Appeals Nos 895 and 896 of 1968
Appeals under section 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 section Cooper and K Hingorani for the appellant in C A No 896 of 1968
A section R Chari Porus A Mehta section 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 CJ
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 147841 votes as against his nearest rival Mr SK Patil who secured 118407 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 section K Patil
The election petition was keenly contested and Mr section 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 section 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 section 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 articles 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 section 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 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 SSP 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 section 1234 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 section 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 section 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 section 1233A 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 section 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 exhibit 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 section 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 exhibit 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 section 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 section K Patil
These statements were said to be false and made by the Maratha  in favour of respondents other than respondent No 2 Mr section K Patil or at any rate on behalf of Mr Fernandez
These were said to prejudice the minority communities and thus to offend section 1234 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 section 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 is my mother
Do not kill her and Patil section K as saying Pig is my father
These extracts were annexed as exhibit 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 exhibit 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 section 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 exhibit E instead of exhibit D exhibit 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 section K Patil because unlike the second respondent God was not dishonest
It was also alleged that Mr section 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 exhibit 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 section 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 section 123 4 of the Representation of the People Act
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 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 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 exhibit 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
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 section 1234 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 section 100 the petition has to show grounds and under section 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 section 865 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 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 section 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 PL 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 exhibit 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 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 section 1001 and section 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  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 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 section 1 00 and its mention in section 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 section 1001 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 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 section 100
There are many kinds of corrupt practices
They are defined later in section 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 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 section 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 section 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 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 section 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 section 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 section 100 and section 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
L10Sup69 5 622 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 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 section 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 we allowed as it completed the cause of action and is per missible
The bar of section 865 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 ie 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 vs Triloki Singh1 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  625 amendments as corrupt practice under section 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 vs Jaswant Singh and Others1 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 section 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 vs Beni Prasad and Another 2 Balwan Singh vs Election Tribu nal Kanpur and Others3 by the Allahabad High Court in T L Sasivarna Thevar vs V Arunagiri and Others 4  by the Madras High Court and in Hari Vishnu Kamath vs Election Tri bunal Jaipur and Another5 by the Madhya Pradesh High Court
All these cases rely upon Harish Chandra Bajpai s case 6 to which we have referred
Harish Chandra Bajpai s case 6 was based on an English case Beat vs 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 2 3 15 5ELR 199
4 5 7 LR 4 CP 1156 11957 SCR 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 CJ said that the form of the petition was proper and it was quite useless to state anything further
But in Bruce vs Odhams Press Ltd1 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 LJ bears out the distinction we have made between material facts  and Particulars  as used in section 83 of our statute
The same view was also expressed in Phillips vs Phillips2
The observations of Brett LJ 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 Bajpai3 case
The rules on the subject of pleadings in the English statute considered in Beal s case4 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 s3 case the amendment allowed in this case cannot be upheld
We shall now notice Harish Chandra Bajpai s3 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 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 section 833 the Tribunal has power to allow particulars in respect of illegal or corrupt prac 1 2 3  4 LR 4 CP 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 OVl 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 section 1238 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 section 1238
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 section 123 8
It is a long jump from the petition as 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 section 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 ie 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 vs Nagappa and Others1 and Babulal Sharma vs Brijnarain Brajesh and Others2
Three other cases of this Court were also cited
In Chandi Prasad Chokhani vs State of Bihar3 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 vs Gopali and Others4 the scope of Harish Chandra Bajpai s5 case was considered and its narrow application was pointed out
Indeed in that case the observations in Harish Chandra Bajpai s5 case were not followed to the utter most limit
In Sheopat Singh vs Ram Pratap6 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 2 1958 Madhya Pradesh 175 FB
3 4 5  6  629 can be made out must be stated
It is obvious that merely repeating the words of the statute does not amount to a 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 section 101 b of the Act
The attempt was only to make out the case under section 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 section 1001 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 section 100 1 d of the Act Mr Jethamalani who took over the argument from him contended that the case fell to be governed by section 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 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 CA No 1949 of 1967 decided on April 23 1968 and Inder Lall Yugal Kishore vs Lal Singh1
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 section 1002 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 vs Brijmohan Lal Sharma2
In that case section 1234 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 ATR 2  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 vs Ram Pratap1 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 believe it to be true he would be responsible under section 1234
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  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
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 section 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 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 vs Abdul Hamid Choudhury and Another1 Adams and Others vs Hon
EF Leveson Gower 2 Christie vs Grieve3 and W F Spencer John Blundell vs Charles Harrison4
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 case5 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 section 1001b and 1001d in so far as an agent is concerned
We have shown above that a corrupt act per se is enough under section 100 1 b while under section 100 1 d the act must directly affect the result of the election in so far as the returned candidate is concerned
Section 1001 b makes no mention of an agent while section 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 2 1 O Malley and Hardcastle 218
3 1 O Malley and Hardcastle 251
4 3 O Malley and Hardcastle 148
5 CA No 1949 of 1967 decided on April 231968
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 section 1 00  1  d because whenever agency is proved either directly or circumstantially the finding about consent under section 1 00  1  b will have to follow
We are clearly of opinion that Mr Jethamalani s argument that section 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 41967 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 Maharashtra Samiti or the SSP 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 vs Haralal Das and Others1 Abdul Majeed vs Bhargavan Krishnan  otherS2 Rustom Satin vs Dr Sampoornanand and Others3 Sarla Devi Pathak vs Birendra Singh  OtherS4 Krishna Kumar vs Krishna Gopal5 Lalsing Keshrising Rehvar vs Vallabhdas Shankerlal Thekdi and Others6 Badri Narain Singh and Others vs Kamdeo Prasad Singh and Another 7 and Sarat Chandra Rabba vs Khagendranath Nath and others8
It is not necessary to 1 2 AIR 1963 Kerala 18
3 4 5 AIR 6 AIR 1967 Gujarat 62
7 AIR 1961 Patna 41
8  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 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 vs Edmunds Byron and Marshall1 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 L10Sup69 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 case1 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 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 exhibit 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 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 section 1 00  1  d and not under section 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 section 100 1 d read with section 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 vs Brijmohan Lal Sharma1
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 section 1001 d ii unless we reach the further conclusion that the result of the election in so 1  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 section 94 of the Act bars disclosure of votes and to attempt to prove how the voting pattern would have changed would involve a violation of section 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 ie 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 case1 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 contends to be correct to ascertain how either the 41000 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 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 30000 votes between the two rivals and as many as 38565 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 exhibit 120 in which Mr Patil commented on the elections in Bombay being orderly
In exhibit 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 Chandra1 and Surendra Nath Khosla vs Dilip Singh2 and the later rulings of this Court in which Vashist Narain s1 case has been followed and applied
In our opinion the matter cannot be considered on possibility
Vashist Narain s1 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 s1 case and in Inayatullah vs 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 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
VPS Appeal dismissed
1  2 3  235 236


Summary:
Under section 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 section 1001
Section 100 1 b and d ii deal with corrupt practices and section 123 sets out what shall be deemed to be corrupt practices
To establish the corrupt practice under section 1234 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 section 1001 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 section 1001 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 section 865 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 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 147841 votes and his nearest rival the second respondent secured 118407 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 section 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 section 1001 d ii HELD 1 The amendments relating to the speeches of the first respondent and his article in the Blitz should not 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 vs Jaswant Singh  Bhim Sen vs Gopali  Chandi Prasad Chokani vs State of Bihar  Sheopat Singh vs Ram Pratap  and Kumara Nand vs Brij Mohan 19671 2 SCR 127 followed
Harish Chandra Bajpai vs Triloki Singh   explained
Din Dayal vs Beni Prasad  Balwant Singh vs Election Tribunal  Sasivarna Thevar vs Arunagiri  Hari Vishnu Kamath vs Election Tribunal  Devaiah vs Nagappa AIR 1965 Mys
102 Babulal Sharma vs Brijnarain Brajesh AIR 1958 MP 175 FB Beal vs Smith L R 1 5 Bruce vs Odhams Press Ltd and Phillips vs Phillips  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 L10Sup69 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 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 criminalcharge 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 section 1001d 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 section 1001 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 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 section 100 1 d ii and not under section 1001b
640 D Rama Krishna s case CA No 194967 dated 234 68 Inder Loll Yugal Kishore vs Lal Singh AIR 1961 Raj 122 Gopal Swami vs Abdul Hamid Chowdhury AIR 1959 Assam 200 Adams vs Hon
E F Leveson Gower 1 O Malley  Hardcastle 218 Christie vs Grieve 1 O Malley  Hardcastle 251 Spencer John Blundell vs Charles Harrison 3 O Mally  Hardcastle 148 Biswanath Upadhava vs Haralal Das AIR 1958 Assam 97 Abdul Majeed vs Bhargavan AIR 1963 Kerala 18 Rustom Satin vs Dr Sampoornanand  Sarala Devi Pathak T Birendra Singh  Krishna Kumar vs Krishna Gopal AIR 1964 Raj 21 Lai Singh vs Vallabhdas AIR 1967 Guj
62 Badri Narain vs Kantdeo Prasad AIR 1961 Pat
41 Sarat Chandra vs Khagendranath  and Taunton s case I O Malley  Hardcastle 181 185 referred to
Bayley vs Edmunds Byron  Marshall  distinguished
3 To bring a case under section 1001 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 section 1001dii and section 1234 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 section 1001 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 30000 between the votes received by the two rival candidates namely the first and second respondents and as many as 38565 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 vs Dev Chandra   Surendra Nath Khosla vs Dalip Singh and Inayatullah vs Diwanchand Mahajan  235 236 followed
Hackney s case 2 O Malley and Hardcastle 77 referred to 608