Appeal No 20 of 1968
Appeal under Section 116 A of the Representation of the People Act 1951 from the judgment and order dated the November 30 1967 of the Patna High Court in Election Petition 19 of 967
Danial A Latifi and RA Gupta for the appellant
D Goburdhun for the respondent
The Judgment of the Court was delivered by Mitter J
This is an appeal by an unsuccessful candidate at an election held in February 1967 for the Bihar State Legislative Assembly from the Single Member Rajmahal Constituency No 139
Originally there were eight candidates
 we are concerned only with two of them namely the election petitioner and respondent Nathumal Dokania the returned candidate as a result of the election
The election petitioner lost before the High Court
The main ground on which he presses this appeal are based on paras 4c and 4e of the petition
The relevant issue framed by the learned trial Judge with regard to paragraph 4 c issue No 5 reading  Did the respondent or his election agent or his workers with his or his election agent s consent resort to corrupt practices in the election as alleged by the petitioner and has the result of the election been materially affected thereby  para 4c it is pleaded that the respondent himself and his agents and workers including certain named persons with his consent committed a corrupt practice of publication of statements of facts throughout the constituency and mainly at Shahebganj Teen Pahar and Rajmahal during the election campaign during 43 the period 11th February 1967 to 15th February 1967 which induced and caused deception in the mind of the electors whereby the respondent procured a large number of votes which he would not otherwise have secured but for the corrupt practice aforesaid
 Copies of the pamphlets from Annexure 2 series to the petition
Mr Latifi appearing for the appellant submitted that Annexure 2A does not further his client s cause
His grievance is based on Annexure 2
The translation of this Annexure of which the original was in Hindi shows that it was a call to the Muslim voters of Rajmahal to hear the message and prepare the graveyard for the Congress
 Reference was made therein to the appeal of the day by Maulana Syed Usman Ghani Saheb of Phulwari Sharif Khankah that nobody should be in illusion that Muslims have to vote for the Congress
time also
It was also suggested that on account of high handedness of the Congress group Muslims should not support it
There was also a reference to the appeal of Pit Saheb of the Dargah of Phulwari Sharif that Muslims should not vote for any Congress candidate
The appeal ends with the sentence when you have life long connection with Sri Nathmal Dokania the candidate of the Swantantra Party and when the Head of your religion your Islam also opposes the Congress then it becomes your duty to come out victorious by affixing stamps on the Star symbol Mr Latifi tried to argue that by the publication of the pamphlet an attempt was made to
induce Muslim electors not to vote for a Congress candidate in opposition to the mandates of the two
named religious heads
In other words his contention was that undue influence within the meaning of section 1232 of the Act was sought to be exercised on the Muslim voters in the name of the religious heads mentioned in the pamphlet under the threat of divine displeasure or spiritual censure
He also sought to argue that the reference to the mandate of Islam in the pamphlet amounted to the use of a religious symbol and as such the appeal by the pamphlet came within the mischief of section 123 3 of the Act
Under 8 1232 a candidate may be guilty of corrupt practice if he uses undue influence which in the words of the section means any direct or indirect interference or attempt to interfere with the free exercise of any electoral right of a voter
Mr Latifi s submission was
that the pamphlet came within the mischief of subclause ii of proviso a to section 1232
Unfortunately for Mr Latifi although the pamphlet might have sustained a plea of undue influence about which we express no opinion there is no pleading to that effect in the petition
In order that a pleading may be sufficient to make out a case of undue influence it must 44 set out full particulars of it under the provisions of section 831c of the Act which may be compared with Order 6 rule 4 of the Code of Civil Procedure
The said provision of the Act read with section 1232 makes it obligatory on a party setting up a case of corrupt practice by exercise of undue influence as suggested to give full particulars thereof by stating inter alia who attempted to induce electors to believe that voting for a particular person would render them objects of divine displeasure or spiritual censure and in what manner such attempts were made
The real charge in paragraph 4c of the petition is that the pamphlet complained of misled the electors by false statements
Such a pleading falls far short of an allegation of undue influence by an attempt to make electors exercise their franchise in a particular manner
Para 4c does not even mention Muslim voters and does not contain any averment to the effect that they were sought to be influenced by the opinion of the religious heads
Mr Latifi s attempt to bring his case under section 1233 is equally futile
Mr Latifi sought to argue that Islam was a religious symbol of Muhamedans and the publication of the pamphlet containing a reference to the mandate of Islam was an attempt to prejudicially affect the election of the petitioner
This case too is not borne out by the pleadings
Failing in his attempt to bring the  case under the two sub sections mentioned already he tried to bring his case under section 123 4 of the Act
In this too in our view he cannot succeed
To bring the case under this sub section there must be a publication by the candidate or his agent of any statement of some fact which is false and which he believed to be false or did not believe to be true in relation to the personal character or conduct of any candidate or in relation to the candidature or withdrawal of any candidate being a statement reasonably calculated to prejudice the prospects of that candidate s election
The pamphlet does not cast any aspersion on the personal character or conduct of the election petitioner
Nor is there any false statement in relation to the candidature of the petitioner
In fact there is no reference to him at all
Consequently the election petition does not attract the operation of the aforementioned sub sections of section 123 of the Act
The learned trial Judge should not have entertained any argument under subsections 3 and 3A of section 123 of the Act as in view of the pleadings issue No 5 did not permit the raising of such contentions
In view of the pleadings we did not permit Mr Latifi to pursue his arguments on this issue on the basis of section 123 sub sections
2or 3 of the Act
That leaves us only with the allegation in para 4e of the petition which runs thus The election of the respondent is void because the Returning Officer who is also the Sub Divisional Magis 45 trate of the area in collusion with the respondents harassed the petitioner in all possible ways so much so that a mere application for correction in the petitioner s name was allowed at the last juncture and the petitioner had been arrested the very next day of the said application was put in jail for eight valuable days and thereby prevented from pursuing the election campaign
 The issue under which the above complaint was sought to be raised was the general one namely whether the election of the respondent is liable to be set aside  Mr Latifi drew our attention to portions of the testimony of the Returning Officer where he denied that he was in collusion with Nathmal Dokania or that because of such collusion he got the petitioner arrested after he had filed applications for correction of the entries with respect to his name in the electoral roll
He also denied that he got the petitioner arrested with any mala fide intention so that he might not be able to contest the election
in his cross examination the Returning
Officer referred to
the proceedings started against the petitioner and said that the petitioner had been arrested once in January and for a second time in February 1967
The arrest in January 1967 was in connection with proceedings under section 107 of the Code of Criminal Procedure
The arrest in February 1967 was in connection with a case for some substantive offences
He added however that he was not in a position to say what was the offence alleged to have been committed by the petitioner by a mere reference to the certified copy of the order sheet
On this evidence there was nothing before the court to justify a conclusion in favour of the petitioner on the general issue
Only some suggestions had been made to the Returning Officer in his cross examination that he had acted mala fide and that he had a acted in collusion with the successful candidate
No details with regard to the complaints leading to or the grounds for the arrests were forthcoming
We find it difficult to believe that the petitioner did not know the grounds on which he was put under arrest
The arrest immediately before the election surely hampered the campaign of the election petitioner but by itself the arrest does not lead to the conclusion that the Returning Officer was trying to bring pressure upon the election petitioner not to contest the election and much less that the arrest was made in collusion with the successful candidate
These being the only two points which were urged before us in the appeal the appeal must fail and it is hereby dismissed with costs
GC Appeal dismissed


Summary:
The election of the respondent to the Bihar Legislative Assembly at the 1967 general election was challenged by the appellant one of the defeated candidates in an election petition
Annexure 2 to the petition was a pamphlet alleged to have been issued by the respondent and his supporters in which reference was made to the call of two Muslim religious heads that Muslims should not vote for the Congress party to which Islam was opposed
The High Court dismissed the election petition whereupon appeal was filed in this Court
The appellant urged that i In the aforesaid pamphlet an attempt was made to induce muslim voters not to vote for a Congress candidate in opposition to the mandate of two named religious heads and this amounted to the corrupt practice of undue influence under section 1232 of the Representation of the People Act 1951 ii The reference to the mandate of Islam amounted to the use of a religious symbol within the mischief of section 1233 iii The said pamphlet also came within the mischief in section 1234 iv The Returning Officer who was also the Sub Divisional Officer of the District ordered the arrest of the appellant immediately before the election this was done mala fide in collusion with the respondent and the appellant was thereby hampered in his election campaign
HELD i The pleadings in the appellant s election petition did not permit consideration of his contention based on section 1232 of the Act
In order that a pleading may be sufficient to make out a case of undue influence it must set out full particulars of it in compliance with section 831c of the Act comparable to Order 6 r 4 of the Code of Civil Procedure
The said provision of the Act read with section 1232 makes it obligatory on a party setting up a case of corrupt practice by exercise of undue influence as suggested to give full particulars thereof by stating inter alia who attempted  to induce electors to believe that voting for a particular person would render them objects of divine displeasure or spiritual censure and in what manner such attempts were made
The real charge in the relevant paragraph of the petition in the present case was that the pamphlet complained of misled the electors by false statements
Such a pleading falls short of an allegation of unique influence by an attempt to make electors exercise their franchise in a particular manner
43 H 44 C ii The contention that the case fell under section 1233 because of the use of the mandate of Islam as a religious symbol was also not borne out by the pleadings and therefore could not be considered
44 D iii To bring the case under section 1234 there must be a publication by the candidate or his agent of any statement of same fact which is up
CI69 4 42 false and which is believed to be false or not believed to be true in relation to the personal character or conduct of any candidate or in relation to the candidature or withdrawal of any candidate being a statement reasonably calculated to prejudice the prospects of that candidate s election
The pamphlet in question did not cast any aspersion on the personal character or conduct of the election petitioner
Nor was there any false statement in relation to the candidature of the petitioner
Section 1234 was therefore not attracted to the case
44 E F iv The
evidence in the case did not prove that the Returning Officer caused the appellant to be arrested mala fide or in collusion with the respondent
The arrest immediately before the election surely hampered the campaign of the election petitioner but by itself the mere fact of arrest does
not lead to the conclusion that the Returning Officer was trying to bring pressure on the election petitioner not to contest the election and much less that the arrest was made in collusion with the successful candidate
45 G