Thakur Sen Negi vs Dev Raj Negi and Another

V.P. Gupta, J.—By filing this election petition Under Sections 80, 81, 100 101 of the Representation of People Act, 1951 (hereinafter the Act), the Petitioner has challenged the election of Respondent No. 1 from Kinnaur (Scheduled Tribe) Assembly constituency (hereinafter the constituency) of the Himachal Pradesh Legislative Assembly.

The Election Commissioner issued a notification regarding elections to the constituency and the following programme was issued:

Last date for filing nomination papers .. 8-2-1985 (Friday) Date of scrutiny of nomination papers .. 9-2-1985 (Saturday) Last date of withdrawal .. 11-2-1985 (Monday) Date of polling, if necessary .. 25-5-1985 (Saturday) Date of counting and declaration of result .. 28-5-1985 (Tuesday)

The Petitioner and Shri Ram Lal filed their nomination papers as independent candidates, while Respondents nos. l and 2 filed their nomination papers as nominees of Congress (I) party. Before the last date of withdrawal, Shri Ram Lal (Independent) and Respondent No. 2 withdraw their candidature. Thus the Petitioner and Respondent No. 1 only remained in the field. Respondent No. 2 was, in fact, a covering candidate of Respondent No. l and he was later on appointed as election agent by Respondent No. 1 and he worked as an election agent for Respondent No. 1.

Total number of 24536 votes was polled out of which 834 votes were declared invalid. 10843 votes were polled in favour of the Petitioner and 12859 in favour of Respondent No. 1. The Respondent No. l was thus declared elected to the constituency on 28-5-1985 and the Petitioner lost the election by a margin of 2016 votes.

The Petitioner now alleges that the Respondents nos. l and 2 have severely or jointly committed corrupt practices of ''bribery'', ''undue influence'' by publication of statement of facts which were false and which were either believed to be false or not believed to be true by either or both the Respondents in relation to the personal character or conduct of the Petitioner as defined Under Sections 123(1) and 123(2) and 123(4) of the Act. He also alleges that the Respondents have committed corrupt practices u/s 123(5) of the Act by hiring or procuring, whether on payment or otherwise vehicles for the free conveyance of the electors to and from polling stations and u/s 123(7) of the Act by obtaining or procuring or abetting or attempting to obtain or procure the assistance (other than the giving of votes) in the furtherance of the prospects of election of Respondent No. 1 from all prohibited classes of government servants.

It is alleged that the Chief Minister of Himachal Pradesh toured various places of the constituency from 11-5-1985 to 23-5-1985 with Respondent No. 1 in connection with election campaign and addressed several election meetings at various places on various dates as are mentioned in para 1(a) of the petition. The Chief Minister acted as an agent of Respondent No. 1, and Respondent No. 1 participated in the various meetings addressed by the Chief Minister and usually occupied a seat on the Chief Minister''s dais. The Respondent No. 1 also never objected or disapproved the various speeches made by the Chief Minister during the elections. In the course of speeches and talks, the Chief Minister had been telling the voters in general that if they did not cast their votes in favour of Respondent No. 1 then the developmental works and schemes of their villages would be discontinued or abandoned and no new schemes or works would be sanctioned. On the other hand, if they vote for Respondent No. 1, then all the works and schemes old as well as new would be through. There was thus direct inducement, threat, coupled with a promise with the consent of Respondent No. 1 to vote for Respondent No. 1 and not to vote for the Petitioner and it was a corrupt practice Under Sections 123(1) and 123(2) of the Act. The Petitioner has given particulars of such corrupt practices in paras l(a)(ii) to 7(d)(xviii) of the petition.

The counsel for the Respondents objected that the Petitioner had not given full particulars of the corrupt practices and a full statament of facts. The counsel for the Petitioner agreed to supply the full particulars of corrupt practices and a full statement of facts by filing a supplementary further statement. This Court thus directed the Petitioner to supply full particulars of corrupt practices including as full a statement as far as possible for him vide order dated 26-12-1985. The Petitioner then filed further better particulars on 7-1-1986 regarding corrupt practices mentioned in para 7 of the petition.

It is also alleged that Respondents Nos. 1 and 2 and Sohan Singh, an agent of Respondent No. 1 being a permanent office Secretary of Congress (I) District Committee has with the consent of the Respondents Nos. 1 and 2, committed corrupt practice of publishing false statements relating to the personal character and conduct of the Petitioner which statement they believed to be false and did not believe to be true and which statements were reasonably calculated to prejudice the prospects of the Petitioner''s election. The Respondent No 2 and Sohan Singh, with the consent of Respondent No. 1, got posters (Ex P-1) printed, published and distributed throughout the constituency. In the poster Ex. P-1 instances of nepotism and corruption by misuse of discretionary funds by the Petitioner in favour of his relatives were falsely given and personal character and conduct of the Petitioner was attacked.

The Petitioner alleges that all the thirteen allegations in the poster Ex. P-1 are absolutely false and baseless and these posters were published deliberately to prejudice the Petitioner�s prospects of election. The Respondents and Shri Sohan Singh knew these statements in Ex. P-1 to be false or did not believe the same to be true. The posters were distributed to the electors in the constituency and were also read out in the public meetings. The details of such corrupt practices are given in para 8(i) to 8(xv) of the petition.

It is further alleged that Respondents Nos. 1 and 2 hired or procured vehicles for the free conveyance of electors to and from the polling stations. The details of such vehicles and their use is given in para 9(i) and 9(ii) of the petition.

The Petitioner further alleges in para 10 of the petition that Respondents Nos. 1 and 2 had obtained and procured or abetted or attempted to obtain and procure the assistance from such persons in the service of the Government and belonging to prohibited classes as is defined Under Sub-section (7) of Section 123 of the Act. The details of such corrupt practices are given in para 10(i) to 10(iv) of the petition.

With these allegations the Petitioner prays that the election of Respondent No. 1 to the constituency be declared void and be set aside because corrupt practices were committed by Respondent No. 1, his agents with his consent and by his election agents during the elections to the constituency. The Petitioner further prays that Respondents Nos. 1 and 2 be debarred from contesting any future elections for a period of five years.

The petition is contested by the Respondents Nos. and 2 who have filed separate written statements. These Respondents deny the various allegations regarding corrupt practices, and they have also raised various preliminary objections.

Replication was filed by the Petitioner, in which he reasserted the various allegations and alleged that the preliminary objections were not maintainable.

On the pleadings of the parties, the following preliminary issues were framed on 11-10-1985:

Whether the election petition does not contain a concise statement of material facts and the petition does not disclose a cause of action as alleged in para 1 of the preliminary objections in the written statement? If so with what effect.

Whether the petition does not set forth full particulars of corrupt practices and a full statement of the facts as alleged in para 2 of the preliminary objections in the written statement? If so with what effect?

Whether the petition has not been verified in accordance with law as alleged in para 3 of the preliminary objections in the written statement? If so with what effect?

Whether the affidavit accompanying the election petition is not in accordance with law as alleged in para 4 of the preliminary objections in the written statement? If so with what effect?

Whether the petition is vague, evasive and of general character as alleged in para 6 of the preliminary objections in the written statement? If so with what effect?

Whether there are any allegations which are self contradictory or mutually destructive as alleged in para 5 of the preliminary objections in the written statement? If so with what effect?

Relief.

Vide my order dated 26-12-1985 issues Nos. 3 to 6 were decided against Respondent No. 1. On issue No. 2 the Petitioner was directed to supply full particulars of corrupt practices including as full a statement as far as possible. Issue No. 1 was left undecided and was ordered to be decided along with issues on merits.

The full particulars of the corrupt practices in pursuance to the order dated 26-12-1985 were supplied by the Petitioner and the following issues on merits were framed on 8-1-1986:

Whether the Respondent No. 1 is guilty of having committed a corrupt practice of bribery as alleged in para 7(a)(i) to (vii) of the petition?OPP

Whether the Respondent No. 1 has committed a corrupt practice of undue influence as alleged in para 7(a)(vii) to (xviii) of the petition?OPP

Whether the Respondents or their agents or other person, with the consent of the candidate, published a statement of fact which is false and which the Respondents either believed to be false or do not believe to be true in relation to the personal character of the Petitioner and such statement was reasonably calculated to prejudice the prospects of the Petitioner''s election, as alleged in para 8 of the petition? If so, whether the same is a corrupt practice within the meaning of Section 123(4) of the Representation of People Act, 1951?OPP

Whether the Respondent No. 1 hired or procured, whether on payment or otherwise, any vehicle himself or through his agent or through any other person with the consent of the Respondents for the free conveyance of any elector to or from any polling station, as alleged in para 9 of the petition? If so, whether the same is a corrupt practice within the meaning of Section 123(5) of the Representation of People Act?OPP

Whether the Respondents obtained or procured or abetted or attempted to obtain or procure themselves or through their agents or by any other person with the consent of the Respondents, any assistance for the furtherance of the prospects of the Respondent No. 1 election from any person in service of the Government and belonging to the classes mentioned in Section 123(7) of the Representation of People Act? If so, with what effect?OPP

Relief.

The parties have produced evidence on various issues. Arguments have been heard. My findings on the various issues are as follows:

issues Nos. 1 and 2.

Both these issues are inter-linked. The relevant portion of Section 123 of the Act for deciding issues nos. l and 2 reads as follows:

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

(1) ''Bribery'', that is to say--

(A)any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification to any person whomsoever, with the object, directly or indirectly of inducing:

(a) x x x x x x x x x x

(b) an elector to vote or refrain from voting at an election, or as a reward to:

(i) x x x x x x

(ii) an elector for having voted or refrained from voting;

(B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward:

(a) X X X X X X X X X

(b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature.

Explanation--For the purposes of this clause the term ''gratification'' is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of any election and duly entered in the account of election expenses referred to in Section 78.

(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:

Provided that:

(a)without prejudice to the generality of the provisions of this clause any such person as is referred to therein who:

(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or

(ii) x x x x x x x x

shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this Clause:

(b)a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause.

(3) x x x x x x x x x (3-A) x x x x x x x x (4) x x x x x x x x x (5) x x x x x x x x x (6) x x x x x x x x (7) x x x x x x x x x

The Petitioner alleges that Shri Virbhadra Singh Chief Minister of Himachal Pradesh (RW 12) had an election tour of Kinnaur constituency and he visited different places in Kinnaur constituency from 11-5-1985 to 23-5-1985 with the consent and knowledge of Respondent No. 1. Further Shri Virbhadra Singh (PW 12) with the consent and knowledge of Respondent No. 1 addressed several public meetings at various places in the constituency and gave promises to the electors of the constituency and induced them to cast their votes in favour of Respondent No. 1 and against the Petitioner. Shri Virbhadra Singh being the Chief Minister and Congress (I) leader in Himachal Pradesh was a person in authority. He canvassed the electors to cast their votes in favour of Respondent No. 1, and offered or promised several benefits in case the electors voted in favour of Respondent No. 1. The electors were also threatened with injury in case they did not vote for Respondent No. 1. The allegations are that in the case of voting in favour of Respondent No. 1, all the pending works of Kinnaur constituency were to be carried through and new developmental works were to be taken in hand, but in the case of electors not voting for Respondent No. 1, then the old pending developmental works were to be stopped and new developmental works were not to be taken-in hand.

The Petitioner further alleges that the Respondents and Shri Virbhadra Singh directly and indirectly induced the electors to vote in favour of Respondent No. 1 and there was a direct and indirect interference or an attempt was made to interfere with the free exercise of the electoral rights by the electors, who were threatened with injury. It is alleged that the Respondent No. 1 and Shri Virbhadra Singh, promised the opening of a Middle School at Chitkul, construction of Chauling-Urni-Miru road, repairs of the Rarang Bhudhist temple, getting the grazing problems of the shepherds solved, construction of Ramni Jhoola, the up gradation of a Middle School in Pangi to that of a High School etc. It is further alleged that wheat was distributed to the villagers and cable-ways/rope-ways provisions were also promised. The allegations regarding bribery and undue influence are in paras 7(a)(i) to 7(a)(vii) and 7(a)(vii) to 7(a)(xviii) of the petition. Further better particulars regarding these allegations and furnished in paras 1 to 38 of the better particulars filed in pursuant to court''s order dated 26-12-1985.

Shri Virbhadra Singh, Chief Minister (RW 12) admits having addressed public meetings in villages Pooh, Sangla, Peo and Kalpa in the presence of Respondent No. 1. He also addressed several other public meetings but does not admit the presence of Respondent No. 1 in these other meetings. According to the tour programme (Ex. P-2), Shri Virbhadra Singh toured various villages in Kinnaur constituency. This tour of the Chief Minister was in connection with the elections which were to be held on 25-5-1985 in the constituency.

The evidence in support of the various allegations mainly consists of oral evidence and for appreciation of oral evidence in election matters, the proceedings are to be regarded as proceedings of a quasi-criminal nature wherein strict proof of the allegation of corrupt practice is necessary, because it is easy to level a charge of corrupt practice but difficult to prove it. If the charge is sought to be proved by oral evidence then the, court has to be very careful in scrutinising the oral evidence and the court should not accept it unless the evidence is credible) trustworthy, natural and showing beyond doubt the commission of corrupt practice as alleged.

In Rahim Khan Vs. Khurshid Ahmed and Others, it is held that:

However, we have to remember another factor. An election once held is not to be treated in a lighthearted manner and defeated candidates or disgruntled electors should not get away with it by filing election petitions on unsubstantial grounds and irresponsible evidence, thereby introducing a serious element of uncertainty in the verdict already rendered by the electorate. An election is a politically sacred public act, not of one person or of one official, but of the collective will of the whole constituency. Courts naturally must respect this public expression secretly written and show extreme reluctance to set aside or declare void an election which has already been held unless clear and cogent testimony compelling the court to uphold the corrupt practice alleged against the returned candidate is adduced. Indeed election petitions where corrupt practices are imputed must be regarded as proceedings of a quasi-criminal nature wherein strict proof is necessary. The burden is therefore heavy on him who assails an election which has been concluded.

In M. Narayana Rao Vs. G. Venkata Reddy and Others, it is held that:

(1) That the charge of commission of corrupt practice has to be proved and established beyond doubt like a criminal charge or a quasi-criminal charge but not exactly in the manner of establishment of the guilt in a criminal prosecution giving the liberty to the accused to keep mum. The charge has to be proved on appraisal of the evidence adduced by both sides especially by the election Petitioner.

(2)That the election held and results declared on the choice of the voters should not be lightly interfered with or set aside by a court of law. After all, in the holding of a fresh election are involved numerous botherations, tremendous expenses, loss of public time and money and the uncertainty of the public representation from a particular Constituency.

(3)A charge of corrupt practice is easy to level but difficult to prove. If it is sought to be proved only or mainly by oral evidence without there being contemporaneous documents to support it, court should be very careful in scrutinising the oral evidence and should not lightly accept it unless the evidence is credible, trustworthy, natural and showing beyond doubt the commission of corrupt practice, as alleged.

(4)It must always be borne in mind that the consequences of setting aside of an election on the ground of corrupt practice are very serious for the candidate concerned as well as others involved in it. A Court, therefore, should reach its conclusion with care and caution taking into consideration the broad probabilities, the natural conduct of the persons involved and the special situation in which a corrupt practice is alleged to have been committed.

24A. In Surinder Singh Vs. Hardial Singh and Others, , it has been observed in para 23 as follows:

It is thus clear beyond any doubt that for over 20 years the position has been uniformly accepted that charges of corrupt practice are to be equated with criminal charges and proof thereof would be not preponderance of probabilities as in civil action but proof beyond reasonable doubt as in criminal trials. We are bound by the decision of the larger Bench in Mohan Singh Vs. Bhanwarlal and Others, as also by decisions of co-ordinate benches and do not feel inclined to take a different view.

24B. In Ram Chand Bhatia Vs. Shri Hardyal, it is observed in para 25 as follows:

Election proceedings involving charge of corrupt practice are of quasi-criminal nature and it was for the election Petitioner to prove beyond reasonable doubt all the necessary facts which would establish the allegation of corrupt practices that have been alleged in the election petition. It will be unsafe to accept the oral evidence on its face value without seeking for assurance from some other circumstances or unimpeachable document.

In view of the law laid down in the aforesaid judgments it is to be determined as to whether in the present case the Petitioner has been able to prove the charges of corrupt practice leveled by him u/s 123(1) and 123(2) of the Ac.

Now, the public meetings at Pooh, Sagnla, Peo and Kalpa were held on 18-5-1985, 21-5-1985, 22-5-1985 and 20-5-85 respectively. These public meetings were in connection with the elections and were addressed by Shri Virbhadra Singh (RW 12) in the presence of Respondent No. 1.

At Pooh, the meeting was held on 18-5-1985 at 6.30 p.m. and the allegations in para 26 of the further better particulars are that threats were given to the voters and the bargains were also made to the persons present in the meeting who, amongst others, were S/Shri Chhering Bhag, Bhag Singh, Man Singh, Ghowang Dorje, Roshan, Pritam, Rattan Chand, Ganga Ram, Phurbu Chhering and Shankar Lal of village Pooh.

The Petitioner has not produced any of the above named persons as a witness to prove these allegations. According to the election programme (Ex. P-2) the Chief Minister Shri Virbhadra Singh (RW 12) was to arrive at Pooh at 5.30 p.m. on 18-5-1985 to address an election meeting. He was to stay at Pooh for the night and was to leave Pooh at 8 A.M. on 19-5-1985.

Shri Virbhadra Singh (RW 12) states that in his speech at village Pooh, he never proclaimed that if the electors vote for Respondent No. 1 then all their schemes and developmental works would be through. He further states that he did not declare in his speech that in case the electors do not cast their votes in favour of the Respondent No. 1, then they would not get any funds and their old developmental schemes would be stopped and no new schemes would be taken up and further he never promised the giving of rope-ways, Jhoolas, water channels, veterinary hospitals and roads to the electors in the event of their casting votes in favour of Respondent No. 1. He denied all the various allegations of corrupt practices.

Shri Dev Raj Respondent No. 1 (RW 1) also corroborates the statement of Shri Virbhadra Singh (RW 12) for Pooh meeting and denies all the allegations of corrupt practices.

As the Petitioner has not produced any evidence with respect to the various promises or threats given during the course of the meeting held at Pooh by the Chief Minister or by Respondent No. 1, therefore, it is held that the allegations regarding Pooh meeting contained in para 26 of the better particulars are not proved.

The other election meeting is alleged to have been addressed by Shri Virbhadra Singh, Chief Minister (RW 12) in the presence of Respondent No. 1 in village Sangla on 21-5-85 at about 7 P.M. In para 35 of the better particulars, it is alleged that threats were given and bargains were made in this meeting and several persons including S/Shri Goverdhan Singh, Joginder Singh, Subhash Chand and Jai Chand were present. The allegation has been denied in the written statement by Respondent No. 1. The Chief Minister Shri Virbhadra Singh (RW 12) also denied the allegations in his statement.

The Petitioner has produced S/Shri Vidya Sukh (PW 10), Laxmi Bhagat (PW 11), Jai Chand (PW 12), Maya Bhagat (PW 13), Goverdhan Singh (PW 138), Narain Bhagat (PW 139), Joginder Singh (PW 140), Mydop Dorje (PW 141), Subhash Chand (PW 142), Satyawan (PW 143), Gopal Bhagat (PW 144), Bhanu Parkash (PW 145) and Bharat Ram (PW 146) to prove this allegation.

The names of S/Shri Vidya Sukh (PW 10), Laxmi Bhagat (PW 11) Maya Bhaeat (PW 13), NarainBhagat (PW 139), Mydoop Dorje (PW 141), Satyawain (PW 143), Gapal Bhagat(PW 144), Bhanu Parkash (PW 145) and Bharat Ram (PW 146) are not mentioned in para 35 of the further better particulars. Hence the statements of these witnesses are to be ignored and it is presumed that this evidence was procured by the Petitioner at a later date and is an after thought.

Jai Chand (PW 12) states that a paper was read in the meeting by Shri Gian Singh Advocate (RW 40) in which there was a mention of giving of several grants to several persons who were relations of the Petitioner. After Gian Singh (RW 40) the Respondent No 1 addressed the meeting and also apprised the public about the various details regarding distribution of money by the Petitioner to his own relations. the Respondent No. 1 also appealed to public to vote for him and that in case he succeeds then he would get the developmental works of the villagers done, but if the villagers do not vote for him then the developmental works of the villagers would not be done. Thereafter Shri Virbhadra Singh Chief Minister (RW 12) also addressed the meeting and told the public that the votes should be cast in favour of Respondent No 1 so that the public gets all the developmental works of the village completed. If, however, they do not vote for Respondent No. 1 then the developmental works would not be done and the same would be stopped. This Wit-ness also produced a copy of the poster Ex. P-1 and states that it was given to him by Respondent No. 2 and that many such posters were distributed to the electors.

Goverdhan Singh (PW 138) does not say anything about the meeting at Sangla Joginder Singh (PW 140) corroborates the statement of Jai Chand (PW 12) but he was a polling agent of the Petitioner in 1985. He also contested the Panchayat elections against Shri Bhishuk Sen (RW 18) who has appeared as a witness of Respondent No 1. He was defeated by Bhishuk Sen (RW 18). Joginder Singh (PW 140) is thus an interested and a partisan witness and therefore, he cannot be relied.

Maidup Dorje (PW 141) also corroborates the statement of Jai Chand (PW 12), but he too is a supporter of the Petitioner and supported him during 1985 elections. His statement, therefore, cannot be believed.

The Respondents have produced Bhishuk Sen (RW 18), Uggarjit (RW 19), Kedar Suka (RW 20), Badripur (RW 21), Anmol Singh (RW 22) and Midal Singh (RW 23) in rebuttal. All these witnesses state that no threats or promises were-given by the Chief Minister or the Respondent No. 1 in the public meetings at Sangla. The Chief Minister (RW 12) and Respondent No. 1 (RW 1) have also denied the various allegations in specific and unambiguous terms Respondent No. 1 (RW 1) or Shri Virbhadra Singh (RW 12) were not cross-examined for such speeches having been made during the election campaign at Sangla. Shri Gian Singh (RW 40) has also denied having made any speech of the nature as has been alleged in the petition or having read out any paper of the type of Ex. P-1 during the elections. The Respondent''s witnesses RW 19 to 23 appear to be independent and disinterested persons.

In view of the evidence discussed above, it is not safe to rely upon the oral statement of Shri Jai Chand (PW 12) only. It is, therefore, held that the allegations of this para with respect to the speeches in public meetings at Sangla are not proved.

The next allegation in para 31 of the better particulars is that a public meeting was held at Kalpa on 20-5-1985 at about 6/6.30 P.M. and S/Shri Keshav Chand (PW 129), Gian Singh (RW 40), Bhag Chand and Balwant Singh were present in this meeting. Out of the aforesaid persons the Petitioner has only produced Keshav Chand (PW 129) as a witness in support of this allegation. He has also produced Harish Negi (PW 126) and Dharam Lal (PW 127) to prove this allegation. The statement of Harish Negi (PW 126) and Dharam Lal (PW 127) cannot be considered in view of the fact that their names are not mentioned in the petition or further better particulars. Keshav Chand (PW 129) was a polling agent of the Petitioner during the elections and is therefore, an interested witness. He also does not support the Petitioner regarding various allegations because he only states that Shri Virbhadra Singh, Chief Minister, appealed to public to vote for Congress candidate and in case the Congress candidate wins the elections then the developmental works of the village would be done. He further states that Shri Gian Singh (RW 40) read a paper in which names of several persons were given to whom the money had been distributed by the Petitioner. The evidence of this witness does not help the Petitioner for proving the various allegations of corrupt practices. Although the names of S/Shri Harish Negi (PW 126) and Dharam Lal (PW 127) are not mentioned by the Petitioner, still their statements do not prove the allegations of bribery and undue influence. In view of the above discussion, the allegations with respect to bribery and undue influence of para 31 of the better particulars are not proved.

The next allegation in para 38 of the better particulars is to the effect that a meeting was held in village Peo on 22-5-1985 at about 6 P.M. and that S/Shri Dalip Singh, Varinder Singh and Dilsukh were present in this meeting besides many other persons. The Petitioner has only produced Varinder Singh (PW 130) out of the persons mentioned above. Varinder Singh (PW 130) is the son of Midal Singh (PW 131) who was admittedly an active worker, supporter and polling agent of the Petitioner in the elections. The statement of Varinder Singh (PW 130), therefore, does not inspire confidence and it is not safe to rely upon his oral statement when he is an interested witness.

The Petitioner has also produced Harish Negi (PW 126) and Midal Singh (PW 131) in support of this allegation. Harish Negi (PW 126) does not state a single word regarding this allegation and is of no help to the Petitioner. He was a supporter and counting agent of the Petitioner during the elections. Midal Singh (PW 131) also does not support the Petitioner with respect to the various allegations and states that he never attended any meeting of the Congress. His statement is, therefore, of no help to the Petitioner.

Respondents have produced Hari Kishan (RW 47), Harish Chander (RW 48), Suraj Bansi (RW 49) and Pradeep Kumar (RW 50) to rebut these allegations. These witnesses state that Shri Virbhadra Singh, Chief Minister, Respondent No. 1 and Shri Gian Singh (RW 40) did not make any speeches of the type as have been alleged in the petition or the further better particulars. Suraj Bansi (RW 49) is a member of the Youth Congress (I) but the other witnesses appear to be disinterested and independent persons. Without any rebuttal evidence of the Petitioner, I find that the Petitioner has failed to prove the various allegations of the petition as are alleged in para 38 of the better particulars.

In view of the above discussion it is held that the Petitioner has not been able to prove the various allegations with respect to the speeches made by the Chief Minister or Respondent No. 1 or Shri Gian Singh (RW 40) in the four villages of Pooh, Sangla, Kalpa and Peo where admittedly the Respondent No. 1 was accompanying the Chief Minister.

The Supreme Court in Bhanu Kumar Shastri Vs. Mohan Lal Sukhadia and Others, observed in the cases of elections where ministers were the candidates, that the normal bona fide acts of persons who happen to be ministers have to be kept separate from the abuse of power and resources which are not available to their opponents and the two Supreme Court judgments Om Prabha Jain Vs. Abnash Chand and Another, and Ghasi Ram Vs. Dal Singh and Others, were relied upon. In Ghasi Ram (supra) it was observed that a corrupt practice involving bribery must be fully established. The evidence must show clearly that this promise or gift directly or indirectly was made to an elector to vote or refrain from voting at an election. In Om Prabha Jain (supra) it was observed that a minister in the discharge of his duties may be required to do some acts of administration including the granting of money for the uplift of certain communities and this action of the minister is not to be construed against him unless it can be established that there was a bargain with the voters for getting them assistance at the election. Relying upon the judgment in Ghasi Ram (supra), Om Prabha (supra) and Bhanu Kumar (supra), it was observed in Harjit Singh Mann Vs. S. Umrao Singh and Others, that an element of bargaining is necessary in the corrupt practice of bribery. If a minister redresses the grievances of a class of the people of a locality on the eve of an election, it is not a corrupt practice unless the minister obtains promises from the voters in return as a candidate for his help. The evidence must show that the promise was made (directly or indirectly) to an elector to induce him to vote or refrain from voting.

In S. Iqbal Singh Vs. S. Gurdas Singh and Others, it was observed that promise of grant for construction of Dharamshala by the person in authority who is the contesting candidate and promise to carry out many remedial measures to benefit the people is not resorting to bribery or bargaining for votes.

In Shri Baburao Patel and Others Vs. Dr. Zakir Husain and Others, after discussing various judgments on the question of ''undue influence'', it was observed in para 28 as follows:

It will be seen from the above review of the cases relating to undue influence that it has been consistently held in this country that it is open to Ministers to canvass for candidates of their party standing for election. Such canvassing does not amount to undue influence but is proper use of the Minister''s right to ask the public to support candidates belonging to the Minister''s party. It is only where a Minister abuses his position as such and goes beyond merely asking for support for candidates belonging to his party that a question of undue influence may arise. But so long as the Minister only asks the electors to vote for a particular candidate belonging to his party and puts forward before the public the merits of his candidate it cannot be said that by merely making such request to the electorate the Minister exercises undue influence. The fact that the Minister''s request was addressed in the form of what is called a whip is also immaterial so long as it is clear that there is no compulsion on the electorate to vote in the manner indicated. It is in the light of these principles that we have to see whether the four allegations made in this case, assuming them to be correct, make out a case of undue influence.

The Petitioner has also made allegations with respect to the speeches made in other villages by the Chief Minister, Shri Virbhadra Singh (RW 12).

Although the Respondents'' evidence is that Respondent No. 1, was not present during these speeches of the Chief Minister, but it is proved that the public meetings in connection with the elections were addressed by the Chief Minister in several villages. In Himachal Pradesh Congress (I) was the ruling party, in May, 1985 and the Chief Minister Shri Virbhadra Singh was the leader of the Congress (I) party at that time. It has therefore, to be presumed that the Chief Minister, Shri Virbhadra Singh addresed public meetings in connection with the election of Respondent No. 1 with the consent of Respondent No. l and that Respondent No. 1 knew about these public meetings. Now if the various speeches made by the Chief Minister fall within the definition of corrupt practice under the heads of ''bribery'' and ''undue influence'' then it will be presumed that this corrupt practice was committed with the consent and knowledge of Respondent No. 1.

I will now deal with the various villages where speeches have allegedly been made on various dates in accordance with the tour programme (Ex. P-2) by the Chief Minister and will discuss if such speeches amount to a corrupt practice within the meaning of Section 123 of the Act.

It is alleged in para I of the better particulars that in village Chaura, the Chief Minister addressed a public meeting on 11-5-1985 and this meeting was attended by several persons including S/Shri Shyama Nand (PW 6), Uttam Bir (PW 4), Devi Singh (PW 5), Bhagat Singh (PW 3) and Dass Mua. Out of these persons Shri Das Mua has not been produced.

Bhagat Singh (PW 3) states that Shri Virbhadra Singh in his speech made in the presence of Respondent No. 1, appealed to the public to vote in favour of Congress (I) candidate because Congress (I) was having the key of the treasury. He informed the public that voting in favour of the Petitioner would amount to throwing their votes in the river. This witness is a young boy aged about 19 years in May, 1986. At the time of the alleged speech, he was only about 18 years and was not even an elector in the constituency. His statement cannot be relied upon.

Shri Uttam Bir (PW 4) states that Shri Virbhadra Singh in a public meeting held in village Chaura on 11-5-1985, requested the public to vote for Respondent No. 1 because Congress (I) was having the key of the treasury and that casting the votes in favour of the Petitioner would amount to throwing the votes in Satluj river. The witness admits having received a letter from the Petitioner in which an enquiry had been made as to whether he had any knowledge about the meeting and could depose about the meeting. The statement of this witness only suggests that canvassing was done for a candidate by a party supporter. No element of bribery or undue influence is disclosed in this statement. Devi Singh (PW 5) also states in the similar terms. He further states that the Chief Minister openly declared that if the public did not vote for Respondent No. 1 then the developmental works of Kinnaur constituency would be abandoned/stopped and the Petitioner was even unable to move an electric pole. This witness could not give the names of any other person who attended the public meeting and states that he informed the Petitioner about all the aforementioned facts after about 6/7 days of the election. He also admits that S/Shri Ganga Singh and Shyama Nand (PW 6) worked for the Petitioner during the election and that the details of the developmental works were not given by the Chief Minister. Shyama Nand (PW 6) has given the names of some persons who attended the meeting, but none of these persons has been produced. He denies having remained as a worker of the Petitioner and contradicts Shri Devi Singh (PW 5). This witness thus cannot be believed.

This type of oral evidence can easily be procured and produced in election disputes where there are party factions.

Respondents'' witnesses S/Shri Roshan Lal (RW 87) Kirpa Ram (RW 88), Sohan Lal (RW 89) and Darshan Dass (RW 91) state that they attended the meeting at Chaura which was addressed by the Chief Minister, Shri Virbhadra Singh. The Chief Minister in this meeting requested the voters to cast their votes in favour of Congress (I) candidate for the reason that in the Centre as well as in the State the Congress (I) had won the elections from most of the constituencies and had formed a Government. These witnesses further state that the Chief Minister did not make any promises or give any threats to electors with a view to secure their votes in favour of Respondent No. 1 The statements of these witnesses are more reliable. It is also a fact that in the Centre as well as in the State of Himachal Pradesh the Congress (I) had won the elections by majority of votes and only a few constituencies in Himachal Pradesh had been left out where polling was to take place later on Kinnaur was one of such constituencies as elections in Kinnaur constituency could not be held in March, 1985 due to unavoidable reasons, that is, the weather conditions. In the State of Himachal Pradesh, Congress (I) after having secured majority of seats was running the Government in May, 1985. In view of the above discussion the allegations of para 1 of the further better particulars for Chaura meeting are not proved.

There are allegations in para 1 of the further better particulars regarding a public meeting at Rupi village, but in view of the orders dated May 16 1986, evidence, with respect to meeting at Rupi is to be rejected Hence this allegation is not being considered.

The next allegation is with respect to a speech having been made by the Chief Minister, Shri Virbhadra Singh in village Nugalsari on II-5-1985. In para 2 of the better particulars it is alleged that in an election meeting at Nugalsari several persons including Bhagat Chand (PW 105), Sagar Sen, Jiwan Lal, Pyare Lal, Jitu Ram, Sohan Lal, Krishan Lal of Nugalsari and Gur Lal, Bukta Sen, Sunder Lal of Chhota Kamba, and Vidya Sen, Mohan Lal and Sunder Lal (PW 112) of Bara Kamba were present. Out of the aforementioned persons only Bhagat Chand (PW 105) off Nugalsari and Sunder Lal (PW 112) of Bara Kamba have been produced.

Shri Bhagat Chand (PW 105) states that a public meeting was addressed by the Chief Minister at Nugalsari on 11-3-198-5 and in this meeting the Chief Minister requested the public to vote in favour of Congress (I) candidate because Congress (I) was in power. This statement does not amount to bribery or undue influence u/s 123 of the Act. Further the statement of this witness is at variance with the pleadings.

Sunder Lal (PW 112) does not state anything in support of the allegations.

The Petitioner has also produced some other witnesses, bewak Ram (PW 8) states that a meeting was held at Nugalsari which was addressed by the Chief Minister Shri Virbhadra Singh, who informed the voters that if the votes were not cast for Congress (I) candidate then the developmental works of Kin-naur constituency would not be through. He further states that he did not see any persons of Chhota Kamba and Bara Kamba in this meeting. According to para 2 of the better particulars, several persons of Chhota Kamba and Bara Kamba were present in this meeting, but this witness does not support this allegation, further this witness was a polling agent of the Petitioner and had worked and supported the Petitioner in the election. He is an interested and partisan witness and cannot be believed.

Similarly Chander Singh (PW 9) is silent about the meeting at Nugalsari. He is also an interested witness because he was the polling agent of the Petitioner.

Amar Singh (PW 108) also does not say anything about bribery and undue influence. This witness could give the date of the public meeting at Nugalsari but was unable to give any other date.

Jagdish Chand (PW 110) is also an interested witness because he was a polling agent of the Petitioner during the election. He also does not say anything about the allegation of bribery or undue influence. Gokal (PW 111) states about the public meeting at nugalsari but he has not stated anything about the bribery and undue influence. He only states that the Chief Minister appealed that votes should be given to Congress (I) candidate because the treasury keys were in the hands of the Congress and Janata had nothing in its hands. According to this witness only the Chief Minister and Pradhan Ganga Singh spoke in the meeting, but according to other witnesses Respondent No. 1 also spoke in the meeting. He appears to be a tutored witness because except for the date 11th May, 1985 he could not give the dates or details of any other meetings. He was also a polling agent of the Petitioner and is thus an interested witness. According to the pleadings the statements of Bhagat Chand (PW 105) and Sunder Lal (PW 112) can only be considered but their statements are not trustworthy and cannot be relied for the purpose of proving the Petitioner''s allegations.

In rebuttal the Respondents have produced S/Shri Inder Sen Negi (RW 81), Sandup Ram (RW 82), Panama Dor-je (RW 83), Makkar Sen (RW 84) and Bhagjit (RW 85). All these witnesses state that they attended the meeting addressed by Shri Virbhadra Singh, Chief Minister at Nugalsari on 11-5-1985 and the Chief Minister only requested the public to cast their votes in favour of Congress (I) candidate. No threats or promises were given by the Chief Minister to the electors in order to secure votes in favour of Respondent No. 1.

The alleged meeting was held on 11-5-1985 while the elections were scheduled to take place on 25-5-1985. If the speeches by the Chief Minister were prejudicial to the Petitioner then the Petitioner [who is a seasoned politician for the last about 15/20 years) would have complained to the higher authorities about the misuse of the public office by the Chief Minister. In view of the above discussion the various allegations of para 2 of the further better particulars regarding Nugalsari meeting are not proved.

The Petitioner further alleges in the petition and in para 2 of the further better particulars that at about 5/6 P.M. on 11-5-1985 a public meeting was held in village Bari and the same was addressed by the Chief Minister in which he repeated the same promises, offers as well as threats to the electors as were made in the meetings at Chaura and Nugalsari where besides other persons S/Shri Sita Ram, Basu Dev, Dhan Pal, Jagdish, Bhagpur and Gopal Residents of Bari were present. The Petitioner has not examined any person mentioned in para 2 of the better particulars although the Petitioner knew the names of these persons. The non-production of these persons leads to an inference that these persons would not have supported the Petitioner for Bari meeting.

The Petitioner has, however, examined Seh Dev (PW 115), Bhajan Lal (PW 116), Jagmohan (PW 117) and Udey Singh (PW 118) to prove the allegations regarding Bari meeting, but their evidence has to be rejected as their names are not mentioned in the pleadings. Further Seh Dev (PW 115) was a polling agent of the Petitioner during the elections as is admitted by Bhajan Lal (PW 116). Seh Dev (PW 115) states that the Chief Minister asked the villagers to vote for Congress (I) can didate with assurance that all their schemes and the works of road would be completed within two years and the residents would also get a veterinary hospital. He does not state anything about the allegations made in the further better particulars.

Bhajan Lal (PW 116) and Jagmohan Singh (PW 117) and Udey Singh (PW 118) also corroborate Seh Dev (PW 115). Bhajan Lal (PW 116) and Udey Singh (PW 118) are chance witnesses and they could not name any person who attended the meeting. Shri Virbhadra Singh (RW 12) has denied the various allegations. Basu Dev (RW 71) Pradhan of Gram Panchayat Bari also states that no such promises/offers were made by the Chief Minister and no threats were given in order to secure votes for Respondent No. 1. In view of the above discussion the allegations regarding meeting at Bari are not proved.

The next allegation is regarding a public meeting at village Ponda on 11-5-1985. In para 3 of the better particulars, it is alleged that Shri Bhagat Ram (PW 119) and Bhatri Chand were present in this meeting besides other persons. Bhatri Chand has not been produced. Bhagat Ram (PW 119) has not supported the allegations. He only states that Respondent No. 1 addressed a public gathering in the presence of Chief Minister Shri Virbhadra Singh where Respondent No. 1 asked the public to vote in his favour and in case the votes are not cast in his favour then old and new demands of the public would not be fulfilled. He does not state anything about any speech having been made by the Chief Minister and has in fact set up a totally new case.

The Respondents have produced Ganga Devi (RW 72) Pradhan of the Mahila Mandal who appears to be an independent witness. She has stated that no promises/offers were made by Respondent No. 1 or the Chief Minister and no threats were given by Respondent No. 1 or the Chief Minister in the-public meeting at Ponda. Thus the allegations regarding Ponda meeting are not proved.

In para 4 of the better particulars it is alleged that a public meeting was held at Sungra on 12-5-1985 at about 9/10 A.M. where also Respondent No. 1 committed corrupt practice of bribery and undue influence. It is alleged that Govind Singh (PW 95) and Ram Kidar and a manager of local temple were present in this meeting at Sungra. Now Ram Kidar and manager of the local temple have not been produced. Govind Singh (PW 95) does not state anything about this meeting. In these circumstances; ft is held that the allegations with respect to the" meeting at Sungra are not proved.

The next allegation is with respect to public meeting held in villages Nichar and Bhabanagar on 12-5-1985. These allegations are in paras 5 and 6 of the further better particulars. Regarding Nichar it is alleged that amongst others Daulat Ram, Hukam Singh, Man Singh and Sonam Dupke all residents of Nichar were present in the meeting. None of these persons has been produced and there is in fact no evidence regarding meeting at Nichar.

For Bhabanagar meeting it is alleged that Rattan Singh, Jai Parkash (PW 84), Vidya Sagar, Joginder Singh, Ashok Kumar (PW 162), Pradhan Bhupesh, Devi Ram (RW 65), Chhering Gialoo (PW 82) Sheru Lal, Mohan Singh and Vinay Singh were present. There is no evidence to prove these allegations.

Chhering Gialoo (PW 82), Davinder Singh (PW 85), Ashok Kumar (PW 162), Jai Parkash (PW 84) and Devi Ram (RW 65) who have been produced as witnesses do not state anything about Bhabanagar meeting. No question was asked from Devi Ram (RW 65) in cross-examination regarding meeting dated 12-5-1985. The remaining persons mentioned in the petition have not been produced. Thus the allegations regar, ding meetings at Nichar and Bhabanagar are not proved.

There are no allegations regarding the meetings in villages Yangpa, Karaba and Katgaon on 12-5-1985. The Petitioner has, however, produced S/Shri Chhering Gialoo (PW 82), Davinder Singh (PW 85) and Ashok Kumar (PW 162) to prove these public meetings. As there is no allegation in the main petition or in the further better particulars, therefore, the evidence of these witnesses with respect to these meetings is to be ignored. Further Chhering Gialoo (PW 82), Davinder Singh (PW 85) were the polling agents and workers of the Petitioner during the election and are therefore, interested witnesses. Jai Chand (PW 107) and Darshan Dass (PW 83) state about the meetings in village Katgaon on 12-5-1985 and 14-5-1985. The evidence of both these witnesses is to be discarded because there is no pleading in the petition or the further better particulars about these meetings.

The Respondents have produced Rattan Singh (RW 64), Devi Ram (RW 65), Panama Dorje (RW 66), Gochen (RW 68), Sunder Lal (RW 69) and Gochen (RW 70) to prove that such speeches as have been alleged by the Petitioner were never made during the public meetings at Katgaon, Yangpa and Karaba by the Respondent or the Chief Minister. The evidence of the Respondents'' witnesses is disinterested and reliable It is not safe to rely upon the oral evidence produced by the Petitioner specially when it is not in consonance with the pleadings.

In para 7 of the better particulars, it is alleged that a public meeting was addressed at village Chagaon on 13-5-1985 at about 10.30 A.M. by the Chief Minister and the particulars are given in para 7 (a)(ii) of the petition, where it is alleged that Chet Ram (PW 34) was present in the meeting. Chet Ram (PW 34), however, states nothing about the meeting at Chagaon. He is Pradhan of Gram Panchayat Chagaon and was counting agent of the Petitioner and is thus interested in the Petitioner.

Besides Chet Ram (PW 34), the Petitioner has produced Leela Devi (PW 43), Shama Nand (PW 44), Agar Sen (PW 45), Sita Ram (PW.46), Amir Singh (PW 47), Daulat Singh (PW 48), Uttam Sen (PW 60), Bharat Singh (PW 61) and Gulawar (PW 62) to substantiate the allegations. All these persons are not mentioned in the petition or the further better particulars and their evidence is to be rejected. Further, Leela Devi (PW 43) remembers the date and month of the meeting at Chagaon but she is not able to give any other date or even the names of the months. She appears to be a tutored witness. Similarly PWS 44 to 48 are also interested in the Petitioner''s success because they had apprised the Petitioner about the meeting. Same comments hold good for the statements of PWs 60 to 62. Such oral evidence in villages and specially in election cases can be procured and produced and it is not safe to rely upon evidence of this nature.

The Respondents have also produced Ram Charan Dass (RW 57), Ganda Ram (RW 58) and Guru Lal (RW 59) and Ganga Chand (RW 60) to prove that no such promises or offers were made and no such threats were given to the electors in order to secure votes in favour of Respondent No. 1.

In view of the evidence discussed above, it is held that the allegations regarding Chagaon meeting are not proved.

The Petitioner then alleges in para 7 (a)(xi) of the petition that an election meeting was held in village Tapri on 13-5-1985 where the Chief Minister addresssd the voters in the same manner as is alleged for public meetings at other places.

It is alleged that Secretary Mahila Mandal attended this meeting. The Petitioner, however, has not produced secretary Mahila Mandal as a witness. One Dilbahadur Singh (PW 63) has been produced, who states that the meeting was addressed by the Chief Minister in village Tapri on 13-5-1985 and promises were extended to the voters of Jani village in this meeting. The statement of this witness is to be ignored because he is not mentioned in the petition or the further better particulars. This witness admits that he informed the Petitioner regarding the meeting on 28/29-5-1985 but if this was a fact then the Petitioner would have disclosed his name in the pleadings. It is thus proved that this witness is not giving true facts and his name has been introduced later on.

The Respondents have produced Sita Ram (RW 61) and Prem Parkash (RW 62) who state that no such promises or threats were given in the meeting at Tapri. The discussion of the evidence thus proves that the allegations regarding meeting at Tapri are not proved.

The Petitioner further alleges that a meeting was addressed by Shri Virbhadra Singh Chief Minister at Urni on 13-5-1985 at about 12-noon. These allegations are in para 7 (a)(v) of the petition and para 8 of the further better particulars. In para 8 of the further better particulars it is stated that amongst other persons Thakur Singh, Mandoop Singh and Pradhan Gram Panchayat Urni attended the meeting. The Petitioner has not produced the above named three persons. He has, however, produced Devi Chand (PW 7), Bhagat Chand (PW 36), Sanam Guru (PW 37), Inderpur (PW 38), Padam Singh (PW 113) and Chain Ram (PW 114) to prove this allegation. The names of these witnesses do not find mention in the main petition or the further better particulars, therefore, their evidence cannot be considered for proving these allegations. These witnesses state facts which are not mentioned in the petition or the further better particulars. These witnesses had gone to inform the Petitioner about the meeting. It was, therefore, not difficult for the Petitioner to have disclosed their names in the petition or the further better particulars. Hence to rely upon the oral evidence of these witnesses who appear to be interested persons, is not proper and it is therefore, held that the allegations regarding Urni meeting are not proved.

The next allegation in para 10 of the further better particulars is regarding a public meeting held in village Barang at about 2 P.M. on 14-5-1985. It is alleged that S/Shri Bahadur Singh (PW 49), Diwan Chand, Bhajan Dass (PW 51), Ram Kumar, Gangabir (PW 52), Amar Sukh and Padam Lal were present in this meeting and the Chief Minister addressed the meeting by giving promises/offers and threats to the electors as he had been giving in various other public meetings. S/Shri Diwan Chand, Ram Kumar, Amar Sukh have not been produced, but S/Shri Bahadur Singh (PW 49), Bhajan Singh (PW 51) and Gangabir (PW 52) have been produced. Bahadur Singh (PW 49) was a polling agent of the Petitioner and was working for the Petitioner. He also supported the Petitioner during the elections and is an interested witness. Bhajan Dass (PW 51) is a chance witness and he does not support the various allegations. Gangabir (PW 52) also states about the demand charter having been given to the Petitioner which is not in the pleadings.

Besides these witnesses the Petitioner has also produced Tara Chand (PW 50), Jodha Ram (PW 53), Sartal Singh (PW 54), Bimal Kumar (PW 55), Gian Bhagat (PW 56), Chain Singh (PW 57), Budhi Ram (PW 58) and Dharam Ram (PW 59) to prove the various allegations. These persons are not mentioned in the petition or the further better particulars and their evidence has thus to be ignored. Further, most of these witnesses were polling agents, active workers or supporters of the Petitioner and therefore, they are interested in the Petitioner. The Respondents have produced Sohan Singh (RW 36), Vinod Kumar (RW 37) and Ishwar Dass (RW 38) to rebut the Petitioner''s evidence. These witnesses state that the Chief Minister did not give any promises or threats to the persons during the course of the meeting. The Chief Minister (RW 12) has also denied the various allegations. From the above discussion it is held that the allegations regarding Barang meeting are not proved.

The Petitioner further alleges that a meeting was held at about 5 P.M. on 14-5-1985 in village Tangling (Poari). This meeting was addressed by the Chief Minister who gave promises and threats to the electors in order to secure votes for Respondent No. 1. In para 11 of the better particulars names of Chattar Dhar (PW 161), Amar Singh, Bhupinder Singh, Raghunath and Syam Sukh are mentioned as persons who were present in this meeting. The Petitioner has not produced any of these persons except Chattar Dhar (PW 161), but Chattar Dhar does not state anything about the alleged meeting. He is even otherwise interested in the Petitioner because he was a polling agent of the Petitioner during the election. Thus the allegations regarding meeting at Tangling (Poari) are not proved.

In para 12 of the better particulars and para 7(ix) of the petition, it is alleged that a meeting was held at about 7/8 P.M. on 14-5-1985 at village Purbani. This meeting was, addressed by the Chief Minister in which he gave offers/promises to the electors for casting votes in favour of Respondent No. 1. Threats were also given in case votes were not cast in favour of Respondent No. 1. In para 7(a) of the petition, it is alleged that Krishan Gopal (PW 69), Chander Hans, Bha-girath and Udey Chand attended this. meeting.

Krishan Gopal (PW 69) was a polling agent of the Petitioner and is an interested witness. Chander Hans and Udey Chand have not been produced. Bhagirath mentioned in para 7 (ix) of the petition is also not produced and Rati Bhag (PW 70) has specifically stated that he did not see Bhagirath and Udey Chand in the meeting. This witness gives a different version about the speech of the Chief Minister. The evidence regarding this meeting is not reliable. Even Krishan Gopal (PW 69) states that Chander Hans was the polling agent of the Petitioner.

Bhajan Singh (PW 71), Raj Chander Singh (PW 72) Yantan Dorje (PW 73), Maya Devi (PW 74) have also been produced by the Petitioner for proving the allegations about this meeting at Purbani, but their evidence cannot be considered as their names are not mentioned in the pleadings. Further a perusal of their statements shows that each of these witnesses contradicts one another with respect to the main allegations and they appear to be highly interested in the Petitioner. The Respondents have also produced Amar Singh (RW 35) and Durga Chand (RW 32) who state that no promises or threats were given by the Chief Minister during the course of the meeting at Purbani. The Chief Minister himself as RW 12 also states that he did not give any promises or threats in the Purbani meeting in order to secure votes in favour of Respondent No. 1.

In view of the evidence, discussed above, it is held that the Petitioner has failed to prove the various allegations regarding Purbani meeting.

The next allegation is about the meeting held at village Akpa on 15-5-1985 at'' about 10.30 A.M. and the details of this meeting are given in para 13 of the better particulars. It is alleged that Varinder Kumar, Govind Singh, Yash Pal and Chander Gopal of Akpa attended this meeting and the Chief Minister gave some promises/offers as also threats to the voters in order to secure votes in favour of Respondent No. 1. None of the above mentioned persons has been produced to prove the allegations and there is no evidence regarding this meeting. In these circumstances, the allegations regarding this meeting are not proved.

The Petitioner further alleges that a public meeting was held at village Rarang on 15-5-1985 at about 12-noon/l P.M. This meeting was addressed by Shri Virbhadra Singh Chief Minister (RW 12) who made promises with respect to opening of a high school, giving water for irrigation etc. to the electors in exchange of their casting votes in favour of Respondent No. 1. The particulars of this allegation are given in para 14 of the further better particulars and it is alleged that speech of the Chief Minister was heard by several persons including Thakur Singh, Mindul Ram, Sonam Kaidup and local Panchayat Pradhan. The Petitioner, however, has not produced any witness out of the above named persons. He has, however, produced Gorbo Namgyal (PW 147), Umar Singh (PW 148), Inder Sobha (PW 149), Dilabar Singh (PW 150) and Chhewang Namgyal (PW 151) to prove these allegations, but the statements of these witnesses cannot be considered because their names are not mentioned in the petition or para 14 of the better particulars. Further Gorbo Namgyal (PW 147) states that the Chief Minister came to meet him in the temple and offered Rs. 100/- and paid homage to the deity installed in the temple. The Chief Minister also promised Rs. 10,000/- for the temple in case votes were cast in favour of Congress candidate to which he agreed and that after the election results the Chief Minister actually gave Rs. 10,000/- for the temple in 1985, through Santuk Lal Up-Pradhan for which a receipt was given. Umar Singh (PW 148) states that in the public meeting the Chief Minister requested the people to vote for Congress (I) candidate so that all the schemes of the village may be carried through. The Chief Minister further said that in case the public did not cast the votes in favour of Congress candidate then the schemes would be stopped. It was only after this public meeting that the Chief Minister went to Lama temple and met Gorbo Namgyal (PW 147). He states that none of the persons who had accompanied the Chief Minister to the temple was present in court. He alongwith Santuk Lal accompanied the Chief Minister to the temple.

Now the statement of Gorbo Namgyal (PW 147) is at variance with the pleadings because there is no allegation that the votes were secured by promising funds to the temple or that a grant of Rs. 10,000/- was given to Buddhist temple.

Shri Chetan Namgyal (RW 7) Pradhan of Pamchayat Rarang who is named in para 14 of the better particulars states that the Chief Minister did not make any promise in consideration for the securing of votes. He denies the visit of the Chief Minister to the Buddhist temple after the meeting. The Chief Minster (RW 12) has also denied the allegations and states that he never called Locha Lama and never asked him to canvass for Respondent No. 1.

The evidence discussed above regarding the public meeting at Rarang thus does not establish the various allegations of corrupt practices leveled by the Petitioner.

The Petitioner then alleges that a meeting was held on 15-5-1985 at 4 P.M. at village Jangi as is mentioned in para 15 of the better particulars. It is alleged that threats were given to the electors in the presence of Bansi Lal, Pyare Lal, Nardev Singh and Dharam Singh and many others of village Jangi. The Petitioner has not produced any of these persons as a witness to support these allegations. Hence it is held that these allegations are not proved.

The next allegation in para 16 of the better particulars is regarding a public meeting held at about 7.30/8 P.M. on 15-5-1985 at village Leepa. It is alleged that S/Shri Nihal Chand, Om Parkash, Kalszang Neema, Delak Phunchog, Kesar Nand and Narain Singh were present in this meeting. The Petitioner has not produced any of these persons as a witness to prove the allegations. He has, however, produced Jagat Singh (PW 154) and Puran Ram (PW 156) and Geeta Ram (PW 157) to prove these allegations but their statements cannot be considered and it will have to be presumed that these witnesses have been procured afterwards. These witnesses have stated facts which do not find mention in the petition and their statements reveal that they have sympathy with the Petitioner. The Respondents have also produced Deva Nand (RW 11) and Amar Chand (RW 13). Both these witnesses state that the Chief Minister in his speeches never gave any promises or threats to the electors in order to secure votes for Respondent No. 1. In these circumstances it is held that the Petitioner has failed to prove the various allegations about Leepa meeting.

The Petitioner then in para 17 of the better particulars alleges that a public meeting was arranged at village Labrang on 16-5-1985 at about 11 A.M. and this meeting was attended by Surinder Singh, Dawa Gialbo, Maya Chand, Sohan Lal, Vidya Chand, Hira Sen, Ganga Ram, Pyare Lal, Hari Pat Singh. The Petitioner, however, has not produced any of these persons as witnesses. He has, however, produced Thakur Sen (PW 163) and Chandu Lal (PW 164) in support of this allegation. The evidence of these witnesses cannot be considered in view of the fact that their names do not find mention in the petition or the further better particulars. Further, Thakur Sen (PW 163) states that he kept notes about the meeting, but no such notes have been produced. Chandu Lal (PW 164) does not state anything about the meeting at Labrang. The Respondents have also produced Ranbir Singh (RW 5) and Shanti Lal (RW 6). Both these witnesses state that no promises or threats were given in the meeting. In these circumstances, it is held that the allegations regarding meeting at Labrang are not proved.

There are allegations regarding meetings at Kanam, Sonam, Gialbong, Dubling, Namgya, Terasang, Leo, Change, Shialkhar, Thangi, Moorang, Ribba in paras 18 to 29 of the further better particulars. All these meetings are stated to have been held between 16-5-1985 to 19-5-1985 and several persons who attended these meetings are named in various paras of the further better particulars. The Petitioner has, however, not produced any evidence with respect to these allegations. Hence these allegations are not proved.

A meeting is also alleged to have been held in village Pooh on 18-5-1985 and details are mentioned in para 26 of the further better particulars. There is, however, no evidence regarding this meeting. Hence these allegations are also not proved.

In para 29 (b) of the better particulars it is alleged that a meeting was addressed at village Pangi on 20-5-1985 at about 10 A.M. by the Chief Minister and there was a bargain for securing votes in favour of Respondent No. 1 in consideration of providing a high school as is stated in para 7 (xvi) of the petition. It is alleged that amongst other persons Dilbahadur Singh, Bhagat Sen, Gian Parkash of Pangi were also present. Dila-bahadur (PW 124) was a polling agent and a staunch worker of the Petitioner and as such he is an interested witness. Similarly Gian Parkash (PW 125) was also a polling agent and a supporter of the Petitioner. His evidence too cannot be relied upon as he is an interested witness. Bhagat Singh has not been produced. The Petitioner has, however, produced Dhani Ram (PW 88), Bal Kishan (PW 89), Keda Ram (PW 90), Durga Singh (PW 91), Vidya Raj (PW 92), Nanak Dev (PW 120) Darje Ram (PW 121), Ganga Sen (PW 122) and Paldan Dorje (PW 123), but their statements cannot be relied upon because their names are not mentioned in the petition or further better particulars. The Respondents have produced Prem Raj (RW 14), Narbu Sen (RW 15), Ram Kishan (RW 16) and Jai Dev (RW 17) residents of Pangi, who state that no assurances, promises or offers were given by the Chief Minister during the election meeting to the electors and similarly no threats were given.

In view of the aforesaid evidence, the allegations with respect to the meeting at Pangi are not proved.

The further allegations in para 29(c) of the better particulars are with respect to a public meeting at village Kothi held on 20-5-1985, but no evidence has been produced with respect to these allegations. Hence it is held that these allegations are not proved.

There are also allegations in para 30 of the better particulars with respect to a meeting at village Rogi on 20-5-1985. It is also alleged in para 32 of the better particulars that a meeting was held at village Karchham on 21-5-1985. There is, however, no evidence with respect to these allegations and hence it is held that these allegations are not proved.

In para 33 of the better particulars, it is alleged that a meeting was held at village Kupa on 21-5-1985 and it was attended by Himat Singh, Tulsi Ram and Bhagat Ram. None of these persons have been produced by the Petitioner to support the allegations. There is also no other evidence in support of these allegations. In these circumstances, it is held that these allegations are not proved.

In para 34 of the better particulars, it is alleged that a public meeting Was held at village Kamroo on 21-5-1985 and Ganga Lal, Bishan Singh and Ishwar Pal attended this meeting. Ganga Lal and Bishan Singh have not been produced. Jshawar Pal (PW 16) states about this meeting but he is an interested witness because he was a polling agent of the Petitioner. The Respondents have produced Laxman Singh (RW 24), Bhisham Singh (RW 25), Mohan Lal (RW 26), Narinder Singh (RW 27) and Chattar Singh (RW 28) to rebut the evidence of the Petitioner and all these persons state that no promises or threats were given by the Chief Minister to the electors in the meeting at Kamroo on 21-5-1985. In view of this evidence it is held that allegations regarding Kamroo village meeting are hot proved.

In para 36 of the better particulars the allegations are that a meeting was addressed by the Chief Minister at village Rakchham on 22-5-1985 and this meeting was attended amongst other persons by Jaswant Singh, Rai Dass, Ram Guru. The Petitioner has not produced any of these persons in support of the allegations. Only one witness Chattar Singh (PW 160) has been produced, but his evidence cannot be considered because his name is not mentioned. The Respondents have produced evidence consisting of Vinod Kumar (RW 29), Dinesh Kumar (RW 30) and Shiv Kumar (RW 31), who state that they attended the meeting but no promises or threats were given to the electors by the Chief Minister as has been alleged by the Petitioner. In view of this evidence, it is held that allegations about meeting at Rakchham are not proved.

In para 37 of the better particulars it is alleged that a meeting was held on 22-5-1985 at about 12-noon at village Chitkul and Jainthiv Ram, Ram Lal and Sagar Chand besides others attended this meeting. All these three persons mentioned in this para of the better particulars have not been produced. The Petitioner has, however, produced Yogar Singh (PW 158) and Bhagwan Singh (PW 159) to support these allegations, but their names do not find mention in para 37 of the better particulars and therefore, their evidence cannot be considered. It is thus held that the Petitioner has not been able to prove these allegations.

The Petitioner has further alleged that promises were given to the electors with respect to various schemes, developmental works and the Chief Minister Shri Virbhadra Singh (RW 12) and Respondent No. 1 openly declared in various meetings that all the developmental works of the villages in the constituency would be through in case the electors vote for Respondent No. 1. It is alleged that the electors were plainly told in these meetings that in case they did not vote for Respondent No. 1 then all the old schemes/developmental works would be stopped and no scheme/developmental work would be taken in hand and the public would be suffering. These assurances/offers and promises to the electors amounted to bribery which is a corrupt practice. Similarly the threats to the electors regarding stopping or not starting the schemes/developmental works were also for the purpose of securing votes and to induce the electors to vote for Congress (I) candidate.

I will take up the various schemes, developmental works regarding which the allegations have been made in the petition and the further better particulars.

Yogar Singh (PW 158) and Bhagwan Singh (PW 159) have stated that Shri Virbhadra Singh Chief Minister (RW 12) addressed a public meeting at Chitkul and asked the people to vote for Respondent No. 1 and in lieu of this they would get a Middle School at Chitkul. The electors were also told that in case they did not vote for Respondent No. 1 then they''would not get the Middle School.

Now there is no allegation regarding the opening or not opening of a Middle School in consideration for casting of votes in the petition or better particulars. It is only stated in para 37 of the better particulars that S/Shri Zankhiew Ram, Ram Rattan and Sagar Singh attended the meeting at Chitkul but none of the above mentioned persons has been produced. Hence the evidence of Yogar Singh (PW 158) and Bhagwan Singh (PW 159) cannot be relied upon because the same is at variance with the pleadings.

The next allegation is with respect to the construction of Choling-Urni-Miru road and this allegation is in para 7 (a)(iii)(iv)(v) and (xi) of the petition and in para 8 of the better particulars.

In para 7(a)(iii) and (xiv) it is alleged that the villagers reminded the Chief Minister and Respondent No. 1 of the earlier promises regarding road from Choling to Urni. The villagers told the Chief Minister and Respondent No. 1 that they would not vote for Respondent No. 1 unless the earlier promises were honored. Upon this, the Chief Minister with the consent of Respondent No. 1, asked the people to vote for Respondent No. 1, and in return promised to give them the road with the result that many persons among the audience promised to vote for Respondent No. 1. In Sub-para (iv) of para 7 of the petition it is again stated that the Chief Minister promised the voters with the consent of Respondent No. 1 and as a bargain for securing the votes that the road from Choling to Urni as promised, would be constructed.

In para 8 of the better particulars it is stated that S/Shri Thakur Singh, Mandob Dandup and Pradhan of Gram Panchayat Urni were present in the meeting at Urni at the time of making these promises.

The Petitioner has not produced Thakur Singh, Mandob Dandup and Pradhan of Gram Panchayat Urni for substantiating the allegations. The names of the witnesses, that is, R.K. Chauhan (PW 20), R.C. Verma (PW 21), Bhagat Singh (PW 36), Sanam Guru (PW 37) and Padam Singh (PW 113), who state about the construction of Choling-Urni-Miru road, have not been mentioned in the better particulars and therefore their evidence cannot be considered as trustworthy and reliable. According to the allegations, the meeting was addressed by the Chief Minister on 13-5-1985 while the Petitioner''s witnesses have stated that the survey cutting work of Choling-Urni-Miru road had started from 20-4-1985, that is, before the alleged promises were made in the meeting. Shri R.K. Chauhan (PW 20) states that the cutting work started on 20-4-1985 and the representations for the construction of the road had started coming to the department from the year 1980. Shri R.C. Verma (PW 21), S.D.O. P.W.D. Karchham does not state anything relevant to the issue. Bhagat Singh (PW 36) appears to be an interested witness because he states that he was on duty as a Fitter on 13-5-1985, but still, claims to have attended the meeting at village Urni. He informed about the proceedings of the meeting to the Petitioner after about 2 or 3 days of the declaration of the results. Sanam Guru (PW 37) also appears to be an interested witness as he also gave information to the Petitioner about the meeting. Padam Singh (PW 113) also appears to be an interested witness.

It is thus proved that the Petitioner had knowledge of the meeting within two or three days of the declaration of the results but the Petitioner has failed to mention the various names in the better particulars. In view of the above discussion, it is held that the Petitioner has failed to prove this allegation.

The next allegation is with respect to the repairs of Rarang Buddhist temple. It is alleged in para 7(xv) of the petition that Rs. 10,000/- were paid for the reconstruction of Buddhist temple of Rarang as promised for votes. In para 14 of the better particulars it is alleged that a meeting was held at village Rarang and a promise was made for giving funds for Buddhist temple in exchange for votes. These pleadings are vague and inconsistent.

The Petitioner has produced Gorbo Namgyal (PW 147), Umar Singh (PW 148) to prove these allegations. The statements of these witnesses are at variance with the pleadings and therefore, these statements are to be discarded. Chetan Namgyal (RW 7) and Namdhak, Chaering (RW 8) state that no promises were made by the Chief Minister and the Chief Minister did not visit the Buddhist temple Rarang during the election campaign. Chetan Mamgyal (RW 7) is the Pradhan of Panchayat Rarang and states that a grant of Rs. 10,000/- was sanctioned by the Government in August 1986 for repairs of Rarang temple. The elections in the constituency took place in May 1985 and in para 7(xv) of the petition it is alleged that Rs. 10,000/- had been paid but this allegation is not proved because the amount was sanctioned in August, 1986.

Sarab Hozar (RW 9) and Gialchhan Dorje (RW 10) also claim to have attended the meeting at Rarang state that the Chief Minister never made any promises for Rarang temple during the Rarang meeting.

In view of the aforesaid evidence, the allegations made with respect to the securing of votes in lieu of making payments for the repair of Rarang temple are not proved.

The Petitioner further alleges that the flock owners of Kinnaur, whose cause he had been actively supporting and advocating, were his staunch supporters during the elections, but the Chief Minister and Respondent No. 1 started making promises to help the graziers. It is alleged that on 22-5-1985 at Badseri village Shri Bhanu Parkash and others frankly told the Chief Minister that they would not be voting for Respondent No. 1 because the promises made by the Chief Minister with respect to grazing problems were not being solved. Upon this the Chief Minister promised that he would personally go to Lucknow to meet his counterpart in Uttar Pradesh for solving the grazing problems. In this manner the electors were induced to cast their votes in favour of Respondent No. 1.

The Petitioner has produced Gopal Bhagat(PW 144), Bhanu Parkash (PW 145) and Bhagwan Singh (PW 159) in support of these allegations. Now Gopal Bhagat (PW 144) states that he met the Chief Minister of Himachal Pradesh on 21-5-1985 at Sangla Rest House for discussing the grazing rights problems. He is silent about any promise having been given by the Chief Minister. Bhanu Parkash (PW 145) and Bhagwan Singh (PW 159) do not state anything to substantiate the Petitioner''s allegation. The Chief Minister (RW 12) has denied the allegation Shri Gian Singh Negi Advocate (RW 40) who had been accompanying the Chief Minister during me election tour and is father of Respondent No. 2, has also denied the allegations.

In view of the evidence discussed above, it is held that these allegations of the Petitioner are not proved.

In para 7(vi) of the petition it is alleged that in March/April, 1985 Respondent No. 1 in return for promise of votes committed himself to provide rope-ways system to villagers of Chhota Kamba, Ramni and Hango Chulang. The names of the persons in whose presence promise was made for Ramni Jhoola are not given in the petition or in the better particulars. The Petitioner has, however, produced S/Shri R.K. Chauhan (PW 20), R.C. Verma (PW 21) and Inder Sen (PW 152) to prove the allegation regarding construction of Ramni Jhoola. As the names of these witnesses have not been given in the better particulars or the petition, therefore, their statements cannot be considered as trustworthy and reliable. Further, Shri R.K. Chauhan (PW 20) states that on 31-3-1985 the Gram Panchayat Ramni Represented for the construction of a Jhoola and from that date the proposal for construction had started. He also states that the survey cutting work started on 24-4-1985 and continued till 31-5-1985, while the cutting work started on 31-5-1985 and continued till October/November, 1985. This witness does not in any way prove the allegations of the Petitioner. Shri R.C. Verma (PW 21) states that the expenditure for construction of Jhoola work was to be met from lump-sum grant for minor expenses. His statement is of no assistance to the Petitioner for proving the allegations. Shri Inder Sen (PW 152) who is a friend of the Petitioner and who is involved in an embezzlement case, does not prove the allegation.

The Respondents have produced Bhag Sen (RW 63) who states that the Chief Minister never gave any promise for the giving of rope-way over Satluj river, that is, Ramni Jhoola and the rope-ways were completed earlier.

The evidence discussed above does not prove the allegations of corrupt practice made by the Petitioner.

The Petitioner has then made an allegation with respect to the upgrading of Middle School at Pangi in para 7 (xvi) of the petition wherein it is stated that as a result of the efforts by the Petitioner, the Middle School of Pangi was upgraded to High School around 15th January, 1985, but due to the dissolution of the Assembly on 23-1-1985, Shri Virbhadra Singh took over as Chief Minister of the caretaker Government and he ordered the cancellation of the upgradation orders of Pangi school. Subsequently in the first week of March, 1985 when elections were due, the Chief Minister upon the asking of Jai Nand, Ram Kishan and Pradhan and some other deputations, again restored the orders of upgradation of school of Pangi with a view to secure votes for Respondent No. 1 and this upgradation order was made as a promise for securing votes.

The Petitioner has produced S/Shri Mahesh Prashad (PW 23), Dhani Ram (PW 88), Darje Ram (PW 121) Ganga Sen (PW 122), Paldan Dorje (PW 123), Dilbahadur Negi (PW 124) and Gian Parkash (PW 125) in support of these allegations. Mahesh Parshad (PW 23) states that the upgradation of Pangi school was ordered on 16-1-1985, but was cancelled on 17-1-1985. The upgradation order was again issued on 18-1-1985. This witness does not support the allegations of the Petitioner. Shri Dhani Ram (PW 88) is an interested witness and has deposed the facts without any basis. S/Shri Darje Ram (PW 121), Ganga Sen (PW 122) have no personal knowledge about the cancellation and upgradation orders. Paldan Dorje (PW 123) states that the Chief Minister openly declared on 20-5-1985 in a meeting that in case the electors vote for Congress (I) candidate then they would be getting the school, but his statement cannot be relied upon because the school had been upgraded on 18-1-1985. Dilbahadur Negi (PW 124) and Gian Parkash PW 125) were polling agents of the Petitioner and are interested witnesses.

The Respondents have produced S/Shri Prem Raj (RW 14), Narbu Singh (RW 15), Ram Kishan (RW 16) and Jai Dev (RW 17) to rebut the allegations. They state that the Chief Minister never stated the facts as have been alleged by the Petitioner. Ram Kishan (RW 16) was one of the deputation�s. The above discussion thus proves that the Petitioner has failed to prove the various allegations regarding the upgradation of the Pangi school.

The Petitioner has also alleged in para 7(xiv) of the petition that wheat was distributed to secure votes in favour of Respondent No. 1. It is alleged that Respondent No. l deputed Shri Singhi Ram, Congress (1) M.L.A. from Rampur to visit the villages of Nathpa, Kachhrang, Rochhrang, Chhota Kamba, Bara Kamba and Rupi and with the consent of Respondent No. 1, Shri Singhi Ram (RW 74) bargained with the villagers and gave them a promise that in case they vote for Respondent No. 1 then wheat would be distributed to them. In better particulars the Petitioner has not mentioned the time and place when Shri Singhi Ram was asked by Respondent No. 1 to give such assurances to the villagers. It is also not mentioned as to who were the persons whom the assurances were given by Shri Singhi Ram. The Petitioner alleges that wheat was to be distributed in accordance with an approved scheme of November 1984 but the scheme was cancelled in January 1985. However, due to the elections which were to be held in May 1985, the distribution of wheat was again allowed although there was no drought.

Prem Nath (PW 24) was the District Welfare Officer in May, 1985. By the document Ex. P-54 an amount of Rs. 60,000/- was sanctioned for distribution, but the actual distribution was for an amount of Rs. 1,14,795-. Thus the distribution of wheat done by the Welfare Department has no relevance.

Devi Singh (PW 5), Sewak Ram (PW 8), Chander Singh (PW 9), Bhagwan Singh (PW 103) and Gokal (PW 111) state about the distribution of wheat by Shri Singhi Ram (RW 74) but they were polling agents of the Petitioner during the elections and are interested witnesses. Tikam Ram (PW 25), Guru Bhagat (PW 27) and Gopal Singh (PW 28) do not state anything regarding distribution of wheat. Laiq Ram Verma (PW 137) only proves letter dated 19-11-1984 (Ex. P-54).

Shri Singhi Ram M.L.A. (RW 74) has denied the allegations of the Petitioner. S/Shri Ram Chander (RW 78), lnder Dass (RW 79), Miss Vidya Pati (RW 80), Inder Sen (RW 81), Sandup Ram (RW 82), Panama Dorje (RW 83), Makkar Sen (RW 84), Bhagjit (RW 85), Ramesh Chand (RW 86), Roshan Lal (RW 87), Kirpa Ram (RW 88) and Sohan Lal (RW 89) state that Shri Singhi Ram, M.L.A. (RW 74) was never present at the time of distribution of wheat in the constituency.

In view of the above evidence, the allegation regarding distribution of wheat with a purpose to secure votes is not proved.

The further allegations of the Petitioner in para 7 (vi) of the petition are with respect to the providing of cable-ways. It is alleged that Respondent No. 1 in March/April, 1985 had in return for promise of votes committed himself to provide wire rope-ways system in the villages of Chhota Kamba, Ramni and Hango Chilling, and on the voters'' refusing to vote unless work was actually started on the spot, he had managed even to have the work actually begun on the spot, even if nominal, without any budget and codal formalities. The Petitioner has produced oral evidence consisting of S/Shri S.C. Verma (PW 22), Bhagwan Singh (PW 103), Parkash Chand (PW 104), Bhagat Ghand (PW 105), Amar Singh (PW 108) Parkash Chand (PW 109) and Gokal (PW 111) to prove these allegations. Shri S.C. Verma (PW 22) states that the survey work of cableway from Rupi to Chaura was started on 15th of March, 1985 and continued for 3-4 days only and the work for rope-way for Chhota Kamba to Nugalsari was started on 28-3-1985 and was abandoned after 3-4 days. This work was started on the basis of a letter dated September 1984 received from Tribal Advisory Committee of which Petitioner was a member and the estimate was prepared during the survey work and sent to the Government. His statement does not support the Petitioner.

Bhagwan Singh (PW 103) states that the villagers told Respondent No. 1 that if he could get the rope-way work done, then they would vote for him, otherwise they would not vote for him. He does not say about any promise or offer having been made by Respondent No. 1. He was a polling agent for the Petitioner in 1982 and 1985 elections and is interested in the Petitioner. No reliance can be placed on his statement.

Parkash Chand (PW 104) appears to be an interested witness and gives a new story which is at variance with the petition or the better particulars. Bhagat Chand (PW 105) also gives a totally different version. He states that in a meeting of Respondent No. 1 in temple of Chhota Kamba, the gathering complained to Respondent No. 1 about the non-construction of rope-way. Amar Singh (PW 108) also gives a different story and he appears to be a tutored witness. Parkash Chand (PW 109) gives his own story which is beyond the pleadings with respect to the construction of rope-way. His statement cannot be relied upon. Gokal (PW 111) has not supported he Petitioner for substantiating the allegations. He was also a polling agent of the Petitioner in the elections and is interested in the Petitioner.

The Respondents have also produced Miss Vidya Pali (RW 80), Jnder Sen Negi (RW 81), Ramesh Chand (RW 86), Roshau Lal (RW 87) and Kirpa Ram (RW 88). All these witnesses state that no promises with respect to the construction of any rope-ways were given with a view to secure votes for Respondent No. 1 Respondent No. 1 has also denied having made any such offers/promises. The evidence discussed above thus does not prove the various allegations regarding bribery and undue influence relating to the construction of rope-ways as are alleged in the petition.

It may be mentioned that the Respondent No. 1 (RW 1) and the Chief Minister (RW 12) denied all the allegations in clear and unambiguous terms.

Shri Virbhadra Singh had fixed an election tour and was campaigning for securing votes in favour of a Congress (I) candidate (Respondent No. 1) but the various allegations of bribery and undue influence which have been levelled by the Petitioner require a very strict proof and the Petitioner has to prove these allegations by credible and trustworthy evidence. The Petitioner, however, in the present case has not been able to prove these allegations. It may be true that it is a difficult task for the Petitioner to prove the allegations, but an election which has been won by Respondent No. 1 cannot be set aside lightly merely upon conjectures and surmises without having strict proof of the various allegations of corrupt practices. The allegations of corrupt practices have to be proved just like a criminal or quasi-criminal charge and a strict proof of all these allegations is required. The court is not expected to set aside an election lightly, if there is the slightest doubt with respect to the various charges.

The Petitioner (PW 1) has no personal knowledge regarding the accompanying of Respondent No. 1 with Shri Virbhadra Singh, Chief Minister, during the election tour or about the printing and distribution of posters Ex. P-1 or the addressing of public meetings by the Chief Minister. For grazing rights, the knowledge of the Petitioner has been drawn from Bhanu Parkash (PW 145), but Bhanu Parkash has not supported the various allegations. The Petitioner also never saw Shri Singhi Ram, M.L.A. (RW 74) canvassing for Respondent No. 1 or giving any assurance to the voters. For various allegations of corrupt practices the Petitioner has relied upon the information received by him from others. The Petitioner failed to give the names of the various persons in the petition who have appeared as witnesses and the reasons given are that those persons were likely to be harassed by Congress (1) candidate, but this statement does not appear to be correct. There is no allegation in the petition or the accompanying affidavit about this fact. The statements of Respondents Nos. 1 and 2 coupled with the statements of Shri Virbhadra Singh (RW 12) and Shri Gian Singh Advocate (RW 40), father of Respondent No. 2, in rebutting the Petitioner''s case, appear to be more truthful.

As a result of the above discussion and keeping in view the principles laid down in judgments of Rahim Khan (supra), M. Narayana Rao (supra), Surinder Singh (supra) and Ram Chand Bhatia (supra), it is held that the Petitioner has failed to prove the allegations of corrupt practice of bribery and undue influence. Issues nos. l and 2 are, therefore, decided against the Petitioner.

Issue No. 3.

To prove this issue the Petitioner has to prove the various ingredients of Section 123(4) of the Act which reads as follows:

The following shall be deemed to be the corrupt practices for the purpose of this Act:

(1) x x x x x x x

(2) x x x x x x x

(3) x x x x x x x

(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.

(5) x x x, x x x x

(6) x x x x x x x

(7)x x x x x x x.

Thus there should be:

(a) a publication by a candidate or his agent or by any other person with their consent.

(b) of any statement of fact which is false and which he either believes to be false or does not believe to be true.

(c) this statement should be 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.

I will deal with all the ingredients.

The learned Counsel for the Petitioner contends that the poster Ex. P-1 was got printed at the instance of Respondent No. 2 (an election agent of Respondent No. 1) from Shri Dinesh Kumar (PW 68) proprietor of Kamla Printing Press, Rampur. On the other hand the contention of the Respondents'' counsel is that no posters of the type of Ex. P-1 were got printed at the instance of Respondents Nos. 1 and 2 from Shri Dinesh Kumar (PW 68) of Kamla Printing Press and that Respondents Nos. 1 and 2 had no knowledge about the printing of these posters and had never given their consent to the printing of the posters.

Several copies of the posters of the type of Ex. P-1 have been produced by the Petitioner. The question which arises for consideration is as to who got these posters printed and from which press.

In para 8 of the petition the Petitioner has alleged that the posters were got printed by Respondent No. 2 and Sohan Singh. The Respondents have denied this allegation.

The English translation of poster Ex. P-1 has been attached by the Petitioner at pages 39 to 42 of the file. In the poster Ex. P-1 there are 12 allegations against the Petitioner and names of 13 persons are given to whom money was allegedly given from the Speaker''s discretionary fund during the time when the Petitioner was the Speaker and had the control for the disbursement of Speaker''s discretionary fund. The poster Ex. P-1 reads as follows:

JANATA FAISLA KAREN, KYA YEH RAJNAITIK BHRASHTACHAR NAHIN HAI?

Thereafter it is stated:

Thakur Sen Negi ki dhandli. Garibon ke hak par chhaya. Kya yeh sab garib hain?

Thereafter the names of various persons to whom the grants have been sanctioned from the Speaker''s discretionary fund are mentioned. The last portion of the poster reads as follows:

Lekhak ke pas is har tarah ke bhatedari wa bhrasht vyaktion ke nam hain jo ki saare achhe gharanon ke hain tatha achha khate pite hain tatha Thakur Sen Nagi ke agent hain ya phir inke rishtedar hain.

Thereafter it is written:

WAKT AA CHUKA HAI WAKT AA CHUKA HAI KINNAUR KE NAV NIRMAN KA BHRASHTACHAR, CHACHA-BHATIJABAD SAM APT KARNE KA, AAIYE SAB MILKAR GARIBON KA UTHAN KE LIYE KINNAUR KE BETE SHRI DEV RAJ NEGI KO SAFAL BANAYEN AVEM HIMACHAL KE MUKHYA MANTRI SHRI VIRBHADRA SINGH KE HATH MAZBOOT KAREN.

JAI HIND Adhyaksh Sohan Singh Negi Jagat Singh Advocate -Karyalaya Sthai Sachiv Zila Yuva Congress (1) Zila Congress (I) Committee Committee Zila Kinnaur Zila Kinnaur (H.P.) H.P. 1. Jagat Singh Negi Advocate, 2 Sohan Singh Negi Mudrak Kamla Printing Press Rampur Bushehr Phone 119 Pratiyan 2,000 tarikh 22-5-85.

The alleged manuscript of the poster Ex. P-1 is Ex. R-6 along with Ex. R-6/A and R-6/B, but some variations/changes are available in the poster Ex. P-1 and the manuscript Ex. R-6 along with Ex. R-6/A and R-6/B. The poster Ex. P-1 in fact has not exactly been printed according to the various words and figures which are available in the manuscript. Some of the variations/changes are as follows:

(a) The manuscript Ex. R-6 alongwith Ex. R-6/A and R-6/B does not contain the last words "JAI HIND" which find mention in Ex. P-1.

(b) The English portion which is at the end of Ex. R-6/B is not reproduced in Ex. P-1.

(c) Below the line in Ex. P-1 there is some printing which does not find mention in Ex. R-6/B.

(d) The date in Ex. P-1 is given as 22-5-85 while in Ex. R-6/B the date is given as 22-5-1984.

It is, however, proved that the main subject in Ex. P-1 is similar to the subject given in the manuscript Ex. R-6 alongwith Ex. R-6/A and R-6/B.

A close scrutiny of Ex. R-6 along with Ex. R-6/A and R-6/B shows that in the third page (Ex. R-6/B) a paper has been pasted under the main paper and this pasted paper in fact contains the signatures of Jagat Singh Advocate (Respondent No. 2) and one Sohan Singh Negi. Jagat Singh (RW 2) states that he never signed the original manuscript but his signatures are available on the paper which has been pasted under Ex. R-6/B in the encircled portion ''E''. He explains that in the year 1984, elections were expected in Kinnaur constituency and he had written to some press for printing ''dummy ballot papers'' and the paper which contains his signatures at portion encircled ''E'' at the bottom of the document Ex. R-6/B, (that is, on the pasted paper) seems to have been signed by him at that time. Sohan Singh Negi who seems to have written the whole of the manuscript of Ex. R-6 including Ex. R-6/A and Ex.R-6/B has not been produced. Jagat Singh (RW 2) further states that in the dummy ballot paper the name of candidate and the symbol allotted to the candidate is given. He has also specifically denied that the encircled portion ''F'' in Ex. R-6/B bears his signatures. The manuscript Ex. R-6 including the portion Ex. R-6/A and R-6/B is a very doubtful document in view of the fact that Ex. P-1 is not printed exactly in the same terms in which the last portion in Ex. R-6/B has been shown although the main subject remains the same.

Shri Mool Raj, Advocate (PW 67) states that Sohan Singh Negi contacted him on 21-5-1985 for getting some posters printed and he introduced Sohan Singh to Shri Dinesh Kumar (PW 68) in Rampur Bazar. Three photostat copies of the manuscript (which presumably was in possession of Shri Sohan Singh Negi) were prepared by him. The original manuscript had the signatures of Shri Sohan Singh Negi and Respondent No. 2. He states that photostat copy Ex. P-51 was prepared from the original manuscript and Ex. P-52 (copy of cash memo.) was also prepared by him at the instance of Shri Bansi Lal, Advocate (PW 2) but in his presence no talk regarding printing charges took place between Shri Sohan Singh and Shri Dinesh Kumar. (PW 68).

Shri Dinesh Kumar (PW 68) states that the poster Ex. P-1 was not printed in the Kamla Printing Press but admits the correctness of the bill Ex. P-53/A issued by him on 22-5-1985. He states that Shri Bansi Lal (PW 2) wanted copy of Ex. P-53/A [cash memo, for Rs. 470/- dated 22-5-1985 issued by Dinesh Kumar (PW 68) for printing of posters, in favour of Jagat Singh Negi, President Youth Congress (I) Committee Kinnaur] and he gave a copy Ex. P-52. He denies that Sohan Singh was introduced to him or the manuscript of the poster Ex. P-1 was given to him by Shri Mool Raj (PW 67) or any other person. He also denies having met the Petitioner or Bansi Lal (PW 2) in Rampur and states that the Petitioner contacted him on 22-5-1985 at about 7 P.M. along with Shri Bansi Lal (PW 2) and handed over a manuscript Ex. R-6 (containing Ex. R-6/A and R-6/B) for printing posters. Advance was demanded by him which the Petitioner and Shri Bansi Lal (PW 2) promised to pay on the next morning. As advance was not paid therefore, he did not print posters on the basis of this manuscript. He, therefore, did not get any copies of this manuscript prepared which remained lying with him. Ex. P-53A pertained to the printing of posters (Ex. R-7) which were printed by him.

Devinder Singh (PW 32) states that Shri Dinesh Kumar (PW 68) told the Petitioner that the posters Ex. P-1 were printed by him at the instance of S/Shri Jagat Singh (Respondent No. 2) and Sohan Singh. Dinesh Kumar (PW 68) told the Petitioner in his presence that Respondent No. 1 and a nephew of the Chief Minister had taken away the order form in his absence.

Shri Bansi Lal, Advocate (PW 2), however, states that Sohan Singh is a clerk of Shri Gian Singh and Respondent No. 2, and the manuscript of the poster Ex. P-1 is in the handwriting of Sohan Singh and is signed by Respondent No. 2, although he cannot recognise the signatures of Sohan Singh.

There is no evidence to prove that manuscript of the poster Ex. P-1 was given to Kamla Printing Press by Respondent No. 2 or Sohan Singh and there is also no evidence to prove that Sohan Singh was the permanent Secretary of District Congress (I) Committee Kinnaur. Merely mentioning Sohan Singh as a permanent Secretary in the poster Ex. P-1 cannot prove that Sohan Singh was a permanent Secretary of District Congress (I) Committee Kinnaur.

Jagat Singh (Respondent No. 2) is admittedly an election agent of Respondent No. 1.

Respondent No. 2 and his father Shri Gian Singh Negi (PW 40) are practising advocates at Kalpa. Shri Gian Singh is also the President of District Congress (I) Committee Kinnaur. Both Respondent No. 2 (RW 2) and Shri Gian Singh (RW 40) state that no person by the name of Sohan Singh was or is working as a clerk with them or is a deed writer or petition writer in Kalpa. Shri Gian Singh also states that there is no employee or worker or Secretary by the name of Sohan Singh in Congress (I) office at Kalpa.

It is rightly and frankly conceded by the learned Counsel for the Petitioner that there is no other evidence to prove that Sohan Singh was or is working as a clerk with S/Shri Gian Singh and Respondent No. 2. The evidence which has been discussed above does not establish that Sohan Singh Negi was or is a clerk of Shri Gian Singh and Respondent No. 2. It is also not proved that any person by the name of Sohan Singh Negi was or is working as a petition writer or deed writer at Kalpa.

It is contended by the Petitioner''s counsel that Sohan Singh was an agent of Respondent No. 2 with the consent of Respondent No. 1 because the averments of para 8 (xiv) of the petition are not specifically denied. I find that the Respondents have denied all the contents of para 8 and its various Sub-paras of the petition. Hence this contention of the Petitioner''s counsel cannot be accepted. There is, in fact, no evidence to prove that Sohan Singh was acting as agent on behalf of Respondent No. 2.

The learned Counsel for the Petitioner contends that the poster Ex. P-1 was, in fact, printed and distributed to the electors prior to the polling date and allegations of poster Ex. P-1 were made by Respondent No. 1 and Shri Gian Singh, Advocate, in their speeches at various places in the constituency. Further Shri Virbhadra Singh, Chief Minister (RW 12) also admits that there was a common talk in Kinnaur and Shimla about the misuse of Speaker''s discretionary fund by the Petitioner. The posters were actually published and distributed by the Respondents or their agents to materially prejudice the prospects of the election of the Petitioner. Shri Dinesh Kumar (PW 68) made a false statement about the non-printing of the posters in his Press. He produced manuscript Ex. R-6 including portions Ex. R-6/A and R-6/B during the cross-examination and his statement that the posters were not printed due to non-payment of the advance money by the Petitioner or that this manuscript was given to him by the Petitioner is false. It is contended that such like manuscripts could not be handed over by the Petitioner or his supporters.

It is also contended that the Petitioner was not available at Rampur on 22-5-1985 and 23-5-1985 and was in fact at Sangla.

Now Goverdhan Singh (PW 138) states that the Petitioner stayed in his house during the intervening night of 22/23-5-1985 in village Sangla and Shri Joginder Singh (PW 140), Maidub Dorje (PW 141) and Subhash Chand (PW 142) also state that the Petitioner visited Sangla and convened a meeting in village Sangla on 22-5-1985 at about 6/6.30 P.M. and stayed in the house of Goverdhan Singh (PW 138) on the intervening night of 22/23-5-1985.

Bhishuk Sen (RW 18) states that the Chief Minister addressed a public meeting in village Sangla oft 21-5-1985 and after this public meeting, another public meeting was arranged by the Petitioner in village Sangla at about 5/5.30 P.M. He attended the public meeting of the Petitioner which lasted for about 35 or 40 minutes. S/Shri Ugarjit (RW 19), Kedar Sukh (RW 20), Badripur (RW 21), Anmol Singh (RW 22) and Midal Singh (RW 23) also state that a public meeting was addressed by Shri Virbhadra Singh Chief Minister on 21-5-1985 in village Sangla.

According to the tour programme (Ex. P-2) of the Chief Minister, an election meeting was to be held at village Sangla on 21-5-1985. The Chief Minister was to arrive at village Sangla at 6 P.M. on 21-5-1985 and the night halt was in Sangla Rest House. Badripur (RW 21) and Kedar Sukh (RW 20) state that this public meeting at Sangla lasted for about one hour, while Midal Singh (RW 23) states that the meeting was held in the evening.

The polling date for election was 25-5-1985 and the public meetings in connection with the election could be held upto 4 P.M. on 23-5-1985. According to Bhishuk Sen (RW 18), the Petitioner addressed a public meeting at about 5.30 P.M. in village Sangla. The Chief Minister addressed a public meeting in village Sangla on 21-5-1985 after his arrival at about 6 P.M. and he was to spend the night intervening 21/22-5-1985 in Sangla Rest House. It was thus not possible for the Petitioner to hold a meeting in village Sangla at about 5.30 P.M. on 21-5-1985 after the public meeting of the Chief Minister.

The irresistible conclusion, therefore, is that a public meeting was convened by the Petitioner in village Sangla at about 5.30 P.M. on 22-5-1985. The oral evidence of the Petitioner also proves that a public meeting was held by the Petitioner in village Sangla during the evening hours on 22-5-1985.

In these circumstances, the statement of Dinesh Kumar (PW 68) that the manuscript was given to him by the Petitioner for printing purposes on 22-5-1985 and the posters were not printed due to non-payment of advance money or printing charges, cannot be accepted and it is, therefore, held that the manuscript Ex. R-6 including the portions Ex. R-6/A and R-6/B was not handed over to Dinesh Kumar (PW 68) by the Petitioner.

It is also not proved by any cogent and positive evidence that the manuscript Ex. R-6 along with Ex.R-6/A and R-6/B was handed over to Dinesh Kumar (PW 68) by the Respondents or their agents for getting the posters printed. The explanation given by Jagat Singh (Respondent No. 2) for his signatures on the pasted paper on the third page of the manuscript also appears to be plausible, because as already stated, the pasted portion on third page of the manuscript containing the signatures of Respondent No. 2 is very doubtful and in fact if Respondent No; 2 had signed the original manuscript, then there was no necessity for pasting any paper containing the signatures only.

Sohan Singh is also not proved to be an agent of Respondents or a permanent Secretary of Congress (I) District Kinnaur or a clerk of Respondent No. 2 or a deed writer or a petition writer at Kalpa. The Petitioner (PW 1) has no personal knowledge regarding the printing, publishing or distribution of the posters Ex. P-1. The Petitioner has also no personal knowledge about Sohan Singh being a permanent Secretary of District Congress (I) Kinnaur. Bansi Lal (PW 2) although states that the manuscript of Ex. P-1 is in the handwriting of Sohan Singh and signed by Jagat Singh, but he admits that he never saw personally Sohan Singh writing any document. He further states that he saw the original manuscript and got photostat copies of the same prepared before the filing of the present petition. But he states that the manuscript had possibly five pages. He also states that he got photostat copies marked ''B'' and ''C from Dinesh Kumar (PW 68) of the manuscript and the expenses for getting these photostat copies were paid at the rate of Re. 1/- per page. This fact is, however, denied by Shri Mool Raj (PW 67) who states that he prepared the copies of the manuscript after about two months of the election which are Ex. P-51 and P-52 and gave these copies to Bansi Lal (PW 2). He also states that Sohan Singh got three photostat copies of the manuscript prepared on 21-5-1985.

Dinesh Kumar (PW 68) has denied the printing of the poster Ex. P-1 from his Kamla Printing Press. He also denied that Mool Raj Advocate (PW 67) ever introduced Sohan Singh to him and states that the bill Ex. P-53 pertained to the printing of the poster Ex. R-7 and not Ex. P-1. Besides this evidence there is no other evidence produced by the Petitioner about the printing of the poster Ex. P-1. The evidence discussed above does not prove that the posters Ex. P-1 were printed at the instance of the Respondents or their agents or by any other person with their consent and knowledge.

The further question which arises for consideration is as to whether the posters of the type of Ex. P-1 were published/distributed to the voters before the election with an intention to prejudice the election prospects of the Petitioner. In case the publication of the posters is proved to be with the consent of Respondent No. 1 or his election agent and the statements of facts in the posters are proved to be false or either believed to be false or not believed to be true in relation to the personal character and conduct of the Petitioner and such statements are reasonably calculated to prejudice the prospects of the Petitioner then such acts of Respondent No. 1 can amount to the commission of corrupt practices.

The Petitioner has given details regarding the publication/distribution of the posters in para 8 of the petition and para 39 of the better particulars. In para 39 of the better particulars the Petitioner has given the dates of the distribution, place of distribution and the persons who distributed the posters of the type of Ex. P-1 but the names of the persons to whom the posters were distributed have not been mentioned. It is also not stated that the posters were pasted on the buildings etc.

As there may be several persons who might have received the posters therefore, this omission on the part of the Petitioner in not giving the details of the persons to whom the posters were distributed may not be very material for the purposes of this controversy and the Petitioner if otherwise is able to prove that the posters of the type of Ex. P-1 were actually published/distributed to various voters then such evidence may be considered to be sufficient for the purpose of proving corrupt practice u/s 123(4) of the Act.

In para 39 of the better particulars, it is alleged that the posters of the type of Ex, P-1 were distributed in village Kupa on 22-5-1985 by Capt. Mohinder Singh brother of Respondent No. 2. Capt. Mohinder Singh (RW 75) has denied the distribution of any posters by him. He states that he never worked or canvassed for Respondent No. 1 during May 1985 elections and was never requested by the Respondents to work for them. He further states that he was not an elector in the constituency and did not see any poster of the type of Ex. P-1 at any place in Kinnaur. This witness is interested in the Respondents because he is the real brother of Respondent No. 2 and therefore, the statement of this witness has to be read with caution. The onus to prove that the posters of the type of Ex. P-1 were distributed in village Kupa on 22-5-1985 is on the Petitioner.

Babu Ram (PW 76) states that a poster of the type of Ex. P-1 was given to him by Respondent No. 2 in village Kupa when he was going from Kupa village to Kamroo village and met Respondent No. 2 in the way when Respondent No. 2 was going in a jeep. He does not state that any poster was given to him by Capt. Mohinder Singh. He states that he never informed the Petitioner about the handing over of the poster to him till 13-6-1986 when his evidence was recorded in court. This witness does not mention the date 22-5-1985 in his statement. His statement cannot help the Petitioner in proving the allegation. There is no other evidence oral or documentary to substantiate the allegation that posters of the type of Ex. P-1 were distributed on 22-5-1985 in village Kupa by Capt. Mohinder Singh.

In para 39 of the better particulars the next allegation is regarding distribution of the posters of the type of Ex. P-1 in village Peo on 22-5-1985 by Congress workers including the real brother of Respondent No. 1 and Respondent No. 2 himself soon before and after the meeting which was addressed by the Chief Minister and Respondent No. 1 at Peo and Kalpa. The Petitioner has examined Bansi Lal (PW 2), Daulat Singh (PW 65), Durga Singh (PW 91), Roop Singh (PW 93), Ashok Kumar (PW 94), Dharam Lal (PW 127), Bil Bahadur (PW 128), Kes-hav Chand (PW 129), Varinder Singh (PW 130), Midal Singh (PW 131), Sarwan Kumar (PW 135), Harish Negi (PW 126) and Chandu Lal (PW 164) besides himself to prove this allegation.

Harish Negi (PW 126) was a counting agent of the Petitioner during the election. He had worked and supported the Petitioner in the election. He is thus a partisan and interested witness. He admits that the contents of the poster Ex. P-1 were against the election law but he did not make any complaint about the publication of the poster to any authority.

Daulat Singh (PW 65) states that the posters of the type of Ex. P-1 were distributed by Jaspal Singh of Kalpa. He did not know if the posters were being distributed by Jaspal Singh at the instance of the Petitioner or that Jaspal Singh was working for the Petitioner. The witness then states that the posters were distributed by Joginder Singh and not by Jaspal Singh and he corrected the statement after taking out a poster of the type of Ex. P-1 from his pocket. The witness had brought the poster with him and on the back of the poster name of Joginder Singh was written by him. There is no reason as to why this witness should write down the name of the person from whom he received the poster at Peo on 22-5-1985. It only shows that the witness was made to state the name of Joginder Singh which he had written on the back of the poster. His statement cannot be accepted as truthful.

Durga Singh (PW 91) states that he was given a poster by Respondent No. 2 in village Peo on 22-5-1985 and that after reading the poster he got a bad impression about the Petitioner. He handed over the poster to the Petitioner of 29-5-1985. This poster was given to him in the office of Respondent No. 2 by Respondent No. 2 at about 3/4 P.M. where several persons were sitting. He could not give the name of any person He appears to be an interested person because he handed over the poster to the Petitioner on 29-5-1985. Had he been a disinterested man then there was no reason for him to have handed over the poster to the Petitioner after the declaration of the result. Further, if the Petitioner came to know about the distribution of the posters from this person then the Petitioner should have mentioned his name in para 39 of the better particulars or in the main petition. It is difficult to believe the oral statement of this witness specially when he does not mention the purpose for which he had gone to the office of Respondent No. 2.

Roop Singh (PW 93) states that the Respondent No. 2 distributed the posters of the type of Ex. P-1 on 22-5-1985 in village Peo and one such poster was given to him. After reading the poster he formed an opinion that the Petitioner was a dishonest person. According to this witness 60 or 70 persons were present at the time of the distribution of the posters, but he could not give the name of any person. Further he states that he apprised the Petitioner about the distribution of the posters on 23-5-1985 in the presence of 50/60 persons but the Petitioner told him that he should retain the poster. He made enquiries from one Bhagwan Singh about the truth of various allegations made in the poster. The Petitioner, however, has not produced Bhagwan Singh.

Now, if the Petitioner came to know on 23-5-1985 about the distribution of the posters then the Petitioner who is a seasoned politician would have taken steps against the Respondents and would have informed the higher authorities about the distribution of the posters. It is not safe to rely upon his oral statement specially when his name is not mentioned in the pleadings or the further better particulars and Bhagwan Singh is not produced to corroborate him.

Ashok Kumar (PW 94) states that a poster of the type of Ex. P-1 was given to him by Respondent No. 2 and after reading the poster he formed an opinion that the Petitioner was a dishonest person. He states that 5/6 persons named in the poster Ex. P-1 are relations of the Petitioner and the poster was given to him in the presence of about 100 persons. He, however, could not give the name of any of these persons. He states that he informed the Petitioner about the distribution of the posters on 23-5-1985 in the presence of 10/12 persons including Bhagwan Singh. He admits that he worked for the Petitioner till 22-5-1985 but stopped working after 23-5-1985. This witness is an interested witness because he was working for the Petitioner. He cannot be believed because if the allegations against the Petitioner in the poster were false and the poster was given to him on 22-5-1985 then he along with the Petitioner could complain about this fact to the higher authorities because the witness was interested in the success of the Petitioner.

Dharam Lal (PW 127) states that a poster of the type of Ex. P-1 was given to him by Krishan Gopal (RW 93) on 22-5-1985 at village Peo. There is no allegation in the pleadings or further better particulars that Krishan Gopal distributed any posters. Further the witness admits that he never saw Respondent No. 1 talking to Krishan Gopal. His statement is, therefore, not relevant.

Keshav Chand (PW 129) states that Krishan Gopal, a supporter of the Respondents, was distributing the posters like Ex. P-1 on 22-5-1985 at Peo. This version does not find mention in the pleadings or the further better particulars. This witness was a polling agent for the Petitioner and he further admits that Krishan Gopal was an active worker for the Petitioner in 1982 and had received discretionary grant of Rs. 500/- from the Petitioner. He is an interested witness and he cannot? be believed specially when Krishan Gopal (PW 93) has denied the distribution of the posters by him.

Varinder Singh (PW 130) states that Joginder Singh brother of Respondent No. 1, gave him a poster on 22-5-1985 in Peo bazar at about 6 P.M. The witness admits that his father was a worker of the Petitioner. Further he could not give the names of the workers and supporters of the Petitioner, although he is resident of Peo and is doing business. He is highly interested in the Petitioner and his oral evidence cannot be believed.

Midal Singh (PW 13.1) is the father of Varinder Singh (PW 130). He states that he saw Joginder Singh brother of Respondent No. 1 pasting posters of the type of Ex. P-1 on 22-5-1985 at about 4.30 P.M. in Peo. He is a supporter of the Petitioner from 1972 onwards and as such he is an interested witness. He was also polling agent of the Petitioner. His statement cannot be believed.

Daulat Singh (PW 132) and Sarwan Kumar (PW 135) state about the distribution and reading out of the posters by Suraj Bansi Lal (PW-49) but there is no pleadings about this fact and as such their statements are to be ignored.

Sarwan Kumar (PW 135) states that posters of the type of Ex. P-1 were distributed on 22-5-1985 in Peo town by Joginder Singh (brother of Respondent No. 1). He states that he did not see posters in Peo town during the elections although he remained at Peo. The statement of this witness does not inspire confidence and such oral evidence can be produced at any time.

The Respondents have produced Suraj Bansi Lal (RW 49), Krishan Gopal (RW 93) and Joginder Singh (RW 94) who state that no posters of the type of Ex. P-1 were distributed in village Peo, Suraj Bansi Lal (RW 49) was not even asked the question that he distributed posters at Peo on 22-5-1985 and no questions were put to Krishan Gopal (RW 93) and Joginder Singh (RW 94).

The remaining witnesses of the Petitioner regarding the distribution of posters at Peo do not pertain to 22-5-1985 and their evidence being outside the pleadings and further better particulars, is to be rejected. This evidence either relates to some other dates or the distribution of posters by persons other than the one named in the better particulars.

It is thus not proved that the posters of the type of Ex. P-1 were distributed in village Peo on 22-5-1985 by the Respondents or the election agent of Respondent No. 1 or the agents of the Respondents or their supporters with the consent and knowledge of Respondents Nos. 1 and 2.

The next allegation is that the posters of the type of Ex. P-1 were distributed in village Kilba on 23-5-1985 by one Parmod Kumar a Congress (I) worker. The Petitioner has not produced any evidence to prove these allegations. Hence it is held that this allegation is not proved.

The next allegation is regarding the distribution of posters in village Leepa on 23-5-1985 by Deva Nand (RW 11) s/o Chhering Ram a Congress (1) worker. Jagat Singh (PW 154) states about the distribution of posters in village Leepa by Deva Nand, but he has no personal knowledge of Deva Nand, being a Congress (I) member. He states that he informed the Petitioner about the distribution of posters on 30-5-1985. He is an interested witness because he had gone to Kalpa to inform the Petitioner about the distribution of posters.

Puran Ram (PW 156) also states that Deva Nand (RW 11) distributed posters of the type of Ex. P-1 in village Leepa on 23-5-1985. The statement of this witness is apparently false because in cross-examination he states that the posters of the type of Ex. P-1 were distributed on 15-5-1985 when Bhagat Singh and Namgyal were with him.

Geeta Ram (PW 157) also states about the distribution of posters of the type of Ex. P-1 on 23-5-1985 in village Leepa.

He states that Deva Nand (RW 11) distributed posters to S/Shri Thakur Sen, Bhagwan Dass and Palzor. None of these persons has been produced. He is a highly interested witness and is a supporter and sympathiser of the Petitioner. He had gone to Kalpa of his own accord to meet the Petitioner and informed the Petitioner on 30-5-1985 about the speeches having been made against him.

The Respondents have produced Deva Nand (RW 11) and Amar Chand (RW 13). Deva Nand states that he did not distribute any poster. Amar Chand (RW 13) also states that he did not see any poster of the type of Ex. P-1 being distributed or having been pasted in village Leepa during the elections.

The evidence regarding distribution of posters in village Leepa is not reliable and trustworthy. This type of oral evidence can be procured and produced at any time. In view of this discussion it is held that the allegation regarding distribution of posters at village Leepa is not proved.

In para 39 of the better particulars and para 8 of the petition it is alleged that the posters of the type of Ex. P-1 were distributed in villages Tapri, Chagaon, Choling Meeru on 23-5-1985 by Congress workers. The names of the Congress workers are not mentioned in the petition or the further better particulars. The evidence has, therefore, to be scrutinised with great caution because the particulars are not complete. S/Shri Chet Ram (PW 34), Dilbagh Singh (PW 40) and Dilbahadur Singh (PW 63) and Ram Charan Dass (PW 57) are the witnesses regarding distribution of posters in village Tapri.

Chet Ram (PW 34) was counting agent of the Petitioner and was also given a grant of Rs. 3000/- by the Petitioner. He supported the Petitioner in 1982 elections. He does not state anything about the distribution of posters but only states that he saw posters of the type of Ex. P-1 pasted at various places in villages Bangtoo and Tapri on 23/24-5-1985. He is highly interested in the Petitioner and his oral statement therefore, cannot be believed specially when he does not state anything about the distribution of the posters.

Dilbagh Singh (PW 40) states that a poster of the type of Ex. P-1 was given to him by Ram Charan Dass (a pol ling agent of Respondent No. 1 ) on 23-5-1985 at 2.30 P.M. This witness was a polling agent of the Petitioner in Chagaon polling station and he supported the Petitioner during the election.

He showed the poster to the Petitioner at about 5 P.M. on 23-5-1985. The Petitioner in the better particulars could give the name of Ram Charan Dass because he received information about the posters having been distributed by Ram Charan Dass from this witness, but his name is not mentioned by the Petitioner. He is an interested witness and his oral statement cannot be believed. Further, Ram Charan Dass (RW 57) has denied the distribution of posters in village Tapri or that he was a Congress man. Ram Charan Dass (RW 57) admits himself to be a counting agent of Shri Sukh Ram (a Parliamentary candidate) who was contesting the election of the Parliament on Congress ticket, due to the fact that he knew Shri Sukh Ram personally.

Dilbahadur Singh (PW 63) states that he saw posters of the type of Ex. P-1 pasted on the walls of a house in village Tapri. Regarding pasting of the posters there is no allegation in the petition or further better particulars. This witness met the Petitioner in Tapri Rest House on 28/29-5-1985 because he felt unhappy upon the defeat of the Petitioner. He also worked for the Petitioner during the elections and is an interested witness. His evidence cannot be believed because he states that the posters of the type of Ex. P-1 were seen by him on 13-5-1985 which fact is at variance with the pleadings.

The Respondents'' witnesses Sita Ram (RW 61) and Parkash (RW 62) state that no posters of the type of Ex. P-1 were distributed or pasted in village Tapri during the election. Both these witnesses are independent persons and not interested in either party.

I n view of the evidence discussed above the distribution of posters of the type of Ex. P-1 in village Tapri on 23-5-1985 by Congress workers is not proved.

For distribution of posters in village Chagaon, the Petitioner has produced Chander Sen (PW 42) who states that Ram Charan Dass (RW 57) gave him a poster of the type of Ex. P-1 on 23-5-1985. He claims himself to be a relation of Ram Charan Dass, who was working for Congress (I) candidate. He is an interested witness because he went to the Petitioner and showed him poster on the date when results were to be declared. This witness also states that he met the Petitioner when Chet Ram (PW 34) was present. There is no reason for this witness to have met the Petitioner and show him the poster Ex. P-1. Moreover, the name of this witness is not mentioned in the pleadings. There is no other evidence to prove that the posters were distributed on 23-5-1985 in village Chagaon.

204 Ram Charan Dass (RW 57), as already discussed, has denied the distribution of any posters by him. Similarly Ganda Ram (RW 58), Guru Lal (RW 59) and; Ganga Chand (RW 60), who are residents of village Chagaon, also state that they never saw Ram Charan Dass distributing any poster of that type of Ex. P-1 in village Chagaon.

In view of the above discussion it is not proved that the posters of the type of Ex. P-1 were distributed in : village Chagaon on 23-5-1985.

For distribution of posters in village Choling Meeru the Petitioner has produced Bhagat Ram (PW 87) who states that a poster of the type of Ex. P-1 was given : to him by Sohan Lal Tailor on 23-5-1985 and Sohan Lal had been given the poster by Shri Parmod, a Congress (I) worker. There are, mo pleadings about the posters having been given by Parmod to Sohan Lal Sohan Lal has not been produced. In these circumstances, the statement of this witness cannot be believed. Further, Davinder Singh (RW 53) and Chhering Dolma (RW 55), who are residents of village Meeru state, that they never saw posters of the type of Ex. P-1 being distributed or pasted in village Meeru. Both these witnesses are disinterested and independent persons. In the aforesaid circumstances, the distribution of posters in village Choling Meeru is not proved by any cogent evidence.

The next allegation is that the posters of the type of Ex. P-1 were distributed in villages Pangi, Bhabanagar Bai Kothi, Yangpa, Sangla and Kanam on 24-5-1985 by Congress workers. In village Pangi it is alleged that besides Congress workers the posters were distributed by Sher Singh and in village Kanam by Hira Lal s/o Diwan Sen.

For distribution of posters in village Pangi there is no evidence from the side of the Petitioner. The Respondents have produced Prem Raj (RW 14) and Ram Kishan(RW 16) of village Pangi and both these persons state that the posters of the type of Ex. P-1 were not distributed or pasted in village Pangi. In view of this it is held that distribution of posters in village Pangi is not proved.

For distribution of posters in village Bhabanagar Bai, the Petitioner has produced Jai Parkash (PW 84) but he states about one poster having been given to him on 23-5-1985 by Padam Dass and he told this fact to the Petitioner on 29-5-1985. This evidence is at variance with the pleadings because there is no pleadings regarding distribution of posters on 23-5-1985 in village Bhabanagar. Further, the name of Padam Dass is not mentioned in the further better particulars. The witness Jai Parkash (PW 84) was polling agent and worker of the Petitioner in 1985 and is an interested witness. His statement cannot be accepted as true.

Padam Dass (RW 77) states that he never distributed any poster in village Bai or anywhere during the elections.

In view of the evidence discussed above, the distribution of posters in village Babanagar Bai is not proved by the Petitioner.

For distribution of posters in village Kothi, the Petitioner has produced Sukhjit (PW 78) and Nardev Singh (PW 80). Sukhjit (PW 78) states that Krishan Gopal distributed the posters to him and he also saw posters pasted on the walls in village Kothi. The name of Krishan Gopal is not mentioned in the further better particulars by the Petitioner. Similarly pasting of posters is also not alleged, although according to the statement of the witness he had informed the Petitioner about the distribution and pasting of posters on 29-5-1985. This witness had kept a poster in his pocket even on the date when he came for evidence, that is, 13-6-1986 although the same had been allegedly given to him on 23-5-1985. In the further better particulars there is no allegation that in village Kothi the posters were distributed on 23-5-1985. The evidence of this witness is thus beyond the pleadings and cannot be relied upon.

Nardev Singh (PW 80) states about having seen the posters pasted in village Kothi on 23-5-1985. This evidence is at variance with the pleadings and cannot be considered because in the further better particulars the allegation is with respect to 24-5-1985 and not 23-5-1985. Sham Lal (RW 52) and Krishan Gopal (RW 93) state that no posters of the type of Ex. P-1 were ever distributed by them.

In view of the above discussion, the allegation of the Petitioner regarding distribution of posters in village Kothi on 24-5-1985 is not proved.

For distribution of posters in village Yangpa the Petitioner has produced Chhering Gialoo (PW 82) and Darshan Dass (PW 83). Chhering Gialoo (PW 82) had worked, supported and acted as polling agent of the Petitioner in the election. He being a worker and supporter of the Petitioner is interested in the Petitioner and his oral statement cannot be believed.

Darshan Dass (PW 83) states that he was given a poster on 23-5-1985. He does not state about the distribution of the poster on 24-5-1985 and his evidence is at variance with the pleadings and his statement cannot be accepted.

Panam Dorje (RW 66) and Tara Chand (RW 67) state that the posters of the type of Ex. P-1 were never distributed in village Yangpa.

In view of the above discussion, the distribution of the posters of the type of Ex. P-1 in village Yangpa is not proved.

For village Sangla the allegation is that the posters were distributed on 24-5-1985 by Congress workers, that is, S/Shri Badripur s/o Sukh Lal, Jagat Singh (Respondent No. 2) and Pitamber Singh, Laxmi Bhagat (PW 11), Jai Chand (PW 12), Maya Bhagat (PW 13), Sari Bhagat (PW 66), Bhag Singh (PW 134), Joginder Singh (PW 140), Maidub Dorje (PW 141) and Subhash Chand (PW 142) have been produced in evidence to prove this allegation.

Laxmi Bhagat has not stated anything about the distribution of posters in village Sangla. Jai Chand (PW 12) states that he along with Laxmi Bhagat (PW 11) met Respondent No. 2 near the polling station when Respondent No. 2 handed over posters to them. Laxmi Bhagat (PW 11) does not state anything about these facts. Although Laxmi Bhagat met the Petitioner on 29-5-1985 and apprised him of the various facts, yet the Petitioner has not given his name in further better particulars.

Maya Bhagat (PW 13) states that he along with Jai Chand (PW 12) was going to cast the vote when in the way Respondent No. 2 met them and gave the poster. Jai Chand (PW 12), however, does not state about the presence of Maya Bhagat with him. Sari Bhagat (PW 66) states that he received 50 posters of the type of Ex. P-1 for distribution and pasting in village Chansu. He claims to be a member of the Congress party, but there is no evidence to prove that fact. This witness became the primary member of the Congress on 22-5-1985, that is, immediately before the polling date. His statement does not inspire confidence because although he became a Congress (I) member on 22-5-1985 still he does not know various important persons of the Congress (I) committee. His oral statement cannot be believed because this type of oral evidence can be procured and produced at any time.

Bhag Singh (PW 134) remained a polling agent of the Petitioner at Sangla in 1985 election and also 1982 election. He states that a paper was read out in a public meeting held on 21-5-1985 at village Sangla in which there were several allegations as are contained in Ex. P-1. This witness does not state anything about the distribution of the posters on 24-5-1985 and 25-5-1985. His evidence is, therefore, not help-fulto the Petitioner and the same cannot be believed because he is interested in the Petitioner''s success.

Joginder Singh (PW 140) states that Gian Singh (RW 40) was reading a paper on 21-5-1985 at village Sangla making allegations against the Petitioner as are contained in Ex. P-1. This witness was a polling agent of the Petitioner during the election and is an interested witness. He contested the Panchayat election against Bhishuk Sen (RW 18) a supporter of Respondent No. 1. His evidence therefore, cannot be believed to establish the allegation specially when his name does not find mention in the further better particulars.

Maidub Dorje (PW 141) does not state anything about the allegations regarding distribution of posters on 24/25-5-1985 and as such his evidence is of no help. This witness also supported the Petitioner in the election and is interested in the Petitioner''s success.

Subhash Chand (PW 142) does not state anything about the distribution of the posters on 24/25-5-1985 and therefore, his evidence has to be ignored. The Respondents have produced Bhishuk Sen (RW 18), Uggarjit (RW 19), Kedar Sukh (RW 20), Badripur (RW 21), Anmol Singh (RW 22) and Midal Singh (RW 23), who state that posters of the type of Ex. P-1 were never distributed or pasted in village Sangla.

In view of the evidence discussed above, it is held that the allegation regarding distribution of posters in village Sangla is not proved.

In village Kanam it is alleged that the posters of the type of Ex. P-1 were distributed by Hira Pal s/o Diwan Sen on 24-5-1985. Moti Gialchhan (PW 35) states that Hira Pal met him on 25-5-1985 when he saw Hira Pal reading a poster of the type of Ex. P-1. This statement is at variance with the pleadings and even the date 24-5-1985 is not mentioned by this witness. Hira Pal (RW 3) and Ishwar Chand (RW 4) both residents of village Kanam state that they did not see any poster of the type of Ex. P-1 in village Kanam and that no such posters were distributed.

In view of the evidence discussed above, the allegation of distribution of posters in village Kanam on 24-5-1985 is not proved.

It is further alleged that Jagat Singh (Respondent No. 2) and other Congress workers distributed posters of the type of Ex. P-1 in village Kamroo on 25-5-1985. Mohar Singh (PW 15) and Ishwar Pal (PW 16) state that Respondent No. 2 gave them posters of the type of Ex. P-1 on 25-5-1985. Mohar Singh (PW 15) is a supporter of the Petitioner and he also worked for the Petitioner during the election. He had gone to meet the Petitioner along with Ishwa Pal (PW 16) on 28-5-1985 at Kalpa to express sympathies on the Petitioner''s defeat. He is an interested and partisan witness. Ishwar Pal (PW 16) is also a supporter and was a polling agent of the Petitioner in 1985 election. He is also an interested witness.

S/Shri Laxmi Singh (RW 24), Bishan Singh (RW 25), Mohan Lal (RW 26), Narinder Singh (RW 27) and Chatter Singh (RW 28) state that they did not see any posters of the type of Ex. P-1 in village Kamroo and such like posters were not distributed in village Kamroo during the election. They are disinterested and independent witnesses.

In view of the evidence discussed above, it is held that the allegation regarding distribution of posters in village Kamroo on 25-5-1985 is not proved.

Evidence regarding distribution of the posters of the type of Ex. P-1 in villages Palingchhe on 24-5-1985, Talangi on 22-5-1985, Kalpa on 22-5-1985, Bhaba Kharaba on 24-5-1985, Kaflu on 24-5-1985, Urni on some dates before the election date, Labrang on 23-5-1985, Barang on a date prior to the election date and Chitkul on or before 22-5-1985 has also been produced. This evidence cannot be considered because the Petitioner has not stated anything about the distribution of posters in these villages in the further better particulars. This evidence is, therefore, rejected.

Even otherwise for village Palingchhe the posters are alleged to have been distributed on 24-5-1985 by S''Shri Hari Chand (PW 17) and Ram Dev (PW 18). Hari Chand PW did not disclose the factum of distribution of posters to anybody till the date when he came in the witness box and Ram Dev(PW 18)could not give anyother date except 24-5-1985. Evidence of this nature cannot be believed.

Regarding village Talangi, Hige Chand (PW 39) states that posters of the type of Ex. P-1 were distributed by Respondent No. 2 on 22-5-1985 and he informed the Petitioner about this fact on 23-5-1985. A note is given below his statement to the effect that the witness was slow in answering the questions and was taking sufficient time to answer each question. He admits that one Man Singh polling agent of the Petitioner and Pradhan of Panchayat was with him, but Man Singh is not produced. His evidence does not appear to be reliable and trustworthy.

Hukam Chand (PW 30), Balwant Singh Negi (PW 33) Hansh Negi (PW 126), Dilbahadur Singh (PW 128) state that posters were distributed and pasted in Kalpa. Hukam Chand (PW 30) received financial help from the Petitioner and he remained Secretary of Kinner Samaj of which the Petitioner was founder Chairman.

Balwant Singh (PW 33) is a relation of the Petitioner and was his election agent. Harish Negi was supporter of the Petitioner and was his counting agent. Dilbahadur Singh (PW 128) states that he saw the posters for the first time on 22-5-1985. This type of oral evidence can be procured and produced at any time and all these witnesses are interested persons.

Bhagchand Dass (RW 41) Kamal Singh (RW 42), Chhenng Dass (RW 43), Ram Mohan Negi (RW 44), state that the posters of the type of Ex. P-1 were not distributed or pasted in Kalpa. These witnesses are independent witnesses and there is no reason to disbelieve their evidence. Hence it is not proved that posters were distributed in Kalpa on 22-5-1985.

Davinder Singh (PW 85) states about the distribution of posters on 24-5-1985 in village Khaba Kharaba. He is a worker and was a polling agent of the Petitioner. He states that the poster was given by Devi Ram (RW 65), but Devi Ram (RW 65) denies this fact. He is an interested witness and his statement cannot be believed. Hence distribution of posters in village Khaba Kharaba is not proved.

Dhanbhagat Singh (PW 102) states that Rattan Singh (RW 64) gave posters to him in village Kafnoo in the presence of Sunder and he informed the Petitioner about this fact. Rattan Singh (RW 64), however, denies this fact. Gauchhen (RW 68) states that he never saw any poster of the type of Ex. P-1 in village Kafnoo. In these circumstances, the oral evidence of the Petitioner cannot be believed with respect to distribution of posters in village Kafnoo.

For village Urni the Petitioner has produced Bhagat Singh (PW 36) and Sanam Guru (PW 37) and both these wit nesses state that they had informed the Petitioner after the declaration of the result about this fact. The Petitioner in his petition or further better particulars has not mentioned the particulars regarding all these facts. The oral evidence of these two witnesses thus cannot be believed. Further Davinder Singh Negi (RW 53), Hira Singh (RW 54), Chhering Dolma (RW 55), and Chander Parkash (RW 56) state that they never saw posters of the type of Ex. P-1 in village Urni. Hence from the evidence discussed above, distribution of posters in village Urni is not proved.

For village Labrang the Petitioner has produced Thakur Sen (PW 163) and Chandu Lal (PW 164) who state that posters of the type of Ex. P-1 were distributed in village Labrang on 23-5-1985. Ranbir Singh (RW 5) and Shanti Lal (RW 6), however, state that posters of the type of Ex. P-1 were not distributed in village Labrang. It is not safe to rely upon the oral evidence of the Petitioner as such type of oral evidence can be procured and produced at any time.

For village Barang the Petitioner has produced Bahadur Singh (PW 49) and Chain Singh (PW 57). Bahadur Singh (PW 49) was polling agent and a worker/supporter of the Petitioner. Chain Singh (PW 57) met the Petitioner and informed him about the meeting of the Chief Minister. In case the Petitioner had been informed about the distribution of the posters in this village by these persons, then the Petitioner would have given the details of these facts in the further better particulars. Sohan Singh (RW 36) and Vinod Kumar (RW 37) state that they did not see any poster being distributed in village Barang. From the evidence discussed above, it is not proved that posters were distributed in village Barang.

For village Chitkul the Petitioner has produced Jogar Singh (PW 158) and Bhagwan Singh (PW 159), but they do not support the Petitioner.

From the evidence discussed above, I find that the Petitioner has failed to prove the allegations regarding distribution of posters of the type of Ex. P-1 in various villages of the constituency.

Some other facts and circumstances also prove that the posters of the type of Ex. P-1 were not distributed by the Respondents or their agents with their knowledge and consent. Balwant Singh (PW 33), Hige Chand (PW 39), Dilbagh Singh (PW 40), Roop Singh (PW 93), Ashok Kumar (PW 94), Harish Negi (PW 126) and -Bhag Singh (PW 134) state that the Petitioner had the information about the distribution of poster like Ex. P-1 and its contents on 22-5-1985 and 23-5-1985. If it was so, then the Petitioner, who is a seasoned politician and has been in public life as a politician from 1967, would not have kept quiet but he would have complained about the contents of the posters to the higher election authorities prior to the election date or immediately after the election. The Petitioner, however, did not make any complaint to any authority about this fact till the date of the filing of the present election petition.

The above discussion regarding the distribution of posters also includes the question of the pasting of the posters at various places which also amounts to distribution/publication.

Ex. P-1 has been produced and it was contended that the allegations made in this are false and these statements of facts were believed to be false by the Respondents and the Respondents did not believe them to be true. Further these statements of facts had purposely been made by the Respondents and they adversely affected the election of the Petitioner to thet constituency and these statements in Ex. P-1 related to he personal character and conduct of the Petitioner. The contention of the Respondents'' counsel is that even if the publication of Ex. P-1 is proved still the Petitioner has failed to prove the necessary ingredients of Section 123(4) of the Act and it cannot be termed to be a corrupt practice.

I have held that the publication of the posters of the type of Ex. P-1 by Respondents Nos. 1 and 2 or their agents or by any person with the consent of the Respondents Nos. 1 and 2 is not proved. Inspite of this finding, I will now proceed to deal with the question as to whether the statements of facts in the poster Ex. P-1 are false and the Respondents believed the statements to be false or did not believe the same to be true and whether these statements were made in relation to the personal character and conduct of the Petitioner and were reasonably calculated to prejudice the prospects of the Petitioner''s election.

The Petitioner (PW 1) states that the allegations in Ex. P-1 are false and the same affected his prospects of election and there was a direct attack on his character and conduct in these statements. He further states that the same were purposely made by the authors of the poster who believed these statements to be false and did not believe them to be true.

Out of the 13 persons mentioned in Ex. P-1 to whom money is alleged to have been paid from the discretionary fund, 12 persons are the Petitioner''s witnesses and their evidence is being discussed below.

Briefly the first allegation in Ex. P-1 is that Balwant Singh Negi (PW 33) is a relation of the Petitioner and is well to do person. He was given Rs. 30,000/- as financial help under various items.

Balwant Singh (PW 33) admits that Rs. 30,000/- was sanctioned in favour of Kinner Samai and this amount was paid to him as a cashier of Kinner Samaj and not in his persona'' capacity for his personal use. This witness was an election agent of the Petitioner and is also the President and Chairman of Kinner Samaj of which Hukam Chand (PW 30) is the Secretary. The amount of Rs. 34,139.50 was deposited by this witness in the Kinner Samaj Karya Karini saving bank account No. 4039 from 26-3-1980 to 15-6-1985 and this fact is proved by the bank certificate Ex. P-15. The amount was sanctioned vide sanction orders Ex. P-36, P-36/A to P-36/0 and in the sanction orders it is mentioned that the amount was for religious and charitable selfless service of the society for the economic and cultural, social and educational development of Kinner Samaj. The amount was to be paid through Shri Balwant Singh (PW 33) for depositing in the bank and then to uti ise the same for the benefit of Kinner Samaj. Kinner Samaj is a registered body as is proved from the certificate Ex. P-49 and Hukam Chand (PW 30) is its Secretary. The General Secretary of Kinner Samaj is Harish Negi (PW 126) who also was an election agent of the Petitioner.

The second allegation in the poster Ex. P-1 is for Chet Ram Pradhan Gram Panchayat Chargaon (PW 34). Briefly the allegation in Ex. P-1 is that an amount of Rs. 5000/- was paid to him as an unemployed person to establish small scale industry, but he was a military pensioner and owned orchard and had purchased land worth thousands of rupees in Peo for a modern hotel.

Chet Ram (PW 34) was a counting agent of the Petitioner in 1985 elections and he supported the Petitioner in 1982 elections also. This witness admits that an amount of Rs. 3000/- was sanctioned in his favour in 1982 for setting up small scale industry. It is also proved from the sanction order Ex. P-37 that the amount was sanctioned in his favour as help to an unemployed graduate to establish his own industry. Besides this amount, rupees one thousand was sanctioned in favour of ex-servicemen league through Chet Ram (PW 34) on 24-2-1983 because Chet Ram was the Vice-President of the League. Another amount of Rs. 1000/- was sanctioned on 12-3-1984 as grant-in-aid for the welfare of ex-servicemen of Kinnaur district through Chet Ram Negi (PW 34) who was General Secretary of the ex-servicemen League. In this manner Rs. 5000/- was paid to Chet Ram out of which Rs. 3000/- was given to him as an unemployed graduate for establishment of industry.

The third allegation in Ex. P-1 is for Goverdhan Singh Negi (PW 138) and briefly the allegation is that Rs. 7500/- were given to him by the Petitioner as aid although he was a rich man. Goverdhan Singh (PW 138) rendered general support to the Petitioner and he states that he was given Rs. 5000/- for installing carding machine at Sangla and Rs. 1000/- for distributing money to poor and needy persons. The witness states that he distributed money to five persons who were needy and poor. This witness also received Rs. 1500/- for printing charges of Geeta in Kinnauri script and an amount of Rs. 5000/- was sanctioned for development of the site for carding plant for Vaspa valley through him because he was Pradhan of Sangla Panchayat. The sanction order (Ex. P-48) mentions that Rs. 2200/- were released in favour of several persons shown in the list Ex. P-48/C due to economic weaknesses through Pradhan Goverdhan Singh (PW 138). It is also in evidence that Rs. 1500/- were paid to Goverdhan Singh President Gram Panchayat Sangla for translating Geeta in Kinnauri Bhasha and Rs. 5000/- for a carding plant for Vaspa valley through Goverdhan Singh Pradhan.

The fourth allegation in the poster Ex. P-1 in brief is that Surinder Singh and Devinder Singh were given Rs. 600/- and 500/- respectively as aid to improve their work when both these persons had houses in Peo and all persons knew their income. Surinder Singh (PW 29) and Davinder Singh (PW 32) admit having received Rs. 600/- and Rs. 500/- respectively and Surinder Singh (PW 29) states that the amount was paid for purchasing a tailoring machine etc. for running a tailor''s shop. This witness was a polling agent of the Petitioner in 1985 elections and he admits that he got this amount upon a request from the Petitioner as financial help. Ex. P-47 is the sanction order for Rs. 600/- in favour of Surinder Singh (PW 29) and it is mentioned that the amount was paid to strengthen self-employment. Similarly Ex. P-38 is the sanction order for Rs. 500/- in favour of Davinder Singh (PW 32) and the amount was paid for strengthening self-employment. In fact Ex. P-38/B and the letter Ex. P-38/A prove that the amounts totalling Rs. 19,400/- were sanctioned in favour of several persons for various purposes by the Petitioner. Both these witnesses state that they required the amount.

The 5th allegation in the poster Ex. P-1 is that an amount of Rs. 3500/- was paid to Jeevan Lal (PW 101) as aid for the education of his children. Briefly it is alleged that Jeevan Lal (PW 101) was a rich man. Jeevan Lal (PW 101) admits having received Rs. 3500/- as financial help on different occasions for the education of his children and he states that his children were intelligent and had secured good marks but he was unable to give them higher education. He further states that he had also taken loan for the education of his children. Jeevan Lal (PW 101) was a polling agent of the Petitioner.

On 7-4-1982 by sanction order Ex. P-46, Rs. 1000/- was sanctioned in his favour for education of his children and subsequently by order dated 1-2-1983 (Ex. P-46/C) Rs. 500/- was sanctioned in his favour as financial help for study of his son. Similarly vide order dated 11-9-1983 (Ex. P-46/F) he was given an amount of Rs. 500/- for children education and another amount of Rs. 500/- vide order dated 10-3-1984 was given to him for education of children. On 19-4-1984 Rs. 500/- were given to him for education of children and vide order dated 31-8-1984 Rs. 500/- were again given for the education of children.

The 6th allegation in the poster Ex. P-1 is that Hukam Chand (PW 30) was paid Rs. 2000/- as an unemployed although everybody knew that he was a rich man. Hukam Chand (PW 30) admits the receipt of Rs. 2000/- out of the Speaker''s discretionary fund and states that he spent the amount for starting a furniture unit. The witness further states that for starting a factory he had to raise loans and Rs. 2000/- was sanctioned in his favour vide sanction order Ex. P-39 dated 8-4-1982 on the ground of his being an unemployed graduate by the Petitioner.

The 7th allegation in Ex. P-1 is for Govind Singh (PW 95) of Sungra village. Briefly the allegation is that he was allowed Rs. 1000/- as unemployment allowance by the Petitioner although he owned an orchard and a saw machine. Govind Singh (PW 95) admits having received Rs. 1000/- in the year 1982 when he was a polling agent of the Petitioner. He states that he raised a loan from the UCO Bank for running a sawing machine and the amount of Rs. 1000/- was sanctioned in his favour vide sanction order Ex. P-45 dated 3-8-1982 on account of his being an unemployed educated young man struggling to stand on his feet. It is mentioned in Ex. P-45 that he had already invested and is still investing considerable amount of his own and deserves supplementary help. Several persons were sanctioned amounts by the Speaker and the total amount sanctioned vide list Ex. P-45/B is Rs. 4300/-.

The 8th allegation in Ex. P-1 is for Vidya Pati who had been paid Rs. 500/-. Vidya Pati (PW 86) states that the amount was given as grant to Mahila Mandal Kilba and was utilised by Mahila Mandal Kilba. She states that it was paid through her because she was the President but she did not get any amount for her personal use. She admits herself to be a niece of the Petitioner in collateral relationship. The various documents Ex. P-40, P-40/A and P-40/B also prove that the amount was sanctioned in favour of Vidya Pati President Mahila Mandal Kilba to promote cultural and economic activities.

The 9th allegation in Ex. P-1 is for Davinder Singh (PW 31) and the allegation in brief is that an amount of Rs. 500/- was paid to him as unemployment allowance although he was running a hotel etc. Davinder Singh (PW 31) admits the receipt of the amount and it is also proved from the sanction order dated 1-5-1983 in which it is stated that the amount was being sanctioned for the purpose of self-employment for running a hotel.

The 10th allegation in Ex. P-1 is for Amar Singh and the allegation is that he was paid Rs. 500/- for cremation ceremony at his home although he is a very rich man.

Amar Singh has not appeared as a witness but the sanction order Ex. P-42 dated 14-9-1983 proves that an amount of Rs. 500/- was sanctioned in his favour for bearing the expenses on account of the death ceremony and liability in respect of Jomu of Tashigang who died in natural calamities. The Petitioner (PW 1) states that the amount was sanctioned to bear the expenses of cremation of Buddhist nun (Jomu) and Lama who died in avalanche and the amount was spent by Amar Singh for the cremation and death ceremony of the nun.

The 11th allegation in the poster Ex. P-1 is that an amount of Rs. 1100/- was paid to Bhagat Singh as compensation for a dead donkey to a person of Kalpa whose three horses had died and the leg of one had broken was paid only Rs. 500/-.

Bhagat Singh (PW 99) states that Kartar Singh was the owner of a donkey and this donkey used to carry goods for Shong dispensary without payment. The donkey died in May 1984 while carrying goods. As such he approached Dr. Kapoor to give financial help to Kartar Singh. The villagers had decided to approach the Petitioner for giving financial help to Kartar Singh whose donkey had died while carrying medicines. For this reason the amount had been paid.

Bhagat Singh (PW 99) is the younger brother of Balwant Singh (PW 33) and is nephew of the Petitioner in collateral relationship. He was also polling agent of the Petitioner in the election. He states that Rs. 1100/- was paid to Kartar Singh by a draft. Kartar Singh (PW 100) also corroborates Bhagat Singh (PW 99) in all material particulars. Dr. Kapoor (PW 98) also corroborates Kartar Singh and Bhagat Singh. The sanction order Ex. P-44 dated 22-6-1984 also mentions that Rs. 1100/- were sanctioned in favour of Bhagat Singh (PW 99) for payment to Kartar Singh whose donkey had died while carrying medicines from Karchham to Shong and it was a financial assistance to the villagers of Shong as compensation for a donkey which died by accident while carrying medicines for the dispensary.

The 12th allegation in Ex. P-1 is that Moti Gialchhan was paid Rs. 500/- for purchasing iron almirah. Moti Gialchhan (PW 35) states that he did not receive any amount, but Rs. 500/-was paid to Chander Mani of village Spilo. This witness was a polling agent of the Petitioner. The sanction order Ex. P-43 mentions that the amount was paid to Tibetan for purchase of iron almirah and to give education to Tibetan girls. It was sanctioned in favour of Gialchhan Chander Mani of Spilo through Gialchhan.

The payment of various amounts or amounts which are roughly mentioned in Ex. P-1 from the Speaker''s fund is practically proved to various persons. These amounts were sanctioned by the Petitioner during the time when he was a Speaker of the Assembly. The Speaker of the Assembly has a discretionary fund at his disposal It is an admitted position that several amounts between one lakh to two lakhs were distributed by the Petitioner as a Speaker within a period of five years from 1980 to 1984.

The Petitioner''s counsel contended that the allegations in Ex. P-1 were false and the Respondents Nos. 1 and 2 knew these statements to be false or did not believe the same to be true in relation to the personal character or conduct of the Petitioner and these statements were reasonably calculated to prejudice the prospects of the Petitioner''s election. The Respondents'' counsel contended that firstly the Respondents had no knowledge about the publication or the distribution of the posters of the type of Ex. P-1 and the statements in the poster Ex. P-1 were not made with the consent or knowledge of the Respondents, and secondly such statements were not in relation to the personal character or conduct of the Petitioner and the same only pertained to the political career of the Petitioner.

Before dealing with the contentions, I will refer to some judgments which were relied upon by the learned Counsel for the parties.

In Kameshwar Prasad and Others Vs. The State of Bihar and Another, an election petition was filed by Inder Lal, an elector (Appellant), challenging the validity of the election of Lal Singh (Respondent No. 1) who had been declared elected from Chittaurgarh constituency of the Rajasthan Legislative Assembly. Lal Singh had defeated Laxman Singh (Respondent No. 2) in the election. The Appellant had alleged that Respondent No. 1 procured or abetted or attempted to procure either by himself or by his agents or by other person with his connivance or with his consent the reception of invalid votes and as a result of the said votes the result of the election had been materially affected. It was further pleaded that Respondent No. 1, his agents and other persons with the connivance of Respondent No. 1 or with his consent published such statements of facts (Ex. 3 and 6) which were false and which they either believed to be false or did not believe to be true in relation to the per sonal character or conduct of Respondent No. 2 which were likely to prejudice the prospects of Respondent No. 2 at the election. The Election Tribunal held that Ex. 3 had been published by the agent of Respondent No. 1 but not with his express consent and for Ex. 6 the Tribunal was not satisfied that it had been published by Respondent No. one''s agent. The election petition of the Appellant was dismissed.

In appeal the Rajasthan High Court accepted the finding of the Tribunal for Ex. 3 but reversed the finding for Ex. 6 and held that the said document was published for the benefit of Respondent No. 1 and that both the pamphlets were published with the consent of Respondent No. 1. The High Court then held that the allegations were false and were calculated to affect prejudicially the prospects of Respondent No. 2. The High Court further held that the said allegations had no relation to the personal character or conduct of Respondent No. 2 and therefore, the election was not liable to be set aside u/s 123(4) of the Act.

An appeal was preferred to the Supreme Court. The relevant portions of the pamphlet Ex. 3 to which objection was taken by the Appellant read as follows:

Enemy of Democracy?

Agent of the foreigners strangling the freedom of Bharat?

Supporter and collaborator of the conspiracy of Pakistani attack on Bharat?

Bringer of tyrannical rule of Rajas in Rajasthan?

Destroyer of Hindu-Muslim unity by raising the slogans of Ram Rajya?

Purchaser of the opponents of the Congress by means of money?

It was contended that all these allegations were levelled against Laxman Singh (Respondent No. 2). The Supreme Court, in paras 12 and 13 of the judgment, elaborated the position in the following language:

But the position with regard to the private or personal character of the candidate is very different. Circulation of false statements about the private or personal character of the candidate during the period preceding elections is likely to work against the freedom of election itself inasmuch as the effect created by false statements cannot be met by denials in proper time and so the constituency has to be protected against the circulation of such false statements which are likely to affect the voting of the electors. That is why it is for the protection of the constituency against acts which would be fatal to the freedom of election that the statute provides for the inclusion of the circulation of false statements concerning the private character of a candidate amongst corrupt practices. Dissemination of false statements about the personal character of a candidate thus constitutes a corrupt practice.

Though it is clear that the statute wants to make a broad distinction between public and political character on the one hand and private character on the other, it is obvious that a sharp and clear-cut dividing line cannot be drawn to distinguish the one from the other. In discussing the distinction between the private character and the public character, sometimes reference is made to the "man beneath the politician" and it is said that if a statement of fact affects the man beneath the politician it touches private character and if it affects the politician, it does not touch his private character. There may be some false statements of fact which clearly affect the private character of the candidate. If, for instance, it is said that the candidate is a cheat or murderer there can be no doubt that the statement is in regard to his private character and conduct and so if the statement is shown to be false, it would undoubtedly be a corrupt practice. Similarly, if the economic policy of the party to which the candidate belongs or its political idealogy is falsely criticised and in strong words it is suggested that the said policy and idealogy would cause the ruin of the country, that clearly would be criticism, though false, against the public character of the candidate and his political party and as such, it would be outside the purview of the statute. But there may be cases on the borderline where the false statement may affect both the politician and the man beneath the politician and it is precisely in dealing with cases on the border line that difficulties are experienced in determining whether the impugned false statement constitutes a corrupt practice or not. If, for instance, it is said that in his public life, the candidate has utilised his position for the selfish purpose of securing jobs for his relations, it may be argued that it is criticism against the candidate in his public character and it may also be suggested that it nevertheless affects his private character. Therefore, it is clear that in dealing with corrupt practices alleged u/s 123(4) where we are concerned with border line cases, we will have to draw a working line to distinguish private character from public character and it may also have to be borne in mind that in some cases the false statement may affect both the private and the public character as well.

After considering the relevant portions of the poster Ex. 3, it was held that "the allegations made in the pamphlet that Laxman Singh is a purchaser of opponents of the Congress by means of money clearly attracted the provisions of Section 123(4) of the Act. In plain terms, the statement amounts to an allegation that Respondent No. 2 buys by offering bribes the votes of the opponents of the Congress. Bribery is itself a corrupt pracice and if it is said against a candidate that he practises the corrupt practice by buying the votes of the opponents of the Congress by means of bribery, that clearly and unequivocally affects his private character. Offering a bribe in an election introduces an element of moral turpitude and it cannot be denied that a person who offers bribe loses reputation as an individual in the eyes of the public. The statement alleges that the bribes are offered by Respondent No. 2 for the purpose of election and in that sense it may be that it is his public character which is falsely criticised. But in our opinion it would be ideal to contend that it is a false statement only against the public character of Respondent No. 2. Haying regard to the moral turpitude involved in the offering of the bribe, the statement in question undoubtedly affects his private character as well." (emphasis supplied). Considering these aspects of the pamphlet, the Supreme Court held that a corrupt practice had been committed and as a result the election of Lal Singh (Respondent No. 1) was set aside.

In Mohan Singh Laxman Singh Vs. Bhanwarlal Rajmal Nahata and Others, a Single Judge of Madhya Pradesh High Court held that to call a person a cheat in a publication is a corrupt practice. The exact language used in that judgment with respect to Bhanwar Lal was "Kia Apne Kisano Ko Apheem Ke Patte Babat Nahin Thagha", and it was held that the question clearly contained an allegation that Bhanwar Lal cheated the cultivators. No doubt, the allegation was made in an interrogative form. But that is wholly immaterial. A statement of fact can be made directly as well as by putting a categorical question inviting a distinct and positive statement of fact and which can only be answered by ''yes'' or ''no''. This form of interrogation is often employed to emphasize a statement of fact and for eliciting an answer to it. It was held that Bhanwar Lal denied on oath the allegation that he had cheated any cultivator in respect of opium farming licences while Mohan Singh led no evidence to prove the truth of this allegation and in these circumstances the statement clearly referred to the personal character of Bhanwar Lal and if such a statement was false then it was reasonably calculated to prejudice the prospects of Bhanwar Lal''s elections.

In a Division Bench judgment Badri Prasad v. Satish Kumar ( AIR 1964 Raj. 184), Respondent had Won the election from Rajasthan Legislative Assembly while Badri Pra sad (Appellant) had lost the elections. Badri Parsad challen ged the election of Satish Kumar (Respondent) on several grounds including the ground of corrupt practice covered u/s 123(4) of the Act and it was alleged that pamphlet Ex. 10 had been published asking Shri Badri Parsad to reply various queries. One of the queries was that ''who has pocketed eight lacs of rupees of the Nehru Fund?'' The English translation of the poster Ex. 10 is given in para 49 (page 194) of the judgment as follows:

SHRI BADRI PRASAD JI TO PLEASE REPLY WHO HAS POCKETED EIGHT LACS OF RUPEES OF THE NEHRU FUND?

With whom is lying that huge amount of money which was raised by selling the name of Nehruji in auction and by squeezing the pockets of the people, big and small.

Did Nehruji send a word that money should be raised by scrapping the pocket of all sundry people of Alwar as he was hard of money.

Whether Nehruji was really made pick up pearls and diamonds and assuming it to be so why was the money not accounted for to its real owner, the poor public at large, who had been repeatedly urging for the same, through the Press and at the Stage.

Has not this money been earmarked for purchasing votes? Whether votes could be secured through money and, if so, is it not open corruption?

Is it not illegal and far below morality to use openly the public servants, the transport and the petrol of the Government for the individual publicity.

These questions are particularly being asked from Shri Badri Prasad Ji as he has put on a cloak of honesty, whereas other poor leaders do not much hesitate to confess their dishonesty, at least in camera. They have the courage of doing all this under their assin med helplessness. What right a poor perosn has got then? Why should not the people''s court then punish such a person?

A Division Bench of the Rajasthan High Court in these circumstances held that an analysis of Ex. 10 will show that Badri Prasad was asked to pointed question as to who had pocketed 8 lacs of the Nehru Fund in the top line. The Respondents did not make any insinuation directly and adopted the mode of putting question. Badri Prasad in his capacity was leading member of the Congress and the reference obviosuly was to him in his personal capacity. It was held that by the poster Ex. 10 it was intended to convey to an avergae voter that the Petitioner (Badri Prasad) had been responsible for either misappropriating the amount of Nehru Fund or utilising it for a different purpose including the objectionable purpose of purchasing votes with that fund. There is thus a suggestion of embezzlement as also the commission of corrupt practice. The document thus contains a statement in relation to the personal character or conduct of Badri Prashad.

In T.K. Gangi Reddy v. M.C. Anjaneya Reddy and Ors. 22 E.L.R. 261 it was held by the Hon''ble Judges of the Supreme Court that the wording in the poster clearly fell within the purview of Section 123(4) of the Act. In this judgment pamphlets Ex. P-62 had been printed under the signatures of Secretary Kolar District Congreess Committee whereby certain allegations had been made against Communists and as a counter blast two posters Ex. P-3 and P-4 were published by the Communists in which some acts of violence had been alleged against the Congress.

Briefly the facts were that in election to Mysore Legislative Assembly in the year 1947 (Sic) the constituency seat was contested by the Appellant and the Respondents. The Appellant was declared elected and his election was challenged on various grounds including the ground of corrupt practices u/s 123(4) of the Act. Shri M.C. Anjaneya Reddy (Respondent) was a Congress candidate while Gangi Reddy (Appellant) was a Communist candidate. In the posters Ex. P-3 and P-4 published on behalf of the Communist candidate there were general allegations against the Congressmen and the general allegations in the posters also concentrated the attack on Anjaneya Reddy, Congress candidate by inserting the following passages in Ex. P-3:

It is not a new thing that the Congress candidate, Shri M.C. Anjaneya Reddy, has been trying to suppress his opponents by means of violent acts. The members of the public have in their memory many such acts having taken place in his political career.

Similarly in Ex. P-4, the following passage appeared:

In Chintamani there is no limit to the wicked acts of the Congressmen. Under the leadership of Shri M.C. Anjaneya Reddy who has joined the Congress last month, a conspiracy is being hatched for some days past to stop the workers on behalf of Shri Gangi Reddy, the United Front candidate and the Communist leader, from carrying on propaganda and to bring the propaganda to a standstill.

This wickedness reached its climax at Chintamani on Sunday the date 24th February, 1957. On that day in the evening 300 people on behalf of Shri M.C. Anjaneya Reddy who had joined Congress stag ing a demonstration, beat Muslim workers of the Communist Party so that the workers lost their cons ciousness...

The disciples of Shri M.C.Anjaneya Reddy, ''beat'' with ''Agula'' Shri Narayanaswamy who had come to take care of the office of the Ryots'' Association. As a result, Shri Narayanaswamy died an unnatural death that very moment. The late Narayanaswamy was the well-wisher of Shri T.K. Gangi Reddy. An attempt is being made to foist this wicked act upon the Communists. No one who is aware of the history of Shri M.C. Anjaneya Reddy will believe this. Nobody can forget the ''galata'' made by him by throwing stones so as to prevent a meeting (of people [to be addressed by) Shri K.C. Reddy in connection with the last elections. The people of Chitamani have not forgotten the organised wicked acts indulged in by them after the municipal elections. But Shri M.C. Reddy had not joined Congress then.

On an interpretation of the passages of the two posters reproduced above from Ex. P-3 and P-4 the Supreme Court observed:

The aforesaid passages attribute acts of violence to Anjaneya Reddy during his political career. They also stated in clear and unambiguous terms that Anjaneya Reddy was responsible for the murder of Narayanaswamy, that he threw stones at a meeting arranged to be addressed by Shri K.C. Reddy, and that he also indulged in organised wicked acts during the municipal elections and that he was guilty of violent acts during his political career.

And thereafter the Supreme Court posed a question as to whether these allegations fell within the mischief of Section 123(4) of the Act or not. It was then held that:

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. The said acts attributed to the first Respondent certainly relate to his personal character and conduct. What is more damaging to a person''s character and conduct that to state that he instigated a murder and that he was guilty of violent acts in his political career. We therefore, have no hesitation in holding that the allegations in the two leaflets, Exhibits P-3 and P-4, are in relation to the personal character and conduct of the first Respondent.

The Supreme Court further held that the statements were reasonably calculated to prejudice the prospects of the first Respondent''s election because poll was to be held immediately after the publication of the posters. In these circumstances the election of Gangi Reddy was set aside.

In Bhim Rao v. Ankush Rao (22 E.L.R. 385) there were some allegations in the pamphlet Ex. P-1 against Shri Bhim Rao who was a Congress candidate and had lost the Lok Sabha elections against Shri Ankush Rao, a candidate of Sam-yukta Maharashtra Samiti. The pamphlet Ex. P-I is reproduced at page 396 of the judgment and it reads as follows:

An appeal by women in the name of humanity. There is a direct fight between Congress and Samyukta Maharashtra Samiti in relation to the bye-election to Parliament. The demand of Samyukta Maharashtra is the demand of right and justice. It is a public necessity and the demand of the people. It is necessary to support Samyukta Maharashtra Samiti in order to achieve this demand and building up of better and welfare future; and deliver a blow to conservative and declining power of Congress.

simultaneously, the question of the personal character of the candidate also arises and it is essential to compare them. The candidate of Samyukta Maharashtra SamitiShri Ankushrao Ghare, B.A., LL.B., Advocate (Partur) is a man of good nature, character and sympathetic. It is evident from his record of five years in Hyderabad Assembly that he raised his voice effectively for poor and working class people and on the problems of mmorities; irrespective of caste and creed. On the other side is Shri Baba Saheb Sawa-nekar oh behalf of Congress about whom it is confidently said that he by taking undue advantage of circumstances inflicted enough suppression and atrocities.''iParticularly, he made the minority community the target of his lust; and laid his hands on some respectable, helpless and unprotected ladies and kept them in his possession.

We question every voter in the name of humanity and respectability, whether they (voters) by supporting such a Congress candidate would like to end support to vices and whether they have any feelings, conscience and self-respect?

We are quite certain that every male and particularly all women, will give shameful defeat to such a Congress candidate.

On behalf of ladies, Hingoli.

It was observed by a Division Bench of the Bombay High Court in this judgment at page 400 as under:

If any part of the allegation is demonstrably false, then it seems to us that the dissemination of the statement will fall within the definition of''corrupt practice contained in Sub-section (4) of Section 123 As We have pointed out, the allegation to the effect that the women were detained by the Appellant by force must be regarded as false, because the legality of detention has not been challenged.

In Sheopat Singh Vs. Ram Pratap, the Appellant was declared elected but his election was challenged by the Respondent on several grounds including the ground of corrupt practice u/s 123(4) of the Act. Their Lordships of the Supreme Court, after referring to the judgments in T.K. Gangi Reddy and Inder Lal (supra), observed as follows in para 8 of the judgment:

The boundary between personal character and conduct and public character and conduct is well drawn, though, sometimes,''it is thin. ''Sometimes a statement may appear to touch both the candidates personal as well as public character. But a deeper scrutiny enables a court to ascertain whether there is a reflection on his personal character or on his public character. To illustrate: suppose a statement is made to the effect that a minister has taken a bribe in making an appointment or in giving a contract. He has taken the bribe in the course of discharging his duties as a minister, but his act of taking bribe does not solely reflect on his public character. By taking a bribe he does not discharge his official duties; taking a bribe has nothing to do with his official or public duty. It reflects on his moral and mental fibre. His position as a minister may have given him the opportunity to take a bribe but the taking of the bribe is mainly attributable to his deficiency in personal character. We, therefore, hold that any statement made, which reflects on the mental or moral character of a person is a reflection on his personal character, whereas any criticism of a person''s political or public activities and policies is outside it. The fact such a statement is made in the course of a political or public activity does not make it any the less a statement in relation to his personal character or conduct. It is a question of fact in each case under what category a particular statement falls.

The relevant portion of the poster Ex. 3 is extracted in para 9 of the judgment which reads as follows:

Bounties of the Cement of the Rajasthan Canal--Cinema of seven lakhs in Ganganagar and magnificent kothis in the neighbourhood of Jaipur''s ''Rajmahals''.

Open loot in liquor contracts by Gandhi''s devotees and improper transfer of lands. Hanumangarh''s gentlemanliness, honest and public welfare faced with the corrupt, permit-loving and ''police-raj'' of the Congress.

Give proof of bravery, modesty and self-lessness by giving vote to Sheopatsingh Makkasar who would bravely sacrifice himself for the glory and prestige of Hanumangarh.

Election (Ears of Corn and Sickle) Symbol.

Vote for ears of corn and sickle, the symbol of prosperity, progress and popular rule.

After analysing the various words used in the poster Ex. 3, it was held that ex facie the poster did not say that the cement of the Rajasthan Canal had been misappropriated by the Appellant but by implication it was evident that the cement of Rajasthan Canal had been misappropriated by a defeated candidate Ram Chander Chaudhary and his son who was a Minister at the relevant time. The learned Judges further held that such a statement that a Minister had misappropriated the cement in his charge and built a theatre from out of the proceed is certainly a reflection on his personal character and conduct. In these circumstances, the election of the Appellant was set aside on the ground that the poster published by the Appellant fell within the perview of Section 123(4) of the Act. It may be mentioned that the petition challenging the election of the Appellant was filed by the Respondent who was an elector in the constituency.

From Narayan Shankar Trivedi v. Dalchand Jain and Anr. 37 E.L.R. 107 by a Single Judge of Madhya Pradesh, para 88 at page 131 of the judgment was referred which reads as follows:

The next point for consideration is as to whether the impugned publications contained any fa se or defamatory statements against the personal character, conduct or candidature of the Petitioner. The extracts objected to from the relevant exhibits P-1, P-3, P-6, P-7 and P-9 to P-1 1 in the issue of the New Rocket Times and Agami Kal have been reproduced above. Having carefully perused those statements, I am of the view that the said publications do contain false and grossly defamatory statements against the personal character and conduct of the Petitioner. I would illustrate the conclusion I have reached by examining only some of the objected portions. The heading of Ex. P-1 already makes it relatable to Nara inshankar Trivedi. The heading in so many words is ''Narainshankar Trivedi''s leadership exposed.'' The portion A to A in Ex. P-1 has been translated as "the same labour leader who in order to mislead you and secure your votes had been opposing the capitalists for the purpos of meeting the expenses of the election campaign has obtained a fat sum by pledging his honesty in the safe of a capitalist of the city". This portion c''early conveys that the person indulging in these things lacks in honesty. His honesty is alleged to have been pledged for a sum of money. In other words, the imputation is that Narainshankar Trivedi is not an honest person because he can be induced to act in opposition to his principles on payment of money. In the last portion the imputation of moral turpitude has been made in unambiguous and clear language. In portion B to R it has been said that "it is the general talk in the public that it is the business of the leader who has swallowed up the Motor Drivers Union to incite the labourers and workers and thereafter by conspiring with the capitalists to cool down their enthusiasm." The charge in this portion is clearly that Narainshankar Trivedi plays a double game and he has swallowed the funds of the Motor Drivers Union. In the last sentence of the portion marked D to D it has been said against him that "in order to win the election his agents are exciting communalism by propagating Brah--manism". The meaning of the imputation unmistakably is that Narainshankar Trivedi is indulging into a corrupt practice covered by Section 123(3) and this, in my opinion, is clearly an attack on his personal character. All the aforesaid allegations constitute an attack on the mental or moral nature of the Petitioner and also an attack on his actions and behaviour. These being attacks on the honour veracity and purity of the man beneath the politician, in my opinion Ex. P-1 squarely falls within the mischief of Section 123(4). In the view that I have taken, it is not necessary for me to examine the objected portions of Ex. P-3 and Ex. P-6 in detail as even if any part of the objectionable matter contained in them could be said to be an attack merely against the political character or public life of the Petitioner, the result would remain absolutely unchanged. 284. The latest judgment of the Supreme Court is Ram Chand Bhatia Vs. Shri Hardyal, In this case the Appellant and the Respondent contested the State Legislative election from Nagrota constituency of Himachal Pradesh. The Appellant (a Bhartiya Janata Party candidate) was declared elected. The Respondent [a Congress (I) candidate] was defeated.

The Respondent challenged the electron by filing an election petition. Besides other grounds it was alleged that a corrupt practice u/s 123(4) of the Act had been committed by the Appellant by publishing a poster Annexure PA. The English translation of Annexure PA reads as follows:

NOTICE

(One has one''s own view point)

Fifteen years'' 20-Point programme of Shri Hardyal J and reply thereto by Parmanand keeping in view Janata Party candidate Chaudhary Kanshi Ram (Ex-serviceman), Pathiar.

Like Hardyalj I will never say that I have Raj-Yog on my forehead (destined to rule) and I have not acquired this position because of your votes.

Like Hardyalji I will also not say that the children of Harijans and Ghirth community do not have brains, so I do not employ them in my office. I will rather establish the fact that even the children of Harijans and Ghirths have brains and given opportunity they can also work like the children of others.

While Shri Hardyalji was Forest Minister, 1700 boys were employed in Dhauladhar Project and 300 boys were recruited as Forest Guards. Besides, boys were also employed in Transport, Electricity, Agriculture, Hospital and as Patwaris. We want to ask it from Sh. Hardyal as to how many boys have been employed from'' Nagrota constituency.

As Forest Minister, Mr. Hardyal had discontinued ''Chuharam'' of the forest and eliminated the income of village Panchayats. Why so?

We want to ask it from Mr. Hardyal as to how many persons of Nagrota constituency have been appointed as Gazetted Officers during his 15 years'' tenure as M.L.A. and Minister.

Had Mr. Hardyal provided employment to 5 boys per Panchayat per year during his 15 years'' tenure 124 INDIAN LAW REPORTS (HIMACHAL SERIES) (1987) (HC) as M.L.A. and Minister, two thousand children of Nagrota constituency would have been employed by now and there would have been no unemployment in Nagrota area.

Every party while in power will construct roads, dispensaries, bridges and schools in villages because there is provision for such things in the Constitution. Mr. Hardyal is misleading the innocent village folks by saying that he had done all that. This is all false.

I want to ask it from the people of Nagrota that an outsider has been befooling the people for 15 years on the plea of Raj-Yog and even in the capacity of MLA he has been living outside the area of Nagrota in a splendid house worth Rs. 2 lacs at Darhi and thus grinding his own axe. Why so?

May I ask if Chaudhary Hardyal being a Girth M.L.A. could not find place to stay in the house of some Ghirth or the person of any other community? For the last 15 years we have been seeing him staying along with his car with green flag at the house of one Amirzada (Aristocrat), Seth Saran Dass who is the duplicate of Mr. Hardyal at Nagrota. Seth Saran Dass (Stc).

I am a son of a farmer and labourer. What are the difficulties of farmers and labourers, I will manage to get them removed by the Government.

Like Hardyalji I will not try to deceive any one. If anybody''s work would be worth doing I shall definitely do that and if that may not be possible for me to do I will tell that the work cannot be done.

I will never stay at the house of Seth Saran Dass rather I would go to the house of some poor man and will help him minimise his sufferings.

Like Hardyalji I will not go to the house of a poor at the time when he is dead. I will go to the house of poor, arrange for his medical treatment, provide him with medical aid in hospital and will get the money arranged. But I will not do like Hardyalji Thakur Sen Negi v. Dev Raj Negi And Anr. 125 (V.P. Gupta, J.) who visited the house of late Bararu Ram very poor person of Mauza Sarialakkar Tanautra, TikkaPa-thiar, who died without medical aid on the day of Kappar Dhulai and participated in the meals of bhok-Saradh in order to befool the people.

Like Hardyalji will not visit the people on the occasion of marriages etc. If I visit such places in my capacity as an M.L.A, then naturally 40/50 other persons will also gather there and that will add to the expenses of the persons celebrating the marriage. But, of course, if someone invites me before marriage I will go there and will help him in making up the deficiency, if any.

I will never try to befool the poor people as Mr. Hardyal has deceived a very poor old man. Five years ago an old man gave an application to Mr. Hardyal to the effect that he was a very poor man and his son was a matriculate and that Mr. Hardyal should help in providing a job to the boy. Three years thereafter that boy died. When the time to seek votes came, Mr. Hardyal put his hand on the shoulders of the old man and said that he was arranging for the immediate arrival of the appointment" orders of his son.

Interviews for the posts of Patwaris were held on 30-1-1982 at Dharamshala. Interview cards were issued to 125 boys of every Tehsil, that is to say that 500 boys were called for interviews from 4 Tehsils, but only 7 cards were issued to the boys of Nagrota constituency. Mr. Hardyal has got it done deliberately because Mr. Hardyal wanted that the seats in the share of Nagrota constituency should go to Pt. Sant Ram and Sat Mahajan.

Panchayat Sangathan of Nagrota Block had passed a resolution 2-1/2 years back that Badoh should be made a Sub-Tehsil. During the Janata regime, Shanta Kumarji had ordered to establish Sub-Teh-sils at Kundia, Baijnath, Fatehpur (Nurpur), Ban-gana (Una), Amb (Una), Badoh (Nagrota), Kot-khal etc. All other Sub-Tehsils have since been established but the establishment of Badoh Sub-Tehsil was withheld by Mr. Hardyal with the view that he may inaugurate its inception when the elections are near and thus mislead the innocent village folks that he has established the Sub-Tehsil.

On 18th January, 1981 Girth Mahasabha had demanded from the Centre to open recruiting offices of Air Force and Navy at Nagrota but Chaudhary Hardyal had flatly refused to support this demand. Why so?

Chaudhary Hardyal has flatly refused to support the demands pertaining to the quota of Backward classes but he managed to obtain admission in the medical college for his son against a seat of backward classes. Why so?

15 years ago Mr. Hardyal was the President of the Jan Sangh Group of the Tea Garden Trade Union and joined the Congress after shifting his loyalty. It is for this reason that he does not help the village people to secure the employment. He helps only the children of rich people, that too outsiders. The lands have been given to the tenants on the basis of the provisions of the Constitution of India. Mr. Hardyal has been misleading the innocent people saying that it is he who has provided them with lands. It is all false. I earnestly wish the success of Janata Party candidate Mr. Kanshi Ram through your all possible efforts.

PARMA NAND, r/o Pathiar Halqa, Nagrota Bagwan. Modern Press, Nagrota.

The High Court of Himachal Pradesh accepted the election petition and the election of the Appellant was declared void. The Supreme Court accepted the appeal and upheld the election of the Appellant. In paras 15 and 16 of the judgment the Supreme Court has observed:

...The law is well settled. Adverse criticism however severe, however undignified, ill mannered, however regrettable it might be, in the interest of purity and, decency of public life, in relation to the political views, position, reputation or action of a candidate would not bring it within the mischief of the statute. What is objectionable is a false ataienient of fact and not a false statement of opinion however unfounded or unjustified.

A distinction has been drawn between the personal character or conduct of the candidate and his public or political character and conduct. Law postulates that if a false statement is made in regard to the public or political character of the candidate it would not constitute a corrupt practice even if it is likely to prejudice the prospects of that candidate the of A 123(4) Section mischief within brought are candidate character political public affecting facts statements false theory any by misled be could merits on allegations judge able would electorate character, conduct his views about made statement If criticism. view open election. The courts have taken the view that it is only when a person ''beneath the politician'' is sought to be assaulted that Sub-seption (4) of Section 123 of the Act is attracted. In some border line cases difficulty arises to find out whether the assault is on the person ''beneath the politician'' that is on the personal character and conduct of a man or on his political opinion and conduct. It will depend on the facts of each case whether in the particular given case the assault is on the personal character and conduct of the candidate or on his political conduct.

Thereafter the Hon''ble Judges have referred to various paras of the poster Annexure PA, and finally it was held that the allegations in Annexure PA did not amount to any corrupt practice u/s 123(4) of the Act as they did not affect the personal character and conduct of the Respondent.

The learned Counsel for the Petitioner contended that in the present case the various allegations in Ex. P-1 in fact amount to criminal misconduct on the part of the Petitioner because the allegations in the poster clearly mean that the Petitioner has abused his position as a Speaker and Speaker''s discretionary funds were sanctioned by him in favour of his rglatiyes, agents who were not deserving persons. These allegations in fact reflect a charge of corruption to the Petitioner.

Now the main purport of Section 123(4) of the Act is that the private character and conduct of a candidate should not be attacked falsely during the election so as to distinguish it from the public character of the candidate in his capacity as an office holder. In some cases it may become very difficult to draw a distinction between the public character and private character of a candidate and there may be border line cases where apparently allegations against the politician are in his public character but in fact such an allegtaion may also amount to the assasination of the private character of the politician and the statement of fact in fact affects the man beneath the politician. A working line has to be drawn to distinguish between private character from the public character and in some cases the statements of facts may affect both the private and the public character of the person concerned.

Keeping in view the law, I find that in the present case there is sufficient evidence to prove that the amounts were distributed by the Petitioner from the Speaker''s discretionary fund and in fact the various allegations with respect to the quantum of amounts distributed by the Petitioner from the Speaker''s discretionary fund are correct. Such statements of fact with respect to the quantum cannot be said to be false. As far as the relationship of the various persons mentioned in the poster with the Petitioner is concerned, the factum of relationship is also practically proved. The main dispute is that in the poster Ex. P-1 at several places it is alleged that the fund was sanctioned by the Petitioner in favour of relations, friends, supporters while actually it was sanctioned in favour of some institutions and not in their individual capacity. Further the poster states that the Petitioner has misused his position as a Speaker by sanctioning various grants in favour of his supporters or relatives. The attack in the present case is in fact upon the manner in which the Speaker has utilised the Speaker''s discretionary fund or in other words on the character and conduct of the Speaker in his public life. There is no allegation with respect to the private life or conduct of the Petitioner. Even the poster Ex. P-1 states that the Petitioner is guilty of RAJNAITIK BHRASHTACHAR, that is, misuse of his political life.

In Inder Lal''s case (supra) the allegation was with respect to the purchasing the votes of opponents by money and the learned Judges in these circumstances held that the allegation of purchasing of votes with money by a candidate in fact affects his private character and amounts to bribery.

In Badri Prasad''s case (supra) there was a clear allegation of misappropriation of funds against Badri Prasad who was in charge of Nehru Fund. The learned Judges in these circumstances held that there were allegations of embezzlement against Badri Prashad which amounted to corrupt practice.

In Ganga Reddy''s case (supra) some acts of violence were attributed to Anjaneya Reddy during his political career and it was also alleged in clear and unambiguous terms that Anjaneya Reddy was responsible for murder of Naraina Swamy. Such acts of violence against a candidate or involving a candidate for the commission of a murder could not be said to be with respect to his political character and this certainly affected the personal character and conduct of the candidate.

In Bhim Rao''s case (supra) again there were, allegations regarding illegal detention of a woman by force by the candidate and such acts were held to affect the personal conduct an 1 character of the candidate.

In Sheopal Singh''s case (supra) again there were allegations regarding misappropriation of the cement by the candidate and such misappropriation amounted to riminal misconduct and as such was held to fall within Section 123(4) of the Act.

In Narayan Shankar Trivedi (supra) the attack was with respect to honesty, misappropriation and for indulging in corrupt practices u/s 123(3) of the Act. The allegations constituted an attack on the mental and moral nature of the candidate and it was also an attack on the actions, behaviour, honour, veracity and purity of the man.

These judgments are not applicable to the facts and circumstances of the present case where the only allegations are that the Petitioner in his capacity as a Speaker had sanctioned, grants from the Speaker''s discretionary fund to persons who happened to be his relations, supporters, well wishers etc. and in fact such grants should not have been sanctioned in favour of such like persons who according to the signatories of the poster were not the proper persons to receive the grants, or, in other words, the allegation only amounts to this extent that the position of the Speaker was misused inasmuch as the Speaker''s fund was utilised in favour of undeserving persons. The attack is on the exercise of discretion of the Speaker which the Speaker was legally competent to exercise or indirectly it amounted to challenging the correctness of the judgment of the speaker in exercising his discretion with respect to the sanctioning of the grants. Whatever acts are challenged the same were done by the Petitioner in his capacity as a Speaker and legally he was competent to exercise his discretion. The authors of Ex. P-1, however, felt that the discretion was not correctly or properly exercised. The judgment in Ram Chand Bhatia (supra) is fully applicable to the facts of the present case. Thus even if all other ingredients are taken to be proved (which in fact are not proved) still the allegations in the poster Ex. P-1 are not in relation to the personal conduct and character of the Petitioner and it only touches the political career of the Petitioner.

Regarding the fact that the statements were reasonably calculated to prejudice the prospects of the Petitioner''s election, the pet tioner has produced the following witnesses, but their statements are not trustworthy or reliable.

Bansi Lal (PW 2) is not a voter in Kinnaur constituency. Jai Chand (PW 12), as already stated, is an interested witness. Maya Bhagat (PW 13) is also an interested witness as he met the Petitioner to confirm the allegations made in Ex. P-1. Mohar Singh (PW 15) was a supporter of the Petitioner and had worked for him and as such is an interested witness. Balwant Singh (PW 33) being a relation is an interested witness. Hige Chand (PW 39) was a supporter of the Petitioner and as such is interested in him. Daulat Singh (PW 65) is also relation of the Petitioner. Chhering Gialoo (PW 82) was a polling agent of the Petitioner. Jai Parkash (PW 84) was a polling agent of the Petitioner. Ravinder Singh (PW 85) was a polling agent of the Petitioner. Roop Singh (PW 93) is also an interested witness. Nanak Dev (PW 120) has no personal knowledge. Harish Negi was a worker, supporter and counting agent of the Petitioner and is interested witness. Keshav Chand (PW 129) was a polling agent of the Petitioner. Similarly Geeta Ram (PW 157) is also interested in the Petitioner.

Thus the evidence produced by the Petitioner about the adverse effect created by the poster Ex. P-1 upon the minds of the persons with respect to the election of the Petitioner, is highly interested and such like evidence cannot be of any material value in the election dispute where elections are fought on party basis and oral evidence can be procured and produced easily.

The Petitioner has also produced evidence to prove that the poster Ex. P-1 was read out in the public meetings during the course of the speeches which were made by the Respondent Nos. 1 and 2 and the Chief Minister of Himachal Pradesh. This part of the evidence has already been dealt with under issues Nos. 1 and 2, that is regarding corrupt practices of bribery and undue influence. It may, however, be mentioned that the oral evidence regarding the distribution of posters and the reading out of the posters in the public meetings is not convincing and is interested which cannot be relied upon.

As a result of the above discussion, it is held that the Petitioner has failed to prove that the poster Ex. P-1 was printed/published by Respondents Nos. 1 and 2 or by any other person with their consent. The Petitioner has also failed to prove the other ingredients of Section 123(4) of the Act. Issue No. 3 is therefore, decided against the Petitioner.

Issue Nos. 4 and 5.

The learned Counsel for the Petitioner frankly and rightly conceded that there is no evidence to prove these issues. These issues are accordingly decided against the Petitioner.

Issue No. 1 framed on 11-10-1985.

This issue was left undecided at the initial stages and on 20-12-1985, the learned Counsel for the parties stated that this issue may be decided along with the issues to be framed on merits. The issues framed on merits have been decided and I am of the view that the allegations in the election petition contain a concise statement of material facts, which disclose an enforceable cause of action. This issue is decided against the Respondents.

Issue No. 6.

As a result of my findings on various issues, this election petition is dismissed. The Petitioner shall also pay costs of the petition to Respondent No. 1. It is directed that the substance of" this decision be communicated to the Election Commission and the Speaker of Himachal Pradesh State Legisla tive Assembly forthwith. An authenticated copy of the deci sion be also sent to the Election Commission at the earliest.