Case: Prabhu Narayan Vs. A. K. Srivastava

Alagiriswami, J.1. In the election held on 11th March, 1972 to the Legislative Assembly of Madhya Pradesh from Damoh constituency the respondent, an independent candidate, was declared elected. The appellant, the Congress candidate filed an election petition for declaring the election of the respondent void on various grounds all of which were found not proved by the learned Judge of the High Court of Madhya Pradesh who tried the petition. The petition was consequently dismissed and this appeal is against that dismissal.2. We are concerned only with the charge of corrupt practices under Section 123 (4) of the Representation of the People Act in respect of five pamphlets marked Exs. P-3, P-4, P-5, P-6 and P-8 and two public meetings held on 4-3-1972 and 8-3-1972.3. At the beginning of the arguments an objection was raised on behalf of the respondent that the election petition should have been dismissed on the ground that it did not comply with the requirements of Section 83 of the Representation of the People Act. This was on the basis that the affidavit filed in support of the election petition did not give details as to the material particulars in respect of the various corrupt practices with which the respondent was charged. It was argued in the alternative that in any case no evidence should have been admitted. As far as this appeal is concerned both amount to the same thing because charges with which we are concerned are charges under S. 123 (4). We do not think that there is any substance in this contention on behalf of the respondent.4. On behalf of the appellant it was made clear that the only charge made in the petition was the charge of publication of the pamphlets and not their printing and evidence regarding the printing was relied upon only to corroborate the evidence regarding distribution of the pamphlets. It is obvious that when Section 123 (4) speaks of publication it means distribution. Mere printing of the pamphlets would not fall under Section 123 (4). Therefore the failure to give particulars of the printing cannot lead to the dismissal of the petition. Nor could evidence regarding it be shut out. The proviso to Section 83 (1) lays down that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. It does not say that the allegation of corrupt practice and particulars thereof should be given in the affidavit. The election petition contains the allegation of corrupt practices and particulars thereof.That this is the intention of the Legislature is also clear from a perusal of Form 25, which is the one prescribed under Rule 94A of the Conduct of Elections Rules. The affidavit filed in support of the election petition is in accordance with that form.5. Reliance was placed on behalf of the respondent on the decision of this Court in Virendra Kumar v. Jagjivan (1972 (1) SCC 826 ) = (AIR 1974 SC 1957 ). In that case R. 9 of the Madhya Pradesh High Court Rules in respect of election petitions, which states that the rules of the High Court shall apply in so far as they are not inconsistent with the Representation of the People Act, 1951 or other rules, if any made thereunder or the Code of Civil Procedure in respect of all matters including inter alia affidavits, was referred to. On the basis of that Rule R. 7 of the Madhya Pradesh High Court Rules which states that every affidavit should clearly express how much is a statement made on information or belief and must also state the source of or grounds of information or belief with sufficient particularity, was stated to mean that grounds or sources of information are to be set out in the affidavit. This would really mean that the allegations found in the body of the election petition would have to be repeated in the affidavit. However, in that case the failure to conform to Rule 9 and R. 7 of the Madhya Pradesh High Court Rules was not held to be fatal to the election petition. What was said was that it would be helpful in assessing the value of the evidence. But that purpose is served by the allegations in the election petition itself. Moreover, it appears to us that the provisions of Rule 9 of the Madhya Pradesh High Court Rules regarding the election petitions framed by the Madhya Pradesh High Court by reference to Rule 7 of the Madhya Pradesh High Court Rules found in Chapter III regarding affidavits cannot be made use of for this purpose. The former set of rules are made under Article 225 of the Constitution and cannot make any substantive law end the rules themselves on a perusal of them would show that they relate merely to procedural matters unlike rules made under Section 122 of the Code of Civil Procedure.6. In Krishan Chander v. Ram Lal (1973 (2) SCC 759 ) = (AIR 1973 SC 2513 ) it was pointed out that:"When there are specific Rules made under the Act which govern the election petitions, no other Rules are applicable. Nor is disclosure of the source of information a requisite under Order 6, Rule 15 (2), C.P.C. Decisions rendered under Order 6, Rule 15 and Order 19, Rule 2 of the Code of Civil Procedure have no relevance and do not support the submission that if the affidavit in support of the petition does not state the source of information on which the several allegations in the petition are based, those allegations cannot be deemed to have been made.The provision for setting out the sources of information where the allegations have been verified as having been made on information and knowledge of the petitioner is not a requisite prescribed under Rule 94-A of the Conduct of Election Rules, 1961 which are applicable to the filing of an election petition.The affidavit in support of an election petition need not itself disclose the sources of information. The election petition under Section 83 (1) (b) itself must contain all the particulars that are necessary and in the affidavit in support of the petition the petitioner is required to say which of the allegations made in various paragraphs of the petition are true to his knowledge and which of them are true to his information. If any source of information has not been set out and the respondent can not answer them. Without particulars, he can always apply for better particulars. If the petition and the affidavit conform to the provisions of the Act and the Rules made thereunder, it cannot be said that because the sources of the information have not been given, the allegations made in the petition have to be ignored."This accords with the view which we have taken. Furthermore, according to Section 86 of the Representation of the People Act only petitions which do not comply with the provisions of Section 81 or Section 82 or Section 117 are liable to be dismissed. We, therefore, overrule the preliminary objection.7. With respect to these five documents there is no dispute that they fall within the mischief of Section 123 (4) and it is therefore unnecessary to set out the contents of these pamphlets, nor was it seriously contended except in the case of Ex. P-8 that they were not circulated. The only question is whether the circulation was made by the respondent or with his consent. In considering this question it is important to bear in mind that all the persons who admit that they printed these pamphlets are workers of the respondent. We will deal with the evidence in due course. It is necessary to go into the question of the printing of these pamphlets because evidence regarding it will have a bearing on their distribution either by the respondent or by his supporters with his consent. Though as many as 67 witnesses were examined and 28 of them with regard to publication, the learned trial Judge has rejected all of them.Where the question of publication and distribution is a matter to be decided on the basis of oral evidence, it is easy to dispose of them by saying that it is of persons interested in the appellant. That is why a discussion of the question regarding the printing should provide a satisfactory method of assuring oneself as to whether the distribution was made as alleged by the appellant. (The Judgment here discussed the evidence in Paras 8 to 28. The Judgment then proceeded:)29. After a thorough and anxious examination of the evidence in this case we have come to the conclusion that the people who got printed Exs. P-3, P-4, P-5, P-6 and P-8 are close supporters of the respondent. They have no special grievance against the appellant, certainly not enough to make them go to the extent of having them printed of their own. Two of them, Vijay Kumar Agarwal and Suman are mere boys of 14 and 15. They have merely been made use of by somebody and that somebody in the proved circumstances of this case could only be the respondent. We are not able to accept the evidence of Vijay Kumar Agarwal that he got the pamphlets at 11.30.p.m. on the night of the 10th March and he distributed them to a few people.Nor are we able to accept the evidence of Suman that though he gave the matter for printing on the 10th he got the pamphlets only on the 11th and so he did not distribute them. We find the evidence of P.Ws. 66 and 67 that it was given for printing on the 9th more acceptable. We are unable to accept the assertion of Ramesh Chand Jain that he got Ex. P-8 printed in order to hand it over to the Chief Minister when he was due to arrive at Damoh on the 28th of February but that he destroyed them because the Chief Minister did not turn up. All these pamphlets have been printed with a definite purpose that is of harming the chances of the appellant in the election and thereby aiding the respondent. The plan and the direction could have come only from one source that is the respondent. He has made use of his supporters, two of them young boys of 14 and 15, to get the pamphlets printed in their names so that they could take the responsibility and he may disown the responsibility for them.30. We have discussed the evidence of only non-Congress witnesses and we can see no reason to reject them. We do not agree with the learned Judge who rejected wholesale every bit of evidence adduced on behalf of the respondent. Whether the evidence of P.Ws. 66 and 67 about the part played by the respondent with regard to the pamphlets printed in the Chhabi Printing Press and of Kailash Chand Nakra with regard to the pamphlets printed in the Kailash Press are correct or not, we are convinced beyond reasonable doubt that the respondent is the guiding brain and hand behind all of them. He and his supporters must have planned all these things together. He has made his witnesses admit just enough so that a red herring might be drawn across the trail and blame may attach to them and not to him. The fact that he is an advocate or that it is the third election in which he is standing is no guarantee against his being responsible for this.31. Then there is the question of two meetings dated 4-3-1972 and 3-3-1972. We do not think it necessary to examine this branch of the case in view of the earlier findings.

Decision:
1[ds]is obvious that when Section 123 (4) speaks of publication it means distribution. Mere printing of the pamphlets would not fall under Section 123 (4). Therefore the failure to give particulars of the printing cannot lead to the dismissal of the petition. Nor could evidence regarding it be shut out. The proviso to Section 83 (1) lays down that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. It does not say that the allegation of corrupt practice and particulars thereof should be given in the affidavit. The election petition contains the allegation of corrupt practices and particulars thereof.That this is the intention of the Legislature is also clear from a perusal of Form 25, which is the one prescribed under Rule 94A of the Conduct of Elections Rules. The affidavit filed in support of the election petition is in accordance with that form.5.Reliance was placed on behalf of the respondent on the decision of this Court in Virendra Kumar v. Jagjivan (1972 (1) SCC 826 ) = (AIR 1974 SC 1957 ).