Laxmikant Sharma vs Govardhan Upadhyaya & Others

This election petition has been filed by petitioner Laxmikant Sharma under the provisions of Sections 80 and 81 of the Representation of People Act,

1951 (hereinafter for short 'Act of 1951') being aggrieved by result of the election for the Legislative Assembly Constituency Sironj (General) No.147,

to which the elections were held on 25.11.2013 and in which respondent no.1-Govardhan Upadhyay has been declared as a winning candidate.

It is petitioner's contention that the petitioner was a sitting MLA and Minister of the State of Madhya Pradesh at the time when nominations were

filled, for which last date was 8. 11.2013. The last date for withdrawal of the nomination was 13. 11.2013 and after such last date of withdrawal, there

were 12 candidates in the fray who contested the elections for the Legislative Assembly Constituency No.147 of the Madhya Pradesh Vidhan Sabha.

Out of these 12 contesting candidates, 11 have been arrayed as respondents and besides them, the petitioner was also a candidate.

It is submitted that the petitioner was given a ticket to contest the election on the party symbol of Bhartiya Janata Party, whereas respondent no.1-

Govardhan Upadhyay contested the election on the symbol and ticket of Indian National Congress. Similarly, respondent no.2-Mubaraq Ali contested

the election on ticket of Bahujan Samaj Party, respondent no.3-Mohammad Nazir Khan contested the election as a candidate of Hindustan Janta

Party, respondent no.4-Sameena Bai contested the election as a candidate of Bahujan Sangharsh Dal, respondent no.5-Smt. Shobna Yadav was a

candidate of Samajwadi Party and the other respondents contested the election as independent candidates.

It is petitioner's contention that there were about 182000 voters in the Sironj (General) Legislative Assembly Constituency No.147 and the total

number of votes polled as per Form 20 of the Conduct of Election Rules were 142173.

According to the petitioner, when the results were declared, the petitioner had secured 63713 votes whereas respondent no.1-Govardhan Upadhyay

had secured 65297 votes, therefore, the total difference of votes between the two main contesting candidates was only 1584 votes, i.e., the margin of

win of respondent no.1-Govardhan Upadhyay was a very slender; that was only 1584 votes.

It is petitioner's allegation that the petitioner was having a clear edge in the Constituency because of the composition of the voters and also because

of his past association with the Constituency, which he had nurtured very hard with all his efforts both as a Member of Legislative Assembly and as a

Minister holding important portfolio in the Ministry of State of Madhya Pradesh. He submits that just few days before the election, a mala fide

campaign was lodged against him so as to tarnish his image and this campaign was suspectedly launched by respondent no.1 and his supporters, which

resulted in his defeat and such campaign was in violation of the provisions of the Model Code of Conduct and Constituted Corrupt Practices as

mentioned in Section 100 (1) (b) (d) (iv), Section 123 (3-A) and Section 123 (4) of the Act of 1951.

It is submitted that on 23.11.2013 at about 1.00-1.30 PM at Village Lateri, a newspaper in the form of pamphlet was circulated in the name and

style 'Karara Jawab' (Ex.P/28), which does not bear the names of Editor, Printer and Publisher. This pamphlet only makes a location of place and

date and it was circulated by one Toran Ahirwar son of Dev Chand Ahirwar resident of Ward No.5, Lateri, District Vidisha with consent and under

directions of respondent no.1 so also his election agent and supporters. It is submitted that this newspaper published in the form of pamphlet, as was

circulated on 23.11.2013, was followed by another pamphlet under the title 'Batao Main Kaun Hoon'. This was followed by a third handbill under the

title 'Jo Moda To Bigad Gayo'.

It is submitted that 'Karara Jawab' was circulated to various residents of Village Lateri and was read by several persons including PW6 Vinod

Kumar Jain son of Chandmal Jain, resident of Muraiya, Tahsil Lateri, District Vidisha and PW5 Vinod Kumar Baghel son of Sardar Singh Baghel,

resident of Village Lateri, District Vidisha. It is also averred that subsequently PW6 Vinod Kumar Jain and PW5 Vinod Kumar Baghel had informed

the petitioner about circulation of the alleged newspaper on the very same day and thereafter on behalf of the petitioner, one Suresh Kumar Jain,

President of Bhartiya Janata Party, Village Lateri, had lodged a complaint about the alleged circulation of newspaper before the Sub-Divisional

Magistrate, Lateri, District Vidisha. It is submitted that on the same day on 23.11.2013, this newspaper was also circulated in Sironj, District Vidisha

by one Shri Vishal Rawal son of Shri Surendra Narayan Rawal, resident of Patwa Tola, Sironj at about 11.00 AM to 12.00 AM with consent and

under direction of respondent no.1. At Sironj, it was read by PW2 Munim Gourie son of Shri Kallu Khan, resident of Ward No.4 Rakab Ganj and

PW1 Pappu Sahu son of Shri K.L. Sahu, resident of Ward No.1, Govardhan Sahu Wali Gali, Sironj, District Vidisha. It is further submitted that they

had conveyed such information to Shri Ramesh Yadav, President of Bhartiya Janata Party, Sironj, who had lodged a complaint about alleged

circulation to the Returning Officer.

On 24.11.2013, one Sunil son of Rajendra Yadav, resident of Nishad Talkies, Sironj and Mukesh son of Shri Nandkishore Sen, resident of Patwa

Tola, Sironj circulated pamphlet 'Batao Mein Kaun Hoon' and 'Jo Moda To Bigad Gayo'. Immediately information was furnished by the petitioner's

agent PW7 Om Prakash Sharma to the concerned Police Station, the aforesaid two persons Sunil and Mukesh were arrested and the proceedings

were initiated against them under the provisions of Section 127 of the Act of 1951. It is submitted that all these exercise were undertaken to lower the

image of the petitioner and divert the mindset of the voters of the Constituency. The said act done by respondent no.1 or at his behest is contrary to

the provisions contained in Section 123 (3-A) and 4 of the Act of 1951.

It is submitted that since the petitioner lost the election by a thin margin, respondent no.1 was declared as elected on 8. 12.2013, therefore, the

present election petition has been filed.

In the election petition, relief has been sought that the election of respondent no.1 from Sironj (General) Legislative Assembly Constituency

No.147 of the Madhya Pradesh Vidhan Sabha be declared as void and the same be set aside. It is also prayed that the petitioner be declared as a

returned candidate from Sironj (General) Legislative Assembly Constituency No.147 of the Madhya Pradesh Vidhan Sabha. It is also prayed that

suitable punishment be awarded to those found to be involved in corrupt practices and in addition suitable costs be also awarded in favour of the

petitioner.

Respondent no.1 had filed a written statement so also respondent no.10-Mahendra Pratap Singh through their respective counsel. Reply was also

filed on behalf of respondent no.6. As far as reply is concerned, respondent no.1 is the main contesting candidate and he in his reply raised preliminary

objection that the petition does not contain material facts and particulars for constituting the ground of corrupt practices. He also took objection that

the petition should be dismissed as affidavit annexed with the petition is not in terms of the requirements under Rule 94-A of the Conduct of Election

Rules in Form No.25. Further objection was taken that the petition is not properly verified as required under Order 6 Rule 15 of the Code of Civil

Procedure and prayed for dismissal.

He admitted the loss of election by the petitioner in the hands of respondent no.1, but denied that respondent no.1 vitiated any of the provisions

contained in Section 123 (3-A) and 123 (4) of the RP Act. He denied the allegation that respondent no.1 was grossly involved in corrupt practices

enumerated under Section 100 (1) (b) (d) (vv) of the Act of 1951. He denied distribution of newspaper in the form of pamphlet, i.e., 'Karara Jawab'

on 23.11.2013 between 1.00 to 1.30 PM at Village Lateri and submitted that this pamphlet does not bear the names of the Editor, Printer and

Publisher. He further denied distribution of such pamphlet in the hands of Toran Ahirwar. He denied their being any consent of respondent no.1

behind such distribution of pamphlet or that of his election agent or his supporters. He denied that pamphlet was received by Vinod Kumar Jain and

Vinod Kumar Baghel. He further denied that they had informed the petitioner about circulation on the very same day and also denied another

complaint being lodged by Sudesh Kumar Jain, President Bhartiya Janta Party, Lateri before SDM Lateri.

He denied the contents of paragraph 7 of the petition.

Respondent no.1 similarly denied the allegation of circulation of 'Karara Jawab' in Village Sironj by Vishal Rawal at about 11.00 AM to 12.00 AM

with consent of respondent no.1 or his election agent or his supporters. He also denied reading over of such newspaper by Munim Gourie son of Shri

Kallu Khan and Pappu Sahu resident of Sironj. He denied any information being conveyed to Shri Ramesh Yadav President of Bhartiya Janta Party,

Sironj, District Vidisha. He also denied any complaint being lodged by such Ramesh Yadav before the Returning Officer on the same day. He,

however, mentioned that the complaint was found meritless.

In paragraph 9, he denied distribution of pamphlets 'Batao Main Kaun Hoon' and 'Jo Moda To Bigad Gayo' on 24.11.2013 between 10.00 AM to

12.00 AM. He also denied their circulation by Sunil son of Rajendra Yadav and Mukesh son of Nandkishore Sen. He submitted that no such

pamphlets were printed and circulated by them and he also denied arrest of Sunil and Mukesh. He also denied any act being done by Sunil and

Mukesh at his instance or at the instance of his agent or supporters. He denied any attempt on his own part or his agent or supporters in abetting and

attempting to procure assistance to defeat the petitioner, a sitting Minister of the ruling party. He further submitted that the documents are not duly

verified and, therefore, made a prayer that the petitioner is not entitled to the relief prayed for in the petition.

Respondent no.6 also denied circulation or publication of any such newspaper or pamphlets in the Constituency and almost similar stand was taken

by respondent no.10.

In this backdrop, the following issues were framed :-

(1)Whether respondent no.1 adopted corrupt practice as enumerated in Section 100 (1) (b), (d) (iv), 123 (3-A) and Section 123 (4) of the

Representation of People Act, 1951 in the election in question?

(2)Whether the contents of the newspaper/pamphlet Karara Jawab attempted to assassinate the character of the petitioner by projecting him to be

involved in killing of cows and amassing black money and other socially not acceptable activities directly effecting the result of the election by

circulating the said newspaper/pamphlet in Tahsil Sironj on 23.11.2013 on the directions of respondent no.1?

(3)Whether the petition is filed within the prescribed period of limitation?

(4)Whether the petitioner has deposited appropriate Court fee and if not its effect?

(5)Whether the election petition is liable to be dismissed on any of the following reasons :-

(i) That, the complaint filed on behalf of the petitioner was found meritless.

(ii) That, the documents/pamphlet annexed with petition are not admissible in evidence.

(iii) That, the petition was not duly verified as per Order 6 Rule 15 CPC?

(iv) That, the affidavit dated 22.1.14 as per Form 25 of Rule 94-A is not valid and also not duly verified.

(6)Whether the petition is frivolous and vexatious and hence the same can be dismissed imposing exemplary cost under Section 35-A CPC?

(7)Relief and costs?

For the sake of convenience, issues no.3 and 4, namely, whether the petition is filed within the prescribed period of limitation and whether the

petitioner has deposited appropriate Court fee and if not its effect, are being dealt with first as they will have material bearing as to whether the other

issues are to be decided on merits or not.

This election petition was presented before the Registrar (J-II), High Court of Madhya Pradesh Jabalpur on 22.01.2014.

Section 81 (1) of the Act of 1951 provides that an election petition calling in question any election may be presented to on one or more of the

grounds specified in sub-Section (1) of Section 100 and Section 101 of the Act of 1951 to the High Court by any candidate at such election or any

elector within 45 days, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the

election and the dates of their election are different, the later of those two dates.

Reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Tarun Prasad Chatterjee v. Dinanath Sharma as reported

in (2001) AIR (SC) 36, wherein it is said that the day of declaration of the result is to be excluded for the purpose of computing 45 days' limitation.

Therefore, the petition is within limitation.

In the present case, it is an admitted position that counting had taken place on 08.12.2013 and the result was declared on 8. 12.2013, therefore, the

election petition filed on 22.01.2014 will be deemed to be within the prescribed period of limitation and, therefore, this issue of limitation is to be

answered in affirmative that the election petition has been filed within the prescribed period of limitation.

Similarly, Section 117 (1) of the Act of 1951 provides that at the time of presenting an election petition, the petitioner shall deposit in the High

Court in accordance with the Rules of the High Court a sum of two thousand rupees as security for the costs of the petition. In view of such

provisions contained in Section 117 (1) of the Act of 1951, it is apparent from the petition itself that the petitioner had deposited a sum of Rs.2,000/-, it

cannot be said that the petitioner had not deposited appropriate fee as security at the time of filing of the election petition. Therefore, issue no.4 is also

required to be decided in affirmative and is decided as such that the petitioner has deposited appropriate Court fee and, therefore, the election petition

cannot be thrown out on such premise.

Issue No.5 : As far as the pleading of respondent no.1 that the petition is liable to be dismissed for being not duly verified as per Order 6 Rule 15,

CPC is concerned, the petitioner has placed reliance on the judgment of the Hon'ble Supreme Court in the case of G.M. Siddeshwar v. Prasanna

Kumar as reported in (2013) AIR (SC) 1549, wherein it has been held that Section 83 (1) (c) of the Act of 1951 does not require an affidavit in

support of the pleadings in an election petition. There is no requirement of election petitioner also of filing an affidavit in support of averments made in

election petition except when the allegations of corrupt practice made.

Learned counsel for the petitioner has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Chandrakant Uttam

Chodankar v. Shri Dayanand Rayu Mandrakar & Others as reported in (2005) AIR (SC) 547, wherein the ratio is that a defective affidavit would not

entail in le-mine dismissal of election petition. Reliance has also been placed on the judgments of the Hon'ble Supreme Court in the cases of Dr. Vijay

Laxmi Sadho v. Jagdish as reported in (2001) 2 SCC 247; G. Mallikarjunappa & Another v. Shamanur Shivashankarappa & Others as reported in

AIR 2001 SC 1829 and Kamalnath v. Sudesh Verma as reported in AIR 2002 SC 599.

In view of such judgments of the Hon'ble Supreme Court, the election petition cannot be dismissed for technical objections like it being not duly

verified or available being not as per Form 25 of Rule 94-A or for the reason that the complaint filed by the petitioner was found to be meritless by the

administrative authorities. In fact, such material requires exhaustive appreciation of evidence and that could have been done only by an Election

Tribunal after giving opportunity of hearing to rival parties. All these matters have been brought to the notice of the Court and rival parties have led

their evidence.

After appreciating the evidence led by the rival parties, this Court is of the opinion that the election petition cannot be dismissed on technicalities

and the Court is obliged to advert to the merits of the case, look into the gravity of the allegations of corrupt practice, swift the evidence led by the

rival parties to come to a conclusion as to whether such practices as have been alleged were found to be attributable to the rival party or not and

whether there is evidence to hold that rival party is guilty of adopting such corrupt practices as are enumerated and alleged as per the provisions

contained in the Act of 1951. Therefore, this Court is of the opinion that issue no.5 needs to be answered in negative to the effect that the election

petition is not liable to be dismissed on any of the reasons mentioned in issue no.5.

Now, issues no.1 and 2 are taken up simultaneously. Issue no.1 deals with adoption of corrupt practices as enumerated in Sections 100 (1) (b) and

(d) (iv), 123 (3-A) and

123 (4) of the Act of 1951. Before adverting to the records and evidence, which have been produced by the rival parties, it will be appropriate to

reproduce the relevant provisions :-

“100. Grounds for declaring election to be void.â€

(1) Subject to the provisions of sub-section (2) if the High court is of opinionâ€

(a) xxx

(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

(c) xxxx

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affectedâ€

(i) xxx

(ii) xxx

(iii) xxx

Â

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, 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 purposes of this Act :-

(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion,

race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the

furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.

(4) The publication by a candidate 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.â€​

It is the contention of the learned counsel for the petitioner that circulation of pamphlets ‘karara Jawab’, ‘Batao Main Kaun Hun’ and

‘Jo moda to Bigad Gayo’ amounted to character assassination of the petitioner and they were published to otherwise tarnish brilliant image of

the petitioner. In support of these charges, the petitioner examined PW1 Pappu Sahu, PW2 Muneem Khan, PW3 Dr. Rakesh Sharma, PW4 Vijay

Sharma, PW5 Vinod Baghel, PW6 Vinod Jain, PW7 O.P. Sharma, PW8 Ramesh Yadav, PW9 Swadesh Jain and PW10 petitioner himself.

PW1 Pappu Sahu deposed that the pamphlet ‘Yeh moda Bigad Gayo’ was distributed by Prakash and Vishal Rawal. He had read material

2-3 days prior to the date of voting. However, in cross-examination, he admitted that he is not aware as to whether Vishal Rawal is a BJP worker or

not. Ashok Rawal is uncle of Vishal Rawal and Ashok Rawal is distributing mid-day meals through self-help groups. He also admitted that he is not

aware that as to which party, Vishal Rawal belongs. He further admitted that he had not seen Govind Upadhyay in his colony on the date of

distribution of pamphlet. His brother Suresh Upadhyay was also not present at the time of distribution of the pamphlet. He further admitted that his

wife was a Councilor for the local body.

Similarly, PW2 Muneem Khan in his examination-in-chief admitted that he is not adequately educated, therefore, he had not read the pamphlet,

however, he alleged that such pamphlets were distributed by Sunil and Mukesh at the instance of Congress Party. However, in cross-examination, he

admitted that his wife contested the election for Councilor on the ticket of BJP. He further admitted in his cross-examination that Ashok Rawal is

uncle of Vishal Rawal and Ashok Rawal is a senior worker of BJP. He also admitted that he is not aware as to what was written in the pamphlet. He

also admitted that despite knowing the contents of the pamphlet, he had not changed his mind and had casted his vote in favour of the petitioner. He

could not read any cogent evidence to point out that the persons, who allegedly distributed the pamphlets, have any nexus or relationship with

respondent no.1.

PW3 Dr. Rakesh Sharma and PW4 Vijay Sharma are officials, who were called with the original records. PW3 Dr. Rakesh Sharma categorically

deposed that Om Prakash Sharma had lodged a complaint on 27.11.2013 and that complaint was found to be baseless. He further deposed that

another complaint was made by Swadesh Kumar Jain of BJP Mandal Lateri, which too was investigated and it was found that no cognizable offence

was committed.

Similarly, so far as PW4 Vijay Sharma, SDM Sironj is concerned, he only deposed about available record.

PW5 Vinod Baghel deposed that he is a worker of BJP for last 06 years. He is Vice-President of Youth Wing of BJP and further deposed that

Toran had distributed pamphlets, but he has not been able to identify said Toran because though he submitted in his affidavit under Order 18 Rule 8,

CPC that the said material was distributed by Toran Singh son of Deo Chand Ahirwar, who is a worker of respondent no.1, but in cross-examination,

he admitted that he does not know the name of father of Toran and at the time of preparation of affidavit under Order 18 Rule 4, CPC, he had not

given the name of father of Toran to the counsel who prepared the affidavit.

PW6 Vinod Jain has admitted in para 15 of his cross-examination that he had not asked Toran as to who got this material distributed; whereas in

the affidavit under Order 18 Rule 4, CPC, it is mentioned that Toran had distributed such pamphlets at the instance of respondent no.1-Govardhan

Upadhyay and his agent. In para 6 of the affidavit, it is mentioned that such illegal material was distributed in Sironj by Vishal Rawal and other

workers of the Congress Party at the instance of respondent no.1, but in cross-examination in para 14, this witness has admitted that Vikas Rawal and

Vishal Rawal are two different persons and he had given the name of Vikas Rawal in his affidavit and the same has been mentioned in the affidavit;

whereas in para 6 of the affidavit, the name of Vishal Rawal is mentioned and not that of Vikas Rawal.

PW7 O.P. Sharma has admitted that on 24.11.2013, he had made a complaint at the instance of his workers and prior to making of such complaint,

he had seen Ashish Bhrugu, Ashok Jain son of Nathulal Jain, Kanhaiyaram Yadav and Rakesh Sharma distributing the pamphlets. However, when he

was asked whether such names were mentioned in the election petition or not, then after going through the election petition, he admitted that such

names were not mentioned in the election petition. In para 20, he admitted that respondent no.1-Govardhan Upadhyay won election because he had a

good image and there were no allegations or charges on him. In para 17, he admitted that in Ex.P/25 he did not make any mention about effect of such

material on election because the election was far away; whereas the fact is that the election took place only a day after the date on which Ex.P/25

complaint was lodged.

PW8 Ramesh Yadav admitted that at the time of incidence of distribution of pamphlets, Govardhan Upadhyay was not present. He admitted that

he is not aware as to who was the election agent of respondent no.1; whereas in his affidavit in para 7, he has made an allegation against respondent

no.1-Govardhan Upadhyay that he had distributed such pamphlets and material.

PW9 Swadesh Jain admitted that on 08.01.2014, a complaint was made to the SDM. He admitted in his cross-examination that he had not made

any complaint as to collusion between respondent no.1 and Mahendra Singh Pawar. He also admitted that in Ex.D/1, no person was named in the

complaint. He also admitted that alongwith his complaint (Ex.D/1), no pamphlet or newspaper was attached.

PW10 Laxmikant Sharma has though in para 6 mentioned that such illegal material to effect election was distributed between 20.11.2013 and

24.11.2013 by Toran Singh, Vishal Rawal, Ashok Jain, Kanhaiyalal Yadav, Rakesh Sharma, Ashish Bhrugu and other Congress workers at the

instance of Govardhan Upadhyay, but admitted in his cross-examination that he is aware of the fact that registration of newspapers takes place with

Publicity Department. He was Minister of Publicity Department. He had not made any complaint to the Publicity Department in regard to a

newspaper being distributed without any registration number. He also admitted that the Police had found his complaint to be baseless, but such

information was received by him after getting reply to the election petition. He also admitted that Govardhan Upadhyay was not present at the time of

distribution of such pamphlets.

In this backdrop, the learned counsel for the respondents submits that the consent of candidate or election agent is material and mere distribution

of some material is not sufficient to form corrupt practice in terms of the provisions contained in Section 100 (1) (d) (ii) of the Act of 1951. Similarly,

requirement of Section 123 (4) of the Act of 1951 provides for publication by a candidate or his agent or by any other person with the consent of a

candidate or his election agent to constitute a corrupt practice has not been proved. It is submitted that adverse inference should be drawn when

petitioner’s two cited witnesses, namely, Sunil son of Rajendra Yadav and Mukesh son of Nandkishore Sen against whom there was allegation in

regard to distribution of pamphlets were given up on 08.05.2017 by the learned counsel for the election petitioner. Once the witnesses were cited and

they have been given up, then adverse inference is to be drawn in the light of the law laid down by the Hon’ble Supreme Court in the case of

Vidyadhar v. Manikrao & Another as reported in AIR 1999 SC 1441, wherein the law is that where a party to the suit does not step into the witness-

box and states his own case on oath and does not offer himself to be cross-examined by other side, a presumption would arise that the case set up by

him is not correct.

Similarly, in the case of M.J. Jacob v. A. Narayanan & Others as reported in (2009) 14 SCC 318 in para 26, it has been held as under :-

“26. It is now well settled that the five ingredients required to establish a corrupt practice under Section 123(4) of the Act are:

(i) there should be a publication by the candidate or his agent, or by any other person, with the consent of a candidate or his election agent;

(ii) the said publication should contain a statement of fact which is false;

(iii) the person making such publication should either believe such statement to be false or not believe it to be true;

(iv) such false statement should be in relation to the personal character or conduct of any candidate; and

(v) such false statement should reasonably be calculated to prejudice the prospects of that candidate’s election.

There is thus no doubt that any false accusation relating to the personal character or conduct of any candidate calculated to prejudice the prospect of

his election would amount to a corrupt practice. But what is crucial is that the false statement should relate to the personal character or conduct of a

defeated candidate. Where the false statement was about someone other than the candidate, this Court has refused to consider the publication to be a

corrupt practice under Section 123(4).

40. As already stated above, election results should not be lightly set aside and the will of the electorate should ordinarily be respected.

Setting aside an election is a serious matter, and should not have been done lightly. We regret to say that in this case the election of the returned

candidate has been set aside by the High Court, though no doubt by a rather elaborate judgment, by observing, according to us unwarrantedly, that

Para 2 in Ext. P-1 amounts to a false statement affecting the personal character and conduct of Shri T.M. Jacob.â€​

Therefore, the onus was on the petitioner to have pointed out that such publication was by the candidate or his agent or by any other person with

the consent of a candidate or his election agent. It has been admitted that Vishal Rawal is nephew of Ashok Rawal, who is a senior BJP leader.

Petitioner gave up two of his witnesses against whom allegations were made that they distributed pamphlets at the instance of respondent no.1. PW3

Dr. Rakesh Sharma, SDM deposed that the complaint was examined and was found to be frivolous. PW7 Om Prakash Sharma admitted that he had

not made any follow up action after making the complaint. PW10 Laxmikant Sharma election petitioner admitted that he had discovered the outcome

of the complaint only from the written statement filed in the election petition. No appeal or revision was filed against dismissal of the complaint. PW6

Vinod Jain in para 12 admitted that Toran did not disclose the source of original newspaper. Similarly, affidavit of PW5 Vinod Baghel and PW6 Vinod

Jain are identical from para 3 to para 8. PW5 Vinod Baghel in para 7 alleged that respondent no.1 had distributed the pamphlets, which is contrary to

the pleadings in the petition. PW5 Vinod Baghel has been cited as a witness for the incident, which took place in Lateri. He is resident of Tahsil

Lateri. In para 6 of the election petition, it is mentioned that ‘Karara Jawab’ was distributed on 23.11.2013 between 1.00 to 1.30 PM and

election petitioner cites Toran Ahirwar as a distributor; whereas contrary to this, PW5 Vinod Baghel has narrated that it was Vishal Rawal and

Govardhan Upadhyay who distributed such pamphlets. Similarly, there is another material omission that though in the affidavit Vinod Baghel has given

name of father of Toran Ahirwar, but in para 14 of his cross-examination, he admits that he had not given the name of father of Toran Ahirwar to his

lawyer, which demonstrates that the affidavit under Order 18 Rule 4, CPC was not prepared as per his instructions, but was a brain child of the

lawyer and such evidence is not sufficient to set aside the election. He is also an interested witness being a worker of Bhartiya Janata Party.

PW5 Vinod Baghel admitted that Toran had distributed the pamphlets between 1.00 to 1.30 PM whereas PW6 Vinod Jain deposed that such

pamphlets were distributed at night. There is also contradiction inasmuch as in the affidavit, the name of Vishal Rawal is mentioned whereas in cross-

examination, he admits that he had given name of Vikas and not of Vishal. It has also come on record that Toran had not disclosed the name of any

person at whose instance he had distributed such pamphlets. In fact, it has come in the deposition that he is not aware of the fact that such pamphlets

were distributed at the instance of respondent no.6. He also admitted that he is a BJP worker and had come to depose at the instance of the election

petitioner.

PW8 Ramesh Yadav has given certain names in paragraphs 10 and 15, which are not mentioned in the election petition though they are mentioned

in Ex.P/25. Affidavits of PW8 Ramesh Yadav and PW9 Swadesh Jain are verbatim identical from para 3 to para 8. Reasons for such omissions are

not explained as to when names of perpetrators of alleged mischief were known to them why they were not mentioned in the election petition. In para

9 of the election petition, there is a mention that papers were distributed between 10.00 AM to 12.00 Noon on 24.11.2013 and such intimation was

given to PW8 Ramesh Yadav, who in para 16 has given timing of distribution of phamplets as 12.00 and 1.00 PM. In para 19, he admits that such

news will impact or influence the election if it is correct. He also admitted in para 20 of his cross-examination that respondent no.1 won the election as

he had a better image. PW9 Swadesh Jain admitted that he had only made one complaint (Ex.D/1) and there are no names mentioned in Ex.D/1 as to

who distributed the pamphlets. There were admittedly no enclosures and the word used in Ex.D/1 is ‘candidates’ and there is no specific

allegation in regard to respondent no.1, the returned candidate.

Referring to all such decisions and the judgment of the case of M.J. Jacob (supra), attention is invited to para 40 of the judgment, which says that

election results should not be lightly set aside and the will of the electorate should ordinarily be respected. Setting aside the election is a serious matter

and should not have been done lightly.

Similarly, reliance has been placed on the judgment of the Hon’ble Supreme Court in the case of R.P. Moidutty v. P.T. Kunju Mohammad &

Another as reported in AIR 2000 SC 388, wherein in para 14, the Hon’ble Supreme Court has observed that it is basic to the law of elections and

election petitions that in a democracy, the mandate of the people as expressed at the hustings must prevail and be respected by the Courts and that is

why the election of a successful candidate is not to be set aside lightly. Heavy onus lies on the election petitioner seeking setting aside of the election

of a successful candidate to make out a clear case for such relief both in the pleadings and at the trial.

Reliance has also been placed on the judgment of the Hon’ble Supreme Court in the case of Ravinder Kumar Sharma v. State of Assam &

Others as reported in AIR 1999 SC 3571, wherein the ratio of the judgment in para 25 is that the presumption of genuineness attached under Section

81 of the Evidence Act to newspaper reports cannot be treated as proof of the facts stated therein.

Reliance has also been placed on the judgment of the Hon’ble Supreme Court in the case of Laxmi Raj Shetty & Another v. State of Tamil

Nadu as reported in AIR 1988 SC 1274, wherein the ratio is that in terms of the provisions contained in Sections 57, 78(2) and 81 of the Evidence Act,

facts stated in a newspaper are hearsay in nature and inadmissible unless maker of statement is examined. Judicial notice of facts stated in the

newspaper cannot also be taken.

Reliance has also been placed on the judgment of this Court in the case of Radheshyam Dhakad v. Jaiwardhan Singh & Others E.P.No.05/2014

decided on 12.09.2017, wherein in para 44, it has been held that a newspaper report without any further proof of what had actually happened to

witnesses is of no value. It is at best second in secondary evidence.

Reliance has been placed on the judgment of the Hon’ble Supreme Court in the case of P.C. Thomas v. P.M. Ismail & Others as reported in

(2009) 10 SCC 239, wherein in para 42 it has been held that it is well settled that if after balancing the evidence adduced, there still remains little doubt

in proving the charge, its benefit must go to the returned candidate.

However, it is equally well settled that while insisting upon the standard of proof beyond a reasonable doubt, the Courts are not required to extend or

stretch the doctrine to such an extreme extent as to make it well-nigh impossible to prove any allegation of corrupt practice.

It is also well settled law that evidence beyond pleadings needs to be ignored as has been held by the Hon’ble Supreme Court in para 24 in the

case of Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao & Others as reported in (2010) 1 SCC 466.

Learned counsel for the petitioner, on the other hand, has placed reliance on the judgment of Delhi High Court in the case of M/s. Rudnap Export-

Import v. Eastern Associates Co. & Others as reported in AIR (1984) Delhi 20, wherein relying on Section 61 of the Evidence Act, it has been held

that the document filed by one party, other party can rely upon it without any proof. Where a document is filed by one party, it can be looked into at

the instance of opposition party. In such a case, there is no need of proof of such a document.

Reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Prabhu Narayan v. A. K. Srivastava as reported in (1975)

AIR (SC) 968, wherein in para 13, the Hon'ble Supreme Court has held that relying on the evidence of PW66 and PW67 about the part played by the

respondent with regard to the pamphlets printed in Chhabi Printing Press and of Kailash Chandra Nakra with regard to the pamphlets printed in

Kailash Press holding that the Supreme Court was convinced beyond reasonable doubt that the respondent was the guiding brain and hand behind all

of them.

Placing reliance on such judgments, the learned counsel for the petitioner has tried to emphasis that in the present case guiding hand behind the

pamphlets, namely, 'Karara Jawab', 'Batao Mein Kau Hoon' and 'Jo Moda To Bigad Gayo', was of respondent no.1 alone and, therefore, his election

should be set aside as it amounted to correct practice.

As far as the corrupt practice as narrated in Section 100 (1) (b), (d) (iv), 123 (3-A) and 123 (4) of the Act of 1951 is concerned, the onus was

on the petitioner to have shown direct nexus between publications and respondent no.1. After going through the evidence of the rival parties, which

has been discussed above and for the sake of brevity, is not being repeated again, the petitioner has failed to discharge the burden that such material

was either published or distributed at the instance of respondent no.1.

As far as the law laid down in the case of M/s. Rudnap Export-Import (supra) is concerned, Section 61 of the Evidence Act only provides for

proving of contents of documents either by primary or by secondary evidence. Production of document in the hands of the respondents only proves

that such document exists. Learned counsel for the respondents has submitted that such documents were obtained by him under the Right to

Information Act and they are not of his own making. Therefore, the onus to prove such documents was still on the petitioner by examining the

concerned editor, publisher or author of such publication. PW7 Om Prakash Sharma has categorically admitted that public accepts only what is

perceived to be correct. Witnesses from the petitioner's side have admitted that despite publication of such material, they had casted their vote in

favour or the petitioner. Coupled with this fact that the petitioner at the relevant point of time was Minister for Publicity Department and did not make

any complaint or did not take any pains to verify whether such newspaper is registered with the Department or the Registrar of Newspapers and who

are the persons behind such newspaper and from where such newspaper was published, has utterly failed to discharge the burden that such

newspaper/pamphlet was published and circulated at the instance of respondent no.1. In fact, in the light of the law laid down in the case of Laxmi Raj

Shetty (supra), it was incumbent upon the petitioner to have examined maker of statement.

In fact, the allegations were initially against Toran Ahirwar and the petitioner's witnesses, namely, PW5 Vinod Baghel and PW6 Vinod Jain have

mechanically mentioned the name of the father of Toran Ahirwar in their affidavits. In cross-examination, they both have admitted of not disclosing

the name of father of Toran Ahirwar to their counsel. Such kind of mechanical drafting of affidavits demonstrates that the affidavits in lieu of oral

evidence under Order 18 Rule 4, CPC were prepared not under the instructions of the deponents, but the deponents were made to sign on it.

It has also come on record that two of the persons, namely, Sunil and Mukesh, against whom allegations were made, were cited as petitioner's

witnesses,but were given up vide order dated 8. 05.2017. It has also come on record that Vishal Rawal's uncle is senior worker of BJP. Allegations

have been made against Vishal Rawal of distributing certain pamphlets at the instance of respondent no.1. One of the witnesses has categorically

admitted that he had given name of Vikas Rawal and not of Vishal Rawal. This again demonstrates that there is lack of coherence in the allegations,

pleadings and evidence which has been brought on record. Petitioner cannot be permitted to take the advantage of his own shortcomings and mistakes

and, therefore, the evidence of his witnesses, which is contrary to the pleadings, contradictory and admittedly not as per their instructions, cannot be

made a basis to hold that corrupt practice was performed by respondent no.1. Therefore, it is apparent that there is inadequacy of evidence produced

by the election petitioner in order to discharge the onus to prove the corrupt practice alleged. In fact, the Hon'ble Supreme Court in the case of M. J.

Jacob (supra) in para 40 has laid down that the election result should not be lightly set aside and the will of the electorate should ordinarily be

respected. Setting aside the election is a serious matter and should not have been done lightly. Even five ingredients mentioned in the case of M.J.

Jacob (supra) have not been proved. Merely, the margin of victory between the petitioner and respondent no.1 being thin is not sufficient ground to

hold that certain material brought on record was published and circulated at the instance of respondent no.1. In absence of any such nexus between

the material published and distributed and respondent no.1, the onus of which was on the petitioner to establish, it cannot be held that respondent no.1

adopted corrupt practice as narrated in Section 100 (1) (b) (d) (iv), Section 123 (3-A) and Section 123 (4) of the Act of 1951. Similarly, since this

Court has held that such petitioner has since failed to show that such material was circulated in Tahsil Sironj on 23.11.2013 on the directions of

respondent no.1, it cannot be held that such material amounted to character assassination of the petitioner. In fact in the light of the judgment in the

case of P.C. Thomas (supra), the benefit is to be given to the Returned Candidate. Therefore, issues no. 1 and 2 are to be decided in negative and are

decided as such.

Issue no.6 is whether the petition is frivolous and vexatious and hence the same can be dismissed imposing exemplary cost under Section 35-A

CPC. Section 35-A of CPC deals with compensatory costs in respect of false or vexatious claims or defences. It reads as under :-

“35-A. Compensatory costs in respect of false or vexatious claims or defences.- (1) If in any suit or other proceeding, including an execution

proceeding but excluding an appeal or a revision, any party objects to the claim or defence on the ground that the claim or dénce or any part of it is,

as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, as against the objector,

such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court, if it so thinks fit, may, after recording its reasons for

holding such claim or defence to be false or vexatious, make an order for the payment to the objector by the party by whom such claim or defence has

been put forward, of costs by way of compensation.â€​

Reading of Section 35-A of CPC in consonance with the pleadings in the petition leads to a primary impression that though the petitioner has failed

to prove corrupt practices as narrated under Section 100 (1) (b) (d) (iv), Section 123 (3-A) and Section 123 (4) of the Act of 1951, but at the same

time, before awarding costs, the Court is to satisfy itself that the claim was false or vexatious to the knowledge of the party, the interest of justice

require awarding of such costs; but where evidence on record is merely found insufficient to prove a corrupt practice, it cannot be said that the plea

raised by the petitioner were false or vexatious in totality and did not provide initial impetus to contest on the basis of such material. Neither any

vexatious motive has been proved nor the respondent has proved that the pleadings of the petitioner were altogether groundless. Therefore, in view of

such existing facts, grant of compensatory costs will not be within the domain of the provisions of Section 35-A, CPC. Therefore, this Court has

decided issues no.1 and 2 against the election petitioner, but at the same time it is of the opinion that there is no sufficient material to hold the election

petition to be frivolous and vexatious resulting in grant of compensatory costs as envisaged under Section 35-A, CPC, therefore, this issue is answered

in negative and plea for payment of compensatory costs is negatived.

Relief and costs : In view of the aforesaid discussions, this election petition deserves to be dismissed for the reasons that the petitioner has failed to

prove involvement of respondent no.1 in corrupt practices as defined in the Representation of the People Act, 1951. The petitioner has filed to prove

consent of respondent no.1 as is envisaged under Section 100 (1) (b) or 100 (1) (d) (iv) of the Act of 1951. Similarly, no case is made out under

Section 123 (3-A) of the Act of 1951 of attempting to promote, feelings of enmity or hatred between different classes of the citizens of India on

grounds of religion, race, caste, community, or language. Even on the grounds under Section 123 (4) of the Act of 1951 showing that there was any

publication by respondent no.1 or his agent or by any other person with the consent of a candidate or his election agent materially affecting the result

of the election, the petitioner has failed to prove his case against respondent no.1 or any other respondents. Thus, the petition is dismissed. However,

the parties shall bear their own costs.