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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  290            1975 SCR  (1) 643  1974 SCC  (2) 660  CITATOR INFO :  R          1975 SC 308  (60)  F          1975 SC1045  (4,12,16)  RF         1975 SC1612  (15)  RF         1975 SC2299  (480)  RF         1976 SC1187  (31)  RF         1976 SC1599  (6,44)  R          1976 SC1866  (4)  RF         1976 SC1886  (23)  RF         1977 SC 587  (2)  R          1977 SC 813  (13)  R          1978 SC 351  (5,7,15)  R          1978 SC1162  (8)  R          1984 SC1516  (3)  R          1985 SC 236  (62)  C          1991 SC2001  (5,24)

ACT: The  Representation of the People Act (43 of 1951)  ss.  83, 84,  99(a)  (ii), 116A and 123(1) to (4)--Scope  of  Court’s power  to  set aside election--Appellate  Court’s  power  to upset findings of trial Court--Bribery,  ingredients--Divine displeasure and undue influence--Court’s attitude  to--Names of   witnesses  if  should  be  mentioned  in   sources   of information  or as part of particulars.  Appeal to  religion what  is--Duty  of trial Court to name those found  to  have indulged  in  corrupt practices--Reform of election  law  to check contemporaneous corrupt practices suggested.

HEADNOTE: In  the  General Election to a State Assembly  held  from  a constituency  where  the  voting  strength  of  Muslims  was preponderant, the appellant was declared elected.  The first respondent,  who was a sitting minister before  his  defeat, challenged  the  election  on  various  grounds  of  corrupt practices.   The  High  Court  set  aside  the   appellant’s election  holding that he committed corrupt practices  under s.  123(1) to (4) of the Representation of the  People  Act, 1951.  The High Court found (i) that the appellant placed at the  disposal of another contesting candidate a car ’with  a promise that the expenses incur-red in hiring and running it in connection with his election campaign would be met by the

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appellant, so that, he may continue to contest the  election and  wean away the Harijan votes from the first  respondent; and  (ii)  that the appellant, and his supporters  with  his consent,  delivered speeches appealing to the Muslim  voters to vote for the appellant because he was a true Muslim while the  first  respondent *as a Kafir ; that  they  distributed handbills  containing  the allegations that  (a)  the  first respondent, though a Muslim got the grave of another  Muslim dug up on account of personal enmity; (b) as health minister he  violated the modesty of lady doctors and nurses; (q)  he got certain Muslims arrested on allegations of cow slaughter and forced them to eat pork; and (d) if the voters voted for the  first  respondent they would become subject  to  divine displeasure. HELD  :-(1) An appeal is a re-hearing but the trial  Court’s finding  will  be  upset only when it is found  that  it  is wrong. [647 D] Laxminarayan v. Returning Officer, A.I.R. 1974 S.C. 66,  78, Karemore’s Case, A.I.R. 1974 S.C. 405, 413, 420 followed. (2)  After an election had been held defeated candidates  or disgruntled electors should not be allowed to treat it in  a light-hearted   manner  by  filing  election  petitions   on unsubstantial  grounds and irresponsible  evidence.   Courts must respect the verdict rendered by the electorate and show extreme reluctance to set it aside or declare it void unless clear  and cogent testimony, compelling the court to  uphold the corrupt practice alleged against the returned candidate, is  adduced.  Further, where corrupt practices  are  imputed the proceedings are of a quasi-criminal nature where  strict proof  is  necessary  and the burden is  heavy  on  him  who assails  the election. in agents cases where  the  witnesses are  partisans,  being  the polling agents  or  counting  or workers  of the candidates ; or of the turn coat  type,  who claimed to be the polling agents, counting agents or workers of  the returned candidate till the election over,  but,  in the  post-election  period, when  the  defeated  candidate’s party  had  formed a government, shifted their  loyalty  and gave evidence in proof of the averments in the petition ; or officials   working   under  sitting  Ministries   who   are candidates  for  election, the Court must scan the  evidence of  the corrupt practices alleged with scrupulous  care  and severity. [650 E-H, 655 F-H] (3)  The  corrupt practice of bribery under  s..  123(1)  by placing  a car at the disposal of another candidate, is  not proved.   Assuming that such candidate got the use of a  car at the expense of the appellant such financial aid would not amount  to  corrupt practice unless it was  to  induce  that candidate not to withdraw from the election. 644 In  the present case, there is no proof on this  aspect  and there  is no finding to that effect by the High Court.  [652 H, 654 B-C] (4)  Divine  displeasure on account of prandial  impropriety and  undue influence for fear of forced pork eating,  cannot be inferred from the allegations in the handbill.  No one in India to-day will shiver with fear that a candidate, when he wins  an  election, will force down his  throat  distasteful pork.   Such chimerical apprehensions are unreal and  cannot receive judicial approval.  Therefore, the corrupt  practice alleged under s. 123(2) is not proved. [669 F-H] (5)  But  the  hand  bills exhort  Muslims  to  support  the appellant  in the name of religion and  contain  allegations amounting  to character assassination and so, the  appellant is guilty of the corrupt practices under s. 123 (3) and (4). [670 A-B]

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(a)  There is no credible proof that speeches had been  made by the appellant or his supporters at meetings. [655-C-F] (b) But on the distribution of the damaging handbills  there is  acceptable,  direct and circumstantial  testimony.   The appellant  had  a motive for publishing  the  handbills  and there is evidence to show that the handbills existed at  the relevant  time.   The  circumstances of  the  case  and  the evidence  of  disinterested witnesses show that  hand  bills were  distributed  with  the knowledge and  consent  of  the appellant. [668F-H] (c) Neither s. 87 nor s.83 nor r. 94(a) and Form 25  require that  the  names  of the witnesses should  be  mentioned  as sources  of information or as part of particulars.  Rule  12 framed by the High Court for the trial of election petitions requires  the source of information to be mentioned  at  the earlier stage in order to prevent afterthoughts.  But, every witness  need not be mentioned as a source and every  source informant  need  not be examined necessarily.   Whether  the omission  to  do  so  in  a  given  case  reflects  on   the credibility  of  the  evidence  depends  on  the  facts  and circumstances of the case.  While the court must be  careful to insist that the means of knowledge are mentioned right in the   beginning  to  avoid  convenient  embellishments   and irresponsible  charges,  it  should  not  stifle  good   and reliable  testimony or thwart proof of corrupt practices  by technicalities  of procedure, especially when no  prejudice, on  account of deficiency in particulars, is made out.  [664 C-E, F-G] (d)  What  is  appeal  to  religion  depends  on  time   and circumstances, the ethos of a community, the bearing of  the deviation  on the cardinal tenets of the eligion  and  other variables.   Law being a secular social process,  the  Court must avoid over solicitude for ultra-orthodoxies. [660  A-B. D-E] (e)  Since  the  first respondent  has  called  the  various allegations   relating  to  womanizing  as  false  and   the appellant  has  agreed that he does not believe them  to  be true,  the corrupt practice under s. 123(4) must be held  to have been made out. Ambika  Saran  Singh v. Mahant Mahader Nand Giri  41  E.L.R. 183.   Kultar Singh v.Mukhtiar Singh, [1964] 7  S.C.R.  790, Balwan   Singh  v.  Lakshmi  Narain,  22.  E.L.R.  273.   B. Rejagopala  Rao v. N.  G. Ranga, A.I.R. 1971 S.C.  267,  275 referred to. (6)  If  a blatant corrupt practice is committed  during  an election there is now no clear statutory mechanism which can contemporaneously be set in motion by the affected party, so that, when it is raw, a record and an instant summary  probe is   possible   through   an   independent    semi-.judicial instrumentality.   Violations thrive where prompt  check  is unavailable.  Effective contemporaneous machinery  providing for  such chocks would greatly curtail  subsequent  election disputes  and even act as a deterrent to the  commission  of corrupt  practices.   Elections are the cornerstone  of  the parliamentary system and electoral purity can be  maintained only  when the virus of corrupt practices is  controlled  by comprehensive  systematic changes in law with emphasis on  a fearless enforcement instrumentality and a national  politi- cal consensus to abide by norms. [670 D-F, 672 A-B] In the present case, the handbill does not contain the  name of  the printer and publisher although the election  law  so required.   There is no agency to take prompt  action  after due  investigation, and a propagandist is able  successfully to spread 645

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scandal without a trace of the source, knowing that  nothing will  happen until long after the election the  question  is raised in an election petition. [665 F-G] (7)  The High Court having found the commission  of  corrupt practices by the appellant and one of his supporters, who is a sitting member of Parliament, and a large number of  other persons, was under the statutory duty to name all those  who have been proved at the trial to have been guilty of corrupt practices,   under  s.  99(a)  (ii)  after   following   the prescribed  procedure.  If only courts would name all  those involved  in the pollution of the electoral  process,  there would  be some hesitation on their part to indulge  in  such improper practices.  No such action is however necessary  by this  Court  in the present case, because this  Court  found only the appellant guilty of corrupt practice. [670 F-671 H] D.  P.  Mishra  v.  K. N. Sharma [1971] S.C.R.  8  ;  R.  M. Seshadri v. G. Vasantha Pai. [1969],2 S.C.R. 1019, and Janak Sritar  v. Mahant R. K. Dos, A.I.R. 1972 S.C. 359,  referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 816 of 1973. (Appeal under Section 116-A of the Representation of  People Act, 1951 from the Judgment and Order dated the 12th  March, 1973  of the Punjab and Haryana High Court at Chandigarh  in Election Petition No. 7 of 1972.) N. S. Bindra, R. H. Dhebar, B. S. Malik, P. R. Ramasesh  and R. C. Bhatia, for the Appellant. K.  C.  Sharma,  K. C. Agarwal,  M.M.L.  Srivastava,  E.  C. Agarwala and Prem Malhotra, for Respondent No. 1. K. L. Hathi, and P.C. Kapur, for Respondent No. 2. A.T.M. Sangpath for Respondent No. 3. S. K. Bagga and S. Bagga, for Respondent No. 4. The Judgment of the Court was delivered by- KRISHNA IYER, J.-By a plurality of less than 2,000 votes the appellant was declared elected from the Nuh constituency  to the  Haryana Assembly in the general election held on  March 11,  1972. lie was an Independent candidate while  his  main rival, the first respondent, represented the Indian National Congress.  There were three others in the field two of  whom were  independents and the third a Jan Sangh nominee-all  of them  polled  poorly.   In  the  electoral  history  of  the constituency  fickle  fortune has been smiling  now  on  the appellant,  now  on the first respondent.  It  also  happens that while the appellant had been a Deputy Minister when  he was  elected to the Haryana Legislative Assembly  last  from the  same  constituency in 1967, at  the  following  general election  in May 1968 to the same Assembly (before its  term the  Assembly was dissolved and the non-Congress  Government went out of office) the first respondent was elected and  he became a Member of the Cabinet formed by the Congress party. The  next  election  fell  in 1972  where  both  figured  as combatants  from Nuh and we are concerned with the  validity of the result declared in favour of the appel- -185 SCI/75 646 lant  by  the returning officer in the present  appeal,  the High Court having set aside the election. It  is  apparent that the competitive politics  of  the  Nuh constituency has expressed itself through the appellant  and the  first respondent for quite a long time now and  as  the voting  figures  of the latest poll shows, the  context  has been  contentious and close.  In such battles of the  ballot

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where  personal feuds foul the air, the decencies and  norms set by the law may often be the first casualty.  Anyway, the disappointed  first  respondent hastened  to  challenge  the appellant’s   election  on  various  grounds   of   "currupt practices".   The  High Court has upheld a few of  them  and voided  the appellant’s election, a miss being as good as  a mile.   The  campaign pollutants must be kept  down  at  the polls if electoral disenchantment is not to grip the general community.   The Court, in this regard, is the  sentinel  on the qui vive. Shri  Bindra, learned counsel for the appellant, has  argued the case in minute detail, countered by Shri Sharma for  the first  respondent ; but since at the appellate level  jejune infirmities  and  probative trivialities may  not  tilt  the scales even on the principle of juncta juvant, we will focus largely  on the major circumstances.- The-correct  appellate perspective  in an election case has been indicated by  this Court and we are bound to set our sights on those lines.  In Laxminarayan V. Returning Officer(1) the implied limitations on the appellate power under S.116A were stated thus :               "It  can re-appraise the evidence and  reverse               the trial court’s findings of fact.  But  like               any  other power it is not unconfined;  it  is               subject  to  certain inherent  limitations  in               relation  to a conclusion of fact.  While  the               trial court has not only read the evidence  of               witnesses  on record but has also  read  their               evidence in their faces, looks and  demeanour,               the  appellate  Court  is  confined  to  their               evidence on record               *   *   *    *    *    *    *               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  reassessment  of  the               evidence.  He must show wherein the assessment               has gone wrong".               In  Karemore’s Case(2) this position  was  re-               stated thus:               "Before a finding of fact by a Trial Court can               be  set aside it must be established that  the               Trial  Judge’s findings were clearly  unsound,               perverse  or have been based on grounds  which               are  unsatisfactory  by  reason  of   material               inconsistencies or inaccuracies.  This is  not               to  say that a Trial Judge can be  treated  as               infallible   in  determining  which  side   is               indulging in falsehoods or exaggerations ....               *   *    *    *    *    *    *               While, as we have said earlier, it is open  to               this  Court  to reappraise  the  evidence  and               consider the propriety, correctness (1)  A.I.R. 1974 S.C. 66, 78. (2)  A.I.R. 1974 S.C. 405, 413, 420. 647               or  legality of the findings recorded  by  the               Trial  Court  ordinarily it will  be  slow  to               disturb  the findings of fact recorded by  the               High Court unless there are cogent reasons  to                             do so." An appeal is a re-hearing but the trial Court’s finding will be  upturned not when it is short of right but only when  it is wrong.  We wilt view the case from this angle. In  a loose sense, Nuh is a Muslim constituency by which  we mean   that   the  voting  strength  of   the   Muslims   is

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preponderant.  Both the candidates are Muslims and,  indeed, to  some extent the Islamic "dosage" of each  candidate  has itself  been highlighted in the Election Petition as a  bone of  contention  in  the  poll  confrontation,  as  will   be presently   discussed.   Had  parties   professing   secular politics  and  revolutionary ideologies  never  "stooped  to conquer"  by  sub rosa appeal to the religion and  caste  of blocks  of  voters  by  exciting  their  sympathy  for   the candidate via this sense of "tribal" identity, our elections would  long  ago have lived down  this  injurious  political irrelevance.   On the contrary, the unerring  instinct  with which  political parties frequently choose candidates  whose religion  or  caste  tallies with that of the  bulk  of  the constituents  appetises,  if not excites, covertly,  if  not overtly,  the caste consciousness and  religious  separatism otherwise asleep in the bosoms of the common people.  In the name  of  pragmatism many parties offer  allegiance  to  the super-party---Caste  and  the law (Sees. 123  &  125)  fails operationally  because  the  societal mores  are  not  being seriously secularised by big Parties.  What is surprising is that the die-hard sense of caste has affected not merely the Hindu  heirarhcy  but also the Muslim  Brotherhood  and  the evidence  in  the present case reveal that Gote  (gothra  or clan  )  is a binding force socially and  electorally  among Muslims  here.   Exploitation  of  this  susceptibility   is suggested against the appellant. The  first  respondent, in his petition,  has  imputed  many types  of  corrupt  practices  to  the  returned  candidate. Paragraph  8  of  the  petition sets  out  the  facts  about bribery.   The next paragraph furnishes the  particulars  of appeal  by the returned candidate and/or his election  agent and by others with their consent, to vote for the  appellant on grounds of religion and caste and to refrain from  voting for  the  first  respondent on the score  that  he  violated Islamic tenets and was in fact a kafir.  The gravamen of the vices flung at the appellant is that he and others with  his consent  did broadcast to their constituents orally  and  in writing personal aspersions about the first respondent, cal- culated  to darken his poll prospects.  Undue  influence  by invocation  of  divine displeasure by dietary  deviation  is also  alleged, based on the potential threat, if  respondent were returned of the pious Muslims being forced to eat pork- a prandial anathema for true Muslims. Not  all  of  these grounds have been held  proved  and  the appellate  I subject-matter is confined to that part of  the canvas   where  findings  of  corrupt  practice  have   been recorded.   We  will switch the forensic spotlight  only  on them.  The High Court has wound up thus: 648               "My  conclusions from the  evidence  discussed               under this issue may be summed up as follows:               (a) Handbill Exhibit P. W.4/3 was in existence               before the 12th               of March, 1972.               (b) The returned candidate supplied copies  of               the  handbill  to his agents and  workers  for               distribution amongst Muslim voters.               (c) The returned candidate and his  supporters               with  his  consent, made an appeal  to  Muslim               voters  to  vote for  the  returned  candidate               because he was a true Muslim whereas the peti-               tioner  was a kafir.  This appeal was made  on               the  9th  and 10 th of  March,  1972,  through               speeches  delivered by the returned  candidate               and  his  supporters and  by  distribution  of

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             handbill  Exhibit P. W. 4/3, in the  following               villages of the Nuh Assembly constituency:               Notki   Gohana,  Khedli  Nuh,  Mewli,   Malab,               Nagina,   Karherrha,  Pinangwan,  Bhadas   and               Gliagas.               It is conceded before me that the appeal  just               above found by               me to have been made by the returned candidate               was  an  appeal  to  vote  for  the   returned               candidate  and to refrain from voting for  the               petitioner  on the ground of  their  religion,               for  the furtherance of the prospects  of  the               election  of  the returned candidate  and  for               prejudicially  affecting the election  of  the               petitioner  so that it falls within the  ambit               of  the corrupt practice detailed  in  section               123 (3) of the Act, which corrupt practice the               returned  candidate  must  be  held  to   have               committed.  The issue is accordingly found  in               favour of the petitioner."                               *       *     *      *       *               "From   the   evidence  accepted  by   me   as               trustworthy  under  that issue it  is  further               made out that practically all those statements               with slight variations were made  the-subject-               matter  of speeches by the returned  candidate               and, with his consent, by Shri Tayyab Hussain,               which speeches were delivered to gatherings in               the  said  ten villages.  The  publication  of               those statements by the returned candidate and               by Shri Tayyab Hussain, with his consent  thus               stands fully proved.  The petitioner has sworn               as P. W. 76 that all the statements  contained               in  the  handbill are false.   Thus  assertion               stands wholly unrebutted.  Appearing as R.I.W.               37   the  returned  candidate   averred   that               according to his belief the statements made in               the  handbill were incorrect.  This being  so,               all  the ingredients of the  corrupt  practice               under  examination must be held to  have  been               fully brought home to the returned candidate".                             *    *    *    *    *    *    *               I have already held under issue No. 4 that  as               claimed  by petitioner handbill Exhibit  P.  W.               4/3  was  distributed amongst  voters  by  the               returned candidate and his supporters with his               consent.   So the only question which  remains               to be answered is 649               whether  the  publication  of  the  statements               above  extracted  amounted to  any  direct  or               indirect interference or attempt to  interfere               with the free exercise of any electoral right.               in opinion, this question must be answered  in               the  affirmative.   According  to  the  Muslim               faith,  eating of pork is  considered  sinful.               The   impugned  statements  declared   in   no               uncertain  terms  that if the  petitioner  was               elected,  he  would force all Muslims  to  eat               pork.   The effect of those statements on  the               mind  of an average Muslim voter would  be  so               powerful  as to leave no free will to  him  in               the  exercise of his choice of  the  candidate               for whom he was to vote.  The inducement would               result in a mental compulsion for the voter to

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             vote for the petitioner and would,  therefore,               fall  within  the  ambit  of  any  attempt  to               interfere   with  the  free  exercise  of   an               electoral right."               *     *     *     *      *    *               ".....the   publication  that   the   returned               candidate and others               in handbill Exhibit P. W. 4/3 amounted to  the               commission  of the corrupt practice  of  undue               influence as defined in section 123(2) of  the               Act."               *     *      *     *    *     *               "Having found that the returned candidate  and               others with his consent committed the  corrupt               practice- defined in clauses (1), (2), (3) and               (4)  of section 123 of the Act, I  accept  the               petition  and  declare  the  election  of  the               returned candidate to the Haryana  Legislative               Assembly from the.  Nub Assembly  constituency               to be void." The cornerstone of the election petition is the destribution of libellous handbills and making of slanderous speeches  by the  candidate  and  his companions  which  overflowed  mere personal invective into many areas of corrupt practice.  The Court was also satisfied with part of the charge of  bribery which it expressed thus :               "As a result of the above discussion I find it               proved that on the 14th of February 1972,  the               returned  candidate placed at the disposal  of               respondent  No.  3  Car No.  DLF  675  with  a               promise that these expense incurred in  hiring               the car and running it in connection with  the               election campaign of respondent No. 3 would be               met by the returned candidate." Thus  it  is seen that while the embittered  petitioner  has black-brushed   his  rival  with  many  brands  of   corrupt practices, he has failed to convince the Court on several of them.   His  counsel  gave  up many  of  the  charges  after evidence had been led.  Even the residue has not fully found favour with the High Court and the only substantial  grounds which have survived the screening process are two, viz : (a) the  ’automobile’  bribe;  and  (b)  the  dissemination   of prejudicial and prohibited appeals.  The limited controversy before us centres round the certitude of this fatal modicum. The  election  law invalidates a poll verdict  if  a  single illegal  adulterant has been admixed in the  campaign.   The law is jealously qualitative, not clumsily quantitative,  in its nullification test and two vices or twenty are the  same in the ultimate result. 650 A few prefatory observations are necessary before we discuss the  evidence, apply the law and reach our conclusions.   It is  of the first importance that elections must be free  and fair  if the democratic system is not to founder.  Not  long ago a Chief Justice of this Court, delivering the  Lajpatrai Memorial Lecture, observed:               "Untruths  before elections, during  elections               and  after elections seem to be too  prevalent               for a healthy political society."               He also tartly remarked in that speech:               "There  is always a danger of the  failure  of               democracy.    ’Remember’,  said  John   Adams,               ’remember,  democracy  never lasts  long.   It               soon  wastes,  exhausts  and  murders  itself.               There  never  was  a democracy  that  did  not

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             commit suicide.  We must realise that this  is               entirely true." The  Court is the conscience-keeper of the constituency,  as it  were, in the maintenance of the purity of  elections  to the  extent  they  are litigated in  Court.   Shah,  J.,  in Harcharan Singh’s Case (1) observed               "The primary purpose of the diverse provisions               of  the  election law which may appear  to  be               technical  is to safeguard the purity  of  the               election  process,  and the  Courts  will  not               ordinarily minimise their operation." We have therefore to insist that corrupt practices, such  as are  alleged in this case, are examined in the light of  the evidence with scrupulous care and merciless severity. However,  we have to remember another factor.   An  election once held is not to be treated in a light-hearted manner and defeated  candidates or disgruntled electors should not  get away  with it by filing election petitions on  unsubstantial grounds  and irresponsible evidence, thereby  introducing  a serious  element  of  uncertainty  in  the  verdict  already rendered  by the electorate.  An election is  a  politically sacred public act, not of one person or of one official, but of  the collective will of the whole  constituency.   Courts naturally  must  respect  this  public  expression  secretly written and show extreme reluctance to set aside or  declare void  an election which has already been held  unless  clear and  cogent  testimony compelling the Court  to  uphold  the corrupt  practice alleged against the returned candidate  is adduced.  Indeed election petitions where corrupt  practices are  imputed  must be regarded as proceedings  of  a  quasi- criminal  nature  wherein strict proof  is  necessary.   The burden  is  therefore heavy on him who assails  an  election which has been concluded. There are many who are cynical about the enforcement of  the election law, which is too moral for the pragmatic skills of the politicians when locked in pitched battles.  They regard these vices as (1) [1969] 1 SCA 138, 145. 651 inevitable   and  therefore  remain  indifferent  to   their prevalence.   Sydney  Harris’ statement in this  context  is apposite :               "Once  we  assuage our conscience  by  calling               something a necessary evil’, it begins to look               more  and  more necessary and  less  and  less               evil." For  this  very reason the Court has to be stern  so  as  to induce  in  the  candidates, the parties  and  workers  that temper  and truthfulness so appropriate to the  process  and not  bewail, as the Report of the Fifth General Election  in India (1971-72, issued by the Election Commission) does  (at p. 198 thereof) :               "But how can we expect that elections will  be               absolutely  and totally  corruption-free  when               the   whole  country  in  every   sphere   and               department of life and activity is plunged  in               the  ocean of corruption ? It  is  everybody’s               complaint that there is no business, trade  or               industry  where black-marketing or bribery  is               not   pracctised....  Remove   corruption   in               general  and corruption in election will be  a               thing of the past." The  charge  of  bribery has been made in  this  case  in  a peculiar  setting  and has been held proved in part  by  the learned  Judge.  Before going into the  principal  skein  of

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corrupt  practices wound round the alleged propaganda,  oral and  documentary, we may dispose of the lesser  but  equally lethal  episode  of bribe-giving. A glance at  the  communal composition  of the constituency and its behavioral  pattern is  necessary to appreciate this ground covered by issue  1. No part of Indian geography is a religious monolith and  Nuh is  no exception to this social diversity and communal  mix. The majority are Meo-muslims (converts from Rajputs carrying their  caste  and gothra memory into their  Islamic  genetic code  and  observing in life the clan habit) but  there  are also  Hindus including Harijans. The Harijans, according  to the  petitioner, traditionally vote for the Congress  except when  lured away by a fellow Harijan figuring as  candidate. To  wean  away Harijans from the Congress ballots  was  very much  to  the  appellant’s  interest  and  so  the  petition alleged, he exploited their communal pathology by setting up Sohanlal, Respondent 3, as a ghost candidate not to win  but to defeat. Human  homogenisation in elections, breaking down  religious barriers,  is  social  heroism unaccomplished  even  in  the communal  pluralism of the U.S.A. and the U. K. although  it is  exaggerated  by tradition in. India and hurts  it  more, being  a developing country. The political pity is that  the secular  and social objectives of our  Constitutional  order are  obfuscated by a system of mass electoral  participation where  separate electorates, written with the invisible  ink of life, are partially perpetuated by political  leaderships bent on shortcuts to power. The law should so develop as  to dis-induce communal-reli-gious appeal by the crypto-casteism of the candidature itself We say this not as a strange  evil of our society but as an inadequacy of our election life and law.  Newton D. Baker observes about the U. S. 652 situation  while  considering the harm of a  switch-over  to proportional representation :               "We have groups of all sorts and kinds  formed               around religious, racial, language, social and               other contentious distinctions.   Proportional               representation invites these groups to seek to               harden  and  intensify  their  differences  by               bringing them into political action where they               are  irrelevant,  if not disturbing.   A  wise               election  system would invite them  to  forget               these distracting prejudices." The 1st respondent’s case is that the appellant persuaded  a financially  incompetent Sohanlal-respondent No. 3-to  stand as candidate over-ruling his reluctance by offer of Rs.  125 and  promise of footing his campaign bill, in a bid to  skin away  the Harijan pro-Congress votes.  This was on  February 9,  1972.  Since the lower Court has rejected this  episode, we  too  ignore it.  But the official date  for  withdrawal, February  14,  found the hesitant Sohanlal  hovering  around retirement from an expensive context.  The 1st  respondent’s story  is  that  the appellant gave a shot  in  the  arm  by proffer of Rs. 1,000 and a car for use till the election was over.    This  stroke  of  bribery  continued  the   Harijan candidate  in the arena.  The finale of this shady  chapter, disbelieved  by the Court, is that a couple of  days  before the   actual   poll  the  appellant   purchased   Sohanlal’s retirement  and exhortation to his followers to support  the appellant  at a price of Rs. 2,000 paid on March  10,  1972. This facet of the case has been eliminated at the High Court level  and  need  not  detain us.   The  narrow  point  that survives  for our scrutiny as to whether the  appellant  did commit   the  corrupt  practice  under  s.  123(1)  of   the

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Representation of People Act, 1951 (the Act , for short), by placing  at  the  disposal of candidate  Respondent  3,  car D.L.F.  675 and promising him the hire charges  and  running expenses   thereof  with  a  view  to  his  continuance   as candidate,  the  ultimate gain being the  seduction  of  the Harijan electors away from the Congress candidate It  is  not  necessary  to  examine  whether  the   evidence justifies the finding that Sohanlal got the use of a car  at the  expense of the appellant.  We will assume that  is  so. But  it  is  not  every help by  a  candidate  to  a  fellow candidate  that constitutes corrupt practice.  Stich  finan- cial  aid must be to induce the latter not to withdraw  from the  section.  May be, a candidate may wish to fight but  do it so bloodlessly that he     may  not reach  his  potential supporters  and  if  his  effective  canvassing  is  in  the interests of another candidate (the electoral chemistry  has many  actions and reactions) then the latter may  invigorate his  campaigning  with funds or aid in kind,  not  for  non- withdrawal but for full-blooded electioneering.  To jack tip is  different  from preventing a jump down.  This is  not  a corrupt  practice under the law and so the key  question  is not whether a car was provided but whether the provision  of the car was to prod the candidate not to withdraw.  A close- up  of the evidence on this significant facet leaves  us  in serious  doubt about the sufficiency and reliability of  the proof. 653 From the evidence in this case it looks as if Sohanlal,  the third  respondent, is an indigent person and handicapped  by social backwardness.  Nevertheless he is needed as a  magnet to  polarise  all Harijan votes away from the cow  and  calf symbol.  It is a worthwhile reflection on the Sohanlal drama that   in  order  to  invest  elections  with  equality   of opportunity in a country of poverty, inexpensiveness must be stamped  on the campaigning process.  This may be  attempted in  many ways by adapting to Indian  conditions  experiences elsewhere,.   But  the  present  methodology  of  fixing  up candidates at the last minute as a product of many pressures makes  for more inputs than consultation with the  community in  the  concerned area, a sort of  informal  "primary"  and announcement  of the choice will ahead for the  constituency to  know  and  understand the candidate  likewise  if  Party cadres work constructively and continuously for solution  of peoples’  grievances  instead  of  going  into  election-eve campaigning  with all the sound and fury of hectic  pre-poll duel  to  win votes, the project will cost  less  and  vote- catching   stratagems  will  yield  poor  pay  off.    Large pecuniary lay-out in the business of power politics must  be arrested  if the system is not to sink.  Today, the  average Harijan,  like  Sohanlal, has as much chance of  winning  an election  as  a camel has of passing through the  eye  of  a needle.   Naturally he looks around for help.  Money  is  of key  importance if enormous sums must be spent to reach  the vast  electorate  to break down public  inertia  and  secure substantial  polling.  In such a background Rahim Khan  (RI) is  alleged  to  have prayed upon  Sohanlal’s  inability  to finance  his election by offering the sinews of war  thereby indirectly  deriving  good negative return  for  his  money. Sohan lal himself has backed a good part of this case,so far as  the  giving of a car is concerned.   Straight  from  the horse’s mouth, as it were, we have this :               "On  the  14th of February 1972,  Rahim  Khan,               Tayyab  Hussain, Faquira, Chet Ram  and  Yamin               Khan  came to me, and offered me money  and  a               car.  Rahim Khan paid Rs. 1,000 to Faquira for

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             expenses  on  the  car.   I  was  carrying  on                             propaganda for my election." On  the  crucial point whether the car (and all  found)  was given  to make him continue the contest there is silence  in chief-examination  and denial in cross-examination  although his  ambiguous  sympathies seem, if at all, to be  with  the Congress  candidate in the election case.  The testimony  of P.  W. 22 (Ram Kishan), P. W. 23 (Habib), P. W. 24  (Jaswant Singh) and R 3. W. 1 (Faquira) has been pressed into service in  this  connection.  The evidence of P. W. 22, 23  and  24 doe,,,,  not bear on the condition of non-withdrawal as  the basis for the supply of free transport R3 W. 1 swears :               "During  the  last  general  election  I   was               supporting  Rahim  Khan respondent. 20  or  25               days  before  polling  I  went  to  Sohan  Lal               respondent in the company of Rahim Khan, Badri               Parshad  respondent, Tayyab Hussain  and  Mauj               Khan.  Sohan Lal respondent said that although               he had stood for the election, lie was feeling               handicapped  on account of lack  of  financial               resources.   Rahim Khan told him not to  worry               inasmuch as he 654               (Rahim  Khan)  would  provide  him   necessary               :finance.   In my presence no money was  paid,               but Rahim Khan placed a car at the disposal of               Sohan Lal respondent.  Rahim Khan told me that               I should support Sohan Lal and that Rahim Khan               would   reimburse  me  for  all  expenses   in               connection with the car." Here also the vital element of inducement not to withdraw is absent.   Of course even regarding giving the car  there  is some evidence contra of the appellant and of Tayyab  Hussain (R3  W.  9).  But the crux of the matter  is  the  pecuniary pressure put on a candidate to persist in the candidature  ; this latter limb is unproven and not even formally found  by the  lower  Court.  The serious scrutiny of  law  and  facts expected  of election tribunals before unseating a  returned candidate is wanting in the High Court’s finding and we hold that, suspicions apart, the charge of bribing Sohanlal  into fighting  a  futile  battle has not  been  brought  home  as required by s. 123(1) of the Act.. At the last stages of the argument  before us Shri Sharma made a virtue  of  necessity and did not press the case of bribery. The  decisive and deadly chapter of the petition relates  to the multipointed propaganda violating the canons of election law  set  out in s. 123(2), (3) and (4).   Question  of  law about  the correct construction of the  relevant  provisions arise  but  the primary issue is one of fact.   Were  public meetings held on 9th and 10th of March maligning orally  and through  handbills  the  Congress  candidate  for  lack   of personal morals, for heathen and bohemian ways and for being a potential danger to good mussalmans ? Were pamphlets  like Ex.  P-3 made and distributed on or about March 9 and 10  by the  returned  candidate  and  his  agents,  describing  his Congress rival as a pork-eater and taker of virginities,  as a  coercive agent getting muslim graves dug up  and  forcing true muslims eat roast pig ? A  few phenomena appear in this case which deserve  judicial notice for the purpose of appreciating the evidence on  this branch  of  the  story  of  corrupt  practices.   Both   the contesting  parties, the appellant and the  1st  respondent, are  strong men with considerable hold on large  numbers  of people  in the constituency, as the polling result  reveals. Both  of them have been in and out of office  and  naturally

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the  bid  for  power would whet their  appetite.   The  wild allegations in the petition, if true, would suggest that the appellant  tried  many  methods  of  assuring  victory   for himself,  such  as setting up a Hindu  candidate  who  would carry  away the Hindu votes, a Harijan candidate  who  would wean away Harijan votes and the Muslim votes being attracted into  his count by painting his Congress rival a  kafir  and himself  a Muslim good and true.  At this stage it is  clear that  the theory of ex-communication set up in the  petition has  been  abandoned.  Likewise, bribery based  on  the  Jan Sangh candidate has also been dropped.  The supply of a  car as  an  inducement  not to withdraw  from  the  election  to Sohanlal  has  been upheld by the trial Court, but  we  have already expressed our view to the contrary. We are left ultimately with the story of the public meetings where  slanderous  speeches  were  made  and  of   libellous leaflets having been 655 distributed.  There is no doubt that tension had mounted and the  candidates  were frantic.  An order under  s.  144  Cr. P.C.  had been clamped down on the whole constituency and  a large  police  force was moving around to maintain  law  and order  in  the  whole area.   The  argument  of  appellant’s counsel  is that since meetings of five or more  persons  in public  places  had been prohibited, it  was  unlikely  that there would have been open violation in many villages by the appellant  himself,  a  former Deputy  Minister  and  Tayyab Hussain,  a  sitting Member of Parliament.   Nor  could  the police  have  been  so  insouciant  as  to  ignore  numerous breaches  of the ban on public meetings.  Equally strong  is the circumstance that had there been meetings in  contraven- tion  of  prohibitory  orders,  the  Congress  candidate,  a Cabinet Minister at the time of the election, would not have kept  quiet at all.  It is also note-worthy that s.  126  of the Act prohibits holding of public meetings within 48 hours of  the  close  of the poll.  We are  impressed  with  these circumstances  and would have unhesitatingly held as  unsafe the oral testimony in proof of public meetings.  However  we are  not  prepared to discredit outright  all  the  evidence about gatherings in the villages, where the appellant  spoke to  people, solely on the ground of the order under  s.  144 Cr.  P. C. What we see from the evidence is that there  were no  regular meetings prearranged and public.  It was more  a case  of the appellant running around from place  to  place, meeting  persons who gathered when he went to a  place,  his sitting on a cot and talking impromptu to the men who turned up within a short time and leaving the place after a  little while.   It  is  difficult to  describe  these  tiny  groups spontaneously  assembling and melting away after quarter  of an hour or so, as public meetings.  Technically they may  or may  not  be  breaches  of the  ban  order  but  such  minor liberties  are  not  infrequently taken by  both  sides  and winked  at  by  the  police,  lest  genuine   house-to-house propaganda  by  the candidates and their supporters  on  the very last day should be interfered with and tension mount up on  the ground that the authorities thwarted a  non-Congress candidate’s  canvassing.  Certainly we have to bear in  mind the  circumstances  mentioned  earlier  in  evaluating   the evidence  of  witnesses, giving the  benefit  of  reasonable doubt to the appellant. Many  witnesses examined in support of the 1st  respondent’s case  are  partisans,  being the  polling  agents,  counting agents of workers of the Congress candidate.  Their evidence has  naturally  to be viewed with  circumspection,  but  not dismissed outright [See Ambika Saran Singh v. Mahant Mahadev

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Nand  Giri(1)].  But more curious is the turn-coat  type  of witnesses  who  claimed  to be and often  were  the  polling agents, counting agents or workers of the appellant till the election was over, but, in the post-election period when the 1st  respondent’s  party had formed  a  Government,  quietly shifted  their  loyalty and gave evidence in  proof  of  the averments  in  the petition.  It is conceivable  that  these persons who had collaborated with the appellant in the  mal- practices  alleged  were possessed of the urge  to  unburden their  bosoms  of  the truth of  their  own  evil-doing  and hurried  into the witness to swear veraciously to what  took place actually.  But the more probable (1) 41 E.L.R.183 656 explanation would be that these swivel-chair witnesses  with India rubber consciences came under the influence of the 1st respondent  for invisible consideration and spoke  dubiously in  support  of their present patron.  Of course,  if  their evidence  is  intrinsically  sound, if  their  demeanour  is impressive  otherwise,  if the  incontrovertible  facts  and broad  probabilities  fit in with their  version  and  other disinterested testimony on the same point is forthcoming, we should  not disbelieve the case merely because some  tainted evidence is also placed on the record. In this view, we have to scan the oral evidence rather carefully, lest the verdict of the people at the polls should be nullified on  uncertain and dubious evidence. Counsel  for  the  appellant and, to some  extent,  the  1st respondent’s advocate also, read before us rulings galore as to   when  witnesses  should  be  believed  and  when   not. Precedents on legal propositions are useful and binding, but the  variety of circumstances and peculiar features of  each case cannot be identical with those in another and judgement of  Courts  on  when  and why a  certain  witness  has  been accepted or rejected can hardly serve as binding  decisions, Little assistance can therefore be derived from case law  on credibility.   There are no legal litmus tests  to  discover the  honest  conscience of a human being and the  canons  of truthfulness  of  oral evidence sans  commonsense,  are  but misleading  dogmas.  The golden rule is, as  George  Bernard Shaw  tells  us, that there are no golden rules.   For  this reason we are not referring to the many rulings cited before us.   But  we certainly inform ourselves  with  the  general touchstones of reliability.  The fact that we are not  ready to act on the testimony of a person does not mean that he is a  perjurer.  It merely means that on such testimony  it  is not safe to conclude in a quasi-criminal proceeding that the ’corrupt  pratice’ has been proved beyond reasonable  doubt. The whole constituency is silently present before us it must be remembered (See observations of Dua I, J. in I.L.R.  1969 I Punj 625.) We must emphasize the danger of believing at its face  value oral  evidence  in an election case without the  backing  of sure  circumstances  or indubitable documents.  It  must  be remembered  that corrupt practices may perhaps be proved  by hiring  half-a  dozen witnesses apparently  respectable  and disinterested, to speak to short of simple episodes such  as that a small village meeting took place where the candidates accused  his  rival of personal vices.  There  is  no  x-ray whereby the dishonesty of the story can be established  and, if the Court were gullible enough to gulp such oral versions and  invalidate  elections, a new menace  to  our  electoral system  would  have  been  invented  through  the   judicial apparatus.  We regard it as extremely unsafe, in the present climate  of kilkennycat election competitions  and  partisan

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witnesses  wearing  robes of veracity to upturn a  hard  won electoral  victory merely because lip service to  a  corrupt practice has been rendered by some sanctimonious  witnesses. The   Court  must  look  for  serious   assurance,   untying circumstances  or  unimpeachable documents to  uphold  grave charges  of corrupt practices which might not merely  cancel the  election  result, but extinguish many  a  man’s  public life. 657 With  these  background observations we  shall  analyse  the evidence adduced on both sides.  We are not deterred by  the negative evidence on the side of the appellant to the effect that  within the ken of the witnesses concerned  no  meeting took  place or no distribution of pamphlets had  been  made. Not only can such evidence be procured but it is  hopelessly inconclusive  in  the  face of  definite  and  positive  and probable  testimony, if any to the contrary.  Therefore,  we have to search for the evidence in support of the  petition, its reliability arid sufficiency. Shri Bindra, for the appellant, made a blistering attack  on the learned Judge’s wrong approach to testimonial renegades. For, strategic documents like Ex P2/P3 and P5/P6 and  lethal circumstances  like  addressing  slandering  speeches,   are sought  to  be  proved by the  1st  respondent  through  the polling  agents and other erstwhile activists of the  appel- lant during the election.  The Court somehow thought that  a trace  of treachery was the signature of truth and that  the post  election  support  to the defeated  candidate  in  the witness  box,  speaking to collaboration with  there  turned candidate in pre-election corrupt practices, makes assurance doubly  sure.  We cannot understand how  tergiversation  can become  a virtue.  Defection in politics is becoming a  per- vasive  vice and its projection into election cases must  be frowned  upon  by Courts.  It scandalises us that  a  person should  be  the  campaign  agent  of  one  candidate  during elections  and  should shift loyalties during  the  election case  to  undo the victory he contributed  to  attain.   The price of post-election swivelling must slump.  It is naivete to pin faith on such probative circus and it is necessary to discourage such defection in the interests of the purity  of the  Court process.  Except in special  circumstances  which are not present in the present case we decline to  dismantle an electoral result by the technique of turn coat testimony. Here  we may clear the ground by removing  Sohanlal’s  near- confessional  evidence from the area of reliable  testimony. ’Whatever   his  role  before  the  election,  his   written statement  and  evidence  smack  of  the  1st   respondent’s vocabulary  and  either  he  is a fool or  a  knave  or  too truthful to be credible.  For he admits receiving a car  and expenses from the appellant, pleads to a mood of  withdrawal and  in  evidence lends lip service to distribution  of  the objectionable handbills and to a last minute withdrawal from the election at the instance of the appellant.  All that  we need  say  is  that  his word does  not  have  the  ring  of reliability and we leave it at that. Yet  another aspect of the case may be dealt with  here,  to clear  the  deck for a consideration of the  serious  issues that survive.  Running right through the war and woof of the petitioner’s   averments  and  evidence  and  haunting   the political life of the petitioner for long years is a sitting Member of Parliament on the Congress benches, R3 W9,  Tayyab Hussain.  He is charged with visiting village after  village with  the appellant an  ex- Congress man and now the  bitter opponent  of  the  Congress  candidate  to  deliver  vicious personal attacks on the petitioner, a Minister belonging  to

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his  own  Party.  The Mec-Muslims had the father  of  Tayyab Hussain  as  their  leader and  after  him,  Tayyab  Hussain himself apparently a political family claiming 658 virtually  hereditary hegemony over a small community.   The arrival  of  an  educated Meo like  the  petitioner,  a  law graduate, on the political scene was a potential threat to a vested interest.  We find from the evidence personal rivalry between  the two writ large, Tayyab Hussain being  ready  to change  Party  and ally with enemies for personal  ends  and getting suspended from the Congress in the bargain.  He  has been  a Deputy Minister once and has tasted power.   May  be the petitioner’s political presence is a spectre for him and so  he may be prone to run that rival down.  Even so,  there are  boundaries to his hostile operations.  Let us  look  at him  as in 1972.  He knows that anti-Party  activities  will imperil  his Congress future.  He has vital stakes  in  that party, being a sitting member of Parliament with four  years to  go.   He was Chairman of the Wakf Board  for  which  his party  position must have partly accounted.  The Party  High Command was so near Nuh that had he acted publicly he  would have been pulled up instantly.  It is difficult to  believe, even if the man was an adventurist master in the art of  the possible,  that this M. P. would have openly and  stridently campaigned  in  the company of the  anti-Congress  candidate With vituperative vigour.  His heart may have been with, the appellant Rahim Khan but he could not have so lost his  head as  to strike publicly at Khurshid Ahmed.  The heap of  oral evidence  adduced in the case does not persuade us  to  hold with  the  1st  respondent on the public  doings  of  R3  W9 hostile to his candidature. Now  let  us  get to the meat of the  matter.   For  by  all accounts the piece de resistance is the pamphlet part of the case.   A  manouvre to malign was resorted  to  at  critical stage  of the poll battle, according to the 1st  respondent. Although there is a volume of oral testimony regarding small but  numerous whistle-stop meetings held in street  corners, common  on  election eve everywhere, we feel  it  unsafe  to stake  a  verdict  of  corrupt  practice  on  such   dubious material.  By passing these oral adventures in vilification, we  proceed  to turn the spotlight on the  handbills,  their authorship, existence, implications and circulation.  We may straightway   state  that  once  we  grant   this   pamphlet publicity,  it  will depress the victim’s  chances  and  may amount  to an appeal to religion.  Both the  candidates  are Muslims but one is less muslim than the other almost a kafir because he eats pork.  The other imputations in the handbill relate to character assassination and undue influence  which we will refer to presently. We  may as well set out here Ex.  P. W. 413,  the  offending handbill                    "INTRODUCTION OF CH.KHURSHID AHMED AND                           SOME QUESTIONS TO HIM.               1.  You  being a Muslim got dug a grave  of  a               Mohammadan  and got the dead body out  due  to               your  personal enmity, which is against  Islam               and its Shariat.  Do you still claim  yourself               to be a Muslim ?               2.  Since you have become a Minister you  have               taken bribery from the public for each work of               the public.  Do you call this public service ? 659               3.  You  being Health  Minister  violated  the               modesty  of numerous lady doctors  and  nurses               and till they did not surrender their body  to

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             your  lust you did not do any of their  works.               Do  you want to be elected again so  that  you               can continue your debauchery               4. You while being a Minister got some Muslims               of  village Utawad arrested on allegations  of               cow slaughter and made them to eat meat of the               pig.Do  you want to be elected again  so  that               you  may be able to make all Muslims  eat  the               meat of the pig ?               Khurshid Sahib  public wants to tell you  that               you  yourself have become a ’Kafir’ by  eating               the meat of the pig. but the remaining muslims               do not want to become ’Kafirs’ at your  hands.               Public  should pay attention and  should  give               crushing  defeat  to  such a  ’Kafir’.   I  am               rightly entitled to your vote.                                           Rahim Khan." Appeal  to religion, in this context, is influencing  Muslim voters to prefer the appellant for his authentic Islamic way of  life  and to repel the 1st respondent  for  his  heathen habits.   A  plate for pork is the main  un-Islamic  conduct imputed to the 1st respondent.  Is it appeal to religion  if voters are told that a candidate consumes unorthodox food  ? That  a brahmin eats beef, that a muslim eats pork,  that  a Jain  eats  at  night ? Should the law  lend  itself,  in  a secular  State, to the little susceptibilities  of  orthodox tenets  ? If we push it for, particularly in religions  like Hinduism  and  Islam which contain  prescriptions  regarding dress,  bath, shave, ablutions and diet,  many  difficulties will  arise.  Eating garlic, radish and uncooked onions  and even the flesh of cattle killed without invocation of  Allah is un-Islamic (See "Who is a Muslim" by G. Ghous Ansari, pp. 39-42).   Can you set aside an election because  the  losing candidate was described as eating raw onion ? This situation becomes  worse  in the Hindu fold.  It is strange  law  that does  not  quarrel  with an appeal not to  vote  for  a  man because he does not eat vitamins but nullifies the  election for  appeal based on radish or pig’s flesh.  True, the  vice is  injection  of  religion into  politics  and  playing  up fanaticism to distract franchise.  But the back lash of this provision  is a legal enquiry into what is the basic  faith, not its frills and filigrees. it has been held by the Madras and  the Kerala High Courts (71 I.C. 65 and 1971 K.L.T.  68- Imbichi Koya Thangal v. Ahamed Koya) that the credal core to identify  a Muslim as Muslim is not food and dress  but  the triune items of One God, Universal Brotherhood and the Great Prophet Mahomet, being the last of the Prophets (although on this  last limb there is some dispute).  No charge on  these three aspects has been made in the handbills.  Thus apostasy has  not been alleged.  Nevertheless, having regard  to  the ruling in Kultar Singh v. Mukhtiar Singh(1) and the  popular sentiment  tied up rightly or wrongly with Muslim  religion, we  do not disagree with the view of the High Court and  the stand  of both counsel.  The secular texture of the  law  is primarily  the legislator’s responsibility  although  Caesar and God should (1) [1964] 7 S.C.R. 790. 660 not get mixed up in areas of food, clothing and housing  and other temporal matters not inherently interlinked with man’s communion  with  the Supreme.  What is  appeal  to  religion depends on time and circumstance, the ethos of a  community, the  bearing  of the deviation on the  cardinal  tenets  and other  variables.   To confound communal passion  and  crude bigotry  with  religion  is  to  sanctify  in  law  what  is

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irreligion in fact.  It is good to remind ourselves of Roman Rolland on Ramakrishna, quoted in Nehru’s Autobiography               "..many souls who are or who believe they  are               free  from  all religious belief, but  who  in               reality  live  immersed in a  state  of  super               consciousness,  which  they  term   Socialism,               Communism,  Humanitarianism,  Nationalism  and               even  Rationalism.   It  is  the  quality   of               thought  and not its object  which  determines               its source and allows us to decide whether  or               not  it emanates from religion.  If  it  turns               fearlessly towards the search for truth at all               costs  with single-minded  sincerity  prepared               for any sacrifice, I should call it  religious               ; for it presupposes faith in an end to  human               effort  higher  than  the  life  of   existing                             society,  and  even  higher than  the  life  of               humanity as a whole.  Scepticism itself,  when               it proceeds from vigorous natures true to  the               core, when it is an expression of strength and               not  of  weakness, joins in the march  of  the               Grand Army of the religious Soul." The Court must avoid over-solicitude for  ultra-orthodoxies, law, being a secular social process.  It is curious that the Election  Commission,  in its Report on  the  Fifth  General Election  in India (1971-72) refers to objections  regarding the  symbol  ’Cow  and  Calf’  on  the  score  of  religious associations  from  eminent persons and in  overruling  them cites  George  Barnard  Shaw  (Everybody’s  Political   What What’s? who said               "The   apparent  multiplication  of  Gods   is               bewildering at the first glance ; but you soon               discover  that  they are all the same  God  in               different  aspects  and  functions  and   even               sexes.  There is always one uttermost God  who               defies  personification.  This makes  Hinduism               the  most  tolerant  religion  in  the  world,               because its one transcendent God includes  all               possible  Gods, from elephant Gods, bird  Gods               and snake Gods right upto the great Trinity of               Brahma, Vishnu and Shiva, which makes room for               the Virgin Mary and modern feminism by  making               Shiva  a  woman as well as a man.   Christ  is               there as Krishna, who might also be  Dionysos.               In  fact Hinduism is so elastic and so  subtle               that the profoundest Methodist and the crudest               idolator are equally at home in it." And  yet  the  electoral law  construes  religion  based  on apparel,  approved  food  and other  externals.   How  about appeal   to  anti-religion  ?  That  one  is  a  Royist   or rationalist  and the rival a religious soul and  too  other- wordly  ? Rabid Communalism is the real enemy.  Let that  be identified  by law.  A second look at this labyrinth of  law is  in  keeping  with changing times.   The  ’voice  in  the wilderness’  words  of this Court in  Ambika  Saran  Singh’s Case(Supra) at p. 181 bear repetition 661               "Indian   leadership   has   long    condemned               electoral campaigns on the lines of caste  and               community   as   being  destructive   of   the               country’s  integration  and  the  concept   of               secular  democracy which is the basis  of  our               Constitution.   It is this condemnation  which               is  reflected  in s. 123(3) of  the  Act.   In

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             spite of the repeated condemnation, experience               has   shown  that  where  there  is   such   a               constituency  it  has been  unfortunately  too               tempting  for a candidate to resist  appealing               to  sectional elements to cast their votes  on               caste basis." Every  Party silently says "He who has not sinned,  let  him cast the first stone " For the purpose of this case, suffice it  to say both sides, agree that Ex.  P. W. 4/3 appeals  to religion. Of  course,  if Ex.  P. W. 4/3 had been  circulated  it  did contain  personal  vilification like "womanizing"  which  in most countries and among the current generation is a vicious personal imputation under s. 123(4) of the Act.  So we  will ascertain whether on March 9 and 10, handbills like Ex.   P. W. 4/3 had been published by Rahim Khan and his agents.  The rival  version is that the appellant was innocent  of  these leaflets which must have been concocted after defeat by  the 1st respondent for demolishing the election through Court. Many  materials have been marshalled to make out  factum  of pamphlet  publicity.  The granite foundation for it is  laid by Ex.  P. 18, an application to the Deputy Commissioner  of the  District  to  which were annexed  Ex.   P.  W.  4/3-4-5 (copies  of  handbills) and Ex.  P. 19  a  similar  petition despatched by post to the Chief Electoral Officer along with Ex.  P. 20 and 21 handbills.  P. W. 54 Usman has sworn  that he had got a few handbills (the offending ones) on March  10 from one Nihal Khan and made them over to the 1st respondent P.  W.  76.   Maybe, this careerist who  has  been  changing parties,  has been a dismissed sarpanch and is  otherwise  a partisan  and may not by myself embolden us to  believe  the leaflet story.  But Ex.P.18 was undoubtedly presented to the Deputy  Commissioner  on  March 10, 1972 in  his  office  at Gurgaon.  His endorsement and that of his General  Assistant P.  W.  4  of  even date lend strength  to  the  case.   The petition has had a natural journey into the Election  Office under the Deputy Commissioner. Thus quite a few officers and official entries support the presence of Ex.  P. 18 and  the accompanying handbills on March 10.  The smoke of  suspicion about  the records and the obliging unveracity of  the  high officials, glibly alleged, have no substance.  We have care- fully  examined  the criticism levelled by Shri  Bindra  and considered  the possibility of antedating but are  satisfied that  the  hypothesis of conspiracy for fabrication  is  too fantastic to merit acceptance and the nonexamination of  the Deputy Commissioner, in addition to his General Assistant P. W.  4,  does not militate against the acceptability  of  the case.   The endorsement on Ex.  P. 18, relevant under s.  35 of  the Evidence Act, clinches the issue, read in the  light of  P. W. 4’s evidence.  Ex.  P. 19, a  similar  application was  also  presumably  posted on the  10th  March.   It  was received  on 13th March, which is probable since 12th was  a Sunday.  The suggested interpolation in the register kept in 20-185 Sup.  CI/75 662 the  office of the Chief Electoral Officer is a  mirage.  it has no meaning in the absence of cross-examination.  A close took at Ex.  P. 19 and Ex.  P. W. 2/2 dispels doubts and the entries corroborate P. W. 2’s testimony as well as the  fact of  the  leaflets having been in existence on  the  10th  of March.   Let us probe the likelihood of a later  fake.   The petitioner had no reason to be desperate about a defeat.  In fact  the lead of the appellant was narrow.  Only after  the result  was  declared  on  12th could  he  have  thought  of creating evidence to undo the election.  Both Ex.  P. 18 and

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Ex.   P.  19 became inexplicable on that basis  unless  many public  documents  and public servants  have  tampered  with truth  in a chain conspiracy too nefarious to  be  credible. Some  officers  may oblige but it is unfair to  impute  such gross  misconduct  to responsible men  and  flimsy  fancies. Other  minor attempts to cavil at the evidence on this  part of  the case merit little serious study.  We  broadly  agree with the High Court that the arguments of the appellant  for rejection  of Ex.  P. 18 and P. 19 and  connected  documents cannot be contemplated without importing criminal conspiracy for which there is no foundation and they must be  repelled. However we will advert to them briefly. We  have earlier indicated our dissent from the  High  Court when  it  trusts P. W.’s 12, 13 , 20 and 23 as  reliable  on leaflet  distribution because they were pre-election  agents of the opposite party.  Tile Court observes               "The evidence above set out under this head is               fully  acceptable  to  me.   I  am   specially               impressed by the depositions of Din Mohd.  (P.               W.  12), Roshan (P.  W. 13), Mohd.   Khan  (P.               W.  20)  and Habib (P.  W. 23).  All  of  them               worked  for the returned candidate during  the               election and there is no reason why they would               make false depositions against the interest of               the returned candidate." Our  credibility sense is sceptical of this evaluation.   We disapprove  of  this method and approach  in  assessment  of evidence.   Even so, let us go into the major criticisms  of the  1st  respondent’s  case.   We  are  not  blind  to  the possibility  of  executive  officers  designing  to   oblige Ministers  in elections as happened in Ambika Saran  Singh’s Case(Supra).   Maybe, there is some embarrassment  for  weak officials when sitting Ministers are candidates but what can be  done  about it ? We have appreciated the  evidence  with this  factor  also  in mind.  However,  the  many  may  be’s suggested   by  Shri  Bindra  to  disbelieve  the   official documents  are  ingenious but the cross-examination  of  the witnesses is innocent of them. The appellant had applied, under Exhibit R. 1 W. 21/1 to the Deputy Commissioner for a copy of the entry in the  register of  Miscellaneous  Branch with regard to  election  posters, i.e. handbills made mention of in the election petition.  He received  a reply (Exhibit R.1/A) that no such  posters  had been  received  in the Miscellaneous Branch  of  the  Deputy Commissioner’s  office and therefore the question  of  their entry  in the register did not arise at all and in  fact  no such register had 663 been  maintained in the Miscellaneous Branch.  Actually  the more  important document for which a copy should  have  been applied for was the letter Exhibit P. 18 which was mentioned in the List of Reliance filed along with the petition.   Nor is   it  correct  to  say  that  the  returned   candidate’s application  was comprehensive one.  He confined himself  to the   Miscellaneous   Branch   Register   in   the    Deputy Commissioner’s office.  What is more prevaricatory,  counsel for  the appellant showed us a certified copy of Exhibit  P. 18  which his client had got from the Deputy  Commissioner’s office  long before the written statement was filed and  yet he  pleaded  there in ignorance of its existence.   We  have examined  this  case  from  every  angle  possible  and  are satisfied  that  Exhibits  R1/A  is  of  little  service  in debunking Exhibit P. 18 and the leaflets accompanying it. Repeated  criticism was made by Shri Bindra that the  Deputy Commissioner  was the Deputy Secretary in the Department  of

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which the 1st respondent was the Minister and that therefore he  was  prone  to  help  the  latter.   Counsel   contended vehemently  that officers are liable to be  pressurised  and when  a whole election turns on documents in the custody  or writing  of  officials, free and fair  elections  and  their survival  through election petitions become precarious.   He drew  our attention to the observations of Grover, J. in  P. R. Belagali v. B. D. Jatti(1) which make a vain echo in  the present case.  The learned Judge there observed :               Free   and   fair  elections  are   the   very               foundation of democratic institutions and just               as  it is said that justice must not  only  be               done but must also seem to be done,  similarly               elections  should  not  only  be  fairly   and               properly  held but should also seem to  be  so               conducted  as  to inspire  confidence  in  the               minds of the electors that everything has been               above  board and has been done to ensure  free               elections.   It  will  be a  sad  day  in  the               history of our country when the police and the               government officers create even :an impression               that  they are interfering for the benefit  of               one   or   the  other  candidate.    This   is               particularly  so if a candidate is holding  an               important   position   or   assignment    like               respondent No.1, who at the material time  was               a Minister in the State." However,  these observations, pertinent as they are  in  the circumstances of that case-and guidelines as they should  be for Government to follow-do not detract from the reliability of the official records relating to Exhibits P. 18 and P. 19 or  the acceptability of the General  Assistant’s  evidence. It is true that the Deputy Commissioner could well have been examined  by the Court, particularly when his plea was  only for  a  postponement by two days on account  of  high  blood pressure  and his evidence would have been  of  considerable assistance to the Court in arriving at the truth.  But  this omission on the party of the Court, avoidable though it was, has  not  affected materially the evidentiary value  of  the documents and we are prepared to repose confidence in them. 664 Considerable criticism about P. W. 54 Usman was levelled, on a,.  general ground based on non-mention of him either as  a source of information or as part of particulars.  Of course, his name was mentioned in the list of witnesses but that was in  September, 1972.  We are not inclined to the  view  that the  name  of  every  witness should  be  mentioned  in  the particulars  except where his name becomes a necessary  item of particulars.  Shri Bindra analysed the various  witnesses including  P..W.  54, Usman under  a  microscope,  dissected their  evidence  in the  crucible  of  pleading-particulars- information  source  with  reference  to  villages,   public meetings,  pamphlet  distribution  and  the  like.   We  are satisfied  that the High Court’s approach is right  and  the hyper-technical  analysis resorted to by counsel should  not be  pushed  to the point of defeating justice.   No  corrupt practice  can be established if processual  impediments  are heaped up against the credibility of witnesses.  Nor can any petitioner  go  into  such  minutiae as  the  names  of  all witnesses even at the time of election petition is prepared. Neither  S. 87 nor even S. 83 nor even rule 94A and Form  25 require this drastic attitude.  Rule 12, framed by the  High Court for the trial of election petitions, it is true,  does require  the  source of information to be mentioned  at  the earliest stage and it is a wholesome rule, to prevent after-

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thoughts.   But  every witness need not be  mentioned  as  a source  and  every source inform and need  not  be  examined necessarily.  Whether the omission to do so in a given  case reflects  on the credibility of the evidence depends on  the facts  and  circumstances of the case.  It  depends  on  the overall  circumstances and the fairness of the  trial.   The observations  in Ambika Saran Singh’s Case(Supra) at P.  190 are apposite :               "The question as to the extent of  particulars               which  the Court would demand depends  on  the               circumstances of each case, the nature of  the               charge alleged and the quality and reliability               of evidence before it." While the Court must be careful to insist that the means  of knowledge  are  mentioned right in the  beginning  to  avoid convenient  embellishments  and  irresponsible  charges,  it should  not  stifle good and reliable  testimony  or  thwart proof   of  corrupt  practices  by  the  technicalities   Of procedure.   We agree with the observations made in  Balwant Singh  v.  Lakshmi  Narain(1)  and  are  not  deterred  from considering  the evidence of P. W. 54 and  others  similarly circumstanced.   No  prejudice on account of  deficiency  in particulars is made out.  We have already. indicated that we would  not be prepared to base our conclusion solely on  the testimony  of such a witness as P. W. 54, but that does  not mean  that  we  should  blackout  all  evidence  where   the witnesses are liable to some criticism and not consider such evidence   even   though  there  are   other   reliable   or incontrovertible  materials  which  lend  assurance  to  its credibility. The  other  point  made is that there is  no  entry  in  the register maintained in the office of the Deputy Commissioner about Exhibit P.-18 (1) 22 E.L.R. 273. 665 This is not correct because, in a sense, the Election Branch is  also part of the Deputy Commissioner’s Office and  there is an entry in the register there.  The suggestion that  the Deputy  Commissioner succumbed to the petitioner’s  pressure and antedated Ex.  P. 18 is difficult to digest.   Similarly the  suspicion sought to be raised about Register P. W.  2/2 kept  in the Chief Electoral Officer’s office on  the  basis that  there  are two entries bearing serial number  5072  is unsound.  The entry with which we are concerned is 5072A and this  is  not unusual when by mistake a  clerk  has  written identical  figures  for two entries.  Moreover there  is  no cross-examination on this point and in the absence of cross- examination giving an opportunity to the witness to  explain the  circumstances from which an inference is sought  to  be drawn,  no  such  inference-.particularly  of  forgery   and publication of documents can be permitted to be raised. A rather trivial argument has been made that if a letter had been sent to Chandigarh on March, 10, the postal expenses of a  few paise should have been entered in the return  of  the election expenses.  Admittedly such an entry does not find a place  in  the  return.  For one thing,  the  amount  is  so negligible that its non-mention means nothing.  For another, it  is difficult to accept the plea that this candidate  who was a Cabinet Minister and was locked in bitter battle  with a  strong opponent in a do-or-die Struggle would have  spent only  a mail sum of over Rs. 4,000.  It is a notorious  fact that  huge  sums  of money are  lavished  by  candidates  on election,  thus  closing  the door for  ordinary  people  to contest  democratic  elections.   The  point  is  that  when suspiciously  small sums are returned as election  expenses,

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no  machinery to investigate and take action is  found  with the result that return of election expenses becomes an  idle ritual  and not an effective check.  If parties  pour  funds for  campaigning  the law is silent and helpless.   This  is certainly  a  matter for the Election Law to  consider.   It must  make  provision deterrent enough-so as to  enable  the small man to negotiate with elective opportunities. Even  at  this  stage we may notice  that  the  handbill  in question  does  not  contain the name  of  the  printer  and publisher   although   the   election   law   so   requires. Unfortunately when such printed material is circulated there is no agency of the law which takes prompt action after  due investigation, with the result that no printer or  candidate or other propagandist daring elections bothers about the law and  he  is able successfully to spread  scandal  without  a trace of the source, knowing that nothing will happen  until long  after  the election, when in a  burdensome  litigation this question is raised.  Timely enforcement is as important to the rule of the law as the making of legislation. We may conclude by holding that we accept Exhibits P. 18 and P.  19 as genuine and concomitantly find that the  handbills containing  injurious  statements were in  existence  on  or before the 10th of March.  The only question that remains is whether  a nexus is established between these handbills  and the appellant and the factum of their prepoll circulation by him   or  his  agents  is  proved.   Without   this   latter requirement  being  made  out, mere leaflets  do  not  spell invalidation. 666 Once   we   find  that  Exbits   P.18  and  P.19   are   not fabrications.ante-dated  or  planted in the offices  of  the Deputy Commissioner and the Chief Electoral Officer  bearing endorsements  and entries, involving in the process a  chain of officials willing to tamper with public records, we  have to  seek  their  probable author.   The  appellant’s  cross- examination of the witnesses who proved the handbills merely coquetted   with  speculative  possibilities  and   shifting suggestions without putting forward a credible  alternative, explaining  their presence around March 10.  The  handbills, purport to be issued by Rahim Khan and the motive for him to do  so  is strong.  After all, the evidence  discloses  that there  were allegations in the Haryana Assembly against  the first respondent as a womanizer and in fact there was a cow- slaughter  case  and  dis-interring of a  muslim  grave  and allegations of the hand of the first respondent behind these doings.  Quite possibly capitalising on these straws in  the wind,  the appellant who was fitting his opponent hard  made an  attack  involving personal imputations circulated  by  a leaflet  engagingly presented as a string of questions  with answers self-evident and involving appeal to ’religion’  not even thinly concealed.  Since a number of handbills had come into  the  possession of the first respondent  on  the  10th which lie forwarded to the two officials along with Exhibits P.  18  and  P.  19,  the  circumstances  be  speak.   prior circulation.   The  question  is  whether  Rahim  Khan,  the appellant,  has  been directly shown to be linked  with  it. One  cannot presume such an important ingredient  against  a returned  candidate  unless the sure facts compel.   In  the present case some clever manouvres have been made by the 1st respondent  to  connect the appellant  with  the  handbills. Courts  must be astute enough to discourage  over-cleverness of  parties and decline to rely on materials  which  perhaps may  be true but bear the stamp of shadiness on their  face. For  instance, we have Exhibit P. 5 a note written by P.  W. 21  Din Mohammad on the reverse of Exhibit P. 6, a  copy  of

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the  offending  handbill, Exhibit P.W. 4/3.  P.W.  21  is  a polling  agent  of  the returned  candidate  but  swears  in support  of the defeated candidate in a plausible  way.   He states on oath that Exhibit P. 6 reached his hands on  March 11, when it was being distributed in his village.  While  in the polling station he made a note on the reverse of Exhibit P. 6 Which runs : "Shri Samad Khanji, Very few voters are coming from your village.  The time left is short.  Have the voters sent quickly. Nangal Shahpur.                            Din Mohd.                                       Dated, the 11-3-1972" He  wants  us  to believe that finding that  the  voters  of Nangal Shahpur had not turned out he sent this note to Samad Khan, a.-worker of the returned candidate.  But how did this P. 5 get back,into the hands of Din.  Mohd, while it  should normally  have  been with Samad Khan ? To fill up  this  gap P.W.  75,  Sharif Khan is pressed into service.   He  has  a story  that one Subhan Khan delivered it to him and lie,  in turn,  gave  it  to the advocate of the  petitioner  in  the course of the 667 trial  of  the case.  How can Exhibit P.6with  the  valuable endorsement Exhibit P. 5, move to and from Subhan Khan  (not examined)  to  Sharif  Khan,  P.W. 75  ?  The  obliging  Din Mohammad, who had come under the spell of the 1st respondent must have made this telltale endorsement during the pendency of  the  case and the document itself is kept  back  till  a surprise  is sprung when P.W. 21 is in the  witness  box-for too  unfair  for its to place reliance.  One  lie  leads  to another  till  a blind alley of  improbability  is  reached. Another Din Mohammad, P.W. 12, who also was a polling  agent of  the returned candidate has turned turtle to support  the petitioner  during  the  case by producing  a  copy  of  the handbill  and  a letter Exhibit P. 11/1,  addressed  to  one Roshan  of  Mewli village.  This letter, Exhibit  P.W.  11/1 purports  to  be a confidential circular by  the  appellant, Rahim  Khan,  requesting that the handbills  be  distributed discreetly among ’Muslim brethren’ eschewing ’the workers of the opposite party’.  This letter, it is said, was addressed to  Roshan but was not delivered to him directly by P.W.  12 since  the  former was not in his house.  The tale  told  by P.W.  12  further  is that he made an  endorsement  on  this letter  (separately marked as P.W. 11/2) requesting  Roshan, P.W.  13, to act on the letter.  What follows is still  more strange.  Roshan, P.W. 13, claims to have received P.W.  11/ 1  with the note Exhibit P.W. 11/2 and fifty handbills.   He delivered  them  to  P.W. 11 Ibrahim, some  days  after  the polling, although this Ibrahim, P.W. 11, is a worker in  the opposite   camp.    The  whole  story  sounds   absurd   and overworked, difficult to be accepted. Another adventurist piece of documentary evidence is Exhibit P.  3  with  the endorsement Exhibit P. 2  on  its  reverse. Mohammad Khan, P. W. 20, was a polling agent of the returned candidate and now with easy conscience goes over to  testify in support of the 1st respondent. He alleges that Exhibit P. 3  which is a copy of the circular letter Exhibit P. W.  11/ 1,  together  with  some of  the  offending  handbills,  was received  through one Raj Khan and that he distributed  them in  the  village.   For this reason he  must  be  guilty  of abetting  corrupt  practice, apart from being  a  turn-coat. But  what  startles us is that P. W. 20 returns  the  letter Exhibit  P.  3 to Raj Khan after making Exhibit  P.  2  note thereon, addressed to the appellant. it reads               "Ch.  Rahim Khanji,

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             I  have  received the  handbills  through  Raj               Khan.  I shall distribute them properly.   You               have  not  sent  me the  polling  agent  forms               although  you had told me you would.   Arrange               to have them sent at once.                                      Mohd. Khan                                       9-3-1972" Surprisingly enough Raj Khan does not deliver the letter  to the  addressee Rahim Khan but shows it to Sharif Khan P.  W. 75.  The letter asks for it but Raj Khan seemingly  faithful refuses  to give it.  Nevertheless this Raj Khan  leaves  it outside and goes inside to get a 668 cup  of tea for P. W. 75.  When his back is turned, the  man with  little scruples, P. W. 75, abstracts this  letter  and Raj Khan never bothers about the loss.  The tortuous  course of  Exhibit P. 3 is too true to be credible.  There is  some more oral evidence of this devalued class.  We do not  think we  can  base  our conclusions safely on  salvaged  bits  of testimony of this contaminated sort. There is also oral evidence identifying the signature of the returned  candidate  on  Exhibits  P.  3  and  P.  W.  11/1, particularly  in the deposition of Habib, P. W. 23.  He  has not  spoken to his familiarity with the handwriting  of  the appellant.  Opinion evidence is hearsay and becomes relevant only if the condition laid down in s. 47 of the Evidence Act is first proved.  There is some conflict of judicial opinion on  this matter, but we need not resolve it  here,  because, although there is close resemblance between the signature of Rahim  Khan on admitted documents and that in Exhibits P.  3 and  P.  W. 11 / 1, we do not wish to  hazard  a  conclusion based on dubious evidence or lay comparison of signatures by Courts.  In these circumstances, we have to search for other evidence,  if  any, in proof of circulation of  the  printed handbills by the returned candidate or with his consent. Many villages have been mentioned, where meetings were  held and handbills released, but the trial Court has played safe, if  we  may say so, rightly and refused to act  on  evidence unclear  and uncertain and has upheld the case for only  ten villages out of a larger area.  We have pointed out how  the learned  Judge has failed to show discernment in relying  on defectionist witnesses (and in two instances, by over sight. treated  1st  respondent’s  polling  agents  as  independent witnesses).   So that we are not inclined to go  the  length the lower Court has gone regarding these villages.  But non- acceptance  of the case of public meetings addressed by  the appellant  together  with  Tayyab Hussain,  R3W9,  does  not necessarily  mean handbills were not handed over to  people. Even  where  good evidence, not parrot-like  repetition,  is forthcoming, as an appellate Court we hesitate to interfere, on questions of fact where the trial Court has discarded the evidence.  In our view even the ten villages where  speeches were proved to have been made, according to the High  Court, do not sound strong enough, for reasons already given.   But on  the  distribution  of the damaging  handbills,  we  feel confident    that   there   is   acceptable,   direct    and circumstantial  testimony,  to accept the  1st  respondent’s version.   For one thing, we have found that  these  printed appeals  did  exist  on  March  10-not  for  secreting   but circulating.   For another, the motive for publishing  these statements  is for the appellant.  Again,  the  circumstance that the 1st respondent came by many copies thereof on March 10  probabilises  prior  distribution,  certainly  with  the knowledge  and consent of the appellant.  Finally, there  is disinterested  evidence  on this fact.  For  instance,  take

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village Akerrha.  P.Ws. 45, 46, 47 and 48 have  concurrently testified  that the returned candidate and R3W9 had  visited the  villages, talked, to voters and  circulated  handbills. The  learned  Judge discredits P. W. 46 because  he  was  an agent  of the 1st respondent.  Quite right.  But  the  other witnesses are not discussed at all.  So we have read them 669 to  ascertain  their  credibility,  particularly  since  the contrary  witnesses of the appellant have been  disbelieved. Negative  evidence  is ordinarily no good  to  disprove  the factum of meetings.  But to disbelieve a witness because  he came  without  summons,  as the trial  Court  has  done,  is altogether wrong.  Evenso,the evidence of R1 W13, R1 W14 and R1W15  was rightly rejected by the trial Judge  as  useless. However,   we  are  satisfied  that  no  ground  exists   to disbelieve  P.  W. 45, an apparently  disinterested  person. The non-mention of every name in the affidavit in support of Election  Petition is no ground to reject witnesses.   P.Ws. 45  and  47 sound natural and disinterested  and  no  reason exists  to  discard their evidence regarding  the  nocturnal circulation of printed handbills like, P. W. 4/3.  No formal meeting  was  held, no chair, no mike, no  announcement  nor even petromax light.  Not the speeches, but the distribution of  pamphlets is the credible part of the case.  The  former depends only on the oral testimony of witnesses, the  latter is  reinforced  by actual handbills.  The same  thing  holds good  regarding  the villages where positive  findings  have been   recorded   by  the  trial  Court.   We   think   that irrespective  of the election speeches by the appellant  and R3W9,  which  may  or  may  not  be  true  the  last  minute circulation of handbills, must be accepted. We  are  aware,  as noticed in B. Rajagopala Rao  v.  N.  G. Ranga(1)  that  the enemies of a winning candidate  may  get such notices printed and distributed as part of the strategy of  subverting  an unfavourable election  result.   We  also remember  the  words  of  caution  in  other  dicta  already referred to and do not rule out the possibility of  officers not being above-board where Ministers are engaged in hot and rearlosing battles.  It is after anxious consideration  that we have come to the ultimate inference already expressed  on Ex.   P. 18, P. 19 and P. W. 4/3 and the publicity given  to the handbills. On this finding that the appellant did distribute Ex.  P. W. 4/3  type handbills, what corrupt practices are  constituted thereby? ’Character  assassination’-to use a cliche-comes  within  s. 123  of  the Act, since the 1st respondent has  called  them false and the appellant has agreed he does not believe  them to be true.  On the present view of the law, the  handbills, in  their  climatic  part, exhort  Muslims  to  support  the appellant   in.   the  name  of  ’religion’.    But   divine displeasure’  on account of prandial impropriety and  ’undue influence’  for  fear  of  forced  pork  eating,  cannot  be distilled from these handbills without doing violence to the prevailing  protection  of the rule of law in  the  country. Half serious apprehensions are not ’undue influence’ by  any standards.   No  one in India in the ’70s will  shiver  with fear that a candidate, when he wins an election, will  force down   his   throat  distasteful  pork.    Such   chimerical apprehensions are unreal and cannot receive judicial  appro- val.  Equally untenable is the trepidation in the hearts  of the voters that if they cast their ballots in favour of  one who eats pig’s meat, the wrath of God would annihilate them. Realism  is a component of judicial determination.   Neither undue  influence nor divine displeasure looms large in  this

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case. (1) A.I.R. 1971 S.C. 267, 275. 670 In the ultimate analysis we hold that the appellant did  get the  handbills, Exhibits P. W. 4/3 printed  and  distributed among  his constituents.  Thereby he made  statements  which were untrue and which he did not believe to be true and knew to  be  false,  about the rival candidate  with  a  view  to diminish the latter’s prospects in the election.  We further hold  that  Exhibit  P.  W. 4/3  constitutes  an  appeal  to religion  for the purpose of voting for and against.   Thus, under  these two heads, a contravention under s. 123 of  the Act  has been committed and for these two corrupt  practices the unseating of the appellant becomes inevitable We may mention here that while meticulous criticism has been made by both sides of the numerous witnesses examined in the case,  not  the many ripples but the major waves  shape  the course of the stream in our view, so that we have paid  more attention  to the broad sweep of the evidence  rather  that. the  little details picked up here and there  and  magnified before  us.   Therefore,  while  not  endorsing  the  entire findings  of  the  High Court, we uphold two  of  its  major findings-of   corrupt  practices-sufficient  to   undo   the election  of the appellant.  Further in this case the  first respondent  cannot  claim  to have been  clean  in  alleging untenable  corrupt practices and adducing  shoddy  evidence. Where  both  sides  have soiled their  hands  in  the  legal process, both must bear their individual burden of costs. One  last disquieting reflection is prompted in  this  case. If  a  blatant  corrupt  practice  is  committed  during  an election,  there is now no clear statutory  mechanism  which can contemporaneously be set in motion by the affected party so  that  when it is raw, a record and  an  instant  summary probe  is possible through an independent semi-judicial  in- strumentality.   Violations  thrive where  prompt  check  is unavailable.   On the other hand, effective  contemporaneous machinery  providing for such checks would  greatly  curtail subsequent election disputes and even act as a deterrent  to the  commission  of corrupt practices.   Elections  are  the cornerstone  of the parliamentary system and the arm of  the law should not hang limp in the face of open contravention. We cannot also close this judgment without exposing what  is really  a  patent flaw in the judgment of  the  High  Court. Having  found  the commission of corrupt  practices  by  the appellant,  Tayyab Hussain (a sitting Member of  Parliament) and  a large number of other persons, it was  the  statutory duty of the Judge to name all those who have been proved  at the trial to have been guilty of any corrupt practice [s. 99 (a)  (ii).]  The  serious disqualification  which  would  be visited  upon a person who is thus named has  compelled  the legislature  to  introduce  the canons  of  natural  justice before  taking this punitive step.  The proviso to s.  99(a) inhibits  the naming of a person who is not a party  to  the petition without giving him notice to appear and show  cause and  a further opportunity of cross-exam-dining any  witness who  has  already been examined in the case  and  has  given evidence against him of calling evidence in his defence  and of being heard.  This Court has emphasized 671 the  obligation of the Election Tribunal in this behalf  and indicated  the   procedure  that  may  be  adopted  in  Such Situation in B. P. Mishra v. K. N. Sharma(1) R.   M. Seshadri v. G. Vasantha Pai (2); and Janak Sritar v. Mahalit R.K.  Das  (3).  Indeed before delivering  judgment  in  the election,  case  the  Court  has to  inform  and  extend  an

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opportunity to the collaborators in corrupt practice and  in the  light of the totality of evidence on record decide  the election  petition and the issue of naming those      guilty of       corrupt     practices.This is  not   a  facultative power of the Court but a bounden duty cast on it.  The  high purpose  of  ensuring purity of elections is  the  paramount policy  inspiring this provision.  The Court  must  strongly deter  those  who seek to achieve election ends  by  corrupt means.   It  is  unfortunate that  Courts  and  counsel  are somewhat indifferent to this requirement of the statute.  If only  at  the  end of an election  case  where  verdicts  on corrupt practices are rendered, Courts would name all  those involved  in the pollution of the electoral  process,  there would  be  some  hesitation  on  the  part  of  citizens  in executing these improper projects. Counsel for the 1st respondent in this case suggested to  us that the distributors of pamphlets or, for that matter, even the authors thereof may  easily   escape    punishment    of ’naming’  by proving that since responsible  candidates  had made such speeches,they did not believe the statements to be false  or even believed them to be true.  We are clearly  of the view that belief in this context means reasonable belief and  not  easy  fancy  or  foolish  credence.   Unless   the distributor of mala fide statements establishes that he  had reasonable grounds in support of his belief, tile Court will not  accept  his plea and will name him.   It  is  therefore plain  that s. 123 (4) read with s. 99 cannot  stultify  the provision for naming of men who deserve to be named, However, in the present case, we have held that neither R3W9 (Tayyab  Hussain)  nor the third respondent  (Sohanlal)  has been proved to be guilty of corrupt practice.  Similarly, we have  not accepted the case that many polling agents of  the appellant  had circulated the handbills.  In this view,  the need  to  name  anyone  does  not  arise.   Of  course,  the appellant  being  a  party  and guilty  has  to  suffer  the penalty.   We  are  holding  against him  that  he  got  the handbills  printed  and distribute but on other  grounds  we have  exonerated  him for want  of  compelling,,,  probative material. (1) (1971) 1 S.C.R. 8.      (2) (1969) 2 S.C.R. 1019. (3) AIR 1972 SC/359. 672 The  appellant,  in this case, is less guilty than  the  1st respondent  depicts  him  but  is  less  innocent  than   he professes.   Electoral purity must claim its victim  and  we set aside the appellant’s election, nothing that :the  virus of   corrupt   practices  cannot  be  controlled   save   by comprehensive  systemic changes with emphasis on a  fearless enforcement   instrumentality  and  a   national   political consensus  to abide by norms-a consummation devoutly  to  be wished.  Today the yawning gap between law in the books  and unlaw  in action has made inhibition of corrupt practices  a once-in-a-blue-moon- tribunal phenomenon. For  the reasons set out above, we dismiss the  appeal  with the direction that parties will bear their respective  costs throughout. V.P.S.                          Appeal dismissed. 673