- (1.) JASWANT SINGH, J :- This appeal under Section 116-A of the of Representation of the People Act, 1951 (hereinafter referred to as 'the Act') is directed against the judgment and order dated 26/04/1974, of Indore Bench of the High Court of Madhya Pradesh whereby the election of the appellant to the Madhya Pradesh Legislative Assembly from Kachrod 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 said constituency.
(2.) PURSUANT to 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 8/02/1972. On scrutiny of the nomination papers held by the Returning Officer on 9/02/1972, 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 (Prosecution witness 39) who was set up by the Indian National Congress contested the election. The poll took place on 8/03/1972. On Mar 12/03/1972, 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 (Prosecution witness 39), his nearest rival. On 24/04/1972, 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 election petition. In paragraph 13 of the election petition, it was inter alia stated as under :- "(13) That 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 Act 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 respondent either believed to be false or did no believe to be true in relation to the personal character and/or conduct of the Congress Candidate, being the statements reasonably calculated to prejudice the prospects of Congress candidate's 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... ." (13) (xiv). That the particulars regarding the date, place, time and name regarding the distributors of Annexure 'A' are given below :- JUDGEMENT_718_1_1977Html1.htm The election 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 averred 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 defeat of Rajendra Jain that the story of the leaflet was maneuvered and manufactured for the purpose of the election petition. The appellant further averred that he did not do any anything to prejudice the prospects of the election of Rajendra Jain. On the pleading 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 appeal :- "(4) (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 false?"
(3.) ON consideration 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 finding arrived at by the learned Judge in so far as they are relevant for the purpose of this appeal are as follows :- "Though the finding 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 PW 24 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 be letter Ex, P-20 got this pamphlet printed in the printing press of PW-24 Ramprasad. The evidence given by the petitioner about its distribution by Ram Singh (PW-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 himselfwho 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 candidate 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 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 S. 100 (1) (b) the election of the respondent is liable to be declared void and set aside." The trial 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.;