1974 INSC 0223
                                                     Rahim Khan

                                                           Vs

                                           Khurshid Ahmed and Others

                                          Civil Appeal No. 816 of 1973

                            (D. G. Palekar, P. N. Bhagwati, V. R. Krishna Iyer JJ)

                                                      08.08.1974

                                                     JUDGMENT

KRISHNA IYER, J. ­

1. By a plurality of less that 2,000 votes the appellant was declared elected from the Nuh
constituency to the Haryana Assembly in the general election held on March 11, 1972. He was an
Independent candidate while his main rival, Respondent No. 1, represented the Indian National
Congress. There were three others in the field two of whom were Independents and the third a Jan
Sangh nominees - all of them polled poorly. In the electoral history of the constituency fickle
fortune has been smiling now on the appellant, now on Respondent No. 1. It also happens that while
the appellant had been a Deputy Minister when he was elected to the Haryana Legislative Assembly
last from the same constituency in 1967, at the following general election in May, 1968, to the same
Assembly (before its term the Assembly was dissolved and the non-Congress Government went out
of office) Respondent No. 1 was elected and he became a Member of the Cabinet formed by the
Congress party. The next election fell in 1972 where both figured as combatants from Nuh and we
are concerned with the validity of the result declared in favour of the appellant by the Returning
Officer in the present appeal, the High Court having set aside the election.

2. It is apparent that the competitive politics of the Nuh constituency has expressed itself through
the appellant and Respondent No. 1 for quite a long time now and, as the voting figures of the latest
poll shows, the contest has been contentious and close. In such battles of the ballot where personal
feuds foul the air, the decencies and norms set by the law may often be the first casualty. Anyway,
the disappointed Respondent No. 1 hastened to challenge the appellant's election on various grounds
of 'corrupt practices. The High Court has upheld a few of them and voided the appellant's election, a
miss being as good as a mile. The campaign pollutants must be kept down at the polls if electoral
disenchantment is not to grip the general community. The Court, in this regard, is the sentinel on the
qui vive.

3. Shri Bindra, learned Counsel for the appellant, has argued the case in minute detail, countered by
Shri Sharma, for Respondent No. 1; but since at the appellate level jejune infirmities and probative
trivialities may not tilt the scales even on the principle of juncta juvant, we will focus largely on the
major circumstances. The correct appellate perspective in an election case has been indicated by this
Court and we are bound to set out sights on those lines. In Laxminarayan v. Returning Officer
((1974) 3 SCC 425, 440) the implied limitations on the appellate power under section 116A were
stated thus :

                  It can re-appraise the evidence and reverse the trial Court's findings of fact. But like
                  any other power it is not unconfined; it is subject to certain inherent limitations in
                  relation to a conclusion of fact. While the trial Court has not only read the evidence
                  of witnesses on record but has also read their evidence is their faces, looks and
                  demeanours, the appellate Court is confined to their evidence on record.

                  #* * * *##

In an appeal the burden is on the appellant to prove how the judgment under appeal is wrong. Toe
establish this he must do something more than merely ask for a reassessment of the evidence. He
must show wherein the assessment has gone wrong.

In Karemore's Case ((1974) 3 SCC 719, 731, 752) this position was re-stated thus : (paras 26 and
69)

                  Before a finding of fact by a trial Court can be set aside it must be established that
                  the trial Judge's findings were clearly unsound, perverse or have been based on
                  grounds which are unsatisfactory by reason of material inconsistencies or
                  inaccuracies. This is not to say that a trial Judge can be treated as infallible in
                  determining which side is indulging in falsehoods or exaggerations ....

                  #* * * *##

                  While, as we have said earlier, it is open to this Court to reappraise the evidence and
                  consider the propriety, correctness or legality of the findings recorded by the trial
                  court, ordinarily it will be slow to disturb the findings of fact recorded by the High
                  Court, unless there are cogent reasons to do so.

An appeal is a re-hearing but the trial court's finding will be upturned not when it is short of right
but only when it is wrong. We will view the case from this angle.

4. In a loose sense, Nuh is a Muslim constituency by which we mean that the voting strength of the
Muslims is preponderant. Both the candidates are Muslims and, indeed, to some extent the Islamic
'dosage' of each candidate has itself been highlighted in the election petition as a bone of contention
in the poll confrontation, as will be presently discussed. Had parties professing secular politics and
revolutionary ideologies never 'stooped to conquer' by sub rosa appeal to the religion and caste of
blocks of voters by exciting their sympathy for the candidate via this sense of 'tribal' identity, our
elections would long ago have lived down this injurious political irrelevance. On the contrary the
unerring instinct with which political parties frequently choose candidates whose religion or caste
tallies with that of the bulk of the constituents appetites, if not excites, covertly, if not overtly, the
caste consciousness and religious separatism otherwise asleep in the bosoms of the common people.
In the name of pragmatism many parties offer allegiance to the super-party - care and the law
(Section 123 and 125) fails operationally because the several mores are not being seriously
secularised by big parties. What is arising is that the die-hard sense of caste has affected not merely
the Hindu hierarchy but also the Muslim Brotherhood and the evidence in the present case reveals
that Gote (gothra or clan) is a binding force socially and electorally among Muslims here.
Exploitation of this susceptibility is suggested against the appellant.

5. Respondent No. 1, in his petition, has imputed many types of corrupt practices to the returned
candidate. Paragraph 8 of the petition sets out of the fact about bribery. The next paragraph
furnishes the particulars of appeal, by the returned candidate and/or his election agent and by others
with their consent, the vote for the appellant on grounds of religion and caste and to refrain from
voting for Respondent No. 1 on the score that he violated Islamic tenets and was in fact a Kafir. The
gravamen of the vices flung at the appellant is that he and others with his consent did broadcast to
their constituents orally and in writing personal aspersions about Respondent No. 1, calculated to
darken his poll prospects. Undue influence by invocation of divine displeasure by dietary deviation
is also alleged, based on the potential threat, if Respondent No. 1 were returned, of the pious
Muslims being forced to eat pork - a prandial anathema for true Muslims.

6. Not all of these grounds have been held proved and the appellate subject-matter is confined to
that part of the canvas where findings of corrupt practice have been recorded. We will switch the
forensic spotlight only on them. The High Court has wound up thus :

                  My conclusions from the evidence discussed under this issue may be summed up as
                  follows :

                  (a) Handbill Exhibit PW 4/3 was in existence before March 12, 1972.

                  (b) The returned candidate supplied copies of the handbill to his agents and workers
                  for distribution amongst Muslim voters.

                  (c) The returned candidate and his supporters with his consent, made an appeal to
                  Muslim voters to vote for the returned candidate because he was a true Muslim
                  whereas the petitioner was a kafir. This appear was made on March 9 and 10, 1972,
                  through speeches delivered by the returned candidate and his supporters and by
                  distribution of Handbill Exhibit PW 4/3, in the following villages of the Nuh
                  Assembly constituency :

                  Notki, Gohana, Khodli Nuh, Mewli, Malab, Nagina, Karherrha, Pinangwan, Bhadas,
                  Ghagas.

                  It is conceded before me that the appeal just above found by me to have been made
                  by the returned candidate was an appeal to vote for the returned candidate and to
                  reform from voting for the petitioner on the ground of their religion, for the
                  furtherance of the prospects of the election of the returned candidate and for
                  prejudicial affecting the election of the petitioner so that it fails within the ambit of
                  the corrupt practice detailed in Section 123(3) of the Act, which corrupt practice the
                  returned candidate must be held to have committed. The issue is accordingly found in
                  favour of the petitioner.

                  #* * * *##

                  From the evidence accepted by me as trustworthy under that issue it is further made
                  out that practically all those statements with slight variations were made the subject-
                  matter of speeches by the returned candidate and, with his consent, by Shri Tayyab
                  Hussain, which speeches were delivered to gatherings in the said ten villages. The
                  publication of those statements by the returned candidate and by Shri Tayyab
                  Hussain, with his consent thus stands fully proved. The petitioner has sworn as PW
                  76 that all the statements contained in the handbill are false. This assertion, stands
                  wholly unrebutted. Appearing as R 1 W 37 the returned candidate averred that
                  according to his belief, the statements made in the handball were incorrect. This
                  being so, all the ingredients of the corrupt practice under examination must be held to
                  have been fully brought home to the returned candidate.

                  #* * * *##

                  I have already held under issue No. 4 that, as claimed by the petitioner, Handbill
                  Exhibit PW 4/3 was distributed amongst voters by the returned candidate and his
                  supporters with his consent. So the only question which remains to be answered is
                  whether the publication of the statements above extracted amounted to any direct or
                  indirect interference or attempt to interfere with the free exercise of any electoral
                  right. In my opinion, this question must be answered in the affirmative. According to
                  the Muslim faith, eating of pork is considered sinful. The impugned statements
                  declared in no uncertain terms that if the petitioner was elected, be would force all
                  Muslims of eat pork. The effect of those statements on the mind of an average
                  Muslim voter would be so powerful as to leave no free will to him in the exercise of
                  his choice of the candidate for whom he was to vote. The inducement would result in
                  a mental compulsion for the voter to vote for the petitioner and would, therefore, fall
                  within the ambit of an attempt to interfere with the free exercise of an electoral right.

                  #* * * *##

                  ... the publication of the impugned statement contained in Handbill Exhibit PW 4/3
                  amounted to the commission of the corrupt practice of undue influence as defined in
                  Section 123(2) of the Act.

                  #* * * *##

                  Having found that the returned candidate and others with his consent committed the
                  corrupt practice defined in clauses (1), (2), (3) and (4) of Section 123 of the Act, I
                  accept the petition and declare the election of the returned candidate to the Haryana
                  Legislative Assembly from the Nuh Assembly constituency to the void.

7. The cornerstone of the election petition is the distribution of libellous handbills and making of
slanderous speeches by the candidate and his companions which overflowed mere personal
invective into many areas of corrupt practice. The Court was also satisfied with part of the charge of
bribery which it expressed thus :

                  As a result of the above discussion I find it proved that on February 14, 1972 the
                  returned candidate placed at the disposal of Respondent No. 3 car No. DLF 675 with
                  a promise that the expense incurred in hiring the car and running it in connection
                  with the election campaign of Respondent No. 3 would be met by the returned
                  candidate.

Thus it is seen that while the embittered petitioner has black-brushed his rival with many brands of
corrupt practices, he has failed to convince the Court on several of them. His Counsel gave up many
of the charges after evidence had been led. Even the residue has not fully found favour with the
High Court and the only substantial grounds which have survived the screening process are two, viz.
: (a) the 'automobile' bribe; and (b) the dissemination of prejudicial and prohibited appeals. The
limited controversy before us centers round the certitude of this fatal modicum. The election law
invalidates a poll verdict if a single illegal adulterant has been admixed in the campaign. The law is
jealously qualitative, not clumsily quantitative, in its nullification task and two vices or twenty are
the same in the ultimate result.

8. A few prefatory observation are necessary before were discuss the evidence, apply the law and
reach our conclusion. It is of the first importance that elections must be free and fair if the
democratic system is not to flounder. Not long ago a Chief Justice of this Court, delivering the
Lajpatrai Memorial Lecture, observed :

                  Untruths before elections, during elections and after elections seem to be too
                  prevalent for a healthy political society

He also tartly remarked in that speech :

                  There is always a danger of the failure of democracy. "Remember", said John
                  Adams, 'remember, democracy never lasts long. It soon wastes, exhausts and murders
                  itself. There never was a democracy that did not commit suicide. We must realise that
                  this is entirely true.

The Court is the conscience-keeper of the constituency, as it were, in the maintenance of the purity
of elections to the extent they are litigated in court. Shah, J. in Harcharan Singh's case observed :

                  The primary purpose of the diverse provisions of the election law which may appear
                  to be technical is to safeguard the purity of the election process, and the courts will
                  not ordinarily minimise their operation.

                  We have therefore to insist that corrupt practices, such as are alleged in this, case, are
                  examined in the light of the evidence with scrupulous care and merciless severity.

9. However, we have to remember another factor. An election once held is not to be treated in a
light-hearted 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.

10. There are many who are cynical about the enforcement of the election law, which is too moral
for the pragmatic skill of the politicians when locked in pitched battles. They regard these vices as
inevitable and therefore remain indifferent to their prevalence. Sydney Harris' statement in this
context is apposite.

Once we assuage our conscience, by calling something a 'necessary evil' it begins to look more and
more necessary and less and less evil.

For this very reason the Court has to be stern so as to induce in the candidates, the parties and
workers that temper and truthfulness so appropriate to the process and not bewail, as the Report of
the fifth General Election in India (1971-92, issued by the Election Commission) does (at p. 198
thereof) :

                  But how can we expect that election will be absolutely and totally corruption free
                  when the whole country in every sphere and department of life and activity is
                  plunged in the ocean of corruption ? It is everybody complaint that there is no
                  business, trade or industry where blackmarketing or bribery is not practiced. Remove
                  corruption in general and corruption in election will be a thing of the past.

11. The charge of bribery has been made in this case in a peculiar setting and has been held proved
in part by the learned Judge. Before going into the principal skein of corrupt practices wound round
the alleged propaganda, oral and documentary, we may dispose of the lesser but equally lethal
episode of bribe-giving. A glance at the communal composition of the constituency and its
behavioral pattern is necessary to this ground covered by issue 1. No part of Indian geography and
Nuh is no exception to this social diversity The majority are Neo-Muslims-Muslims (converts from
Rajputs carrying their caste and gothra memory into their Islamic genetic code and observing in life
the clan habit) but there are also Hindus including Harijans. The Harijans according to the
petitioner, traditionally vote for the Congress except when lured away by a fellow Harijan figuring
as candidate. To wean away Harijans from the Congress ballots was very much to the appellant's
interest and so the petitioner alleged the exploited their communal pathology by setting up Sohanlal,
Respondent No. 3, as a ghost candidate - not to win but to defeat.

12. Human homogenisation in elections, breaking down religious barriers, is social heroism
unaccomplished even in the communal pluralism of the U.S.A. and the U.K. although it is
exaggerated by tradition in India and hurts it more, being a developing country. The political pity is
that the secular and social objectives of our constitutional order are obfuscated by a system of mass
electoral participation where separate electorates, written with the invisible ink of life, are partially
perpetuated by political leaderships bent on short-cuts to power. The law should so develop as to
dis-induce communal-religious appeal by the crypto-casteism of the candidature itself. We say this
not as a strange evil of our society but as an inadequacy of our election life and law. Newton D.
Baker observes about the U.S. situation while considering the harm of a switch-over to proportional
representation.

We have groups of all sorts and kinds, formed around religious, social, language, social and other
contentious distinctions. Proportional representation invites these groups to seek to harden and
intensify their differences by bringing them into political action where they are irrelevant, if not
disturbing, A wise election system would invite them to forget these distracting prejudices.

13. Respondent No. 1's case is that the appellant persuaded a financially incompetent Sohanlal -
Respondent No. 3 - to stand as candidate overruling his reluctance by offer of Rs. 125 and promise
of footing has campaign bill, in a bid to skim away the Harijan pro-Congress votes, This was on
February 9, 1972. Since the lower Court has rejected this episode, we too ignore it. But the official
date for withdrawal, February 14, found the hesitant Sohanlal hovering around retirement from an
expensive contest. Respondent No. 1's story is that the appellant gave a shot in the arm by a proffer
of Rs. 1,000 and a car for use till the election was over. This stroke of bribery continued the Harijan
candidate in the arena. The finale of this shady chapter, disbelieved by the Court, is that a couple of
days before the actual poll the appellant purchased Sohanlal's retirement and exhortation to his
followers to support the appellant at a price of Rs. 2,000 paid on March 10, 1972. This facet of the
case has been eliminated at the High Court level and need not detail us. The narrow point that
survives for our scrutiny is as to whether the appellant did commit the corrupt practice under
Section 123(1) of the Representation of People Act, 1951 (the Act, for short.) by placing at the
disposal of candidate Respondent No. 3, car DLF 675 and promising him the hire charges and
running expenses thereof with a view to his continuance as candidate, the ultimate gain being the
seduction of the Harijan electors away from the Congress candidate.

14. It is not necessary to examine whether the evidence justifies the finding that Sohanlal got the use
of a car at the expense of the appellant. We will assume that is so. But it is not every help by a
candidate to a fellow candidate that constitutes corrupt practice. Such financial aid must be to
induce the latter not to withdraw from the election. May be, a candidate may wish to fight but do it
so bloodlessly that he may not reach his potential supporters and if his effective canvassing is in the
interests of another candidate (the electoral chemistry has many actions and reactions) then the latter
may invigorate his campaigning with funds or aid in kind, not for non-withdrawal but for full-
blooded electioneering. To jack up is different from preventing a jump down. This is not a corrupt
practice under the law and so the key question is not whether a car was provided but whether the
provision of the car was to prod the candidate not to withdraw. A close-up of the evidence on this
significant facet leaves us in serious doubt about the sufficiency and reliability of the proof.

15. From the evidence in this case it looks as if Sohanlal, Respondent No. 3 is an indigent person
and handicapped by social backwardness. Nevertheless he is needed as a magnet to polarise all
Harijan votes away from the cow and calf symbol. It is a worthwhile reflection on the Sohanlal
drama that in order to invest elections with equality of opportunity in a country of poverty,
inexpensiveness must be stamped on the campaigning process. This may be attempted in many ways
by adapting to Indian conditions experiences elsewhere. But the present methodology of fixing up
candidates at the last minute as a product of many pressures makes for more inputs than consultation
with the community in the concerned area, a sort of informal 'primary' and announcement of the
choice well ahead for the constituency to know and understand the candidate. Likewise, if party
cadres work constructively and continuously for solution of peoples grievances instead of going into
election-eve campaigning with all the sound and fury of hectic pre-poll duel to win votes, the
project will cost less and vote-catching stratagems will yield poor pay-off. Large pecuniary lay-our
in the business of power politics must be arrested if the system is not to sink. Today, the average
Harijan, like Sohanlal, has as much chance of winning an election as a camel has of passing through
the eye of a needle. Naturally he looks around for help. Money is of key importance if enormous
sums must be spent to reach the vast electorate, to break down public inertia and secure substantial
polling. In such a background Rahim Khan (RI) is alleged to have preyed upon Sohanlal inability to
finance his election, by offering the sinews of war thereby indirectly deriving good negative return
for his money. Sohanlal himself has backed a good part of this case, so far as the giving of a car is
concerned. Straight from the horse's mouth, as it were, we have this :

                  On February 14, 1972 Rahim Khan, Tayyab Hussain, Faquira, Chet Ram and Yahim
                  Khan came to me, and offered me money and a car. Rahim Khan paid Rs. 1,000 to
                  Faquira for expenses on the car. I was carrying on propaganda for my election.

On the crucial point whether the car (and all found) was given to make him continue the contest
there is silence in chief-examination and denial in cross-examination although his ambiguous
sympathies seem, if at all, to be with the Congress candidate in the election case. The testimony of
PW 22, (Ram Kishan), PW 23 (Habib), PW 24 (Jaswant Singh) and R-3 W 1 (Faqira) has been
pressed in to service in this connection. The evidence of PWs 22, 23 and 24 does not bear on the
condition of non-withdrawal as the basis for the supply of free transport. R3 W1 swears :
                  During the last general election I was supporting Rahim Khan respondent ... 20 or 25
                  days before polling I went to Sohan Lal respondent in the company of Rahim Khan,
                  Badri Parshad respondent. Tayyab Hussain and Mauj Khan, Sohan Lal respondent
                  said that although he had stood for the election, he was feeling handicapped on
                  account of lack of financial resources. Rahim Khan told him not to worry inasmuch
                  as be (Rahim Khan) would provide him necessary finance. In my presence no money
                  was paid, but Rahim Khan placed a car at the disposal of Sohan Lal respondent.
                  Rahim Khan told me that I should support Sohan Lal and that Rahim Khan would
                  reimburse me for all expenses in connection with the car.

Here also the vital element of inducement not to withdraw is absent. Of course even regarding
giving the car there is some evidence contra of the appellant and of Tayyab Hussain (R3 W9). But
the crux of the matter is the pecuniary pressure put on a candidate to persist in the candidature : this
latter limb is unproven and not even formally found by the law Court. The serious scrutiny of law
and facts expected of election tribunals before unseating a returned candidate is wanting in the High
Court's finding and we hold that, suspicious apart, the charge of bribing Sohanlal into fighting a
futile battle has not been brought home as required by Section 123(1) of the Act. At the last stages
of the argument before us Shri Sharma made a virtue of necessity and did not press the case of
bribery.

16. The decisive and deadly chapter of the petition relates to the multi-pointed propaganda violating
the cannons of election law set out in Section 123(2), (3) and (4). Questions of law about the correct
construction of the relevant provisions arise but the primary issue is one of fact. Were public
meetings held on March 9 and 10 maligning orally and through handbills the Congress candidate for
lack of personal morals, for heathen and bohemian ways and for being a potential danger to good
Mussalmans ? Where pamphlets like Ex. P-3 made and distributed on or about March 9 and 10 by
the returned candidate and his agents, describing his Congress rival as a pork-eater and taker of
virginities, as a coercive agent getting Muslim graves dug up and forcing true Muslims eat roast pig
?

17. A few phenomena appear in this case which deserve judicial notice for the purpose of
appreciating the evidence on this branch of the story of corrupt practices. Both the contesting
parties, the appellant and Respondent No. 1 are strong men with considerable hold on large numbers
of people in the constituency as the polling result reveals. Both of them have been in and out of
office and naturally the bid for power would whet their appetite. The wild allegations in the petition,
if true, would suggest that the appellant tried many methods of assuring victory for himself, such as
setting up a Hindu candidate who would carry away the Hindu votes, a Harijan candidate who
would wean away Harijan votes and the Muslim votes being attracted into his count by painting his
Congress rival a kafir and himself a Muslim good and true. At this stage it is clear that the theory of
ex-communication set up in the petition has been abandoned. Likewise, bribery based on the Jan
Sangh candidate has also been dropped. The supply of a car as an inducement not to withdraw from
the election, to Sohanlal has been upheld by the trial Court, but we have already expressed our view
to the contrary.

18. We are left ultimately with the story of the public meetings where slanderous speeches were
made and of libellous leaflets having been distributed. There is no doubt that tension had mounted
and the candidates were frantic. An order under Section 144 Cr. P.C. had been clamped down on the
whole constituency and a large police force was moving around to maintain law and order in the
whole area. The argument of appellant's Counsel is that since meetings of five or more persons in
public places had been prohibited, it was unlikely that there would have been open violation in
many villages by the appellant himself, a former Deputy Minister and Tayyab Hussain, a sitting
Member of Parliament. Nor could the police have been so insouciant as to ignore numerous
breaches of the ban on public meetings. Equally strong is the circumstance that had there been
meetings in contravention of prohibitory orders, the Congress candidate, a Cabinet Minister at the
time of the election, would not have kept quiet at all. It is also noteworthy that Section 126 of the
Act prohibits holding of public meetings within 48 hours of the close of the poll. We are impressed
with these circumstances and would have unhesitatingly held as unsafe the oral testimony in proof
of public meetings. However we are not prepared to discredit out-right all the evidence about
gatherings in the villages, where the appellant spoke to people, solely on the ground of the order
under Section 144 Cr. P.C. What we see from the evidence is that there were no regular meetings
pre-arranged and public. It was more a case of the appellant running around from place to place,
meeting persons who gathered when he went to place, his sitting on a cot and taking impromptu to
the men who turned up within a short time and leaving the place after a little while. It is difficult to
describe these tiny groups spontaneously assembling and melting away after quarter of an hour or
so, as public meetings. Technically they may or may not be breaches of the ban order, but such
minor liberties are not infrequently taken by both sides and winked at by the police, lest genuine
house-to-house propaganda by the candidates and their supporters on the very last day should be
interfered with and tension mount up on the ground that the authorities thwarted a non-Congress
candidate's canvassing. Certainly we have to bear in mind the circumstances mentioned earlier is
evaluating the evidence of witnesses, giving the benefit of reasonable doubt to the appellant.

19. Many witnesses examined in support of Respondent No. 1's case are partisans, being the polling
agents, counting agents or workers of the Congress candidate. Their evidence has naturally to be
viewed with circumspection, but not dismissed outright (See Ambika Sharan Singh v. Mahant Nand
Giri (91 ELR 183 : (1969) 3 SCC 492, 500 Para 18)). But more curious is the coat type of witnesses
who claimed to be and often were the polling agents or workers of the appellants till the election
was over, but, in the post election period when the Respondent No. 1's party had formed a
Government, quietly shifted their loyalty and gave evidence in proof of the averments in the
petition. It is conceivable that these persons who had collaborated with the appellant in the
malpractices alleged were possessed of the urge to unburden their bosoms of the truth of their own
evil doing and hurried into the witness box to swear voraciously to what took place actually. But,
the more probable explanation would be that these swivel-chair witnesses with India-rubber
consciences came under the influence of Respondent No. 1 for invisible consideration and spoke
dubiously in support of their present patron. Of course, if their evidence is intrinsically sound, if
their demeanor is impressive otherwise, if the incontrovertible facts and broad probabilities fit in
with their version and other disinterested testimony on the same point is forthcoming, we should not
disbelieve the case merely because some tainted evidence is also placed on the record. In this view,
we have to scan the oral evidence rather carefully, lest the verdict of the people at the polls should
be nullified on uncertain and dubious evidence.

20. Counsel for the appellant and, to some extent, Respondent No. 1's advocate also, read before us
rulings galore as to when witnesses should be believed and when not. Precedents on legal
propositions are useful and binding, but the variety of circumstances and peculiar features of each
case cannot be identical with those in another and judgments of courts on when and why a certain
witness has been accepted or rejected can hardly serve as binding decision. Little assistance can
therefore be derived from case law on credibility. There are no legal litmus tests to discover the
honest conscience of a human being and the canons of truthfulness of oral evidence sans
commonsense, are but misleading, dogmas. The golden rule is, as George Bernard Shaw tells us,
that there are no golden rules. For this reason we are not referring to the many rulings cited before
us. But we certainly inform ourselves with the general touch-stones of reliability. The fact that we
are not ready to act, on the testimony of a person does not mean that he is a perjurer. It merely
means that on such testimony it is not safe to conclude in a quasi-criminal proceeding that the
'corrupt practice' has been proved beyond reasonable doubt. The whole constituency is silently
present before us - is must be remembered (See observations of Dua, J. in ILR 1969 I Punj. 625).

21. We must emphasize the danger of believing at its face value oral evidence in an election base
without the backing of sure circumstances or indubitable documents. It must be remembered that
corrupt practices may perhaps be proved by hiring half-a-dozen witness apparently respectable and
dis-interested, to speak to short and simple episodes such as that a small village meeting took place
where the candidate accused his rival of personal vices, There is no X-ray whereby the dis-honesty
of the story can be established and, if the Court were gullible enough to gulp such oral versions and
invalidate elections, a new menace to our electoral system would have been invented through the
judicial apparatus. We regard it as extremely unsafe, in the present climate of kilkenny-cat election
competitions and partisan witnesses wearing robes of veracity, to upturn a hard won electoral
victory merely because lip service to a corrupt practice has been rendered by some sanctimonious
witnesses. The Court must look for serious assurance, unlying circumstances or unimpeachable
documents to uphold grave charges of corrupt practices which might not merely cancel the election
result, but extinguish many a man's public life.

22. With these background observations we shall analyse the evidence adduced on both sides. We
are not deterred by the negatives evidence on the side of the appellant to the effect that within the
ken of witnesses concerned no meeting took place or no distribution of pamphlets has been made.
Not only can such evidence be procured but is hopelessly inconclusive in the face of definite and
positive and probable testimony, it any, to the contrary. Therefore we have to search for the
evidence in support of the petition, its reliability and sufficiency.

23. Shri Bindra, for the appellants, made a blistering attack on the learned Judge's wrong approach
to testimonial renegades. For, strategic documents like Ex. P2/P3 and P5/P6 and lethal
circumstances like addressing slandering speeches, are sought to the proved by Respondent No. 1
through the polling agents and other erstwhile activities of the appellant during the election. The
Court somehow thought that a trace of treachery was the signature of truth and that the post election
support to the defeated candidate in the witness-box, speaking to (sic) collaboration with the
returned candidate in pre-election corrupt practices, makes assurance doubly sure. We cannot
understand how tergiversation can become a virtue. Defection in politics is becoming a pervasive
vice and its projection into election cases must be frowned upon by courts. It scandalises us that a
person should be the campaign agent of one candidate during elections and should shift loyalties
during the election case to undo the victory he contributed to attain. The price of post-election
swivelling must slump. It is naivete to pin faith on such probative circus and it is necessary to
discourage such defection in the interests of the purity of the Court process. Except in special
circumstances - which are not present in the present case - we decline to dismantle an electoral
result by the technique of turn-coat testimony. Here we may clear the ground by removing
Sohanlal's near confessional evidence from the area of reliable testimony. Whatever his role before
the election, his written statement and evidence smack of Respondent No. 1's vocabulary and either
he is a fool or a knave or too truthful to be credible. For he admits receiving a car and expenses
from the appellant, pleads to a mood of withdrawal and in evidence lends lip service to distribution
of the objectionable handbills and to a last-minute withdrawal from the election at the instance of
the appellant. All that we need say is that his word does not have the ring of reliability and we leave
it at that.

24. Yet another aspect of the case may be dealt with here, to clear the deck for a consideration of the
serious issues that survive. Running right through the warp and woof of the petitioner's averments
and evidence and haunting the political life of the petitioner for long years is a sitting Member of
Parliament on the Congress benches, R3 W9, Tayyab Hussain. He is charged with visiting village
after village with the appellant and ex-Congressman and now the bitter opponent of the Congress
candidate to deliver vicious personal attacks on the petitioner, a Minister belonging to his own party.
The New-Muslims had the father of Tayyab Hussain as their leader and after him, Tayyab Hussain
Himself - appallingly a political family claiming virtually hereditary hegemony over a small
community. The arrival of an educated Neo like the petitioner, a law graduate, on the political scene
was a potential threat to a vested interest. We find from the evidence personal rivalry between then
two writ large, Tayyab Hussain being ready to change party and ally with enemies for personal ends
and getting suspended from the Congress in the bargain. He has been a Deputy Minister once and
has tasted power. May be the petitioner's political presence is a spectre for him and so he may be
prone to run that rival down. Even so, there are boundaries to his hostile operation. Let us look at
him as in 1972. He known that anti-party, being a sitting Member of Parliament with four years to
go. He was Chairman of the Wakf Board for which his party position must have partly accounted.
The party High Command was so near Nuh that had he acted publicly he would have been pulled up
instantly. It is difficult to believe, even if the man was an adventurist master in the art of the
possible, that this M.P. would have openly and stridently campaigned in the company of the anti-
Congress candidate with vituperative vigour. His heart may have been with the appellant Rahim
Khan but he could not have so lost his head as to strike publicity at Khurshid Ahmed. The heap of
oral evidence adduced in the case does not persuade us to hold with Respondent No. 1 on the public
doings of R3 W9 hostile to his candidature.

25. Now let us get to the meat of the matter. For by all accounts the piece de resistance is the
pamphlet part of the cast. A manouvre to malign was resorted to at a critical stage of the poll battle,
according to Respondent No. 1. Although there is a volume of oral testimony regarding small but
numerous whistle-stop meeting held in street corners, common on election eve everywhere, we feel
it unsafe to stake a verdict of corrupt practice on such dubious material. Bypassing these oral
adventures in vilification, we proceed to turn the spotlight on the handbills, their authorship,
existence, implications, and circulation. We may straightway state that one we grant this pamphlet
publicity, it will depress the victim's chances and may amount to an appeal to religion. Both the
candidates are Muslims but one is less Muslim that the other - almost a Kafir - because he eats pork.
The other imputations in the handbill relate to character assassination an dander influence which we
will refer to presently

26. We may as well set out here Ex. PW 4/3, the offending handbill :

                  Introduction of Ch. Khurshid Ahmed and some Questions to him

                  1. You being a Muslim got dug a grave of a Mohammadan and got the body out due
                  to your personal enmity, which is against Islam and its Charait. Do you still claim
                  yourself to be a Muslim ?

                  2. Since your have become a Minister you have taken bribery from the public for
                  each work of the public. Do you call this public service ?
                  3. You being Health Minister violated the modesty of numerous lady doctors, and
                  nurses and till they did not surrender their body to your lust you did not do any of
                  their works. Do you want to be elected again so that you can continue your
                  debauchery ?

                  4. You while being a Minister got some Muslims of village Utawad arrested on
                  allegations of cow slaughter and made them to eat meat of the pig. Do you want to be
                  elected again so that you may be able to make all Muslims eat the meat of the pig ?

Khurshid Sahib ! public wants to tell you, that your yourself have become a "kafir" by eating the
meat of the pig, but the remaining Muslims do not want to become "Kafirs" at you hands.

Public should pay attention and should give crushing defeat to such a "Kafir". I am rightly entitled
to your vote.

Rahim Khan

Appeal to religion, in this context, is influencing Muslim voters to prefer the appellant for this
authentic Islamic way of life and to repel Respondent No. 1 for his heathen habits. A plate for pork
is the main un-Islamic conduct imputed to Respondent No. 1. Is it appeal to religion if voters are
told that a candidate consumes unorthodox food ? That a Brahmin eats beaf, that a Muslim eats
pork, that a Jain eats at night ? Should the law lend itself, in a secular State, to the little
susceptibilities of orthodox tenets ? if we push it far, particularly in regions like Hinduism and Islam
which contain prescription dress, bath, shave, ablutions and diet, many difficulties will arise. Eating
garlic, radish and uncooked onions and even the flesh of cattle without innovation of Allah is un-
Islamic (See Who is a Muslim by S. Ghosh Ansari, pp. 39-42). Can you set aside an election
because the losing candidate was described as eating raw onion ? This situation becomes worse in
the Hindu fold. It is strange law that does not quarrel with an appeal not to vote for a man because
he does not eat vitamins but nullifies the election for appeal on radish or pig's flesh. True, the vice is
injection of religion into politics and plying up fanaticism to distract franchise. But the back-lash of
this provision is a legal enquiry into what is the basis faith, not its frills and filigrees. It has been
held by the Madras and the Kerala High Courts (71 I.C. 65 and 1971 K.L.T. 68 - Imbichi Koya
Thangal v. Ahmed Koya) that the credal core to identify a Muslim as Muslim is not food and dress
but the triune items of One God, Universal brotherhood and the Great Prophet Mahomet, being the
last of the Prophets (although on this last limb there is some dispute). No charge on these three
aspects has been made in the handbills. Thus apostasy has not been alleged. Nevertheless, having
regard to the ruling in Kultar Singh v. Mukhtair Singh ((1964) 7 SCR 790 : AIR 1965 SC 141 :
(1965) 1 SCJ 565) and the popular sentiment tied up rightly or wrongly with Muslim religion, we
do not disagree with the view of the High Court and the stand of both Counsel. The secular texture
of the law is primarily the legislator's responsibility although Caesar and God should not get mixed
up in areas of food, clothing and housing and other temporal matters not inherently interlinked with
man's communion with the Supreme. What is appeal to religion depends on time and circumstance,
the ethos of a community, the bearing of the deviation the cardinal tenets and other variables. To
confound communal passion and crude bigotry with religion is to sanctify in law what is irreligion
in fact. It is good to remind ourselves of Romain Rolland on Rama Krishna, quoted in Nehru's
autobiography :

... many souls who are or who believe they are free from all religious belief, but who in reality live
immersed in a state of super-consciousness, which they term Socialism, Communism,
Humanitarianism, Nationalism and even Rationalism. It is the quality of thought and not its object
which determines its source and allows us to decide whether or not if emanates from religion. If it
turns fearlessly towards the search for truth at all costs with single-minded sincerity prepared for
any sacrifice, I should call it religious : for it presupposes faith in an end to human effort higher
than the life of existing, society, and even higher than the life of humanity as a whole. Scepticism
itself, when it proceeds from vigorous natures true to the core, when it is an expression of strength
and not of weakness, joins in the march of the Grand Army of the Religious Soul.

The Court must avoid over-solicitude for ultra-orthodoxies, law being a secular social process. It is
curious that the Election Commission, in its Report on the Fifth General Election in India (1971-72)
refers to objections regarding the symbol "Cow and Calf" on the score of religious associations from
eminent persons and in overruling them cites George bernard Shaw (Everybody's Political What's
What) who said :

The apparent multiplication of Gods is bewildering at the first glance; but you soon discover that
they are all the same God in different aspects and functions and even sexes. There is always one
uttermost God who defies personification. This makes Hinduism the most tolerant religion in the
world, because its one transcendant God includes all possible Gods, from elephant Gods, birds Gods
and snake Gods, right up to the great Trinity of Brahma, Vishnu and Shiva which makes room for
the Virgin Mary and modern Feminism by making Shiva a woman as well as a man. Christ is there
as Krishna, who might also be Dionysus. In fact Hinduism is so elastic and so subtle that the
profoundest Methodist and the crudest idolator are equally at home in it.

And yet the electoral law construes religion based on apparel, approved food and other externals.
How about appeal to anti-religion ? That end is a Royist or rationalist and the rival a religious soul
and too other worldly ? Rabid communalism is the real enemy. Let that be identified by law. A
second look at this labyrinth of law is in keeping with changing times. The "voice in the wilderness"
words on this Court in Ambika Sharan Singh's case (supra) at p. 189 (SCC p. 497, para 12) bear
repetition :

                  Indian leadership has long condemned electoral campaigns on the lines of caste and
                  community as being destructive of the country's integration and the concept of
                  secular democracy which is the basis of our Constitution. It is this condemnation
                  which is reflected in Section 123(3) of the Act. In spite of the repeated
                  condemnation, experience has shown that where there is such a constituency it has
                  been unfortunately too tempting for a candidate to resist appealing to sectional
                  elements to cast their votes on caste basis.

Every party silently say "He who has not sinned, Let him cast the first stone". For the purpose of
this case, suffice it to say both sides agree that Ex. PW 4/3 appeals to religion.

27. Of course if Ex. PW 4/3 had been circulated it did contain personal vilification like
"womanizing" which in most countries and among the current generation is a vicious personal
imputation under Section 123(4) of the Act. So we will ascertain whether on March 9 and 10,
handbills like Ex. PW 4/3 had been published by Rahim Khan and his agents. The rival version is
that the appellant was innocent of these leaflets which must have been concocted after defeat by
Respondent No. 1 for demolishing the election through court.

28. Many materials have been marshalled to make out the factum of pamphlet publicity. The granite
foundation for it is laid by Ex. P18, an application to the Deputy Commissioner of the District to
which were annexed Ex. PW 4/3-4-5 (copies of handbills) and Ex. P19, a similar petition
despatched by post to the Chief Electoral Officer along with Ex. P20 and 21 handbills. PW 64
Usman has sworn that he had got a few handbills (the offending ones) on March 10 from one Nihal
Khan and made them over to Respondent No. 1 PW 76. May be, this careerist who has been
changing parties, has been a dismissed sarpanch and is otherwise a partisan and why not by himself
embolden us to believe the leaflet story. But Ex. P18 was undoubtedly presented to the Deputy
Commissioner on March 10, 1972 in his office at Gurgaon. His endorsement and that of his General
Assistant PW 4 of even date lend strength to the case. The petition has had a natural journey into the
Election Officer under the Deputy Commissioner. Thus quite a few officers and official entries
support the presence of Ex. P18 and the accompanying handbills on March 10. The smoke of
suspicion about the records and the obliging unveracity of the high officials, glibly alleged, have no
substance. We have carefully examined the criticism levelled by Shri Bindra and considered the
possibility of ante-dating but are satisfied that the hypothesis of conspiracy for fabrication is too
fantastic to merit acceptance and the non-examination of the Deputy Commissioner, in addition to
his General Assistant PW 4, does not militate against the acceptability of the case. The endorsement
on Ex. P18, relevant under Section 35 of the Evidence Act, clinches the issue, read in the light of
PW 4's evidence. Ex. P19, a similar application was also presumably posted on March 10. It was
received on March 13, which is probable since 12th was a Sunday. The suggested interpolation in
the register kept in the office of the Chief Electoral Officer is a mirage. It has no meaning in the
absence of cross-examination. A close took at Ex. P19 and Ex. PW 2/2 dispels doubts and the
entries corroborate PW 2's testimony as well as the fact of the leaflets having been in existence on
March 10. Let us probe the likelihood of a later fake. The petitioner had no reason to be desperate
about a defeat. In fact the lead of the appellant was narrow. Only after the result was declared on
12th could he have thought of creating evidence to undo the election. Both Ex. P18, and Ex. P19,
become inexplicable on that basis unless many public documents and public servants have tampered
with truth in a chain conspiracy too nefarious to be credible. Some officers may oblige but it is
unfair to impute such gross misconduct to responsible men on films fancies. Other minor attempts
to cavil at the evidence on this part of the case merit little serious study. We broadly agree with the
High Court that the arguments of the appellant for rejection of Exs. P18 and P19 and connected
documents cannot be contemplated without importing criminal conspiracy for which there is no
foundation and they must be repelled. However, we will advert to them briefly.

29. We have earlier indicated our dissent from the High Court when it trusts PWs 12, 13, 20 and 23
as reliable on leaflet distribution because they were pre-election agents of the opposite party. The
Court observes :

                  The evidence above set out under this head is fully acceptable to me. I am specially
                  impressed by the depositions of Din Mohd. (PW 12) Roshan (PW 13), Mohd. Khan
                  (PW 20) and Habib (PW 23). All of them worked for the returned candidate during
                  the election and there is no reason why they would make false depositions against the
                  interest of the returned candidate.

                  Our credibility sense is sceptical of this evaluation. We disapprove of this method
                  and approach in assessment of evidence. Even so, let us go into the major criticism of
                  Respondent No. 1's case. We are not blind to the possibility of executive officers
                  deigning to oblige Ministers in elections as happened in Ambika Sharan Singh's case
                  (supra). May be, there is some embarrassment for weak officials when sitting
                  Ministers are candidates but what can be done about it ? We have appreciated the
                  evidence with this factor also in mind. However, the many 'maybe's' suggested by
                  Shri Bindra to disbelieve the official documents are ingenious but the cross-
                  examination of the witnesses is innocent of them.

30. The appellant had applied, under Exhibit R1 W21/1 to the Deputy Commissioner for a copy of
the entry in the register of Miscellaneous Branch with regard to election poster, i.e., handbills made
mention of in the election petition. He received a reply (Exhibit R1/A) that no such posters had been
received in the Miscellaneous Branch of the Deputy Commissioner's Office and therefore the
question of their entry in the register did not arise at all and in fact no such register had been
maintained in the Miscellaneous Branch. Actually the more important document for which a copy
should have been applied for was the letter Exhibit P18 which was mentioned in the List of Reliance
filed along with the petition. Nor is it correct to say that the returned candidate's application was a
comprehensive one. He confined himself to the Miscellaneous Branch Register in the Deputy
Commissioner's Office. What is more prevaricator, Counsel for the appellant showed us a certified
copy of Exhibit P18 which his client had got from the Deputy Commissioner's Office long before
the written statement was filed and yet he pleaded therein ignorance of its existence. We have
examined this case from every angle possible and are satisfied that Exhibit R1/A is of little service
in debunking Exhibit P18 and the leaflets accompanying it.

31. Repeated criticism was made by Shri Bindra that the Deputy Commissioner was the Deputy
Secretary in the Department of which Respondent No. 1 was the Minister and that therefore he was
prone to help the latter. Counsel contended vehemently that officers are liable to be pressurized and
when a whole election turns on documents in the custody or writing of officials, free and fair
elections and their survival through election petitions become precarious. He drew our attention to
the observations of Grover, J. in P. R. Belagali v. B. D. Jatti ((1971) 2 SCR 611, 618 : (1970) 3 SCC
147, 158) which make a vain echo in the present case. The learned Judge there observed :

                  Free and fair elections are the very foundation of democratic institutions and just as it
                  is said that justice must not only be done but must also seem to be done, similarly
                  elections should not only be fairly and properly held but should also seem to be so
                  conducted as to inspire confidence in the minds of the electors that everything has
                  been above board and has been done to ensure free elections. It will be a sad day in
                  the history of our country when the police and the government officers create even an
                  impression that they are interfering for the benefit of one or the other candidate. This
                  is particularly so if a candidate is holding an important position or assignment like
                  respondent No. 1 who, at the material time was a Minister in the State.

However, these observations, pertinent as they are in the circumstances of that case - and guidelines
as they should be for Government to follow - do not detract from the reliability of the official
records relating to Exhibits P18 and P19, or the acceptability of the General Assistant's evidence. It
is true that the Deputy Commissioner could well have been examined by the Court, particularly
when his plea was only for a post ponement by two days on account of high blood pressure and his
evidence would have been of considerable assistance to the Court in arriving at the truth. But this
omission on the part of the Court, avoidable though it was, has not affected materially the
evidentiary value of the documents and we are prepared to repose confidence in them.

32. Considerable criticism about PW 54 Usman was levelled, on a general ground based on non-
mention of him either as a source of information or as part of particulars. Of Course, his name was
mentioned in the list of witnesses but that was in September, 1972. We are not inclined to the view
that the name of every witness should be mentioned in the particulars except where his name
becomes a necessary item of particulars. Shri Bindra analysed the various witnesses including PW
54, Usman, under a microscope, dissected their evidence in the crucible of pleadings - particulars -
information source with reference to villages, public meetings, pamphlet distribution and the like.
We are satisfied that the High Court's approach is right and the hyper-technical analysis resorted to
by Counsel should not be pushed to the point of defeating justice. No corrupt practice can be
established if processual impediments are heaped up against the credibility of witnesses. Nor can
any petitioner go into such minutiae as the names of all witnesses, even at the time the election
petition is prepared. Neither Section 87 nor Section 83 nor even Rule 94A and Form 25 require this
drastic attitude. Rule 12, framed by the High Court for the trial of election petitions, it is true, does
require the source of information to be mentioned at the earliest stage and it is a wholesome rule, to
prevent after-thoughts. But every witness need not be mentioned as a source and every source
informant need not be examined necessarily. Whether the omission to do so in a given case reflects
on the credibility of the evidence depends on the facts and circumstances of the case. It depends on
the over-all circumstances and the fairness of the trial. The observations in Ambika Sharan Singh's
case (supra), at p. 190 (SCC p. 498, para 18) are apposite.

The question as to the extent of particulars which the Court would demand depends on the
circumstances of each case, the nature of the charge alleged and the quality and reliability of
evidence before it.

While the Court must be careful to insist that the means of knowledge are mentioned right in the
beginning to avoid convenient embellishments and irresponsible charges, it should not stifle good
and reliable testimony or thwart proof of corrupt practices by the technicalities of procedure. We
agree with the observations made in Balwan Singh v. Lakshmi Narain (22 ELR 273 : (1960) 3 SCR
91 : AIR 1960 SC 770) and are not deterred from considering the evidence of PW 54 and others
similarly circumstanced. No prejudice on account of deficiency in particulars is made out. We have
already indicated that we would not be prepared to base our conclusion solely on the testimony of
such a witness as PW 54, but that does not mean that we should blackout all evidence where the
witnesses are liable to some criticism and nor consider such evidence even though there are other
reliable or incontrovertible materials which lend assurance to its credibility.

33. The other point made is that there is no entry in the register maintained in the office of the
Deputy Commissioner about Exhibit P18. This is not correct because, in a sense, the Election
Branch is also part of the Deputy Commissioner's Office and there is an entry in the register there.
The suggestion that the Deputy Commissioner succumbed to the petitioner's pressure and ante-dated
Ex. P18 is difficult to digest. Similarly the suspicion sought to be raised about Register PW 2/2 kept
in the chief Electoral Officer's Office on the basis that there are two entries bearing serial number
5027 is unsound. The entry with which we are concerned is 5027A and this is not unusual when by
mistake a clerk has written identical figures for two entries. Moreover there is no cross-examination
on this point and in the absence of cross-examination giving an opportunity to the witness to explain
the circumstances from which an inference is sought to be drawn, no such inference - particularly of
forgery and publication of documents - can be permitted to be raised.

34. A rather trivial argument has been made that if a letter had been sent to Chandigarh on March
10, the postal expenses of a few paise should have been entered in the return of the election
expenses. Admittedly such an entry does not find a place in the return. For one thing, the amount is
so negligible that its non-mention means nothing. For another, it is difficult to accept the plea that
this candidate who was a Cabinet Minister and was locked in bitter battle with a strong opponent in
a do-or-die struggle would have spent only a small sum of over Rs. 4,000. It is a notorious fact that
huge sums of money are lavished by candidates on election, thus closing the door for ordinary
people to contest democratic elections. The point is that when suspiciously small sums are returned
as election expenses, no machinery to investigate and take action is found with the result that return
of election expenses becomes an idle ritual and not an effective check. If parties pour funds for
campaigning the law is silent and helpless. This is certainly a matter for the Election Law to
consider. It must make provision deterrent enough - so as to enable the small man to negotiate with
elective opportunities.

35. Even at this stage we may notice that the handbill in question does not contain the name of the
printer and publisher although the Election Law so requires. Unfortunately when such printed
material is circulated there is no agency of the law which takes prompt action after due
investigation, with the result that no printer or candidate or other propagandist during elections
bothers about the law and he is able successfully to spread scandal without a trace of the source,
knowing that nothing will happen until long after the election, when in a burdensome litigation this
question is raised. Timely enforcement is as important to the rule of law as the making of
legislation.

36. We may conclude by holding that we accept Exhibits. P18 and P19 as genuine and
concomitantly find that the handbills containing injurious statements were in existence on or before
March 10. The only question that remains is whether a nexus is established between these handbills
and the appellant and the factum of their pre-poll circulation by him or his agents is proved. Without
this latter requirement being made out, mere leaflets do not spell invalidation.

37. Once we find that Exhibits P18 and P19 are not fabrications, ante-dated or planted in the offices
of the Deputy Commissioner and the Chief Electoral Officer bearing endorsement and entries,
involving in the process a chain of officials willing to tamper with public records, we have to seek
their probable author. The appellant's cross-examination of the witnesses who proved the handbills
merely coquetted with speculative possibilities and shifting suggestions, without putting forward a
credible alternative, explaining their presence around March 10. The handbills purport to be issued
by Rahim Khan and the motive for him to do so is strong. After all, the evidence discloses that there
were allegations in the Haryana Assembly against Respondent No. 1 as a womanizer and in fact
there was a cow-slaughter case and dis-interring of a Muslim grave and allegations of the hand of
Respondent No. 1 behind these doings. Quite possibly, capitalising on these straws in the wind, the
appellant who was fighting has opponent hard made an attack involving personal imputations
circulated by a leaflet engagingly presented as a string of questions with answers self-evident and
involving appeal to 'religion' not even thinly concealed. Since a number of handbills had come into
the possession of Respondent No. 1 on the 10th which he forwarded to the two officials along with
Exhibits P18 and P19, the circumstances bespeak prior circulation. The question is whether Rahim
Khan, the appellant, has been directly shown to be linked with it. One cannot presume such an
important ingredient against a returned candidate unless the sure facts compel. In the present case
some clever manouvres have been made by Respondent No. 1 to connect the appellant with the
handbills. Courts must be astute enough to discourage over-cleverness of parties and decline to rely
on materials which perhaps may be true but bear the stamps of shadiness on their face. For instance,
we have Exhibit P5 a note written by PW 21. Din Mohammad on the reverse of Exhibit P6, a copy
of the offending handbill, Exhibit PW 4/3. PW 21 is a polling agent of the returned candidate but
swears in support of the defeated candidate in a plausible way. He states on oath that Exhibit P6
reached his hands on March 11, when it was being distributed in his village. While in the polling
station he made a note on the reverse of Exhibit P6 which runs :
                  Shri Samad Khanji,

                  Very few voters are coming from your village. The time left is short. Have the voters
                  sent quickly.

                  #

                  Din Mohd.

                  Nangal Shahpur

                  Dated : March 11, 1972.

                  ##

He wants up to believe that finding that the voters of Nangal Shahpur had not turned out he sent this
note to Samad Khan, a worker of the returned candidate. But how did this P5 get back into the
hands of Din Mohd, while it should normally have been with Samad Khan ? To fill up this gap PW
75, Sharif Khan is pressed into service. He has a story that one Subhan Khan delivered in to him
and he, in turn, gave it to the Advocate of the petitioner in the course of the trial of the case. How
can Exhibit P6 with the valuable endorsement Exhibit P5, move to and from Subhan Khan (not
examined) to Shrif Khan, PW 75 ? The obliging Din Mohammd, who had come under the spell of
Respondent No. 1 must have made this tell-tale endorsement during the pendency of the case and
the document itself is kept back till a surprise is sprung when PW 21 is in the witness box - far too
unfair for us to place reliance. One lie leads to another till a blind alley of improbability is reached.
Another Din Mohammad, PW 12, who also was a polling agent of the returned candidate has turned
turtle to support the petitioner during the case by producing a copy of the handbill and a letter
Exhibit P11/1, addressed to one Roshan of Mewli village. This letter, Exhibit PW 11/1 purports to
be a confidential circular by the appellant, Rahim Khan, requesting that the handbills be distributed
discreetly among "Muslim brethren" eschewing "the workers of the opposite party". This letter, it is
said, was addressed to Roshan but was not delivered to him directly by PW 12 since the former was
not in his house. The tale told by PW 12 further is that he made an endorsement on this letter
(separately marked as PW 11/2) requesting Roshan, PW 13, to act on the letter. What follows is still
more strange. Roshan, PW 13, claims to have received PW 11/1 with the note Exhibit PW 11/2 and
fifty handbills. He delivered them to PW 11 is a worker in the opposite camp. The whole story
sounds absurd and over-worked, difficult to be accepted.

38. Another adventurist piece of documentary evidence is Exhibit P3 with the endorsement Exhibit
P2 on its reverse. Mohammad Khan, PW 20, was a polling agent of the returned candidate and now
with easy conscience goes over to testify in support of Respondent No. 1. He alleges that Exhibit P3
which is a copy of the circular letter Exhibit PW 11/1, together with some of the offending
handbills, was received through one Raj Khan and that he distributed them in the village. For this
reason he must be guilty of batting corrupt practice, apart from being a turn-coat. But what startles
us is that PW 20 returns the letter Exhibit P3 to Raj Khan after making Exhibit P2 note thereon,
addressed to the appellant. It reads :

                  Ch. Rahim Khanji,

                  I have received the handbills, through Raj Khan. I shall distribute them properly. You
                  have not sent me the polling agent forms although you had told me you would.
                  Arrange to have them sent at once.

                  #

                  Mohd. Khan,

                  March 9, 1972.

                  ##

Surprisingly enough Raj Khan does not deliver the letter to the addressee Rahim Khan but shows it
to Sharif Khan PW 75. The latter asks for it but Raj Khan seemingly faithful refuses to give it.
Nevertheless this Raj Khan leaves it outside and goes inside to get a cup of tea for PW 75. When his
back is turned, the man with little scruples PW 75, abstracts this letter and Raj Khan never bothers
about the loss. The tortuous course of Exhibit P3 is too untrue to be credible. There is some more
oral evidence of this devalued class. We do not think we can base our conclusions safely on
salvaged bits of testimony of this contaminated sort.

39. There is also oral evidence identifying the signature of the returned candidate on Exhibits P3
and PW 11/1, particularly in the deposition of Habib, PW 23. He has not spoken to his familiarity
with the hand writing of the appellant. Opinion evidence is hearsay and becomes relevant only if the
condition laid down in Section 47 of the Evidence Act is first proved. There is some conflict of
judicial opinion on this matter, but we need not resolve it here, because, although there is close
resemblance between the signature of Rahim Khan on admitted documents and that in Exhibits P3
and PW 11/1, we do not wish to hazard a conclusion based on dubious evidence or lay comparison
of signatures by Courts. In these circumstances, we have to search for other evidence, if any, in
proof on circulation of the printed handbills by the returned candidate, or with his consent.

40. Many villages have been mentioned, where meetings were held and handbills released, but the
trial Court has played safe, if we may soy no, rightly and refused to act on evidence unclear and
uncertain and has upheld the case for only ten villages out of a larger area. We have pointed out how
the learned Judge has failed to show discernment in relying on defectionist witnesses (and in two
instances, by over sight, treated Respondent No. 1's polling agents as independent witnesses). So
that we are not inclined to go the length the lower Court has gone regarding these villages but non-
acceptance of the case of public meetings addressed by the appellant together with Tayyab Hussain,
R3 W9, does not necessarily mean handbills were not handed over to people. Even where good
evidence, not parrot-like repetition, is forthcoming, as an appellate Court we hesitate to interfere, on
questions of fact where the trial Court has discarded the evidence. In our view even the ten villages
where speeches were proved to have been made, according to the High Court, do not sound strong
enough for reasons already given. But on the distribution of the damaging handbills, we feel
confident that there is acceptable, direct and circumstantial testimony, to accept the Respondent No.
1's version. For one thing, we have found that those printed appeals did exist on March 10 - not for
secreting but circulating. For another, the motive for publishing these statements is for the appellant.
Again, the circumstance that the Respondent No. 1 came by many copies thereof on March 10
probabilities prior distribution, certainly with the knowledge and consent of the appellant. Finally,
there is disinterested evidence on this fact. For instance, take village Akerrha. PWs 45, 46, 47 and
48 have concurrently testified that the returned candidate and R3 W9 had visited the villages, talked
to voters and circulated handbills. The learned Judge discredits PW 46 because he was an agent of
Respondent No. 1. Quite right. But the other witnesses are not discussed at all. So we have read
them to ascertain their credibility, particularly since the contrary witnesses of the appellant have
been disbelieved. Negative evidence is ordinarily no good to disprove the factum of meetings. But
to disbelieve a witness because he came without summons, as the trial Court has done, is altogether
wrong. Even so, the evidence of R1 W13, R1 W14 and R1 W15 was rightly rejected by the trial
Judge as useless. However, we are satisfied that no ground exist to disbelieve, PW45, an apparently
disinterested person. The non-mention of every name in the affidavit in support of the election
petition is no ground to reject witnesses. PWs 45 and 47 sound natural and disinterested and no
reason exists to discard their evidence regarding the nocturnal circulation of printed handbills like
PW 4/3 No formal meeting was held, no chair, no mike, no announcement nor even petromax light.
Not the speeches, but the distribution of pamphlets is the credible part of the case. The former
depends only on the oral testimony of witnesses, the latter is re-inforced by actual handbills. The
same thing holds good regarding the villages where positive findings have been recorded by the trial
Court. We think that irrespective of the election speeches by the appellant and R3 W9, which may
or may not be true, the last minute circulation of handbills, must be accepted.

41. We are aware, as noticed in B. Rajagopala Rao v. N. G. Ranga ((1970) 3 SCC 576, 584 (Para
14) that the enemies of a winning candidate may get such notices printed and distributes as part of
the strategy of subverting an unfavorable election result. We also remember the words of caution in
other dicta already referred to and do not rule out the possibility of officers not being above board
where Ministers are engaged in hit and near-losing battles. It is after anxious consideration that we
have come to the ultimate inference already expressed on Exs. P18, P19 and PW 4/3 and the
publicity given to the handbills.

42. On this finding that the appellant did distribute Ex. PW 4/3 type handbills, what corrupt
practices are constituted thereby ?

43. "Character assassination" - to use a cliche - comes within Section 123 of the Act, since
Respondent No. 1 has called them false and the appellant has agreed he does not believe them to be
true. On the present view of the law, the handbills, in their climatic part, exhort Muslims to support
the appellant in the name of "religion"., But "divine displeasure" on account of prandial impropriety
and "undue influence" for fear of forced pork eating, cannot be distilled from these handbills
without doing violence to the prevailing protection of the rule of law in the country. Half-serious
apprehensions are not "undue influence" by any standards. No one in India in the 70's will shiver
with fear that a candidate, when he wins an election, will force down his throat distasteful pork.
Such chimerical apprehensions are unreal and cannot receive judicial approval. Equally untenable is
the trepidation in the hearts of the voters that if they cast their ballots in favour of one who eats pig's
meat, the wrath of God would annihilate them. Realism is a component of judicial determination.
Neither undue influence nor divine displeasure looms large in this case.

44. In the ultimate analysis we hold that the appellant did get the handbills, Exhibits PW 4/3 printed
and distributed among his constituents. Thereby he made statements which were untrue and which
he did not believe to be true and knew to be false, about the rival candidate with a view to diminish
the latter's prospects in the election. We further hold that Exhibit PW 4/3 constitutes an appeal to
religion for the purpose of voting for and against. Thus, under these two heads, a contravention
under Section 123 of the Act has been committed and for these two corrupt practices the unseating
of the appellant becomes inevitable.

45. We may mention here that while meticulous criticism has been made by both sides of the
numerous witnesses examined in the case, not the many ripples but the major waves shape the
course of the stream, in our view, so that we have paid more attention to the broad sweep of the
evidence rather than the little details picked up here and there and magnified before us. Therefore,
while not endorsing the entire findings of the High Court, we uphold two of its major findings - of
corrupt practices - sufficient to undo the election of the appellant. Further in this case Respondent
No. 1 cannot claim to have been clean in alleging untenable corrupt practices and adducing shoddy
evidence. Where both sides have soiled their hands in the legal process, both must bear their
individual burden of costs.

46. One last disquieting reflection is prompted in this case. If a blantant corrupt practice is
committed during an election, there is now no clear statutory mechanism which can
contemporaneously be set in motion by the affected party so that when it is raw, a record and an
instant summary probe is possible through an independent, semi-judicial instrumentality. Violations
thrive where prompt check is unavailable. On the other hand, effective contemporaneous machinery
providing for such checks would greatly curtail subsequent election disputes and even acts as a
deterrent to the commission of corrupt practices. Elections are the cornerstone of the Parliamentary
system and the norm of the new should not hang limit in the face of open contravention.

47. We cannot also close this judgment without exposing what is really a patent flaw in the
judgment of the High Court. Having found the commission of corrupt practices by the appellant,
Tayyab Hussain (a sitting Member of parliament) and a large number of other persons, it was the
statutory duty of the Judge to name all those who have been proved at the trial to have been guilty
of any corrupt practice [Section 99(a)(ii)]. The serious disqualification which would be visited upon
a person who is thus named has compelled the Legislature to introduce the canons of natural justice
before taking this punitive step. The proviso to Section 99(a) inhibits the naming of a person who is
not a party to the petition without giving him notice to appear any show cause and a further
opportunity of cross-examining any witness who has already been examined in the case and has
given evident against him, of calling evidence in his defence and of being heard. This Court has
emphasised the obligation of the Election Tribunal in this behalf and indicated the procedure that
may be adopted in such situations in D. P. Misra v. K. N. Sharma ((1971) 1 SCR 8 : (1970) 2 SCC
369); R. M. Seshadri v. G. V. Vasantha Pai ((1969) 2 SCR 1019 : (1969) 1 SCC 27); and Janak
Sinha v. Mohant R. K. Das (AIR 1972 SC 359 : (1972) 2 SCJ 464) Indeed before delivering
judgment in the election case the Court has to inform and extend an opportunity to the collaborators
in corrupt practice and in the light of the totality of evidence on record decide the election petition
and the issue of naming those guilty of corrupt practices. This is not a facultative power of the Court
but a bounden duty case on it. The high purpose of ensuring purity of elections is the paramount
policy inspiring this provision. The Court must strongly deter those who seek to achieve election
ends by corrupt means. It is unfortunate that courts and counsel are somewhat indifferent to this
requirement of the statute. If only at the end of an election case where verdicts on corrupt practices
are rendered, courts would name all those involved in the pollution of the electoral process, there
would be some hesitation on the part of citizens in executing those improper projects.

48. Counsel for Respondent No. 1 in this case suggest to us that the distributors of pamphlets or, for
that matter, even the authors thereof may easily escape punishment of "naming" by proving that
since responsible candidates had made such speeches, they did not believe the statements to be false
or even believed them to be true. We are clearly of the view that belief in this context means
reasonable belief and not easy fancy or foolish credence. Unless the distributor of mala fide
statements establishes that he had reasonable grounds in support of his belief, the Court will not
accept his plea and will name him. It is therefore plain that Section 123(4) read with Section 99
cannot stultify the provision for naming of men who deserve to be named.
49. However, in the present case, we have held that neither R3 W9 (Tayyab Hussain) nor
Respondent No. 3 (Sohanlal) has been proved to be guilty of corrupt practice. Similarly, we have
not accepted the case that many polling agents of the appellant had circulated the handbills. In this
view, the need to name anyone does not arise. Of course, the appellant being a party and guilty, has
to suffer the penalty. We are holding against him that he got the handbills printed and distributed but
on other grounds we have exonerated him for want of compelling probative material.

50. The appellant in this case, is less guilty that Respondent No. 1 depicts hi, but is less innocent
than he professes. Electoral purity must claim its victim and we set aside the appellant's election,
noting that the virus of corrupt practices cannot be controlled save by comprehensive systemic
changes with emphasis on a fearless enforcement instrumentality and a national political consensus
to abide by norms - a consummation devoutly to be wished. Today the yawning gap between law in
the books and unlaw in action has made inhibition of corrupt practices a once-in-a-blue-moon
tribunal phenomenon.

51. For the reasons set out above, we dismiss the appeal with the direction that parties will bear their
respective costs throughout.

</html