- (1.) This appeal under S. 116-A of the Representation of the People Act, 1951 (hereinafter to be referred as the-Act) is from the order and judgment, dated 25/03/1970, of the Calcutta High court in election petition No. 1 of 1969, setting aside the election of the appellant from the 130-Jorabagan Assembly Constituency after declaring the same void. After hearing arguments in the appeal, we passed on February 9, 1971, the following order : "The appellant was a successful candidate in the mid-term election held in 1969 for the Jorabagan Assembly constituency. The first respondent herein filed election petition case No. 1 of 1969, in the High court of Calcutta for setting aside the election of the appellant on various grounds. But it is seen that at the stage of final arguments, the first respondent's counsel gave up all allegations in the petition except those in Paragraphs 7 (b) (1) and (2) , 7 (c) and (J) , (k) , (l) and (m). The learned Judge in his judgment under attack has held that the first 304 respondent has not succeeded in proving the allegations made in Paragraphs 7 (b) (1) and (2) and (c). The learned Judge, however, held that the appellant is guilty of corrupt practices alleged in sub-paragraphs (J) , (k) , (1) and (m) of paragragh 7 of the election petition. On the basis of this finding, the learned Judge declared the election of the appellant void and set aside the same. We have heard learned counsel on both the sides and we have also been taken through the judgment of the learned Judge as well as the material, oral and documentary, bearing on the points arising for decision in this appeal. We are not inclined to agree with the view of the learned Judge that the appellant is guilty of the corrupt practices found against him and referred to above. In our opinion, the appellant is not guilty of any corrupt practice. The judgment of the learned Judge is hereby set aside and the appeal allowed. The reasons for this order will be given in due course. Suitable directions regarding costs will be given along with the reasons. " we proceed to give our reasons for our decision.
(2.) In the mid-term elections held on 9/02/1969, the appellant nepal Chandra Roy was the Congress candidate for election to the Legislative assembly from 130-Jorabagan Assembly constituency situated in the State of West Bengal. The third respondent Har Prasad Chatterjee, contested the election as the candidate of the Communist Party of India (Marxist). Respondents Nos. 2 and 4 were also candidates in the said election. Both of them were defeated and we are not concerned with them in these proceedings. "the poll respondent got 28,315. As the appellant received 1,066 more than the next contesting candidate, namely, the third respondent, the appellant was duly declared elected. The first respondent Netai Das as an elector of the 130-Jorabagan Assembly constituency, Calcutta, filed on 24/03/1969, election petition No. I of 1969, challenging the election of the appellant on various grounds. He alleged that the appellant was guilty of various acts of corrupt practice. Such allegations were made by him in paragraph 7, sub-paragraphs (a) to (c) as well as Paragraphs 8, 12 and 15 of the election petition. The first respondent prayed for setting aside the election of the appellant after declaring it void. He also prayed for a declaration that the third respondent has been duly elected in the said election to the West Bengal Legislative Assembly. Though the election petitioner alleged in the election petition various acts of corrupt practice, yet during the trial and at the final stage of hearing of the election petition he gave up several of these allegations. Ultimately he pressed for the relief only on the basis of the allegations made in paragraphs 7 (b) (1) and (2) , 7 (c) , 7 (j) , 7 (A) , 7{l) and 7 (m). The appellant contested the allegations made by the election petitioner. The material allegations of corrupt practice as well as the pleas of the appellant will be referred to later. The learned Judge held that the election petitioner has not succeeded in proving the allegations of corrupt practice made in Paragraphs 7 (b) (l) and (2) and 7 (c) of the election petition. However, the learned Judge found that the allegations contained in Paragraphs 7 (J) , 7 (k) , 7 (1) and 7 (m) were proved, and on those findings declared the election of the appellant to be void and set aside the same. The learned judge, however, has not declared the third respondent to have been duly elected. The material elements of corrupt practice that have been foundby the court to have been committed by the appellant are) as mentioned earlier, those alleged in Paragraphs 7 (J) , 7 (k) , 7 (1) and 7 (m). They are as follows: "(J) Besides the leaflets mentioned above which include publication of false statements regarding the respondent No. 3 there were other instances of publication of false statements regarding the personal character of the respondent No. 3 by the respondent No. 1, and his election agent and other persons with the consent of the respondent No. 1, and his election agent. Several printed wall posters of very large size printed in Bengali as well as in Hindi not containing the name of the printer or publisher were used in the election by the respondent No. 1, and his election agent and other persons with the consent of the respondent No. 1 and his election agent containing the picture of a house and pictures of two men meant to be Shri Jyoti Basu leader of the Communist Party (Marxist) and Hara Prosad Chatterjee the respondent No. 3 and the person resembling Shri Hara Prosad Chatterjee was depicted as telling his leader Shri Jyoti Basu that he the said Hara prosad Chatterjee was able to acquire the plot No. 185, C. I. T. Scheme no. VII (M) at No. 101, Main Road, Calcutta which was bought by hara Prosad Chatterjee on 11/05/1967 at a price of Rs. 1,14,774. 00 in nine months time and had built a house on the same. The person depicted as respondent No. 3, Hara Prosad Chatterjee in the said posters was also depicted by captions to be saying to his leader Shri Jyoti Basu that given little more time he would have been able also to acquire the lands and buildings shown at the back ground of the picture. By all these it was meant to be conveyed that the respondent No. 3, was a dishonest person and had purchased the land with a large sum of money acquired dishonestly in nine months when the united Front government was in power and had also built a big house on the said plot of land. The said posters did not contain the name and address of the printer or publisher. The respondent No. 3 and his supporters at various meetings challenged the truth and veracity of the statements contained in the same posters and other pamphlets. This was also intimated to the Returning Officer by a letter, dated 4/02/1969, by respondent No. 3. The fact is that no building has yet been constructed on the said land and the full price of the land has not yet been paid the same being payable in instalments in fourteen years time. Auction for purchasing the said plot of land took place in october, 1966 long before the U. F. Government came in power. (K) After the said protests were made by the respondent No. 3 and his supporters in public meetings the respondent No. I and/or his election agent and/or other persons with the consent of the respondent no. I and/or his election agent caused to be published a leaflet in bengali in which the name of the publisher was given as Dr. Sailendra mohan Roy and the name of the printer was given as Shri Durga Press, calcutta-5. In this leaflet counter-challenge was thrown to the respondent No. 3 as has been stated above. The respondent No. 3 and his supporters had said in public meetings that as the aforementioned posters did not contain any name and address of the publisher and printer no legal action could be taken immediately by the respondent no. 3. The leaflet bearing the name of Dr. Sailendra Mohan Roy was in reply to the said challenges of the respondent No. 3 and his supporters. In this leaflet it was stated that the name of the printer of the 306 aforesaid large wall poster was D. S. P. B. This leaflet also stated that certified copy of the deed of sale of the said plot of land being 185 C. I. T. , Scheme No. VII (M) was kept at 292/6, Upper chitpur Road, Calcutta and every one was welcome to inspect the same there. The said leaflet was issued on and from 5/02/1969 and the address 292/6, Upper Chitpur Road, as 'given in the said leaflet is the address of respondent No. 1. Respondent No. 1's address was formerly 292/6, Upper Chitpur Road and the same premises has been re-numbered as 431/g, Rabindra Sarani. (L) Many electors went to the said address with the said leaflet on various dates between 5/02/1969 and 8/02/1969 when the respondent No. 1, himself produced some papers alleged to be certified copy of the deed of sale in respect of plot No. 185, C. I. T. , Scheme no. VII (N) from the Calcutta Improvement Trust to the respondent no. 3, but the papers shown by the respondent No. 1, did not contain the fact that the purchase money was not fully paid by the respondent no. 3 but was payable in various instalments covering a period of fourteen years. By the said posters and the said leaflets and production of the said incorrect and/or incomplete papers containing false statements relating to the character and conduct of the respondent No. 3, to the effect that he was a dishonest person and unworthy of being elected as representative of the people from the Jorabagan Assembly Constituency and representations made orally to convey the idea that the respondent no. 3 was guilty of corruption the prospects of the respondent No. 3 was damaged. All these were done by the respondent no. 1, and his election agents and other persons with the consent of the respondent no. I, and his election agent inspite of the knowledge that the said representations were false. All these prejudiced, the electors against the respondent No. 3, in the said election. While showing the alleged certified copy to different persons at his residence between 5/02/1969 and Fe 8/02/1969, the respondent No. I also made several other false statements concerning the character and conduct of the respondent No. 3, which were damaging to his prospects. The respondent no. I did all these and made the said statements knowing that they were false. Dr. Sailendra Mohan Roy is not a fictitious person and resides at 69/b, Beniatola Street; Calcutta, within the Jorabagan Constituency and has his dispensary at 92/a, Sova Bazar Street, within the aforesaid constituency. The said Roy is well-known supporter and close associate of the respondent No. 1 and it is a fact that the posters and leaflets mentioned in this paragraph as well as the preceding paragraphs of this petition were handed over by the said Dr. Roy and the respondent no. 1 and his election agent B. L. More to other persons and different workers working for the said respondent No. I in the said election in various quantities from the address of the respondent no. 1, stated above as well as from the dispensary of the said Dr. S. Roy and 92/a, Sova bazar, Calcutta. (M) One morning a few days before the election the respondent no. I, came to 18, Brojodulala Street, Calcutta to ask for votes and in presence of your petitioner and Sadhan Dutt of the same address and other persons described the respondent No. 3 as a "debauch and Bribe taker" and handed over a few copies of the Bengali leaflet being annexure 'e' to the Sadhan Dutt and some other persons present. "the first respondent has averred that the particulars of corrupt practice referred to in Paragraphs 7 (J) , (A) and (m) are true to his knowledge and the particulars contained in sub-paragraph {1) of Paragraph 7 "are based on information received by me from Guru Pada Bhattacharjee. . . and Ramesh Chandra Dutta. . . . and others and believed to be true by me".
(3.) The first respondent with reference to the above allegations lias replied as follows: "With reference to sub-paragraph (j) of Paragraph 7 of the said petition this respondent denies each and every allegation contained therein. This respondent denies that there were any such leaflets or this respondent had anything to do with any such leaflets or this respondent made any false statement regarding the personal character of the respondent No. 3 by the respondent No. 1 or by his election agent or by any other person with the consent of the respondent No. 1 or by his election agent or by any other person with the consent of the respondent No. 1 or his election agent as alleged or at all. It is denied that this respondent ever published any printed wall poster in any language not containing the name of the printer or publisher or any such poster was or were used in the election of this respondent or by this respondent or by his election agent or by any other person or persons with the consent of this respondent or his election agent or any such posters contained the picture of a house or picture of two men meant to be Sri Jyoti Basu leader of the Communist Party (Marxist) or Hara Prosad Chatterjee the respondent No. 3 or the person, resembling Sri Hara Prosad Chatterjee was depicted as telling his leader-Sri Jyoti Basu that the said Hara Prosad chatterjee was able to acquire any plot alleged to have been bought by hara Prosad Ghatterjee in nine months time and has built a house on the same. This respondent has taken inspection of the said posters and states that this respondent or his election agent or any other person working for this respondent ever had or has anything to do with the said alleged posters and denies that any such posters was published as alleged or at all. At the time of inspection of the said poster it appeared that there is written "printed by D. S. P. B. , Calcutta-5". It is in the premises not clear to which poster allegation has been referred to and the said charges are therefore vague and untenable. This respondent is not aware and he does not admit if the respondent No. 3 or any of his supporters at any meeting challenged the truth or veracity of the contents of the said poster or the alleged pamphlets. Such a poster never came to the knowledge of this respondent or his election agent or any of his workers or agents. This respondent has no knowledge of the alleged intimation to the Returning officer by the alleged letter, dated 4/02/1969, as alleged or at all. This respondent has nothing to do with the allegation in respect of the land alleged to be belonging to the respondent No. 3 or the payment of the price thereof, or the manner of payment or as to when the auction took place as alleged or at all. With reference to sub-paragraph (A) of Paragraph 7 of the said petition this respondent denies each and every allegation contained therein. It is denied that any protest was made or there was any question of any protest or occasion for the same by the respondent No. 3 or any of his supporters in any meeting or after the alleged protest this respondent or his election agent or any person with the consent of this 308 respondent or his election agent caused to be published any leaflets in bengali in which the name of the publisher was given as Dr. Sailendra mohan Roy or the name of the printer was given as Sri Durga Press or this respondent or his election agent or any of his agents or workers ever or had anything to do with the alleged leaflets or with the alleged publication thereof as alleged or at all. This respondent or his election agent or any other agent had nothing to do with the alleged contents of the purported leaflets. It is denied that any copy or certified copy of the alleged Deed of Sale of the alleged plot of land was kept at 292/6, Upper Chitpore road or this respondent ever welcomed any one to inspect the same or the alleged leaflet was issued on or from 5/02/1969 or this respondent or his election agent or any of his worker or agents ever had or has anything to do with the same as alleged or at all. It is admitted that the address of this respondent was formerly 292/6, Upper Chitpore Road but the same has long before the election been renamed and renumbered as 431/c, Rabindra Sarani. With reference to sub-paragraph (1) of Paragraph 7 of the said petition this respondent denies' each and every allegation contained therein. It is denied that many or any elector went to the said address with or without the said leaflet on any date between 5/02/1969 and Fe 8/02/1969 or otherwise or this respondent himself or otherwise produced any paper alleged to be certified copy of any certified copy of the purported Deed of Sale or any Deed of Sale in respect of the said alleged land or any paper was shown by this respondent or this respondent had anything to do with the said alleged purchase money or the manner of payment as alleged or at all. It is denied that this respondent ever made any false statement or any statement or allegation regarding the character or conduct of the respondent No. 3 personally or to the effect that he was a dishonest person or unworthy of being elected or any representation was made orally or otherwise to convey the alleged idea that the respondent No. 3 was guilty of corruption or the prospect of the respondent No. 3 was damaged for the alleged publication as alleged or at all. It is denied that any of the alleged representations in poster or leaflet was or could be ever known to or made by this respondent or his election agent or there was or is or could be any question or occasion for such knowledge or for any knowledge that the said alleged representation was false as alleged or at all. It is denied that they by such alleged representations prejudiced the electors against the respondent No. 3 in the said election or any certified copy or alleged certified copy was shown at the residence of this respondent between the said period or any period or while showing the alleged document the respondent No. I made any other false statement concerned the character or conduct of the respondent No. 3 or anything damaging his prospect in the manner as alleged or at all. It is denied that this respondent ever made any such statements or the question or occasion for knowing the same as false ever arose as alleged or at all. It is denied that Dr. Sailendra Mohan Roy is a supporter or associate well-known or close or otherwise of this respondent or any such alleged posters or leaflets was handed over by the said Dr. Roy or this respondent or his election agent to any person or to any worker working for this respondent in any quantity from the address of this respondent or from any other place or from the alleged dispensary of the alleged Dr. Roy or 309 from 92/4, Sova Bazar Street, Calcutta or from any other place as alleged or at all. This respondent: states that the entire story regarding the said alleged posters and leaflets has been concocted and the alleged posters and leaflets have been fabricated and manufactured with a view to create evidence for the purpose of this case. Each and every allegation contained in sub-paragraph (m) of Paragraph 7 of the said petition is denied. It is denied that this respondent in the presence of the petitioner or Sadhan Datta or any other persons described the respondent No. 3 as a "debauch" or "bribe taker" or handed over any copy of any Bengali leaflet or any leaflet to Sadhan datta or to any other person as alleged or at all. This respondent never had nor has any concern with the said purported leaflets being annexure 'e' to the said petition. ";