B. P. MAURYA versus PRAKASH VIR SHASTRI & ORS.

B. P. MAURYA

PRAKASH vm SHASTRI & ORS.

August 14, 1969

[K. S. HEGDE AND .A. N. RAY, JJ]

Representation of the People Act, 1951, s. 123(3) (3A) & (4)- Cor-rupt practice--"Allegations against ''personal character and conduct".

The appellant challenged the election of. the respondent on the ground that the respondent committed various corrupt practices including that of publication of false statements in relation to the personal character of the appellant. The High Court held the allegations not proved. Dismissing the appeal,

HELD: The provisions contained in sub-s. (4) of s. 123 are con-travened when "any false allegation of fact pierces the politician and touches the person of the candidafe". It is the personal character and conduct of the candidate which is· to be protected from malicious or false attacks. The \vords "perso11al character and conduct" are to be equated with mental or moral nature and the word "conduct" connotes petson's actions and beWiviour. The statems:,qt in question has to be first false statement bCaring on the personal crntracter and conduct of the candidate and secondly, the statement complaili.ed of must be one which is reason-ably calculated,_ to prejudice the prospects of the election of the persvn. [903 HJ

T. K. Gangi Reddy v. M: C. Anianeya Reddy, [!965] 1 S.C.R. 175, re-ferred to.

The electorate at the time of the election has to be kept in the fore~ front in judging whether publication can be said to offend the provisions relating to corrupt practices. The Court is to ascertain whether the state· men( is reasonably calculated to prejudice the prospects of the candidate's election. In rending the documents it would be unrealistic to ignore that when appeals are made by candidate there is an element of partisan feelin~ and there is extravagance Of expression in attacking one another and it would be unreas<'nable to ignore the question as to \Vhat the effect of the pamphlet would be on the mind of the ordinary 'voter \vho reads the pamphlet. [905 DJ

Ku/tar Singh v. Mukhtiar Sing/1, [J964J 7 S.C.R. 790, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 157' of 1968.

Appeal under s. 11'6-A of the Representation of the People Act, 1951 from the judgment-and order dated April 12, 1968 of the Allahabad High Court in I;-lection Petition No. 19 of 1967.

The appellant appeared in person.

L. M. Singhvi, Veda Vyasa, Rishi Ram, Bishambl1ar Lal,

H. K. Puri, U. P. Singh and K. Kl Jain for respondent No. 1.

The Judgment of the Court was delivered by

Ray, J. This i• an appeal against the judgment and order

of the High Court at Allahabad dated 12 April, 1968 dismissing the election petition filed by the appellant.

The appellant contested the General Election to the Lok Sabha from Hapur Parliarnent,ary Constituency in the year 1967. There were seven rival candillates numbered respondents 1 to 7. The appellant contested the election on the ticket of the Republican Party~ He was then sitting member of Parliament. Among the rival candidates, Prakash Vir Shastri was· an independent candi-B date. The election sytj!bol of the appellant was elephant and the election symbol of Prakash Vir Shastri was lion. Prakash Vir Shastri secured 1,49,943 votes while the appellant secured J,Ol,S75 votes. The Swatantra candidate Sri Nascem secured 34,274 votes. The Congress candidate respondent Sm!. Kamla Chaudhury. secured 33,988 votes. The appellant challenged the election on. grounds of corrupt practices as mentioned in sub-sections (2), (3) and (4) of the Representation of the People Act, 1951 (here-·· ina.fter referred to as the Act).

At the hearing of the appeal the appellant appeared in pen:on after counsel on his behalf had obtained leave of this Court to withdraw .and to allow the appellant to appear in person.

The various corrupt practices on which the appellant relied relate to occurrer.ces at six places. The appellant did not press the other occurrences: The first occurrence relates to meeting held at the Town HaUMaidan at Hapur on 7 February, 1967. The appellant alleged that at the Hapur meeting respondent Prakash Vir Shastri and his supporters delivered inflammatory speeches against the !tppellant and thereafter the said respondent Shastri's supporters entered the office of the Repub:ican Patt}, to which the appellant belonged, assaulted the workers of the appel-lant, tore posters, abused the appellant and threatened his workers. In support of the allegations the appellant relied on Exhibit 28 the :news report in the 'Hindustan' published on 8 February. 1967 and also on Exhibit 23 the news report in the newspaper mmcd 'Vir Arjun' published on 8 February. 1967 and exhibit 22 being the editorial in the Vir Arjun published on 7 February. 1967. The newspaper report in the "Hindustan' Exhibit 28 published on 8 Febrnary, I 967 contains the note of the co0·rcspondent from Hapur bearing the cta•e 7 February, 1967 stating that big meeting was held in sr1oport of respondent Shastri Lok Sabha candidate from Hapur-Ghaziebad Constituency. In the 'Vir Arjun' dated 8 J.cbrnary. 1967 Exhibit 23 it is stated that the supporters of the Republican P0rty were raising slogans that thi:y \Vere championing the cause of Harijans and Muslim youths from Aligarh University were brought for that purpose. It was also stated in the said ncws-naper that Muslim students of Aligarh were raising the sl<'cans ·'Harijan Muslim are brothers and where from Hindu community has come. Black face be of Brahmin, barbar and !ala. Throw shoes on Tlhat, Gujar and Rajput". The appe11ant in paragraph 11 Ll .'iSupCf.'69 1 ~

l) I'''!!

of the petition further alleged that respondent Shastri was associated with the 'Yir Arjun' and K. Narendra, Editor of Vir Arjun who was colleague of respondc:nt Shastri wrote an editorial by way of an appeal to support the candidature of respondent Shastri in that newspaper on 7 February, 1967 Exhibit 22 and the said appeal was also an instance of corrupt practice. The further alle-gations in the petition were that at the meeting which was held at the Town Hall Maidan at Hapur on 7 February. 1967 respondent Shastri and the said K. Narendra, Editor of Vir Arjun delivered inflammatory speeches.

The appellant generally impeached the judgment of the High Court on two grounds. First, that there was no discussion of the entire evidence and, secondly, that there was rejection of the evi-dC\llce on behalf of the appellant on consideration that the appel-lant's witnes;es belonged to particular castes and sects.

The criticism on behalf of the appellant with regard to Hapur meetin~ was that respondent Shastri in answer to the petition did not stale that there was meeting on 6 February, 1967 and there-by the appellant was denied the opportunity of meeting that case. The appellant relied on the decision of this Court in Hadar & Company v. F.. I. Trading(') and the observations appearing at page 547 of the report iri support of the contention that under the provisions of the Code of Civil Procedure and, iti particular, the provisions contained in Order VIII of the Code, respondent Shastri should have alleged in the pleadings that the '11eeting was held on 6 Fchruary. I 967 and in the absence of such allegations respon-doot Shastri should not have been allowed to make that case. The decision (\: this Court is of nc aid to the appellant. In the cas~ of Badar & Compa11y( ') the question was whether there was contract between the parties and it was alleged by the plaintiff with rcfeccnce to two iettcrs that the letters would indicate some of the terms of the transaction. The defendant in the written state-ment did no! specifically deny the said two letters. This Court ohserved that mere denial of the contract was not sufficient and the rules of the Code enjoined denial of the existence of the letters. In the present case, the question was whether meeting was held at Hapur Tnwn Hall Maidan on 7 February, I 967. The respondent denied such meeting. The respondent was not called upon to state as to whether there was meeting on 6 February, I 967.

The news item in the newspaper 'Hindustan' Exhibit 28 gave news from Hapur under the date 7 February, 1967 that meeting was held at Hapur. Exhibit 23 was news item in the newspaper ·Vir Arjun' under the date 7 February, I 967 that Shri Narendra, Editor of Vir Arjun spoke at an election meeting at Hapur. Neither

(I) {1964) 4 S.CR. 19: A.l.R. t964 S.C. Sl9.

the Vir Arjun news item dated 7 February, 1967 nor the news item appearing undor tile date 7 February, 1967 Hapur published in the Hindustan on 8 February, 1967 contains any intrinsic evidence that meeting was held at Hapur on 7 February, 1967.

Further, ol' the ¥titnesses 0n behalf of the appellant P.W. 25 Bal Kishlill spoke of the meeting at the Hapur Town Hall Maidan on 7 February, I9(Jif and he also stated that three pamphlets were distributed and two' .. sues of .newspapers were also distributed, namely, the Vir Arjun and Pratap. No such pamphlet •vas pro-duced. The two witnesses on behalf of respondent Shastri, Bhagwati Prasad Jain D.W. 16 and Rameshwar Prasad Goel D.W. 18 said that Congress election meeting was held at the Town Hall Maidam, Hapur ·and no election meeting was held in support of res-pondent Shastri at tl\e Town Hall Maidan, Hapur on 7 February, 1967.With regard to the meeting at the Town Hall Maidan at Hapur alleged by the appelll!tnt to have been held on 7 February, 1967, •the oral evidence qn behalf of the appellant is that the meeting wa< held and the oral evil:lence on behalf of the respondent is that the meeting was not Jield. In the case of conflicting oral testimony it is safer to place J;41iance on documentary evidence. First, the newspaper report'on which the appellant relies contained intrinsic evidence which totally nullifies the appellant's case. Exhibit zg being the 'Hindustan' dated 8 February, 1967 indicates the news about Hapur under the date 7 February, 1967 that meeting was held "yesterday night" meaning thereby 6 February, 1967, in sup-port of respondent Prakash Vir Shastri. Secondly, the newspaper 'Vir Arjun' publisJi,ed on 8 February, 1967 gave the news at Hapur under the date 7 February, 1967. The news referred to an electio11 meeting at Hapur but did not mention that the meeting was held on 7 February or o~ 6 February, 1967. Thirdly, Exhibit A-12 which is an application by one Lakhi Ram seeking permission from the. Municipal Board for holding meeting on 7 February, 1967 in the Town Hall Maidan. Hapur throws light on this aspect. The permission given by the authorities which is marked Exhibit A-B required th~ persons holding the meeting to pay certain charges towards the use of the electricity. Exhibit A-14 is receipt for payment of RB. 5. These three documents indicate that the meeting which wa~ held on 7 February, 1967 was meeting orga-nised by the supporters of the Congress Party. Fourthly, Exhibit A-2 which is General Diary of Thana Hapur bearing the date 7 February, 1967 shows that constable was sent to the Town Hall Maidan to make arrangements in connection with the meeting which was to be addressed by one Kai!ash Prakash. The witnesses on behalf of the respOndent Shastri mentioned the name of Kai!ash Prakash and Smt. 'Ka:mla Chaudhury as speakers on behalf of the Congress candidate. It is highly improbable that two meetings of

the two rival candidates, namely of the Congress and of the res-pondent Prakash Vir Shastri would both be held on the same date and at the same place. Fifthly, the reports which were lodged by the supporters of the appellant with regard to the attack on the oflicc of the Republican Party on 7 February, 1967 do not mention or refer at all to any meeting on behalf of respondent Prakash Vir Shastri on 7 February, 1967 at the Town Hall Maidan, Hapur. it would be ::atural if meeting had been held on 7 February, 1967 that there would have been reference to the same.

The other allegations of the appellant were that respondent Shastri's supporters on 7 February, 1967 attacked the office of the Rcpubhcan Party, to which the appellant belonged. There was the First Information Report dated 7 February, 1967 about the attack on the office of the Republican Party. This report is significantly silent about any meeting having been held on 7 February, 1967 at Hapar Town Hall Maidan. Though there was the alleged complaint about the attack on the office of the Re-publican Party, it appears that there was no investigation. The attack on the party office was not proved by the appellant to have been made by respondent Shastri's workers and supporters. Tlte High Court correctly came to the conclusion that no meeting was held at Hapur on 7 February, 1967 and there was no attack on the office of the Republican Party.With regard to the attack on the office of the Republican Party to which the appellant belonged though the first informa-tion report gave the news about the attack it is strange that there was no investigation. The report of the Joint Secretary of the Republican Party to the President of the Republican Party bear-ing the date 8 February, 1967 alleged that the supporters of Prakash Vir Shastri attacked the office oi the Republican Party on 7 February, 1967, forcibly took necessary papers and flag of the Party. Dal Chand Nimcsh, Joint Secretary of the Republican Party, P.W. 71 in his evidence stated that none of the proces-s!onists went to his office and further he hid himself in an adjoin-in~ room. He did not prove the truth of the statement~ contained in his report which was marked as Exhibit 11. The attack on the office of the Republican Party was not mentioned at all either in the Vir Aciun of 8 February. 1967 or in the Hindustan dated 8 Fcbruar\'. 1967. It is obvious that if in fact any auack had been made on the office of the Republican Party. the supporters of the appellant would have taken steps for investigation and publica-tion.

The second occurrence on which the appellant relied is alleged to have happened at place called Nagola. The appellant's case was that on 18 February, 1967, Prakash Vir Shastri and his

supporters who were mostly Tyagi by caste asked the Tyagis to stop the Jatav votc;rs'ftom going to the polling station to cast their votes. It was :!llege;lf that Thawariya made the announcement by be11.t of drums that the' Muslim, Chamar, Bhangi and Jatav voters would not be alld\Ved to go to the polling station to cast their votes. The other part of the appellant's case about the Nagola incident was that there was an assault on Sharnshad Elahi, worker of the appellant. The appellant relied on the oral testi-mony of PW. 11,'l',W. 12, P.W. 15, P.W. 16,.F.W. 17, P.W. 19, P.W. 23, P.W. 6.~ apd P;W, 80. The witnesses oin behalf of the respondent were D.W'. 4, D.W. 12, D.W. 13, D.W. 30 and D.W. 33. The oral evidelipe is in support of the rival contentions, namely, that the Jatav voters would not be .allowed to vote and the demal of the :fume by the· respondent. The appellant also re-lied oo Exhibit N that the J atav voters would not be allowed to cast their votes by tM Tyagis.

In support oUh~·case with regard to assault on Shamshad Elahi the appellant !tji,ed on the oral evidence of Shamshad Elahi, P.W. 11 and the, injury report Exhibit 30 and other documents, namely, Exhibits S 1,132 and 35. The appellant criticised the judgment by contending that there was no discussioo of the oral evidence of P.W. 17;1~atya Pal Malik. P.W. 11, Shamshad Elahi said that he went to Nagola at about 3.30 p.m. on 19 February, 1967, the date of the election and the voters told him about the proclamation by beat of drums on the previous night and the voters further said that they would be insulted and they should rnmain there. Shamshad Elahi further said that he met Sevak Ram 3llld Surajbhan Tyagi and 10 or 12 other persons were with them and they beat the witness with lathis and he received number of injuries.

The other witnesses on whose te11timony the appellant relied said that people wearing lion badges which was the election symbol of Prakash Vir Shastri asked the witnesses not to cast their votes and they also said that it was announced by beat of drums that no Chamar or Bhangi should cast vote.

Nagola is village within the circle of Badhnauli. R K. Aggarwal, D.W. 33 who was the Presiding Officer at Bad~inauli polling station gave evidence. He said that the votes of village Nagola were polled and no Harijan or Mohammedan voter was stopped from casting votes and that there was no complaint that ff Harijan and Mohanttnedan voters were being stopped from cast-ing their votes. In cross-examination the witness said that no voters from Haidernagar or Nagola were bronght to the polling station under police protection.[I :i 70 J l S.C.R.

P.W: 80, Sukhbir Singh who was posted· ~s Station Officc;x Thana Khar~oi;Ia said that he received inform11.tion frotn Shamshad, Elahi thaJ voters at Badhnauli were -being stopped from casting t!~eir vqtes: Sukhbir Singh went to Badhn.~uli. He also went to :t-{agola .. ,He said that 30 or 40 Harijan voters went to Badhnauli· to cast their vptes. He said that there was no voter who was !\!ken by him to polling station in trucJt.. Sukhbir Singh proved Exhibit 35 which was ·a c'>ntemporaneous report-to the effect that no one· was stopped from voting at Nagola.

. ~ ..,,.

. ..,,. Satya Pal Maljk on whose testimony the.appellant relied said that Prakash Vir Shastri came to Badhnauli polling station on 19 February, 1967 and'there were 40 to 50 persons around him with lion badges brr His ~urther evicl,ence was that ·Prakash Yir Shastri asked the Pradhan to beat the voters to make them run away. Prakash Yir Shastri however denied .having asked Sheoraj Singh Pradhan to drive away the voters.

Thanwaria, P. W. 23 on whbse evidence the appellant relied said that he beat the.t;lrlrm in Nagola village on day before the polling. He .said that. ihere were two parties of the Tyagis. One was of Sheoraj Singh and the other was of Pyare Lal. The Jatavs, according•to his testimony, were in Pyare Lal's party iyid the Bhangis were in Sheoraj's party. The appellant said that Than-warja was disbelieved only because he belonged to the Chamar caste. That is misreading the judgment. The High Court said that the evidence of Thanwaria did not mspire confidence. That criticism o( the evidence of Thanwaria is justified because he came to support the case of the appellant and he ·belonged to the appel-lant's camp.

Pyare Lal, D.W. 12 said th-at no Harijan was stopp~d [1 ]·om casting his vote at. Badhnauli polling statilln and no worker of Prakash Vir Shastri threatened any Harijan voter at the polling station. The appellant criticised the ev:dence of Pynrc Lal th~t he did not know as to what was happening in the village. Satya Pal Malik, P.W. 17 mentioned the name of Pyare Lal as the leader of one o.f the parties and Sheoraj Singh as Pradhan of the village Nagola.

The oral evidence on behalf of the appellant is not acceptable for two reasons. First, if there had been any incident of voter being prevented from voting complaint would have been made fo the polling ·officer of the polling station. Secondly, Vireshwar ,. yagi and Mahendra Singh Verma who were the supporters of the appellant <-...d who are alleged to have said that voters at Nagola were prevented from voting did not lodge any· report about the alleged corrupt practice particularly when it was said to be committed by Prakash Vir Shastri himself.

The assault on Shamshad Elahi which was also said to be an incident of corrupt practice is unacceptable for these reasons. Firsf, the in jury ropOllt Exhibit 30 has to be considered along with the statement of Shamshad Elahi being Annexure M and the re-port of the appellartt being Exhibit 32 and the complaint of Shamshad Elahi beirtg Annexure N being E~hibit 30. The appellan~ in the report dated 17 February, 1967 Exhibit 32 spoke of voters mot being allowed to exercise their votes. Shamshad Elahi in his complaint' sai\l: that 10 or 12 persons beat .him with lathis. All this happened on 19 February, 1967. The doctor's report was about the injuries. First, it is peculiar that there was no complaint about the injuries after the injury report. Secondly, there is no evidence that the ass;iult was by the workers of Prakash Vir , Shastri. Shamshadt;Elahi in his evidence mentioned the names of Sevak Singh ahd;Surajbhan Tyagi. These names were not mentioned in the complaint being Exhibit 30. In cross-examina-tion Shamshad Elahi·' was asked as to how he had obtained the names and his answer was that he met the grass cutter who gave the names. It is curious that the grass cutter who gave the names was not examined. ·

The third incidellt on· which the appellant relied took place at Chhajjupur. The allegations are that on 2 February, 1967 an election meeting was organised in support of the candidature of the appellant and Shastri created distut~ance th¢ supporters of respondent Prakash Vir ·with the result that the meeting could 1 ·, not be continued and; the supporters of respondent Prakash Vir Shastri are alleged to have chased the appellant. The High Court rightly commented on the absemce of any report having been made by the appellant to thp Electiqn Commissioner or the police about the alleged occurrence. It is obvious that if the appellant had been chased he would have made report to the Election Com-F mission or to the police. The appellant relied on the news item in the Patriot dated 5 February; 1967. The news item was re-ferred to by Mahesh Chandra Agarwal, P.W. 14 who, however, was not present at th!! meeting at Chhajjupur. He referred to conversation with the Superintendent of Police. The Senior Superintendent of Police was not examined. No police report was produced. The truth of the newspaper report was not corroborat-ed nor was the statement in the news item proved. On the con-trary, Mahesh Chandra Agarwal nu1::fied the news item by ad-mitting that he was not present at the meeting. ·

P.W. 18 Tejpal Singh spoke of the incident of 2 Febru•ry, 1967 and mentioned about the shouting of slog:ms and throwin!l of brick-bats. P.W. 10; Som Prakash spoke of charge sheet under sections 147, and 342 of the Indian Penal Code against certain persons. He spolce of the report of 3 February, 1967 and re-port of 9 February, 1967. The report dated,3 February, 1967

relates to the occurrence on 2 February, 1967 at Chhajjupur. The report of 9 February, 1967 also relates to the alleged incident of 2 February, 1967 at Chhajjupur. The witness Som Prakash P.W. 10 admitted that no investigation was made. It is significant that the name of the appellant is not mentioned in either of complaints or reports. The· allegations in the report are that some distur-bances was created and names of various J?l'.rsons are mentioned as having tried to run towards the jeep which carried the leaders of the Republican Party. One of the witnesses Devi Dayal Sen, P.W. 63 said that when the .appellant rose to speak some people pelted stones at ltim.

The alleged incident at Chhajjupur is unacceptable because, first, there was no complaint by the appellant to the Election Com-missioner, secondly, there was no police case and no investigation, thirdly, the reports did not mention the name of the appellant as having been assaulted or chased and fourthly, the news item in the Patriot was not proved as to the truth of the contents therein.

The fourth occurrence on which the appellant relied was at place called Opehra. The appellant alleged that some persons were stopped from casting their votes. The appellant relied on the oral evidence of P.Ws. 58, 59 and 60. P.W. 60 L' Man:zoor Ahm~d. M.L.A. The other two witnesses were Durga Das and Ram Prasad. The appellant criticised the judgment that there wa' no mention of the name of Manzoor Ahinad. The diaries being Exhibits A-23, A-32 and A-29 were produced to show t1'1t the election at Opehra polling station passed off peacefully and tht.>re-fore no one stopped any voter from casting vote. Manzoor Ahmad in his oral evidence said that he saw people armed with lathis ano ballams. He said that he made complaint to the Presiding Officer and admitted in cross-examination that there was no written complaint. Manzoor Ahmad did not prove that any per-F son was stopped from voting.The fif1:1 and the sixth occurrences on which the appellant re-lied took place at Datiyana and Bankhanda. It is alleged by the appellant that at Datiyana the agents and the supporters of respon-dent Prakash Vir Shastri threatened the Scheduled Caste and Harijan voters and prevented them from going to the polling station. The allegations about the occurrence at Bankhanda are to similar effect. The appellant relied on Exhibit 18 which was memorandum addressed by several voters who stated tbat they remained within the house and could not vote because the village -ryagi Kaila,h Chand thr~atcned to kill them if they would vote. P.W. 65, Vireshwar Tyagi spoke of the incident' at Nagola, Bankhanda and Hapur aond his wife Smt. Prakash Vireshwar Tyagi spoke of the alleged incident at Datiyana. The re~pondents

B. P. 'MAURYA v. PRAKASH VIR (Ruy, J.)

witnesse.5 de,nled that any person was pre'ltented from casting, vote at Datiyana.

The allegations with regard to the Bankhanda were referred to .by Vireshwar Tyagi and other witnesses. The diary which produced with regard to the polli"g station disproved any such incident. The diaries are Exhibits A-19 and A-21. D.W. 20, Chandoo Singh stated that he was at the polling station at Ban-khanda and no one was stopped from exercising the right of franchise. D.Ws. 21 and 22 also spoke of polling at Bankhanda having been peaceful. The appellant referred to religious songs which were said to be praise of respondent Prakash Vir Shastri. Mere praise-worthy songs will not be an instance, of corrupt practice.

All the allegations about the voters having been stopp~d from casting their franchise followed the same pattern of oral evidence. The absence of any report either to the Election Commission or to the Police authorities is an important and noticeable feature llnd therefore the oral evidence is not acceptable.

The othe~ allegations relied on by the appellant are that respondent Prakash Vir Shastri is guilty of corrupt practice under · sub-sections (3), (3A) and (4) of section 123 of the said Act. The appellant contended that respondent Prakash Vir Shastri made communal propaganda against the appellant and also pub-E lished false stl!tements in relation to the personal char .. cter of the appellant. Iii aid of the contentions the appellant relied on annexures KK and MM. The appeJlant relied 011 the upper portion of annexure KK in support of the contention that the slogans amounted. to communal propaganda. The lower portion of annexure KK was contended by the appellant to be allegations against the personal character of the appellant. Annexure MM was said by the appellant to contain slogans amounting to com-munal propaganda against the appellant. It was said by the appellant that respondent Prakash Vir Shastri promoted feelings of enmity or hatted against the appellant and further raised communal p•opaganda. The appellant also relied on Exhibit 22 being the editorial in Vir Arjun dated 7 February, 1967 in sup-G port of the contention that the editorial constituted communal pro-paganda. agai!l.st the appellant.

In Guruji Shrihar Baliram Jivatode v. Vithalrao and Others, (1) thi.s Court dealt with the scope and content of sub-· section ( 4) of section 123 of the Act. The Act is i1nltended to protect freedom of speech on the one hand and to restrain mali-H cious propaganda on the.other. The provisions contained in sub-section ( 4) or section 123 were said by this Court to be contra-

icne<l \\hen "any false allegation of fact pierces the politician an<l touches the person of the candidate". It is the personal charac-ter and conduct of the candidate which is to be protected froll\ malicious or false attacks. 1bc statement in question has to be first false statement bearing on the personal character and conduct of the candidate and secondly, the statement complained of must be one which is reasop.ably calculated to prejudice the prospects of the election of the person. Under the provisions contained in sub-section (3A) of the said Act the promotion of, or attempt to promote, tcelings of enmity or hatred between different classes of citizens of India on grounds of religion, race, caste, community. or language, is the mischief 11'hich is sought to be avoided by m~king the same corrupt prac-tice. The sub-section funher says that such promotion or attempt to promote enmity or hatred is for the furtherance of the election of the candidate or for prejudicially affecting the election of any candidate. The words "personal character or conduct" were explained by this Court in I. K. G1111gi Reddy \'. ill. C. A11;an<'ya Reddy a11d others!') "to be equated \\ith his mental or moral nature. Conduct conrvHcs ~ll person's actions or bcha\·iour". Anncxure KK was not proved and therefore it cannot be said to constitute any communal propaganda. Assuming it were proved there is no appeal to vote for person on the ground of religion nor is there any appeal not to vote for person on the ground of his religion. Further, the provisions •·ontained in sub-section (4) of section 123 require the publication with the consent of the candidate or his election agent. In the present case, anne~·;,e KK has not been established to be published with the consent of the responder,! Prakash Vir Shastri or his election agent It, there-fore, follows th:n annexure KK offends neither the provisior.s contained in sub-section (3A) nor in sub-section (4) of section I 23 of the Act.

Annexure ~-IM was said by the appellant to be communal propaganda. Annexure ~M was not proved. Even if it were proved the slogans do not offend the provisions of either sub-section (3A) or sub-section (4) of section 123 of the Act. The publication in the newspaper 'Vir Arjun' Exhibit 22 is to the effect that differences between Hindus and Harijans were being spread by the supporters of the Republican candidate meaning thereby the appellant and if students from Muslim lJ niversity were brought in by them then students from Ghazia-bad would be brought into the field. The newspaper certainly (I) {1'}6~) I S.C.R. 17~.

was ·inclined in favour of respondent Prakash Vir Shastri but the newspaper publication said that Prakash Vir Shastri would not unlike the Congress candidate preach communal hatred. The statements in Exhibit 22 do not make any reflection on the moral or mental nature of the appellant and they do not touch the per-sonal character of the appellant, nor do they promote enmity or hatred 011 grounds ·of religion.

The appellant failed to prove that respondent Prakash Vir Shastri committed any corrupt practice in relation to the personal character and conduct of the appellant. The newspaper pub-lication Exhibit 22 was an appeal on behalf of respondent Prakash Vir Shastri. As Tong as the publication is not tainted by corrupt practice,· such an appeal will not be an infraction of the provisions as t? corrupt practices as contemplated in the Representation of the People Act. Suggestions that attempts are made to accentuate the differences between the Hindus and Harijans in the artiC!e cannot be extracted in isolation from the entire context. Th~ electorate at the time of the election has to be kept in the forefront in judging whether the article can be said to offend the provisions relating to corrupt practices. The Court is to ascertain whether the statement is reasonably cal-cvlated to prejudic<:: the prospects of the candidate's election. This Court observed in Ku/tar Singh v. Mukhtiar Singh(') that ill reading the docljments it would be unrealistic to ignore that when appeals ;if J:nade by candidate there is an element of 'partisan feeling, and there is 'extravagance of expression in attacking one anotl:jcr' and "it would be unreasonable to ignore t.lie question as to l,Vhat the effect of the pamphlet would be on lb.e mind of the ordinary voter who reads the pamphlet". In the light of these princ~ples, we are of opinion that there is no in-fraction of the provisions contained in sub-sections (3A) and (4) of section 123 of the Act.

For the reasons mentioned above, this appeal fails and is dis-missed with costs: ·

Appeal dismissed.