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PETITIONER: LAKHI PRASAD AGARWAL

       Vs.

RESPONDENT: NATHMAL DOKANIA

DATE OF JUDGMENT: 06/09/1968

BENCH: MITTER, G.K. BENCH: MITTER, G.K. HIDAYATULLAH, M. (CJ)

CITATION:  1969 AIR  583            1969 SCR  (2)  41

ACT: Representation  of the People Act, 1951 s. 123(2),  (3)  and (4)-Allegations  of  corrupt  practice-Necessity  of  proper pleadings-Contentions cannot be considered if not borne  out by   pleadings-Arrest   of  candidate   immediately   before election-Whether  inference of mala fide or  collusion  with opposing candidate can be drawn.

HEADNOTE:     The election of the respondent to the Bihar  Legislative Assembly at the 1967 general election was challenged by  the appellant---one  of the defeated candidates- in an  election petition.  Annexure 2 to the petition was a pamphlet alleged to have been issued by the respondent and his supporters  in which reference was made to the call of two Muslim religious heads that Muslims should not vote for the Congress party to which  Islam  was opposed.  The High Court   dismissed   the election  petition whereupon appeal was filed in this Court. The  appellant urged that (i) In the aforesaid  pamphlet  an attempt  was made to induce muslim voters not to vote for  a Congress candidate in opposition to the mandate of two named religious heads and this amounted to the corrupt practice of "undue  influence" under s. 123(2) of the Representation  of the  People Act 1951; (ii) The reference to the  mandate  of Islam  amounted to the use of a religious symbol within  the mischief  of  s. 123(3); (iii) The said pamphlet  also  came within the mischief in s. 123(4); (iv) The Returning Officer who  was  also the Sub-Divisional Officer  of  the  District ordered  the arrest of the appellant immediately before  the election;  this  was done mala fide, in collusion  with  the respondent  and  the appellant was thereby hampered  in  his election campaign.      HELD:  (i)  The pleadings in the  appellant’s  election petition  did  not permit consideration  of  his  contention based on s. 123(2) of the Act.      In order that a pleading may be sufficient to make  out a case  of undue influence it must set out full  particulars of  it in compliance with s. 83(1)(c) of the Act  comparable to  Order 6 r. 4 of the Code of Civil Procedure.   The  said provision of the Act read with s. 123(2) makes it obligatory on a party setting up a case of corrupt practice by exercise of  undue influence as suggested, to give  full  particulars

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thereof  by  stating  inter alia who  attempted’  to  induce electors  to  believe that .voting for a  particular  person would  render  them  objects  of   divine   displeasure   or spiritual  censure and in what manner such   attempts   were made.   The  real charge in the relevant  paragraph  of  the petition   in  the  present  case  was  that  the   pamphlet complained of misled the electors by false statements.  Such a pleading falls short of an allegation of unique  influence by an attempt to make electors exercise their franchise in a particular manner.  [43 H---44 C]      (ii) The contention that the case fell under s. 123.(3) because  of the use of the mandate of Islam as  a  religious symbol  was  ’also  not  borne  out  by  the  pleadings  and therefore could not be considered. [44 D]       (iii) To bring the case under s. 123(4) there must  be a  publication     by  the candidate or  his  agent  of  any statement of same fact which is up. CI/69--4 42 false, and which is believed to be false or not believed  to be true, in relation to the personal character or conduct of any  candidate,  or  in  relation  to  the  candidature   or withdrawal  of any candidate being  a ,statement  reasonably calculated  to prejudice the prospects of  that  candidate’s election.   The  pamphlet  in  question  did  not  cast  any aspersion  on  the  personal character  or  conduct  of  the election  petitioner.  Nor was there any false statement  in relation  to  the candidature, of the  petitioner.  .Section 123(4) was therefore not attracted to the case. [44 E-F]     (iv)  The. evidence in the case did not prove  that  the Returning Officer  caused the appellant to be arrested  mala fide  or  in  collusion with  the  respondent.   The  arrest immediately   before  the  election  surely   hampered   the campaign of the election petitioner, but by itself the  mere fact  of  arrest does. not lead to the conclusion  that  the Returning  Officer  was  trying to  bring  pressure  on  the election  petitioner  not to contest the election  and  much less  that  the  arrest  was  made  in  collusion  with  the successful  candidate. [45 G]

JUDGMENT: CIVIL APPELLATE JURISDICTION:  Civil Appeal No. 20 of 1968.     Appeal  under  Section 116-A of the  Representation   of the  People Act, 1951 from the judgment and order dated  the November  30,  1967  of the Patna  High  Court  in  Election Petition 19 of 967. Danial A. Latifi, and R.A. Gupta, for the appellant. D. Goburdhun, for the respondent. The Judgment of the Court was delivered by     Mitter,  J.   This  is  an  appeal  by  an  unsuccessful candidate at an election held in February 1967 for the Bihar State  Legislative Assembly from the Single Member  Rajmahal Constituency   No.   139.   Originally  there   were   eight candidates.: we are concerned only with two of them, namely, the  election petitioner and respondent,  Nathumal  Dokania, the  returned  candidate as a result of the  election.   The election petitioner lost before  the  High Court.  The  main ground  on which he presses this appeal  are based on  paras 4(c) and 4(e) of the petition.  The relevant issue framed by the learned trial Judge with regard to paragraph 4 (c) issue No. 5 reading :-                     "Did  the  respondent  or  his  election               agent or his workers with his or his  election

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             agent’s consent resort to corrupt practices in               the election, as alleged by the petitioner and               has the result of the election been materially               affected thereby ?" para 4(c) it is pleaded that the respondent himself and  his agents and workers including certain named persons with  his consent  "committed  a corrupt practice  of  publication  of statements  of facts throughout the constituency and  mainly at  Shahebganj, Teen Pahar and Rajmahal during the  election campaign during       43 the period 11th February 1967 to 15th February  1967   which induced  and  caused deception in the mind of  the  electors whereby  the  respondent procured a large number  of   votes which   he  would  not otherwise have secured  but  for  the corrupt  practice aforesaid." Copies of the  pamphlets  from Annexure 2 series to the petition.     Mr.  Latifi appearing for the appellant  submitted  that Annexure  2(A)  does not further his  client’s  cause.   His grievance  is based on Annexure 2.  The translation of  this Annexure  of which the original was in Hindi shows  that  it was  a  call to the Muslim voters of Rajmahal to  "hear  the message  and  prepare  the  graveyard  for  the   Congress." Reference  was  made therein to "the appeal of  the  day  by Maulana Syed Usman Ghani Saheb of  Phulwari  Sharif Khankah" "that nobody should be in illusion that Muslims have to vote for the Congress. this. time also.".  It was also  suggested that  on  account of high-handedness of the  Congress  group Muslims should  not support it.  There was also a  reference to the appeal of Pit Saheb of the Dargah of Phulwari  Sharif that  Muslims should  not vote for any  Congress  candidate. The appeal ends with the sentence, "when you have  life-long connection  with Sri Nathmal Dokania, the candidate  of  the Swantantra  Party and when the Head of your  religion,  your Islam also  opposes  the Congress, then it becomes your duty to  come  out victorious by affixing stamps  on  the  "Star" symbol."     Mr. Latifi tried to argue that by the publication of the pamphlet an attempt was made to. induce Muslim electors  not to  vote  for  a Congress candidate  in  opposition  to  the mandates   of  the  two. named religious  heads.   In  other words,  his contention was that undue influence  within  the meaning  of s. 123(2) of the Act was sought to be  exercised on  the  Muslim voters in the name of  the  religious  heads mentioned  in  the  pamphlet  under  the  threat  of  divine displeasure  or spiritual censure.  He also sought to  argue that  the  reference  to  the  mandate  of  Islam   in   the pamphlet  amounted to the use of a religious symbol  and  as such the appeal by the pamphlet came within the mischief  of s. 123 (3) of the Act.     Under  8. 123(2), a candidate may be guilty  of  corrupt practice if he uses "undue influence" which in the words  of the  section  means any direct or indirect  interference  or attempt to interfere with the free exercise of any electoral right  of  a voter.  Mr. Latifi’s submission was.  that  the pamphlet  came  within  the mischief of  subclause  (ii)  of proviso,  (a)  to  section 123(2).   Unfortunately  for  Mr. Latifi, although the pamphlet might have sustained a plea of undue influence about which we express no opinion, there  is no pleading to that effect in the petition.  In order that a pleading  may  be  sufficient to make out a  case  of  undue influence, it must 44 set  out full particulars of it under the provisions  of  s. 83(1)(c) of the Act which may be compared with Order 6  rule

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4 of the Code of Civil Procedure.  The said provision of the Act   read  with s. 123(2) makes it obligatory  on  a  party setting .up a case of corrupt practice by exercise of  undue influence as suggested, to give full particulars thereof  by stating  inter  alia  who attempted to  induce  electors  to believe  that  voting for a particular person  would  render them objects of divine displeasure or spiritual censure  and in what manner such attempts were made.  The real charge  in paragraph  4(c)  of  the  petition  is  that  the   pamphlet complained of misled the electors by false statements.  Such a  pleading  falls  far  short of  an  allegation  of  undue influence  by  an attempt to make  electors  exercise  their franchise  in a particular manner.  Para 4(c) does not  even mention  Muslim voters and does not contain any averment  to the  effect  that they were sought to be influenced  by  the opinion of the religious heads.     Mr. Latifi’s attempt to bring his  case under  s. 123(3) is  equally futile.  Mr. Latifi sought to argue  that  Islam was a religious symbol of Muhamedans and the publication  of the pamphlet containing a reference to the mandate of  Islam was  an attempt to prejudicially affect the election of the, petitioner.   This  case  too  is  not  borne  out  by   the pleadings.  Failing in his attempt to bring the’ case  under the  two sub-sections mentioned already, he tried  to  bring his  case under s. 123 (4) of the Act.  In this too, in  our view, he cannot succeed.  To bring the case under this  sub- section, there must be a publication by the candidate or his agent  of  any statement of some fact which  is  false,  and which he believed to be false or did not believe to be true, in  relation  to the personal character or  conduct  of  any candidate,  or in relation to the candidature or  withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects  of  that candidate’s election.  The pamphlet  does  not  cast  any  aspersion  on  the  personal character  or  conduct of the election  petitioner.  Nor  is there any false statement in relation to the candidature  of the  petitioner.  In fact there is no reference to  him   at all.  Consequently, the election petition does  not  attract the  operation of the aforementioned sub-sections of s.  123 of  the  Act.  The  learned  trial  Judge  should  not  have entertained  any argument under subsections 3 and 3A  of  s. 123  of the Act as in view of the pleadings issue No. 5  did not permit the raising of such contentions.   In view of the pleadings  we  did  not  permit Mr.  Latifi  to  pursue  his arguments on this issue on the basis of s. 123 sub-ss. (2)or (3) of the Act.     That leaves us only with the allegation in para 4(e)  of the petition which runs thus:       "The  election of the respondent is void, because  the Returning Officer who is also the Sub-Divisional Magis-       45               trate  of  the area, in collusion   with   the               respondents  harassed  the petitioner  in  all               possible   ways  so  much  so  that   a   mere               application for correction in the petitioner’s               name was allowed at the last juncture and  the               petitioner had been arrested the very next day               of  the said application, was put in jail  for               eight valuable days and thereby prevented from               pursuing the election campaign." The issue under which the above complaint was  sought to  be raised was the general one, namely, whether the election  of the respondent is liable to be set aside ?  Mr. Latifi  drew our  attention  to  portions  of  the   testimony   of   the Returning  Officer   where  he  denied  that   he   was   in

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collusion   with  Nathmal Dokania or that  because  of  such collusion  he   got  the petitioner arrested  after  he  had filed  applications  for  correction  of  the  entries  with respect  to his name in the electoral roll.  He also  denied that  he  got  the petitioner arrested with  any  mala  fide intention  so  that  he might not be  able  to  contest  the election.  in his cross-examination, the Returning.  Officer referred to. the proceedings started against the  petitioner and  said  that  the petitioner had been  arrested  once  in January and for a second time in February 1967.  The  arrest in January 1967 was in connection with proceedings under  s. 107  of  the  Code of Criminal  Procedure.   The  arrest  in February  1967  was  in  connection with  a  case  for  some substantive  offences. He added however that he  was not  in a position to say what was the offence alleged to have  been committed  by  the  petitioner by a mere  reference  to  the certified  copy of the order sheet.  On this evidence  there was  nothing  before the court to justify  a  conclusion  in favour  of the petitioner on the general issue.   Only  some suggestions had been made  to  the Returning Officer in  his cross-examination  that he had ,acted mala fide and that  he had  a acted in collusion with the successful candidate.  No details  with  regard to the complaints  leading to  or  the grounds  for  the  arrests were  forthcoming.   We  find  it difficult  to believe that the petitioner did not  know  the ’grounds  on  which  he was put under  arrest.   The  arrest immediately before the election surely hampered the campaign of  the election petitioner, but by itself the  arrest  does not  lead to the conclusion that the Returning  Officer  was trying to bring pressure upon the election petitioner not to contest the election and much less that the arrest was  made in collusion with the successful candidate.     These being the only two points which were urged  before us  in  the appeal, the appeal must fail and  it  is  hereby dismissed with costs. G.C.                                       Appeal dismissed. 46