Case: Narbada Prasad Vs. Chhagan Lal And Ors

2. At the last General Election to the Madhya Pradesh Legislative Assembly from the Khategaon Constituency there were five contesting candidates. They were the appellant and respondents 2 to 5. The appellant received 9622 votes as against the second respondent who obtained 8030 votes. The other contesting candidates received fewer votes in comparison. The present election petition was filed, not by any of the defeated candidates, but by an elector to the Legislative Assembly Constituency. In the array of the respondents in the High Court one Ram Kishen s/o Lakshmi Narain Deswali was also joined because his nomination paper was rejected by the Returning Officer. A point was made about this rejection in the High Court and we shall come to it in due course.      3. The election petition was based on two broad facts. The first was that the nomination paper of Ram Kishen was wrongly rejected and the other fact comprised allegations of corrupt practices on the part of the returned candidate and his election agent. These corrupt practices consisted of oral speeches connected with the Manifesto of the Jan Sangh relating to cow slaughter in India. During the course of the speeches, it was alleged the returned candidate, who belongs to the Jan Sangh and his election agent Ram Niwas Somani made speeches at 19 villages in which they referred to this election manifesto and claimed that the Congress had not abolished cow slaughter in India and on the other hand was promoting it and that the Jan Sangh would stop cow slaughter. They added to these statements, which might have been quite innocuous, two other statements, namely, that to vote for the Congress was to commit the sin of go-hatya and that the Congress candidate Shrimati Manjulabai herself ate beef. There were other allegations regarding exhibition of posters which depicted the Congress as a butcher intent upon slaughtering a cow. This part of the case however, was not accepted in the High Court and we need not say anything about it. The petition therefore succeeded on the two grounds which we have mentioned, namely, that the nomination paper of Ram Kishen was wrongly rejected and that the corrupt practice attributed to the Jan Sangh candidate and his election agent was established.      4. In this appeal we are only required to consider these two points and we shall take them in the same order. In so far as the rejection of the nomination paper is concerned it may be pointed out that Ram Kishen s/o Lakshmi Narain Deswali was registered as a voter, not in the Electoral Roll relating to Khategaon Tehsil but in the Harda Tehsil. Along with this nomination paper Ram Kishen produced a certificate from the Tehsildar of Harda which reads as follows:-"I certify that there is an entry of the name of Ram Kishen, son of Laxmichand, village Dholgaon, at Anukaran No. Harda 217, Electoral roll of 1966, part of Anukaran No.177, District Hoshangabad, Tehsil Harda, under the heading Ra-Ni-Ma, Serali, Serial No. 196, House No. 91/2, with particulars Ram Kishen Laxmi Chand, male, aged 45 years.      16-1-1967.      Sd/      16-1-67      Tehsildar, Harda."

Reasoning:
It is a well-understood rule of law that if a thing is to be done in a particular manner it must be done in that manner or not at all. Other modes of compliance are excluded.Even the certificate of the Tehsildar was not a certified or a true copy of the entry. It only gave the gist of the entry taken from the affidavit. It contains a mistake because the village "Dholgaon" is mentioned without the addition of the word "Kalan. It appears that there are two villages, Dholgaon Kalan and Dholgaon Khurd. The entry in the electoral roll clearly shows that it is Dhalgaon Kalan. In other words the certificate was inaccurate. The affidavit of Ram Kishen was also inaccurate inasmuch as it described the house as No. 91 whereas in Electoral Roll the house is given the number 91/2.We, however, do not go by these small inaccuracies because again the law is that which can be made certain is certain, but the fact is clear that the requirements of S. 33 (5) had to be and were not complied with. The rejection of the nomination paper of Ram Kishen by the Returning Office was thus justified. Ram Kishen explained that he was running about trying to get the other evidence and indeed he did arrive at 5 p. m. having earlier sent a telegram that he was coming with the required evidence. Unfortunately both the telegram and Ram Kishen arrived after the rejection of the nomination paper and therefore the Returning Officer could not recall what he had ordered. We are satisfied that the learned Single Judge erred in holding that the nomination paper of Ram Kishen was wrongly rejected. It was rightly rejected12. It thus appears that at Kannod also there was a repetition of the same kind of speech which the other witnesses stated had been made at Khategaon. The question is: do we believe these witnesses or not? In our judgment there is ample evidence in this case that there was a reference to cow slaughter and the campaign of the Jan Sang that cow slaughter should be abolished in India. One cannot say that it is wrong to make such a propaganda. It would be perfectly legitimate for any party to promise that if it came into power it would abolish cow slaughter. That is not the gravamen of the charge. The gravamen of the charge is that it was added that if the voters voted for the Congress Candidate, they would be guilty of the sin of gohatya and here the law of election steps in.Section 123 provides that it is an election offence of undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right when any such person, as is referred to therein, induces or attempts to induce a candidate or an elector to believe that he or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censureIt is not necessary to enlarge upon the fact that cow is venerated in our country by the vast majority of the people and that they believe not only in its utility but its holiness. It is also believed that one of the cardinal sins is that of gohatya. Therefore, it is quite obvious that to remind the voters that they would be committing the sin of gohatya would be to remind them that they would be objects of divine displeasure or spiritual censure. Kinkarji went beyond the permitted limits of canvassing and exhortation when he added to the legitimate manifesto of his party this observation that by voting for the Congress or the Congress candidate the voters would be objects of divine displeasure or spiritual censure. In our opinion both spiritual censure and divine displeasure are implicit in the speeches as made. The case, therefore, falls clearly within S. 123 (2) (ii) of the Representation of the People Act, 195114. It will be encumbering this judgment if we record the incidents which relate to the election agent, except to say that the election agent Somani made similar speeches and the fact has been well established by reliable evidence. We are, accordingly satisfied that the returned candidate was guilty of corrupt practice and the High Court was right in holding that the election of the returned candidate should be avoided15. We may point out that there was a further statement that the Congress candidate Manjula Bai ate beef. Manjula Bai did not appear in the witness-box to deny this. In fact she showed little interest in the election petition and is reported to have left the matter to the elector who filed this petition. No one on her behalf appeared to deny this fact and therefore we leave the matter there. We do not express any opinion that any corrupt practice in relation to that statement was committed either in fact or in law.