Case: Thakur Virendra Singh Vs. Vimal Kumar

This appeal under section 116-A of the Representation of the People Act, 1951 (hereinafter referred to as the Act) is directed against the judgment and order dated April 26, 1974, of Indore Bench of the High Court of Madhya Pradesh whereby the election of the appellant to the Madhya Pradesh Legislative Assembly from Khachrod Assembly Constituency No. 247 at the general elections of 1972 has been set aside under section 100(1)(b) of the Act on the election petition filed by Vimal Kumar Choudhury, respondent herein, who Was an elector in the saidto the notifications issued under section 30 of the Act calling upon the aforesaid constituency to elect a member to the M.P. Legislative Assembly, nomination papers by the appellant and some others were filed on February 8, 1972. On scrutiny of the nomination papers held by the Returning Officer on February 9, 1972, nomination of 8 candidates was found valid. Out of the said 8 candidates, 3 withdrew their candidature with the result that only five candidates including the appellant who was set up by Bhartiya Jan Sangh and Rajendra Jain (p.W. 39) who was set up by the Indian National Congress contested the election. The poll took place on March 8, 1972. On March 12, 1972, the appellant was declared elected as a result of counting of the polled votes which showed that he had secured 23, 572 votes as against 22, 327 secured by Rajendra Jain (P.W. 39), his nearest rival. On April 24, 1972, the respondent herein presented an election petition challenging the election of the appellant alleging commission by the latter of various acts of corrupt practices. The particulars of corrupt practices alleged to have been committed by the appellant were set out by the respondent in Paragraphs 13, 14 and 15 of his e lection petition. In paragraph 13 of the election petition, it was inter alia stated asThat the respondent has committed the corrupt practice of publication of false statement of fact in relation to the personal character and/or conduct of Shri Rajendra Jain (hereinafter referred to as the Congress Candidate) falling in the purview of section 123(4) of the A ct as per the facts and particulars mentioned hereinafter. Leaflet (13)(xi). That the Congress candidate is the follower of the Jainism wherein the eating of cow meat is absolutely prohibited. Shri Rajendra Kumar Jain does not eat meat at all. Amongst Hindus who form a majority of the voters in the Constituency, cow is regarded as a sacred animal and worshipped like God. Persons who eat cow meat are looked with hatred by the Hindus and are discarded from the society.(13) (xii).That the respondent/Election Agent got printed and distributed a leaflet entitled:"Beware, understand the Congress Candidate." (Leaflet is attached hereto and marked as Annexure A).(13)(xiii). That the leaflet Annexure A contains the following statement of facts which are false, which the respondent either believed to be false or did not believe to be t rue in relation to the personal character and for conduct of the Congress Candidate, being the statement reasonably calculated to prejudice the prospects of Congress candidates election:" .... What to speak of other things, Rajendra Jain went on tour to those countries where beef is prepared and served in Hotels and there he took beef even. Do you want to cast your vote in favour of a person who is atheist who is a beef eater and is devoid of Dharma ....(xiv) . That the pararticulars regarding the date, place, time and name regarding the distributors of Annexure A are given hereinbelow:--Sr. Date Place Name of TimeDistribution(a) 5.3. 72 Khachrod (Shukar- Rampartap s/o Aboutvariya Chouk)in Ramsukh 3.00 P.M.the meeting of Jan KhachrodSangh at whichthe respondent andhis election age-nt Shri Amrudda Hedawere also present.(b) 6. 3.72 Ramsingh 9.00 A.M. toR/o Ganesh 11.00election petition was vigorously contested by the appellant. In the course of the written statement filed by him, the appellant denied to have any concern with or knowledge of the aforesaid leaflet and averted that during the election time, he never saw any such leaflet; that it was only in the course of the election petition that he came to know of the leaflet and that he had no knowledge of the truth or falsity of the contents thereof. The appellant further averred that it was only after the de feat of Rajendra Jain that the story of the leaflet was manouvred and manufactured for the purpose of the election petition. The appellant further averred that he did not do anything to prejudice the prospects o f the election of Rajendrathe pleadings of the parties, the learned Judge (to whom the election petition was .assigned for trial and disposal by the Chief Justice of the High Court) framed a number of issues but it is only with the following issues with which we are concerned in this(a). Whether the leaflet Annexure A was published by or with the consent of the respondent by the persons and on the dates mentioned in para (13)(xiv) of the petition ?(b) If so, whether the said leaflet contained false statements in relation to the personal character and conduct of the congress candidate Rajendra Jain which the respondent did not believe to be true or believed to be falseconsideration of the evidence adduced by the parties during the course of the regular trial of the petition, the learned trial Judge allowed the election petition and set aside the election of the appellant under section 100(1)(b) of the Act. The findings arrived at by the learned Judge in so far as they are relevant for the purpose of this appeal are asthe findings on most of , the issues are against the petitioner yet it has been found that the pamphlet Ex. P-10 which was a false statement with regard to the personal conduct and character of the candidate Rajendra Jain was got printed by the respondent at the printing press of P.W.34 Ramprasad. The defence raised by the respondent with regard to this pamphlet has been found to be not established. It has been held that it was the respondent who himself by letter Ex.P-20 got this pamphlet printed in the printing press of P.W. 34. Ramprasad. The evidence given by the petitioner about its distribution by Ram Singh (P.W. 21) and Rampratap Dhakad (not examined) with the consent of the respondent has been disbelieved. However, it has been found as a fact that it was the respondent himself who got 2000 copies of this pamphlet printed and published. This is, therefore, a clear case where the respondent is guilty of getting this pamphlet printed and published against the congress party candid ate Rajendra Jain. The respondent is, in the light of the aforesaid finding clearly guilty of committing the corrupt practice as mentioned in sub-section (4) of section 123 of the Representation of the People Act. When such a pamphlet is published by the returned candidate the only inference that can be drawn is that the publication was reasonably calculated to prejudice the prospects of the election of the other contesting candidate Rajendra Jain; Consequently under section 100(1)(b) the election of the respondent is liable to be declare d void and settrial Judge, however, left the parties to pay and bear their own costs of the petition. It is against this judgment and order that the present appeal has been preferred.

Court's reasoning:
It is no doubt true that the respondent has not been able to produce Rampratap in proof of his allegation but it cannot be lost sight of that the former did summon the latter as his witness but he did not appear despite service the course of the statement made by him as his own witness, the respondent has explained that on Ramprataps omission to appear before the Court as his witness despite service, he contacted the latter to enquire about the reason for his non-appearance and was told by the latter that he could not attend the Court since his brother was married to the niece of Vardiram (R.W. 30) and his appearing as a witness in the Court would strain his relations with Vardiram. In the course of his statement, Vardiram (R.W. 30, ), who is staunch worker of Jan Sangh and who appears to have worked for Jan Sangh and addressed public meetings in support of its candidates during the last general elections had to admit that his real nephew was engaged to the daughter of Rampratap. It is also significant that though Rampratap was also summoned as a witness by the appellant, the latter gave him upon December 12, 1973. It is, therefore, crystal clear that the non-appearance of Rampratap as a witness for the respondent was entirely due to his anxiety to maintain cordial relations with Vardiram. The totality. of the evidence adduced in the case, therefore, leaves no room for doubt that the distribution of the leaflet (Exh. P--10) at the meeting of the Jan Sangh Party held on the afternoon of March 5, 1972 in Shukr avariya Bazar, Khachrod, was with the consent of the appellant or his election agent, Anirudh Hada, advocate (R.W. 1). The distribution of the copies of the leaflet (Exh. P-10) at Nagda on March 6, 1972 also stands proved. by the direct evidence of Ram Singh (P.W. 21), Ajit Singh (P.W. 22), Shanker Singh (P.W. 23) and Jawahar Lal (P.W. 37).Ram Singh (P.W. 21) who besides being an employee of the Gwalior Rayon Mills is a newspaper hawker has stated that during the last general elections, he worked for Thakur Virendrasingh who was a candidate of the Jan Sangh party. He has further stated that two days before the date of voting, he distributed free of cost about 300 copies of leaflet (Exh. P-10) in which it was stated that Rajendra Jain was a meat eater, that he eats flesh and that the voters should know h im. The witness has unequivocally stated that it was the appellant who gave him the leaflets and asked him to distribute the same and told him that his remuneration for this job would be duly paid to him and that subsequently, Rs. 4/- were paid to him as remuneration for distributing the leaflets by the President of Nagda Nagar Jan Sangh Party. Although it has been emphasized by Mr. Hardy that the statement of Ram Singh (P.W. 21) cannot be relied upon as he is a staunch worker of the Congress organisation and is also a member of the Indian National Trade Union Congress which is a subsidiary institution of the Indian National Congress, it cannot be ignored that the Indian National Congress and the Indian National Trade Union Congress did not see eye to eye with each other in the matter of choice of the candidates for election during the last general elections. This is evident from the statement of appellants own witness, Vishnu Singh (R.W. 2) who has deposed that the Indian National Trade Union Congress supported Maheshchandra Lala who was an independentstatement of Ram Singh (P.W. 21) receives ample corroboration from the evidence of Shanker Singh (P.W. 23) and Jawahar Lal (P.W. 37) (who is a non-Congressman). These witnesses have clearly stated that one or two days before the date of voting, Ram Singh (P.W. 21) who is also a news- paper hawker distributed copies of leaflet (Exh. P-10) without any charge in Nagda in which it was inter alia mentioned that Rajendra Jain was a cow meat eater and during his trip abroad he stayed at the places where cow meat was served. Ajit Singh (P.W. 22) has also affirmed that about two days before the date of polling when he had gone to Nagda Mandi for shopping, he came across a leaflet wherein it was mentioned that "while Rajendra Jain was abroad, he stayed in hotels where cow meat was served and that he being a Jain, stayed in such hotels." Eve n if the testimony of Ram Singh (P.W. 21) which has been disbelieved by the High Court is excluded from consideration, even then there are some unimpeachable and telling pieces of circumstantial evidence to establish the distribution of the leaflet (Exh. P-10) by the appellant or with his consent which cannot be easily ignored. These circumstances are-- (i) it was the-appellant who as already observed caused t he election leaflet (Exh. P-10) to be printed by Ramprasad (P.W. 24.) at the Kamla printing Press, Ujjain;-(ii) in the normal course of human conduct, no one gets any material printed without a purpose and in the instant case, the purpose manifestly was to malign the conduct and character of Rajendra Jain by distribution of the leaflet (Exh. P-10) amongst the inhabitants of Khachrod Constituency, (iii) the selection of time and place for distribution of the leaf-let (Exh. P-10)) which openly denounced Rajendra Jain and cast aspersions on his personal character and conduct and appealed to the electorate not to vote for him. The offending leaflet was got distributed at a largely attended election meeting held at Khachrod to canvass support for the appellant where both the appellant and his election agent were present and at other places in Nagda which were frequented by the voters of Khachrod Constituency at a time when the tempo of the election campaign was at its climax, and (iv) the omission on the part of the appellant to prove that the leaflet (Exh. P- 10) emanated from a source which had no connection with the appellant or his election agent.Not only is the distribution of the offending leaflet proved to have been made by the appellant or his election agent or with their consent but it has also been proved by the unrebutted testimony of Rajendra Jain that the leaflet contained false statement of facts calculated to injure his personal conduct and character with a view to prejudice the prospects of his election.