Bhandari, J. - (1.) THIS is an appeal under sec. 116-A of the Representation of the Peoples Act, 1951 (hereinafter to be called the Act ). In the last general election the appellant Rawa Narendra Singh was declared elected to the Rajasthan Legislature Assembly from the Dudu Constituency which was a double member constituency one seat being reserved for the schedule caste. There were three other contesting candidates named Smt. Kamla Beniwal, Shri Ladu Ram and Shri Rameshwar Prasad Arya at the election besides the appellant. Shri Laduram was declared elected to the reserved seat. Smt. Kamla Beniwal and Sri Rameshwar Prasad Arya who was scheduled caste candidate were declared defeated. Smt. Kamla Beniwal Respondent No. 1 in this appeal presented an election petition under sec. 81 of the Act for setting aside the election of the appellant. She challenged the election of the appellant on various grounds; but eventually she res-ricted her ease only to the allegation that the appellant published and distributed a leaflet in Hindi which forms Appendix 'b' of the election petition and which is referred as leaf-let'b'. According to Respondent No. 1 it contained a statement of fact which was false and which the appellant believed to be false in relation to her personal conduct, and this amounted to a corrupt practice within he meaning of sec. 123 (4) of the Act. The appellant admitted the publication and distribution of the leaf-let but he denied that it consained any false statement relating to the personal conduct of Smt. Kamla Beniwal. The Tribunal held that the appellant had committed a corrupt practice by distributing the leaf-let in question. It accepted the election petition and declared the election of the appellant to the Rajasthan Assembly from Dudu constituency to be void.
(2.) IN this appeal it is contended on behalf of the appellant that the finding of the election tribunal that the appellant committed corrupt practice within the meaning of sec. 123 (4) of the Act is wrong both in fact and in law; Before we proceed further, we may refer to the leaf-let 'b'. In this leaf-let the appellant criticised the Rajasthan Ministry for its various acts and ommissions and its attitude towards the Jobner Arts and Agricultural College which the appellant contended was founded and supported by him. The relevant passage for corrupt practice is at paragraph 9 and when translated into English it runs as follows: - "agricultural College, Jobner is controlled by the Agricultural Department and Jobner Arts College by the Education Department which is under the supervision of Smt. Kamla Beniwal. She had passed an order in this month that the Arts College be closed. " It may be mentioned here that the leaf-let is dated the 22nd of February, 1957 and Smt. Kamla Beniwal was Deputy Minister in the Rajasthan Ministry incharge of Education Department at the time. It may further be mentioned that the Governor was pleased to afford sanction to the abolition of the Arts College with effect from 1957-58, vide order F. 11 (603) Edu. /a/56 dated the 25th of January, 1957. It was contended before the Tribunal on behalf of Smt. Kamla Beniwal that Held that in the relevant passage in leaflet 'b' there was nothing relating to the personal conduct of the Respondent No. 1 the above statement was false to the knowledge of the appellant and that Smt. Kamla Beniwal had not passed any order for the closing of the college. She stated in the course of her evidence that she did not issue any order for the closing of the college. She further stated that the policy matters relating to the Education Department were directly sent by the Secretary to the Education Minister and it was the Minister who passed the order. The Tribunal accepted the version, and come to the conclusion that as Smt. Kamla Beniwal was not personally responsible for the abolition of the Arts College, which was in the knowledge of the appellant, he must be held to have published a statement of fact which was false and which he believed to be false in relation to the personal conduct of Smt. Beniwal. In this appeal it is urged on behalf of the appellant, that the statement in paragraph 9 of the leaf-let 'b' relating to the closure of the Arts College does not relate to Smt. Beniwal. This paragraph is sought to be interpreted by the appellant as meaning that it was the Education Department which was under the supervision of Smt. Kamla Beniwal who ordered the closure of the Arts College. We may say atonce that this contention has no force. The plain meaning of the relevant passage in the leaf-let is that it was Smt. Beniwal who had ordered the closure of the Arts College. Then it is contended on behalf of the appellant that there is no statement of fact in the aforesaid passage relating to the personal conduct of Smt. Beniwal as she was referred to in that passage in her official capacity as Deputy Minister of the Rajasthan Government. It is also contended that there was nothing false in the statement inasmuch as the Arts College was ordered to be closed from the academic session of 1957-58 by order of the Government of Rajasthan No. F. 11 (603) Edu /a/56 dated 25th January, 1957. We may first take up the question as to whether there is anything in paragraph 9 of the leaf-let relating to the personal conduct of Smt. Beniwal. Under sec. 123 (4) of the Act unless the publication by a candidate of any statement of fact is in relation to the personal character or conduct of any candidate, it does not amount to a corrupt practice. Personal conduct in that section means conduct which relates to the candidate himself. It has reference to the conduct of the candidate in his private capacity and not in his political or official capacity. In the present case it cannot be denied that when it was stated that Smt. Kamla Beniwal ordered the closure of the Arts College, she was taken to be acting in her official capacity. It is obvious that she could not close the Arts College in her private capacity. She could have done that only in her official capacity as Deputy Minister and not in any personal capacity. When it is imputed to her that she had ordered the closure of the College her official conduct is being criticised. This is further clear from the fact that it is mentioned in the relevant passage that Jobner Arts College was controlled by the Education Department under the supervision of Smt. Beniwal. This shows that the appellant meant to say that whatever she did, she did because she had the power of such supervision. Smt. Beniwal herself in her cross-examination admitted that she was falsely accused of closing the Jobner College as she happened to be the Deputy Minister. Thus it is clear that her official conduct was being criticised by the appellant. Now there can be no room for doubt that when the official or political conduct of any rival candidate is being criticised, be the criticism true or false, the candidate criticising him does not commit any corrupt practise. It was so held in England under the Corrupt and Illegal Practices (Prevention) Act, 1895. We may refer to the following passage in the judgment of Darling J. in Cumberland (Cokermouth Division) Case (1901), 5 O'm. & H. 155 quoted in the Book Parliamentary Elections by A. Norman Schofield, Second Edition at page 437 - "what the Act forbids in this. You must not make or publish any false statement of fact in relation to the personal character or conduct of a candidate; if you do, it is an illegal practice. It is not an offence to say something which may be severe about another person nor which may be unjustifiable nor which may be derogatory unless it amounts to a false statement of fact in relation to the personal character of or conduct of such candidate; there is a great distinction to be drawn between a false statement of fact which affects the personal character or conduct of a candidate and a false statement of fact which deals with the political position or reputation or action of the candidate If that were not kept in mind, this statute would simply have prohibited at election times all sorts of criticism which was not strictly true relating to the political behaviour and opinions of the candidate. This is why it carefully provides that the false statement, in order to be an illegal practice, must relate to the personal character and personal conduct. " The same statement of law is found in Halsbury's Laws of England Third Edition Vol. 14 at page 226 in paragraph 394 - "it is an illegal practice if before or during an election any person for the purpose of affecting the return of any candidate at the election makes or publishes any false statement of fact in relation to the personal character or conduct of the candidate unless he can show that he had reasonable grounds for believing, and did believe, the statement to be true. The directors of any body or association corporate making or publishing any such false statement will likewise be guilty of an illegal Practice. The false statement of fact need not be libelious at common law, so long as it is a state ment which is calculated to influence the electors, as, for instance, a statement made in a hunting county that the candidate has shot a fox or a statement made to promoters of total abstinence that the candidate has taken a glass of wine; but it is essential that it should relate to the personal rather than the political character or conduct of the candidate. " Learned counsel for Shrimati Kamla Beniwal has argued that she had not done any act in her official capacity and, therefore, it must be taken that the appellant was charging her for the closure of the Arts College in her private capacity. This argument is entirely devoid of force. Assuming that she had not done anything in her official capacity yet a statement is made that she did it in her official capacity. She could not have done it in any other capacity. It is not any private act of her that was subject matter of comment in the statement. We may refer to the following observation of their Lordships of the Supreme Court in Shree Kantiah Kamayya Munipalli vs. The State of Bombay (1) while discussing the application of sec. 197 Cr. P. C. "now it is evident that the entrustment and or dominion here was in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. " In the instant case an act is alleged to have been done by her which if true, she would have done only in her official capacity. It was supposed official act that was the subject matter of statement and not any personal conduct of her. We, therefore, hold that in the relevant passage in leaf-let 'b' there was nothing relating so her personal conduct. We may proceed to examine whether the statement can be said to be false. As already mentioned the Governor was pleased to sanction the abolition of the Arts College from 1957-58. This was an act of the Rajasthan Government expressed in the name of the Governor. It is contended on behalf of Shrimati Kamla Beniwal that she took no hand in the matter of passing any order for the closure of the Arts College. That may be so. But she was a Deputy Minister in the Rajasthan Government at that time and she was as much responsible for the decision of the Government for the closure of the College as any other minister who passed the order for such closure. It was a part of her ministerial responsibility. We may quote the following observation on the point of ministerial responsibility from 'constitution Law' by Hood Phillips at page 232 - "secondly, and mere frequently, the phrase is used to denote the collective responsibility of the Cabinet to Parliament for all political action of Ministers, and for the policy of the Government as a whole. Here we are in the sphere not of law but of convention, and convention prescribes that the Cabinet must in all circumstances agree. If disagreement manifests itself on any except insignificant points of policy, either the Cabinet as a whole, or the dissentient Ministers, must resign. In no case may a Minister disavow, either expressly or by impli cation, the policy of his colleagues so long as he remains their colleague. " Viewed in this light the order of the Rajasthan Government in ordering the closure of the Arts College was as much an act of Shrimati Beniwal as that of any other minister. It is urged that Shrimati Beniwal was only a Deputy Minister and had no hand in shaping the policy. We do not think any different convention should be permitted to grow for Deputy Ministers. From this point of view the statement in the leaf-let 'b' cannot be said to be false.
(3.) LEARNED counsel for Respondent No. 1 has argued that it was at the instance of the appellant that the Arts Collge, Jobner was closed and that it was only to influence the voters that the appellant laid the charge of the closing of the College on her. Attention in this connection was invited to the letter Ex. P. 2 dated the 31st of October, 1953 written by the appellant to the Secretary, Education Department. In it is mentioned that the appellant who was the ex-proprietor of the Arts College, Jobner, had no sentimental objection if that institution was closed immediately. The appellant had in his evidence stated that Shri Bhagwat Sinh Mehta the Additional Chief Secretary to the Government of Rajasthan told him that he was opposing the closure of the Jobner College only on sentimental ground and he had written Ex. P. 2 in order to convey his opinion that he would have no objection that the teaching of such subjects may be closed in which the numbers of teachers and taught were practically the same. The letter Ex. P. 2 does not convey the impression that it was at the instance of the appellant that the Arts College was closed. He only mentioned that he had no sentimental objection which means that the State was contemplating the closing of the college and he was asked to waive his objection to its closure. This letter does not in any way help the case of Respondent No. 1 as in the leaf-let 'b' only the fact of the closure of the Arts College is mentioned and it was a fact that it was ordered to be closed by the Government of Rajasthan. We do not think that Ex. P. 2 makes any difference in the decision of the appeal, at least so far as we have held that there was no false statement in the leaf-let 'b' relating to the personal conduct of Respondent No. 1. Lastly it is argued on behalf of Respondent No. 1 that Shri Ladu Ram had not been made a party to the appeal. It appears from the perusal of the record of the Tribunal that Shri Ladu Ram was a party to the Election Petition but on the 14th of August, 1957, Respondent No. 1 gave up Shri Ladu Ram as party. Thenceforward it may be taken that Shri Ladu Ram was not a party to the Election Petition though the title to, the Election Petition was not amended. We do not think that having given up Shri Ladu Ram as party to the Election Petition it lies in the mouth of Respondent No. l to insist that he should have been made a party to the appeal. If this argument had any merit, it only recoils on the head of Respondent No. l inasmuch as her application became defective after the 14th of August, 1957 as Shri Laduram ceased to be a party on that date. In fact this point was argued on behalf of the appellant but we prefer to decide the appeal on merits. Moreover, the interests of Shri Laduram are in no way adversely affected if he is not made a party to this appeal. We find no force in this contention urged on behalf of Respondent No. . 1. The result is that in our opinion the appellant had not committed any corrupt practice within the meaning of sec 123 (4) of the Act and his election has been wrongly set aside by the Tribunal. We, therefore, accept the appeal, set, aside the order of the Election Tribunal dated the 7th of December, 1957 declaring that the election of the appellant to the Rajasthan Assembly from Dudu Constituency was void. We hold his election to be valid and order the dismissal of the Election Petition of Respondent No. 1. The appellant will get Rs. 250/-costs of this appeal and Rs.- 250/- as costs before the Tribunal from Respondent No. 1. . ;