Abdul Jalil Choudhury vs Rathindra Nath Sen

G. Mehrotra, J.—This is an appeal against the order of the Member, Election Tribunal, Cachar at Silchar dated 19th August, 1957 by which he set aside the election of the Appellant, the returned candidate from Badarpur Constituency of the Assam Legislative Assembly. The elections for the Assam State Legislative Assembly took place sometimes in March, 1957. Respondent Ratindra Nath Sen, along with the Appellant Moulana Abdul Jalil and one Usuf Ali Choudhury were the candidates at the election from the said constituency. They were duly nominated and the polling took place on the 6th of March; 1957. The Appellant secured 14854 votes, Respondent Ratindra Nath Son secured 12412 and Usuf Ali Choudhuri seeured 663 votes.

The Appellant was then declared elected and a petition on behalf of the Respondent No. 1 was filed before the Election Commission challenging the election of the Appellant. The petition was received from the Election Commission by the Tribunal on the 21st May, 1957 and the proceedings started thereafter. Issues were struck in the case and the parties produced oral and documentary evidence and the Tribunal, after consideration of the entire material on the record, found the allegations against the Appellant established. By his order dated 19th August, 1957, he allowed the petition of the Respondent No. 1, set aside the election of the Appellant from the Badarpur Constituency and declared it void and awarded the cost of Rs. 400/-. In the appeal before us, the correctness of the findings arrived at by the Tribunal, both on the questions of fact and law have been challenged.

The case of the Respondent as stated before the Tribunal was that the Badarpur Constituency is partly in the Karimganji Subdivision and partly in the Hailakandi Subdivision. The Petitioner (Respondent) stood in the election as a nominee of the Praja Socialist Party of which he is a member. In the last General Election a united Leftist Front was formed at Karimganj by the Praja (sic) Party, the Communist Party and a local party known as Progressive Congress. This leftist front was formed to give a combined fight to the Congress. Thus the Respondent became a nominee of this Leftist party. Abdul Jalil was a nominee of the Congress party and one Yusuf Ali Choudhury stood as an independent candidate. Maulana Abdul Jalil was the sitting member being elected in the general election of 1952.

Badarpur is a backward constituency and Maulana Jalil did nothing for the progress of this constituency during his tenure as an M.L.A. and therefore the people were dissatisfied with him. In 1955, he took active part in the closure of a path to the immersion processions during the Pujas and this led to Section 133 Code of Criminal Procedure proceeding and proceeding u/s 107 Code of Criminal Procedure against him. Many Hindus and some Muslims approached the Appellant to open the path but he refused to do so and this created extreme bitterness against him. It was therefore decided by a large section of the people in the constituency that one Khalilur Rahman should contest in the General Election. But unfortunately this Khalilur Rahman died suddenly of burns sustained by him in a fire. Then a section of the Hindus and Muslims of the locality approached the Respondent and requested him to stand against the Appellant.

The Respondent at that time was holding a Central Govt. job at a salary of Rs. 420- per month, Seeing however the prospect to be bright in view of the unpopularity of the Appellant, he decided to stand and resigned his job. At the early stage of the election campaign i.e. in January, 1957 the Respondent got very good response and the meetings held by him were largely attended. At that time there was very poor attendance in the meetings held by the Appellant. But thereafter Maulana Jalil started holding ''Waz'' meetings (i.e. religious meetings) in which he declared that it was a contest between a Muslim and a non-muslim and that in such a fight it would be unislamic for a muslim to support a non-muslim.

During this very period, the publication in "Nabasakti" appeared and Maulana Jalil used to read out the article and distribute copies of the said issue at the public places. The result of this communal propaganda was that the muslirn population started supporting him and the attendance to the meetings addressed by the Respondent became thinner and the result of the election was thus materially affected by this communal propaganda. In the written statement there is a complete denial by the Appellant that he held any Waz meeting at all and obviously the question of his doing any communal propaganda would then not arise. It was also contended in the written statement that the Appellant had no connection with the paper ''Nabasakti'' and he came to know the editor only after the filing the petition. It is also denied that ''Nabasakti'' was a Congress organ and that he read out any article from ''Nabasakti'' in any meeting. The proceeding u/s 133, Code of Criminal Procedure which is said to have been started in connection with the closure of the path was denied. There is also some controversy between the parties as regards the fact whether Yusuf Ali Choudhury gave up the contest in the middle of the propaganda or not. The Appellant in the written statement contended that Yusuf All Choudhury contested the election till the end and that the election was fair and free. The Tribunal struck a number of issues of which the two main issues on which his decision rests are as follows:

(1) Was there any publication in the "Nabasakti" dated 20-2-57 as alleged by the Petitioner and if so, does it amount to corrupt practice as defined in Section 123 of the R.P. Act, 1951. If so is the election of the Respondent liable to be set aside.

(2) Was there any ''Jehad'' declared by the Respondent amongst his community in the manner alleged by the Petitioner and if so, does it amount to corrupt practice as defined in Section 123 of the R.P. Act, 1951. If so, is the election of the Respondent liable to be set aside.

As regards the first issue, it should be pointed out that the Petitioner-Respondent had alleged that this publication amounts to a corrupt practice as defined u/s 123(4) of the Representation of the People Act and the other allegation amounts to a corrupt practice u/s 123(3) of the Act. The Tribunal however, found that the publication in the ''Nabasakti'' dated 20-2-1957 does not constitute a corrupt practice as defined u/s 123(4) of the Representation of the People Act; but it amounted to undue influence as defined u/s 123(2)(a) and thus constituted a corrupt practice.

The Appellant has raised three main contentions in the appeal. Firstly, it is contended by him that the petition does not comply with the provisions of Section 83 of the Representation of the People Act inasmuch as particulars were not completely given. As regards the charge that the Appellant committed corrupt practice by publication of the article in ''Nabasakti'', it was strongly contended that the election petition was only based on the ground that the facts constituted a corrupt practice u/s 123(4) and the Tribunal was not right in permitting the Petitioner to produce evidence to establish a corrupt practice as defined u/s 123(2). The particulars given in the Annexure to the petition also do not fulfil the requirements of Section 83 as all the particulars, necessary for consideration of corrupt practice u/s 123(2)(a) were not given. In this connection, it was further urged that the Tribunal was not right in making out a case against the Appellant of a corrupt practice as defined u/s 123(2)(a) when the petition itself was based on the ground that the publication constituted a corrupt practice u/s 123(4).

As regards the charge of doing communal propaganda, it is contended that the particulars are incomplete. The place, date and time of such meetings is not given. In the particulars only the names of the towns are given and the time and place where the meetings took place has not been mentioned. According to the Appellant, the particulars given do not fulfil the requirements of Section 83. The first argument is that the petition not being in accordance with Section 83 of the Representation of the People Act, should have been dismissed in limine. Secondly, that the Tribunal should have permitted the Respondent to adduce evidence only to prove that the conduct of the Appellant in publishing the article amounted to corrupt practice u/s 123(4) and not one u/s 123(2). It was contended that the Tribunal has not kept clearly in mind the law regarding the standard of evidence in election cases and also as regards burden of proof in such case. The judgment appears to be based on conjectures only.

It was lastly contended that the evidence produced by the Petitioner was unreliable and that it does not establish the fact that the Appellant carried out any religious propaganda which constitutes a corrupt practice within the meaning of Section 123(3) of the Representation of the People Act. The finding of the Tribunal that the publication in the ''Nabasakti'' was done at the instance and connivance of the Appellant is also challenged and it is urged that publication by itself does not constitute a corrupt practice within the meaning of Section 123(2)(a).

Section 83 of the Representation of the People Act provides as follows:

An election petition shall contain a concise statement of the material facts on which the Petitioner relies and shall be signed by the Petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings.�

5a. Section 90(2) of the Act provides as follows:

(2) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (Act V of 1908) to the trial of suits:

Provided that it shall be sufficient for the Tribunal to make a memorandum of the substance of the evidence of any witness examined by the Tribunal and it shall not be necessary for the Tribunal to take down the evidence of any witness in writing at length unless the Tribunal is, on the application of any party or otherwise, satisfied that there is any special reason for so doing.

Provided further that the Tribunal shall have the discretion to refuse for reasons to be recorded in writing to examine any witness or witnesses if it is of the opinion that their evidence is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings. �

Sub-section (4) of Section 90 provides:

Notwithstanding anything contained in Section 85 the Tribunal may dismiss an election petition which does not comply with the provisions of Section 81, Section 83 or Section 117.$$

The answer to the contention raised by the Appellant is two-fold, Firstly, it cannot be said that petition does not give full particulars as required by Section 83 of Act. So far as the allegation that the Appellant committed corrupt practices by carrying out communal propaganda, the annexure clearly states the places and the time during which such a propaganda was made. It cannot be said that the particulars were not full and did not give ''time and place'' where the corrupt practice is alleged to have been committed. Secondly, Sub-section (3) of Section 90 which gives power to the Tribunal to reject a petition does not contain Section 83 Section 90(5) also gives power to the Tribunal to amend the particulars.

The evidence was given of the meetings in which communal propaganda is alleged to have been made and there is no substance in my opinion, in the contention raised by the Appellant that the Tribunal has allowed any evidence to be given on points which were not alleged in the petition. It can also, not be said that there was any illegality committed by the Tribunal in making out a case of corrupt practice u/s 123(2)(A) although the corrupt practice alleged was one u/s 123(4) in regard to the publication in the ''Nabasakti.'' No fresh evidence was allowed on this particular head of corrupt practice. The Tribunal has only drawn inference from the evidence produced and on the record and has come to the conclusion that on that evidence, a corrupt practice u/s 123(2) has been made out and not one u/s 123(4).

It is not necessary to examine in detail the criticism of the Appellant that the Tribunal has not appreciated the question of burden of proof in such trials and has wrongly placed the burden on the Appellant who was Defendant before the Tribunal. Large number of cases were cited to show that the corrupt practice is in the nature of criminal charge and the burden of proof always lies on the Petitioner to establish corrupt practice. At no stage of the proceedings the burden is on the Defendant. As in a criminal trial the burden is on the prosecution to establish the charge, similarly in an election trial it is for the Petitioner to establish the corrupt practice by reliable evidence. No objection can be taken to this proposition of law.

When the parties have however led evidence and the Tribunal has based its conclusions on evidence, the question of burden of proof is of not much value. It is open to this Court, to examine the evidence produced by the parties and come to its own conclusions whether the evidence produced by the Petitioner has or has not established the charge against the returned candidate. I have however carefully examined the judgment and it cannot be said that the Tribunal has placed the burden on the Appellant. At every stage, the Tribunal has emphasised the fact that the burden is on the Petitioner to establish the charge of corrupt practice.

As regards the standard of proof, I have examined the judgment and in my opinion, there is no substance in the criticism of the Appellant that the Tribunal has not examined the case from proper stand-point. It has carefully examined the evidence produced by the parties and has come to its own conclusions on the basis of the said evidence. Most of the witnesses on whose testimony the Tribunal has based its findings are persons who were present in the meetings and heard the Appellant making communal speeches. It cannot therefore be said that the Tribunal has gone wrong in accepting inadmissible evidence in the case.

It was then argued that the publication does not constitute any undue influence within the meaning of Section 123(2), Representation of the People Act. Corrupt practice has been defined in Section 123, Representation of the People Act. Sub-section (2) of Section 123 reads as follows:

Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of a candidate or his agent, or of any other person with the connivance of the candidate or his agent, 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 or any kind 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.

Sub-section (4) of Section 123 reads as follows:

The publication by a candidate or his agent, or by any other person with the connivance of the candidate or his agent, of any statement of fact which is false and which he either believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate or in relation to the candidature or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospect of that candidate''s election.

The Tribunal has held that the publication in the ''Nabasakti'' amounts to a direct interference or at any rate an attempt to interfere on the part of the candidate''s agent with the free exercise of an electoral right of voters. It also amounts to a threat to an elector with the injury of social ostracism, and thus the publication amounts to an undue influence. The publication in substance states that the leftists do not admit the independence of India and if they are elected, the muslims will be driven out of Bharat and will create feuds with the neighbouring countries and as such Congress is the only dependable organisation of the muslims. To my mind, mere publication by itself in the paper cannot be any direct or indirect interference with the free exercise of any electoral right.

Reading out of the extracts of this article in the meetings does amount to an attempt on the part of the candidate or his agent to interfere with the free exercise of an electoral right. The distribution of this article may also amount to the interference or an attempt to interfere with the free exercise of electoral right and the evidence led by the Appellant in this case as regards the reading out of this article in the meetings is mostly to the effect that it was the candidate himself who read out this article in the meetings and distributed it. In this view of the matter, it is not necessary to go into the question as to whether the paper being the organ of the party to which the Appellant belongs a necessary inference should be drawn that the publication was at the instance of the Appellant and that it was an act of the agent of the Appellant.

The undue influence u/s 123(2), as I have already stated is constituted not merely by publication in the paper, but by its reading out and distribution. The act is thus the act of the candidate himself and not (sic) or his agent. The question that the publication was done by the connivance of the Appellant is also of little consequence. The article may have been printed. and published by anybody, if the article had the tendency to interfere with the free exercise of an electoral right, and is read out by the candidate himself in the meetings or distributed by him, the act of reading out in the meetings and distributing in the public places will itself amount to a corrupt practice.

The next part of the argument of the Appellant is that article is only an expression of opinion and as such it cannot be regarded as an attempt to interfere with the free exercise of an electoral right, and in any case if does not amount to any .threat to an injury of any kind. It may be contended that the article clearly stated that in case the leftists are allowed to be elected, it may result in the Muslims being driven out of India. If this article is read out in the meetings as a part of his election propaganda by the candidate himself, it may constitute a threat of injury to electors and in that view of the matter, it may constitute a corrupt practice by undue influence u/s 123(2).

But as the reading out of the article in public meetings as a part of his speech constitutes a corrupt practice u/s 123(3), it is not of much consequence whether the reading of the article as the part of the speech in the religious meetings or distribution constitutes a corrupt practice, u/s 123(2), Coming to the charge of corrupt practice u/s 123(3), it is not disputed by the Appellant that it the allegations in the petition that speeches were made in the Waz meetings by the Appellant declaring "Jehad" and the article was read out in those meetings and it was expressly stated by the Appellant in those meetings that the election was now the question of Muslim versus Hindu is established, it makes out a corrupt practice as defined u/s 123(3).

The question therefore to be considered is whether the Respondent has established the fact that Waz meetings were held in which the speeches as declaring ''Jehad'' were made and it was said in those meetings that the election was one now between a Muslim and a Hindu and casting votes for the Respondent will be an unislamic act. The Appellant has definitely denied holding of any Waz meeting. It is however not seriously contended that no Waz meetings were ever held. It is urged that Waz meetings were held not during the time as alleged by the Respondent.

It was also contended by the Appellant that although in the petition it was urged that the communal propaganda was made, in election meetings, it is now proved that Waz meetings were held in which communal propaganda was done. The case therefore has been changed in evidence. We do not think that there is any substance in this criticism. There is no special definition of the election meeting. If at any Waz meeting, election propaganda is done, it can as well be regarded as an election meeting and if the evidence is now allowed to the effect that Waz meetings were held in which election propaganda was done by the Appellant, it cannot be said that there has been any change in the nature of the case.

(His Lordship considered the evidence on the question, whether Waz meetings were held and the candidate had delivered the speeches and continued.) The fact that the witnesses did not, hear the Maulana making any speech, cannot by itself prove that no Waz meetings were ever held and in my opinion, it has been fully established by the evidence produced by the Respondent that religious meetings were held in which the Appellant made speeches asking the voters to vote for him on communal grounds and that he read out the publication which appeared in ''Nabasakti'' and thereby impressed upon the Muslim voters that they should realise that their interest lies in voting for the Maulana and if they do not vote for him, it will amount to an unislamic act on their part.

It appears to be abundantly clear that he asked for votes on the ground of community or religion and the corrupt practice as defined in Section 123(3) has been fully established. It is not necessary for me to go into the question as to whether a corrupt practice u/s 123(4) has or has not been made out against the Appellant by publication in ''Nabasakti''. The Tribunal was of opinion that the mere publication in the ''Nabasakti'' did not constitute a corrupt practice within the meaning of Section 123(4).

The Respondent has also tried to support the judgment on the ground that legally, the publication in the Nabasakti'' by itself constitutes a corrupt practice u/s 123(4). As I am upholding the judgment of the. Tribunal on the other ground, it is not necessary to go into that question in detail. But I am personally inclined to accept the view of the Tribunal. It is clear that the publication does not relate to the personal character of the candidate. The statement in the publication that if the leftists are elected, the Muslims will be driven out of India, cannot be said to be a statement of fact in relation to the candidature and the statement that if the leftists are returned, it is likely to create feuds is also not a statement of fact in relation to the candidature of the Respondent.

In the result, therefore, there is no force in this appeal and it is dismissed with costs which we fix at Rs. 200/-.

Sarjoo Prosad, C.J.

I agree.

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� There seems to be a typographical mistake. Section quoted is one as it stood before its amendment by Act, 27 of 1956. As amended Section 83 reads:

(1) An election petition:

(a) shall contain a concise statement of the material facts on which the Petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the Petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the Petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings.

(2) Any schedule or annexure to the petition shall also be signed by the Petitioner and verified in the same manner as the petition. - Ed.

� Here again there seems to be a typographical mistake. Section 90(2) as quoted is the one before its amendment by Act, 27 of 1956. Sub-section (1) is deleted by the amendment and Sub-section (2) now reads as Sub-section (1). The relevant provision of the section now reads.

(1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (Act V of 1908), to the trial of suits:

Provided that the Tribunal shall have the discretion to refuse for reasons to be recorded in writing to examine any witness or witnesses if it is of the opinion that their evidence is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings. - Ed.

$$ Here again the quotation is of the unamended section. The relevant Sub-section is now Sub-section (3) of Section 90. It reads:

(3) The Tribunal shall dismiss an election petition which does not comply with the provisions of Section 81, Section 82 or Section 117, notwithstanding that it has not been dismissed by the Election Commission u/s 85 - Ed.