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PETITIONER: SAMANT N. BALAKRISHNA ETC.

       Vs.

RESPONDENT: GEORGE FERNANDEZ AND ORS. ETC.

DATE OF JUDGMENT: 12/02/1969

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

CITATION:  1969 AIR 1201            1969 SCR  (3) 603  1969 SCC  (3) 238  CITATOR INFO :  RF         1970 SC2097  (264)  R          1972 SC 515  (19)  E          1972 SC1302  (19)  E          1973 SC1419  (5)  R          1974 SC  47  (13)  R          1975 SC1417  (33)  RF         1975 SC1788  (8)  RF         1975 SC2299  (503)  RF         1976 SC 744  (34)  RF         1976 SC1187  (6)  F          1976 SC1599  (29)  R          1979 SC 154  (38)  R          1979 SC 234  (40)  R          1982 SC1559  (26)  D          1983 SC1311  (8)  R          1984 SC 146  (3,5)  R          1984 SC 621  (17)  R          1984 SC1161  (9)  R          1985 SC  24  (2)  RF         1986 SC   3  (21,151)  R          1986 SC  25  (1)  R          1988 SC1275  (26)  F          1990 SC  19  (19)  R          1990 SC1731  (6)  RF         1991 SC1557  (18)

ACT: Representation  of  the  People Act (43 of  1951),  ss.  81, 86(5),  100  (1)(b),  100(1)(d)(ii)  and   123(4)-Difference between  ’material facts’ and ’particulars’-What  amendments are  permissible after the period of  limitation-Candidate’s lack   of  belief  in  statements  made  by  agents  to   be established-Difference   between   s.   100(1)(b)   and   s. 100(1)(d)(ii)-Necessity of proof that Candidate consented to specific corrupt practice-Editor of newspaper attacking  one candidate-When  can  be  deemed  to  be  agent  of  a  rival candidate-Consent   of  candidate,  if  can   be   inferred- Knowledge,  if  sufficient proof  of  consent-Statements  in newspapers,  weight  of-Proof that result  of  election  was materially affected-Burden of proof.

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HEADNOTE: Under  s. 81 of the Representation of the People Act,  1951, an  election  can  be challenged by  means  of  an  election petition  filed within 45 days of the date of  election,  on the grounds specified in s. 100(1).  Section 100 (1) (b) and (d)  (ii) deal with corrupt practices, and s. 123  sets  out what shall be deemed to be corrupt practices.  To  establish the corrupt practice under s. 123(4) the election petitioner must  prove : (a) the publication of a statement of fact  by (i)  a  candidate,  or (ii) his agent, or  (iii)  any  other person  with  the consent of the candidate or  his  election agent;  (b)  that the statement is false  or  the  candidate believes  it to be false or does not believe it to be  true; (c)  that the statement refers to the  personal    character and  conduct  of  another  candidate; and  (d)  that  it  is reasonably  calculated to prejudice that  other  candidate’s prospects  of  election.   Under  the  Explanation  to   the section,  the  word ’agent’ includes an  election  agent,  a polling agent or any person who is held to have acted as  an agent  in connection with the election with the  consent  of the candidate.  If-the corrupt practice is committed by  the returned  candidate or his election agent, under  s.  100(1) (b),  the election is avoided without any further  condition being, fulfilled, but if the petitioner relies on a  corrupt practice committed by any other agent other than an election agent  the petitioner must prove that it was committed  with the consent of the returned candidate or his election  agent as required by s. 100(1) (b), or, that the corrupt  practice which  was  committed  in  the  interests  of  the  returned candidate materially affected the result of the election  in so far as it concerned the returned candidate. [617 A-B; 618 B-D] Section 83 requires that the petition must contain a concise statement  of  the material facts on  which  the  petitioner relies  and the fullest possible particular of  the  corrupt practice  alleged.  ’Material facts’ and  ’particulars’  may overlap  but  the word ’material’ shows that the  ground  of corrupt  practice  and the facts necessary  to  formulate  a complete  cause of action must be stated.  The  function  of the Particulars is to present as full a picture of the cause of action as to make the opposite party understand the  case he  will  have  to  meet.  Under  s.  86(5),  if  a  corrupt practice. is alleged in the petition the particulars of such corrupt practice may be       amended   or   amplified   for ensuring a fair and effective dial, that is, more and better particulars of the charge may be given later, even after the period  of  limitation;  but if a corrupt  practice  is  not previously alleged in the petition, an amendment which  will have the effect of introducing parti- 604 culars  of  such a corrupt practice will not  be  permitted, after  the  period  of ’limitation,  because,  it  would  be tantamount  to  the  making of  a  fresh  petition.   Merely repeating  the  words of the statute does not  amount  to  a proper  statement of material facts where the allegation  of corrupt  practice is the making of a false  statement.   The false statement must appear in the petition. if the  corrupt practice is the publication of an article in a newspaper  no incorporation  of the contents by reference can be  allowed, for,  if a newspaper is not exhibited and only the  date  is mentioned,  the material fact, namely, the  exact  offending portion  of the newspaper, would not have been  stated.   If the  charge  is that an agent did something,  it  cannot  be amplified  by giving particulars of acts on the part of  the candidate or vice versa, because, in the scheme of: election

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law,  publication  of false statements by an  agent  is  one cause  of  action and publication of false statements  by  a candidate  is quite a different cause of action.   They  are separate corrupt practices which cannot be said to grow  out of  the material facts related to another person.   Since  a single corrupt practice committed by the candidate or by his election  agent, or by any other person with the consent  of the  candidate  or  his  election  agent  is  fatal  to  the election, the case must be specifically pleaded and strictly proved;  if  not, such corrupt practice  cannot  be  alleged later  on after the period of limitation [619 C-H; 621  B-D; 622 A-D, F-G; 623 E-H; 629 A-B] In the present case, the election of the first respondent to Parliament from Bombay South Parliamentary constituency, was challenged by the appellant (an elector in the constituency) on  the ground that corrupt practices were  committed.   The result  of the poll was declared on February 24, 1967.   The first  respondent  secured 1,47,841 votes  and  his  nearest rival,  the second respondent, secured 1,18,407 votes.   The petition  was filed on April 7, 1967.  The corrupt  practice alleged  was that the first respondent made  some  speeches, and  that  the  first respondent and two  others,  with  the consent  and for the benefit of the first  respondent,  made false  statements, casting aspersions on the  character  and conduct  of the second respondent, and that those and  other false  statements-were published as news items in the  daily newspaper  ’Maratha’.   Extracts from  the  newspapers  were annexed.   It was also stated that similar false  statements were published in some other issues of the newspaper but  no attempt Was made either to specify the offending portions of the  newspapers  or  to file the extracts  or  the  original issues,  but only the dates were given.  There was  also  no averment  that the first respondent believed the  statements to  be false or did not believe them to be true.  After  the period of limitation, the originals of all the issues of the newspapers  were  filed  and after the  examination  of  the election petitioner as a witness, applications for amendment were made.  The High Court allowed the following  amendments :  (a)  Speeches attributed to the first  respondent  and  a speech  said to have been made at a meeting, when the  first respondent  presided,  casting  aspersions  on  the   second respondent,  to  be  included  among  the  list  of  corrupt practices.  Reports of those speeches appeared in the issues of  the ’Maratha’ which were filed later. (b) An article  in the  ’Blitz, written by the first respondent  defamatory  of the  second  respondent also to be included in the  list  of corrupt  practices. (c) An averment that the editor  of  the newspaper  ’Maratha’ and the first respondent  believed  the statements to be false or that they did not believe them  to be  true.   And  (d)  an averment that  the  editor  of  the newspaper  and the two others were the agents of  the  first respondent.  The High Court however, dismissed the  election petition. [614 E-F; 616 B] In appeal to this Court, on the questions : (1) Whether  all or any of the amendments should be allowed; (2) Whether  the editor of the ’Maratha’ and the two others committed corrupt practices under s. 100 605 (1)  (b)   by  publishing the statements  about  the  second respondent with the consent of the first respondent and  (3) Whether the result of the election in so far as it concerned the   first  respondent  was  materially  affected  by   the publication as required by s. 100(1) (d) (ii), HELD:     (1)  The amendments relating to the  speeches  of, the first respondent and his article in the Blitz should not

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be allowed; but the amendments relating to the agency of the editor of the ’Maratha’ and the two others, and that seeking to incorporate the averment about the lack of belief of  the editor  of  ’Maratha  and the  first  respondent  should  be allowed. [616 E-G] In  the  petition  as originally filed, the  agency  of  the editor of ’Maratha, and the two others was the basis of  the charge  and  the first respondent was left  out.   Only  one allegation was made personally against the first  respondent namely  that he made some speeches but that was  not  relied upon  and no evidence regarding it was adduced.   The  other allegation  in the original petition was that he  made  some statements,  and that the ’Maratha’ published them; and  the extracts  from the ’Maratha were filed as  exhibits.   Since publication of a false statement is the gist of the election offence the charge was against the ’Maratha, and its editor. If it was intended that the first respondent should be  held responsible  then  the  allegation  should  have  been  what statement  he  made and how it offended  the  election  law. ’Mere was however no reference to any statement by the first respondent  himself  throughout  the  petition  as  it   was originally  filed  and in fact there was no  charge  against him.  During the election the second respondent did not once protest  that  the  first  respondent  was  spreading  false propaganda  and  even after election he  did  not  attribute anything to the first respondent.  Therefore, the amendments which  had the effect of introducing new  corrupt  practices relating to the candidate himself which had not been pleaded earlier  should not be allowed, as that kind  of  amendment, sought  after the period of limitation, is prohibited  under the  law.   But  the  allegation  that  in  publishing   the statements in the ’Maratha’ its editor acted as the agent of the first respondent, that the statements were false or were believed to be false by the first respondent and the editor, and  that  they  were calculated  to  prejudice  the  second respondent’s  chances  and  did  so  prejudice,  should   be allowed.   They  are  merely particulars  to  be  added  for completing  the  cause  of  action  relating  to  a  current practice  already alleged.  The result is that the ’case  is confined   to  that  of  a  candidate  sought  to  be   made responsible for the acts of his agent other than an election agent. [620 G; 624 A-F; 632 A-B] Jagan Nath v. Jaswant Singh, [1954] S.C.R. 892-895, Bhim Sen v.  Gopali,  [1960]  22 E.L.R.  288  (S.C.),  Chandi  Prasad Chokani  v.  State of Bihar, [1962] 2  S.C.R.  289,  Sheopat Singh v. Ram Pratap, [1965] 1 S.C.R. 175 and Kumara Nand  v. Brij Mohan, [1967]1 2 S.C.R. 127, followed. Harish  Chandra Bajpai v. Triloki Singh, [1957] S.C.R.  370, explained. Din Dayal v. Beni Prasad, 15 E.L.R. 131, Balwant Singh,  ;v. Election  Tribunal,  15  E.L.R.  199,  Sasivarna  Thevar  v. Arunagiri,  17  E.L.R. 313, Hari Vishnu Kamath  v.  Election Tribunal,  14  E.L.R. 147, Devaiah v. Nagappa,  A.I.R.  1965 Mys. 102, Babulal Sharma v. Brijnarain Brajesh, A.I.R.  1958 M.P. 175 (F.B.), Beal v. Smith L. R. 4 C. P. 1 1 5; Bruce v. Odhams  Press  Ltd.  [1936]  1  K.B.  697  and  Phillips  v. Phillips, [1878] 4 Q.B.D. 127, referred to. (2)  Regard  however  being  had to the  activities  of  the editor of ’Maratha’ as editor and his own personal hostility to the second respon- L10Sup./69-4 606 dent, every act of the editor could not be attributed to the first  respondent.   The editor’s field of  agency  must  be limited to what he said as the agent of the first respondent

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and  would  not embrace the field in which he as  acting  as editor  of his newspaper unless the first respondent’s  con- sent to the corrupt practices was established. [636 E-F; 638 B-C] Consent  need not be directly proved and could  be  inferred from circumstantial evidence, such as a consistent course of conduct of the candidate.  But the circumstances must  point unerringly  to  the conclusion and must not  admit  of  any other  explanation.  Although an election petition is  tried in accordance with the Civil Procedure Code, a corrupt  pra- ctice must be proved in the same way as a criminal,charge is proved.   English  cases dealing with illegal  practices  in which the candidate is held :responsible for the acts of his agent,  are not a proper guide, because English law,  unlike Indian law, makes a distinction between ’illegal  practices’ and   ’corrupt  practices’.   Fourth  the  consent  of   the candidate  must  ’be specific and must be  proved  for  each corrupt practice.  If every act of an agent is presumed  to be with the consent of the candidate there would be no  room for  the application of the extra condition laid down by  S. 100(1)(d), namely, the material effect on the result of  the election,  be  ,cause,  whenever  agency  is  proved  either directly  or  circumstantially, the  finding  about  consent under s. 100(1) (b) will hive, to follow. [637 A-H] In  the  present case, though the newspaper  ran  a  special column  as  an ,election front of the first  respondent,  no article or comment in that column was relied on for  proving a  corrupt  practice.  It was not even  suggested  that  the first  respondent wrote any article for the  ’Maratha.   The statements  which were relied on as corrupt practices  we’re made by the editor of the newspaper in the normal course of running  a  newspaper, as news items or  in  the  editorial. They  stated  the policy of the newspaper and  its  comments upon the events.  Many of the news items ,appeared. in  more than  one paper.  If it could not be said that  the  editors of-each  of  those papers acted as an agent  for  the  first respondent  there is no reason for, holding that the  editor of  ’Maratha’ alone acted as such agent.  It was not  as  if the matter was left entirely in the hands of the ,editor who acted  as a whole time agent or solely as the agent  of  the first  respondent, nor is it a case of some persons  setting up  the first respondent as a candidate and  sponsoring  his cause.   The editor did not publish any propaganda  material such as leaflets or pamphlets.  Therefore, though the editor was a supporter and agent of the first respondent, it  could not  be  said that the first respondent  consented  to  each publication  as it appeared or even generally  consented  to the publication of items defaming the character and  conduct of  the  second  respondent.  The  first  respondent  denied knowledge  of the. articles.  From his false suppression  of some other facts and denial of others, it could not be  said that  his  denial  of  knowledge  of  the  articles  in  the ’Maratha’ was also false.  But even if he had knowledge,  it would  not  be sufficient, because, the  law  requires  some concrete  proof, direct or circumstantial, of  consent,  and not  merely ’of knowledge or connivance.  Further,  no  such inference regarding the first respondent’s consent could be drawn from the comments and speeches attributed to the first respondent by the ’Maratha’ and other newspapers or from any similarity  of ideas or language, because, news  items  when published  are  garbled versions and cannot be  regarded  as proof  of what actually happened or was said  without  other acceptable evidence through prom witnesses. [629 B-H; 630 A- B: 632 F-H; 633 A-D; 634 A-H; A-G; 636 AD; 638 A-G; 639 A-B] As  regards the other two persons, even  evidence  regarding

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their  agency was non-existent and there was no material  on which  the  first respondent’s consent to  their  statements could be presumed or inferred. [640 A-B]                             607 Therefore, since the consent of the candidate to the corrupt Practice  was  not proved the case will have  to  be  judged under  s. 100 (1) (d) (ii) and not under s. 100(1)(b).  [640 D] Rama  Krishna’s case, C.A. No. 1949/67 dated  234-68,  Inder Loll Yugal Kishore v. Lal Singh, A.I.R. 1961 Raj. 122, Gopal Swami v. Abdul Hamid Chowdhury, A.I.R. 1959 Assam 200, Adams v. Hon.  E. F.. Leveson Gower, 1 O’Malley & Hardcastle  218, Christie  v. Grieve, 1 O’Malley & Hardcastle  251,  Spencer, John  Blundell v. Charles Harrison, 3 O’Mally  &  Hardcastle 148,  Biswanath Upadhava v. Haralal Das, A.I.R.  1958  Assam 97,  Abdul  Majeed  v., Bhargavan, A.I.R.  1963  Kerala  18, Rustom Satin v. Dr. Sampoornanand 20 E.L.R. 221, Sarala Devi Pathak  T. Birendra Singh, 20 E.L.R. 275, Krishna  Kumar  v. Krishna Gopal, A.I.R. 1964 Raj. 21, Lai Singh v. Vallabhdas, A.I.R. 1967 Guj. 62, Badri Narain v. Kantdeo Prasad,  A.I.R. 1961  Pat. 41, Sarat Chandra v. Khagendranath,  A.I.R.  1961 S.C.  334 and Taunton’s case, I O’Malley &  Hardcastle  181, 185, referred to. Bayley  v. Edmunds, Byron & Marshall (1894) 11  T.L.R.  537, distinguished. (3)  To  bring  a case under s. 100(1) (d) (ii) it  is  not sufficient to prove that a person acted as an agent with the consent  of  the  candidate.  The petitioner  will  have  to establish that the conditions required by s.  100(1).(d)(ii) and  s.  123(4) are satisfied, that is : (a)  that  a  false statement  was  made  by  an  agent,  (b)  that  the   first respondent  did  not believe, the statement to  be  true  or believed it to be false; (c) that it related to the personal character and conduct of the second respondent; (d) that  it was reasonably calculated to harm the chances of the  second respondent; and (e) that it in fact materially affected  the result of the election in so far as the first respondent was concerned.   Conditions (a), (b) and (c). were  admitted  by the  first respondent and, since the articles  cast  violent aspersions on the second respondent and showed a  deliberate attempt  to  lower  his character, condition  (d)  was  also satisfied.  But as condition (e)   was  not  satisfied,  the election petition should be dismissed. [640 D-H] Even  after  considering the nature of attacks made  on  the second  respondent, the frequency and extent  of  publicity, the  medium  of circulation and the kinds of  issues  raised before   the   voters,  it  could  not  be  said,   in   the circumstances of this case, that the result of the. election in  so  far  as  the  first  respondent  was  concerned  was materially  affected.   The matter could not be  decided  on possibilities  or on a reasonable judicial  guess,  because, the  law  requires proof, and though s. 100(1) (d)  casts  a difficult  burden  on the election petitioner,  that  burden must be successfully discharged by him. [641 B-D; 644 B-D] There  was  a large difference (about  30,000)  between  the votes received by the two rival candidates, namely the first and  second  respondents, and as many as 38,565  votes  were cast  in  favour  of  the remaining  candidates  and  it  is impossible  to  say how much the second respondent  lost  or first  respondent gained by reason of the false  statements. After the election the second respondent never for a  moment attributed  his defeat to the false propangada of the  first respondent or his supporters and even said that the election was conducted with propriety. [64-3-E-H; 644 D-F] Vashist  Narain Sarma v. Dev Chandra, [1955] 1  S.C.R.  509,

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Surendra  Nath Khosla v. Dalip Singh, [1957] S.C.R. 179  and Inayatullah v. Diwanchand Mahajan, 15 E.L.R. 219, 235,  236, followed. Hackney’s case, 2 O’Malley and Hardcastle, 77, referred to. 608

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 895 and 896 of 1968. Appeals  under S. 116-A of the Representation of the  People Act, 1951 from the judgment and order dated January 29, 1968 of the Bombay High Court in Election Petition No. 6 of 1967. R.   Jethamalani  and H. N. Hingorani and K. Hingorani,  for the appellant (in C. A. No. 895 of 1968). C.   K. Daphtary, A. K. Sen, K. S. Cooper and K.  Hingorani, for the appellant (in C. A. No. 896 of 1968). A.   S.  R. Chari, Porus A. Mehta, S. B. Naik, Kumar  Mehta, R.   Nagaratnam  and K. Rajendra Chaudhuri,  for  respondent No. 1 (in both the appeals). The Judgment of the Court was delivered by Hidayatullah,   C.J.  In  the  last  General   Election   to Parliament from the Bombay South Parliamentary  constituency eight  candidates  had offered  themselves.   The  answering respondent  Mr.George  Fernandez secured 1,47,841  votes  as against  his  nearest  rival  Mr.  S.K.  Patil  who  secured 1,18,407  votes.   The remaining candidates  secured  a  few thousand  votes  between them.  The result of the  poll  was declared on February 24, 1967. and Mr. George Fernandez  was returned.   An election petition was filed by Mr. Samant  N. Balakrishna, an elector in the constituency.  It  challenged the  election  of Mr. Fernandez and was  ostensibly  in  the interest  of  Mr. S. K. Patil.  The  election  petition  was keenly  contested and Mr. S. K. Patil gave his full  support to  the petition.  The election petition failed and  it  was dismissed  with  an  order for costs  against  the  election petitioner  and Mr. S. K. Patil.  Two appeals have now  been filed against the judgment of the Bombay High Court, one  by the  election petitioner and the other by Mr. S.  K.  Patil. They have been heard together and this judgment will dispose of both of them. The  petition was based on numerous grounds which were,  set out  in  paragraph 2 of the petition.   These  grounds  were shown separately in sub-paragraphs A to J. Sub-paragraphs  A to  D  dealt with the invalidity of the  election  for  non- compliance  with s, 62 of the Representation of  the  People Act  and  Arts.  326 and 327  of  the  Constitution.   These concerned  the  secrecy of ballot (A), registering  of  some voters  in  two constituencies (B),  omission  of  qualified voters from electoral rolls (C) and impersonation by persons for dead or absent voters (D).  These, four grounds                             609 were  given up in the High Court itself and we need not  say anything  about  them.   Sub-paragraphs  E  to  J  contained allegations   of  corrupt  practices.   The   petition   was accompanied  by  four  annexures Nos.  A  to  D  which  were extracts  from  newspapers on which the  charge  of  corrupt practices  was  based.  The grounds may now  be  noticed  in detail. Sub-paragraph  E  dealt with statements made  at  a  meeting dated  February  16,  1967  at  Shivaji  Park  by  Jagadguru Shankaracharya  charging Mr. S. K. Patil with complicity  in arson  of  November 7, 1966 at New Delhi and attack  on  the residence of the Congress President with injuries caused  to

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people.   In  these  articles from  the  ’Maratha’  and  the ’Blitz’  extracts  of  which  were  quoted  and  annexed  as Annexure A, Mr. Patil was described as hypocrite,  insincere and  dishonest.   Similar  speeches  by  Mr.  Madhu  Limaye, (,another  candidate  of  the  S.S.P.  by  which  party  Mr. Fernandez  was sponsored) were relied upon.  The  statements were  "inspired by Mr. Fernandez" and "with his consent  and for  his  benefit".   It was said that they  amounted  to  a corrupt  practice under s. 123(4) of the  Representation  of the People Act. In Sub-paragraph F, a statement of Jagadguru  Shankaracharya on  cow slaughter was made the ground of attack.  It was  to the  effect that Mr. S. K. Patil only pretended  to  support the  anti-cow-slaughter  movement but had  done  nothing  in furtherance  of it.  It was contended that the cow was  used as a religious symbol and the speeches offended against  the Election Law as stated in section 123 (3).  These statements were also said to be inspired by Mr. Fernandez and were made with his consent and for his benefit. Sub-paragraph  G referred to speeches of Mr.  Fernandez  and his  workers  with  his knowledge  and  consent.   In  those speeches  Mr. Fernandez is said to have described Mr. S.  K. Patil  as  the  enemy of Muslims  and  Christians  who  only professed to discourage slaughter of cows and he Was charged with  interfering with the articles of faith of the  Muslims and Christians and seeking expulsion of Muslims to Pakistan. This   was  said  to  offend  against  s.  123(3A)  of   the Representation of the People Act. In  Sub-paragraph H it was alleged that the  ’Maratha’  pub- lished a false statement to the effect that Mr. S. K.  Patil had  paid  rupees 15 lacs to Mr. Jack Sequeira to  undo  the efforts  of  Maharashtrians  for  incorporation  of  Goa  in Maharashtra.  The extract from the ’Maratha’ of January  25, 1967 was annexed as Ex.  B. The speech of Mr. H. R.  Gokhale who  published  a similar statement, was also  referred  to. These were made the grounds of complaint under s. 123 (4) of the Representation of the People Act. 610 In  Sub-paragraph 1 four issues of the ’Maratha’ of the  5th and  31st  January, 1967 and 5th and 8th of  February,  1967 were  exhibited  as Ex.  C. It was stated in the  first  two that the Shiv Sena supported the Maharashtra traitor  Sadoba Patil  and  that the Shiv Sena was really  Sadoba  Sena.   A cartoon  showing  Mr.  S. K. Patil as  Vishwamitra  and  the leader of Shiv Sena as Menka with the caption ’Sadoba denies that  he has no connection with Shiv Sena  like  Vishwamitra Menka  episode", was the third.  The last of these  articles was headed "harassment from Gondas of Sadoba Patil Shiv Sena in   the  service  of  Sadhshiv  (S.   K.  Patil)".    These statements  were said to be false and made by the  ’Maratha’ in  favour of respondents other than respondent No.  2  (Mr. S.  K.  Patil) or at any rate on behalf  of  Mr.  Fernandez. These  were said to prejudice the minority  communities  and thus  to offend section 123(4) of the Representation of  the People  Act.  The statements were said to be made  with  the knowledge and consent of Mr. Fernandez and for his benefit. In  Sub-paragraph J three issues of ’Maratha’ of  the  24th, 28th and 31st December 1966 were referred to.  In the  first it  was stated that "Shri S. K. Patil will go to Sonapur  in the ensuing election.  Fernandez says in his Articles  Patil mortgaged  India’s Freedom with America by entering into  P. L.  480  agreement  and Mr. Patil  had  no  devotion,  love, respect  for this country at all." In the second  Mr.  Patil was described as Nagibkhan of Maharashtra.  The third was  a cartoon in which Shankaracharya was depicted as saying  "Cow

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is  my mother.  Do not kill her" and Patil S. K.  as  saying "Pig is my father".  These extracts were annexed as Ex.   D. Then followed a paragraph in which was said : "Similar false statements  in relation to Respondent No. 2’s character  and conduct  were published in several issues of Maratha  Daily" from  December 12, 1966 to February 21, 1967 and  33  issues were mentioned by date.  These were also said to be Ex.  D. This  was the original material on which the petition  filed on April 7, 1967 was based.  Mr. Fernandez filed his written statement  on June 14, 1967 and Mr. S. K. Patil on  July  4, 1967.   Later five amendments were asked for.  By the  first amendment, which was orally asked and allowed, reference  to the  33  articles  was  altered and they  were  said  to  be contained  in  Ex.   E instead of Ex.  D. Ex.   E  was  then introduced and gave the list of 33 articles in the ’Maratha’ and  one  article in the Blitz, and the  extracts  on  which reliance  was  placed.  On July 4, 1967 an  application  for amendment was made seeking to add two Sub-paragraphs 2-K and 2-L.  2-K is not pressed now and need not be mentioned.   By 2-L the petitioner asked for addition to the list of corrupt practices  of  a reference to an article dated  November  5, 1966  in  the  Blitz.   This  article  was  written  by  Mr. Fernandez.                             611 On  September  12, 1967, an application was made  for  seven additions  to paragraph 2J.  Seven incidents were sought  to be included.  Of these four were ordered by the Court to  be included in 2-J on September 15, 1967 as  Sub-sub-paragraphs (i)  to (iv) and three were rejected.  In the first  of  the Sub-sub-paragraphs  so,  included,  a  speech  at  a  public meeting at Shivaji Park by Mr. Fernandez on January 31, 1967 was  pleaded in which Mr. Fernandez is said to have  made  a statement  that  even  God  could  not  defeat  the   second respondent  (Mr.   S. K. Patil) because  unlike  the  second respondent God was not dishonest.  It was also alleged  that Mr. S. K. Patil won elections by "tampering with the  ballot boxes or substituting the same".  These statements were said to be made by Mr. Fernandez deliberately and maliciously and that he believed them to be false or did not believe them to be  true.   The  report of the speech was  quoted  from  the ’Maratha’  of February 1, 1967 and was included as  part  of Ex.   E. In the second Sub-sub-paragraph a Press  Conference at Bristol Grill Restaurant on February 9, 1967 addressed by Mr.  Fernandez  was  referred to.  At  that  Conference  Mr. Fernandez charged Mr. S. K. Patil with "unfair and unethical electioneering  practices"  and  as  illustrations  of   his methods  mentioned  the release of 70  dangerous  characters from jail on parole and the suspension of externment  orders against some and the allowing of some other externed persons to  return,  were  alleged.  It was  also  said  that  these persons  were  being  used by Mr.  Patil  in  his  campaign. Extracts  from the issues of the ’Maratha’ of the  10th  and 11th  February,  1967 were made part of annexure E.  In  the third  Sub-sub-paragraph  a public meeting  at  Sabu  Siddik Chawl,  of’  February  10, 1967 was referred  to.   At  that meeting,  it wag alleged, Mr. Fernandez described Mr.  Patil as  an "American Agent, Dada of Capitalists and  Creator  of Shiv  Sena." All these statements were said to be false  and to reflect upon personal character and conduct of Mr.  Patil and  thus  to be corrupt practices under s. 123 (4)  of  the Representation of the People Act.  In. the fourth  paragraph a  meeting of January 8, 1967 at Chowpati, presided over  by Mr. Fernandez was referred to.  Mr. Madhu Limaye was said to have addressed that meeting and referred to the incident  of November  7, 1966.  These statements were also, said  to  be

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false  and to materially affect the prospects of Mr.  Patil. In this Sub-sub-paragraph it was also alleged that Mr. P. K. Atrey,  Editor  and Proprietor of  the  ’Maratha,  Jagadguru Shankaracharya  and  Mr.  Madhu Limaye were  agents  of  Mr. Fernandez and had made these statements in his interest  and with his consent. The  petitioner  also  asked for  addition  of  three  other grounds of corrupt practices, which the Court did not  allow to be included. Paragraph 2-L to which we have referred  was an  article by Mr. Fernandez.  It was captioned as  a  fight against political 612 thuggery" and included the following passage which was  made the basis of the following charge :               "These men (including the 2nd Respondent) from               the hard core of the coterie which control the               destinies  of  the nation,  even  decides  who               should  be the Prime Minister and  who  should               not be, hounds out the few honest  Congressmen               from  Public  life,  props  up  the  Aminchand               Pyarelal  and Chamanlal and supports  them  in               all  their  misdeeds  and puts  a  premium  on               dishonest businessmen and industrialists."               This allegation was said to suggest dishonesty               in  Mr.  Patil.  The other  amendments  which               were  disallowed referred to a speech  at  Dr.               Vigas Street on February 27, 1967, a speech by               Dr.  Lohia  at  Chowpati on  January  1,  1967               published in ’Andolan’ of January 9, 1967  and               a  Press  Conference by Mr. Madhu  Limaye at               Bristol Grill Restaurant on December 10, 1966.               Prior to the application for amendment certain               events  had happened to which it is  necessary               to  refer.   On  April  7,  1967  the   office               objected  that the originals of Exs.  A, B,  C               and  D ha not been filed.  The remark of  the               office is as follows :-               "Exhibits  A, B, C, D are mere repetitions  of               what is mentioned in the body of the petition.               Is  it  not necessary to  annex  the  original               copies of the said newspaper?"               Mr.  Kanuga,  one  of the  Advocates  for  the               petitioner   replied to  the  objection   as               follows :               "We undertake to file the original issues  and               official  translations  later as the  same  is               (sic)  with the Chief translator, High  Court,               Bombay before the service of Writ of Summons".               Till July 3, 1967 no effort seems to have been               made to file the originals.  On that date the               ’Rozanama’ read as follows               "Mr.   Jethmalani applies for leave  to  amend               the petition by pointing out that ’D’ in  last               sentence  of  paragraph 2 on page  12  of  the               petition  be corrected and read as ’E’ and  to               annex reports in original P. C. leave to amend               granted."               The  issues were settled on the same  day  and               particulars  were asked for.  On July 7,  1967               the ’Rozanaina’ read as follows               "Mr.   Gurushani tenders the original  of  the               exhibits   A  (Coll)  to  Exhibit   E   (Coll)               mentioned  in  para  2J of page  1  1  of  the               petition." A chamber summons was taken out because the particulars were

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not  supplied  and on August 4, 1967  the  particulars  were furnish- 613 ed.  It was then on September 12, 1967 that the  application for  seven amendments was made, four of which  were  allowed and  three  were  rejected.   This was  by  an  order  dated September 15, 1967. Before dealing with this appeal it is necessary to clear the question  of the amendments and whether they  were  properly allowed.  This question consists of two parts; the first  is one  of fact as to what was exhibited with the  petition  as materials on which the petition was based.  The case of  the petitioner  before  us is that in support of  2J  copies  of relevant  newspapers were filed with the petition.  This  is denied on behalf of the answering respondent. Mr.  Daphtary’s contention is that if the originals  of  the ’Maratha’  had not been filed an objection would  have  been taken in the court and none was taken.  Even witnesses  were examined   and   cross-exhibited  with  reference   to   the statements and the originals must have been in court.  This, in  our opinion, is not decisive.  The first witness  to  be examined was the petitioner himself.  Evidence commenced  on August  25, 1967.  The petitioner proved the copies  of  the newspapers  and they were marked as exhibits.  By that  date the  copies of the ’Maratha’ had already been filed and  the petitioner  in  his evidence referred to all of  them.   The cross-examination,   therefore,  also  referred   to   these documents.   Nothing much turns upon the want  of  objection because  (as is well-known) objection is not taken  to  some fatal defect in the case of the other side since the  party, which  can take the objection, wants to keep it in  reserve. It is true that if the objection had been taken earlier  and had  been decided the petitioner would have had no  case  to prove  on  the new allegations and might not have  led  some evidence.   But we cannot hold from this that any  prejudice was  caused to him.  After all it was his responsibility  to complete his allegations in the petition by inclusion of the copies of the ’Maratha’ and the other side cannot be held to have  waived its objection since that objection was in  fact raised and has been answered in the High Court.  The Rozana- mas  clearly show that the copies of the ’Maratha’ were  not filed with the election petition but much later and in  fact beyond the period of limitation.  Mr. Daphtary characterises the Rozanamas as inaccurate but the internal evidence in the case shows that the Rozanamas were correctly recorded. The petition quoted some of the offending statements in  the newspapers  and  exhibited  them as Exs.  A  to  D.  In  the petition these 10 extracts are to be found in Sub-paragraphs 2E, H, I and J. The change of Exs.  D to E and the filing of E show that the extracts which were with the translator were referable  to  those  extracts  already  mentioned  in   the petition  and not those mentioned in the last  paragraph  of 2J.  It will be noticed that 614 that  paragraph  refers  to 33  numbers  of  the  ’Maratha’. Extracts from those were furnished only on July 3, 1967 when Ex.   E was separately filed and according to the  Rozanama, the originals were filed on July 7, 1967.  Mr. Kanuga  could not  have  referred to all the 33 issues of  the  ’Maratha’. Only 10 extracts from the ’Maratha’ were in Exs.  A to D and of these eight are included in the list of 33 numbers of the ’Maratha’ in the last paragraph of 2J.  If they were already filed,  Mr.  Kanuga would have said so and not  promised  to file  them  later.  He mentions in his note that  they  were with  the translation department and would be  filed  later.

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If  all  the 33 issues of the ’Maratha’ were  already  filed there would be no occasion for the office objection and  the reply  of Mr. Kanuga could apply to two numbers only.   They were the issues of 25th January and 5th February, 1967.  The office  noting  shows that not a single original  was  filed with  the petition.  This appears to us to be  correct.   We are  satisfied  that 10 issues of the ’Maratha’  from  which extracts were included in the petition in Exs.  A to D  were the  only  numbers which were before  the  translator.   Mr. Kanuga’s  remark  applies  to these 10  issues.   The  other issues  which  were mentioned in the last  paragraph  of  2J numbering 33 less 8 were neither in the translator’s  office nor  exhibited  in  the case.  Hence the  amendment  of  the second  reference  from  D  to E and  the  request  to  file original issues. It  seems  that  when  the petition was  filed  a  list  was hurriedly  made of all the issues of the ’Maratha’ to  which reference was likely and that list was included in the  last portion  of 2J.  But no attempt was made either  to  specify the  offending  portions of the newspapers or  to  file  the extracts  or the original issues.  All this was  done  after the period of limitation.  No incorporation of the  contents of  the  articles by reference can be allowed because  if  a newspaper  is not exhibited and only the date is  mentioned, it  is  necessary  to point out the  exact  portion  of  the offending newspaper to which the petition refers.  This  was not  done.  We have to reach this conclusion  first  because once  we  hold  that  the issues of  the  ’Maratha’  or  the extracts  referred  to in the petition were not  filed,  the plea as to what was the corrupt practice is limited to  what was  said  in the body of the petition in paragraph  2J  and whether  it could be amended after the period of  limitation was  over.  The attempt today is to tag on the new pleas  to the  old pleas and in a sense to make them grow out  of  the old pleas.  Whether such an amendment is allowable under the Election Law is therefore necessary to decide. Mr. Daphtary arguing for the appellant contends that he  was entitled  to  the amendment since this was no more  than  an amplification  of the ground of corrupt practice as  defined in S. 123(4) and that the citation of instances or giving of additional parti-                             615 culars  of which sufficient notice already existed in 2J  as it  originally  stood, is permissible.   According  to  him, under  s. 100 the petition has to show grounds and under  s. 83 there should be a concise statement of material facts  in support  of the ground and full particulars of  any  corrupt practice   alleged.    He  submits  that  under   s.   86(5) particulars can be amended and amplified, new instances  can be  cited and it is an essence of the trial of  an  election petition   that  corrupt  practices  should  be   thoroughly investigated.   He refers us to a large body of case law  in support of his contention. On the other hand, Mr. Chari for Mr. Fernandez contends that there  was no reference to the speeches by Mr. Fernandez  in the  petition.  The cause of action was in relation  to  the publication  in  the ’Maratha’ and not in  relation  to  any statement  of Mr. Fernandez himself and that  the  amendment amounts  to  making out a new petition after the  period  of limitation. To decide between these rival contentions it is necessary to analyse  the petition first.  Paragraph 2J as it  originally stood, read as follows :                "The Petitioner says that false statements in               relation  to  character  and  conduct  of  the

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             Respondent   No.  2  were  made  by  the   1st               Respondent and at the instance and  connivance               of  the’ 1st.  Respondent,  Maratha  published               the    following   articles,   as   set    out               hereinafter.   The  petitioner says  that  the               said allegations are false and have been  made               with a view to impair and affect the prospects               of Respondent No. 2’s elections to Lok  Sabha.               Some of the extracts are : etc."               (Emphasis added).               Here  three issues of the ’Maratha’  of  24th,               28th and 31st December, 1966 were referred to.               Of   the  extracts,  the  last  two  make   no               reference  to Mr. Fernandez.  The first  spoke               thus               "Maratha Dated 24-12-66.  Pages 1 and 4.               Shri  S.  K. Patil will go to Sonapur  in  the               ensuing  election.   Fernandez  says  in   his               Articles Patil mortgaged India’s Freedom  with               America  by entering into P.L.  480  agreement               and  Mr. Patil had no devotion, love,  respect               for this country at all."               Then followed this paragraph:               "Similar  false  statements  in  relation   to               Respondent  No. 2 character and  conduct  were               published   in   Maratha  Daily   dated   12th               December, 1966, 17th December, 23rd  December,               24th  December, 28th, 29th and  31st  December               issues, January issues dated 4, 5, 7th,  10th,               18th,   20th,  21st,  28th,  30th  and   31st.               February issues,               616               1st,  2nd,  3rd, 6th, 7th,  8th,  10th,  11th,               14th,  15th,  16th, 17th,  18th,  19th,  20th,               21st.......  These  reports  in  original  are               filed  and true translation are marked Ex.   D               to the petition." We  have already held that the newspapers mentioned  in  the last paragraph were not filed with the petition but on  July 7,  1967  after  the period of  limitation  was  over.   The allegations  thus  were that Mr. Fernandez  made  the  false statements  and they were published in the ’Maratha’ at  his instance  and with his connivance.  There is no  mention  of any  speech at Shivaji Park, or at Sabu Siddik Chowk  or  at Dr.  Vigas Street or the press inter-view at  Bristol  Grill Restaurant.  All these statements which are now referred  to were  said  to  be made by Mr. Fernandez  himself.   By  the amendment a charge of corrupt practice was sought to be made for  the first time in this form.  In the original  petition (Sub-paragraph 2J) there was no averment that Mr.  Fernandez believed  these  statements to be false or that he  did  not believe  them  to  be true and this was also  sought  to  be introduced  by an amendment.  It may, however, be  mentioned that in an affidavit which accompanied the election petition this  averment was expressly made and the appellants  desire us to read the affidavit as supplementing the petition.   By another  application for amendment the petitioner sought  to add a paragraph that the ’Maratha’, Jagadguru Shankaracharya and Mr. Madhu Limaye were agents of Mr. Fernandez within the Election  Law.  By yet another application reference  to  an article  in the ’Blitz’ was ’Sought to be included  as  Sub- paragraph 2L. At the conclusion of the arguments on this part of the  case we announced our decision that the amendment relating to the speeches of Mr. Fernandez at Shivaji Park, Sabu Siddik Chowk

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and  Dr. Vigas Street and his Press Conferences  at  Bristol Grill Restaurant and the article in the ’Blitz’ ought not to have  been  allowed but that the amendment relating  to  the agency of the ’Maratha’ etc. and that seeking to incorporate the averment about the lack of belief of Mr. Fernandez  were proper.   We  reserved our reasons which we now  proceed  to give. The  subject  of the amendment of an election  petition  has been discussed from different angles in several cases of the High Courts and this Court.  Each case, however, was decided on  its  own  facts, that is to say, the  kind  of  election petition  that  was filed, the kind of  amendment  that  was sought, the stage at which the application for amendment was made and the state of the law at the time and so on.   These cases  do furnish some guidance but it is not to be  thought that a particular case is intended to cover all  situations. It  is always advisable to look at the statute first to  see alike what it authorises and what it prohibits.                             617 Section  81  of the Representation of the People  Act,  1951 enables a petitioner to call in question any election on one or more of the grounds specified in s. 100(1) and s. 101  of the Act.  The petition must be made within 45 days from  the date  of election.  Sections 100 and 101 enumerate the  kind of  charges which, if established, lead to the avoidance  of the election of a returned candidate and the return of  some other  candidate.   The first sub-section of  section  100** lays down the grounds for dec-               *"81.  Presentation of petitions.               (1)   An election petition calling in question               any  election may be presented on one or  more               of the grounds specified in sub-section (1) of               section 100 and section 101 to the High  Court               by  any  candidate  at such  election  or  any               elector  within forty-five days from, but  not               earlier  than,  the date of  election  of  the               returned candidate, or if there are more  than               one returned candidate at the election and the               dates  of  their election are  different,  the               later of those two dates.               Explanation-In  this  sub-section,   ’elector’               means a person who was entitled to vote at the               election   to  which  the  election   petition               relates, whether he has voted at such election               or not.               (2)               (3)   Every   election   petition   shall   be               accompanied by as many copies thereof as there               are respondents mentioned in the petition  and               every  such  copy  shall be  attested  by  the               petitioner  under  his own signature to  be  a               true copy of the petition."               **"100.  Grounds for declaring election to  be               void.               (1)   Subject to the provisions of sub-section               (2) if the High Court is of opinion               (a)   that  on  the  date of  his  election  a               returned  candidate was not qualified  or  was               disqualified,  to be chosen to fill  the  seat               under  the  Constitution or this  Act  or  the               Government of Union Territories Act, 1963, or               (b)   that  any  corrupt  practice  has   been               committed  by  a  returned  candidate  or  his               election agent or by any other person with the               consent   of  a  returned  candidate  or   his

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             election agent; or               (c)   that any nomination has been  improperly               rejected; or               (d)   that  the result of the election, in  so               far  as it concerns a returned candidate,  has               been materially affected.               (i)   by   the  improper  acceptance  of   any               nomination, or               (ii)  by any corrupt practice committed in the               interests  of  the returned  candidate  by  an               agent other than his election agent, or               (iii) by  the improper reception,  refusal  or               rejection of any vote or the reception of  any               vote which is void, or               (iv)  by    any   non-compliance   with    the               provisions of the Constitution or of this  Act               or of any rules or orders made under this Act,               the  High Court shall declare the election  of               the returned candidate to be void.               (2)   If  in the opinion of the High Court,  a               returned  candidate  has  been  guilty  by  an               agent,  other than his election agent, of  any               corrupt   practice  but  the  High  Court   is               satisfied :-               (a)   that   no  such  corrupt  practice   was               committed at the election by the candidate  or               his  election  agent, and every  such  corrupt               practice was committed contrary to the orders,               and  without the consent, of the candidate  or               his election agent;               (c)   that  the  candidate  and  his  election               agent   took   all   reasonable   means,   for               preventing the commission of corrupt practices               at the election, and 618 learning  an  election to be void.   These  include  corrupt practices committed by the candidate, his election agent and any person with the consent of the returned candidate or his election  agent.   The  second  sub-section  lays  down   an additional  condition  which must be  satisfied  before  the election can be declared to be void even though the  corrupt practice  is committed by an agent other than  the  election agent.   Section  101*  sets forth the grounds  on  which  a candidate other than the returned candidate may be  declared to have been elected.  Section 101 actually does not add to the grounds in s. 1 00 and its mention in s. 81 seems  some- what inappropriate.  Sections 100 and 101 deal with the sub- stantive  law  on  the  subject  of  elections.   These  two sections   circumscribe   the  conditions  which   must   be established  before  an election can be  declared  void  or another   candidate   declared  elected.    The   heads   of substantive  rights  in  s.  100(1) are  laid  down  in  two separate parts : the first dealing with situations in  which the  election  must  be declared void on  proof  of  certain facts,  and  the second in which the election  can  only  be declared void if the result of the election in so far as  it concerns   the  returned  candidate,  can  be  held  to   be materially  affected on proof of some other facts.   Without attempting critically to sort out the two classes we may now see  what  the conditions are.  In the first part  they  are that the candidate lacked the necessary qualification or had incurred  disqualification,  that a  corrupt  practice was committed  by the returned candidate, his election agent  or any other person with the consent of a returned candidate or his  election  agent  or  that  any  nomination  paper   was

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improperly rejected.  These are grounds on proof of which by evidence, the election can be set aside without any  further evidence.  The second part is conditioned that the result of the election, in so far as it concerns a returned candidate, was  materially  affected by the improper  acceptance  of  a nomination or by a corrupt               (d)   that in all other respects the  election               was free from any corrupt practice on the part               of the candidate or any of his agents,               then  the  High  Court  may  decide  that  the               election  of  the returned  candidate  is  not               void."               *"101.   Grounds for which a  candidate  other               than the returned candidate may               be declared to have been elected.               If  any person who has lodged a petition  has,               in   addition  to  calling  in  question   the               election of the returned candidate, claimed  a               declaration  that  he  himself  or  any  other               candidate  has been duly elected and the  High               Court is of opinion--               (a)   that  in  fact the  petitioner  or  such               other  candidate  received a majority  of  the               valid votes; or               (b)   that  but for the votes obtained by  the               returned  candidate by corrupt  practices  the               petitioner or such other candidate would  have               obtained a majority of the valid votes,               the  High  Court  shall  after  declaring  the               election of the returned candidate to be  void               declare   the   petitioner   or   such   other               candidate,  as the case may be, to  have  been               duly elected." 619 practice committed in his interest by an agent other than an election  agent  or by the improper  reception,  refusal  or rejection  of  votes  or  by  any  noncompliance  with   the provisions  of the Constitution or of the Representation  of the  People  Act  or rules or orders made  under  it.   This condition  has to be established by some evidence direct  or circumstantial.    It   is,  therefore,   clear   that   the substantive rights to make an election petition are  defined in these sections and the exercise of the right to  petition is limited to the grounds specifically mentioned. Pausing  here,  we  may  view  a  little  more  closely  the provisions bearing upon corrupt practices in s. 100.   There are many kinds of corrupt practices.  They are defined later in s. 123, of the Act and we shall come to them later.   But the corrupt practices are viewed separately according as  to who  commits  them.   The first class  consists  of  corrupt practices  committed by the candidate or his election  agent or any other person with the consent of the candidate or his election  agent.  These, if established, avoid the  election without  any further condition being fulfilled.  Then  there is the corrupt practice committed by an agent other than  an election  agent.  Here an additional fact has to  be  proved that the result of the election was materially affected.  We may attempt to put the same matter in easily  understandable language.   The petitioner may prove a corrupt  practice  by the candidate himself or his election agent or someone  with the consent of the candidate or his election agent, in which case he need not establish what the result of the  election would   have  been  without  the  corrupt   practice.    The expression  "Any other person" in this part will include  an agent  other than an election agent.  This is clear  from  a

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special provision later in the section about an agent  other than  an  election  agent.  The law then is this  :  If  the petitioner  does  not  prove  a  corrupt  practice  by   the candidate  or his election agent or another person with  the consent of the returned candidate or his election agent  but relies  on  a corrupt practice committed by an  agent  other than  an election agent, he must additionally prove how  the corrupt practice affected the result of the poll.  Unless he proves the consent to the commission of the corrupt practice on  the part of the candidate or his election agent he  must face the additional burden.  The definition of agent in this context is to be taken from s. 123 (Explanation) where it is provided  that  an  agent "includes  an  election  agent,  a polling agent and any person who is held to have acted as an agent  in connection with the election with the  consent  of the  candidate."  In  this explanation the  mention  of  "an election  agent" would appear to be unnecessary  because  an election  agent  is the alter ego of the  candidate  in  the scheme  of  the  Act  and  his acts  are  the  acts  of  the candidate,  consent  or  no  consent  on  the  part  of  the candidate. 620 Having  now worked out the substantive rights to the  making of the petition, we may now proceed to see what the  corrupt practices  are.  Since we are concerned only with  one  such corrupt practice, we need not refer to all of them.  For the purpose of these appeals it is sufficient if we refer to the fourth sub-section of s.   123.  It reads :               "123.   The  following shall be deemed  to  be               corrupt practice for the purposes of the Act               (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               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.               This corrupt practice may be committed by               (a) the    candidate               (b) his agent, that is to say-               (i)   an election agent               (ii)  a polling agent               (iii) any person who is held to have acted  as               an agent in connection with the election  with               the consent of the candidate.               (c)   by any other person with the consent  of               the candidate or his election agent. We are concerned in this appeal with (a) and (b) (iii)  men- tioned  in  our  analysis.  In  the  original  petition  the allegations  were  made on the basis  of  corrupt  practices committed by a person alleged to have acted as an agent with Mr.  Fernandezs consent.  In the amendment application  the allegation  is  that  the candidate  himself  committed  the corrupt practice under this subsection. As  we  pointed  out  earlier  the  difference  between  the original petition and the amendments will lie in the  degree of  proof necessary to avoid the election.  If  the  corrupt practice is charged against an agent other than the election agent, a further burden must be discharged, namely, that the result of the election was

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621 materially affected.  If, however, the corrupt practice  is charged  against  the  candidate  personally  (there  is  no election  agent  involved here), this further proof  is  not required.  Another difference arises in this way.  In s. 100 (1)  (b) the word ’agent’ is not to be found.  Therefore  an agent other than an election agent will fall to be  governed by the expression ’any other person’.  To get the benefit of not having to prove the effect of the corrupt practice  upon the  election the consent of the candidate or  his  election agent to the alleged practice will have to be established. Again for the establishment of the corrupt practice under s. 123 (4), from whatever quarter it may proceed, the  election petitioner must establish               (a)   publication of a statement of fact, and               (b)   the  statement  is false or  the  person               making it believes it to be false or does  not               believe it to be true, and               (c)   that   the  statement  refers   to   the               personal   character   and  conduct   of   the               candidate, and               (d)   is  reasonably calculated  to  prejudice               the candidate’s prospects. It  appears, therefore, that it is a question  of  different burdens  of proof as to whether the offending statement  was made  by the candidate himself or by an agent other than  an election agent. Having  dealt  with the substantive law on  the  subject  of election  petitions  we  may  now  turn  to  the  procedural provisions in the Representation of the People Act.  Here we have  to  consider sections 81, 83 and 86 of the  Act.   The first  provides  the  procedure  for  the  presentation   of election  petitions.   The proviso to sub-section  alone  is material here.  It provides that an election petition may be presented  on one or more of the grounds specified  in  sub- section  (1)  of s. 100 and s. 101. That as  we  have  shown above  creates  the  substantive right.   Section  83*  then provides that the               *Section 83.               (1)   An election petition-               (a)   shall contain a concise statement of the               material facts on which the petitioner  relies               :               (b)   shall  setforth full particulars of  any               corrupt practice that the petitioner  alleges,               including  as full a statement as possible  of               the  names  of  the parties  alleged  to  have               committed  such corrupt practice and the  date               and  place  of  the commission  of  each  such               practice; and               (c)   shall  be signed by the  petitioner  and               verified  in the manner laid down in the  Code               of Civil Procedure, 1908 for the  verification               of pleadings :               (provided  that where the petitioner  alleges               any corrupt practice, the petition shall  also               be   accompained  by  an  affidavit   in   the               prescribed  form in support of the  allegation               of  such corrupt practice and the  particulars               thereof.               (2)   Any  y  schedule  or  annexure  to   the               petition  shall  also be singed by  the  peti-               tioner and verified in the same manner as  the               petition. L10Sup./69--5

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622 election  petition must contain a concise statement  of  the material  facts on which the petitioner relies  and  further that  he must also setforth fun particulars of  any  corrupt practice  that  the Petitioner alleges including as  full  a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and  place of  the  commission of each such practice.  The  section  is mandatory and requires first a concise statement of material facts  and then requires the fullest  possible  particulars. What  is  the difference between material facts  and  parti- culars?  The word ’material’ shows that the facts  necessary to  formulate  a complete cause of action  must  be  stated. Omission  of a single material fact leads to  an  incomplete cause of action and the statement of claim becomes bad.  The function  of particulars is to present as full a picture  of the cause of action with such further information in  detail as  to make the opposite party understand the case  he  will have  to  meet.   There  may  be  some  overlapping  between material  facts  and  particulars  but  the  two  are  quite distinct.   Thus  the  material facts will  mention  that  a statement  of fact (which must be set out) was made  and  it must be alleged that it refers to the character and  conduct of  the  candidate that it is false or  which  the  returned candidate  believes  to be false or does not believe  to  be true  and that it is calculated to prejudice the chances  of the  petitioner.  In the particulars the name of the  person making the statement, with the date, time and place will  be mentioned.  The material facts thus will show the ground  of corrupt  practice and the complete cause of action  and  the particulars will give the necessary information to present a full  picture  of  the  cause of  action.   In  stating  the material  facts it will not do merely to quote the words  of the section because then the efficacy of the words ’material facts’ will be lost.  The fact which constitutes the corrupt practice  must be stated and the fact must be correlated  to one  of  the heads of corrupt practice.  Just  as  a  plaint without  disclosing a proper cause of action cannot be  said to  be a good plaint, so also an election  petition  without the  material  facts relating to a corrupt  practice  is  no election petition at all.  A petition which merely cites the sections cannot be said to disclose a cause of action  where the  allegation  is the making of a false  statement.   That statement must appear and the particulars must be full as to the   person   making  the  statement  and   the   necessary information.  Formerly the petition used to be in two parts. The  material facts had to be included in the  petition  and the  particulars in a schedule.  It is inconceivable that  a petition  could be filed without the material facts and  the schedule  by  merely citing the corrupt  practice  from  the statute.   Indeed  the penalty of  dismissal  summarily  was enjoined  for  petitions  which  did  not  comply  with  the requirement.   Today the particulars need not be  separately included  in  a schedule but the distinction  remains.   The entire and complete cause of action must be in the 623 petition  in the shape of material facts,.  the  particulars being the further information to complete the picture.  This distinction  is brought out by the provisions of section  86 although  the  penalty  of dismissal is  taken  away.   Sub- section (5) of that section provides               (5)   The  High Court may, upon such terms  as               to  costs  and otherwise as it may  deem  fit,               allow the particulars of any corrupt  practice               alleged  in  the  petition to  be  amended  or

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             amplified in such manner as may in its opinion               be necessary for ensuring a fair and effective               trial of the petition, but shall not allow any               amendment of the petition which will have  the               effect of introducing particulars of a corrupt               practice   not  previously  alleged   in   the               petition." The  power of amendment is given in respect  of  particulars but there is a prohibition against an amendment "which  will have  the  effect of introducing particulars  if  a  corrupt practice  not  previously  alleged  in  the  petition."  One alleges the corrupt practice in the material facts and  they must  show a complete cause of action.  If a petitioner  has omitted to allege a corrupt practice, he cannot be permitted to  give particulars of the corrupt practice.  The  argument that  the latter part of the fifth sub-section is  directory only cannot stand in view of the contrast in the language of the  two parts.  The first part is enabling and  the  second part  creates  a  positive bar.   Therefore,  if  a  corrupt practice is not alleged, the particulars cannot be supplied. There  is  however  a difference  of  approach  between  the several  corrupt  practices.  If for example the  charge  is bribery of voters and the particulars give a few  instances, other  instances  can  be added; if the  charge  is  use  of vehicles for free carriage of voters, the particulars of the cars  employed may be amplified.  But if the charge is  that an  agent  did something, it cannot be amplified  by  giving particulars  of  acts on the part of the candidate  or  vice versa.   In  the scheme of election law  they  are  separate corrupt  practices which cannot be said to grow out  of  the material  facts related to another person.   Publication  of false  statements  by  an  agent is  one  cause  of  action, publication of false statements, by the candidate is quite a different  cause of action.  Such a cause of action must  be Alleged  in  the material facts before  particulars  may  be given.   One  cannot under the cover of particulars  of  one corrupt practice give particulars of a new corrupt practice. They constitute different causes of action. Since a single corrupt practice committed by the  candidate, by his election agent or by another person with the  consent of  the  candidate  or his election agent is  fatal  to  the election, the case must be specifically pleaded and strictly proved.  If it has not been pleaded as part of the  material facts, particulars of such 624 corrupt  practice cannot be supplied later on.  The  bar  of the  latter  part  of the fifth sub-section to  s.  86  then operates.  In the petition as ’originally filed the  agency of  Jagadguru  Shankaracharya,  Mr.  Madhu  Limaye  and  the Maratha  (or Mr. Atrey) was the basis of the charge and  the candidate  Mr.  Fernandez was left out.  No  allegation  was personally  made against him.  The only allegations  against him personally were contained in paragraph 2G.  There it was said  that  Mr. Fernandez had made certain speeches  to  the effect   that  Mr.  Patil  was  against  the   Muslims   and Christians.   No  evidence was led and they  were  not  even referred to at the hearing before us.  The next reference in 2J  is to statements of Mr. Fernandez. and published by  the Maratha.    These  were  specified  and  only   three   such statements  were included.  Since the gist of  the  election offence  is the publication of false statements, the  charge is brought home to the candidate through the publication  by the  Maratha.   It  is  to  be  remembered  that  even   the allegation  that in doing so the Maratha acted as the  agent of  Mr. Fernandez, itself came by way of an amendment  which

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we  allowed as it completed the cause of action and is  per- missible.   The bar of section 86(5) (latter part) does  not apply to it and under Order VI rule 17 of the Code of  Civil Procedure,  which  is applicable as far as may be,  such  an amendment can be made.  Similarly the allegations that  such statements  were false or were believed to be false or  were not believed to be true by the Maratha (i.e. Mr. Atrey)  and that  they were calculated to prejudice Mr. Patills  chances and did so, were allowed by us to be added as completing the cause  of  action  relating to a  corrupt  practice  already alleged.   But we declined to allow to stand the  amendments which  had the effect of introducing, new corrupt  practices relating to the candidate himself which had not been earlier pleaded.  This kind of amendment is prohibited under the law when the amendment is sought after the period of limitation. The  learned  Judge  in  the High Court  did  not  keep  the distinction  between material facts and particulars in  mind although  the  language of the statute is  quite  clear  and makes  a  clear cut division between the two.  He  seems  to have  been  persuaded to Such a course by a reading  of  the rulings  of  this  Court and the High  Courts.   These  same rulings  were presented before us and we may now say  a  few words about them. The  learned Judge in the High Court has relied upon  Harish Chandra   Bajpai  v.  Triloki  Singh(1)  and   deduced   the proposition  that  where the petition sets out  the  corrupt practice as a ground, instances of the corrupt practices may be   added  subsequently  and  even  after  the  period   of limitation  of filing the petition is over.  Following  that case the learned Judge has allowed the (1) [1957] S.C.R. 370. 625 amendments as corrupt practice under s. 123 (4) was  alleged in  the original petition.  We shall come to that case  last of  all.  It seems to have played a great part  in  moulding opinion in India on the subject of amendment of pleadings in the Election Law. To  begin  with  it must be realised that as  is  stated  in Jagan,  Nath  v. Jaswant Singh and Others(1)  the  statutory requirements  of  the  law  of Election  in  India  must  be strictly  observed.  It is pointed out in that case that  an election contest is not an action at law or a suit in equity but a purely statutory proceeding unknown to common law  and that the court possesses no common law power.  Although  the power of amendment given in the Code of Civil Procedure  can be invoked because s. 87 makes the procedure applicable,  as nearly  as  may be to the trial of election  petitions,  the Representation  of the People Act itself enacts some  rules, which  override the Civil Procedure Code.  General power  of amendment  or the power derived from the Code of Civil  Pro- cedure  must  be  taken to be overborne in  so  far  as  the election  law provides.  In a large number of cases  it  has been laid down by the High Courts in India that the material facts,  must make out a charge and it is only then  that  an amendment  to  amplify  the charge can  be  allowed  or  new instances  of commission of corrupt practice charged can  be given.  If no charge is made out in the, petition at all the addition  of  particulars  cannot  be  allowed  to   include indirectly a new charge.  This was laid down in Din Dayal v. Beni Prasad and Another (2), Balwan Singh v. Election Tribu- nal, Kanpur and Others(3) by the Allahabad High Court, in T. L.  Sasivarna Thevar v. V. Arunagiri and Others (4 ) by  the Madras High Court and in Hari Vishnu Kamath v. Election Tri- bunal,  Jaipur  and Another(5) by the  Madhya  Pradesh  High Court.   All these cases rely upon Harish  Chandra  Bajpai’s

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case (6) to which we have referred.  Harish Chandra Bajpai’s case (6) was based on an English case Beat v. Smith (7 ). In that case it was held that under the Parliamentary  Election Act  of  1868  it  was enough to  allege  generally  in  the petition  that "the respondent by himself and other  persons on  his  behalf was guilty of bribery,  treating  and  undue influence before, during and after the election." A  summons was taken out calling upon the petitioner to deliver  better particulars of "other persons".  Willes, J. after consulting Martin, B and Blackburn, J. ordered better particulars.   It was  contended  that the petition should be  taken  off  the files  since  the particulars were lacking.  Section  20  of that  Act only provided that an election petition should  be in  such  form  and  should state such  matters  as  may  be prescribed.   Rule  2 prescribed that  the  petition  should state  (i) the right of the petitioner to petition and  (ii) and should state the holding and result (1) [1954] S.C.R. 892-895.    (2) 15 E.L.R. 131. (3) 15 5E.L.R. 199. (4) 17. E.L.R. 313. (5) 14 E.L.R. 147. (7) L.R. 4 C.P. 115.(6) 11957] S.C.R. 370      626 of the election     and then should briefly state such facts and grounds relied  on   to   sustain  the   prayer.Rule   5 prescribed  the  form  which required facts  to  be  stated. Bovill, C.J., said that the form of the petition was  proper and it was quite useless to state anything further.  But  in Bruce   v.  Odhams  Press  Ltd.(1)  the  Court   of   Appeal distinguished  ’material facts’ from ’particulars’  as  they occurred  in Order XIX of the Rules of the Supreme Court  of England.    The   words  there  were  material   facts   and particulars  and the distinction made by Scott,  L.J.  bears out  the distinction we have made between  ’material  facts’ and ’Particulars’ as used in s. 83 of our statute.  The same view  was  also expressed in Phillips v.  Phillips(2).   The observations  of Brett, L.J. in that case also bear out  the distinction which we have made. It  appears  that this distinction was not brought  to  the, notice of this Court in Harish Chandra Bajpai(3) case.   The rules  on  the subject of pleadings in the  English  statute considered in Beal’s case(4) were different.  We have in our statute  an insistence on a concise statement  of  material facts  and  the  particulars of  corrupt  practice  alleged. These  expressions  we have explained. However,  it  is  not necessary  to go into this question because even on the  law as  stated in Harish Chandra Bajpai’s(3) case the  amendment allowed in this case cannot be upheld.  We shall now  notice Harish Chandra Bajpai’s(3) case a little more fully. In that case the material allegation was that the appellants "could  in  the  furtherance of their  election  enlist  the support  of  certain  government  servants"  and  that   the appellant  No. 1. had employed two persons in excess of  the prescribed  number  for his election purposes.  No  list  of corrupt  practices  was  attached.   Thereafter  names  were sought  to  be  added.  The amendment  was  allowed  by  the Tribunal after the period of limitation and the addition was treated as mere particulars.  It was held by this Court that an  election petition must specify "grounds or charges"  and if  that  was done then the particulars of  the  grounds  or charges could be amended and new instances given but go  new ground  or  charge  could  be  added  after  the  period  of limitation.   The  reason  given  was  that  the   amendment "introducing  a  new charge" altered the  character  of  the petition.   Venkatarama Iyyar, J. emphasised over  and  over again  that  new  instances could  be  given  provided  they

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’related  to  a  ’charge’ contained in  the  petition.   The result  of the discussion in the case was summarised by  the learned Judge at page 392 as follows :               "(1) Under s. 83(3) the Tribunal has power  to               allow  particulars  in respect of  illegal  or               corrupt prac-               (1)   [1936] 1 K.B. 697.               (2)   [1878] 4 Q.B.D. 127.               (3)   [1957] S.C.R. 370.               (4)   L.R. 4 C.P. 115.               627               tices  to  be amended, provided  the  petition               itself  specifies the grounds or charges,  and               this power extends to permitting new instances               to be given.               (2)   The Tribunal has power under O.Vl, r. 17               to  order  amendment of a petition,  but  that               power cannot be exercised so as to permit  new               grounds or charges to be raised or to so alter               its  character, as to make it in  substance  a               new  petition,  if a fresh petition  on  those               allegations will then be barred."               What  is meant by ’ground or charge’  was  not               stated.  By "ground" may be meant the kind  of               corrupt practice which the petitioner  alleges               but the word "charge" means inclusion of  some               material   facts  to  make  out  the   ground.               Applying  the  same  test  (although   without               stating it) the learned Judge pointed out that               the  charge made in the petition was that  the               appellants  ’could’  in furtherance  of  their               election   enlist  the  support   of   certain               government  servants  and  it  meant  only  an               ability  to  enlist support but  the  ’charge’               which  was sought to be levelled  against  the               candidate  later  was  that  he  had  in  fact               enlisted the said support.  The learned  Judge               observed at page 393 as follows :               "the  charge  which the respondent  sought  to               level  against  the appellants was  that  they               moved   in   public  so  closely   with   high               dignitaries  as to create in the minds of  the               voters the impression that they were  favoured               by  them.   We  are unable to  read  into  the               allegations in para 7 (c) as originally framed               any  clear  and  categorical  statement  of  a               charge under s. 123(8), or indeed under any of               the provisions of the Election law."               The allegation in the statement was  described               as  worthless and further it was  observed  at               page 395 as follows :               "But even if we are to read ’could’ in para  7               (c)  as  meaning  ’did’, it  is  difficult  to               extract  out of it a charge under  s.  123(8).               The  allegation  is  not  clear  whether   the               Government   servants   were  asked   by   the               appellants  to support their  candidature,  or               whether  they  were asked to  assist  them  in               furtherance  of their election prospects,  and               there  is  no  allegation  at  all  that   the               Government  servants did, in fact, assist  the               appellants   in   the  election.    On   these               allegations, it is difficult to hold that  the               petition in fact raised a charge under s.  123               (8).  It is a long jump from the petition as

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             originally  laid  to  the  present  amendment,               wherein for the first time it is asserted that               certain Mukhiasno Mukhias are mentioned in the               petition-assisted     the    appellants     in               furtherance  of their election prospects,               and   that   thereby  the   corrupt   practice               mentioned               628               in  s.  123 (8) had been committed.   The  new               matters   introduced  by  the   amendment   so               radically alter the character of the  petition               as originally framed as to make it practically               a  new  petition, and it was  not  within  the               power of the Tribunal to allow an amendment of               that kind.,’ It would appear from this that to make out a complete charge the  facts  necessary  must be included  in  relation  to  a ’ground’  as stated in the Act.  Merely repeating the  words of  the  statute  is not sufficient.   The  petitioner  must specify  the  ground i.e. to say the nature of  the  corrupt practice  and  the  facts necessary to make  out  a  charge. Although  it  has  been  said that  the  charge  of  corrupt practice  is  in the nature of quasi  criminal  charge,  the trial of an election petition follows the procedure for  the trial of a civil suit.  The charge which is included in  the petition  must,  therefore, specify the  material  facts  of which  the truth must be established.  This is how the  case was  understood in numerous other cases, some of  which  we have  already referred to.  In particular see J. Devaiah  v. Nagappa  and  Others(1)  and Babulal  Sharma  v.  Brijnarain Brajesh and Others(2). Three other cases of this Court were also cited.  In  Chandi Prasad  Chokhani v. State of Bihar(3) it was held  that  the powers of amendment were extensive but they were  controlled by  the  law laid down in the Representation of  the  People Act.   It was again emphasised that a new ground  or  charge could  not be made the ground of attack as that made  a  new petition.  In Bhim Sen v. Gopali and Others(4) the scope  of Harish  Chandra  Bajpai’s(5)  case was  considered  and  its narrow application was pointed out.  Indeed in that case the observations  in  Harish Chandra Bajpai’s(5) case  were  not followed  to the utter most limit.  In Sheopat Singh v.  Ram Pratap(6)  the  only  allegation  was  that  the   appellant (Hariram)  got published through him and others a  statement but  there  was  no allegation  that  Hariram  believed  the statement to be false or did not believe it to be true.   It was  held that in the absence of such averment it could  not be  held  that there was an allegation of  corrupt  practice against Hariram.  The publication with guilty knowledge  was equated  to  a kind of mens rea and this  was  considered  a necessary ingredient to be alleged in the petition. From our examination of all the cases that were cited before us we are satisfied that an election petition must set out a ground  or  charge.   In other words, the  kind  of  corrupt practice which was perpetrated together with material  facts on which a charge (1)  1965 Mysore, 102. (2)  1958 Madhya Pradesh 175 (F.B.). (3)  [1962] 2 S.C.R. 289. (4)  22 E.L.R. 288. (5)  [1957] S.C.R. 370 (6)  [1965] 1 S.C.R. 175. 629 can  be made out must be stated.  It is obvious that  merely repeating  the  words of the statute does not  amount  to  a

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proper  statement  of facts and the  section  requires  that material facts of corrupt practices must be stated.  If  the material  facts of the corrupt practice are stated  more  or better  particulars  of the charge may be given  later,  but where  the  material  facts themselves  are  missing  it  is impossible to think that the charge has been made or can  be later  amplified.   This is tantamount to the  making  of  a fresh petition. Reverting therefore to our own case we find that the allega- tion in paragraph 2J was that Mr. Fernandez made some state- ments  and the ’Maratha’ published them.  Extracts from  the ’Maratha’  were filed as Exhibits.  Since publication  of  a false  statement  is  the gist of an  election  offence  the charge  was against the ’Maratha’.  If it was intended  that Mr.  Fernandez should be held responsible for what  he  said then  the  allegation should have been  what  statement  Mr. Fernandez made and how it offended the election law.  In  2J itself only three statements were specified and two of  them had  nothing  to  do with Mr. Fernandez and  the  third  was merely a news item which the ’Maratha’ had published.  There was  no reference to any statement by Mr. Fernandez  himself throughout the petition as it was originally filed.  In fact there  was no charge against Mr. Fernandez which could  have brought the case within s. 101 (b) of the Act.  The  attempt was  only to make out the case under s. 100 (1) (d)  against the ’Maratha’ (or Mr. Atrey) pleading Mr. Atrey as agent  of Mr. Fernandez.  That too was pleaded in the amendments. The  result  is  that the case gets confined to  that  of  a candidate  responsible  for the acts of his agent.   In  the argument before us Mr. Chari for Mr. Fernandez conceded  the position that Mr. Atrey could be treated as the agent of Mr. Fernandez.   We  are therefore relieved of  the  trouble  of determining  whether Mr. Atrey could be held to be an  agent or  not.  The trial Judge was also satisfied that Mr.  Atrey could  be held to have acted as the agent of Mr.  Fernandez. The  case  as originally pleaded fell within s.  100(1)  (d) with  the  additional  burden.  Although  Mr.  Daphtary  was content  to  prove  that the consent of  Mr.  Fernandez  was immaterial as the corrupt practice of his agent was  equally fatal to the election and attempted to prove his case  under s. 100 (1) (d) of the Act, Mr. Jethamalani who took over the argument  from  him  contended  that the  case  fell  to  be governed by s. 101 (b) that is to say, of any person who did the act with the consent of Mr. Fernandez.  It is  therefore necessary to pause here to decide, whether Mr. Atrey had the consent  of  Mr.  Fernandez  to  the  publications  in   his newspaper. The  difference between Mr. Daphtary’s argument and that  of Mr. Jethamalani lies in this.  In the latter the consent  of the 630 candidate  must be proved to each corrupt practice  alleged, in the former there is only need to prove that a person  can be  held to have acted as an agent with the consent  of  the candidate.   An agent in this connection is ;not one who  is an intermeddler but one acting with the consent, express  or implied,  of  the candidate.  According to  Mr.  Jethamalani when an agent works regularly for a candidate the consent to all his acts must be presumed and he contends that the court was  wrong  in  requiring proof of  prior  consent  to  each publication.   On the other hand, Mr. Chari’s case  is  that when Mr. Atrey acted as an agent and when he did not act  as an agent, is a question to be considered in respect of  each publication  in the ’Maratha’.  According to him it  is  not sufficient merely to say that Mr. Atrey was an agent because

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Mr.  Atrey was also editor of the newspaper and  in  running his newspaper his activities were his own and not on  behalf of Mr. Fernandez.  Mr. Jethamalani relies strongly upon  the case of Rama Krishna (C.A. No. 1949 of 1967 decided on April 23,  1968)  and Inder Lall Yugal Kishore  v.  Lal  Singh(1). Rama Krishna’s case was decided on its special facts.  There the  agent was one who had been employed regularly  by  Rama Krishna  not  only  in the last election  but  also  in  two previous   elections.    Rama  Krishna   stated   that   the arrangements  for his election were completely left in  that agent’s hands.  The agent had got printed some posters which had defamed the candidate and these posters were exposed  on the  walls.   Rama Krishna admitted that he had  seen  these posters and also that he had paid for- the posters when  the bill  was presented to him.  In fact he included the  amount in  his  return  of election expenses.  It  was  from  these combined  facts  that the consent of Rama  Krishna  to  the corrupt practice of. making false and defamatory  statements was held proved.  The case therefore is not one in which the person  while  acting  in  a  different  capacity  makes   a defamatory statement. In  the case from Rajasthan the rule laid down was that  the association of persons or a society or a political party  or its  permanent members, who set up a candidate, sponsor  his cause, and work to promote his election, may be aptly called the agent for election purposes.  In such cases where these persons commit a corrupt practice unless the exception in s. 100(2)  apply the returned candidate should be held  guilty. We shall consider this question later. Before  we  deal  with the matter further we  wish  to  draw attention  to  yet another case of this  Court  reported  in Kumara  Nand  v. Brijmohan Lal Sharma(2).  In that  case  s. 123(4)  was analysed.  It was held that the belief  must  be that  of the candidate himself.  The word "he" in  the  sub- section where it occurs for the first time was held to  mean the candidate.  This Court observed as follows (1) A.T.R. 1961 Rajasthan 122. (2) [1967] 2 S.C.R. 127. 631               "The sub-section requires : (i) publication of               any  statement  of fact by a  candidate,  (ii)               that  fact  is  false,  (iii)  the   candidate               believes it to be false or does not believe it               to be true, (iv) the statement is in  relation               to  the  personal  character  or  conduct   of               another candidate; and (v) the said  statement               is   one   being  reasonably   calculated   to               prejudice  the prospects of the  other  candi-               date’s  election.  (See Sheopat Singh  v.  Ram               Pratap(1)  This case thus lays down  that  the               person  with  whose belief  the  provision  is               concerned is ordinarily the candidate who,  if               we  may say so, is responsible for the  publi-               cation.   The responsibility of the  candidate               for the publication arises if he publishes the               thing himself.  He is equally responsible  for               the  publication  if it is  published  by  his               agent.   Thirdly he is also responsible  where               the thing is published by any other person               but  with the consent of the candidate or  his               election  agent.   In  all  three  cases   the               responsibility  is of the candidate and it  is               ordinarily the candidate’s belief that matters               for  this  purpose.  If the  candidate  either               believes the statement to be false or does not

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             believe it to be true he would be  responsible               under  s.  123(4).  In the present  case.  the               poem  was not actually read by the  appellant,               but  it was read in his presence at a  meeting               at which he was presiding by Avinash  Chander.               In  these  circumstances. the High  Court  was               right  in  coming to the conclusion  that  the               recitation  of the poem by Avinash Chander  at               the meeting amounted to the publication of the               false  statement  of fact contained in  it  by               another   person  with  the  consent  of   the               candidate,  and  in  this case,  even  of  his               election  agent  who was also present  at  the               meeting.,  But  the  responsibility  for  such               publication in the circumstances of this  case               is of the candidate and it is the  candidate’s               belief that matters and not the belief of  the               person  who actually read it with the  consent               of the candidate.  What would be the  position               in a case where the candidate had no knowledge               at  all of the publication before it was  made               need  not  be considered for that  is  not  so               here.   It is not disputed in this  case  that               the  statement  that the  respondent  was  the               greatest  of  all thieves, was false.   It  is               also   not  seriously  challenged   that   the               appellant did not believe it to be true.   The               contention   that  Avinash  Chander’s   belief               should have been proved must therefore fail." From  this case it follows that to prove a corrupt  practice in  an  agent  is not enough, the belief  of  the  candidate himself must (1)  [1965] 1 S C.R. 175. 632 be investigated with a view to finding out whether he made a statement which he knew to be false or did not believe to be true.   When  we come to the facts of the case  in  hand  we shall  find  that  most of the statements  were  made  by  a newspaper   editor  in  the  normal  course  of  running   a newspaper.  Some of the passages which are criticised before us were made as news items and some others were put in  the editorial.  It is to be remembered that the newspaper ran  a special  column called "George Femandez’s  Election  Front". No article or comment in that column has been brought before us as an illustration of the corrupt practice.  A  newspaper publishes  news and expresses views and these are  functions normal  to a newspaper.  If the same news appeared  in  more than one paper, it cannot be said that each editor acted  as agent  for Mr. Fernandez and by parity of reasoning  a  line must be drawn to separate the acts of Mr. Atrey in  running his newspaper and in acting as an agent.  Mr. Atrey was  not a wholetime agent of Mr. Fernandez so that anything that  he said  or did would be treated as bearing upon the belief  of Mr. Fernandez as to the truth of the statements made by  Mr. Atrey.   Therefore,  every  act of Mr. Atrey  could  not  be attributed to Mr. Fernandez so as to make the latter liable. We  have  therefore to analyse these articles  to  find  out which  of  them answers the test which  we  have  propounded here.  But the fact remains that the case was pleaded on the basis  of corrupt practices on the part of an agent  but  by the  amendment the candidate was sought to be  charged  with the  corrupt  practices personally.  As there  was  no  such charge  or  ground  in  the original  petition  and  as  the application for amendment was made long after the period  of limitation  was  over the amendment could  not  be  allowed.

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Accordingly  we  ruled  out the  amendments  concerning  the personal  speeches of Mr. Fernandez and the article  in  the ’Blitz’. After  we announced our conclusion about the amendments  Mr. Daphtary  with the permission of the Court left the case  in the  hands of Mr. Jethamalani and the argument to  which  we have  already  referred in brief was advanced  by  him.   As pointed out already Mr. Jethamalani attempted to prove  that the case would be governed by s. 100 (1) (b) that is to  say that the statements in the ’Maratha’ were published with the consent of Mr. Fernandez.  Mr. Jethamalani deduced this from the course of events and argued that on proof of the corrupt practices committed by the ’Maratha’, Mr. Fernandez would be personally  liable.   He  based himself  on  the  following, facts.  He pointed out that Mr. Fernandez had admitted  that he   desired   that  the  newspapers  should   support   his candidature  and  therefore  must have been  glad  that  the ’Maratha’  was  Supporting  him. and  the  articles  in  the ’Maratha’  were uniformly for the benefit of Mr.  Fernandez. Sampurna   Maharashtra  Samiti  was  also   supporting   the candidature  of  Mr. Fernandez and the ’Maratha’  had  made common cause with the Sampurna Maha- 633 rashtra  Samiti, the offices of both being situated  in  the same  building  which was also Mr. Atrey’s  residence.   Mr. Atrey  was the editor of the ’Maratha’ and Chairman  of  the Sampurna Maharashtra Samiti.  Mr. Atrey was also a candidate supported by the Sampuma Maharashtra Samiti.  Mr.  Fernandez and Mr. Atrey had a common platform and they supported  each other  in  their respective constituencies.   The  ’Maratha’ carried  a column "George Femandez’s Election  Front"  which was  intended  to ’be a propaganda column in favour  of  Mr. ’Fernandez.   He contended that Mr. Fernandez could  not  be unaware of what Mr. Atrey was doing.  He pointed out several statements   of   Mr.  Fernandez  in   which   he   sometime unsuccessfully  denied the knowledge of various  facts.   He contended  lastly  that Mr. ’Fernandez had  social  contacts with  Mr. Atrey and could not possibly be unaware  that  Mr. Atrey  was vociferously attacking Mr. Patil’s character  and conduct.   Mr. Jethamalani therefore argued that  there  was knowledge and acquiescence on the part of Mr. Fernandez  and as there was no repudiation of what the ’Maratha’  published against  Mr. Patil, Mr. Fernandez must be held  responsible. The learned trial Judge in his judgment has given a  summary of all these things at page 695 and it reads               "To  sum  up,  it  is  clear  from  the  above               discussion   that  respondent  No.  1   is   a               prominent member of the SSP, that the SSP  is’               a  constituent  unit  of the  SMS,  that  both               Acharya    Atrey   and   respondent   No.    1               participated in the formation of the SMS  that               they both participated in the inauguration  of               the  election  campaign by the SMS,  that  the               SMS,   carried  on  election  propaganda   for               candidates    supported   by   it    including               respondent  No. 1, that Acharya Atre  was  the               president  of the Bombay Unit of the  SMS  and               was a prominent and a leading member  thereof,               that  each of them addressed a meeting of  the               constituency of the other to carry on election               propaganda  for the other, that  Acharya  Atre               through  the columns of his newspaper  Maratha               carried on intensive and vigorous campaign for               success  of  candidates supported by  the  SMS               including respondent No. 1, that Acharya  Atre

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             started a special feature in Maratha under the               heading  "George  Fernandez  Election  Front".               These factors amongst others show that Acharya               Atre  had authority to canvass for  respondent               No.  1,  that  be made  a  common  cause  with               respondent No. 1, for promoting ’his election,               that to the knowledge of respondent No. 1  and               for the purpose of promoting his election,  he               (Atre)  canvassed  and did various  things  as               tended  to promote his election.  This in  law               is sufficient to make Acharya Atre an agent of               respondent  No. 1, as that term is  understood               under the election law." 634 Mr. Jethamalani contended in further support that there  was a  clear similarity in the statements and utterances of  Mr. Fernandez and Mr. Atrey.  He inferred a high probability  of concept between them.  In this connection he  referred  in particular  to the speech of Mr. Fernandez at  Shivaji  Park and  the  conduct  of  Shanbhag,  one  of  his  workers,  in following up what Mr. Fernandez had said.  We shall refer to this  last  part later on which a considerable part  of  the time  of the Court was spent, although we had ruled out  the amendment  with regard to the speech at Shivaji  Park.   Mr. Jethamalani referred to the following cases among others  in support of his contention that consent in such circumstances may  be assumed : Nani Gopal Swami v. Abdul Hamid  Choudhury and Another(1), Adams and Others v. Hon.  E.F. Leveson Gower (2)  Christie v. Grieve(3) and W. F. Spencer; John Blundell v. Charles Harrison(4).  There is no doubt that consent need not be directly proved and a consistent course of conduct in the  canvass  of the candidate may raise a  presumption of consent.   But there are cases and cases.  Even if all  this is  accepted  we  are  of opinion  that  consent  cannot  be inferred.   The  evidence proves only that Mr. Atrey  was  a supporter and that perhaps established agency of Mr.  Atrey. It  may be that evidence is to be found supporting the  fact that  Mr.  Atrey acted as agent of Mr.  Femandez  with  his consent.   That  however does not trouble  us  ’because  Mr. Chari admitted that Mr. Atrey can be treated as an agent of Mr. Fernandez.  It is however a very wide jump from this  to say that Mr. Fernandez had consented to each publication ;as it  came or ever generally consented to the  publication  of items defaming the character and conduct of Mr. Patil.  That consent  must be specific.  If the matter was left  entirely in the hands of Mr. Atrey who acted solely as agent of  Mr. Fernandez  something  might  be said as  was  done  in  Rama Krishna’s  case(5) by this Court.  Otherwise there  must  be some reasonable evidence from which an inference can be made of the meeting of the minds as to these, publications or  at least a tacit approval of the general conduct of the  agent. If we were not to keep this distinction in mind there  would be  no difference between s. 100(1)(b) and 100(1)(d)  in  so far  as an agent is concerned.  We have shown above  that  a corrupt  act  per se is enough under s. 100  (1)  (b)  while under s. 100 (1) (d) the act must directly affect the result of  the  election  in so far as the  returned  candidate  is concerned.  Section 100(1) (b) makes no mention of an  agent while  S. 100 (1) ( (d) specifically does.  There  must’  be some  reason  why this is so.  The reason is  this  that  an agent  cannot  make  the candidate  responsible  unless  the candidate has consented or the act of the (1)  1959 Assam 200. (2)  1 O’Malley and Hardcastle 218. (3)  1 O’Malley and Hardcastle 251.

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(4)  3 O’Malley and Hardcastle 148. (5) C.A. No. 1949 of 1967 decided on April 23,1968. 635 agent  has materially affected the election of the  returned candidate.   In  the case of any person (and he  may  be  an agent)  if he does the act with the consent of the  returned candidate  there  is  no need to prove  the  effect  on  the election.  Therefore, either Mr. Jethamalani must prove that there was consent and that would mean a reasonable inference from  facts that Mr. Fernandez consented to the acts of  Mr. Atrey  or he must prove that the result of the election  was seriously  affected.   If  every act of  an  agent  must  be presumed to be with the consent of the candidate there would be no room for application of the extra condition laid  down by  s.  1 00 ( 1 ) (d), because whenever  agency  is  proved either  directly  or  circumstantially,  the  finding  about consent under s. 1 00 ( 1 ) (b) will have to follow.  We are clearly  of opinion that Mr. Jethamalani’s argument that  s. 100  (1)  (b)  applies can only succeed  if  he  establishes consent on the part of Mr. Fernandez. We  have  already pointed out that Mr. Atrey  was  also  the editor  of  a  newspaper which, as  Mr.  Patil  has  himself admitted, was always attacking him.  Mr. Atrey had opened  a column   in   his  newspaper  to  support   Mr.   Ferandez’s candidature.  Although nine articles appeared in the  column between  December 3, 1966 to February 2, 1967, not a  single false  statement  from this column has been brought  to  our notice.  There was not even a suggestion that Mr.  Fernandez wrote  any  article for the ’Maratha’  or  communicated  any fact.   It  is  also significant  that  although  Mr.  Atrey addressed meetings in the constituency of Mr. Fernandez, not a  single false statement of Mr. Atrey was proved  from  his speeches   on  those  occasions.   The  petitioner   himself attended  one such meeting on February 4,1967, but  he  does not  allege  that  there  was any  attack  on  his  personal character  or  conduct.  The learned trial  Judge  has  also commented  on this fact.  We think that regard being had  to the  activities of Mr. Atrey as editor and his own  personal hostility  to Mr. Patil on the issue of Sampuma  Maharashtra Samiti,  we cannot attribute every act of Mr. Atrey  to  Mr. Fernandez.   Mr. Chari is right in his contention  that  Mr. Atrey’s  field of agency was limited to what he said as  the agent  of  Mr. Fernandez and did not embrace  the  field  in which he-was acting as editor of his newspaper.  It is  also to be noticed that Mr. Atrey did not publish any article  of Mr. Fernandez, nor did he publish any propaganda material. The  meeting at Shivaji Park about which we shall say  some- thing   presently,   was  not  held   in   Mr.   Fernandez’s constituency.   The  similarity of ideas or  even  of  words cannot be pressed into service to show consent.  There was a stated policy of Sampuma Maharashtra Samiti which wanted to, join in Maharashtra all the areas which had not so far  been joined and statements in that 636 behalf  must  have been made not only by Mr.  Atrey  but  by several other persons.  Since Mr. Atrey was not appointed as agent we cannot go by the similarity of language alone.   It is  also  very significant that not a single speech  of  Mr. Fernandez  was  relied  upon  and only  one  speech  of  Mr. Fernandez  namely,  that at Shivaji Park  was  brought  into arguments   before  us  came  by  an  amendment   which   we disallowed.   The best proof would have been his own  speech or  some propaganda material such as leaflets  or  pamphlets etc.   but  none  was  produced.   The  ’Maratha’   was   an independent newspaper not under the control of the  Sampurna

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Maharashtra  Samiti or the S.S.P. which was  sponsoring  Mr. Fernandez  or Mr. Fernandez himself.  Further we have  ruled out news items which it is the function of the newspaper  to publish.  A news item without any further proof of what  had actually  happened through witnesses is of no value.  It  is at  best a secondhand secondary evidence.  It is  well-known that  reporters  collect information and pass if on  to  the editor  who edits the news item and then publishes  it.   In this process the truth might get perverted or garbled.  Such news items cannot be said to prove themselves although  they may be taken. into account with other evidence if the  other evidence is forcible.  In the present case the only  attempt to  prove a speech of Mr. Fernandez was made  in  connection with  the  Shivaji Park meeting.  Similarly  the  editorials state  the policy of the newspaper and its comment upon  the events.   Many  of the news items were  published  in  other papers also.  For example Free Press Journal, the Blitz  and writers  like  Welles  Hengens had  also  published  similar statements.  If they could not be regarded as agents of  Mr. Fernandez  we  do  not  see any  reason  to  hold  that  the ’Maratha’  or Mr. Atrey can safely be regarded as  agent  of Mr.  Fernandez when acting for the newspaper so as to  prove his consent to the publication of the defamatory matter.  We are  therefore of opinion that consent cannot reasonably  be inferred  to  the  publications in the  ’Maratha’.   We  are supported in our approach to the problem by a large body  of case law to which our attention was drawn by Mr. Chari.   We may  refer  to  a few cases here  :  Biswanath  Upadhaya  v. Haralal  Das  and  Others(1),  Abdul  Majeed  v.   Bhargavan (Krishnan)  & otherS(2), Rustom Satin v.  Dr.  Sampoornanand and  Others(3),  Sarla  Devi  Pathak  v.  Birendra  Singh  & OtherS(4),  Krishna  Kumar  v.  Krishna  Gopal(5),   Lalsing Keshrising  Rehvar  v.  Vallabhdas  Shankerlal  Thekdi   and Others(6), Badri Narain Singh and Others v.  Kamdeo   Prasad Singh and Another (7) and Sarat Chandra Rabba v.  Khagendranath Nath and others(8).  It is not necessary to (1) (1959) Assam 97.     (2) A.I.R. 1963 Kerala 18. (3) 20 E.L.R. 221.       (4) 20 E.L.R. 275. (5) A.I.R. 1964 Rajasthan 21. (6) A.I.R. 1967 Gujarat 62. (7) A.I.R. 1961 Patna 41. (8) A.I.R. 1961 S.C. 334. 637 refer to these cases in detail except to point out that  the Rajasthan  case dissents from the case from Assam  on  which Mr. Jehamalani relied.  The principle of law is settled that consent may be inferred from circumstantial evidence but the circumstances  must point unerringly to the  conclusion  and must not admit of any other explanation.  Although the trial of an election petition is made in accordance with the  Code of  Civil  Procedure, it has been laid down that  a  corrupt practice must be proved in the same way as a criminal charge is  proved.   In other words, the election  petitioner  must exclude every hypothesis except that of guilt on the part of the  returned candidate. or his election agent.   Since  we. have held that Mr. Atrey’s activities must be viewed in  two compartments, one connected with Mr. Fernandez and the other connected  with  the newspaper we have to find  out  whether there is an irresistible, inference of guilt on the part  of Mr.  Fernandez.   Some  of the English cases  cited  by  Mr. Jethamalani  are  not  a  safeguide  because  in  England  a distinction is made between "illegal practices" and "corrupt practices".  Cases dealing with "illegal practices" in which the candidate is held responsible for the acts of his  agent are not a proper guide.  It is to be noticed that making  of a false statement is regarded as "illegal practice" and  not a  "corrupt  practice"  and the tests are  different  for  a

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corrupt  practice.  In India all corrupt practices stand  on the  same  footing.  The only difference made is  that  when consent is proved on the part of the candidate or his  elec- tion  agent  to  the commission of  corrupt  practice,  that itself is sufficient.  When a corrupt practice is  committed by an agent and there is no such consent then the petitioner must go further and prove that the result of the election in so far as the returned candidate is concerned was materially affected.   In  Bayley v. Edmunds,  Byron  and  Marshall(1), strongly relied upon by Mr. Daphtary the publication in  the newspaper  was  not held to be a corrupt  practice  but  the paragraph  taken from a newspaper and printed as  a  leaflet was  held  to be a corrupt practice.  That is not  the  case here.   Mr.  Patil’s own attitude during  the  election  and after  is significant.  During the election he did not  once protest  that Mr. Fernandez was spreading false  propaganda, not  even  when  Mr.  Fernandez  charged  his  workers  with hooliganism.   Even  after the election Mr.  Patil  did  not attribute anything to Mr. Fernandez.  He even said that  the Bombay  election was conducted with propriety.  Even at  the filing  of  the election petition he did not  think  of  Mr. Fernandez but concentrated on the ’Maratha’. Mr.  Daphtary sought to strengthen the inference about  con- sent  from the inter-connection of events with the  comments in  the ’Maratha’.  He refers to the news item appearing  in the (1)  [1894] 11 T.L.R. 537. L10Sup./69--6 638 ’Times  of India’ of February 10, 1967 in which the  letting loose of bad characters was alleged to be commented upon  by Mr.  Fernandez.   He connected this with the  activities  of Shanbhag  who  wrote  to the Election  Commission  and  then pointed out that the ’Maratha’ came out with it.  But if the ’Times of India cannot be regarded as the agent no more  can the ’Maratha’.  A newspaper reporting a meeting does so as part  of its own activity and there can be no  inference  of consent.  What was necessary was to plead and prove that Mr. Fernandez  said this and this.  Then the  newspaper  reports could  be taken in support but not independently.  Here  the plea  was not taken at all and the evidence was  not  direct but indirect. Mr. Jethamalani referred to some similarity in the  reaction of the ’Maratha’ and Mr. Fernandez to the events.  The Babu- bhai  Chinai  incident  was said to be a fake  by  both  the ’Maratha’  and  Mr.  Fernandez, the  Sayawadi  meeting  (not pleaded)  was said to be followed by similar  statements  in the ’Maratha’, the Bristol Grill Conference was reported  in the ’Maratha’.  All this shows that the rival party believed in certain facts but it does not show that the ’Maratha’ was publishing these articles with Mr. Fernandez’s consent.   In fact  this argument has been wrongly allowed.   Before  this there was not so much insistence upon consent as thereafter. Now  it  may be stated that mere knowledge  is  not  enough. Consent cannot be inferred from knowledge alone.  Mr. Jetha- malani relied upon the Taunton case(1) where Blackburn.   J. said  that  one  must see how much was being  done  for  the candidate and the candidate then must take the good with the bad.   There  is difficulty in  accepting  this  contention. Formerly  the Indian Election Law mentioned  ’knowledge  and connivance’ but now it insists on consent.  Since  reference to  the earlier phrase has been dropped it is reasonable  to think that the law requires some concrete, proof, direct  or circumstantial  of consent, and not merely of knowledge  and connivance.   It  is significant that the  drafters  of  the

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election petition use the phrase ’knowledge and  connivance’ and  it is reasonable to think that they consulted  the  old Act  and moulded the case round ’knowledge  and  connivance’ and thought that was sufficient. We  cannot  infer from an appraisal of the evidence  of  Mr. Fernandez  that he had consented.  His denial is  there  and may  be not accurate but the burden was to be discharged  by the  election  petitioner  to  establish  consent.   If  Mr. Fernandez suppressed some other facts or denied them,  there can be no inference that (1)  1 O’Malley and Hardcastle 181, 185. 639 his denial about knowledge of the articles in the  ’Maratha’ was also false.  M. Fernandez denied flatly that he saw  the articles   explaining  that  there  was  no  time  to   read newspapers,  a fact which has the support of Mr.  Patil  who also  said that he had no time to read even cuttings  placed by  his secretary for his perusal.  We may say here that  we are  not impressed by the testimony of Mr. Fernandez and  we are constrained to say the same about Mr. Patil.  We  cannot on  an appraisal of all the materials and the  arguments  of Mr.  Daphtary  reach the conclusion that Mr.  Fernandez  was responsible  for all that Mr. Atrey did in his newspaper  or that his consent can be inferred in each case. The  most  important argument was based on  the  meeting  at Shivaji Park on January 31, 1967 where Mr. Fernandez  spoke. As  the subject of the charge in the original  petition  did not  refer to this speech and we disallowed  the  amendment, Mr. Jethamalani attempted to reach the same result by  using the speech as evidence of consent to the publication of  the report  in the ’Maratha’.  Here we may say at once that  the speech could not be proved because it was not pleaded.  Much time  was  consumed  to  take us  through  the  evidence  of witnesses  who gave the exact words of Mr.  Fernandez.   Mr. Fernandez  was alleged to have said that Mr. Patil  was  not honest  and  won elections by changing  ballot  boxes.   Mr. Fernandez  did  not  admit having  made  the  speech.   Four witnesses  Tanksale, Bhide, Khambata and Bendre who  alleged that they were present at the meeting deposed to this  fact. We  have  looked,  into their evidence  and  are  thoroughly dissatisfied with it.  Ramkumar, a reporter was also  cited. He covered  the meeting for the ’Indian Express’  but  his newspaper  had  not  published this part  and  Ramkumar  was examined  to  prove  that it was deleted by  Rao  the  Chief Reporter.   The evidence of Ramkumar was so discrepant  with that of Rao that the trial Judge could not rely on it and we are  of  the  same opinion.  The fact that  in  Ex.  56  Mr. Fernandez  had  spoken of the ’ways and  means’  of  winning elections  of Mr. Patil cannot be held to be proof  nor  the activities  of  Shanbhag  in arranging for a  watch  of  the ballot  boxes.   Every candidate is afraid that  the  ballot boxes  may  be  tampered  with and  there  is  no  inference possible that because Mr. Fernandez or Shanbhag ’his  worker took precautions, Mr. Fernandez must have made a  particular speech.   It was said that Randive in his evidence  admitted that  Mr.  Fernandez made such comments.  We do  not  agree. His  version was different.  There is reason to  think  that there  was  an  attempt to suborn witnesses  and  make  them support  this  part  of the case or to keep  away  from  the witness box.  One such attempt was made on Randive.  We  are not  impressed  by the witnesses who came  to  disprove  the petitioners  case but that does not improve it  either.   It seems  that attempts were being made to enlist  support  for such a contention and the evidence shows that the wit- 640

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nesses were not free from influence.  It is not necessary to go  into  the evidence on the other side such as  that  of Dattu  Pradhan  and Prafulla Baxi.  They do not  impress  us either.    We  are,  accordingly  not  satisfied  that   Mr. Fernandez made any such comment.  If he did that would be  a ground of the very first importance to an election petition. It  is a little surprising that it was alleged so  late  and appears to be an after thought and intended to put into  the mouth  of  Mr.  Fernandez  one  of  the  statements  of  the ’Maratha’.   Consent to the making of the statement  in  the ’Maratha’ had, therefore, to be proved and there is no  such proof. For  the same reasons we cannot regard  Jagadguru  Shankara- charya or Mr. Madhhu Limaye as the agents of Mr.  Fernandez. The  evidence regarding their agency itself  is  nonexistent and there is no material on which consent can be presumed or inferred. The  result  of the foregoing discussion is that  this  case will  have to be judged of under s. 1 00 ( 1 ) (d)  and  not under  s.  100  (1) (b).  In the arguments  before  us Mr. Chari  conceded  that  some of the  articles  contain  false statements regarding the character and conduct of Mr. Patil. He mentioned in this connection five articles.  It is,  not, therefore,  necessary  to examine, each of the  16  articles separately.   If the conditions required by S. 100, (1)  (d) read  with  s.  123 (4) are satisfied,  a  corrupt  practice avoiding  the  election  will  be  established.   The  first condition  is that the candidate’s belief in the falsity  of the  statements  must be established That was laid  down  by this  Court in Kumara Nand v. Brijmohan Lal Sharma(1).   The second  condition is that the result of the election  in  so far  as  Mr.  Fernandez is concerned must  be  shown  to  be materially affected.  Thus we have not only to see (a)  that the  statement was made by an agent, (b) that it  was  false etc.,  (c)  that it related to the  personal  character  and conduct of Mr. Patil, (d) that it was reasonably  calculated to harm his chances but also (e) that it in fact  materially affected  the  result  of  the election in  so  far  as  Mr. Fernandez was concerned.  Of these (a) and (c) are  admitted and (b) is admitted by Mr. Fernandez because he said that he did   not  believe  that  there  was  any  truth  in   these statements.    The  question  next  is  whether  they   were calculated to affect the prospects of Mr. Patil.  Here there can  be  no  two  opinions.   These  articles  cast  violent aspersions  and  were  false as admitted  by  Mr.  Fernandez himself.   The course of conduct shows a deliberate  attempt to  lower  his  character and so they must  be  held  to  be calculated  to  harm  him  in  his  election.   So  far  the appellants  are on firm ground.  Even if all these  findings are  in  favour  of the appellants, we  cannot  declare  the election to be void under S. 100(1) (d) (ii) unless we reach the further conclusion that the result of the election in so (1)  [1967] 2 S.C.R. 127. 641 far  as  Mr.  Fernandez was concerned  had  been  materially affected.  The section speaks of the returned candidate when it  should  have  really spoken of  the  candidate  who  was defamed  or  generally  about the  result.   However  it  be worded,  the  intention  is  clear.   The  condition  is   a prerequisite. Mr. Jethamalani argued that the words "materially  affected" refer  to  the general result and not how the  voting  would have gone in the absence of the corrupt practice.  According to  him  s. 94 of the Act bars disclosure of  votes  and  to attempt to prove how the voting pattern would have  changed,

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would  involve a violation of s. 94.  According to  him  the court  can  give a finding by looking to the nature  of  the attacks  made,  the frequency and extent of  publicity,  the medium of circulation and the kind of issue that was  raised before   the   voters.   He  contends  that  to   tell   the Maharashtrians that Mr. Patil paid a bribe to the voters  of Goa  to keep it centrally administered, to call Mr. Patil  a Najibkhan  of Maharashtra i.e. a traitor, to dub him as  the creator  of  Shiv Sena which terrorized the  minorities,  to describe him as a goonda and leader of goondas who organised attacks on voters, to charge him with the responsibility  of attack on Parliament and the Congress President’s  residence and to describe him as dishonest to the extent of  switching ballot  boxes,  is, to materially affect the result  of  the voting.   According  to him these  circumstances  furnish  a _good basis for the finding that the result of the  election was   positively  affected  and  nothing  more  is   needed. According to Mr. Jethamalani the capacity of Mr. Atrey  when making these violent attacks was irrelevant as he was acting in support of the canvass of Mr. Fernandez. Mr. Jethamalani further submits that different false  state- ments were intended to reach different kind of voters.   The Maharashtrians  were affected by the Goa and border  issues, the minorities by the Shiv Sena allegations, the law-abiding citizens  by  the allegations about goondaism.   Thus  there must  have  been  a land-slide in so far as  Mr.  Patil  was concerned and there must have been corresponding gain to Mr. Fernandez.   He relies upon Hackney case(1) where Grove,  J. made the following observations at pages 81 and 82               "I have turned the matter over in my mind, and               I  cannot  see,  assuming  that  argument   to               express  the meaning of that section, how  the               tribunal can by possibility say what would  or               might   have  taken  place   under   different               circumstances.  It seems to me to be a problem               which the human mind has not yet been able  to               solve, namely, if things had been different at               a  certain  period, what would have  been  the               result  of  the concatenation of  events  upon               that supposed change of circum-               (1)   2  O’ Malley and  Hardcastle’s  Election               Reports 77.               642               stances.  I am unable at all events to express               an  opinion  upon  what would  have  been  the               result,  that is to say, who would  have  been               elected  provided  certain  matters  had  been               complied  with  here which were  not  complied               with.   It  was contended that  I  might  hear               evidence  on both sides as to how  an  elector               thought he would have voted at such  election.               That  might  possibly  induce  a  person   not               sitting judicially to form some sort of  vague               guess,   out  that  would  be  far  short   of               evidence, which ought to satisfy the mind of a               judge of what any individual who might express               that opinion would really do under what  might               have  been  entirely  changed   circumstances.               But,  besides that, one of the  principles  of               the  Ballot  Act  is  that  voting  should  be               secret, and voters are not to be compelled  to               disclose how they voted except upon a scrutiny               after  a  vote  has  been  declared   invalid.               Notwithstanding that, I am asked here,  assum-               ing  the  construction  for  which  Mr.  Bowen

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             contends  to  be  correct,  to  ascertain  how               either the 41,000 electors of this Borough, or               any number of them, might have wished to  vote               had they had the opportunity of doing so,  and               what in that event would have been the  result               of the election.  It seems to me that such  an               inquiry  would  not only  have  been  entirely               contrary  to the spirit of the Act,  but  also               that  it would be a simple  impossibility.   I               should,  therefore,  say  that  even  if   the               wording  of the Act, taking it  literally  and               grammatically,   required  me  to  put   sucha               construction upon it, it would lead to such  a               manifest  absurdity  (using now  the  judicial               term  which  has  generally  been  used   with               reference  to  the construction  of  statutes)               that  unless I were in some  way  imperatively               obliged,  and  unless  the  Act  could  by  no               possibility admit of any other construction, I               should  not put a construction upon  it  which               really  reduced  the  matter  to  a  practical               impossibility.   Such  a  construction   would               practically  render it necessary, in the  case               of  any  miscarriage at an  election,  however               great the miscarriage might be (if, that is to               say,  only a very small number of persons  had               voted,  and all the rest of tile  Borough  had               been  entirely unable to vote) that the  judge               should  then  enquire as to how  the  election               would  have gone.  As I ventured to remark  in               the   course   of  the   argument,   where   a               miscarriage  of this sort took place it  would               be  virtually placing the election not in  the               hands of the constituency, but in the hands of               the election _judge, who is not to exercise  a               judgment  as to who is to be the  member,  but               who  is only to see whether the  election  has               been properly conducted according to law."               643               Justice  Grove  then gave the meaning  of  the               provision at page 85 as follows :               "If  I look to the whole, and to the sense  of               it as a whole, it seems to me that the  object               of the Legislature in this provision is to say               this-an  election  is not to be upset  for  an               informality or for a triviality, it is not  to               be  upset  because the clerk of  one.  of  the               polling stations was five minutes too late, or               because  some of the polling papers  were  not               delivered  in  a proper manner,  or  were  not               marked in a proper way.  The objection must be               something  substantial,  something  calculated               really  to affect the result of the  election.               I  think that is a way of viewing it which  is               consistent with the terms of the section.   So               far as it seems to me, the reasonable and fair               meaning  of  the  section  is  to  prevent  an               election   from  becoming  void  by   trifling               objections  on the ground of  an  informality,               because the judge has to look to the substance               of the case to see whether the informality  is               of such a nature as to be fairly calculated in               a  reasonable  mind to produce  a  substantial               effect upon the election." Mr. Jethamalani invites us to apply the same test and in the

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light of his facts to say that the result of the election in so  far  as  Mr.  Fernandez  is  concerned  was   materially affected. On  the  other hand, Mr. Chari relies upon  the  facts  that there  was  a  difference of 30,000 votes  between  the  two rivals  and as many as 38,565 votes were cast in  favour  of the  remaining  candidates.   He says  that  Mr.  Patil  had contested  the earlier elections from the same  constituency and  the  votes  then  obtained by  him  were  not  more  in faithless.   He  says it is impossible to say how  much  Mr. Patil  lost or Mr. Fernandez gained by reason of  the  false statements  and  whether the affected voters  did  not  give their  votes  to the other candidates.  He argues  that  the best test would be to see what Mr. Patil’s reactions were on hearing  of his defeat.  In this connection he  referred  to Ex.  120  in which Mr. Patil commented on the  elections  in Bombay being orderly.  In Ex. 128 he said that the voters of Bombay  had  rejected him and that he has  disappointed  his supporters  and they must pardon him, and that he must  have been punished for some sin committed by him.  Mr. Chari says that  never for a moment did Mr. Patil attribute his  defeat to  false  propaganda by Mr. Fernandez  or  his  supporters, which  if  it had been a fact Mr. Patil would have  lost  no time   in  mentioning.   All  this  shows  that  Mr.   Patil maintained his position in this constituency.  Mr. Fernandez had  earlier  announced that be would organise  support  for himself from those who had voted in the past for his rivals- ,  or had refrained from voting and this Mr.  Fernandez  was successful in achieving.  Mr. Chari relies upon the  rulings of this Court where it has been laid down how the 644 burden  of  proving  the  affect on  the  election  must  be discharged.   He  referred to the case reported  in  Vashist Narain Sharma V. Dev Chandra(1) and Surendra Nath Khosla  v. Dilip Singh(2) and the later rulings of this Court in  which Vashist Narain’s(1) case has been followed and applied. In   our  opinion  the  matter  cannot  be   considered   on possibility. Vashist Narain’s(1) case insists on proof.   If the  margin of votes were small something might be  made  of the points mentioned by Mr. Jethamalani.  But the margin  is large  and  the  number of votes  earned  by  the  remaining candidates  also  sufficiently  huge.   There  is  no  room, therefore,  for  a  reasonable  judicial  guess.   The   law requires  proof.   How far that proof should go or  what  it should  contain  is  not provided by  the  Legislature.   In Vashist’s(1) case and in Inayatullah v. Diwanchand  Mahajan, (3)  the  provision  was held  to  prescribe  an  impossible burden.   The  law has however remained as before.   We  are bound  by  the rulings of this Court and must say  that  the burden  has  not been successfully  discharged.   We  cannot overlook  the rulings of this Court and follow  the  English ruling cited to us. To  conclude and summarize our findings : We are satisfied that  Mr.  Atrey as the Editor of  the  ’Maratha’  published false  statements relating to the character and  conduct  of Mr.  Patil, calculated to harm the prospects of Mr.  Patil’s election,  that  Mr. Atrey was the agent  of  Mr.  Fernandez under  the election law, but there is nothing to prove  that he  did so with the consent of Mr. Fernandez, nor  can  such consent  be  implied because in making  the  statements  Mr. Atrey  was  acting as the editor of his  own  newspaper  the ’Maratha’ and not acting for Mr. Fernandez.  We are  further satisfied that the petitioner has failed to establish in the manner  laid  down  in this Court, that the  result  of  the election was materially affected in so far as Mr.  Fernandez

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was concerned.  We are also satisfied that if the petitioner had   pleaded  corrupt  practices  against   Mr.   Fernandez personally  (which  he did not) the result might  have  been different.  The election petition was it considered and left out the most vital charges but for that the petitioner  must thank himself. In  the result the appeals failed and as  already  announced earlier they are dismissed with costs. V.P.S.                    Appeal dismissed. (1)  [1955] 1 S.C.R. 509. (2) [1957] S.C.R. 179. (3)  15 E.L.R. 210, 235-236. 645