters.   The High Court correctly came to the conclusion that no  meeting was  held  at  Hapur on 7 February, 1967 and  there  was  no attack on the office of the Republican Party.     With  regard  to.  the  ’attack on  the  office  of  the Republican Party to which the appellant belonged though  the first information report gave the news about the art, ok  it is  strange that there was no investigation.  The report  of the Joint Secretary of the Republican Party to the President of  the Republican Party bearing the date 8  February,  1967 alleged  that   the   supporters   of  Prakash  Vir  Shastri attacked  the office of the Republican Party on 7  February, 1967,  forcibly  took  necessary papers and a  flag  of  the Party.  Dal Chand Nimesh, Joint Secretary of the  Republican Party,  P.W.  71  in his evidence stated that  none  of  the processions went to his office and further he hid himself in an  adjoining  room.  He  did not prove  the  truth  of  the statements  contained  in  his report which  was  marked  as Exhibit 11. The attack on the office of the Republican Party was  not  mentioned  at all either in the  Vir  Arjun  of  8 February,  1967 or in the Hindustan dated 8 February,  1967. It  is obvious that if in fact any attack had been  made  on the  office of the Republican Party, the supporters  of  the appellant  would  have  taken steps  for  investigation  and publication.     The second occurrence on which the appellant relied  is. alleged  to  have happened at a place  called  Nagola.   The appellant’s case was that on 18 February, 1967, Prakash  Vir Shastri and his 899 supporters  who were mostly Tyagi by caste asked the  Tyagis to  stop the Jatav voters from going to the polling  station to cast their votes.  It was alleged that Thawariya made the announcement  by  beat  of drums that  the  Muslim,  Chamar, Bhangi  and Jatav voters would not be allowed to go  to  the polling station to cast their votes.  The other part of  the appellant’s  case about the Nagola incident was  that  there was  an  assault  on   Shamshad  Elahi,   a  worker  of  the appellant.   The appellant relied on the oral  testimony  of PW.  11, P.W. 12, P.W. 15, P.W. 16, P.W. 17, P.W.  19,  P.W. 23,  P.W.  65 and P.W. 80. The witnesses on  behalf  of  the respondent were D.W. 4, D.W. 12, D.W. 13, D.W. 30 ’and  D.W. 33.    The  oral  evidence  is  in  support  of  the   rival contentions,  namely,  that the Jatav voters  would  not  be allowed  to  vote  and  the  denial  of  the  same  by   the respondent.   The appellant also lied on Exhibit N that  the Jatav voters would not be allowed to cast their votes by the Tyagis.     In  support  of  the  case with  regard  to  assault  on Shamshad Elahi the appellant relied on the oral evidence  of Shamshad Elahi P.W. 11 and the injury report Exhibit 30  and other  documents,  namely,  Exhibits 31,  32  and  35.   The ’appellant criticised the judgment by contending that  there was no discussion of the oral evidence of P.W. 17, Satya Pal Malik.  P.W. 11, Shamshad Elahi said that he went to  Nagola at  about  3.30 p.m. on 19 February, 1967, the date  of  the election  and the voters told him about the proclamation  by beat  of  drums  on the previous   night   and   the  voters further  said  that they would be insulted and  they  should remain there.  Shamshad Elahi further said that he met Sevak Ram and Surajbhan Tyagi and 10 or 12 other persons were with

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them and they beat the witness with lathis and he   received a number of injuries.     The  other  witnesses on whose testimony  the  appellant relied  said that people wearing lion badges which was   the election  symbol of Prakash Vir Shastri asked the  witnesses not  to  cast  their votes and they also said  that  it  was announced  by beat of drums that no Chamar or Bhangi  should cast a vote.     Nagola is a village within the circle of Badhnauli.   R. K.  Aggarwal,  D.W.  33 who was  the  Presiding  Officer  at Badhnauli  polling station gave evidence.  He said that  the votes  of  village  Nagola were polled  and  no  Harijan  or Mohammedan  voter  was stopped from casting votes  and  that there  was no complaint that Harijan and  Mohammedan  voters were  being  stopped from casting their  votes.   In  cross- examination the witness said that no voters from Haidernagar or  Nagola were brought to the polling station under  police protection. 900     P.W. 80, Sukhbir Singh who was posted as Station Officer Thana  Kharkoda  said  that  he  received  information  from Shamshad  Elahi that voters at Badhnauli were being  stopped from casting their votes.  Sukhbir Singh went to  Badhnauli. He  also  went  to Nagola.  He said that 30  or  40  Harijan voters went to Badhnauli to cast their votes.  He said  that there was no voter who was taken by him to a polling station in  a  truck.  Sukhbir Singh proved Exhibit 35 which  was  a contemporaneous report to the effect that no one was stopped from voting at Nagola.     Satya Pal Malik on whose testimony the appellant  relied said  that  Prakash Vir Shastri came  to  Badhnauli  polling station on 19 February, 1967 and there were 40 to 50 persons around  him  with lion badges on. His further  evidence  was that  Prakash  Vir  Shastri asked the Pradhan  to  beat  the voters  to make them run away. Prakash Vir  Shastri  however denied having asked Sheoraj Singh Pradhan to drive away  the voters.     Thanwaria,  P.W.  23  on whose  evidence  the  appellant relied  said that he beat the drum in Nagola village  on  ’a day before the polling.  He said that there were two parties of  the Tyagis.  One was of Sheoraj Singh and the other  was of Pyare Lal.  The Jatavs, according to his testimony,  were in  Pyare Lal’s  party  and  the Bhangis were  in  Sheoraj’s party.   The appellant said that Thanwaria  was  disbelieved only  because  he  belonged to the Chamar  caste.   That  is misreading  the  judgment.   The High Court  said  that  the evidence  of  Thanwaria  did not  inspire  confidence.  That criticism of the evidence of Thanwaria is justified  because he came to support the case of the appellant and he belonged to the appellant’s camp.     Pyare Lal, D.W. 12 said that no Harijan was stopped from casting his vote at Badhnauli polling station and no  worker of  Prakash Vir Shastri threatened any Harijan voter at  the polling  station.  The appellant criticised the evidence  of Pyare  Lal that he did not know as to what was happening  in the village.  Satya Pal Malik, P.W. 17 mentioned the name of Pyare  Lal as the leader of one of the parties  and  Sheoraj Singh as Pradhan of the village Nagola.     The  oral  evidence on behalf of the  appellant  is  not acceptable  for two reasons.  First, if there had  been  any incident of a voter being prevented from voting ’a complaint would  have been made to the polling officer of the  polling station.  Secondly, Vireshwar Tyagi and Mahendra Singh Verma who were the supporters of the appellant and who are alleged to  have  said  that voters at Nagola  were  prevented  from

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voting  did not lodge any report about the  alleged  corrupt practice  particularly when it was said to be  committed  by Prakash Vir Shastri himself. 901     The assault on Shamshad Elahi which was also said to  be an incident of corrupt practice is unacceptable  for   these reasons.  First  the  injury report Exhibit  30  has  to  be considered along with the statement of Shamshad Elahi  being Annexure M and the report of the appellant being Exhibit  32 and  the complaint of Shamshad Elahi being Annexure N  being Exhibit  30.   The  appellant.,  in  the  report  dated   17 February, 1967 Exhibit 32 spoke  of voters not being allowed to  exercise  their votes. Shamshad Elahi in  his  complaint said  that 10 or 12 persons beat him with lathis.  All  this happened on 19 February, 1967. The doctor’s report was about the  injuries.  First  it  is peculiar  that  there  was  no complaint  about  the  injuries  after  the  injury  report. Secondly,  there is no evidence that the assault was by  the workers   of  Prakash  Vir Shastri.  Shamshad Elahi  in  his evidence  mentioned the names of Sevak Singh  and  Surajbhan Tyagi.   These names  were  not mentioned in  the  complaint being  Exhibit 30.  In cross-examination Shamshad Elahi  was asked  ’as to how he had obtained the names and  his  answer was that he met the grass cutter who gave the names.  It  is curious  that  the grass cutter who gave the names  was  not examined.     The  third incident on which the appellant  relied  took place  at  Chhajjupur.   The  allegations  are  that  on   2 February, 1967 an election meeting was organised in  support of the candidature of the appellant ’and the supporters   of respondent   Prakash  Vir Shastri created  disturbance  with the  result that the meeting could not be continued and  the supporters of respondent Prakash Vir Shastri are alleged  to have chased the appellant.  The High Court rightly commented on  the  absence  of  any report having  been  made  by  the appellant  to the Election Commissioner or the police  about the alleged occurrence.  It is Obvious that if the appellant had  been chased he would have made report to  the  Election Commission  or to the police.  The appellant relied  on  the news  item in the Patriot dated 5 February, 1967.  The  news item was referred to by Mahesh Chandra Agarwal, P.W. 14 who, however,  was not present at the meeting at Chhajjupur.   He referred  to  a  conversation with  the  Superintendent   of Police.   The   Senior  Superintendent  of  Police  was  not examined.  No police report was produced.  The truth of  the newspaper report was not corroborated nor was the  statement in  the ,news item proved.  On the contrary, Mahesh  Chandra Agarwal nullified the news item by admitting that he was not present at the meeting.      P.W.  18  Tejpal  Singh  spoke of  the  incident  of  2 February,  1967 and mentioned about the shouting of  slogans and  throwing of brick-bats. P.W. 10, Som Prakash  spoke  of charge sheet under sections 147, and 342 of the Indian Penal Code  against certain persons.  He spoke of the report of  3 February, 1967 and a report of 9 February, 1967.  The report dated 3 February, 1967 902 relates to the occurrence on 2 February, 1967 at Chhajjupur. The  report of 9 February, 1967 also relates to the  alleged incident of 2 February, 1967 at Chhajjupur. The witness Sofa Prakash P.W. 10 admitted that no investigation was made.  It is  significant  that  the  name of  the  appellant  is  not mentioned   in  either  of  complain,rs  or  reports.    The allegations  in  the report are that some  disturbances  was created and names of various persons are mentioned as having

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tried to run towards. the jeep which carried the leaders  of the Republican Party.  One of the witnesses Devi Dayal  Sen, P.W.  63  said that when the appellant rose  to  speak  some people pelted stones at him.     The  alleged  incident  at  Chhajjupur  is  unacceptable because,  first, there was no complaint by the appellant  to the  Election  Commissioner, secondly, there was  no  police case  and  no investigation, thirdly, the  reports  did  not mention  the name of the appellant as having been  assaulted or chased and fourthly, the news item in the Patriot was not proved as to the truth of the contents therein.     The ,fourth occurrence on which the appellant relied was at  a place called Opehra.  The appellant alleged that  some persons   were  stopped  from  casting  their  votes.    The appellant relied of the oral evidence of PWs. 58, 59 and 60. P.W.  60 is Manzoor Ahmad, M.L.A.  The other  two  witnesses were Durga Das and Ram Prasad.  The appellant criticised the judgment  that there was no mention of the name  of  Manzoor Ahmad.  The diaries being Exhibits A-23, A-32 and A-29  were produced to show that the election at Opehra polling station passed off peacefully and therefore no one stopped any voter from casting vote. Manroof Ahmad his oral evidence said that he  saw people armed with lathis and ballams.  He said  that he made a complaint  to  the  Presiding Officer and admitted in   cross-examination    that   there   was    no   written complaint.  Manzoor Ahmad did not prove that any person  was stopped from voting.     The  fifth  and  the  sixth  occurrences  on  which  the appellant  relied took place at Datiyana and Bankhanda.   It is alleged by the appellant that at Datiyana the agents  and the supporters of respondent Prakash Vir Shastri  threatened the  Scheduled Caste  and Harijan voters and prevented  them from  going to the polling station.  The  allegations  about the  occurrence  at Bankhanda are to  similar  effect.   The appellant  relied  on  Exhibit 18  which  was  a  memorandum addressed  by several voters who stated that  they  remained within  the  house and could not vote  because  the  village Tyagi  Kailash Chand threatened to kill them if  they  would vote.  P.W. 65, Vireshwar Tyagi spoke of the  incidents   at Nagola,  Bankhanda  and Hapur and his  wife   Smt.   Prakash Vireshwar Tyagi spoke of the alleged ;incident at  Datiyana. The respondents 903 witnesses denied that any person was prevented from  casting vote at Datiyana.     The  ’allegations  with  regard to  the  Bankhanda  were referred  to  by Vireshwar Tyagi and other  witnesses.   The diary  which  produced with regard to  the  polling  station disproved any such incident.  The diaries are Exhibits  A-19 and A-21.  D.W. 20, Chandoo Singh stated that he was at  the polling  station  at Bankhanda and no one was  stopped  from exercising  the  right of franchise.  D.Ws. 21 and  22  also spoke  of  polling at Bankhanda having been  peaceful.   The appellant referred to. religious songs which were said to be praise of respondent Prakash Vir Shastri. Mere praise-worthy songs will  not be an instance, of  corrupt practice.     All the allegations about the voters having been stopped from  casting their franchise followed the same  pattern  of oral  evidence.  The  absence of any report  either  to  the Election  Commission  or  to the Police  authorities  is  an important  and  noticeable feature and  therefore  the  oral evidence is not acceptable.     The  other  allegations relied on by the  appellant  are that  respondent  Prakash Vir Shastri is guilty  of  corrupt practice under sub-sections (3), (3A) and (4) of section 123

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of  the  said Act. The appellant contended  that  respondent Prakash  Vir  Shastri made communal propaganda  against  the appellant and also published false statements in relation to the  personal  character of the appellant.  In  aid  of  the contentions  the  appellant relied on annexures KK  and  MM. The  appellant  relied on  the upper portion of annexure  KK in  support of the contention that  the slogans amounted  to communal  propaganda.  The lower portion of annexure KK  was contended  by  the appellant to be allegations  against  the personal  character of the appellant.  Annexure MM was  said by  the appellant to contain slogans amounting  to  communal propaganda  against  the  appellant.  It  was  said  by  the appellant  that  respondent  Prakash  Vir  Shastri  promoted feelings  of  enmity  or hatred against  the  appellant  and further   raised  communal propaganda.  The  appellant  also relied on Exhibit 22 being the editorial in Vir Arjun  dated 7  February,  1967  in support of the  contention  that  the editorial   constituted  communal  propaganda  against   the appellant.     In  Guruji   Shrihar  Baliram  Jivatode   v.   Vithalrao and  Others,(1) this Court dealt with the scope and  content of  subsection  (4) of section 123 of the Act.  The  Act  is intended to protect freedom of speech on the one hand and to restrain malicious propaganda on the other.  The  provisions contained in subsection (4) of section 123 were said by this Court to be contra- (1) [1939] 2 S.C,R. 766 904 vened  when  "any  false  allegation  of  fact  pierces  the politician and touches the person of the candidate".  It  is the personal character and conduct of the candidate which is to  be  protected  from malicious  or  false  attacks.   The statement  in  question has to be first  a  false  statement bearing.  on  the  personal character  and  conduct  of  the candidate and secondly, the statement complained of must  be one   which  is  reasonably  calculated  to  prejudice   the prospects of the election of the person.     Under  the provisions contained in sub-section  (3A)  of the  said  Act  the promotion of,  or  attempt  to  promote, feelings  of enmity or hatred between different  classes  of citizens  of  India  on grounds of  religion,  face,  caste, community,  or language, is the mischief which is sought  to be avoided by making the same a corrupt practice.  The  sub- section  further says  that  such  promotion  or attempt  to promote   enmity  or hatred is for the  furtherance  of  the election of the candidate or for prejudicially affecting the election of any candidate.     Th.e   words  "personal  character  or   conduct"   were explained  by  this  Court  in T.K.  Gangi  Reddy  v.   M.C. Anjaneya Reddy and others(1) "to be equated with his  mental or  moral nature. Conduct connotes at person’s  actions  o.r behaviour".   Annexure  KK was not proved and  therefore  it cannot  be  said  to  constitute  any  communal  propaganda. Assuming  it  were proved there is no appeal to vote  for  a person on the ground of religion nor is there any appeal not to  vote  for  a  person on  the  ground  of  his  religion. Further,  the  provisions contained in  sub-section  (4)  of section 123 require the publication with the consent of  the candidate  or  his  election agent.  In  the  present  case, annexure  KK has not been established to be  published  with the  consent  of the respondent Prakash Vir Shastri  or  his election  agent.   It, therefore, follows that  annexure  KK offends  neither  the  provisions contained  in  sub-section (3A) nor in sub-section (4) of section 123 of the Act.     Annexure  MM was said by the appellant to be a  communal

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propaganda.   Arnexure MM was not proved.  Even if  it  were proved  the slogans do not offend the provisions  of  either subsection  (3A)  or sub-section (4) of section 123  of  the Act.     The  publication in the newspaper  ’Vir  Arjun’  Exhibit 22  is  to the effect that differences  between  Hindus  and Harijans  were  being  spread by  the  supporters   of   the Republican   candidate meaning thereby the appellant and  if students   from  Muslim University were brought in  by  them then  students  from  Ghaziabad would be  brought  into  the field.  The newspaper certainty (1) [1965] 1 S.C.R. 175 905 Was inclined in favour of respondent Prakash Vir Shastri but the  newspaper  publication said that  Prakash  Vir  Shastri would  not  unlike the Congress candidate   preach  communal hatred.   The  statements  in Exhibit 22  do  not  make  any reflection  on the moral or mental nature of  the  appellant and  they  do  not  touch  the  personal  character  of  the appellant,  nor do they promote enmity or hatred on  grounds of religion.     The  appellant failed to prove that respondent   Prakash Vir  Shastri committed any corrupt practice in  relation  to the  personal character and conduct of the  appellant.   The newspaper  publication Exhibit 22 was an appeal  on   behalf of   respondent  Prakash  Vir  Shastri.   As  long  as   the publication  is  not tainted by corrupt  practice,  such  an appeal  will  not be an infraction of the provisions  as  to corrupt  practices as  contemplated  in  the  Representation of  the  People Act.  Suggestions that attempts are made  to accentuate  the differences between the Hindus and  Harijans in  the  article cannot be extracted in isolation  from  the entire context.  The electorate at the time of the  election has  to  be  kept in the forefront in  judging  whether  the article  can  be said to offend the provisions  relating  to corrupt  practices.  The Court is to ascertain  whether  the statement   is  reasonably   calculated  to  prejudice   the prospects of the  candidate’s  election. This Court observed in  Kultar  Singh v. Mukhtiar Singh(1) that in  reading  the documents  it  would  be unrealistic  to  ignore  that  When appeals  are  made  by candidate there  is  an   element  of ’partisan feeling  and there is ’extravagance of  expression attacking  one  another and "it would  be  unreasonable  to. ignore  the question as to what the effect of  the  pamphlet would  be  on the mind of the ordinary voter who  reads  the pamphlet".   In  the light of these principles,  we  are  of opinion  that  there  is no  infraction  of  the  provisions contained in sub-sections (3A) and (4) of section 123 of the Act.     For  the reasons mentioned above, this appeal fails  and is dismissed with costs. Y.P.                               Appeal dismissed 906