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PETITIONER: NARBADA PRASAD

       Vs.

RESPONDENT: CHHAGAN LAL AND ORS.

DATE OF JUDGMENT: 30/07/1968

BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) GROVER, A.N.

CITATION:  1969 AIR  395            1969 SCR  (1) 499  CITATOR INFO :  R          1969 SC 734  (11)  E          1969 SC 851  (33)  RF         1972 SC 580  (21)  F          1974 SC  66  (55)  F          1974 SC 951  (6)  R          1979 SC1148  (4)  D          1985 SC  89  (9)  F          1988 SC1796  (8)

ACT:     Representation  of  the  People Act (43  of  1951),  ss. 33(5),  116-A  and  123---Compliance  with  s.  33(5),  what is--Threatening  voters that they voted for rival  candidate they would  be  committing  the sin of gohatya--If  election offence--Assessment of evidence by this Court under s. 116A.

HEADNOTE:     The  election of the appellant to the   Madhya   Pradesh Legislative    Assembly  from  Khategaon  constituency   was challenged on two grounds: (1) That the nomination paper  of one of the contesting candidates was wrongly rejected by the Returning Officer; and (2) that  there  was  a violation  of s.  123  of the Representation of the People Act,  1951,  in that  the  appellant and his election agent  made  speeches, wherein  they  stated, that Congress had not  abolished  cow slaughter  in  India  and-that  to  vote  for  the  Congress therefore was to commit the sin of gohatya.  The trial Judge of the High Court allowed the petition on both the grounds. In appeal to this Court under s. 116-A the Act,     HELD:   (1)  The candidate whose  nomination  paper  was rejected was not registered as a voter in the Electoral Roll relating  to  Khategaon  constituency  but  to  a  different constituency.  Under s. 33(5) of the Act, he had to  produce before the Returning Officer at the time of scrutiny, a copy of  the  Electoral  Roll of that  constituency,  or  of  the relevant  part thereof, or a certified copy of the  relevant entry  in  such  Roll, or should have  filed  any  of  those documents  earlier with his nomination paper. He did not  do any of these but instead, filed with his nomination paper  a certificate  giving  only  a  gist  of  an  entry  from  the Electoral  Roll   of  the other constituency, and  that  too from an officer who  was  not  proved to have the  authority

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to  issue  a  certified  copy of  the  Electoral  Roll.  The provisions  of the section were thus not complied  with  and the  Court  had no power to dispense with  the  requirement. Therefore,  the  rejection of the nomination  paper  of  the candidate,  by the Returning Officer, was justified and  the trial  Judge erred in holding that it was  wrongly  rejected [501 F-H; 502 A-E]     (2)  By  stating that if the voters voted  for  congress they  would be committing the sin of gohatya, the  appellant and his agent attempted to induce the voters to believe that they would become objects of divine displeasure or spiritual censure and thus committed an election offence under s.  123 of the Act. [506 G; 507 B]     Since  the witnesses who spoke about the  speeches  were believed by the trial Judge not on the probabilities of  the case, but, on his observation of their demeanour this  Court would be slow to depart from the trial Judge’s assessment of the  evidence.  According to that evidence, the voters  were reminded  that they would be committing the sin of  gohatya. Since  the cow is venerated in this Country and it  is  also beleved  that  gohatya is one of the cardinal sins,  such  a reminder  would  be equivalent to reminding them  that  they would be objects of divine displeasure of spiritual censure. The case therefore fell within s. 123(2)(ii) and the 500 trial  Judge was right in holding that the election  of  the returned candidate should be set aside. [505 D-E; 506 H]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2 of 1968.     Appeal under section 116-A of the Representation of  the People  Act 1951 from the judgment and order dated  November 30,  1967 of the Madhya Pradesh High Court, Indore Bench  in Election Petition No. 5 of 1967.     S.V. Gupte, R.K. Vijayavargiya  and S.S. Khanduja,   for the appellant.     V.K.  Sanghi,  G.L. Sanghi and/1.  G.  Ratnaparkhi,  for respondent No. 1. The Judgment of the Court was delivered by     Hidayatullah,  C.J.   This  is an  appeal  against   the judgment,  November 30, 1967, of a learned Single  Judge  of the High Court of Madhya Pradesh at Indore setting aside the election  of  the  appellant to  the  Khategaon  Legislative Assembly  Constituency  No.  259.  The facts  on  which  the petition  was based and the judgment of the High  Court  has been rested, may now be stated.     At  the  last  General Election to  the  Madhya  Pradesh Legislative  Assembly from the Khategaon Constituency  there were  five contesting candidates.  They were  the  appellant and  respondents 2 to 5.  The appellant received 9622  votes as  against the second respondent who obtained  8030  votes. The  other  contesting candidates received  fewer  votes  in comparison.  The present election petition was filed, not by any  of  the defeated candidates, but by an elector  to  the Legislative  Assembly  Constituency.  In the  array  of  the respondents  in  the High Court one Ram Kishen  s/o  Lakshmi Narain Deswali was also joined because his nomination  paper was  rejected  by the Returning Officer.  A point  was  made about this rejection in the High Court and we shall come  to it in due course.     The election petition was based on two broad facts.  The first  was  that  the nomination paper  of  Ram  Kishen  was wrongly rejected and the other fact comprised allegations of

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corrupt practices on the part of the returned candidate  and his  election  agent. These corrupt practices  consisted  of oral speeches connected with the Manifesto of the Jan  Sangh relating to cow slaughter in India. During the course of the speeches, it was alleged the returned candidate, who belongs to  the  Jan Sangh and his election agent Ram  Niwas  Somani made speeches at 19 villages in which they referred to  this election  manifesto  and claimed that the Congress  had  not abolished  cow slaughter in India and on the other hand  was promoting  it  and  that  the  Jan  Sangh  would  stop   cow slaughter.  They added to these statements, which might have been quite innocuous, two other statements, namely, that  to vote  for the Congress was to commit the sin of gohatya  and that the Congress candidate 501 Shrimati  Manjulabai  herself ate beef.   There  were  other allegations  regarding exhibition of posters which  depicted the  Congress as a butcher intent upon slaughtering  a  cow. This part of the case however, was not accepted in the  High Court  and we need not say anything about it.  The  petition therefore  succeeded  on  the  two  grounds  which  we  have mentioned,  namely, that the nomination paper of Ram  Kishen was   wrongly  rejected  and  that  the   corrupt   practice attributed to the Jan Sangh candidate and his election agent was established.     In  this appeal we are only required to  consider  these two points and we shall take them in the same order.  In  so far as the rejection of the nomination paper is concerned it may  be  pointed  out that Ram  Kishen  s/o  Lakshmi  Narain Deswali was registered as a voter, not in the Electoral Roll relating to Khategaon Tehsil but in the Harda Tehsil.  Along with this nomination paper Ram Kishen produced a certificate from the Tehsildar of Harda which reads as follows :--                      "I  certify that there is an  entry  of               the  name  of Ram Kishan  son  of  Laxmichand,               village  Dholgaon, at Anukaran No. Harda  217,               Electoral  roll of 1966, part of Anukaran  No.               177, District Hoshangabad, Tehsil Harda, under               the heading Ra-Ni-Ma, Serali, Serial No.  196,               House  No.  91/2, with  particulars  Ramkishen               Laxmi Chand, male, aged 45 years.                  16-1-1967                         Sd/-                                                    16-1-1967               Tehsildar Harda." He did not produce the kind of evidence which section  33(5) of  the Representation of the People Act, 1951, requires  to be  produced  when a candidate is registered as a  voter  in some    other   constituency.    Section   33(5)   of    the Representation  of  the People Act requires that  where  the candidate is an elector of a different constituency, a  copy of  the  electoral  roll  of that  constituency  or  of  the relevant  part thereof or a certified copy of  the  relevant entries  in such roll shall, unless it has been filed  along with the nomination paper, be produced before the  returning officer  at the time of scrutiny.  The nomination  paper  of Ram  Kishen  was filed on February 20, 1967.   The  date  of scrutiny  was  21st of the same month.  Ram Kishen  had  two alternatives  before  him.  One was to produce  any  of  the documents mentioned before the returning officer or to  have filed it earlier with his nomination paper.  He did neither. He  produced  a certificate from an officer who  it  is  not proved  to  our satisfaction had the authority  to  issue  a certified  copy  of the electoral roll.  He  also  added  an affidavit on his own part in which the gist of the entry was given.  Indeed the certi-

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502 ficate of the Tehsildar was based on the affidavit which was annexed  to the certificate.  There was no  compliance  with the  provisions  of s. 33(5) of the  Representation  of  the People  Act and there was no power in the court to  dispense with  this requirement. It is a well-understood rule of  law that if a thing is to be done in a particular manner it must be  done  in  that  manner or not at  all,  Other  modes  of compliance  are  excluded.   Even  the  certificate  of  the Tehsildar  was not a certified or a true copy of the  entry. It only gave the gist of the entry taken from the affidavit. It  contains  a mistake because the  village  "Dholgaon"  is mentioned  without  the  addition of the  word  ’Kalan’.  It appears  that  there are two villages,  Dholgaon  Kalan  and Dholgaon  Khurd.   The entry in the electoral  roll  clearly shows  that  it  is  Dhalgaon Kalan.   In  other  words  the certificate was inaccurate.  The affidavit of Ram Kishen was also inaccurate inasmuch as it described the house as No. 91 whereas  in  Electoral Roll the house is given  the.  number 91/2.  We,  however, do not go by these  small  inaccuracies because  again the law is that which can be made certain  is certain,  but the fact is clear that the requirements of  s. 33(5)  had to be and were not complied with.  The  rejection of  the  nomination  paper of Ram Kishen  by  the  Returning Officer  was’ thus justified.  Ram Kishen explained that  he was  running  about  trying to get the  other  evidence  and indeed  he  did  arrive  at 5 p.m.  having  earlier  sent  a telegram  that  he was coming with  the  required  evidence. Unfortunately both the telegram and Ram Kishen arrived after the  rejection  of the nomination paper  and  therefore  the Returning Officer could not recall what he had ordered.   We are satisfied that the learned Single Judge erred in holding that  the  nomination  paper  of  Ram  Kishen  was   wrongly rejected.  It was rightly rejected.     If the matter had rested there the appellant would  have been  entitled  to  succeed, but  there  remains  still  the question of corrupt practice.  A great deal of argument  was addressed  to us on this subject and we were  taken  through the  evidence of all the witnesses who have deposed  to  the corrupt  practice on the part of the returned candidate  and his  election  agent. We are satisfied that the  reading  of this  evidence  by the learned Judge,  although  some  times strained,  was clearly right and that the  corrupt  practice had  been  brought home to the candidate  and  his  election agent.   Without  going too much into the details  we  shall scan  that evidence once again to show that this fact  stood duly proved.     Out  of the 19 villages at which speeches were made  the learned Judge selected two, for basing his conclusion and we shall  therefore confine ourselves to evidence  relating  to those  villages.   They  are  Khategaon  and  Kannod.    The speeches at Khategaon took place on the 11 th and at  Kannod on the 16th February. It appears that February 11, was a day of many speeches.  Earlier in the day the Congress held  its own session to persuade the voters to 503 vote  for  that  party.  The Chief Minister  (D.  P.  Misra) addressed  a gathering of about 2000 persons.  The  speeches made  at that meeting need not be referred to  here  because they do not bear upon the present matter.  The Jansangh then followed  and  held  its own meeting.  Many  spoke  at  that meeting including the returned candidate, Narbada Prasad who also  goes  under  the  name  of  Kinkarji.   The   election petitioner  examined in this connection three witnesses  and also  examined himself.  These witnesses are Bulchand  (P.W.

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2), Babulal (P.W. 7) & Chandragopal (P.W. 15). The  election petitioner is P.W. 17.  It is argued by the learned  counsel for  the  appellant that the testimony of PWs. 2, 7  and  15 should  not  have  been accepted  because  there  were  many discrepancies in the versions of these witnesses as to  what was  said  at the meeting.  There are  also  some  arguments regarding the credibility of each of these witnesses and  we shall briefly refer to these two points now.     P.W. 2 Balchand stated that he had not gone specifically to the meeting but that the meeting was thrust upon him.  He had gone on the 11th to the house of an ailing relative  and was  with  him in the evening when the meeting  took  place. This  meeting was held right opposite the residence  of  his relative and he was therefore in a position to hear what was said.  He did say that he attended the meeting but he  might well  have being so close to it although his explanation  of how  he happened to be there is acceptable. He  stated  that Kinkarji   was  one  of  the  speakers. Kinkarji  complained of  the division of Kashmir and also that the Congress  ’had increased  price level.’  He stated further that   to  bring Hindu  Raj, the voters must not vote for Congress  but  cast their votes for the Jansangh.  He added:                     "In  the Congress Raj thousands of  cows               are cut every day.  To vote to Congress is  to               take  on  your  heads  the  sin  of   gohatya.               Manjula  Bai  the Congress  candidate  herself               eats cow-flesh.  You’ should go away from here               after  swearing to yourselves that  you  would               not  vote congress and bring on  yourself  the               sin of gohatya." It  is  convenient to compare what the other  two  witnesses said  in  this behalf P.W. 7’s (Babulal)  version  was  that Kinkarji  "spoke  of Kashmir, Pakistan and  said  that  ’the Congress-walas’  did not get sugar or grain for  them".   He concluded:                     "The  congress   men get  thousands   of               cows  killed. Manjula Bai Wagle who stands  on               the  congress ticket eats cow’s flesh.  It  is               necessary  to bring the Hindu Raj and so  give               vote to the deepak and make it victorious. You               better swear by the cow that you will not vote               congress  but vote Jan Sangh.  If you  do  not               vote Jan Sangh you will be getting the sin  of               cow killing."               504               The  version of P.W. 15 (Chandergopal) was  to               this effect.  When he went there Kinkarji  was               speaking and said:        "The  congress  party  is a hatyara  party.  It  gets thousands of cows and bulls killed. The candidate who stands against  me  in this election is Manjula Bai set up  by  the congress  and she eats cow’s flesh.  I have been set  up  by the  Jansangh  for bringing the  Hindu Rajya.  To  bring  it please vote on my deepak mark."     A point is made by the learned counsel for the appellant that since P.W. 15 does not speak of the sin of gohatya,  we should discount the evidence of the other two witnesses  who have  exaggerated  the whole story.  He also  contends  that even  if  the words were used about the sin  of  gohatya  we should  not  give too much meaning to the word  ’sin’  which bears different shades of meanings and the strongest meaning need  not necessarily be chosen. He also contends that  this speech,  even if it is accepted from the version of P.W.s  2 and  7 did not amount to the kind of corrupt practice  which is  made  a  ground for setting  aside  elections  under  s.

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123(2)(ii).     Whether we should believe the witnesses or not  involves how  far  we should enter into facts.  No doubt,  an  appeal before  this  Court under section 116A is an  appeal  as  of right and is open both on facts and law; still the  practice of  the  courts  has uniformly been  to  give  the  greatest assurance  to the assessment of evidence made by  the  Judge who  hears  the witnesses and watches  their  demeanour  and judges  of their credibility in the first instance.   In  an appeal  the  burden  is on the appellant to  prove  how  the judgment  under appeal is wrong.  To establish this he  must do something more than merely ask for a re-assessment of the evidence.  He  must  show wherein the  assessment  has  gone wrong.   Where  the  court of  first  instance  relies  upon probabilities  alone, the appellate court may be in as  good position   as  the  court  of  trail  in  judging   of   the probabilities; but where the court of trial relies upon  its own  sense  of the credibility of a  witness  the  appellate court  is  certainly at a disadvantage, because it  has  not before it the witness but the dead record of the  deposition as recorded.  If it was a question only of the probabilities of the case, we would have undoubtedly gone into the  matter more  closely.   The matter has however been put  before  us strictly  on the ground of credibility of the witnesses  and it  is  there  we  feel that the appellate  court  is  at  a disadvantage.   This has been laid down both by  this  Court and the Privy Council in cases which are quite familiar  and need not be quoted.     Applying  these  tests,  we  go  once  again  into   the submissions of  the learned counsel for the appellant to see how far he has been 505 able to prove to our satisfaction that the appraisal of  the evidence of these witnesses is such that we must reject  the conclusion  of’ the learned High Court Judge and  substitute for  it  another  conclusion.   It  is  said  about  P.W.  2 (Balchand) that he claimed that he was not interested in the Congress  but P.W. 11 Parasram stated that  Balchand  worked for the Congress.  Learned counsel submits that here at  the very start we have a lie from the witness and we should  not therefore  believe  him.  He further  comments  that  P.W.2. (Balchand)  did  not attend the meeting that he  only  heard what  was  being  said  at  the  meeting,  that  he  was  an unsummoned witness and did not go to Manjula Bai but went to Chaganlal  the  elector  who  had  no  connection  with  the election  and  thus has shown considerable interest  in  the success  of  the election petition. All  these  things  were before  the learned Judge who tried the case.  In  spite  of them  he hag chosen to draw an inference from the  testimony of  these  witnesses taken with the other  material  on  the record.   In  this connection it is pertinent to  point  out that  the learned Judge referred to the evidence  of  Tiwari P.W.  10  and Ramchandra Agrawal P.W. 13  (particularly  the former)  about  whom  he  said  that  he  was   considerably impressed by the way in which he deposed and it appeared  to him  that that witness was speaking the truth.  Where  there is  evidence which the Judge considers truthful not  on  the probabilities  of  the  case but because the  Judge  on  his observation of the manner in which the witness deposed,  the appellate Court should be slow to depart from the conclusion of  the trial Judge.  In this case Kunjilal Tiwari  P.W.  10 admitted  that he was a member of the Jansangh.  He  further said that he did not approve of the methods of the  Jansangh in  making such speeches and had therefore come  forward  to depose truthfully as to what had happened.  This witness  no

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doubt  spoke’  about  Kannod but he lent  assurance  to  the statements of P.W.2 (Balchand), P.W. 7 (Babulal) and P.W. 15 (Chandergopal) about Khategaon.  The learned Judge  although he  examined the two, incidents separately, seemed  to  have viewed  the entire propaganda of Kinkarji as integrated  and has drawn the conclusion from both aspects of the case taken together.  Therefore  the  case  comes  to  this,  that  the witnesses  who spoke about the speech at Khategaon were  not unanimous  as to the version of the speech, but that in  our opinion is not a circumstance of vital importance,  because. speeches  were  also made at Kannod in  which  the  returned candidate made similar observation about the sin of gohatya. The  witnesses  here are P.W. 4.  (Narsingh  Dass),  P.W.  8 (Mazharul  Haq)  and P.W. 10 (K. L. Tiwari).  We  shall  now refer to what they stated.  P.W 4 (Narsingh Das) stated that on February 16,    967 there was a meeting in his village in front  of  Ramniwas  Somani’s house.  This  Somani  was  the election  agent of the returned candidate.  At this  meeting both Somani and Kinkarji spoke.  When he went there Kinkarji was  speaking.   This is the’ version which he gave  of  the speech. 506                      "The  congress gets cows killed so  you               should  not vote for congress, but you  should               put  your stamp on the deepak our emblem.   If               you still vote for Congress you shall get  the               sin of killing a cow."               P.W. 8 (Mazharul Haq) also said that  Kinkarji               recited  some slokas and when he came  to  the               end of the speech he said:                     "Congress   gets   cows   killed.    The               congress  candidate  Manjula  Bai  Wagle  eats               cow’s flesh.  We have to bring Hindu Raj;  put               the seal on the deepak mark." P.W. 10’s (Kunji Lal Tiwari) version was that Kinkarji  said that  the Congress was getting the cows killed. Manjula  Bai should  not be given any votes.  If she was voted for  there would  be  a sin. He also spoke that  the  congressmen  were doing blackmarketing.     It  thus  appears  that  at  Kannod  also  there  was  a repetition  of  the  same kind of  speech  which  the  other witnesses stated had been made at Khategaon. The question is do  we  believe these witnesses or not ?   In  our  judgment there  is  ample  evidence in this case  that  there  was  a reference to cow slaughter and the campaign of the Jan Sangh that cow slaughter should be abolished in India.  One cannot say that it is wrong to make such a propaganda.  It would be perfectly  legitimate  for any party to promise that  if  it came into power it would abolish cow slaughter.  That is not the  gravamen of the charge.  The gravamen of the charge  is that it was added that if the voters voted for the  Congress candidate,  they would be guilty of the sin of  gohatya  and here  the  law of election steps in.  Section  123  provides that  it is an election offence of undue influence, that  is to  say, any ’direct or indirect interference or attempt  to interfere  on the part of the candidate or his agent  or  of any  other person with the consent of the candidate  or  his election agent with the free exercise of any electoral right when any such person, as is referred to therein, induces  or attempts to induce a candidate or an elector to believe that he  or any person in whom he is interested, will  become  or will  be  rendered  an  object  of  divine  displeasure   or spiritual censure.             The question is whether in stating that if  they voted  for the            Congress or a Congress  candidate,

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they  would be committing the sin of gohatya amounted to  an attempt  to induce the voters to   believe that  they  would become  or  would  be  rendered  an  object           divine displeasure   or  spiritual  censure.   In  our  opinion   a statement  of this kind falls within this provision  of  the section.  It is           not necessary to enlarge upon  the fact  that cow is venerated in          our country  by  the vast  majority of the people and that they believe not  only in  its utility but its holiness.  It is also believed  that of  the cardinal sins is that of gohatya.  Therefore  it  is quite           obvious that to remind the voters that  they would  be committing            the sin of gohatya would  be to. remind them that they would be 507 objects   of  divine  displeasure  or   spiritual   censure, Kinkarji went beyond the permitted limits of canvassing  and exhortation when he added to the legitimate manifesto of his party  this observation that by voting for the  congress  or the congress candidate the voters would be objects of divine displeasure  or  spiritual  censure.  In  our  opinion  both spiritual censure and divine displeasure are implicit in the speeches as made.  The case, therefore, falls clearly within s.  123  (2)(ii) of the Representation of  the  People  Act, 1951.     It  will be encumbering this judgment if we  record  the incidents which relate to the election agent, except to  say that the election agent Somani made similar speeches and the fact has been well established by reliable evidence. We  are accordingly satisfied that the returned candidate was guilty of corrupt practice and the High Court was right in  holding that  the  election  of the  returned  candidate  should  be avoided.     We  may  point out that ,there was a  further  statement that  the congress candidate Manjula Bai ate beef.   Manjula Bai did not appear in the witness-box to deny this.  In fact she  showed little interest in the election petition and  is reported  to have left the matter to the elector  who  filed this  petition. No one on her behalf appeared to  deny  this fact  and  therefore we leave the matter there.  We  do  not express any opinion that any corrupt practice in relation to that statement was committed either in fact or in law.  In  the result the appeal must fail.  It will be  dismissed with costs. V.P.E.                         Appeal dismissed. 508