G. Mehrotra, J. - (1.)THIS is an appeal under Section 116A of the Representation of People Act, 1951, (hereinafter called the Act) against the judgment of the Election Tribunal, Nowgong. The appellant Biresh Misra (hereinafter called the appellant), a voter of Silchar West Constituency stood as a candidate for the election for the Assam Legislative Assembly from Lumding constituency as the nominee of the Communist Party of India. The respondent No. 1 - -Ram Nath Sarma (hereinafter called the respondent) was a candidate nominated by the Indian National Congress to contest for the aforesaid constituency.
The respondent is also the Chairman of the Local Board of Nowgong and the other respondents were also the candidates for the said constituency. Abdul Mosabir contested as an independent candidate and the other respondents represented various other parties. Lumding constituency is also included as a part in the Loksabha constituency of the district of Nowgong and Sri Liladhar Kataki was the congress candidate for the Loksabha seat. In the Lumding constituency the total number of votes polled was 21,738.

The appellant polled 4063 votes and the respondent polled 11,259 votes. Abdul Mosabir got 2,089 votes. It is not necessary to give the number of votes received by the other respondents. The polling took place on the 6th of March, 1957 and the counting was done on the 7th March. The respondent was declared duly elected on the same day. The appellant challenged the election of the respondent by means of a petition, inter alia, on the grounds that the respondent committed corrupt practice through his party men.

Allegations of bribery, undue influence and procuring and obtaining assistance of government servants and using government property for the furtherance of the respondent's election and also for submitting false return by suppressing expenses incurred by him have also been made. The Tribunal held against the appellant on all the points and in the present appeal the points taken by the appellant before the Tribunal have been reiterated.

The first ground on which the validity of the election has been challenged is set out in para 8(1) of the petition and it is as follows : - -

"The respondent No. 1 - -Ram Nath Sarma and his agents carried on a virulent campaign throughout the length and breadth of the constituency in the line that any voter belonging to the minority communities of Muslims and Hindu Refugees of Pakistan not casting his or her vote in favour of the respondent No. 1, would be driven out of the Indian Union to Pakistan. On the 18th of February, 1957 Sri Chandra Dhar Goswami the President of the Lanka Mouza Congress Committee held two election meetings at Lanka and Odalani in support of the respondent No. 1. In these meetings the said Sri Chandra Dhar Goswami in course of his speeches warned the voters of the minority communities that if they voted against the Congress party candidate in the election, they would be driven out of Assam and the Indian Union and sent to Pakistan. The respondent being a very influential man engaged the Gaoburas, Mouzadars of different Mouzas and other Revenue officers and began to interfere with the free exercise of the electoral right of the voters belonging to the minority communities".

In this paragraph, it is further set out that on the 25th February, 1957 some persons belonging to the minority community including 12 village headmen and the election agents of the respondent widely circulated a leaflet throughout the Lumding constituency under their signatures, in which it was given out that a meeting had been held on the 23rd of February, 1957 at village Islamnagar of the Influential Muslims and in that meeting it had been declared that not voting for the congress would mean high treason against the State.

The main ground, therefore, set out in the aforesaid paragraph is one of corrupt practice by exercising undue influence on the voters. There are three material facts on which the corrupt practice of undue influence has been pleaded. Firstly, it is said that the respondent held two meetings - -one at Lanka and the other at Odalani in which threat was given to the minority communities.

Secondly it is said that the publication of the leaflet containing the resolution passed in the earlier meeting of the representatives of the minority communities constitutes corrupt practice, and thirdly that undue influence was exercised by the Gaonburas and Mouzadars of different villages. The allegations in this paragraph have been denied by the respondent, in his written statement in the following terms : - -

"It is true that Sri Chandradhar Goswami held election meetings at Lanka and Odalani mouzas in support of this respondent but it is absolutely false to say that he (Shri Goswami) in course of his speeches in any of the meetings warned the voters of the minority communities that if they voted against the Congress party candidate they would be driven out of Assam and Union of India and sent to Pakistan."

(2.)THE questions which therefore arise in connection with this point are (1) whether the petitioner has succeeded in proving the alleged version of the speech made by Sri Chandradhar Goswami and the other speakers in the two meetings held at Lanka and Odalani and (2) if, the speeches were actually made will constitute undue influence as defined in Section 123(2) of the Act. Section 123(2) of the Act provides as follows : - -
"(2) 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 free exercise of any electoral right : - -

Provided that -

(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who -

(i) threatens any candidate, or any elector, or any person in whom a candidate or an elector is interested, with injury of any land including social ostracism and excommunication or expulsion from any caste or community; or

(ii) 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 censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause.

(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause."

(To prove the actual speeches made at the meeting of Odalani, the petitioner has produced witnesses. After analysing the depositions of the witnesses, his Lordship concluded :)

We have considered the evidence of these witnesses and we have no reason to differ from the estimate of their testimony by the Tribunal. The appellant, therefore failed to establish that at the two meetings held at Odalani and Lanka bazar Sri Chandra Dhar Goswami who admittedly worked for the respondent made any speech in which he threatened the Muslim minorities or the refugees that their annual pattas will be cancelled in case they failed to vote for the congress. That he delivered a speech at the meeting is not denied but as the appellant has failed to prove the contents of the speech, it cannot be held that any corrupt practice was committed by the respondent in this respect.

The next allegation is that in a leaflet under the signatures of a number of persons which is marked as Ex. 10, a resolution passed by the members of the minority community was published and the contents of that leaflet amounts to a corrupt practice as defined in Section 123(2) of the Act. On the 23rd February, 1957 at village Islamnagar a meeting of the prominent people of the minority community was held in which it was decided to support the congress candidate, and in pursuance of the resolution of that meeting the leaflet Ex. 10 was published. The material portion of the pamphlet is as follows - So to the Muslim community and as a matter of that to all minority communities it is the humble appeal that in the ensuring general election all should try utmost for the success of the congress and that gentlemen assembled there emphatically declared that not to vote for congress would amount to high treason."

(3.)THERE is some mistake in the translation. The correct translation will be as follows: - -as not to vote for Congress will be like committing betrayal of the country'. No objection has been taken to the earlier part of this document. It is admitted that the language used in the major part of this publication is dignified and proper. The objection is taken only to the insinuation at the end that failure to vote for the Congress will amount to betrayal of the country.
Apart from the fact that the signatories to this pamphlet were not proved to be the workers of the respondent and thus the publication of the leaflet cannot be regarded as the work of the agents of the respondent, we do not think that the publication of this pamphlet by itself will constitute undue influence within the meaning of Section 123(2) of the Act. We have already referred to the contents of the document and in our opinion it contains only an expression of opinion.

The language of the publication is not such as is likely to interfere with the free exercise of the right of voting. It only states that the failure to vote for the Congress will be like an act of betrayal of the country. Even if it is said that the failure to vote for a particular candidate will be like committing an offence, that by itself will not constitute any threat or interference with the exercise of free right of voting.

It was contended by the learned counsel for me appellant that in the modern society, there cannot be a greater accusation than saying that an act will amount to high treason. We do not think that the document even goes to the extent of suggesting that any person by not voting for Congress candidate would be committing an offence of high treason so as to give the remotest apprehension of conviction for any offence under the Indian Penal Code and consequent punishment.

It is only an expression of opinion of the signatories to the document. In this view of the matter, even if it is held that the signatories to tins document were the workers of the respondent, the respondent cannot be held guilty of corrupt practice. The respondent had denied that any of the signatories were his election agents. It is admitted that some of the signatories were later appointed polling agents of the respondent, but it is denied that the pamphlet was issued by him or any of the agents of the respondent.