Anand Sharma vs Daulat Ram Chauhan

T.R. Handa, J.—This election petition calling in question the election of the Respondent Shri Daulat Ram Chauhan to the Himachal Pradesh State Legislative Assembly from 8-Shimla Assembly Constituency, has been filed u/s 80/81 read with Section 100 of the Representation of People Act, 1951 (hereinafter referred to as �the Act�) by Shri Anand Sharma, one of the defeated candidates.

The election was held as per the following schedule:

(a) Last date fixed for filing of nomina- tion papers .. 24-4-1982 (b) Date fixed for scrutiny of nomina- tion papers .. 26-4-1982 (c) Last date fixed for withdrawal of candidature .. 28-4-1982 (d) Date of poll .. 19-5-1982 (e) Date of election results .. 21-5-1982

After the last date fixed for the withdrawal of candidature, there were left in the arena as many as 24 candidates to contest the aforesaid election from Shimla Assembly Constituency. They included the present Petitioner who had been sponsored by the Congress (I) party and the present Respondent who was the sitting Member from this Constituency and was the nominee of the Bhartiya Janata Party. The main contest at the election was in fact between these two candidates only as each of the remaining 22 candidates had forfeited his security. Shri Daulat Ram Chauhan Respondent secured 12314 votes and was declared successful. Shri Anand Sharma Petitioner, trailing immediately behind, polled 9357 votes. The remaining two candidates in between themselves could secure 3260 votes. In substance the case of the Petitioner, as stated in the petition is that the Respondent, his election agent and other persons with the consent of the Respondent indulged in corrupt practices as defined in Section 123(4) of the Act and the election of the Respondent is, therefore, void and needs to be declared as such u/s 100(1)(b) of the Act. The further case of the Petitioner as initially pleaded was that the result of the election in so far as it concerns the Respondent, had been materially affected by corrupt practices of the like nature committed in the interest of the Respondent by his agents other than the election agent and for this reason the election of the Respondent deserved to be declared void also u/s 100(1)(d)(ii) of the Act.

Full particulars of the corrupt practices alleged to have been committed by the Respondent, his election agent and other persons with the consent of the Respondent as also by the agents other than the election agent of the Respondent, find mention in paras 10 to 19 of the petition. Paras 5 to 9 of the petition furnish the background in which such corrupt practices are alleged to have been committed. I do not consider it necessary to give an account of such particulars of the corrupt practices at this stage as it would be much more convenient tto mention about the relevant particulars of each of the alleged corrupt practice when the same is taken up for discussion under the relevant issues framed in respect thereof. For the present it would suffice to mention that as per allegations made in the petition, the Respondent, his election agent and other persons with the consent of the Respondent made publication of certain statements of fact in relation to the personal character and conduct of the Petitioner, which statements were totally false to the very knowledge and belief of the Respondent and which were reasonably calculated to prejudice the prospects of the Petitioner''s election. Similar corrupt practices are alleged to have been committed in the interest of the Respondent, by his other agents and as a result thereof the result of the election in so far as it concerned the Respondent, had been materially affected.

Stated tersely, the plea of the Respondent was that neither he nor his election agent nor any other person with his consent had made publication of any statement of fact which was false or which related to the personal character or conduct of the Petitioner. He also denied if any of his agents other than his election agent had in his interest, made publication of any such statement. In other words, the Respondent made a complete denial if he had either himself or through any of his agents committed any corrupt practice of the type alleged in the petition. A detailed reference to the manner in which the allegations of corrupt practices were denied by the Respondent in his pleadings, would be made at the appropriate stage in a later part of this judgment while discussing the alleged corrupt practices.

The pleadings of the parties gave rise to the following issues:

Whether the Respondent or his election agent or any other person with the consent of the Respondent or his election agent made publication of the posters found at Annexure ''D'' Annexure D-2 and Annexure ''E'' to the election petition?

Whether any of the agents of the Respondent made publication of the posters referred to in issue No. 1 or any of them as alleged in paras 11 to 13 of the petition?

Whether the statements made in posters referred to above are false and the Respondent believed the same to be false or did not believe the same to be true?

Whether the publication of the posters aforesaid or any of them constitutes a corrupt practice within the meaning of Section 123(4) of the Act?

4-A. Whether the Respondent and or his election agent repeated the contents of posters annexures D, D-2 and E while addressing a public meeting at Ladies Park at 2 P.M. on 17-5-1982 as mentioned in para 15 of the petition?

Whether the publication of the posters aforesaid affected materially the result of the election in so far as the Respondent is concerned?

Whether the Press statement found at Annexure F-1 and the Press reports found at Annexures F-2 and F-3 were issued by Dr. R.N. Paul with the consent of the Respondent and the statements made therein were false and the Respondent believed the same to be false or did not believe the same to be true?

Whether the Press statements referred to in issue No. 6 above were issued by Dr. R.N. Paul in his capacity as agent of the Respondent and in the interest of the Respondent and the Respondent believed the same to be false or to be not true?

Whether the publication of the Press statement and Press reports referred to issue No. 6 above constitutes a corrupt practice within the meaning of Section 123(4) of the Act?

If issue No. 8 is proved, whether the issue of the statements aforesaid affected materially the result of the election in so far as the Respondent is concerned?

Whether the Respondent and/or his election agent or any other person with the consent of the Respondent or his election agent made publication of cyclostyled copies of the letter found at Annexure ''G'' to the petition?

Whether the contents of the letter found at Annexure ''G'' are false and the Respondent, believed the same to be false or did not believe the same to be true?

If issue No. H is proved, whether the publication of such copies amounts to corrupt practice within the meaning of Section 123(4) of the Act?

Whether the agents of the Respondent and in the interest of the Respondent made publication of the letter found at Annexure ''G''?

If issue No. 13 is proved, whether the publication of the aforesaid letter affected materially the result of the election in so far as the Respondent is concerned?

Relief.

In passing, it may be mentioned that in the course of the hearing of this election petition, an application was moved on behalf of the Respondent alleging that the election Petitioner had in his petition made allegations of corrupt practices against Sarvshri Kali Das Batish and Puran Chand Sood both of whom were candidates at the election and who had not been impleaded as parties to the petition. It was prayed that in view of this, the election petition was liable for dismissal u/s 82(b) read with Section 86 of the Act. On the said application of the Respondent the following additional issue was subsequently framed:

Whether any allegations of corrupt practices have been made in the petition against Sarvshri Kali Das Batish and Puran Chand Sood who were admittedly candidates at the election. If so, to what effect?

This additional issue, however, was not later pressed on behalf of the Respondent. Sarvshri K.S. Patyal and S.S. Mittal the learned Counsel appearing for the Respondent both conceded that no allegation of corrupt practice can be said to have been made in any part of the petition either against Shri Kali Das Batish or against Shri Puran Chand Sood both of whom were admittedly candidates at the election. This additional issue is accordingly decided against the Respondent.

The 14 issues reproduced above can be conveniently split in two main groups. In the first group would fall such of the issues as relate to the corrupt practices falling within the purview of Section 100(1)(b) of the Act and in the second group would fall such of the issues which relate to the corrupt practices falling within the purview of Section 100(1)(d)(ii) of the Act. Issues Nos. 2, 5, 7, 9, 13 and 14 would fall in the second group while the rest of the issues would fall in the first group. In so far as the second group is concerned, Shri M.L. Sharma, the learned Counsel for the Petitioner in the course of his arguments made a statement at the bar on 10-12-1982 that he did not want to invoke the provisions of Section 100(1)(d)(ii) of the Act and that the challenge of the election Petitioner against the election of the Respondent was restricted to only such of the grounds as fall within the ambit of Section 100(1)(b) of the Act. In view of this statement made by the learned Counsel, all these issues falling in the second group have become redundant and are left as such.

Coming next to the issues falling in the first group, it would be convenient for the purposes of discussion to divide them further into three sub-groups. The first of these sub-groups would comprise of issues Nos. 1, 3, 4 and 4-A all of which per-tain to the publication of the posters found at Annexures ''D'' ''D-2'' and ''E'' to the election petition. The second sub-group would comprise of issues Nos. 6 and 8 which pertain to the publication of the Press statement and Press reports found at Annexures ''F-1'', ''F-2'' and ''F-3'' to the election petition. The third sub-group will include issues Nos. 10, 11 and 12 all of which pertain to the publication of the poster found at Annexure ''G'' to the election petition.

SUB GROUP-I

Issues 1, 3, 4 and 4-A

I would first take for discussion the first of these three sub-groups which comprises of issues Nos. 1, 3, 4 and 4-A. Before I proceed further I would like to make a brief reference to the relevant particulars of the corrupt practice covered by these issues as given in the petition as also the facts and circumstances which, according to the election Petitioner, formed the background for the commission of this corrupt practice.

The facts and circumstances which are alleged to supply the background for the commission of this alleged corrupt practice are stated in paras 5 to 9 of the election petition. It is alleged that the election campaign of the Petitioner was proceeding on very successfully till 16-5-1982 by which date several top leaders of the Congress (I) Party had addressed various public meetings in support of the election prospects of the Petitioner. One of such public meetings was addressed by Smt. Indira Gandhi, the President of the Congress Party and the Prime Minister of India on 4-5-1982 at Ladies Park Shimla. Several thousands of electorate from this constituency had attended this public meeting. On 7th and 8th of May, 1982 Shri Gulam Nabi Azad, Member of Parliament and the President of the Indian Youth Congress (I) also addressed several meetings in support of the Petitioner''s election in various parts of Shimla town. The last of such meetings was held at Ladies Park Shimla in the evening of 16-5-1982. It was inter alia addressed by Sarvshri Rajiv Gandhi, Member of Parliament and N.D. Tiwari, Union Minister as also by the Petitioner. The Petitioner had also been going from door to door as a part of his election campaign to seek the support of the electorate. This organized election campaign conducted in support of the Petitioner demoralised the Respondent and his supporters to such an extent that they thought of devising illegitimate and nefarious means to bring down the image of the Petitioner in the public eye and to alienate the sympathy of the electorate from the Petitioner to the Respondent.

With the aforesaid end in view and in pursuance of a preplanned scheme, a large number of workers of the Bhartiya Janata Party led by the Respondent Shri Daulat Ram Chauhan collected outside the office of the Congress (I) Party on The Mall, Shimla at about 7 P.M. on 16-5-1982. Sarvshri Rajiv Gandhi, N.D. Tiwari and the Petitioner had come to this office immediately after the conclusion of the public meeting referred to above. Soon after, these three persons, however, left that place. As soon as these persons, namely, Sarvshri Rajiv Gandhi, N.D. Tiwari and the Petitioner left the premises of the Congress (I) office the workers of the Bhartiya Janata Party led by the Respondent resorted to hooliganism and started raising anti-Congress slogans. In addition they started pelting stones on the Congress (I) office. As a result thereof several window panes of the office building were broken. The District authorities including the District Magistrate and the Station House Officer of the concerned police station reached the spot and controlled the situation.

A report with respect to this occurrence was lodged with the Station House Officer of the police station on the spot by the President, District Congress Committee, Shimla and on the basis thereof a case under Sections 147/149/506/427/323/ 354 I.P.C. was registered with the police station vide First Information Report No. 66, dated 16-5-1982. A copy of this First Information Report was annexed with the election petition and is now found at Ex. PW46/A.

The aforesaid facts and circumstances are alleged to furnish the background of the corrupt practice which is covered by the issues under consideration. Now coming to the relevant particulars of this corrupt practice, the case for the Petitioner is that as a counter blast to the report lodged by the President, District Congress Committee, Shimla with the police, a counter report was lodged immediately thereafter with the same police officer on behalf of the Bhartiya Janata Party by its publicity in charge Shri R.N. Pal RW. A case under Sections 147/323/506/149/109 I.P.C. was registered on the basis of this report vide First Information Report No. 67 of 1982. A copy of this First Information Report is found at Ex. PW.46/B. In his report Shri R.N. Pal had inter alia alleged: "Today at 6.50 P.M. at the instigation of Shri Rajiv Gandhi M.P. and Shri Anand Sharma Cong. (I) candidate from Shimla a few persons from Delhi and other parts of the country including Shimla (Youth Congress people) whom Shri Sunil Upadhaya and Shri Bhagat Singh and others recognise stabbed Shri Deepak Kumar, Anil Sood and threatened Shri Sunil Upadhaya at a pistol point after a meeting addressed by Shri Rajiv Gandhi at Ladies Park". According to the Petitioner it was an absolutely false version which had been deliberately concocted in order to malign the image of the Petitioner as also the Congress (I) Party. In fact neither Deepak Kumar nor Anil Sood was stabbed nor any other person was attacked or injured. The workers of the Bhartiya Janata Party, however, administered fake bandages on the persons of Deepak Kumar and Anil Sood and got them admitted in the hoipital. These workers of the Bhartiya Janata Party then gave out to the public that Sarvshri Deepak Kumar and Anil Sood had been stabbed by the workers and hired Goondas of the Congress (I) Party. Press reports to that effect also appeared in the paper on the following morning. The Medical Superintendent of the Snowdon Hospital issued a medical bulletin on the next day, that is, 17-5-1982 a copy of which is found at Annexure ''C'' which shows that both these persons were found to have only simple injuries and that no abnormality was found with either of them on their physical examination.

In order to give still wider publicity to the aforesaid false version, the Respondent, his election agent and other workers with his consent got printed on 17-5-1982 the pamphlets annexed with the petition as Annexures ''D'' and ''D-2'' (these pamphlets have since been exhibited on the record as Ex.PW. 10/5 and Ex. PW.10/4 respectively) and distributed the same in public. Copies of such posters were also displayed at various parts of the town.

The pamphlet, Annexure ''D'', which has since been exhibited as Ex. PW.10/5 is a printed poster which contains three photographs and some printed matter. Two of the photographs depict Sarvshri Deepak Kumar and Anil Sood lying injured in the hospital while the third photograph depicts blood flowing on the road where these persons are alleged to have been stabbed. The printed matter is in Hindi and when translated into English it reads like this:

The hired gundas of Congress made a murderous assault on Bhartiya Janata Party workers at 7 P.M. on 16th May at the Mall near telegraph office. As a result of our workers were seriously injured and removed to hospital drenched in blood and in precarious condition.

The tell-tale photographs of the incident are before you.

Photograph Photograph Photograph Bhartendu Printing Bhartiya Janata Party Shimla. Press Shimla.

The other poster annexure ''D-2'' which has been exhibited as Ex. PW. 10/4 is also in Hindi. When translated into English it reads like this:

Murderous assault on Bhartiya Janata Party workers by the Congressmen....

Two assailants arrested in Congress (I) office Shimla.

The Congressmen have become perplexed due to their ensuing defeat in Shimla constituency. Yesterday on 16th May evening they attacked many Bhartiya Janata Party workers with hockey sticks and knives. The eminent among them Deepak Kumar and Anil Sood have been seriously injured and admitted in Snowdon Hospital and are still in serious condition one worker was threatened by brandishing a pistol. This vandalism is being done by the Congressmen since long.

Dharna was staged in front of Congress (I) office. Police came in the action after a hour, two persons were arrested from inside the Congress office. Other two were arrested while running towards the Western Command. We thank the Bhartiya Janata Party sympathisers who while keeping self control helped in the arrest of the Goondas. We request you to have patience and remain calm in the future.

Applicant Bhartiya Janata Party Shimla (H.P.)

SYMBOL (Kamal Ka Phool) Bhartendu Press, Shimla.

Another pamphlet found at Annexure ''E'' was published by one Shri B. Lal a worker of the Respondent who did so both with the consent as also the knowledge of the Respondent. This pamphlet is also in Hindi and its English translation is as follows:

"THE BLOOD IS DEMANDING JUSTICE....

Sir,

Hardly two years have elapsed when the blood was shed on the pious land of Palampur and Sundernagar in police firing ordered by the Ram Lal Government and THE DROPS OF MARTYRS BLOOD HAVE NOT EVEN DRIED AS YET.

These persons who, in the name of Democracy kicked away the demand for Judicial Enquiry, have now come to the peoples'' court with veiled faces for begging the votes. It is the time that the veils should be removed from their faces.

Their hands are wet with the blood of the martyrs.

These are the people who have been retrenching the workers demanding higher wages. It is because of their deeds that the work-charged workers and the employees of Judiciary have been rendered jobless and compelled to go from pillar to post. These are the cheats who have refused to implement the written agreement. Today we have brought these culprits to the People''s court.

On the top of it, the hired people of the Congress have waged a deadly attack on the workers of the Bhartiya Janata Party on 16th May at 7 P.M. on The Mall Road near Telegraph office. Consequently, our workers have been seriously injured and those besmeared with blood were lifted to the Hospital in the state of unconsciousness. They regained their consciousness the next day. They are still under the medical treatment in the Snowdon Hospital.

They changed their party, they changed their hearts and they sold their faith and they sold humanity.

Punish them and exercise your pious franchise according to the Constitution. Vote against all the companions of Ram Lal and vote to power the candidates of that very opposition party which has been supporting us till today and which has declared in its manifest to conduct a Judicial Enquiry, increase daily wages to bring them on a par with those prevalent in Punjab and given an undertaking to reinstate the work-charged workers and employees of Judiciary.

Swear by every drop of the blood of immortal martyrs.

Reject the caucus of murderers, cheats and corrupt people so that any one may not cheat in future.

B. LAL, President Shimla Nagar Uthaan Mandal.

All these three pamphlets were alleged to have been printed at the Bhartendu Printing Press Shimla of which Shri Rajinder Pal Sood is the proprietor. This Rajinder Pal Sood was stated to be the Counting Agent of the Respondent at the election. The names of the persons who were responsible for the printing and distribution of these posters as also the several persons to whom these posters were distributed were named in para No. 13 of the petition.

It was further alleged in the petition that the allegations made in the posters Annexures ''D'', ''D-2'' and ''E'' were later repeated by the Respondent, his election agent and other persons with his consent in a public meeting which was arranged by the Bhartiya Janata Party and was held at Ladies Park on 17-5-1982.

With respect to the incident resulting in the mob agitation in front of the Congress (I) office on The Mall Shimla in the evening of 16-5-1982 the stand taken by the Respondent in his reply to the petition was like this. Two of the workers of the Bhartiya Janata Party had been stabbed by some ruffians owing allegiance to the Congress (I) Party in front of the Telegraph Office. After the assault, the assailants took shelter in the office of the Congress (I). It was on that account that the Bhartiya Janata Party workers held demonstration outside the Congress (I) office. It was only after such demonstration that the two culprits were arrested from the Congress (I) office. The Respondent admitted that Shri R.N. Pal who was the publicity in charge of the Bhartiya Janata Party had lodged the report with the police with respect to that incident as alleged in the election petition. With respect to the medical bulletin which according to the Petitioner had been issued by the Medical Superintendent of the Snowdon Hospital on the morning of 17-5-1982, the plea of the Respondent was that the same was prepared and issued by the Deputy Commissioner to advance the prospects of the Petitioner''s election and not by the medical authorities.

With respect to the publication of the posters Annexures ''D'', ''D-2'' and ''E'' the Respondent pleaded that it was all a brain wave of the Petitioner and that he was in no manner connected with the printing or publication of these posters. His alternative plea was that these posters nowhere attacked the personal character or conduct of the Petitioner and the publication thereof would, therefore, not constitute a corrupt practice within the meaning of Section 123(4) of the Act. The Respondent further denied if he or any other person repeated the allegations made in the posters aforesaid while addressing the public meeting on 17-5-1982.

Before I proceed to discuss the issues falling in this sub-group I may refer to the law applicable in the case which is found in Sections 100(1)(b) and 123(4) of the Act. It would be expedient to extract both these provisions for the sake of ready reference:

Grounds for declaring election to be void.-(1) Subject to the provisions of Sub-section (2) if the High Court is of opinion.-

(a) XX XX XX XX XX (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or

XX XX XX XX XX XX XX XX

the High Court shall declare the election of the returned candidate to be void.

Corrupt Practice.-The following shall be deemed to be corrupt practices for the purpose of this Act:

xx xx xx xx xx xx xx xx xx xx xx xx (4) The publication by a canididate or his agent or by any other person, with the consent of a candidate or his election 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 prospects of that candidate''s election.

On a proper analysis of the above provisions it would be clear that under this sub-group of issues the election Petitioner is required to establish the following ingredients:

(i) Publication of the posters Annexures ''D'', ''D-2'' and ''E'' by the Respondent, his election agent or by any other person with the consent of the Respondent or his election agent (Issue No. 1).

(ii) The repeating of the allegations made in the posters aforesaid by Respondent or some other person with his consent at the public meeting held on 17-5-1982 at Ladies Park Shimla (Issue No. 4-A).

(iii) That these posters contained some statement of fact which was false and which the Respondent believed to be false or did not believe to be true (Issue No.3).

(iv) That the false statement contained in these posters was in relation to the personal character or conduct of the Petitioner and it was reasonably calculated to prejudice the prospects of the Petitioner at the election.

In so far as the first ingredient is concerned it is not disputed that all the three posters found at Annexures ''D'', ''D-2'' and ''E'' and which are now exhibited as Ex. PW 10/5, Ex. PW. 10/4 and Ex. PW.10/6 respectvely, were printed at the Bhartendu Press. P.W 10 Shri Rajinder Pal Sood is the proprietor of this Press. He is admittedly a worker of the Bhartiya Janata Party and had been appointed as a Counting Agent for the Respondent at the election. The first two of these posters were printed at the instance of the Bhartiya Janata Party through its publicity in charge Shri Kali Das Batish RW. The third poster Ex. PW. 10/6 was printed at the instance of Shri Madan Lal who also as per admission of Shri Krishan Chand Sharma RW. 2, the election agent of the Respondent was a member of the Bhartiya Janata Party. A large volume of evidence has been let in on behalf of the Petitioner to prove that all these posters were printed and published by the Respondent, his election agent and other persons with the consent of the Respondent or his election agent. I need not refer to such evidence as this fact is no more in dispute. The initial stand of the Respondent as taken in his reply to the election petition that he was in no manner connected with the printing and publication of these posters is no more being adhered to Shri Krishan Chand Sharma, the election agent of the Respondent appearing as RW.2 owned complete responsibility for the printing and publication of the posters Ex. PW.10/5 and Ex. PW 10/4. In view of the voluminous evidence adduced from the side of the Petitioner to show that the poster Ex.PW. 10/6 was distributed along with the posters Ex.PW.10/5 and Ex.PW.10/4 by the same set of workers of the Bhartiya Janata Party and the fact that the poster Ex. PW.10/6 was also printed at the same press owned by PW. Rajinder Pal Sood and at the instance of Shri Madan Lal, a member of the Bhartiya Janata Party, the learned Counsel for the Respondent did not contest this first issue which, therefore, must betaken proved.

With respect to the allegation that the Respondent and some other persons repeated the allegations made in the posters Ex. PW.10/4 to Ex. PW.10/6 while addressing a public meeting at Ladies Park Shimla on 17-5-1982 and which is the subject matter of issue No. 4-A, there is no reliable evidence to support this allegation. Only Shree witnesses were examined on this point on behalf of the Petitioner and they are Sarvshri Amar Singh (PW-22), Amrit Chopra (PW.23) and Visheshwar Sharma (PW.35). PW.22 Shri Amar Singh claims to have attended the meeting of the Bhartiya Janata Party held in Ladies Park Shimla at about 2.15 P.M. on 17-5-1982. This meeting as per this witness was addressed by Sarvshri Krishan Chand Sharma and Daulat Ram Chauhan. He next stated that it was stressed in the addresses of these persons that a candidate like Shri Anand Sharma at whose instance the workers of the Bhartiya Janata Party had been stabbed did not deserve public votes. He also stated that the symbol of ''HAND'' which was allotted to the Petitioner was described as a ''BLOODY HAND'' in these addresses. The next witness Shri Amrit Chopra (PW. 23) who also claims to have amended this meeting was, however, not in a position to support the version given by Shri Amar Singh PW. 22. Shri Amrit Chopra PW. 23 could not remember if the Respondent Shri Daulat Ram Chauhan had made any particular reference with respect to the conduct of Shri Anand Sharma. He did not refer to any other speaker in the meeting. This statement of Shri Amrit Chopra clearly rules out the possibility of any direct attack having been made on the personal character of the Petitioner by any of the speakers in that meeting. The last witness on the subject is PW. 35 Shri Visheshwar Sharma who claims to have heard the address given by Shri Krishan Chand Sharma in that meeting. According to him Shri Krishan Chand Sharma spoke that the Congress candidate had hired Goondas and got stabbed the workers of the Bhartiya Janata Party. According to this witness it was further stated by Shri Krishan Chand Sharma in that meeting that the victims were in a very serious condition lying in the hospital and there was a likelihood of their dying any moment. There is thus no consistency in the versions of these three P.Ws all of whom deposed about the same incident. Both Shri Daulat Ram Chauhan as also Shri Krishan Chand Sharma appeared in the witness box and denied having made any such speeches in the meeting held on 17-5-1982. In view of the evidence discussed above it is just not possible to conclude if the statements made in the posters annexures ''D'', ''D-2'' and ''E'' were repeated by any of the speakers who addressed the meeting on 17-5-1982. Issue No. 4-A is thus found against the Petitioner.

Now coming to the next ingredient, the case for the Petitioner is that all these posters contained a statement of fact which was false. The objectionable statement is alleged to be in relation to the incident of 16-5-1982. A bare perusal of these posters would show that while relating this incident the posters state that the hired Goondas of Congress Party made a murderous assault on the workers of the Bhartiya Janata Paity and stabbed or caused serious injuries to Sarvshri Deepak Kumar and Anil Sood who were lying in the Snowdon Hospital where they had been admitted in a serious condition. This is obviously a statement of fact. That this statement is false, stands amply proved from the evidence of Dr. (Mrs.) C.P. Pushpawati (PW.2) and Dr. Sanjeev Kumar (PW.3), both of the Snowdon Hospital Shimla, and who had examined the alleged injured persons soon after the occurrence on 16-5-1982. As per Dr. (Mrs.) Pushpawati the only injuries found on the person of Deepak Kumar at the time of his admission on 16-5-1982 were as follows:

Two linear abrasions (scratches 1" and 1/2" in length respectively and 1/4" apart from each other present over the right cheak just below the right zygomatic prominence and they were red in colour. Ooz of the serun was present.

Dried ooz nose bleeding present at the nose and there was no active bleeding from the nose. No other external injury over the body was found on the person of Shri Deepak Kumar Sharma.

Dr. Sanjeev Kumar (PW.3) had examined both Deepak Sharma as also Anil Sood. According to him no injury with any sharp edged weapon was found on the person of either of these two persons. In the, case of Anil Sood he found only two parallel scratch marks on his abdomen. X-Ray of both these persons was also conducted but no fracture was found. No evidence to the contrary was adduced on behalf of the Respondent to show if either Deepak Sharma or Anil Sood was inflicted any serious injury in the evening of 16-5-1982 as alleged in these posters. The Respondent could have done so easily by producing the persons alleged to have been injured, their relations or friends who had the occasion to see them in the injured state, the persons who actually saw these persons being attacked or the Doctor who saw and treated such alleged stab injuries. The Respondent, however, did not care to produce any of such persons. The Respondent did in the first instance cited both Deepak Kumar and Anil Sood as his witnesses and undertook to examine them at his own responsibility but later on changed his mind without assigning any reason. This only shows that no person from any of the above categories and who was supposed to be in the know of the true facts was in a position to support the correctness of the impugned statements published in the posters. In this connection it may further be observed that the photographer who took the photograps of Deepak Kumar and Anil Sood and of the blood spot appearing in the poster Ex.PW. 10/5 was equally an important witness. He must have seen both the, persons alleged to have been injured as also the spot of the alleged occurrence. He was certainly in a position to depose if either of these two persons had any stab injury or if the red substance shown in the picture was blood or some other liquid. This photographer too has not been examined. Shri Krishan Chand Sharma father of Deepak Kumar and who is also the election agent of the Respondent claim that he visited his son Deepak Kumar in the Snowdon Hospital. He, however, never stated if Deepak Kumar had any stab or other injury. The Respondent also while appearing as his own witness did not care to repeat the averments made in his reply that Sarvshri Deepak Kumar and Anil Sood had been stabbed. In these circumstances there is no alternative but to accept the evidence of Dr. (Mrs.) C.P. Pushpawati (PW.2) and Dr. Sanjeev Kumar (PW.3) that except for minor scratches no other injury was found on the person either of Deepak Kumar or of Anil Sood. In other words the statement of fact given in these posters that a murderous attack had been made by the Congress workers and Deepak Kumar and Anil Sood had been stabbed and (admitted in the hospital in precarious condition was absolutely false.

The question that next arises is whether the Respondent believed the aforesaid statement given in the posters with respect to the attack on Deepak Kumar and Anil Sood to be false or did not believe the same to be true. In his reply to the election petition, the Respondent Shri Daulat Ram Chauhan had made a positive assertion that as per facts asserted by him, two workers of the Bhartiya Janata Party namely, Deepak Kumar and Anil Sood had been stabbed by some ruffians owing allegiance to the Congress Party. While in the witness box, however, the Respondent considered it convenient to observe complete silence on this subject. It finds mention in the evidence of either side that the Respondent was present in the mob that had collected in front of the office of the Congrees (I) Party in the evening of 16-5-1982 when the demand for the arrest of the alleged assailants of Deepak Kumar and Anil Sood was being made. Both Deepak Kumar and Anil Sood were as per Respondent''s own case workers of the Bhartiya Janata Party. Not only that one of them, namely Deepak Kumar is the son of Shri Krishan Chand Sharma who was the election agent of the Respondent and also the President of the Bhartiya Janata Party for the district of Shimla. In these circumstances keeping in view the normal conduct of human beings, it looks only legitimate to conclude that Shri Daulat Ram Chauhan Respondent must have asserted for himself the nature of injuries, if any, suffered by Deepak Kumar and Anil Sood. His complete silence on this point in the witness box shows that he had either received no information with respect to the attack on Deepak Kumar and Anil Sood or he did not believe that information to be true and in any case on verification he had found such information to be false. As already stated Shri Krishan Chand Sharma, the election agent of the Respondent had visited Deepak Kumar in Snowdon Hospital. He too preferred to keep mum about the nature of the injuries suffered by Deepak Kumar. This also shows that to his knowledge no injury of the type alleged in the impugned statement appearing in the posters Ex.PW.10/4 to Ex.PW.10/6 Was suffered by Deepak Kumar or even by Anil Sood. In these circumstances it is safe to conclude that both Shri Daulat Ram Chauhan Respondent as also bis election agent Shri Krishan Chand Sharma had direct knowledge of the fact that no stab injury was inflicted either on the person of Deepak Kumar or on" the person of Anil Sood and the impugned statement made in the aforesaid posters was false. This would lead to the further conclusion that both of them believed that the impugned statement was false and not true. Issue No. 3 is, therefore, also found in favour of the Petitioner.

The next point that falls for consideration and which is really crucial is whether the impugned false statement was made in relation to the personal character or conduct of the Petitioner within the meaning of the language employed in Section 123(4) of the Act. Naturally the question arises what is the meaning of the expression "personal character or conduct" as used in Section 123(4) of the Act. This question was considered by the Supreme Court in T.K. Gangi Reddy v. M.C. Reddy and Ors. case reported in (1960) 22 E.L.R. 261, where their Lordships observed as under:

The words ''personal character or conduct'' are so clear that they do not require further elucidation or definition. The character of a person may ordinarily be equated with his mental or moral nature. Conduct connotes a person''s actions or behaviour.

These observations were later approved in the case of Sheopat Singh Vs. Ram Pratap, Now in the instant case a bare look on the contents of each of the three posters would suggest that the impugned false statement contained therein does neither directly nor indirectly impute anything to the person of the Petitioner. The statement does levy a charge of ''instigation for the commission of criminal and murderous assault'', but the charge is levied against the general body of the workers of the Congress Party and not against any individual, much less the Petitioner. The name of the Petitioner does not figure anywhere in any of these posters. Even an oblique reference cannot be imputed to his name. The language employed in these posters is clear and it charges the Congress workers as a body and not any individual. This statement is in fact in relation to the activities of a political party, which would not fall within the mischief of Section 123(4) of the Act. It has no reference to the mental or moral nature or to the personal actions or behaviour either of the Petitioner or of any individual. The learned Counsel for the Petitioner urged that these posters should not be read in isolation but in the light of the other circumstances appearing on the record. When so read, proceeds the argument, the conclusion would be irresistible that the Congressmen referred to in the posters are none else but the election Petitioner and Shri Rajiv Gandhi. I am afraid I am not impressed with this argument. These posters are self contained. They were not intended to supplement any other statement of fact nor they purport to do so. They in fact mention nothing which could directly of indirectly impute anything to the person of the Petitioner. In these circumstances I find it difficult to conclude that the impugned false statement was made in relation to the personal character or conduct of the Petitioner.

Whether this impugned false statement was reasonably calculated to prejudice the prospects of the Petitioner''s election is a matter of inference to be drawn from the facts of the case, and keeping in view the circumstances in which this false statement was published as also the time of its publication, it can certainly be said that it was reasonably calculated to prejudice the prospects of the Petitioner''s election. Since, however, this false statement did not relate to the personal character or conduct of the Petitioner, the publication thereof would not constitute a corrupt practice within the meaning of Section 123(4) of the Act. The election of the Respondent, therefore, cannot be declared void on this count u/s 100(1)(b) of the Act.

SUB-GROUP II

Issues 6 and 8

The particulars which are alleged to constitute the corrupt practice forming subject matter of this sub-group may in the first instance be stated. The case for the Petitioner is that as a part of the organized campaign launched by the Respondent and his supporters to bring down the image of the Petitioner in the eyes of the electorate and thereby prejudice the prospects of the Petitioner at the election, Shri R.N. Pal who during the election had worked as publicity in charge of the Bhartiya Janata Party and of the Respondent, had issued a Press statement on 17-5-1982. A copy of this Press statement is found at Annexure ''F-l'' to the petition. It has since been proved on the record as Ex. RW. 10/5. This Press statement, according to the Petitioner, had been issued with the direct consent and knowledge of the Respondent. All statements of facts contained in this Press statement were false to the very knowledge and belief both of the Respondent and his agent Shri R.N. Pal. They related to the personal character and conduct of the Petitioner and were intended to malign him. Press reports found at Annexures ''F-2'' and ''F-3'' with the petition are alleged to have been published in the 18th May, 1982 issue of Punjab Kesari and 19th May, 1982 issue of Indian Express respectively on the strength of the aforesaid Press statement. These issues of the Punjab Kesari and Indian Express have since been proved on the record and marked as X-8 and X-7 respectively.

In short, the allegations are that the Press statement Ex. RW.5/A was issued by Shri R.N. Pal, publicity in charge of the Respondent, it was issued with the consent of the Respondent, it contained statements of facts, the statements were all false, the Respondent and his agent Shri R.N. Pal believed such statements to be false and did not believe the same to be true, such false statements related to the personal character and conduct of the Petitioner and they were designed to prejudice the prospects of the Petitioner at the election.

In his reply to the election petition, the Respondent pleaded his complete ignorance about the issue of any Press statement by Shri R.N. Pal as alleged in the election petition. The Respondent specifically denied if any such Press statement had been issued with his consent or at his instance. He, however, did not deny the allegation that the statements of facts contained in the Press statement and a copy of which had been supplied to him along with the petition, were false and that the Respondent and his agent Shri R.N. Pal believed the same to be false. Nor did the Respondent deny the fact that the Press reports Annexures ''F-2'' and ''F-3'' had been published in the Punjab Kesari and Indian Express respectively on the strength of the aforesaid Press statement.

That the Press statement Ex. RW.5/A was issued under the signatures of Shri R.N. Pal and that Press reports mark X-8 and X-7 were published on the strength thereof in the 18th May issue of Punjab Kesari and 19th May issue of Indian Express respectively, is no longer in dispute. This fact has been expressly admitted by Shri R.N. Pal who was produced by the Respondent as RW.5. It is also admitted on behalf of the Respondent that Shri R.N. Pal was the publicity in charge of the Bhartiya Janata Party during the election and that the publicity of the Respondent was done by the Bhartiya Janata Party. In other words for the purposes of publicity, Shri R.N. Pal acted as the agent of the Respondent.

Now the questions that arise for consideration in this case are:

(i) Whether Shri R.N. Pal issued the Press statement Ex. RW. 5/A with the consent of the Respondent;

(ii) Whether the Press statement Ex. RW. 5/A and the Press reports mark X-7 and X-8 contained any statements of facts which were false;

(iii) Whether the Respondent believed such statements to be false or did not believe the same to be true;

(iv) Whether such false statements were in relation to the personal character or conduct of the Petitioner; and

(v) Whether issue of such false statements was calculated to prejudice the prospects of the Petitioner at the election.

Before I proceed to answer the aforesaid questions, I may refer to the language of the impugned Press statement. It reads:

�BHARTIYA JANATA PARTY HIMACHAL PRADESH

120, Grand Hotel Shimla, the 17th May, 1982.

PRESS RELEASE

Yesterday at 6.50 P.M. when Rajiv Gandhi M.P. had just finished his speech at the Ladies Park Shimla, a few local Congi workers and other Congi workers who have come from Delhi and other parts of the country pounced upon the BJP workers at the Mall. They beat our workers mercilessly, stabbed Deepak Kumar and Anil Kumar. These workers fell unconscious with heavy bleeding. Both of them were immediately removed to the hospital. The condition of these persons is still serious. The doctors have told the police that these persons are not in a position to make statement and should be kept under observation for five days.

Two more persons who are very serious are lying in Hawks Hotel. Shri Sunil Upadhaya was threatened with a pistol. Four others have been injured. This all happened at the instigation of Congress (I) candidate Shri Anand Sharma and Shri Rajiv Gandhi M.P. which is evident from the fact that two persons were identified and arrested from the Congi office on the Mall. Two more who tried to escape were arrested from Western Command area where they tried to take shelter in the Military office. It is unfortunate that Police came to action very late that too after our workers made a point to see that the culprits did not escape from the Congi office. The culprits and their colleagues broke their own office panes with the intention to malign our workers who were peacefully protesting on the road. Many Congi goondas are still staying in Capital and Anurag hotels and have in their possession revolvers and hockeys.

This was a pre-planned thing and we had apprehension of this happening. Shri Daulat Ram Chauhan had already filed a complaint with the D.C and the S.P. Shimla on the 15th May, 1982.

The B.J.P. publicity in charge talked to the D.C. and S.P. on 14-5-82 and 15-5-82 and to the City Magistrate on 15-5-1982 and the morning of 16-5-1982.

It is unfortunate that for the first time in the history of Shimla, the Congress (I) goondas have created violence during the election campaign of Shimla, which has the tradition of cordial relations between the workers of different political parties. This incident is not only a stigma but a writing on the wall for all the citizens of this Pradesh to guess the fate of the City and the Pradesh if Congress (I) candidates are elected.

The fictitious, baseless and mischievous statements made by Congress (I) leaders which also appeared in a section of the Press have been denied by their own leaders. Statements made by Rajiv Gandhi and Ram Lal exposed the mean tactics adopted by their own leaders.

We condemn this hienous act in the strongest words and also warn Congi goondas to desist from such acts. We also request the district authorities to give full protection to our offices, candidate, workers, leaders and their residences. We apprehend more such incidents during the next two days and urge D.C. to provide adequate Police arrangements on the polling booths.

We also strongly condemn the medical bulletin issued by Dr. Brij Mohan which has been obtained under pressure by the Cong. (I) people. It is a political bulletin because (i) it is in the shape of a Press statement (ii) it contradicts the case sheet (iii) the patients are under observation for five days. They have not been allowed by the doctors to make a statement to the police.

Sd/- (Dr. R.N. Pal) Publicity In charge.

This Press statement contains inter alia the following statements:

(a) that on 16-5-1982 at 6.50 P.M. a few local Congress (I) workers and other Congress workers who had come from Delhi and other parts of the country pounced upon the BJP workers at the Mall;

(b) that they (Congress workers) beat the BJP workers mercilessly and stabbed Deepak Kumar and Anil Sood;

(c) that both Deepak Kumar and Anil Sood fell unconscious with heavy bleeding and were in precarious condition;

(d) that Sunil Upadhaya was threatened with a pistol;

(e) that some other persons were also injured.

The Press statement further mentions in no ambiguous terms that what has been stated above at (a) to (e), had all happened at the instigation of Congress (I) candidate Shri Anand Sharma i.e. the election Petitioner and Shri Rajiv Gandhi, M.P. The Press reports mark X-7 and X-8 published on the strength of this Press statement in the Indian Express and Punjab Kesari are also substantially to the same effect.

Now it can admit of no controversy that all the statements referred to above as found contained in the Press statement and Press reports are statements of fact. That these statements were false and the Respondent believed the same to be false or did not believe them to be true, must be now taken as concluded in view of my discussion and findings recorded under sub-group I (issue No. 3). I have already held on the basis of the relevant evidence that except for minor scratches no stab injury or any other serious injury was found on the persons of either Deepak Kumar or Anil Sood and that allegations to that effect contained in posters Ex. PW.10/4 to Ex. PW.10/6 which were similar to the statements mentioned in the Press statement and the Press reports under reference, were false and the Respondent believed the same to be false or did not believe the same as true. In the presence of these findings, the further statement that Deepak Kumar and Anil Sood were mercilessly beaten and stabbed at the instigation of the election Petitioner, as contained in the Press statement and the Press reports, must also be held as false and it must further be held that the Respondent believed the same to be false or did not believe the same to be true.

That the statements of fact referred to above relate to the personal character or conduct of the election Petitioner, is also clear from the language employed in the Press statement and the Press reports. This language in specific terms attributes acts of violence and vandalism to the election Petitioner and charges him of having instigated certain rowdy element to make murderous assaults on the innocent workers of the Bhartiya Janata Party. This is certainly one of the worst kinds of character assassination. I have, therefore, no hesitation in recording that the statements contained in the Press statement and the Press reports as referred to above, are in relation to the character and conduct of the election Petitioner.

The next question is whether Shri R.N. Pal issued the Press statement Ex. RW.5/A with the consent of the Respondent. To prove consent in a case of this nature is more like proving a charge of criminal conspiracy. Just as direct evidence of criminal conspiracy is seldom available, it is futile to expect direct evidence of consent in the instant case. Consent in a case like this can only be proved by circumstantial evidence. There are in this case sufficient circumstances proved on the record, which in my view do lead to the irresistible conclusion that Shri R.N. Pal issued the impugned Press statement with the consent of the Respondent. These circumstances are as under:

(a) Shri R.N. Pal under whose signatures the Press statement was issued, was the publicity in charge of the Bhartiya Janata Party for the State of Himachal Pradesh. This fact stands admitted both in the reply to the election petition as also in the evidence of the Respondent. It is also clear from the statement of the Respondent that he had entrusted all his publicity for the purposes of election to the Bhartiya Janata Party. Shri Pal had thus the implied consent of the Respondent to issue any Press statement and unless the Respondent repudiated any such statement, his consent must be assumed.

(b) The Press statement pertains mainly to the occurrence of 16-5-1982 though it also contains a reference to certain incidents of 14-5-1982 and 15-5-1982. With respect to the incident of 16-5-1982 it is the Respondent''s own case as stated in the reply to the election petition that as per facts ascertained by him two of the workers of the Bhartiya Janata Party, namely, Deepak Kumar and Anil Sood had been stabbed and seriously injured and that it was to demand for the arrest of the culprits who had attacked these workers, that a mob of Bhartiya Janata Party workers had collected outside the office of the Congress (I) Party in the evening of 16-5-1982. Though the Respondent denied in his reply, if he was present on the spot at that time, it is found in the evidence of either side that the Respondent was so present. The Respondent met the Deputy Commissioner on the spot and also went inside the office of the Congress (I) along with the Deputy Commissioner and his party workers including Shri R.N. Pal. The Respondent was still present outside the office of the Congress (I) when Shri R.N. Pal came out from that office after lodging the report Ex. PW.46/B with the police. The Respondent was then pacifying the mob who had collected outside the office of the Congress (I). The Respondent admits in his reply the fact of lodging of the First Information Report by Shri R.N. Pal with respect to the incident of 16-5-1982. In this set of circumstances it is safe to conclude that though the First Information Report Ex. PW.46/B might not have been lodged with the prior approval of the Respondent, he was apprised of its contents immediately after it was lodged. This F.I.R. in clear terms names the election Petitioner as the person at whose instigation the violent act of murderous assault was alleged to have been committed on the persons of Deepak Kumar and Anil Sood by the Congress (I) workers. The Respondent never cared to disown this allegation made in the F.I.R. He must have approved of this act of Shri R.N. Pal otherwise Shri Pal could not have repeated that allegation in the Press statement Ex. RW.5/A which was issued on the next day at about 4 P.M.

(c) Posters Ex. PW.10/4 to Ex.PW.10/6 were printed and published the very next day depicting an absolute false picture of the incident of 16-5-1982, obviously with a view to tarnish the image of the Congress (I) Party directly and its candidate at the election, indirectly. The Respondent in his reply to the election petition tried to completely disown if he was in any manner connected with the printing or publication of these posters. This was obviously a false plea and only reflects guilty conscience of the Respondent. Shri Krishan Chand Sharma, the election agent of the Respondent refused to support this false plea of the Respondent and frankly conceded while in the witness box that if not all the three, two of these posters Ex.PW. 10/4 and Ex. PW.10/5 were published by him and his party. This fact was later conceded on behalf of the Respondent by his counsel in the course of arguments. This only shows that the Respondent was a party to the scheme of giving false publicity to the occurrence of 16-5-1982. The impugned Press statement also appears to be a part of the same scheme. The consent of the Respondent to the issue of this statement, therefore, must be assumed.

(d) Paragraph 3 of the Press statement reads:

This was a pre-planned thing and we had apprehension of this happening. Shri Daulat Ram Chauhan had already filed a complaint with the D.C. and the S.P. Shimla on the 15th May, 1982.

This shows that the apprehension mentioned in the above quoted para was not that of Shri R.N. Pal alone but it was shared by the Respondent and his party as well. It was on account of such apprehension that the Respondent is alleged to have earlier made complaints before the D.C. and S.P. Shimla on 15-5-1982. Shri Pal has not disclosed the source of his information about the apprehension of the Respondent and his filing complaints with the district authorities to which reference has been made in para 3 of the Press statement quoted above. A reasonable inference in these circumstances would be that this information was feeded to Shri Pal by the Respondent only. Naturally it was so feeded for the purposes of issuing the Press statement. The conclusion, therefore, is obvious that the Press statement as a whole was issued after consultation with and obtaining approval of the Respondent since there could be no reason for Shri Pal to have kept the Respondent in the dark.

(e) The Press statement though issued under the signatures of Shri Pal was actually issued in the name of the Bhartiya Janata Party and it further purports to have been issued from the office of that Party. Shri Pal had to sign it because he happened to be the publicity in charge of the Party. It is only logical to conclude that the draft of this Press statement had the prior approval of the important office bearers of the Bhartiya Janata Party including the Respondent who besides being a member of the Executive Committee of his Party was the candidate at the election, and also his election agent Shri Krishan Chand Sharma who was the President of the District Unit of the Bhartiya Janata Party. Otherwise also it is only reasonable to assume that the various workers of the Bhartiya Janata Party were not conducting the election campaign in isolation and that important decisions like issuing of the Press statement of the instant type were taken only after due deliberations and in consultation with the Respondent.

(f) The Respondent was admittedly present at Shimla amongst his supporters and workers both on 16-5-1982 and 17-5-1982. It is only legitimate to conclude that he was consulted before the impugned Press statement was issued just as his approval was obtained for the publication of the posters Ex.P.W. 10/4 and Ex. PW.10/5.

(g) Neither the Respondent nor Shri R.N. Pal while in the witness box cared to deny on oath if this Press statement was issued without the consent or knowledge of the Respondent.

Shri R.N. Pal had thus admittedly the general power and authority in the matter of Respondent''s election publicity and for that reason he can be treated to have acted as the agent of the Respondent for the purposes of Section 123(4) of the Act. As observed by the Supreme Court in the case of Ram Kishan v. Jai Singh reported in XXXVII E.L.R. 217 this general authority was sufficient to establish a kind of prior consent on the part of the Respondent for the issue of the impugned Press statement by Shri R.N. Pal. This is now rendered all the more certain by the presence of the other circumstances as enumerated above. The failure on the part of the Respondent to bring on record any material which could suggest to the contrary is an additional ground which impells me to conclude that the Press statement had been issued with his consent. In this connection the following observations made by the Supreme Court in the case of M. Chenna Reddy v. V.R. Rao and Anr. reported in XL E.L.R. 390 of very apt:

This Court has held in a number of cases that the trial of an election petition on the charge of the commission of a corrupt practice partakes of the nature of a criminal trial in that the finding must be based not on the balance of probabilities but on direct and cogent evidence to support it. In this connection, the inherent difference between the trial of an election petition and a criminal trial may also be noted. At a criminal trial the accused need not lead any evidence and ordinarily he does not do so unless his case is to be established by positive evidence on his side, namely, his insanity 01 his acting in self-defence to protect himself or a plea of alibi to show that he could not have committed the crime with which he was charged. The trial of an election petition on the charge of commission of corrupt practice is somewhat different. More often than not proof of such corrupt practices depends on the oral testimony of witnesses. The candidate charged with such corrupt practice invariably leads evidence to prove his denial; it becomes the duty of the court to weigh the two versions and come to a conclusion as to whether notwithstanding the denial and the evidence in rebuttal, a reasonable person can form the opinion that on the evidence the charge is satisfactorily established. We cannot also lose sight of the fact that quite apart from nature of the charge the trial itself goes on as if the issues in a civil suit were being investigated into. The Petitioner has to give particulars of the corrupt practice with details in default whereof the allegations may be ignored; the Petitioner has to ask for certain declarations and the procedure before the High Court is to be in accordance with that applicable under the CPC to the trial of suits with the aid of the provision of the Indian Evidence Act. Inferences can therefore be drawn against a party who does not call evidence which should be available in support of his version.

The observations quoted above furnish an additional support to my conclusion that the impugned Press statement was issued by Shri R.N. Pal with the consent of the Respondent.

The last question which needs to be answered in connection with the Press statement and the Press reports in question is whether the same were calculated to prejudice the prospects of the Petitioner''s election. Here again keeping in view the language of the Press statement and the time when it was released there could be no possible motive behind issuing such false statement except to alienate the sympathy of the electorate from the Petitioner and to dissuade them from voting for the Petitioner. This conclusion is all the more justified when we bear in mind that the Petitioner was the only candidate at the election who could be considered as a source of potential danger to the Respondent as stands revealed from the number of votes polled at the election. In fact there can be no escape from the conclusion that the impugned Press statement and the Press reports were published only with a view to prejudice the election prospects of the Petitioner.

In view of my above discussion and findings I decide issues Nos. 6 and 8 in favour of the Petitioner and against the Respondent.

SUB-GROUP III

Issues 10, 11 and 12

This sub-group also relates to the commission of a corrupt practice as defined in Section 123(4) of the Act by the Respondent, his election agent and other persons with the consent of the Respondent. This corrupt practice charged against the Respondent comprises of publication of a forged letter (Annexure ''G'' to the petition) containing statements of facts in relation to the personal character and conduct of the election Petitioner, which statements were totally false and malicious to the very knowledge and belief of the Respondent and which were calculated to prejudice the prospects of the Petitioner''s election.

The forged letter annexure ''G'' to the election petition and which had since been admitted into evidence as mark X-1-reads.

WHO KILLED OUR SIKH BROTHER?

To.

Hon''ble Giani Zail Singh Ji, Home Minister, Govt, of India, New Delhi.

Subject: Suspected murder of Shri Kirpal Singh by Anand Sharma, President, Youth Congress of Himachal Pradesh.

Sir,

With profound respects I bring to your notice the following facts and I have every hope these will receive your sympathetic consideration and you will order an immediate enquiry by the Central Intelligence Bureau.

Shri Kirpal Singh S/o Ujjagar Singh of village Dhani Shahpur, Tehsil Fazilka, Distt. Ferozepur was as an instructor in Songs and Drama Division, Govt, of India, and was posted in Shimla in the year 1973.

On 7-11-1973, his dead body was found on the steps of Middle Bazar, Shimla behind Le Gourmet Restaurant and his turban was missing. It is understood that an inquest was held after post-mortem but nothing was done as Anand Sharma who was suspected of foul play got the matter hushed up with the influence of his father who was then working in Himachal Goverment on a high position.

After three months, i.e. on 16-1-1974 the police registered a case vide F.I.R. No. 5/74 u/s 304 IPC in Sadar Police Station Shimla. The case was investigated by Shri Mehar Singh Thakur S.H.O. and Shri Kedar Nath A.S.I, and Shri Anand Sharma who belonged to R.S.S. at that time was taken into custody and interrogated for a number of days.

Suddenly the case was hushed up due to official and political pre; sure. The proof of this interference is that as the files regarding investigation of this case are missing from the police station and even the office of Supdt. Police.

I appeal to you for justice and for bringing to book the culprit who in the present case seems Anand Sharma. As he is the President of Youth Congress he wields considerable influence in political and official circles. If this case is reinvestigated from Himachal Police, I cannot expect justice. I, therefore, humbly pray that Central Bureau of Investigation may be deputed to investigate this case to bring the culprit to book and to justice.

Praying for your long life.

Yours obediently, Sd/- (POKHAR SINGH)

Copy to:

Hon''ble Prime Minister Shrimati Indira Gandhi, New Delhi.

Shri Yogender Makwana, Union Minister of State for Home Affairs, Govt, of India, New Delhi.

Hon''ble President Neelam Sanjiva Reddy, New Delhi.

Sd/- (POKHAR SINGH) Paternal Uncle of the deceased C/o Shri Ujjagar Singh, Village Dhani Shahpur, P.O. Jandwala Bhimashah, Fazilka.

AND Village Jhotinwali, (M.L.A. DITANI) P.O. Mokerian, Teh. Fazilka Distt. Ferozepore (Punjab).

The case for the Petitioner in brief is that Shri Krishan Chand Sharma, the election agent of the Respondent and Shri Krishan Kumar, a member of the Bhartiya Janata Party and an active supporter of the Respondent got copies of this letter cyclostyled in thousands. These copies were then distributed in the public on 18-5-1982 by Shri Krishan Chand Sharma, the election agent of the Respondent and other workers of the Bhartiya Janata Party acting with his consent. A cyclostyled copy of this letter had also been displayed in the show window of Kumar Studios located on the Mall, Shimla. This studio is owned by Shri Krishan Kumar referred to above. Copies of this letter were also circulated on the next morning through various newspaper vendors by enclosing them in the newspaper issues of 19-5-1982.

Full particulars of the persons who actually distributed the cyclostyled copies of this letter as also some of the persons to whom these were distributed and the places and timings of such distribution find mention in para 18 of the election petition. The factum of distribution of the copies of this letter was brought to the notice of PW Shri Hari Ram, President of the Shimla District Congress Committee in the evening of 18-5-1982 and he immediately on the same evening made a complaint in writing to the Deputy Commissioner Shimla apprising him of the fact that cyclostyled copies of such letter were being distributed by the workers of the Bhartiya Janata Party and had also been displayed in the show windows of Kumar studios and of Des Raj Saraf.

In this reply to the election petition, the Respondent made a complete denial if he or his election agent or any other person with his consent had either got cyclostyled or distributed copies of the letter mark X-1 as alleged in the election petition. The counter plea of the Respondent was that the story with respect to the publication of the letter mark X-1 had been concocted by the Petitioner out of frustration and only after his defeat at the election. The Respondent, however, did not deny the allegation that the statements made in this document in relation to the personal character and conduct of the Petitioner were all false to the knowledge and belief of the Respondent.

On a proper analysis, the letter mark X-1 would be found to contain the following material statements:

(i) That Shri Anand Sharma election Petitioner was suspected of having committed the murder of one Kirpal Singh whose dead body was found lying on the steps of Middle Bazar, Shimla on 7-11-1973.

(ii) That F.I.R. No. 5 of 1974 u/s 304 IPC was registered with police station Sadar Shimla with respect to the death of Shri Kirpal Singh and the election Petitioner was taken into police custody in that connection and was interrogated for a number of days.

(iii) That the Petitioner being the suspect in that case got the investigation of the crime hushed up by exerting official influence of his father who was then holding a high position in Himachal Government as also through political pressure.

It needs no effort or argument to conclude that the above-mentioned statements are statements of facts and that they are all in relation to the personal character and conduct of the election Petitioner. That these statements are false and the Respondent believed them to be so or did not believe them to be true, is amply proved from the sworn testimony of the Petitioner which the Respondent made no effort to challenge either by cross examination of the Petitioner or by leading evidence in rebuttal. In fact neither the Respondent nor his election agent while in the witness box cared to make any suggestion if there was any foundation for the allegations made in the letter mark X-1 against the person of the Petitioner or if either of them had any excuse to believe the same to be true. There should, therefore, be no difficulty in holding that these statements were all false and the Respondent as also his election agent believed the same to be so or they did not believe the same to be true. The Petitioner had admittedly been sponsored at the election by the Ruling Congrees (I) Party. He was obviously a candidate of considerable strength and potential, a fact which is amply borne out from the election result. The publication of statements like those contained in the letter mark X-1 in relation to the personal character and conduct of the Petitioner and especially at the eve of the poll day, would certainly justify the conclusion that this was reasonably calculated to prejudice the prospects of the Petitioner''s election.

All that the Petitioner is now required to prove under this sub-group of issues, therefore, is that the publication of the letter mark X-1 was made by the Respondent or his election agent or some other persons with the consent of the Respondent. The Petitioner has endeavoured to prove this fact by introducing a huge volume of evidence both direct as well as circumstantial. Direct evidence is furnished by the oral statements of as many as 16 witnesses all of whom claim to have seen Shri Krishan Chand Sharma, the election agent of the Respondent personally distributing cyclostyled copies of the letter mark X-1 along with his other workers in Lower Bazar Shimla in the evening of 18-5-1982- These 16 witnesses are PW. 8 Shri Ashok Jain, PW. 9 Shri Mohinder Azad, PW. 13 Dr. Ashok Kumar Sood, PW. 14 Shri Pradeep Khanna, PW. 15 Shri Madan Lai. PW. 17 Shri Vinod Kumar Sood, PW. 18 Shri Sandeep Kuthiala, PW. 19 Shri Ramesh Shah, PW. 22 Shri Amar Singh, PW. 25 Shii Jai Raj Sharma, PW. 26 Shri Balkrishan Sharma, PW. 27 Shri Narinder Jit Singh, PW. 36 Shri Manjit Singh, PW. 37 Shri Ishwar Das Kapoor, PW. 38 Shri Jagat Singh and PW. 39 Shri Hardayal Sharma. Eight of these witnesses, namely, PW. 8 Shri Ashok Jam, PW. 9 Shri Mohinder Azad, PW. 14 Shri Pradeep Khanna, PW. 15 Shri Madan Lal, PW. 19 Shri Ramesh Shah, PW. 25 Shri Jai Raj Sharma, PW. 36 Shri Manjit Singh and PW. 37 Shri Ishwar Das Kapoor admit that they are all Congress workers and it may not be advisable to take their evidence on its face value unless it finds due corroboration. In the case of the remaining eight witnesses, however, this type of argument cannot prevail. In the absence of any material on the record which could suggest to the contrary, all these eight witnesses must be considered as independent and reliable. The first of these independent witnesses is Dr. Ashok Kumar Sood (PW. 13) who is a medical practitioner running his clinic in Lower Bazar Shimla. He deposed that on 18-5-1982 at about 6 P.M. Sarvshri Krishan Chand Sharma and Amar Nath Bajaj gave him a copy of the poster like mark X-1 at his shop and that similar copies were delivered by these persons to the pati ents who were then sitting with him at his shop. There is nothing in the cross examination of this witness which could shake his testimony. The next witness on the point is PW. 17 Shri Vinod Kumar Sood who runs a shop in Lower Bazar Shimla. He also deposed to have seen Sarvshri Krishan Chand Sharma, Amar Nath Bajaj and Sarwan Kumar distributing cyclostyled copies similar to the one found at mark X-1 in Lower Bazar Shimla in the evening of 18-5-1982 at about 6 P.M. He further claims that one such copy was given to him at that time by Shri Ama Nath Bajaj. I find nothing in the cross examination of this witness either which could have the effect of shaking his testi mony. Practically on the same lines is the evidence of all the witnesses on the point including those who admit to be Congress workers. Even though the evidence of such of the P.Ws. who are admittedly Congress workers is not of determinative character, it does lend support to the evidence of the other inde pendent witnesses named above. Similarly PW. 21 Shri Anand SOod and PW. 40 Shri Som Nath claim to have seen Sarvshri Krishan Chand Sharma and Amar Nath Bajaj distributing such cyclostyled copies in Ganj Bazar Shimla in the evening of 18-5-1982 when each of them was also delivered such a copy at his shop.

The only evidence adduced on behalf of the Respondent in rebuttal consists of the oral statement of his election agent Shri Krishan Chand Sharma who appeared as RW. 2. This witness was examined only to plead his alibi. While giving his programme which kept him engaged for the entire day of 18-5-1982 the witness deposed that at 10-30 A.M. he accompanied the Respondent to the office of the Tehsildar Election for the purposes of his appointment as election agent. They left that office after about 45 minutes and from there he went straight to the Snowdon Hospital to see his injured son. At 3.30 P.M. he went to the office of the City Magistrate to arrange for the permits for the cars for the next day and then he went to the office of the Bhartiya Janata Party. He collected the polling agent forms and some other articles from that office and then went to Boileauganj. He stopped at Boileauganj for about half an hour and then proceeded to Summer Hill. He remained busy upto 6.30 P.M. at Summer Hill and from there he proceeded to Sanjauli where he reached at 7.15 P.M. He stayed there upto 8 P.M. and then proceeded to Chhota Shimla. Now it may be noticed that no such alibi had been pleaded for this witness in the reply filed by the Respondent to the election petition. It may further be noticed that no evidence whatsoever was adduced by the Respondent to corroborate the aforesaid plea of alibi given by this witness.

Again neither Shri Amar Nath Bajaj nor Shri Sarwan Kumar who, according to the version of the Petitioner''s witnesses, had accompanied Shri Krishan Chand Sharma, election agent, in his campaign of distributing the cyclostyled copies like X-1, was examined nor was any explanation furnished for the omission on the part of their Respondent to put them in the witness box. It may be observed that both Shri Amar Nath Bajaj and Shri Sarwan Kumar as admitted by Shri K.S. Patyal, the learned Counsel for the Respondent vide his statement recorded on 12-10-1982, were the workers of the Respondent during the elections and, therefore, there is every reason to assume that they were available. Non-production of these persons would be an additional factor justifying the drawing of an adverse inference against the Respondent.

Now much could be said on either side in case the Petitioner''s case rested only on the oral evidence referred to above. There is, however, ample circumstantial evidence which when taken with the above mentioned oral evidence of both the parties would convince any prudent mind that cyclostyled copies like mark X-1 were actually circulated in public in different localities of Shimla in the evening of 18-5-1982 and that this was done by the Respondent, his election agent and other persons with his consent. These circumstances may now be adverted to.

The letter mark X-1 was prepared and its copies cyclostyled only on 18-5-1982, that is, at theeve of the poll day.

This conclusion is obvious from the testimony of PW. 47 Shri O.N. Chandla. This witness runs a cyclostyling machine at Shimla. He deposed that 1000 copies of this letter were got cyclostyled from him by some person on 18-5-1982. The witness very honestly admitted his inability to give the identity of that person who got the copies cyclostyled because he was not known to the witness earlier. The witness further stated that the stencil of this letter was prepared in his office and the person who got the letter cyclostyled had himself signed as Pokhar Singh on that stencil in the presence of the witness. The witness had charged Rs. 120/- on account of cyclostyling charges from that person videhis Cash Memo No. 392, dated 18-5-1982. This witness was allowed to go without any cross examination whatever from the side of the Respondent. This shows that the Respondent also accepted the version of this witness. It can, therefore, be taken as an undisputed fact that the letter mark X-1 was prepared and its copies cyclostyled only on 18-5-1982

Once it is established that this letter mark X-1 was prepared and its copies cyclostyled only on. 18-5-1982, there should be no difficulty in concluding that it is a forged document. Even if it be assumed that there was some foundation for the allegations contained in this letter, Pokhar Singh in whose name it purports to have been issued could certainly not be interested in issuing or publishing this letter after the lapse of so many years. In any case there was no sense in his coming all the way from his village in Tehsil Fazilka (Punjab) to Shimla just for getting this letter cyclostyled and that too from a stranger like PW. Shri Chandla. The conclusion is thus irresistible that this letter was prepared rather forged by some person other than Pokhar Singh. The fact that as many as 1000 copies of this letter were cyclostyled would justify the frurther conclusion that this letter was prepared for publication.

Now bearing in mind the normal course of human conduct, no person is expected to waste his time and money in forging a letter of this kind and getting its 1000 copies cyclostyled just for the fun of it. He must have some material purpose in view for taking up a job of this nature. Either party has tried to put the blame on the other for the forgery of this document.

The plea of the Respondent as already stated is that the election Petitioner had himself forged this letter and got its copies cyclostyled. The Petitioner is alleged 10 have done so, as he was apprehensive of his defeat and he had a plan to use this document for concocting evidence of corrupt practice against the Respondent, which plan, according to the Respondent, the election Petitioner has now actually put in practice.

On the other hand the case for the election Petitioner is that seeing the success of the election campaign launched by the Petitioner which had attracted the electorate towards the Petitioner, the Respondent became nervous and frustrated and it was out of such frustration that he resorted to corrupt practices, one of which was the publication of this false document mark X-1.

In so far as the plea of the Respondent is concerned the same stands completely ruled out in view of the overwhelming and convincing evidence adduced by the Petitioner and which proves beyond doubt that cyclostyled copies like mark X-1 had not only been distributed in the public on 18-5-1982, a day before the election, but one such copy had also found its way in the show window of Kumar Studios. The Mall, Shimla where it had been seen displayed on that day. It may be recalled that this Kumar Studio is owned by Shri Krishan Kumar who is admittedly a member of the Bhartiya Janata Party and was an active supporter of the Respondent at the election. In case the election Petitioner had forged this letter and got its copies cyclostyled as contended on behalf of the Respondent, this letter could not have seen the light of the day till the result of the election had been declared. In any case it could not have found its way in the show window of Kumar Studios.

Apart from the oral evidence discussed above which was led to prove the publication of this letter in the areas of Lower Bazar and Ganj Bazar Shimla by Shri Krishan Chand Sharma, the election agent of the Respondent, there have been examined several other witnesses on behalf of the Petitioner who deposed having seen the distribution of such like copies on the Mall Shimla the same evening, that is, 18-5-1982. Apart from such distribution they also claim to have seen displayed in the show window of Kumar Studios on the Mall a cyclostyled copy of this letter. These witnesses are PW. 11 Dr. Ravi Madan, PW. 12 Shri Narinder Nanda, PW.16 Shri Taranjit Singh, PW. 23 Shri Amrit Chopra, PW. 28 Shri Jai Prakash, PW. 29 Shri Ashok Kumar, PW. 30 Shri Shiv Nath, PW. 31 Shri Deep Chand, PW. 32 Shri Man Mohan Vaid and PW. 33 Shri Anand Prakash. PW. 11 Dr. Ravi Madan is a medical practitioner and runs his clinic on the Mall Road itself. PW. 12 Shri Narinder Nanda is a Radio dealer, again on the Mall, PW. 16 Shri Taranjit Singh is employed as Booking Clerk in the Railway Booking Agency on the Mall Shimla. PW. 23 Shri Amrit Chopra also runs his business on the Mall. Similarly PW. 28 Shri Jai Prakash, PW. 29 Shri Ashok Kumar, PW. 30 Shri Shiv Nath and PW. 31 Shri Deep Chand have all their places of business on the Mall itself. PW. 32 Shri Man Mohan Vaid is a practising Advocate who also has his office on the Mall. PW. 33 Shri Anand Prakash is employed in the Labour Bureau Shimla and claims to have received the poster mark X-1 on his return from the office when he happened to pass in front of the shop of Kumar Studios in the evening of 18-5-1982. All these persons are independent, respectable and disinterested persons of the locality and there appears to be no reason to doubt their veracity. This is all the more so when we take into account the evidence of PW. 45 Shri Vipan Vaid. This witness works as an out-door photographer. He claims to have taken photographs of the show window of Kumar Studios on 18-5-1982 when poster like mark X-1 was found displayed there. He took two photographs which are Ex. PW.45/1-A and Ex., PW.45/2-A. Ex.PW.45/1 and Ex. PW.45/2 are the negatives of these photographs. Now Krishan Kumar who is admittedly the proprietor of the Kumar Studios and a member of the Bhartiya Janata Party and also an active supporter of the Respondent has not been put into the witness box to deny if such copy of the letter mark X-1 had been displayed in his show window or if he had not been distributing such copies in front of his shop as deposed by so many witnesses named above. In fact he had been originally cited as a witness by the Respondent but was later given up for reasons not disclosed. It only shows that this person was not willing to contradict the fact that a copy of the letter mark X-1 had been displayed in his show window as alleged by the witnesses of the Petitioner. The conclusion from this evidence is irresistible that the cyclostyled copies which had been prepared by PW. 47 Shri O.N. Chandla had reached the workers of the Bhartiya Janata Party and one such copy had also been displayed in the show window of Kumar Studios. Now in case these copies had been cyclostyled at the instance of the Petitioner, thL could not have happened. The possibility of these copies having been cyclostyled at the instance of the Petitioner as pleaded by the Respondent is, therefore, completely ruled out. The conclusion is thus obvious that these copies were got cyclostyled by the party of the Respondent only.

Now once it is concluded that copies like mark X-1 were prepared and got cyclostyled by the supporters of the Respondent, there appears to be no reason to doubt the veracity of so many witnesses who are all disinterested and belong to different shades of life and are all residents of the respective localities where they claim 10 have seen distribution of these posters, that these posters i.e. copies of letter X-1 were distributed by Shri Krishan Chand Sharma, the election agent of the Respondent. In case of distribution by Shri Krishan Kumar on the Mall Shimla, these circumstances can give rise to legitimate presumption that he was doing so with the consent of the Respondent or his election agent.

I would, therefore, find all these three issues No. 10, 11 and 12 in favour of the election Petitioner and against the Respondent.

ORDER

As a result of my discussion and findings above I hold as under:

(i) that the charge for the commission of corrupt practice within the meaning of Section 123(4) of the Act levied against the Respondent with respect to the publication of posters Ex. PW.10/4to Ex. PW 10/6 is not proved and fails.

(ii) that the charge for the commission of corrupt practice within the meaning of Section 123(4) of the Act levied against the Respondent with respect to the publication of the Press statement Ex. PW.5/A stands proved against the Respondent.

(iii) that similar charge for the commission of corrupt practice within the meaning of Section 123(4) of the Act with respect to the publication of the letter mark X-1 also stands proved against the Respondent.

In consequence I declare the election of the Respondent as void u/s 100(1)(b) of the Act.

Keeping in view the number of witnesses examined on behalf of the Petitioner as also the number of days for which this case was heard, I fix the costs of the election Petitioner at Rs. 2,000/- and direct the Respondent to pay this amount to the Petitioner.

I further direct that the substance of this decision be intimated to the Election Commission as also to the Speaker of the Himachal Pradesh State Legislative Assembly fosrthwith and that an authenticated copy of this decision be also sent to the Election Commission at the earliest.