Amjad Ali and Others vs Nazmut Haque

C.P. Sinha, C. J. and H. Deka, J.—These two are connected appeals u/s 116-A of the Representation of the People Act 1951, which arose out of the same proceeding which was registered as Election Case No. 237 of 1957 in the court of Mr. Ram Labhaya, Member, Election Tribunal. The election petition was filed u/s 81 read with Section 80 of the Representation of the People Act, 1951 by Nazmul Haque, challenging the election of Amjad Ali who was returned to the House of People from the Parliamentary constituency numbered as H. P. 38-Dhubri, in the district of Goalpara, on the ground of corrupt practice amongst Ors. and for naming certain other persons to be guilty of the corrupt practices in conjunction with Sri Amjad Ali.

Nazmul Haq was the only rival of Amjad Alt in the election. The Election Tribunal by it judgment dated 30th August 1958 found in favour of the petitioner and held that the election of Amjad Ali was bad for taking recourse to corrupt); practice coming within the scope of Section 123(3) of the Representation of the People Act and in that connection ''named'' or associated two other persons for committing the alleged corrupt practices and they were Jahanuddin Ahmed and Bibhuti Bhusan Sarkar.

Jahanuddin Ahmed was one of the persons returned to the State Legislative Assembly. All these three persons were found guilty u/s 99(1) of the Representation of the People Act to have committed the corrupt practices as alleged and they were held to be disqualified for voting at any election for a period of six years from the date of the order purporting to act u/s 141 of the Representation of the People Act.

The election of Amjad Ali to the House of People was declared void u/s 98(b) read with Section 100(b) of the said Act. Against this judgment Amjad Ali has filed in this Court First Appeal (Election) No. 38 of 1958 and Jahanuddin Ahmed and Bibhuti Bhusan Sarkar have jointly filed First Appeal (Election) No. 39 of 1958. Since the two appeals arose from the same judgment, they were heard together and we propose to give one judgment covering both these appeals.

The case for the petitioner Nazmul Haq was that ho was a candidate for the Dhubri Parliamentary Constituency (H. P. 38) and that he was a nominee of the Congress Party. Amjad all his only rival in the election, who was ''hen a sitting member of Parliament, was set up by the Praja Socialist Party. The pollings were held on three days-viz.-25th February, 2nd March and 6th March 1957 in various centres and as a result of the counting of votes it was found that Amjad Ali had secured 1,01,303 votes as against 73,410 votes secured by the petitioner and accordingly, the former was declared to be elected as Member of the Parliament on the 11th March 1957.

The petitioner''s case further was that the Parliamentary Constituency above named consisted of ten Assembly Constituencies. Six of these were within the district of Goalpara and the other four within the Garo Mills Autonomous District. It was further alleged that the majority of voters were Muslims in the following Assembly constituencies of the Goalpara District,-namely South Salmara, Gauripur, Mankachar and Dhubri.

These Muslim voters were according to the Petitioner, simple and susceptible to false religious propaganda and that the defendant Amjad All belonging to the minority community (a Muslim) was responsible for carrying on mischievous propaganda on religious and communal (sic) personally, through his supporters and the Assembly candidates of Praja Socialist Party as well as the independent candidates, and this led (sic)vast majority of the electors of the Muslim community to vote for the Defendant Amjad Ali but for which they would have voted for the petitioner.

The allegation was that this mischievous propaganda was systematically carried through public meetings, group meetings and by individual con-tract. The persons who earned on such mischievous propaganda on the lines above suggested, (sic) alleged to be Jahanuddin Ahmed, Samti Roy, Bibhuti Bhusan Sarkar, Sahadat Ali, Sheikh Md. Azad Ali, Abdul Fazal, Capt. Williamson Sangama and Ors. . The main planks on which defendant Amjad Ali was stated to have canvassed on religious and communal lines systematically amongst the electors, were as follows:

(a) Banning of cow sacrifice and cow slaughter by the Congress Government.

(b) Stoppage of burial of Muslim dead bodies and their compulsory burning instead.

(e) Compulsory singing of ''Ramdhun'' by Muslim teachers and students.

(d) Worship of Tulsi plant in the South Salmara Basic Training Institute.

(e) Banning of Azan.

(f) Shifting of ''Jumma'' prayer from Friday to Sunday.

The allegation was that the members of the Praja Socialist Party including the defendant had made wrong representation and had falsely preached and canvassed amongst the Muslims that the Congress was attempting to interfere with the Muslim religion and as such the defendant had indulged in corrupt practices coming within Section 123(3)-of the Representation of the People Act The relevant clause is in the following form:

Corrupt Practices. The following shall be deemed to be corrupt practices for the purposes of this Act:

(3) The systematic appeal by a candidate or his agent or by any other person, to vote or refrain from voting on grounds of caste, race, community or religion or the use of, or appeal to, religious symbols or the use of or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of that candidate''s election.

In paragraph 10 of the petition filed by Nazmul Naq, he has given particulars of the meetings and their respective places or venues where communal propaganda was alleged to be carried on, and he has cited no less than twenty-nine specific instances, suggesting the subject-matters that were discussed or placed before the audience with a view to inspire the religious or communal passion against the petitioner and for the furtherance of the election prospects of the defendant himself.

The petitioner further alleged that as a result of this propaganda, the religious sentiments and susceptibilities of the Muslims were exploited to the disadvantage of the petitioner who had sought election on Congress ticket,-the point of attack of the defendant being against the Congress Government and the Congress organisation who were falsely alleged to have indulged in practices and passed legislations prejudicial to the best interests of the Muslim religion and the Muslim community. ''

There was mention about prejudicial propaganda being carried on in the Garo Hills'' constituencies in combination with Williamson Sangma and one Samser Ali (vide paragraph 15 of the petition). In the course of the hearing however, these allegations in paragraph 15, were given up and the Tribunal also did not accept the allegations made therein. It is therefore needless for us to refer to those allegations and it will be sufficient for the purpose of these appeals if we confine ourselves to the allegations made against the defendant and his supporters as stated in paragraph 10 of the petition mentioned above, which has reference to twenty-nine or thirty public meetings, group meetings or personal contacts.

The petitioner''s contention was that but for the votes obtained illegally by the defendant by Resorting to corrupt practices coming within Section 123(3) of the Representation of the People Act the petitioner would have secured the majority of votes and would have been elected to the House of People and on that basis, he not only prayed for the setting aside of the election of Amjad Ali but also asked that the Tribunal should declare that he was duly elected to the Parliament from the Dhubri constituency.

In reply to the charges of corrupt practices brought by the petitioner, the defendant filed a written statement categorically denying the allegations of corrupt practices ascribed to him and his associates. His case was that he carried on propaganda through public meetings but not in the manner and the way as alleged by the petitioner, namely by appealing'' to the religious or communal sentiment of his audience.

In regard to the specific allegations made in paragraph 10 of the petition as to the meetings alleged to be held by the defendant for the purpose of communal propaganda, the defendant denies not only the fact that any such propaganda as alleged therein was carried on, but he denies the holding of the meetings or the local contacts as well.

From paragraph 5 to paragraph 23 in the written statement filed by the defendant, he denies separately the allegations contained in paragraph 10(1) to (xviii) of the petition and in paragraph 24 of the written statement he denies the propaganda as well as the meetings in other places as stated in paragraph 10 (xix) to (xxx) of the petition.

It may be mentioned here that in the course of the hearing however, the defendant admitted holding some of the meetings on the same date or dates as alleged by the petitioner in some of the places, though comparatively few, and in few other cases he admitted to have held the meetings in those particular places but on some other date, and in regard to the rest he denied that there was any meeting whatsoever as alleged.

He had however, consistently denied the allegation that there was any propaganda on communal or religious lines to exploit the sentiments of the Muslims against the Congress party or the Congress Government as alleged. The defendant further denied the allegations of communal propaganda in the four constituencies of the District of Garo Hills and the Tribunal, as I have already indicated, did not find any case made out either against the defendant or against Williamson Sangma for communal propaganda alleged to have been indulged in by them in the meetings held in the Garo Hills District.

In the appeal also no attempt has been made to show on behalf of the respondent Nazmul Haq that that finding is incorrect, Therefore the only point for investigation would be how far the petitioner succeeded in proving the communal propaganda by the defendant in- the plain districts of Goalpara.

The following issues were framed by the learned Tribunal with the consent of the parties:

Whether tire respondent (Amjad All) and his supporters and workers carried on propaganda on religious and communal lines, as alleged, amounting to corrupt practices, within the meaning of Section 123(3) of the Representation of the People Act. 1951?

Whether corrupt practices alleged in the petition were committed by any person in the interest of the respondent, and, if so, whether the result of the election has been materially affected thereby?

Whether the election of the respondent to the House of the People from H. P. 38-Dhubri Parliamentary Constituency is- void, for the alleged corrupt practices committed by him or by any person, as alleged?

Whether the respondent, through Shri Williamson Sangma, obtained the services of the Laskars in the Garo Hills for furtherance of his election prospects and, if so, whether the obtaining of such assistance is corrupt practice- within the meaning of Section 123(7) of the Representation of the People Act, 1951?

Whether corrupt practices were also committed by Jahanuddin Ahmed, Sahadat Ali, Seikh Md. Azad Ali, Abul Fazal, Bibhuti Bhusan Sarkar, Santi Roy, Hussain Ali Pradhani, Williamson'' Sangma, Shamser Ali, Afzuddin Mandal and Saiyed Ali and, if so whether they should be so named as being guilty of corrupt practices, as alleged?

The petitioner examined himself and sixty-two other witnesses in support of his case The defendant Amjad Ali examined himself and thirty-two other witnesses. The two other opposite parties who were brought into record at a subsequent stage, namely Jahanuddin Ahmed and Bibhuti Bhusan Sarkar, examined themselves and examined on their behalf a few other witness,-apart from recalling some of the petitioner''s witnesses for the purpose of cross-examination.

The learned Member of the Tribunal gave a very exhaustive judgment consisting of more than 250 paragraphs and as a result of the appreciation of the evidence on record, came to categorical findings in favour of the petitioner in respect of issues 1, 2 and 3. The first issue related to facts as to whether the respondent and his supporters and workers carried on propaganda on religious and communal lines as alleged, amounting to corrupt practices within the meaning of Section 123(3); of the Representation of the People Act and finding was in the following words :

I entertain no doubt that Amjad Ali and (sic) supporters who admittedly addressed so many meetings at different places and on different date made systematic appeals to voters on religious and communal grounds. I regard this matter as pr(sic) ved beyond any reasonable doubt." (Vide paragraph 188 of the judgment).

Issue No. 2 was-"Whether corrupt practices alleged in the petition were committed by any person in the interest of the respondent, and (sic) so, whether the result of the election has (sic) materially affected thereby?". The finding of the Tribunal was that other persons as alleged (sic) co-operated with Amjad Ali in the matter (sic) carrying on communal propaganda and his finding was in the following words:

I feel no hesitation in recording the findings that Amjad Ali has been guilty of the corrupt practice defined in Section 123(3). He himself and his supporters with his knowledge and consent systematically appealed to voters on communal and religious grounds in furtherance of his election prospects." (Vide paragraph 192 of the judgment).

In Anr. place the learned Tribunal slated that apart from there being systematic and extensive appeal to Muslim voters on communal grounds which amounted to corrupt practice u/s 123(3), the respondent (Amjad Ali) and his supporters created an atmosphere surcharged with communal bias (vide paragraph 203 of the judgment.

The learned member of the Tribunal however, did not accept the contention that the result was materially affected by such propaganda. He further finds that this part of issue No. 2 was not at all pressed, may be because of the fact that the difference in number of votes between the petitioner and the defendant was so large that the alleged communal or religious propaganda should not have explained it, particular when both the candidates were Muslims.

In regard to issue No. 3 which related to the fact as to whether the election was void on the ground of the defendant having indulged in corrupt practices, the learned Tribunal in view of its finding on issue No. 1, declared the election to be void and set aside the same. Issue No. 4 which related to religious and communal propaganda in the Garo Hills District constituencies, was not pressed possibly there being no adequate evidence and it was accordingly decided against the petitioner.

In connection with issue No. 5 which raised the question as to whether corrupt practices were committed by Jahanuddin Ahmed, Bibhuti Bhusan Sarkar and Ors. and whether they should be to named as guilty of corrupt practices,-the learned Tribunal was of the opinion that the case has been made out only against Jahanuddin Ahmed and Bibhuti Bhusan Sarkar and not against the rest.

He accordingly issued notice on Jahanuddin Ahmed and Bibhuti Bhusan Sarkar to show cause as to why they should not be named as prayed for by the petitioner. The petitioner pressed the Tribunal for issue of notice on three persons, namely Jahanuddin, Bibhuti Bhusan Sarkar and Sahadat Ali under the Proviso to Section 99 of the Representation of the People Act-for the purpose of being named.

The Tribunal however, issued notice on (sic)banuddin Ahmed and Bibhuti Bhusan Sarkar by its order dated 25-3-58 and refused to issue notice on Sahadat Ali. The two opposite parties-who are appellants in First Appeal No. 39/58-showed cause pleading that the allegations against them were false and that they had not indulged in any propaganda on communal lines as alleged, (sic) though they participated in the election meetings in the interest of the Praja Socialist Party and Jahanuddin was actually returned to the Assembly from the constituency which he contested against a Congress candidate.

The finding of the learned Tribunal however, was against these two persons and he found them guilty of indulging in corrupt practices in conjunction with Amjad Ali and the result would be that the election of Jahanuddin Ahmed would be set aside and he and Bibhuti Bhusan Sarkar would be debarred from participating in any election for a period of six years as provided under Sec 141 of the Representation of the People Act.

Mr. N. C Chatterjee, the learned counsel" for the appellant in F. A. 38/58 challenged the correctness of the judgment of the Tribunal, more Strictly, the findings arrived at by the Tribunal on the ground that the learned Tribunal had neither scanned nor placed much reliance on the oral evidence and had, as a matter of course, almost neglected to take into consideration the oral evidence adduced by the parties purporting to rely on the so-called documentary evidence and the circumstances oil the case, and that in this manner came to the findings prejudicial to the interest of the appellant.

He did not try to place the oral evidence before us but drew our attention to paragraphs 139 to 143 of the judgment, wherein the Tribunal opined that both parties having put their ''cases "sky-high" and most of the witnesses being partisans, -- no definite finding could be arrived at on the basis of the oral evidence itself, but that he would examine the documentary evidence and circumstances which might aid in the matter of coming to the necessary findings as to the truth or otherwise of the allegations. The Tribunal expressly found it difficult to believe either version in its entirety while applying its mind to the oral evidence.

Mr. Chatterjee further argued that the documentary evidence by itself would prove nothing about the allegations and that the learned Member of the Tribunal was not correct in interpreting them the way he did. He further argued that if the findings Were based on circumstantial evidence as was the attempt made by the learned Member of the Tribunal, they were arrived at in total disregard of the legal principles which have been so well established, as to the weight to be given to circumstantial evidence and how to arrive at the findings on that basis.

In this connection he drew our attention to the case reported in Hanumant Vs. The State of Madhya Pradesh, which was a criminal case,-and the one reported in Sri Baru Ram Vs. Prasanni and Others, which dealt with an election case. He further argued that the Tribunal arrived at its findings on mere tentative probabilities and not on what ho found to have happened and placed before us in this connexion the case reported in Harish Chandra Bajpai Vs. Triloki Singh, .

The learned Counsel discussed the evidence only in reference to few meetings,-such as those held at Fakirganj, Bhoidbari and the like and submitted that evidence was too inadequate to support the finding arrived at by the learned Tribunal He further argued that there was no onus on the defendant to disprove the truth of the allegation made and that the Tribunal had wrongly shifted the onus to Amjad All.

Mr. R. K. Bose who appeared in support of the Appellants in F. A. 39/58,-had, apart from relying on the arguments advanced by Mr. N. C. Chatterjee, added few more objections, criticizing the, correctness of the judgment of the Tribunal. His first contention was that the allegation in the petition were too vague to be relied on and were not in compliance with the provisions of Section 83(1)(b) of the Representation of the People Act. (This point has been averred by Mr. Ghose also who argued the appellant''s case in the other appeal by way of reply.)

Mr. Bose further argued that the Tribunal has not given definite finding as to what part of the allegations he considered to be substantiated and what part not the Member of the Tribunal, according to the counsel, had nowhere found categorically as to what part of the petitioner''s case be believed to be absolutely true and where the corrupt practice was considered to have been committed by the appellants along with Amjad Ali. He criticised that the Judgment under appeal was a cumulative judgment" which was not in keeping with the provisions of law. The Tribunal ought to have, in the opinion of the learned counsel, expressed definite opinion as to the truth or otherwise of each of the allegations made against the appellants in respect of each of the meetings as mentioned in the petitions in paragraphs 10 and 15 and not arrive at an over-all finding disregarding the details. In this connexion he drew our attention to a recent decision of the Allahabad High Court in an election matter,-reported in AIR 1959 All 264, Ghayar Ali Khan v. Keshav Gupta,-where the learned Judges observed as follows:

If the different instances have not beer sufficiently proved, there can be no decision against the appellant that the cumulative effect of the evidence is that at some places or the other he or his workers or supporters must have committed the corrupt practice.

Mr. Bose further argued that there is no mention in the judgment appealed from as to what evidence the learned Tribunal relied on, either oral or documentary, for the purpose of arriving at a finding prejudicial to Jahanuddin Ahmed and Bibhuti Bhusan Sarkar. The learned Member of the Tribunal, it was contended, had given no weight to the judgment that was already passed and existed in the Election Petition No. 26 of 1957 which was decided by Mr. 13. C. Barua acting as the Election Tribunal, on 8th May, 1958 in favour of Jahanuddin Ahmed in which similar or the self-same allegations were levelled against him and Sahadat Ali whose election was challenged by Md. Bazlul Basic.

The learned Counsel further urged that no attempt has been made by the Tribunal to appreciate the evidence in their proper perspective, or weigh them as such, but proceeded to judge everything on an assumption that the burden of proving innocence rested on the appellants in this case,-and that it lay heavily on them.

Mr. Lahiri-the Advocate General-appearing for respondent Nazmul Haq tried to support the findings arrived at by the learned Tribunal against the two sols of appellants as correct and his contention mainly has been that Mr. Chatterjee was not right in urging that the learned Member of the Tribunal had rejected the oral evidence outright, but that he had as a matter of fact utilised the oral evidence in conjunction with the circumstantial evidence as well as the documentary evidence for the purpose of coming to the findings which he had subsequently arrived at.

Another point argued with great force was that this Court should be cautious in the matter of interfering with the findings arrived at by the trial court who had the chance of seeing the witnesses and noticing, their demeanour. In this connection he drew our attention to some rulings or case laws to which I might refer later. His Anr. contention was that it is for the appellants to convince this Court that the findings of the first court were definitely wrong on the face of it and that there was no evidence in their support.

It must be said to the credit of Mr. Lahiri that he look sufficient pains to place before us systematically the oral as well as the documentary evidence in this case and tried to show that there was enough evidence in support of the findings arrived at by the learned Tribunal. He further tried to repudiate the contention that the learned Member of the Tribunal did not apply his mind to the evidence in this case or that the inferences drawn by him were wrong.

He put great emphasis on the fact that Mr. Amjad Ali himself having admitted that the prejudicial matters, were discussed in some, of the meetings arranged and organised by his party-and he himself took part in the same-the learned Tribunal was correct in presuming against him as to the nature of discussion-since the defendant had denied the holding of those meetings in his written statement.

This candidate, it was argued by Mr. Lahiri, was not out to tell the truth and therefore the inferences drawn against him to the effect that he appealed to the communal passion of the Muslims to support him in view of the attempted legislations that were admitted to be prejudicial to the Muslim interest, were perfectly legitimate.

Mr. Lahiri placed greater emphasis rather on the alleged admissions of the defendant Amjad All than on the case made by the petitioner Nazmul Ha(sic) and his witnesses. The learned Advocate General however, did not try to meet the point raised on behalf of the appellants on the basis of the recent Allahabad case reported in AIR 1959 All 264 which laid down that a discussion on matters of religion or connected legislation by themselves might not amount to canvassing on communal lines, because it might as well be a discussion on the policy of the Government or of a party which might come up for consideration or deliberation in some public meetings even in relation to the elections.

Mr. Lahiri further argued that where both the parties adduced evidence, it was not necessary for the court to hold on which party the burden of proof lay, but the court could come to a (sic)ding on the basis of the evidence as led in court, and on this point he relied on the case reported in AIR 1958 Ass 51, Abdul Jalil v. Rathindra Nath.

Mr. Lahiri did not press that there was canvassing on communal lines in more than about sixteen meetings, about which he placed the evidence before us. In regard to the rest, inclusive of the Bhaidbari meeting, he thought it fit not to press the evidence or for a finding against the defendants. He ''further opposed the contention raised on behalf of the appellants that strict proofs of the corrupt practices alleged are necessary as in criminal cases, but he has, on the other hand, argued that it was open to the court to come to the necessary finding on the basis of evidence led by either party.

The defendant and his associates, he argued, could not have pleaded that there was no responsibility on them to rebut the allegations made the petitioner. He had in this connection drawn our attention to Section 90(1) of the Representation of the People Act, 1951 which laid down the procedure for the purpose of election cases, which runs as follows:

Procedure before the Tribunal.-(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....

It does not appear to us that the learned Member of the Tribunal did go into the oral evidence as he ought to have done and weigh or analyse the same for the purpose of coming to a reasonable finding either on the basis of or in conjunction with the documentary or other evidence on which he thought fit to rely. The Tribunal did nothing more than give a short synopsis of oral evidence led by the parties without trying to assess its value at any stage. Its observation that oral evidence of either party sought to place the case sky high is of very little importance or utility for the purpose of coming to a reasonable finding as to the allegations made or rebutted,-except that it indicated that the evidence was not worth acceptance on its face value.

Let me now proceed to assess the value of the oral evidence meeting-wise as has been placed before us and see how far the finding of the learned Member of the Tribunal to the effect that religious or communal feelings were exploited at all the meetings by the appellants is

- 84. (His Lordship went through the oral evidence and continued).

In the foregoing paragraphs I have given (sic) idea as to the nature of oral evidence adduced the petitioner in support of the case sought to (sic) made out against Amjad Ali and his two associates Jahanuddin Ahmed and Bibhuti Bhusan (sic) As will appear from the discussions above, (sic) in allegations against the opposite parties (sic) defendants were that they appealed to the com-(sic) passion and religious sentiments of the (sic) mainly on the ground that Congress Government and the Congress Party had adopted un-Islamic measures.

Their action was criticised because of putting into force the Cattle Preservation Act which was passed in the year 1951-Assam Act XIII (published in the Assam Gazette dated 25-4-51) and put into force in 1956 by the State Government. The other aspect was that a private member''s "Bill" was sought to be introduced in the Parliament in 1954 by a Congress member Shri Shankar Rao Telkikar proposing ban on burial of dead bodies.

The Bill, however, was not passed and it was suggested by the petitioner''s witnesses that Amjad Ali claimed to have been the main cause of stoppage of passing of that Bill into an Act, which might have otherwise affected the Muslim interest. The Bill, however, which is printed as Annexure I does not disclose that it had any communal outlook-but that the measure was sought to be introduced as an economic measure to spare more lands for other use than for a grave-yard and for preventing unhealthy ways of disposing of dead bodies and to prevent epidemics being spread.

The other allegation was that the Praja Socialist Party speakers referred to the singing of Ramdhun geet and Allah is said to be placed in the same category as Rama--the Hindu Cod,-- which the Muslims considered to be an insult to their religious faith. The fourth subject alleged to be constantly referred to and for which mainly Jahanuddin Ahmed was stated to be responsible, was the Marishbari or Marichbari affair which related to the eviction of some Muslim trespassers-from a grazing reserve at the instance of the Congress Government in the early part of the year 1956.

Jahanuddin was stated to have referred to this incident in various meetings and to have produced a half burnt Quoran, which he alleged, was recovered from some Muslim hut set on fire in the Morishbari Reserve. It was further alleged that the Congress Party people were the cause for the eviction of the Muslim occupants of the Forest Reserve. As a matter of fact there was very little-evidence to show that the Quoran was recovered from any of those huts or that the Congress-people in any sense were responsible for the burning of the huts for evicting the Muslim trespassers....

The Government took the full responsibility and they rendered help to the people actually in distress (vide Mr. B. Medhi''s letter dated 24-4-56). There were other allegations which were mainly ascribed to Bibhuti Bhusan Sarkar to the effect that he stated that the Congress Party and the Congress Government were trying to minimise the importance of Muslim religion and were in a sense trying to do away with the difference that existed between the Hindu and Muslim faiths.

He is alleged to have stated that if the Congress Government continued to be in power, Muslims will have to worship the Tulsi plant just as the Hindus do. They will be stopped from giving Azan or calling the Muslims to prayer and that the Muslim women will have to put on vermilion-marks.

The learned Member of the Tribunal did not believe the minor allegations, but he found against Amjad Ali and his associates that they appealed systematically to the Muslim communal sentiment for the purpose of their own ends, mainly on four planks and they were-(1) the Cattle Preservation Act (2) the passing of the Act banning burial of Muslim dead bodies, (3) singing of Ramdhun geet and (4) suiting fire to the Muslim huts in the Morishbari reserve.

The learned Member of the Tribunal nowhere categorically stated on what part of the evidence he definitely relied for his findings,-But merely on considerations of the probabilities he found that it was abundantly proved "from the circumstances and documentary evidence" produced that Amjad Ali and his associates had indulged In communal propaganda coming within the scope of Section 123(3) of the Representation of the People Act.

I now propose to discuss the so called documentary evidence on which the learned Member of the Tribunal depended for his findings, he not having placed much reliance on oral evidence. T may state here in short that the learned Member V)f the Tribunal presumed many things against Ajmad Ali because of his denial in his written statement of all the meetings alleged to have been held at different places, some of which he subsequently admitted in his deposition in the course of the trial.

It is clear from the petition that the petitioner himself was not sure about the dates of many of the meetings and would it be an offence if the defendant docs not admit of those meetings without being sure? The learned Tribunal further adversely commented on the fact that Amjad Ali did not come first to depose in the court and that he came after the witnesses, on his behalf were examined.

There is nothing irregular in so doing but the evidentiary value of his statements might be affected. The learned Tribunal ought to have decided facts in issue on the weight of evidence and not on mere adverse inference, He further assumed that as Amjad Ali filed in court some bills and documents from his possession,-they must have been utilised by him in the election campaign for the purpose of carrying on communal propaganda even though nobody says that those documents were produced in any meeting.

They might have only been evidence of fact, that those matters-which might have been referred to in the meetings did really exist and were not mere canards. It is clear that the learned Member of the Tribunal did not and could not put much-reliance on the oral evidence.-and as such, hesitated to come to any definite finding on the basis thereof I shall show presently that the so-called documentary evidence is equally of doubtful value as to the allegations made against defendant Amjad Ali, Jahanuddin or Bibhuti Bhusan Sarkar.

Though some of these correspondences might be direct or indirect complaints by interested persons against the election propaganda carried on by Amjad Ali and his associates, they bear, no actual testimony as to what the defendants spoke in which meeting and at what place. They neither disclose the source of information. Section 83(1) (b) of the Representation of the People Act directs that all necessary particulars should be stated in regard to the allegations of corrupt practices ascribed to the defendants so that they may not be taken unawares and might meet the charges.

This would also imply that there should be categorical findings in regard to charges, namely,-as to how far they are substantiated. A mere finding that the defendants must have committed the corrupt practice alleged by itself is not enough. The Tribunal must show where and when any by whom and on what material the finding is based.

In this case the petitioner Nazmul Haque did not attend any of the Praja Socialist Party meetings, nor did he claim to be present in any place where anti-propaganda against the Congress was carried by the Praja Socialist Party people on communal lines. He has neither kept nor produced any written report from any responsible person who was present in any of these meetings. His important witnesses-P. W. 32 Abdul Bari Sarkar, a defeated Legislative Assembly candidate, P. W. 27 Sarat Chandra Singha Congress leader in charge of Election in the District and P. W. 63 Umoruddin, a past Congress M.L.A. and brother of Mokshed Ali a defeated candidate, also did not depose that they were present in any of the Praja Socialist Party meetings or could vouch with any degree of definiteness or certainty as to what was spoken in any of those meetings.

The reliability of so-called verbal reports on which they depended cannot be tested nor can they be considered to be good evidence except as hearsay evidence. The election petition of Nazmul Haque challenging the validity of the election of Ajmad Ali was not properly verified either as was required under the law, and though he states that the statements in the petition contained in para-graph 10 were true to his information, he does not disclose from what source, or what person he got any definite information about the allegations made against different persons.

In course of his deposition in court Nazmul Hague mentioned the names of Bazlul Basit, thei Congress candidate from Salmara Constituency, Mokshed Ali Anr. Congress candidate from Gauripur constituency and some other prominent Congress members as persons who reported to him about some of the meetings,-but they did not come forward to support him. He gave the names of some obscure persons as well who were examined on his behalf in respect of some of the meetings (sic) and there were Ors. '' who though examine did not support him.

He further stated that he made a note of the reports made to him by different persons from time to time but he does not come forward to produce any of such chits where these reports were alleged to have been recorded. He deposed, he says; (sic) the basis of these reports the existence of which is doubtful, if not disproved. He had admitted (sic) no personal knowledge as to what happened (sic) any of these Praja Socialist Party meetings (sic) he speaks of recording the reports received by (sic) in these words:--

I do not remember now when I got (sic) mation about the meetings and utterances of the P.S.P. members. I made short notes on small bits papers in a note book. I have not produced the bite or the note book. They have not been included In the documents filed.

Most of the witnesses for the petitioner, as I have already indicated, deposed that they did not report to any other person as to what they heard in'' the Praja Socialist Party meetings and I think that a fair percentage of them were illiterate or half literate except those who were professedly --Congress election canvassers or active Congress workers ''or officials. None of these persons either came with any authenticated reports or documents prepared or possessed by them about the speeches which were supposed to carry communal virus.

Let me now discuss the documentary evidence, rather the documents on the record and see how far they support the petitioner''s case. None of the documents, I must say, hear any direct testimony to what happened in any of the public meetings or group meetings of the Praja Socialist Party-which are the subject-matters of attack by the petitioner,-nor do they disclose the purport of any speech of any of the speakers in respect of any of the meetings. They only raise a background.

(91-100) (His Lordship discussed the documentary evidence and proceeded).

These correspondences, leaflets and handbills, as I have discussed above, --- fall far short of establishing that Amjad Ali had actually indulged in communal propaganda, in his election campaign-- assisted by his camp-fellows in Praja Socialist Party. It is always'' open to a rival or an opposite party I man to ascribe various corrupt practices, but that by itself is of little significance, unless the allegations made are substantiated by evidence.

The publicity of the Congress bulletin Ext., P. 3 to which I have alluded, does not establish at what place and when and by whom the communal propaganda was carried on. It might only indicate that the Cattle Preservation Act was made use of by both Hindus and Muslims to speak against the Congress rule or the Congress Government''s indiscretion. It is one thing to speak against the Congress for its administrative policy in the matter of enforcing or passing legal measures or adopting methods that might hit the Muslim sentiment and it is quite a different thing to appeal to the religious sentiment on that ground and ask the voters either for voting against the Congress or for the speakers themselves. Suppose somebody questions the wisdom of the Government in the matter of passing an Act restricting prohibition on Temple entry" or the Hindu Code giving share of inheritance to the daughters,-will his amount to communal propaganda, even though Hindu mind may be touched by this propaganda ? (102) I find it difficult to accept the insinuations made against Amjad Ali for submitting a copy of the Funeral Reforms Bill 1954 as introduced in the Lok Sabha in court. I further find no evidence (sic) support of the observations made by the Member of the Tribunal that Amjad Ali had prepared (sic) before to avail of a communal platform for his. There was some correspondence even on the Ramdhun geet but that would not establish the fact that all these measures were utilised to rouse the Muslim sentiments against the Congress Party or the Congress candidate at tile election, What more, most of the petitioner''s witnesses stated that Ramdhun geet was not compulsory in the Muslim schools-in the locality. The correspondence would only show at best that Cattle Preservation Act was used by the opposition parties for criticising the Congress or made it the spear head of their attack, as Mr. Umaruddin wrote. The other allegation namely the banning of the burial of Muslim dead-bodies has no reference in any of the correspondence that passed between the Chief Minister and Abdul Bari Sarkar, but Umaruddin in his letter to Mr. Medhi, stated that there was broad hint to the effect that it might follow.

P. W. G3 Umaruddin deposed that during the month of January, 1957 he received reports from Prafulla Chakravarty, Nazmul Haque, Abdul Bari and Ors. that the Praja Socialist Party people were carrying on propaganda on religious lines, particularly they were said to be representing that Assam Cattle Preservation Act of 1950 which had been enforced a few months before the polling was an encroachment on the religious rights of the Muslims.

He further stated that he received reports to the effect that it was represented to the voters that the Congress Government would take steps to stop the burial of dead-bodies and Azan (call prayer) but he did not disclose from whom he learnt about this, ho not being present in any of the Praja Socialist Party meetings.

P. W. 27 Sarat Chandra Singha who was the Secretary of the Assam Pradesh Election Committee and the President of the District Election Committee, deposed that he learnt from Congress workers that the Praja Socialist Party propaganda was that if Congress won, the Muslims will not be allowed to sacrifice cows. They further referred to the Cattle Preservation Act and pressed that by reason of this Act Muslims would not be able to continue their religious rites and that the Congress will stop burial of dead bodies and it would make cremation compulsory.

He deposed to have heard that at South Salmara Jahanuddin produced a partially burnt copy of Holy Quoran and told people that it had been burnt in the house of a Muslim at Morichbari reserve where Muslim houses were burnt by Hindus. This was the nature of the Praja Socialist Party propaganda according to the report received by him. The source of his information he discloses was the reports from Prafulla Chakravarty, Nazmul Haque, Bazlul Basit, Umaruddin, Abdul Bari Sarkar and Ors. , none of whom except Prafulla Chakravarty attended any of the Praja Socialist Party meetings on their own admission.

He had no personal knowledge, about the propaganda except what he gathered from the reports from the persons mentioned above and even though We assume that the reports made to him were correct, then he heard that Jahanuddin had spoken about the Morichbari affair at South Salmara meeting; but the petitioner''s witnesses have, almost uniformly ascribed all the four subjects, namely stoppage of cow slaughter, ban on burial of Muslim dead bodies, singing of Ramdhun geet and Morishbari affair to have been repeated by all the speakers indiscriminately in all the Praja Socialist Party meetings.

This leaves no room for doubt that the allegations against the defendants were very much exaggerated and that the witnesses were asked to repeat the self same allegations against all the P. S. P. members - supposed to be participating in the meetings. In the documents referred to above, there wore only vague allegations of communal propaganda but there was no mention of place or time or of the persons who actually heard or reported.

The allegations came out with some amount of definiteness for the first time only when the election petition was filed. I therefore do not find sufficient support from the so-called documentary evidence as to the truth of the allegations made against Amjad Ali.-and his other co-workers to the effect that they carried on communal propaganda.

Though the learned Member of the Tribunal has looked to or relied on circumstantial evidence for support of his findings, I find very little justification for this view point. It is an established principle of law that one cannot come to a definite finding on the basis of circumstantial evidence, unless the evidence can be explained on no other hypothesis except that there must be this one conclusion.

In this case all the evidence that we have is that there was canvassing on communal lines in the last general election by some members or agents of the Praja Socialist Party. Assuming it was so, we cannot all at once arrive at the conclusion that its must be done by Amjad Ali or his two associates Jahanuddin and Bibhuti Bhusan Sarkar. There were six Assembly Constituencies--five other Praja Socialist Party candidates.

Mere suspicion cannot take the place of evidence. Even from the success of Amjad Ali, we cannot say that it was because of this canvassing on communal line that he succeeded in winning the election in preference to the petitioner, who was also a Muslim candidate selected by Anr. political party. The result of election also shows that it was not that the candidates from. Praja Socialist Party alone succeeded.

The Congress Muslim candidates had captured the majority of seats for the Provincial Assembly. The success was divided. Therefore unless we are in a position to say definitely from the evidence that Amjad Ali and his associates resorted to canvassing on communal lines by way of systematic appeal, mere casual references to certain Acts passed by the legislature or intended to be passed by the legislature, which are likely to affect Muslim minds adversely may not tantamount to an appeal on communal grounds or appeal to religious sentiments.

Further there being definite allegations of communal propaganda in several places,--unless we can hold definitely that the canvassing has been on communal lines on all or some of those places,-- we cannot all at once arrive at the conclusion merely from the success of Amjad Ali at the election or of Jahanuddin Ahmed, that they must have carried on the propaganda on communal lines.

Therefore the circumstantial evidence, as such does not induce us to hold that the allegations of corrupt practice as alleged against Amjad Ali and his associates have been established.

The evidence to my mind to be effective should be categorical and not apt to guessing. The Congress or the petitioner has not tried to offer any explanation as to why there was no direct or frontal opposition to the propaganda, if any, in the Praja Socialist Party meeting of which the Congress workers got sufficient notice in advance.

104-A. I consider it unnecessary to analyse the evidence against Jahanuddin Ahmed and Bibhuti Bhusan. Sarkar separately,--since the main brunt of attack has been against Amjad Ali. They are alleged to play the second fiddle and in case no case is established against Amjad Ali, there is no reason for naming the two other persons.

104-B. Another fact that remains is that an election petition challenging the election of Jahanuddin Ahmed, had already been dismissed for default and in Anr. Election case which was heard and decided, Jahanuddin was a party defendant. The Election Tribunal found in favour of Jahanuddin and held that the allegation of corrupt practices even by communal propaganda was not substantiated. Though that judgment may not serve as evidence in this case the fact remains that he was tried and found not guilty of the offences as alleged.

In the state of evidence led by the petitioner to which I have already referred, there can be no definite conclusion that Jahanuddin or Bibhuti Bhusan Sarkar had joined Amjad Ali in the matter of carrying on propaganda in the last general election on communal lines, which would amount to corrupt practice in the eye of law., The evidence led on behalf of the petitioner, I must say, is of a very poor quality, it having rested almost entirely on the testimony of some alleged listeners of the opposite camp which was never recorded nor put into writing at the material time by any of them. ''

Most of the petitioner''s witnesses were partisans, obscure and half-literate and the few of the prominent members of the Congress Party who came forward to support the allegations, including the petitioner did not attend any of the Praja Socialist Party moorings, nor had they any personal know-ledge of the statements ascribed to the defendants.

Another important point that arises for our consideration is whether there was any onus on the defendants to prove their innocence or the falsity of the allegations made against them. The learned Member of the Election Tribunal has held that the evidence for the petitioner need not be of such standard as is necessary in a criminal case for the purpose of conviction of an accused or that the offence alleged need not be proved to the hilt, nor is the defendant entitled to the benefit of doubt.

The contention for the appellant is that the defendant in an Election petition case is entitled to all the benefits in respect of charges of corruption that an accused person is entitled to in a criminal trial and our attention has been drawn to the case report ed in (S) AIR 1957 SC 444 wherein (at p. 456) the following observation occurs:

It should not be forgotten that charges of corrupt practices are quasi-criminal in character, and that the'' allegations relating thereto must be sufficiently clear and precise to bring home the charges to the candidates.

It has been contended on behalf of the appellant that this would indicate clearly that the trial was of a quasi-criminal nature and therefore all that applies to a criminal trial applies to an election case. In reply to this argument it is submitted by the learned Advocate General that the procedure to be followed by the Election Tribunal is prescribed by Section 90 (I) of the Representation of the People Act and it runs as follows :

90 (I). 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;...

The learned Advocate General argued that it is there-fore clear that the procedure or legal principle applicable to criminal trials will not apply to an election case and that the Supreme Court observed was that the charger were of a quasi-judicial character and had not said'' any thing about the standard of proof. Even if we hold that the submission on behalf of the respondent by the learned Advocate General was correct, we cannot overlook the Supreme Court''s observation that the allegations relating to the offences must be sufficiently clear and precise to bring home the charge to the candidates. This would apply to the nature of evidence also.

That means that there should be no scope for holding on the basis of evidence that the allegations were not fully substantiated and in default, no finding of corrupt practice can be safely arrived at. The learned Advocate General has tried to impress on us that the finding should be based on the probabilities on weighing the evidence of both sides and it was not for the party alone who alleges to substantiate the charge of corrupt practice.

He emphasises that no principle should be borrowed from a criminal trial but that of a civil suit should be followed. The procedure to be followed all an Election case is fully prescribed and there is no doubt that it should be of the nature of a civil Suit. Section 90 however, does not indicate or lay down what should be the standard of proof necessary to hold a charge of corruption to be substantiated.

Every Election case does not relate to corrupt practice--and the procedure laid down for trial applies-to all cases. Procedure is something different from the standard of proof. Even in Criminal Procedure Code there is no standard laid down as to what should be the standard of proof for the purpose of conviction but the law has so developed in all civilised countries as to indicate that in criminal trials (sic) finding of guilt should be arrived at and the man (sic)pished on the basis of evidence which would leave (sic) margin for reasonable doubt. In those cases the accused is given the benefit or he is found not.

This only suggests that the standard of proof required for the purpose of finding a man guilty should be of a high order and the evidence as exact as conditions would permit. Evidence capable of double interpretation will not answer the charge. It we refer to the relevant sections of the Representation of the People Act, we find that the same standard of proof is necessary to substantiate an allegation of corrupt practice because it relates to a man being "found guilty" which is on par with being "convicted" and those are the words used in some of the sections, e.g., Section 141 of the Representation of the People Act, which runs as follows:

"141. If any person after the commencement of this Act --

(a) is convicted of an offence punishable with imprisonment u/s 171 E or Section 171 F of the Indian Penal Code (Act XLV of 1860), or of an offence punishable u/s 135 or clause (a) of sub-section (2) of Section 136 of this Act, or

(b) is, upon the trial of an election petition under Part VI, found guilty of any corrupt practice, he shall, for a period of six years from the date of the conviction or from the date on which such finding takes effect, be disqualified for voting at any election.

This would indicate that there is not only scope for conviction of the person under certain provisions of the Indian Penal Code for committing corrupt practice, but he can be punished as provided under the above section if he is found guilty of any corrupt practice. The words "found guilty of any corrupt practice" have the same connotation as "found guilty of any other offence" under the Indian Penal Code.

There cannot be a separate standard of proof for a conviction as provided u/s 141 (a) from the standard of proof necessary for the sake of a finding u/s 141 (b)--both entailing the same measure of punishment Therefore in my opinion the law enjoins Suggestively that the standard of proof necessary for the purpose of finding a man guilty of any offence of corrupt practice (under Part VI of the Representation of the People Act, 1951), must be the same as for the purpose of finding him guilty or convicting him under the Indian Penal Code, which would indirectly mean that in case of reasonable doubt the accused should be given the benefit.

In criminal trials there is no onus on the accused to prove his innocence and let us see whether the same principle will apply to an election case where quasi-criminal charges of taking to corrupt practice are brought. In this matter our attention has been drawn to one of the earlier decisions of this Court reported in AIR 1958 Assam 51. The passage (at page 54-55) runs as follows :

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 evidenced by the parties and come to its own conclusions whether the evidence produced by the petitioner has or has not established the charge 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".

In this case also we must hold that the standard of proof necessary must be of a high order so as to leave no room for doubt that the defendants had committed the corrupt practice as alleged. I have already expressed my view that the evidence in this case is'' not of such high standard and the learned Member of the Tribunal was not correct in my opinion in coming to his findings as ho did against Amjad Ali, Jahanuddin and Bibhuti Bhusan Sarkar.

The learned Advocate General had placed much reliance on the sanctity of the finding arrived at by the Election Tribunal and he cited several cases before us to show as to what weight the finding of the first court deserves. We have no quarrel with any of the decisions cited by him but none of the decisions would go to the length of saying that the appellate court is not competent to come to its finding on an appraisal of the evidence on record.

The only tiring required is that the appellate court should pay due regard to the finding arrived at by the first court but it has at the same time full liberty of evaluating the evidence and examine the reasons given by the first court in favour of its views. It is not a case where the finding is based on the basis of evidence of a particular witness whom we have disbelieved.

The case reported in Sarju Pershad Vs. Raja Jwaleshwari Pratap Narain Singh and Others, , cited by the learned Advocate General has no basis nor the Supreme Court decision in Meenakshi Mills, Madurai Vs. The Commissioner of Income Tax, Madras, has any application to the facts of this case. I consider it unnecessary to refer to other cases relied on by the learned Advocate General on this point,--since the point as such has been well settled.

Another argument advanced by the learned Advocate General with great force was that the oral evidence which was given on oath by the petitioner''s witnesses, even though from memory,-- should not be lightly treated while we appreciate his anxiety,-- it cannot be gainsaid that it is widely felt that all evidence given in court on oath is neither true nor correct,--and that is why the necessity of examining its worth arises. In this case it is abundantly clear that it was mostly the partisans who came to depose in favour of the parties.

There was nothing to authenticate as to their presence in the meetings or as to what they had actually heard. It is not inconsistent with the theory that their services could be enlisted at a later date --to support the election petition of one for whom they had overwhelming sympathy, affiliation or partisanship. I do not say that in no case the oral evidence could be sufficient for the purpose of making out a case of corrupt practice, but that would always depend on the quality of evidence and the merit of each case.

In connection with the point of standard of proof I might place below a few decisions of the Orissa High Court which have been cited before us. They are Raghunath Misra Vs. Kishore Chandra Deo Bhanj and Others, and Gokulananda Praharaj Vs. Jogesh Chandra Rout and Another, -- both of which had referred to earlier decisions of the Supreme Court and more particularly, to Harish Chandra Bajpai Vs. Triloki Singh, . Both these cases relate to standard of proof necessary for the purpose of establishing a corrupt practice to invalidate an election.

In Raghunath Misra Vs. Kishore Chandra Deo Bhanj and Others, in answer to a comment that the respondent had equally an onus to discharge, the learned Judge made the following observations (at page 272):

But though the non-examination of the respondent may be taken into consideration in weighing the evidence yet as in a criminal case it is absolutely necessary in an election proceeding that the petitioner himself should prove beyond possibility of reasonable doubt by clear and unambiguous evidence that the respondent is guilty of a corrupt practice.

In Gokulananda Praharaj Vs. Jogesh Chandra Rout and Another, the observation (at page 48) is as follows:

Now as to the standard of proof required for judging the evidence by the parties, it has been held in a long array of cases, both under the old and new law, that in the case of allegations of corrupt practices the burden of proof is on the petitioner, it never shifts and the standard of proof to discharge this burden is the same as in criminal cases, that is, the matter requiring proof should be established beyond any reasonable doubt and that in case of doubt the benefit should go to the respondent. Though an election petition has to be tried in accordance with the procedure applicable to civil suits, the standard of proof required in respect of corrupt practices alleged in the petition, is the standard applicable to criminal cases, that is to say, corrupt practices must be proved beyond any reasonable doubt.

The view, expressed by this Court in the earlier easels of Abdul Jalil, AIR 1958 Ass 51 and in the instant case finds ample support from the above decisions.

We have already indicated that to constitute a corrupt practice there should be systematic appeal by a candidate or his agent or by any other person to vote or refrain from voting on grounds of caste, race, community or religion for the furtherance of the prospects of that candidate election. Here in this case the rival candidate were both Muslims and there was no distinction between them as to caste, race, community or religion, but the only point for investigation is whether by systematic appeal to the religious or communal sentiment of the Muslims Mr. Amjad Ali or his agents wanted to score votes in their favour or Amjad Ali''s favour at the last election.

The Act itself does not describe what is a systematic appeal on the ground of community or religion but the word itself signifies that the propaganda or appeal should not be casual or perfunctory in its nature but should be followed as a system or as part of a plan to carry on such communal propaganda or impeachment of a party or an individual on the ground of religion or community.

It is not the petitioner''s case that Amjad Ali, Jahanuddin or Bibhuti Bhusan Sarkar wanted to distinguish the case of Nazmul Haque or bring his case to censure on the ground of religion or community but all that is alleged to be preached was that it was the Congress Government and the Congress Party which were responsible for doing certain acts and for passing legislations which were prejudicial to Muslim interest or Muslim faith.

The main allegations were that the Praja Socialist Party people indulged in communal propaganda in the sense that they said that Muslims were being humiliated and that the Muslim faith was being insulted because of the enforcing of the Cattle Preservation Act whereby cow slaughter was prohibited. There was further the prospect of the banning of the burial of Muslim dead-bodies and singing of Ramdhun geet was imposed on Muslim students and teachers.

More emphasis is alleged to have been given to the enforcing of the Cattle Preservation Act in 1956 even though the Act was passed in 1950. The other allegations were neither pressed nor accepted. The petitioner''s witnesses themselves have stated that singing of Ramdhun geet was not enforced anywhere as a compulsory measure in Muslim Schools and there was actually no attempt at pas-sing any Act banning burial of Muslim dead bodies.

The bill which came up for consideration before the Parliament fell through or was not allowed to be pressed at all and that happened in the year 1954. The further fact remains that the petitioner could not prove that there was discussion of the above measures by the members of the Praja Socialist Party in all the meetings as given in the petition in paragraph 10 of the same.

Let us see how far the propaganda on the basis of the Cattle Preservation Act is substantiated that being the pivot of attack primarily. Other allegations only subsequently came. Amjad Ali himself admitted that there was discussion of the Cattle Preservation Act in certain meetings and the hand-bills Ext. P-l and Ext. P-10 would also sup-port that this subject was a matter of discussion in certain Praja Socialist Party meetings, but can the court on that ground alone hold even if such discussions took place, that it was by itself a corrupt practice unless we can have definite information on the point that the measure was discussed to appeal to religious sentiment or the communal feeling of the Muslims and to gain votes on that ground.

I may refer to one of the latest decisions of the Allahabad High Court reported in AIR 1959 All 264 on this point. That was also an appeal from the decision of an Election Tribunal where the election was challenged on similar grounds as in the case. The learned Judges while discussing the alleged incriminating hand bill, found that there was no appeal to the members of any particular community. In the words of the learned Judges:

It is an appeal to the public in general for the action or the supposed action of the political party in power. Even if the appeal is to the members of a particular community, it does not necessarily fall within the mischief of sub-section (3) of Section 123 of the Act, unless the appeal is made on the ground of religion or community.

Suppose the action of the political party in power is criticised on the ground that it has passed improper legislation interfering with the Hindu usages and customs in the matter of marriage and divorce and that the persons professing Hindu faith should, therefore, vote against the candidate set up by such a party. This would be an appeal to the members professing a particular religion, but it ''is not an appeal on the ground of religion.

There may be cases where, in the garb of criticism of the acts or supposed acts of a political party, an attempt is made to make an appeal on the ground of religion. If such is found to be the case, the appeal may be held to fall within the mischief of Section 123(3) of the Act." AIR 1959 All, 264 at p. 270.

In the Allahabad case there was a hand bill and the nature of the statements could be definitely ascertained from the document itself, taking it as a whole, but in this case the difficulty is that we do not get an accurate version of what had happened and what were the actual words used by the speakers. Therefore it would be far more difficult to assess the correct value of the statements made by the members of the Praja Socialist Party even while discussing those measures, which were supposed to be prejudicial to the interest of the Muslims.''

We have already discussed and held that the principle of criminal trial applies to the Election cases where corrupt practice is alleged and therefore in case of doubt the benefit should go to the person who is alleged to be guilty of corrupt practice and in the circumstances of the present case also we must hold that the charges of corrupt practice for communal propaganda covered by Section 123(3) of the Representation of the People Act is not made out beyond reasonable doubt, in any case.

In this connection the learned Member of the Tribunal had referred to the case of Sardul Singh v. Hukam Singh, 6 E.L.R. 316 which he quotes with approval. The distinction however, is that in that case all the statements were published in newspapers and the definite statements could be obtained for the purpose of judging as to whether those statements amounted to an appeal to vote or refrain from voting on the ground of religion, caste or community.

Here in this case no such definite statements were obtained or produced before the court and even in the petition, the source of information of the prejudicial statement alleged to be made is not disclosed. In the circumstances of the case we cannot say with any amount of definiteness as to whether the policy of the Congress in the matter of passing or enforcing the prejudicial legislation alone was criticised or thereby an attempt was made to foster and encourage communal sentiments or dissensions between the parties, which the learned member of the Tribunal takes for granted because the candidate in question was a Muslim.

The rival candidate was also a Muslim and he too would have surely stood for the Muslim cause. On the matters on the record however, we are not all satisfied that there were sufficient materials for coming to a finding that there was systematic appeal on ground of religion or community by the defendants on the plea of discussing this legislation.

There is very little support for the petitioner''s case that there was appeal to communal feeling on the ground of Ramdhun geet or of prospective legislation banning burial of Muslim dead bodies. The harassment or mischief in Marisbari alleged to be referred to frequently by Jahanuddin has nowhere been alleged to be fully discussed in any of the meetings and we do not believe in any systematic appeal on that ground-except that it might be referred to as a bad policy on the part of the State Government to as a bad policy on the part of the State Government run by the Congress Party.

The learned Member of the Tribunal both parties were trying; to put their cases sky high so far as oral evidence was concerned and he on assessment of the evidence, mostly documentary and circumstantial as he puts it came to his findings for which we do not find sufficient support from the, materials on record which I have scrutinised above. If I might respectfully point out the error committed by the Member of the Tribunal was possibly due to the fact that he seemed to be under an impression that it is for the defendant or defendants to prove their innocence and that Amjad Ali''s conduct not having been consistent, it was incumbent on the court to presume that since matters by which communal sentiments; might be roused Were discussed in the meetings, it must have formed a deliberate plank for systematic appeal on the ground of religion to gain his personal ends in the election-and thereby commit the corrupt practice alleged.

No such hypothetical presumption is valid in law --and what one "could have done" is not the thing to be enquired into, but whether ho actually did should have been the subject of inquiry. The learned Member of the Tribunal failed to evaluate the evidence correctly and as a result arrived at conclusions which we do not consider to be reasonable. It is both on points of fact as well as on principles of law that we find that the petitioner has failed to make out a case of corrupt practice as alleged in the petition and therefore the appeal by Amjad Ali is bound to succeed, which we direct accordingly.

We need not discuss separately about evidence against Bibhuti Bhusan Sarkar and Jahanuddin Ahmed. I have already pointed out that they had joined Amjad Ali in the matter of election campaign and were prominent members of the Praja Socialist'' Party. There are not sufficient materials even against them to establish communal propaganda. It is not that they preached on communal lines or systematically appealed to the communal feelings of the Muslims with a view to gain their objective.

I have already referred to the election Case against Jahanuddin, it being dismissed and on the materials before us which we have already discussed, it cannot be pointed out with any amount of definite-ness that these persons had indulged in communal propaganda in the lines suggested by the petitioner and his witnesses. The result is that both these appeals are allowed and the judgment of the learned Tribunal appealed from, is sot aside. The petition is dismissed with cost. Hearing fee is fixed at Rs. 400/- for appeal No. 38 and Rs. 100/.-for appeal No. 39.

Sinha C. J. :

I agree.