Case: Prabodh Chandra Vs. Mohinder Singh

2. The appellant and the respondent contested the Gurdaspur Assembly seat in them election held in 1969. The appellant was the congress nominee and the respondent was the candidate of the Akali party. It is said that he had the support of the Jan Sangh. On other candidate who filed his nomination for that constituency had withdrawn from the contest. It is not necessary to refer to him. Polling took place on February 9, 1969 and the result of the election was declared on February 10, 1969. The appellant secured 20044 votes and the respondent 25501. Hence the respondent was declared elected3. The validity of the election of the respondent was challenged by the appellant on various grounds. The trial judge, as mentioned earlier, rejected the petition. In this Court the appellant pressed for our consideration only one of the several grounds urged by him in his petition, and that ground is that the respondent was guilty of a corrupt practice under S. 123 (3) of the Act inasmuch as he exhibited the "Holy Cross", the sacred symbol of the Christians in front of his office for a period of about 15 days prior to the election. The respondent denied this allegation4. In support of the allegation relating to the exhibition of the "Holy Cross", the appellant has relied on documentary as well as oral evidence. But before referring to those pieces of evidence, it is necessary to deal with one of the grievances of the appellant. The appellant summoned the Government of Punjab to produce certain reports received by it from the C.I.D. relating to certain agitations said to have been made during the election in connection with the exhibition of the Holy Cross" in front of the respondents office. The concerned reports were sent to the court under a sealed cover but the Home Secretary claimed privilege in respect of the same on the ground that these documents are unpublished records relating to the affairs of the State. The learned trial judge upheld that claim and hence those documents could not be brought on record.

Reasoning: It does not appear that the appellant asked the trial judge to peruse the records before considering the question of privilege or hold any enquiry relating to the claim made. In this Court no application has been made to receive any additional evidence nor those reports have been summoned. Those reports are not before us Hence we cannot go into the question whether privilege was properly claimed by the government. Now that we do not have those reports before us, we are unable to differ from the conclusion reached by the trial judge that they are documents relating to the affairs of the State7. Documents relied on by the appellant in support of the charge are Annexures A, B, C, D, E and F. These are either correspondence that passed between the appellant and the Salvation Army authorities or representations made by some persons, to the Deputy Commissioner. In all the" documents, the allegation made is that the respondent had installed a "Holy Cross" in front of his office. The allegations contained in the letters written by the appellant to the Salvation Army authorities as well as the representations made to the Deputy Commissioner are at best accusations They do not by themselves prove the truth of the allegations made. The truth of those allegations has to be proved by examining persons who made those allegations12. From what is stated above It is seen that in the election petition, the allegation was that the respondent exhibited in front of his election office the "Holy Cross", while adducing evidence that case was given up and in its place a new version was introduced namely that a flag bearing "Cross" was flown in front of the office of the respondent. Even this version was not consistently adhered to. According to P. W. 12, the flag complained of is the flag of the Masihi Dal Masihi Dal is proved to be a political organization. These contradictory versions are alone sufficient to reject the case of the appellant13. The oral evidence adduced on behalf of the appellant in support of the charge was disbelieved by the trial judge. After examining the evidence of the various witnesses examined in support of the charge, the court came to the conclusion that no reliance can be placed on their testimony. This finding of the trial court is a finding of fact. Unless we are satisfied that this finding is basically wrong, this Court following its usual practice will not reappreciate the evidence on record. But that apart, we are not satisfied that the witnesses examined on behalf of the appellant in support of the charge are reliable witnesses. The appellant himself who spoke in support of the charge is an interested witness. As seen earlier the evidence given by him does not accord with the plea taken by him in his election petition The other witnesses examined in support of the charge are P. Ws. 2, 3, 5, 6, 7, 8, 12 and 15. So far as P. W. 2 is concerned, his antecedents are such that his evidence cannot inspire confidence. He was prosecuted for an offence under S. 467/193, I.P.C. for identifying a wrong person for the purpose of cashing a cheque. According to his own admission he procured his acquittal by paying the complainants sum of Rs.. So far as P.W. 3 is concerned he admits that he was working for the appellant during the election. From the admissions taken from him during his, it is clear that he was a strong supporter of the appellant. Similarly it is clear from the evidence of P.W. 5 that he and his father were the supporters of the appellant. P.Ws. 6 and 3 are close associates. Further P.W. 6 was the polling agent of the appellant. P. Ws. 7 and 8 are said to be the persons who went on hunger strike as a protest against the flying of the flag bearing a "Cross". A comparison of the evidence of these two witnesses will show that they are wholly untruthful witnesses. According to P. W. 7, after holding a meeting of the Christians they went in a procession to the Deputy Commissioner and presented a written complaint to him; the Deputy Commissioner asked them to meet him next morning and when they met him on the next morning, he told them that he had forwarded that petition to the Superintendent of Police No such case was suggested to the Deputy Commissioner. We have earlier referred to the evidence of the Deputy Commissioner. As regards the presentation of the written complaint to the Deputy Commissioner, the version given by P.W. 8 materially differs from that given by P.W. 7. He deposed as follows"At the meeting resolution was passed to represent the matter to the Deputy Commissioner and observe fast unto death. We went to the Deputy Commissioner and gave him a written complaint. He directed us to go to the Superintendent of Police there and then."14. According to this witness they immediately went to the Superintendent of Police. We are inclined to accept the suggestion made on behalf of the respondent that P.Ws. 7 and 8 were the supporters of the appellant in the election15. We have already referred to the evidence of P.W. 12. So far as P.W. 15 is concerned he also appears to be interested in the appellant16. Taking into consideration the departure from the pleadings in the case, the various conflicting versions put forward in the case and the interested nature of the testimony adduced in support of the charge, we are not surprised that the learned trial judge was unable to place reliance on the evidence referred to earlier.In this view it is not necessary for us to consider whether the flag of Masihi Dal can be considered as a religious symbol.