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PETITIONER: RAM CHAND BHATIA

       Vs.

RESPONDENT: HARDYAL

DATE OF JUDGMENT29/01/1986

BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1986 AIR  717            1986 SCR  (1) 177  1986 SCC  (2) 121        1986 SCALE  (1)119  CITATOR INFO :  E          1990 SC1731  (8,13)

ACT:      Representation of  the People  Act, 1951 sections 79(b) and 82(b)  - Impleading  a candidate  as a  necessary party, when arises  - Corrupt  practice -  Ingredients of  sections 123(3) and  (4)  -  Onus  of  proof  lies  on  the  election petitioner Distinction  between the  personal  character  or conduct  of  the  candidate  and  his  public  or  political character and conduct, explained.

HEADNOTE:      In the  1982 Himachal  Pradesh State Assembly elections the appellant  Ram Chand Bhatia sponsored by Bhartiya Janata Party  was   declared  elected   defeating  the  next  rival candidate Hardyal the respondent cum election petitioner cum official nominee  of the  Congress (I)  Party by a margin of 3364 votes.  Kanshi Ram  sponsored by  Janata Party  secured 1049  votes  while  Vidhi  Chand  official  nominee  of  the Communist Party  of India secured 1889 votes. The respondent filed an  election petition  challenging the election of the appellant on  the  ground  that  Kanshi  Ram,  Janata  Party candidate conspired  with the appellant and other persons to get printed  posts like  the one annexed to the petition (as Annexure  PA   later  on   exhibited  as  PI  during  Trial) containing false  statement of  facts assailing the personal character of  the election  petitioner and to distribute the same  during   the  election   period  with  the  object  of prejudicially  affecting   the  prospects  of  the  election petitioner. The  appellant contested  the election  petition denying the allegations made.      The learned  Judge held  (i) that  Kanshi Ram was not a necessary party  to the election petition; and (ii) that the contents of  Annexure PA  pertain to  the personal character and conduct  of the election petitioner-respondent. He found that the appellant had distributed the offending poster, but refrained from  giving any  finding on  the question whether his election  agent or any other person with his consent had distributed the  said poster. As regards the printing of the offending poster,  the learned  Judge found  that even if it was 178

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not proved  that the  poster in  question was printed at the instance of the appellant or his election agent, the offence of corrupt  practice is  established in  view of his finding that the  appellant himself  had distributed  the  offending poster. On  these findings the election petition was allowed declaring the  election of  the appellant as void. Hence the appeal by Special Leave.      Allowing the appeal, the Court ^      HELD : 1. The impleadment of a candidate against whom a charge of  corrupt practice  has been  made as  a  party  is necessary only  when the charge of corrupt practice was made against a  "Candidate" as  defined in  section 79(b)  of the Representation of  the People  Act, that  is  after  he  was nominated as a candidate.[191 D-F]      2.1 Section  123 of  the Representation  of People  Act does not  stop a  man from  speaking. It  merely  prescribes conditions which  must be  observed if  he  wants  to  enter Assembly or  Parliament. The  right to  stand as a candidate and contest  an election  is not a common law right. It is a special right  created by  Statute and can only be exercised on the conditions laid down by the statute. [185 C-D]      2.2 In order to make out the charge of corrupt practice under sub-section  4 of section 123 of the Representation of People Act, the election petitioner has to show that (i) the impugned statement  of facts was published by a candidate or his agent  or by  any other  person with  the consent of the candidate or  his agent;  (ii) that  the statement was false and which  the maker either believes to be false or does not believe to  be ture; (iii) that the statement relates to the personal character  and not  to the political character of a candidate;  and  (iv)  that  the  statement  was  reasonably calculated  to   prejudice  the   prospects  of   the  other candidates’ election. [186 E-F, 190 G-H, 191 A-B]      Adverse criticism  however severe, however undignified, ill  mannered,  however  regretable  it  might  be,  in  the interest of  purity and  decency of public life, in relation to the  political views, position, reputation or action of a candidate would  not bring  it within  the mischief  of  the statute. What  is objectionable is a false statement of fact and not  a false  statement of opinion, however unfounded or unjustified. The 179 public or  political character  of a  candidate is  open  to public view  and public  criticism. If  a false statement is made about  the political  views or  his public  conduct  or character  the   electorate  would  be  able  to  judge  the allegations on  the merits  and would  not be  misled by any false allegation  in that  behalf. It is on this theory that false statements  of facts  affecting  public  or  political character of a candidate are not brought within the is chief of section  123(4). It  is only  when a  person beneath  the politician" is  sought to  be assaulted that subsection 4 of section 123 of the Act is attracted. [193 A-B D-F]      2.3 The burden of proof lies on the election petitioner to prove  beyond reasonable  doubt all  the necessary  facts which would  establish the  allegation of  corrupt practices that have  been alleged  in the election petition. The Court does not  hold such  a charge proved merely on preponderance of probability.  In judging  whether a  publication  of  the statement has affected the voters the Court has to ascertain whether the  statement is reasonably calculated to prejudice the prospect  of the  candidate in an election by keeping in the forefront  the electorate  at the  time of election. The Court has to consider the effect of impugned document on the

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ind of  the ordinary  voters who  read  the  poster  by  the offending the  personal character  of a  candidate.[185 B-C; 194 E-F]      Devi Prasad  v. Malluram  Singhania  &  Ors.  [1969]  3 S.C.C. 595 referred to.      In the instant case; (i) the election petition contains all the  necessary  facts  to  constitute  corrupt  practice within the  meaning of sub-sections 3 & 4 of section 123 and as such  the preliminary  objection as to maintainability of the election  petition has  been rightly overruled; (ii) the allegation of corrupt practice against Kanshi Ram was before his nomination  as a  Candidate" and  therefore he  was  not necessary party  in the  election petition;  (iii) from  the evidence on  the record  (a) it  cannot  be  said  that  the statement of  fact in  Exhibit  PA  assailing  the  personal character of  the respondent  was false  and  not  true.  me learned Single  Judge omitted  to record any finding on this important aspect  and he si ply assumed that he had recorded a finding in the early part of the judgment.(b) The election petitioner has  failed to  establish the  first link  of the charge that  the appellant  had  got  the  offending  poster printed as  alleged in  the election  petition.  Rather  the allegation has been belied by PW 2 Om 180 Prakash Sarotri  the election  petitioner’s own  witness. If this important  link of  the charge has not been established it will  be difficult  to accept  the  allegation  that  the appellant his  election agent  or any  other person with his consent distributed the poster in public meetings at various places. Further  since the  appellant would  not support his opponent by  reading or  distributing a poster which invokes to  vote   for  a  rival  candidate  and  it  has  not  been established that  the appellant has made a common cause with the contesting  candidate  to  start  vilification  compaign against  the   respondent  the   appellant  cannot  be  held responsible for  what has  been tone  by Kanshi  Rao or  his brother and  the post election fact sought to be relied upon is too  meagre to  warrant a  conclusion that  appellant and Kanshi Rao  were in  collusion when the latter had contested against the  appellant. The  mere fact  that Kanshi  Rao was happy over  the success  of the  appellant or  was garlanded alongwith the  appellant in  the victory  procession  cannot lead to the conclusion that they had a common cause. [198 B; 192 A-B; G; H; 195 B-C; 196 B-C; E-F; 197 H; 198 A-B]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Civil Appeal  No. 4392 (NCE) of 1984.      From the  judgment and  Order dated  11.10.1984 of  the Himachal Pradesh High Court in E.P. No. 7 of 1982.      R.P. Bansal  K.C. Dua  and N.N. Aggarwal for the Appel- lant.      T.S. Krishnamurthy  Iyer V.C. Mahajan K.R. Nagaraja and R.S. Hegde for the Respondent.      The Judgment of the Court was delivered by      MISRA, J.  The  present  appeal  by  special  leave  is directed against the judgment of the learned Single Judge of the High  Court of  Himachal Pradesh  at  Simla  dated  11th October 1984 declaring the election of the appellant as void under section  100(1)(b) of the Representation of People Act 1951 (hereinafter referred to as the Act).      Pursuant to  a Notification  dated 17th  of April  1982 under sub-section  (2) of section 15 of the Act calling upon

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all the  assembly  constituencies  in  the  State  to  elect members of  the Legislative  Assembly in accordance with the Act and  the rules  framed therein a number of persons filed their 181 nomination  papers   from  46  Nagrota  Constituency.  After scrutiny there remained only 4 contestants in the field. The appellant Shri  Ram Chand  Bhatia was  sponsored by Bhartiya Janata Party  Shri Hardyal  the respondent  was the official nominee of  Congress (I)  Party Shri Kanshi Ram was a Janata Party candidate  and  Shri  Vidhi  Chand  was  the  official nominee of  the Communist  Party of India. The appellant was declared  elected   to  the   Himachal  Pradesh  Legislative Assembly by  a  margin  of  3364  votes.  Shri  Hardyal  the respondent was  the next  rival candidate.  Shri Kanshi  Ram Janata Party  candidate secured  1049 votes while Shri Vidhi Chand secured 1889 votes.      The respondent  filed an  election petition challenging the election of the appellant under section 81 of the Act on the ground  that Shri  Kanshi  Ram  Janata  Party  candidate conspired with  the  appellant  and  other  persons  to  get printed posters like the one annexed to the said petition as Annexure PA  containing false  statement of  facts assailing the personal  character  of  the  election  petitioner  Shri Hardyal and  distributed the same during the election period with the  object of prejudicially affecting the prospects of election of  Shri Hardyal. me poster annexed to the petition as Annexure PA later on exhibited as Pl in the course of the trial of  the case is the bone of contention in the election petition. It  will  be  relevant  to  extract  the  relevant paragraphs of  the Election Petition to bring out the points involved in the case:           "............................................           3. That Shri Virendar Advocate of Kangra Kali Dass           Pradhan Massal  Panchayat Shri  Ram  Chand  Bhatia           respondent Kanshi Ram Janata Party F candidate and           Shri Kidar Nath Bassi who was election incharge in           the Constituency  for B.J.P.  joined hands amongst           themselves and  started  a  vilification  campaign           against  the   character  and   conduct   of   the           petitioner. They  came out with a poster like Anne           w re PA allegedly purported to have been published           by Shri Parma Nand brother of Shri Kanshi Ram none           the less  as would  be clear  from the  paragraphs           hereinafter contained  that it  was the respondent           who was  instrument in preparing the draft as well           as getting the posters printed in the name of Shri           Parma Nand.           4. mat these posters came out for the first time 182           in the  Constituency during the last week of March           1982. However  whispering  campaign  assessinating           character  and   conduct  of  the  petitioner  had           started  by   the  respondent   in  collusion  and           connivance with  Shri Kanshi Ram Janata candidate.           Shri  Kanshi  Ram  the  Janata  Candidate  is  the           Pardhan  of   Gram  Panchsyat   Pathiar  and   the           respondent immediately  before  his  election  was           also Pradhan  of Gram Panchayat Amtrar and both of           them have  close relations  with each  other since           long time back.           5. That  the contents  of  the  poster  and  facts           stated therein  are false  to the knowledge of the           respondent and  the respondent  does  not  believe           these facts  to be  true.  m  e  bare  perusal  of

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         Annexure PA  would show  that the  contents are in           relation to  the personal character and conduct of           the  petitioner.   These   statements   of   facts           contained in  Annexure PA  are not  only published           and circulated through out the constituency by the           consent of  the respondent but as a matter of fact           these posters have been got printed and circulated           by the  respondent himself  surreptitiously in the           name of  Shri Parma  Nand.  me  contents  of  this           poster malign  the conduct of the petitioner as an           M.L.A. and  Minister in  addition to  his personal           character.           6. That  the contents of the poster at Annexure PA           contain appeal  to  the  voters  to  refrain  from           voting in  favour of  the petitioner on the ground           of caste  and community  which  has  prejudicially           affected the election of the petitioner.           7. mat  the respondent  through  the  contents  of           Annexure PA  has  actually  promoted  feelings  of           enmity  and  hatred  between  the  voters  of  the           constituency on the grounds of caste and community           with a  view to  prejudicially affect the election           of the petitioner.      The Election  Petition thereafter refers to the various meetings held  in the  constituency wherein the said posters were read out and distributed by the respondent his election agent as  well as  B.J.P. workers  with the  consent of  the respondent. 183      The Election  Petition was  contested on  grounds inter alia that  appellant was  in no  way party  to bring out the poster Annexure PA which clearly shows that it was issued by one Parma  Nand Pathiar the brother of Shri Kanshi Ram after having got  it printed  at Modern  Press  at  Nagrota;  that poster like  Annexure PA appeared in the constituency during the last  week of  March when  there was  only a possibility that election  might be  held in  June 1982; that respondent had no  connection with  Shri Kanshi Ram who in fact opposed the appellant in the election and was himself a candidate on behalf of  the Janata  Party; that  Annexure PA  in  no  way tranished the  personal character of the election petitioner and that  it only  related to  the political  conduct of the petitioner - respondent as an M.L.A. and Minister during the period of  15 years from 1967 onwards when he was elected as an M.L.A.  for the  first time;  that there was no appeal in the poster  Annexure PA  that the voters should refrain from voting in  favour of  the respondent  on the ground of caste and community and that in fact all the contesting candidates except Shri  Vidhi  Chand  belong  to  the  same  caste  and community; that  the contents  of Annexure PA cannot be said to promote  the feelings  of enmity  and hatred  between the voters of  the constituency  on  the  ground  of  caste  and community. The  appellant also denied calling of some of the meetings in  the constituency  on  various  dates.  He  also denied the  printing or  the publication  or distribution of the poster  in the  constituency by  him or his agent or any other person  with  his  consent.  The  allegations  of  the parties gave rise to the following six issues:           1. Whether  Shri Kanshi Ram who was a candidate in           the election  is a necessary party to the petition           in view  of the  allegations made in paras 3 4 and           19 of  the Election  Petition? If  so what  is its           effect? O.P.R.           2. Whether the contents of Annexure PA fall within           the definition  of corrupt  practices  as  defined

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         under  section   123(3)  (3A)   and  (4)   of  the           Representation of the People Act? O.P. Parties.           3. Whether  the respondent  his agent or any other           person with  his consent  published or distributed           himself through his agent or any other person with           his consent annexure PA as alleged in the Election           Petition? O.P.P. 184           4. Whether  the respondent  his agent or any other           person with  his consent appealed to the voters to           vote in  his favour  and to refrain from voting in           favour of the petitioner on the basis of the caste           and  community   as  contained   in  the  Election           Petition? If so what is its effect? O.P.P.           5. Whether  the respondent through the contents of           Annexure PA  actually promoted  feelings of enmity           and hatred  between the voters of the conatituency           on the  grounds of caste and community with a view           to  prejudicially   affect  the  election  of  the           petitioner? If so what is its effect? O.P.P.           6. Whether  the contents of Annexure PA pertain to           the  personal   character  and   conduct  of   the           petitioner and were even false to the knowledge of           the respondent  and he did not believe the same to           be true? if so what is its effect? O.P.P.      Issue No.  1 was  treated as  preliminary issue  at the request of  the counsel  for the  parties. After hearing the arguments on  the preliminary  issue the  same  was  decided against the appellant holding that Shri Kanshi Ram was not a necessary party  to the  Election Petition.  m  e  remaining issue Nos. 2 3 5 and 6 being interconnected were disposed of together. The  learned  Judge  held  that  the  contents  of Annexure PA pertain to the personal character and conduct of the petitioner.  He further  found that  the  appellant  had distributed the  offending poster. The learned Judge however refrained from  giving any  finding on  the question whether his election  agent or any other person with his consent had distributed the  said poster. As regards the printing of the offending poster the learned Judge found that even if it was not proved  that the  poster in  question was printed at the instance of  the appellant or his election agent the offence of corrupt  practice is established if it is proved that the appellant himself  had distributed  the offended  poster. On these findings he allowed the Election Petition and declared the election of the appellant as void.      The appellant  feeling aggrieved  by the impugned order of the  learned Single  Judge has  approached this  Court by Special leave. 185      Before dealing with the points urged before us we would like to  refer to  the well established principle in dealing with the  charge of  corruption in  an Election  Petition. A plea in  an  Election  Petition  that  a  candidate  or  his election agent  or any  other person  with his  consent  has resorted to  corrupt practice raises a grave charge proof of which  results  in  disqualification  from  taking  part  in election of six years. The charge in its very nature must be established by  clear and  cogent evidence by those who seek to prove  it. The  court does  not hold such a charge proved merely on  preponderance of  probability. The court requires that the  conduct attributed  to the  offenders is proved by evidence and is established beyond reasonable doubt. Section 123 of  the Representation of People Act does not stop a man from speaking. It merely prescribes conditions which must be observed if  he wants  to enter  Assembly or Parliament. The

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right to stand as a candidate and contest an election is not a common law right. It is a special right created by Statute and can only be exercised on the conditions laid down by the statute. mis  Court in & vi Prasad v. Malluram Singhania and others [1969] 3 S.C.C. 595 dealing with the corrupt practice observed:           It  must   be  remembered   that  the  proceedings           involving proof  of corrupt  practices  are  of  a           quasi criminal nature and it was for the appellant           to prove  beyond doubt  all  the  necessary  facts           which  would   establish  the  commission  of  the           corrupt practices  that have  been alleged  in the           Election Petition.      Corrupt practice  has been dealt with in section 123 of the Act.  In the  instant case we are concerned with corrupt practices as  defined in  section 123(3) and (4). It will be relevant at this stage to refer to the provisions insofar as they are relevant for the purpose of this case. The relevant provisions are quoted below : Section 123(3) (3A) & (4):           "123(3): The appeal by a candidate or his agent or           by  any   other  person  with  the  consent  of  a           candidate or his election agent to vote or refrain           from voting  for any  person on  the ground of his           religion race  caste community or language . . . .           . .  .   . .  . .  . .  . .  . . . . . . . for the           furtherance of the 186           prospects of the election of that candidate or for           prejudically  affecting   the  election   of   any           candidate .  . . . . . . . . . . . . . . . . . . .           . . . . .           (3A) :  The promotion  of or  attempt  to  promote           feelings of  enmity or  hatred  between  different           classes of  the citizens  of India  on grounds  of           religion race  caste community  or language  by  a           candidate or  his agent  or any  other person with           the consent  of a  candidate or his election agent           for  the  furtherance  of  the  prospects  of  the           election of  the candidate  or  for  prejudicially           affecting the election of any candidate.           (4) :  The publication by a candidate or his agent           or by  any other  person with  the  consent  of  a           candidate or  his election  agent of any statement           of  fact  which  is  false  and  which  he  either           believes to  be false  or does  not believe  to be           true in  relation to  the personally  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  respondent   had   to   satisfy   the   conditions contemplated in  sub-section (3)  and (4)  of section 123 to bring home  his  charge  of  corrupt  practice  against  the appellant. As  the charge  of corrupt  practice amounts to a criminal charge  it has  to be  dealt  with  like  a  quasi- criminal proceedings. As the fate of this appeal hinges upon the contents  of the  offended poster it will be appropriate at  this   stage  to   extract  the   contents.  An  English translation of the contents of the document is given below:                         N O T I C E           (One has one s own view-point)           Fifteen years 20-Point programme of Shri & Hardyal           and reply  thereto by  Parmanand keeping  in  view           Janata Party  candidate Chaudhary  Kanshi Ram (Ex-

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         serviceman) Pathiar. ......... 187           1. Like  Hardyalji I  will never  say that  I have           Raj-Yog on  my forehead  (destined to  rule) and I           have not  acquired this  position because  of your           votes.           2. Like  Hardyalji I  will also  not say  that the           children of  Harijans and  Ghirth community do not           have brains so I do not employ them in my office.           I will  rather establish  the fact  that even  the           children of  Harijans and  Ghirths have brains and           given opportunity  they can  also  work  like  the           children of others.           3. While  Shri Hardyalji  was Forest Minister 1700           boys were  employed in Dhaulandhar Project and 300           boys were recruited as Forest Guards. Besides boys           were  also   employed  in   Transport  Electricity           Agriculture Hospital  and as  Patwaris. We want to           ask it  from Sh.  Hardyal as to how many boys have           been employed from Nagrota constituency.           4. As Forest Minister Mr. Hardyal has discontinued           Chuharam of  the forest  and eleminated the income           of village Panchayats. Why so?           5. We  want to  ask it  from Mr. Hardyal as to how           many persons  of Nagrota  constituency  have  been           appointed as Gazetted Officers during his 15 years           tenure as M.L.A. and Minister.           6. Had  Mr. Hardyal  provided employment to 5 boys           per Panchayat  per year during his 15 years tenure           as M.L.A.  and Minister  two thousand  children of           Nagrota constituency  would have  been employed by           now and  there would  have been no unemployment in           Nagrota area.           7. Every party while in power will construct roads           dispensaries  bridges   and  schools  in  villages           because there  is provision for such things in the           constitution.  Mr.   Hardyal  is   misleading  the           innocent village  folks by saying that he had done           all that. This is all false. 188           8. I  want to  ask it  from the  people of Nagrota           that an outsider has been befooling the people for           15 years  on the  plea of  RaJ Yog and even in the           capacity of  MLA he  has been  living outside  the           area of  Nagrota in  a splendid  house worth  Rs.2           lacs at  Darhi and  thus grinding his own axe. Why           so? 9.  May I  ask if  Chaudhary Hardyal  being  a           Ghirth MLA  could not  find place  to stay  in the           house of  some Ghirth  or the  person of any other           community? For  the last  15 years  we  have  been           seeing him  staying alongwith  his car  with green           flag at  the house  of one  Amirzada  (Aristocrat)           Seth Saran  Dass  who  is  the  duplicate  of  Mr.           Hardyal at Nagrota.           Seth Saran Dass.           ----------------           10. I  am a son of a farmer and labourer. What are           the difficulties  of farmers  and labourers I will           manage to get them removed by the Govt.           11. Like  Hardyalji I  will not try to deceive any           one. If  anybody’s work  would be  worth  doing  I           shall definitely  do that  and if  that may not be           possible for  me to  do I  will tell that the work           cannot be done.

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         12. I  will never  stay at the house of Seth Saran           Dass rather  I would  go to the house of some poor           man and will help him minimise his sufferings.           13. Like Hardyalji I will not go to the house of a           poor at the time when he is dead. I will go to the           house of  poor arrange  or his  medical  treatment           provide him  with medical  treatment  provide  him           with medical  aid in  hospital and  will  get  the           money arranged.  But I  will not do like Hardyalii           who visited the house of late Bararu Ram very poor           person of Mauza Sarialakkar Tansutra Tikka Pathiar           who died  without medical aid on the day of Kappar           Dhulai and  participated  in  the  meals  of  shok           Saradh in order to befool the people.           14. Like  Hardyalji I  will  also  not  visit  the           people on  the occasion  of marriages  etc.  If  I           visit such places in my capacity as an M.L.A. then           naturally 189           40/50 other  persons will  also gather  there  and           that will  add to  the  expenses  of  the  persons           celebrating  the  marriage.  But,  of  course,  if           someone invites me before marriage I will go there           and will  help him in making up the deficiency, if           any.           15. I  will never try to befool the poor people as           Mr. Hardyal has deceived a very poor old man. Five           years ago an old man gave an application to Mr.           Hardyal to  the effect that he was a very poor man           and his son was a matriculate and that Mr. Hardyal           should help  in providing  a job to the boy. Three           years thereafter  that boy  died. When the time to           seek votes  came, Mr.  Hardyal put his hand on the           shoulders of  the old  man and  said that  he  was           arranging  for   the  immediate   arrival  of  the           appointment orders of his son.           16. Interviews for the posts of Patwaris were held           on 30.1.1982  at Dharamsala.  Interview cards were           issued to 125 boys of every Tehsil, that is to say           that 500  boys were  called for  interview from  4           Tehsils, but  only 7 cards were issued to the boys           of Nagrote  constituency. Mr.  Hardyal has  got it           done deliberately  because Mr. Hardyal wanted that           the seats  in the  share of  Nagrota  constituency           should go to Pt. Sant Ram and Sat Mahajan.           17.  Panchayat  Sangathan  of  Nagrota  Block  had           passed a  resolution 2-1/2  years back  that Bador           should be  made a  Sub Tehsil.  During the  Janata           regime, Shanta  Kumarji had  ordered to  establish           Sub  Tehsils   at   Kundia.   Baijnath,   Fatehpur           (Nurpur),  Bangana   (Una),   Amb   (Una),   Badoh           (Nagrota), Kotkhal etc. All other Sub Tehsils have           since been  established but  the establishment  of           Badoh Sub  Tehsil was withheld by Mr. Hardyal with           the view that he may inaugurate its inception when           the  elections  are  near  and  thus  mislead  the           innocent village folks that he has established the           Sub Tehsil.           18. On  18th January,  1981 Ghirth  Mahasabha  had           demanded  from   the  Centre  to  open  recruiting           offices of  Air Force  and  Navy  at  Nagrota  but           Chaudhary Hardyal  had flatly  refused to  support           this demand.           Why so? 190

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         19.  Chaudhary   Hardyal  has  flatly  refused  to           support the  demands pertaining  to the  quota  of           Backward  classes   but  he   managed  to   obtain           admission In  the  medical  college  for  his  con           against a seat of backward classes. Why co?           20. 15  years ago Mr. Hardyal was the President of           the Jan Sangh Group of the Tea Garden Trade Union,           and  Joined   the  Congress   after  shifting  his           loyalty. It  is for  this reason  that he does not           help the  village people to secure the employment.           He helps  only the  children of  rich people, that           too outsiders.  The lands  have been  given to the           tenants on  the basts  of the  provisions  of  the           Constitution  of   India.  Mr.  Hardyal  has  been           misleading the  innocent people  saying that It lo           he who  has provided  them with  lands, It  is all           false. I  earnestly wish  the  success  of  Janata           Party candidate  Mr. Kanshi  Ram through  your all           possible efforts.                                            Parma Nand                                       R/o Pathiar Halqa                                        Nagrota, Bagwan.           Modern Press, Nagrota      So far  as a  charge of  corrupt  practice  within  the meaning of sub-section (3) of section 123 is concerned there Is not  much difficulty,  The appellant  and respondent both belong to  the same  caste and community and the contents of the offending  poster does not indicate that the voters were asked to  refrain from voting in favour of the respondent on the ground  of caste.  All that it contains is that although respondent belongs  to the  same community  he has got scant regard for  his caste  and community people. This can hardly mean that  the poster  Incites the voters who were mostly of the same  community from refraining from voting In favour of the respondent  on the ground of caste & community. The real difficulty arises with regard to the charge of corruption as defined tn  sub-section (4) of section 123. In order to make out the  charge of  corruption under  sub-section  (4),  the election petitioner  has  to  show  that  (1)  the  impugned statement of facts was published by a candidate or his agent or by any other person with the consent of the candidate or 191 his agent  (ii) that  the statement  was false and which the maker either  believes to be false or does not believe to be true (iii)  that  the  statement  relates  to  the  personal character of  a candidate  and (iv)  that the  statement was reasonably calculated  to prejudice  the  prospects  of  the other candidates’  election. All  the aforesaid  ingredients had to  be established  before an  election  petitioner  can succeed on the charge of corrupt practice.      Now we proceed to deal with the points raised on behalf of the  parties. The  first contention raised by the learned counsel for  the appellant is that the Election Petition was liable to  be dismissed in view of section 82 (b) of the Act for not impleading Kanahi Ram who was a contesting candidate and against  whom allegations  of corrupt  practice had been mate.  The  learned  Single  Judge  however  overruled  this objection on  the ground  that  the  allegation  of  corrupt practice, If  any, made  against Kanshi  Ram pertained  to a period prior to his becoming a candidate and as such It will not attract  section 82 (b) of the Act, The impleadment of a candidate against whom a charge of corrupt practice has been mate, as  a party  is necessary  only  when  the  charge  of corrupt practice  was made  against a  candidate. Section 79 (b) of the Act defines ’candidate’, It reads as under:

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         "79 (b):’candidate’ means a person who has been or           claims to  have been duly nominated as a candidate           at any election." The position  was however  different before the Election Law Amendment in  1975 and  the definition  of  a  candidate  as provided in  section 79  (b) prior  to Its Amendment in 1975 was as under:           "79 (b):  ’candidate’ means  a person who has been           or  claims  to  have  been  duly  nominated  as  a           candidate at  any election  and  any  such  person           shall be  deemed to  have been a candidate as from           the time  when, with  the election In prospect, he           began  to   hold  himself  out  as  a  prospective           candidate." Unless the allegations made against Kanshi Ram about corrupt practice  were  at  a  time  when  he  was  nominated  as  a candidate, clause (b) of section 82 is not attracted. 192      The next  contention raised  on behalf  of the  learned counsel for  the appellant is that the necessary allegations which would  satisfy the  requirement of  sub section (4) of section 123  have not  been made  and therefore the Election Petition was  liable to be dismissed on this score alone. We have perused  the Election  Petition and  in our opinion all the necessary  facts to constitute a corrupt practice within the meaning  of sub  section (4)  have been made out and the Election Petition cannot be dismissed on this ground.      This leads  us to  the important question as to whether the ingredients  of sub-section  (4) of section 123 had been satisfied in  the instant  case to  make  out  a  charge  of corrupt practice.  One of the ingredients of sub-section (4) of section  123 is  that  the  statement  of  the  offending document must  be false  and the  person  making  it  either believes it to be false or does not believe it to be true in relation  to  the  personal  character  or  conduct  of  the candidate. The learned Judge has observed in the judgment as follows:           "I have  already concluded  that the  posters like           P.1 contain  statements of  facts which  are false           and not  believed to be true by the respondent, in           relation to  the personal character and conduct of           the petitioner. " On  a perusal  of the  judgment we  find no  such  finding recorded by  the learned  Judge in  the earlier  part of his judgment. This appears to be under some misapprehension. The learned Judge  has referred  to the contents of the impugned poster but  the court  has got  to record  its  own  finding whether the statements of facts about the personal character of  the  respondent  was  false  to  the  knowledge  of  the appellant or in any case believed by him to be false and not true. In  the absence  of a  finding on  this requirement of sub-section (4),  the appellant  could not  be held  to have committed a  corrupt practice  within the meaning of section 123(4) of  the Act.  The learned  Judge, in our opinion, was not justified  by assuming  that he  had already  recorded a finding on this aspect.      The next  question for  consideration  is  whether  the contents  of  the  impugned  document  attack  the  personal character of  the respondent or only the political character of the  respondent. The  requirement of  sub-section (4)  of section 123  is that  the content  of the  impugned document should relate 193 to  the   personal  character   and  not  to  the  political character.  The  law  is  well  settled.  Adverse  criticism

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however severe,  however undignified,  ill mannered, however regrettable it  might be,  in the  interest  of  purity  and decency of  public life, in relation to the political views, position, reputation  or action  of a  candidate  would  not bring it  within  the  mischief  of  the  statute.  What  is objectionable is  a false  statement of fact and not a false statement of opinion however, unfounded or unjustified.      A distinction  has  been  drawn  between  the  personal character or  conduct of  the candidate  and his  public  or political character  and conduct.  Law postulates  that if a false statement is made in regard to the public or political character of the candidate it would not constitute a corrupt practice even  if it is likely to prejudice the prospects of that candidate’s election. The public or political character of a  candidate is open to public view and public criticism. If a  false statement  is made  about the political views or his public  conduct or  character, the  electorate would  be able to judge the allegations on the merits and could not be misled by any false allegation in that behalf. It is on this theory that  false statements  of facts  affecting public or political character  of a  candidate are  not brought within the mischief  of section  123(4). The  courts have taken the view that  it is only when a person ’beneath the politician’ is sought  to be  assaulted that  sub-section (4) of section 123 of  the Act  is attracted.  In some  border  line  cases difficulty arises  to find out whether the assault is on the person ’beneath  the politician’  that is  on  the  personal character and  conduct of  a man or on his political opinion and conduct.  It will  depend on  the  facts  of  each  case whether in  the particular  given case the assault is on the personal character  and conduct  of the  candidate or on his political conduct.      In the instant case the contents of the impugned poster have been  set out  above. The respondent has been either an M.L.A. Or  a Minister  for the  15 years  and  most  of  the allegations relate  to his  achievements or  failures as  an M.L.A. Or  as a  Forest Minister.  Points 1  to  14  of  the impugned document  which have already been quoted in extenso in the  earlier  part  of  the  Judgment  dealing  with  the political failures of the respondent. Except paragraph 15 of the  offending   poster  other   paragraphs  deal  with  the political character and conduct of the respondent. Paragraph 15 reads as follows: 194           "I will never try to befool the poor people as Mr.           Hardyal has  deceived a  very poor  old man.  Five           years ago an old man gave an application to Mr.           Hardyal to  the effect that he was a very poor man           and his son was a matriculate and that Mr. Hardyal           should help  in providing  a job to the boy. Three           years thereafter  that boy  died. When the time to           seek votes  came, Mr.  Hardyal put his hand on the           shoulders of  the old  man and  said that  he  was           arranging  for   the  immediate   arrival  of  the           appointment orders of his son." This also  relates to  the  failure  of  the  respondent  in getting a  job for  the son  of the  old man in spite of his assurances for  the same. He continued to give the assurance even though  the son  of the  old  man  has  died.  It  only indicates that  there was  no  touch  of  sincerity  in  the assurances of  the respondent  either  as  M.L.A.  Or  as  a minister. It, however, may be said that the contents of this paragraph also  malign the personal character and conduct of the respondent. All other paragraphs deal with the political failures or political opinion of the respondent.

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    The electorate  at the  time of election has to be kept In the  forefront in  judging whether  a publication  of the statement  has   affected  the  voters.  The  court  has  to ascertain whether  the statement Is reasonably calculated to prejudice the  prospect of  the candidate In an election. It would be unrealistic to ignore that when appeals are mate by the candidate  there is  an element  of partisan feeling and there is extravagance of expression tn attacking one another and the  court has  to consider  the effect  of the impugned document on  the mind  of the  ordinary voters  who read the poster.      Even assuming for the sake of argument that some of the paragraphs of  the  offending  poster  assail  the  personal character of  the respondent, the charge of corrupt practice within the  meaning of  subsection (4) of section 123 cannot be mate  home unless  it was  further established  that  the impugned statement of fact is false and the candidate either believed that statement to be false and not believe it to be true. We  have already  found that the learned Judge has not recorded any  categorical finding  on  this  aspect  and  he erroneously assumed  that he hat already recorded a finding. On the  evidence  on  the  record  we  can’t  say  that  the statement of  fact assailing  the personal  character of the respondent  was  false  or  at  any  rate  believed  by  the appellant to be false and not true. 195      Shri Krishna  Murti Iyer for the respondent strenuously A contended  that even if lt is fount that the appellant was not responsible  for the printing of the poster still if the charge of  publishing And  distributing the offending poster by the  appellant or  his election  agent or  by  any  other person with  his consent  is established  the appellant will not be out of the wood.      The allegation  made tn  the Electron  Petition is that the appellant  was  responsible  for  the  printing  of  the offending poster  and also  for publishing  and distributing the  same  In  various  meetings.  The  first  link  of  the offending document  that It  was printed  at the Instance of the appellant  has not  been established  at all. Rather the evidence of  P,W, 2  Shri Om Prakash Sarotri runs counter to the allegation. In his deposition he said :           "I have  brought the  manuscript of the poster. On           3rd March, 1982 the manuscript of the posters like           Ex,P.l was given to me for printing by Shri Kanshi           Ram  Chauthary,   Pradhan  of  Pathiar  Panchayat,           ,,,,,,,,.,,.,,,,..,.,,,,.,,,,,,,,,,,,,,,,,,When  I           asked Shri Kanshi Ram as to why he did not mention           his own  name in  the poster, he told me that Shri           Parma Nand  is his elder brother and the poster is           to be  issued in his name ..˜.....................           I asked  for making  some payment  in advance  for           printing the  posters. Shri  Kanshi Ram  paid me a           sum of Rs, 125 as advance I delivered 3000 posters           to Shri  Kanshi Ram  who was  accompanied by  some           persons and  he paid  me the balance amount of Rs.           225 on  that day.  I had issued a receipt In token           of the receipt of the amount to Shri Kanshi Ram in           the name of Shri Parma Nand."           In cross examination he admitted that :           "There were two or three persons accompanying Shri           Kanshi Ram but the respondent was not seen by me."      The respondent tn the Election Petition was the present appellant. Therefore  on the statement of the witness of the respondent-election petitioner,  The  order  was  placed  by Kanshi Ram  Chaudhary, the brother of the respondent. On the

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offending 196 poster election  symbol of  the Janata  Party i.e.  a farmer with a  plough bn  his shoulder within a wheel (Haldhar) was shown on  the top  of the  poster soliciting vote for Janata Party candidate,  Shri Kanshi  Ram. In  the end it solicited vote for Shri Kanshi Ram, Janata Party candidate. The Modern Press Nagrote,  Bagwan was  shown  as  the  printer  of  the poster. It  also showed Shri Parmanand, resident of Pathiar, Halqua Nagrote (Bagwan) as the publisher of the poster. Such a poster on the face of it could not have been issued by the appellant through Parmanand who was admittedly the cousin of Shri Kanshi  Ram in  whose favour  the said poster was taken out. Neither  the name  of the  appellant nor  his party was anywhere mentioned in the said poster. me learned Judge rest content only  by observing that the respondent may have some connection with  the printing.  But in  our opinion  on  the statement of P.W.2 itself the allegation, about the printing of the  poster at  the instance  of the appellant is belied. the learned  Judge however  was of  the opinion that even if the respondent  has failed  to establish  that the appellant was responsible  for the  printing of  the poster,  he could still be held up for the charge of corrupt practice if he or his  election   agent  or   persons  with  his  consent  had distributed the  poster in  various  meetings.  The  learned Judge has  recorded a finding that the appellant himself had distributed the  offending document  in various meetings. He however,  as  stated  earlier,  refrained  from  giving  any finding as  to Whether  his election  agent or other persons with his consent had distributed the offending document.      In our  opinion it  does not  stand to  reason  that  a poster which  was issued  at the  instance of  Janata Party, which contained the symbol of the Janata Party, invoking the voters to  vote for  Kanshi Ram the rival candidate would be distributed in the meetings by the appellant. Kanshi Ram was a candidate opposing the appellant.      The learned  Judge has  simply given the synopsis of 24 witnesses produced  on behalf of the election petitioner and 17 witnesses  on behalf  of  the  appellant.  But  there  is absolutely no  discussion of  the evidence. The court has to give  reason  why  it  believes  a  particular  witness  and discards the other. But there  is absolutely  no  discussion and it  appears to  be mere  his ip  se dixit to rely on the statement of  P.W.17 Shri  Kedar Nath Bassi, P.W.19 Nek Ram, P.W.20 Gian  Chand produced on behalf of the respondent. The learned Judge  also relied  upon the  alleged  admission  of Jaishi Ram R.W.4 that Ramchand 197 Bhatia had  distributed  the  offending  poster  on  various dates. Curriously  enough there  is no such admission in the statement in  chief or  cross examination  of  R.W.4.  There appears to be misreading of the deposition of R.W.4. It must be remembered that the election proceedings involving charge of corrupt  practice are of quasi criminal nature and it was for the election petitioner to prove beyond reasonable doubt all the necessary facts which would establish the allegation Of corrupt  practice that  have been alleged in the Election Petition. The  respondent has  failed to  establish the link that the  appellant was  responsible for the printing of the offending poster. If the important link of the charge is not established it  will be  difficult to  accept the succeeding link that respondent or his agent or person with his consent distributed the offending poster in the various meetings. It would be  unsafe to  accept the  oral evidence  on its  face value  without   seeking  for   assurance  from  some  other

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circumstances speak  for  themselves.  The  appellant  would never support  his opponent  by reading  or  distributing  a poster which  invokes to  vote for  a rival candidate. It is true that  paragraph 3  of the Election Petition does allege that Shri  Virender, Advocate  of Kangra, Kali Dass, Pradhan Massal Panchayat,  Shri Ram Chand Bhatia, respondent, Kanshi Ram, Janata  Party candidate  and Shri  Kidar Nath Bassi who was election  incharge in the constituency for B.J.P. joined hands  amongst   themselves  and   started  a  villification campaign  against   the  character   and  conduct   of   the petitioner. me  allegations have  been more easily made than made out.  Unless it is established that respondent has also made a  common cause  with the contesting candidate to start villification campaign against the respondent, the appellant cannot be  held responsible for what has been done by Kanshi Ram or his brother.      The learned  Judge has  laid undue emphasis on the post election facts and circumstances to prove that the appellant made a  common cause  with Shri  Kanshi Ram in assailing the personal character  of the respondent. It is true that there is evidence  of Kedar  Nath Bassi P.W.17 that Kanshi Ram had participated in  the victory procession of the appellant and he was  also garlanded  and seemed  to be  happy. But in our opinion the subsequent facts sought to be relied upon is too meagre to warrant a conclusion that appellant and Kanshi Ram was in  collusion, when Kanshi Ram had contested against the appellant and had polled 1049 votes. It all depends upon the attitude  of   a  person.  Some  take  election  result  too seriously and some 198 take in  it sportsman’s  spirit. Have  we not seen that in a game even  the defeated  party says  huray  to  the  winning party? It  is all  in the game. Therefore the mere fact that the Kanshi  Ram was  happy or was garlanded will not lead to the  irresistible   conclusion  that   the   appellant   and respondent had a common cause.      In the  result all  the requirements of sub-section (4) of section  123 have not been satisfied in this case and the learned Judge,  tn our  opinion, has committed a grave error in setting aside the election of the appellant. We therefore allow the appeal and set aside the judgment and order of the learned Single  Judge dated  11th October,  1984 and dismiss the Election  Petition. There  is, however,  no order  as to costs. S.R.                                    Appeal allowed. 199