# BANSILAL KOHISTANI v. RISW KUMAR KAUSHAL

- **Citation:** [1971] Supp. 1 S.C.R. 146
- **Court:** Supreme Court of India
- **Decided:** 1971-03-23
- **Case number:** Civil Appeal No. 204 of 1970
- **Bench:** J. M. Shelat, C. A Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bansilal-kohistani-v-risw-kumar-kaushal-5505
- **Pages:** 26

## Headnote

Jammu & Kashmir Representation of the People Act, 1951-Cui-res~
pondr to s. 123(4) of the Representation of the People Act, 1951-Corrupt
Practir:t-Statement as to character and conduct of candidate, what consti ..
tuteJ-Onw1 to prove that statement is false is on petitioner.
Jn the General Election held in 1967 the appellant and the respondent
had filed their nomination papers for election to the Jammu and Kashmir
Legislative Assembly from the Reasi Assembly Constituency. The appellant was declared duly elected. The respondent filed an election petition
cballena;iog the election of the appellant on the ground of corrupt practices
commiucd by the appellant his agents and other persons with hi• consent.
The High Court held the election to be void on the sole ground that the
matters mentioned in paragraphs 16, 17 and 20 of the booklet Ex. P.W.
1 /II constituted corrupt practices under s. 132(4) of the Jammu & Kashmir
Represeotalion of the People Act, 1957 corresponding to s. 123(4) of the
Representation of the People Act, 1951.
In regard to certain other passages in tho booklet namely paragraphs 7, 8, 10, 18 and 19 of Ex. P. W.
1 /JI the High Court held that the allegations therein were not proved to
he false and therefore fell outside the ambit of s. 132(4) of the Jammu &
Kashmir AcL Appeal against the High Court's judgment was filed in this
Court by the appellant. In regard to the allegations in paragraphs 16, 17
and 20 of the offending booklet the appellant urged that the facts mentioned thereia did not relate to the personal character and conduct of the
appellant The respondent sought and obtained leave of tho Court to
question the finding of the High Court in regard to paragraph• 7, 8, 10,
18 and 19 of the booklet.
HELD: (i) In order to constitute corrupt practice under '· 123(4) of
the Indian Act and s. 132(4) of the Jammu & Kashmir Act the false statement should have been in relation to the personal character of the candidate. If a false statement is made with 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 the candidate's election. Circuta ..
tion of false statement about the private or personal character of the
candidate during the period preceding the election is likely to 'Work
against the freedom of election itself, inasmuch as the effect created by
false ~tatement cannot be met by denial in proper time and so the consti·
tuency has to be protected against the circulation of such false ~tate1nent-:;
which are likely to affect the voting of the electors. If a statement of fact
affects the man beneath the politician it touches the private character : if
it afiecM the politician
it does not touch his private character.
St·rih~
alk>wancc will have to be made in respect of statements made in election
meetings as the atmosphere is usually surcharged by partisan feelings and
emotions. Allegations of depravity or immorality or affecting the 1noral
or n1ental qualities of a person are statements relating to the personal
character or conduct of a person. Attributing acts of violence to a cand;M
d~te- even if such acts are done during his political career, is a statement
re!at!ng to the personal character and conduct.
If the conditions of -s.
121.(4) are satisfied it is irrelevant to inquire whether the statetnent has
been n1:ide as a counter blast to another statement issued by the opponent.
BANSI LAL v. RISHI KUMAR (Vatdialingam, J.)
147
The staiement must be one reasonably calculated to prejudice the prospect•
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of the candidate's election. The initial onus establishing the circumstances
mentioned in s. 123(4) is on the election petitioner and when once he discharges that onus, the burden shifts to the candidate making a false statement of fact to show what his belief was. [156G-157D]
Case-law referred to. ,
(ii) There were no statements of fact in paragraphs I 7 and 20 of lhe
Ex. P. W. I /II in relation to the person

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146
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BANSILAL KOHISTANI
v.
RISW KUMAR KAUSHAL
March 23, 1971
(J. M. SHELAT AND C. A VAIDIALINGAM, JJ.j
Jammu & Kashmir Representation of the People Act, 1951-Cui-res~
pondr to s. 123(4) of the Representation of the People Act, 1951-Corrupt
Practir:t-Statement as to character and conduct of candidate, what consti ..
tuteJ-Onw1 to prove that statement is false is on petitioner.
Jn the General Election held in 1967 the appellant and the respondent
had filed their nomination papers for election to the Jammu and Kashmir
Legislative Assembly from the Reasi Assembly Constituency. The appellant was declared duly elected. The respondent filed an election petition
cballena;iog the election of the appellant on the ground of corrupt practices
commiucd by the appellant his agents and other persons with hi• consent.
The High Court held the election to be void on the sole ground that the
matters mentioned in paragraphs 16, 17 and 20 of the booklet Ex. P.W.
1 /II constituted corrupt practices under s. 132(4) of the Jammu & Kashmir
Represeotalion of the People Act, 1957 corresponding to s. 123(4) of the
Representation of the People Act, 1951.
In regard to certain other passages in tho booklet namely paragraphs 7, 8, 10, 18 and 19 of Ex. P. W.
1 /JI the High Court held that the allegations therein were not proved to
he false and therefore fell outside the ambit of s. 132(4) of the Jammu &
Kashmir AcL Appeal against the High Court's judgment was filed in this
Court by the appellant. In regard to the allegations in paragraphs 16, 17
and 20 of the offending booklet the appellant urged that the facts mentioned thereia did not relate to the personal character and conduct of the
appellant The respondent sought and obtained leave of tho Court to
question the finding of the High Court in regard to paragraph• 7, 8, 10,
18 and 19 of the booklet.
HELD: (i) In order to constitute corrupt practice under '· 123(4) of
the Indian Act and s. 132(4) of the Jammu & Kashmir Act the false statement should have been in relation to the personal character of the candidate. If a false statement is made with 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 the candidate's election. Circuta ..
tion of false statement about the private or personal character of the
candidate during the period preceding the election is likely to 'Work
against the freedom of election itself, inasmuch as the effect created by
false ~tatement cannot be met by denial in proper time and so the consti·
tuency has to be protected against the circulation of such false ~tate1nent-:;
which are likely to affect the voting of the electors. If a statement of fact
affects the man beneath the politician it touches the private character : if
it afiecM the politician
it does not touch his private character.
St·rih~
alk>wancc will have to be made in respect of statements made in election
meetings as the atmosphere is usually surcharged by partisan feelings and
emotions. Allegations of depravity or immorality or affecting the 1noral
or n1ental qualities of a person are statements relating to the personal
character or conduct of a person. Attributing acts of violence to a cand;M
d~te- even if such acts are done during his political career, is a statement
re!at!ng to the personal character and conduct.
If the conditions of -s.
121.(4) are satisfied it is irrelevant to inquire whether the statetnent has
been n1:ide as a counter blast to another statement issued by the opponent.
BANSI LAL v. RISHI KUMAR (Vatdialingam, J.)
147
The staiement must be one reasonably calculated to prejudice the prospect•
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of the candidate's election. The initial onus establishing the circumstances
mentioned in s. 123(4) is on the election petitioner and when once he discharges that onus, the burden shifts to the candidate making a false statement of fact to show what his belief was. [156G-157D]
Case-law referred to. ,
(ii) There were no statements of fact in paragraphs I 7 and 20 of lhe
Ex. P. W. I /II in relation to the personal character or conduct of the respondent. There was no allegation in paragraph I 6 that the respondent
"as an associate of drunkards. The averment in the said paragraph that
•ome of the companions of the respondent on whose political support
the respondent relied were found drinking from morning till evening, did not
relate to the personal .character or conduct of the respondent. The allegation in the said paragraph regarding the respondent extricating himself
from a criminal case bad been proved to be true and u 1ucli fell outside
the mischief of s. 132(4) of the Act. It followed that the finding of the
High Court that the statements contained in paragraphs 16, 17 and 20
amounted to corlllpt practice under s. 132(4) of the Act, could not be
austained. [1640-FJ
(iii) It is permissible for a respondent in this Court to support the
judgment of the High Court by attacking the findings recorded against
him. However on an examination of the findings recorded by the High
Court in respect of paragraphs 7, 8, 10, 18 and 19 it could not be held that
the findings therein were erroneous as contended by the respondent. [165A;
171B]
Ramanbhai Ashabhai Patel v. Dab/U Ajitkumar Fulsinii & Ors. [1965]
I S.C.R. 712 and Shri Thepfulo Nakhro Angami v. Shrimati Raveluei @
Rani M. Shaiza, [1971] 3 S.C.R. 424, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 204 of
1970.
Appeal under Section 123 of the J. & K. Representation of
the People Act, 1957 from the judgment and order dated December 15, 1969 of the Jammu and Kashmir High Court in Election
Petition No. 37 of 1967.
R. K. Garg, D. P. Singh, A. K. Gupta, R. K. lain, V. I.
Francis and S. P. Singh, for the appellant
Ramnath Bhalgotra, Swaranjit Sodhi and S. S. Khanduja, for
the respondent
The Judgment of the Co)lrt was delivered by
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Valdialingam, J.-This appeal, under Section 123 of the
Jammu- & Kashmir, Representation of the People Act,
19S7
!hereinafter to be referred as the Act) as amended by Act 11 of
1967, is direeted a~ainst the judgment and order dated December
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15, 1967 of the High Court of Jammu & Kashmir in Election
Petition No. 37 of 1967.
Section 123 of the Act corresponds
to Section ll 6A of the Representation of the People Act, 195 l.
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SUPREME COURT REPORTS
[1971] SUPP. s.c.R.
In the General Election held in 1967, the appellant and the
respondent had duly filed their nominations for election to the
Jammu & Kashmir Legislative Assembly from the Reasi Assembly
Constituency.
Scrutiny of the nomination papers was conducted on January 23, 1967 and the polling took place on February
21, 1967.
The counting of the ballot papers took place or1
February 27, 1967 and the appellant was declared duly elected by
a majority of 418 votes.
The respondent filed an election petition
on April 8, 1967 being No. 37 of 1967 challenging the election
of the appellant on the ground that various corrupt practices, set
out in the. petition, had been committed by the appellant, his
agents and other persons with his consent in the said election. In
.:onsequence the respondent prayed for declaring the election of
the appellant from the said constituency as null and void.
ln paragraph 6 of the election petition, the respondent enumerated the various corrupt practices stated to have been commi.tted during the election, in consequence of which the election
of the respondent was void.
It is not necessary for us to set out
the various corrupt practices referred -to in paragraph 6 of the
election petition. The election of the appellant had been declared to be void by the High Court only on the ground that the
matters mentioned in paragraphs 16, 17 and 20 of the booklet
Ex. P. W. l/II constitute corrupt practices under Section 132 (4>
of the Act corresponding to Section 123 (4) of the Representation
of the People Act, 1951.
We may have to deal with certam
other matters referred to in paragraph 6 of the election petition
in the later part of the judgment, as the learned counsel for the
respondent has tried to support the judgment of the High Court
by attacking the finding recorded against him in respect of some
of those allegations.
Item No. 2 of paragraph 6 refers to the appellant, bis agents,
polling agents and other persons with his consent having published
certain posters and booklets containing statements of facts, which
were false and which they either believed to be false and did not
believe to be true in relation to the personal character and conduct of the respondent.
Sub-item (a) of item No. 2 refers to the
publication of a booklet under the caption "open letter from
Debati <Rural) Conference to Mr. Risbi Kumar Kaushal and other
Jan Sangh leaders". This is Ex. P. W. I /II.
It was published
by one Lal Singh R. W. 53, an active worker of the Indian National Congress and the agent of the appellant. Lal Singh was lateT
on appointed by the appellant as his polling agent. Ex P. W.
I /II was alleged to contain wrong facts in several paragraph enumerated in the petition.
There were other allegations
of corrupt practices mentioned in paragraph 6 of tbs election
petition.
BANS! LAL'· RISH! KUMAR (Vaidialingam, J.)
The appellant in his written statement pleaded that none of
the allegations that had been made against him by the respondent
in the election petition contained material facts constituting the
alleged corrupt practices.
He further pleaded that the respondent
had not mentioned the parties who are aileged to have committed
the corrupt practices nor the dates and places when the corrupt
practices are alleged to have been committed.
Regarding the
various allegations of corrupt practices, the appellant denied that
he had committed any such corrupt practice and that in any
event the allegations do not amount to corrupt practice in law.
With reference to Ex. P. W. I /II, the booklet, the appellant averred that the publication was really a rejoinder issued to a poster
Ex. P. W. l/B issued by the Jan Sangh party, to which the respondent belonged.
He further pleaded that P. W. I/II was pub·
lished long before the respondent became a candidate in the election and its object was to educate the voters of the constituency.
With reference to the various paragraphs in Ex. P. W. I /II, relied
on by the election petitioner as constituting corrupt practice, the
appellant pleaded that the matters referred to in the booklet do
not affect the personal character or conduct of the respondent and
that they ·never affected him beneath the politicians.
Those
matters contained in Ex. P. W. I /II dealt only with the respondent as a politician and they were only criticism of the respondent
in his public character as a politician and of the political party,
the Jan Sangh, to which he belonged. It was only a criticism of
the Jan Sangh party and its economic and political ideology. He
also controverted the various other allegations made in the election petition.
R. W. 53 Lal Singh has given evidence that he published the
open letter Ex. P. W. I/II as a reply to the poster Ex. P. W. 1 /B
issued by the Jan Sangh.
He has also stated that the contents
of Ex. P. W. I /II are correct and that the publication was made
in the first week of December, 1966.
Issue No. 2 runs as follows :
"Whether the respondent, his election agent and
agents published the booklet "Dehati Conference kee
Taraf se Shri Rishikumar Kaushal "aur deegar Jansanghi
leaderon ke nam Khuli Chitthi" in the name of one Lal
Singh an active worker of the Congress and distributed it
amongst the voters of the Constituency from 1-2-67 to
20-2-1967 and whether the said booklet contained facts in
relation to Rishi Kumar petitioner which were false and
which were either believed to be false or were not believed
to be true?"
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SUPREME COURT REPORTS
[1971] SUPP. s.c.R.
Ex. P. W. 1/11 is a pamphlet.
It purports to be from the
Dehati (Rural) Conference to Mr. Rishi Kumar Kaushal and oth«
I an Sangh leaders.
Rishi Kumar is the respondent herein and
he was at the material time a sitting member of the Legislative
Assembly.
There is a photo of Lal Singh in the said pamphlet.
It calls itself an open letter.
It consists of 21 paragraphs and the
relevant paragraphs for the purpose of this appeal are Nos. 16, 17
and 20.
There are mistakes in the official English translation of
the pamphlet and there are also mistakes in the translation of th•
said paragraphs by the High Court.
Both the learned counsel
have agreed before us that the following translation of the said
three paragraphs is substantially correct.
"Paragraph 16Who raised the question of the village and the town ?
When in the month of September, 1966, two persons of
the rural area Sailanjan-Dhani Ram and Baldev Singh
came to Riasi, and they caught a shop keeper sawing wood
in an unauthorised manner and you with the aid of your
urban colleagues made an attack on them and raised the
question ; that these people from the village come to town
and drink and roam aimlessly like vagabonds etc. and
they were kept in jail for a night. the doctors and the lawyers who were in Reasi were instructed not to take up
their cause and they received no aid. It was the next day
that they were bailed out from jail.
No one from Riasi
town came to their rescue.
Thereafter they went to the
court of the D.C. Udhampur and there they instituted a
case against 10.11 persons, including you. Then you gave
them some small coins paise and asked for a pardon. But
it has been seen that some of you sathis are found drinking from morning till evening.
You rely on their support.
Have you ever taken action against them ? Or is
it that we alone from the village are bad characters ? The
urban question has been raised by you and now you are
preaching separation between the urban and the rural
people, and that two foundations are being laid now. Who
has laid these foundations? And who raised the rural
question?"
Paragraph 11.
"It is an incident of four years ago that you had in
this very manner incited our village brethren. On that
account a few Hindus and Muslims of Talwada jointly
seized the cattle and livestock of the peasants living in the
hills, when they were taking them to their home.
Their
cattle and livestock
were
impounded. For this.
'
BANSI LAL v. RISHI KUMAR (Valdia/ingam, J.)
! 51
these peasants filed cases in courts against their own
brethren and a few persons of Talwada were arrested.
The case against them has been going on till recently. But
have you ever rendered any help to them in courts ? They
had to suffer and thus incur expense upto the courts in
Srinagar-but you merely did propaganda about cow
slaughter, you never took into consideration that the peasants invariably carry on the sale and purchase of cattle
and livestock. The livestock keeps moving up and down.
What marks these cattle carried to indicate that they were
on their way to the slaughter house. What work you
have done for the benefit of the village ! Every effort
has been made that in every way the villagers are rendered weak.
For this reason alone, you have been knocking at every door and staggering around saying : Vote for
me.
Have you the face to ask for votes ? "yeh munh
aur masoor ki dal".
Now you secure the votes from your
town.
Don't hope for the village.
You commit deception and people from the village get a bad name.
We
from the village have done everything for you and after
20 years this is the reward you have given us.
Now you
reap as you sowed (Jaisa kiya waisa bhogo).
Take a
razor and shave the heads of the villagers.
Kaushal
Sahib, that is all that is left to be done.
Now you consider, who ihould be voted.
Strike off the name of 'taklilg'
and insert the name of 'giving'.
Paragraph 20.
"Now we have set up the Dehati Conference orr November 20, 1966.
Now you do what you plcaso.
Now
no villager will come to you for being hurt, nor lihall anyone else.
Now you fix an iron curtain outside your
town, so that nobody casts eyes on your golden city and
you enjoy the wealth robbed from the poor."
The High Court with reference to paragraphs 16, 17 and 20
of the pamphlet Ex. P. W. I/II held that the allegations contained therein constitute statements of fact in relation to the personal conduct and character of the respondent. With reference to
paragraph 16, the High Court held that the respondent is shown
to have apologised after paying some money and that he extricated himself from a criminal case and that the respondent is
shown to bo an associate of drunkards on whose support he
comes and that these statements of fact were false and have not
been proved by the appellant to have been made in a bona-{iJe
manner. Again with reference to paragraph 17, the Higb Court
is of the view that the respondent is charged with negligence and
is stated to be responsible for the misfortune of certain arrested
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SUPREME COURT REPORTS
[1971] WPP. s.c.R.
persons.
In particular the High Court has held that in this ;:iaragraph "the petitioner is shown to have preached cow-slaughter
(which is indeed henious from Hindu point of view)." The High
Court has further held that there are also allegations that the respondent has committed acts of fraud.
These averments have
been held by the High Court to be wrong and false statement>
of facts and not proved to be correct and such a type of propaganda has materially affected the prospects of the respondent's
election as they touched his personal conduct.
With reference to the averrnents in paragraph 20 of the Ex.
P. W. 11 II, the High Court is of the view that there is an allegation that the respondent has looted the property of the poor and
that he is further charged with appropriating the looted property.
Such an allegation, which is false, relates to the personal character
of the respondent.
The High Court winds up its discussion on
paragraphs 16, 17 and 20 of Ex. P. W. l /II as follows:
"The above referred to allegations made in paras J6,
17 and 20 are in my opinion statements of fact which are
in relation to the personal character and conduct of the
petitioner.
He is described as one who apologised for
extricating himself from a criminal case by paying money
to the other side.
He is shown to be an associate of
drunkards on whose support he counts and in whose company he moves. He is also shown to be a preacher of
cow-slaughter (a malafide statement which is likely to
rouse the wrath of Hindu Janta against him and to malign
him).
He is said to be begging for votes from door to
door (on humiliating terms).
He is said to have committed acts of fraud and in the end what is worst is that he is
asked to appropriate the looted property of the poor. Tr.e
statements of facts have been made in the booklet Ex.
P. W. I /II with the clear intention of maligning and defaming the petitioner and degrading him in the eyes of the
voters. These statements are false and have not been proved to be correct. These statements of fact have been made
by an active worker of the Congress who was not only a
worker in election of the respondent but also his polling
agent.
It is true that the booklet was published before
the notificatio!I calling upon the candidates to file nomination papers in the Constituency was made. May be also
that the booklet was published only in reply to the poster
Ex. P. W. l /b entitled 'Dihati Bhai Hoshiar Bash' issued
by Jan Swgh as is argued. But it was issued on the eve
of the election and in this there is a clear mention of election propaganda."
(
BANS! LAL v. RISH! KUMAR (Vaidia/ingam, J.)
Finally the High Court held that the allegations referred to
in paragraphs 16, 17 and 20 of the booklet Ex. P. W. I /II are
statements of fact, which are false and have been made in relation
to the personal character and conduct of the petitioner and therefore fall within the ambit of s. 132(4) of the Act. The High
.Cou:·t further finds that there is overwhelming evidence on re-
,cord to show that the said booklet was distributed and circulated
.by the author of the booklet R. W. 53 and other workers of the
Congres; party including the election agent of the appellant and
the appellant himself amongst the people in different villages of
:the Constituency during the election and also just before the poll.
All other allegations of corrupt practice made in the election
petition were either held to be true or not proved.
But on the
basis of the finding on paragraphs 16, 17 and 18 of Ex. P. W. Ii II,
the High Court held the appellant guilty of corrupt practice and
as such set aside his election after declaring it void.
Mr. R. K. Garg, learned counsel for the appellant, urged two
contentions : (!) that the statements contained in the above thre~
paragraphs do not relate to the personal conduct or character of
the respondent and, that, on the other hand, they are only by way
of a criticism of the respondent as a politican and the political
activities of the Jan Sangh Party to which he belongs. The High
Court has misinterpreted and misunderstood the various statements made in the above paragraphs when it came to the conclusion that they amount to corrupt practice; (ii) regarding publication and distribution of the pamphlet by the appellant, his agent,
or by any person with his consent. the learned Judge has merely
extracted the evidence on the side of the appellant and the respondent and has entered a finding that there is overwhelming evidence on record to show that Ex. P. W. l /II has been distributed
and circulated in different villages during the election and before
the poll.
The learned Judge has not expressed any opinion as
to which evidence he accepts or rejects, and as such the finding
in this regard is grossly vitiated.
Section 132 of the Act corresponding to Section 123 of the
Representation of the People Act, 1951 deals with corrupt 9ractices and sub-section (4) is as follows :
"The publication by a candidate or his agent or by
any other person, 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, or retirement from contest, of any
candidate being a statement reasonably calculated to prejudice the prospects of that candidaite's election."
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SUPRllME COllRT REPORTS
[1971] SUPP. s.c.R.
Sub-section (4), quoted above is the same as Section 123 (4)
of the Representation of the People Act, 1951 and the contents
of the said sub-section have been laid down in several decisions of
this Court.
We will first refer to the broad principles laid down
in those decisions and then advert to the relevant paragraphs of
the booklet Ex. P. W. l /II and will then deal with the contentions of Mr. Bhalgotra, supporting the findings of the High Court
in relation to those paragraphs.
In T. K. Gangi Reddy v. M. C. Anjaneya Reddy and other$(')
this Court stated that the words "personal character and 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". It has been further held that if otherwise
a statement comes under sub-section (4) of Section 123 as corrupt
practice, it will be no answer to plead that the 11tatement was
made as a counter blast to a rival statement of an opponent.
In dealing with sub-section (4) of Sectioo 123 in lnder Lal v.
Lal Singh (') this Court observed as follows :
"It would be noticed that in prescribing the requirement that the false statement should have relation to the
personal character of the candidate, a distinction is intended to be drawn between the personal character of the
candidate and his public or political character ........ Dissemination of false statements about the personal character of the candidate thus constitute a corrupt practice."
In the same decision it has also been pointed out that though it
is clear that the statue wants to make a broad distinction
between public and political character on the one hand and
private character on the other, it is obvious thal a sharp and
clear cut dividing line cannot be drawn to distinguish the 0nc
from the other.
But nevertheless tho courts will havo to draw a
working line to distinguish private character from pvblic character.
It has further been pointed out in Ku/tar Si11:lt v. Mukhtiar
Singh (') that the document must be read as a whole and its purport and effect determined in a fair, objective and reasonabi.
manner and that at the election time the atmOiphcro is usually
surcharged with partisan feelings ood emotiollS and liOlllO allowance must be made in that regard.
(I) (1960) 22 E. L. R. 261.
(2) (19621 Suppl. 3 s.c.R. 114.
t3) [1964) 7 S.C.R. 790.
BANSI LAL v. RISHI KUMAR (Vaidia/ingam, J.)
Dealing with sub-section (4) of Section 123, in Sheopat Singh
v. Ram Pratap (') this Court observed as follows :
"The sub-section is designed to achieve this dual purpose, namely, freedom of speech and prevention of malicious attack on personal character or conduct etc. of
rivals.
The purity of an election is sought to be maintained without affecting the freedom of expression. The
sub-section prohibits any statement of fact in relation to
personal character or conduct of any candidate, which is
not only false but also the candidate making it either believes it to be false or does not believe it to be true. It
implies that a statement of fact relating to the personal
character or conduct etc. of a candidate can be made, if
it is true. Even if it is false, the candidate making it is
protected, unless he makes it believing it to be false or not
believing it to be true, that is to say statements which are
not true made bona fide are also outside the ambit of the
provision.
To be within the mischief of sub-section (41
of Section 123 of the Act, such a statement shall satisfy
another test, namely, it shall be a statement reasonably
calculated to prejudice the prospects of the election of the
candidate against whom it is made.
The word "calculated" means designed : it denotes more than mere likelihood and imports a design to affect voters. lt connoks
a subjective element through the actual effect of the
statement on the electoral mind reflected in the result
may afford a basis to ascertain whether the said statement was reasonably calculated to achieve that effect.
The emphasis is on the calculated effect, not on the
actual result, though the latter proves the former."
It has been further stated in the said decision :
"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 candidate's personal as
well as public character."
In Dev Kanta Barooah v. Golok Chandra Baruah and
Jthers (') this Court had to consider whether an allegation calling as "Deshdrohita" a person who was having military contracts
during the 1942 movements was a statement in relation to his
persooal character or conduct.
It was held that the said allegation was only a reflection on the political conduct of the person
(I) [1965) I s.c.R. 17S.
(2) [t970J t s.c.c.392.
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concerned in siding with the British Government rather than joining the Congress, which was carrying on a movement against the
British for achieving independence of the country.
In that cuntext it was held that the statement was not In relation to the
personal character or conduct of the party concerned as there is
no imputation of any depravity or immorality".
In Guruj/ Shrihar Baliram Jivatode v. Vitha/rao and others(')
it was held by this Court that the statements which were under
consideration do not make any reflection on the moral or mental
qualities "of the person against whom those statements had been
made."
The following observation of Darling J. in Cumberland
(Cockermouth Divisional) (') case has been quoted with approval
in some of the decisions of this Court referred to above :
(4).
"What the Act forbids is this.
You shall not make
or publish any false statement of fact in relation to th~
personal character or conduct of such candidate ; if you
do, it is an illegal practice. It is not an offence to say
something which may be severe about another person nor
which ma¥ be unjustifiable nor which may be derogatory
unless it amounts to a false statement of fact in relation to
the personal character or conduct of such candidate ; anti
I think the Act says that there is a great distinction to be
drawn between a false statement of fact which affects th~
personal character or conduct of a candidate and a false
statement of fact which deals with the political position or
reputation or action of the candidate. If that "were not
kept in mind, this statute would simply have prohibited
at election times all sorts of criticism which was not
strictly true relating to the political behaviour and
opinions of the candidate.
That is why it carefully provides that the false statement, in order to be an illegal
practice, must relate to the personal character and personal conduct."
Darling J. was dealing with a provision similar to Section l 23
From a review of the decisions referred to above, it fo!tows
that in order to constitute corrupt practice under Section 123(4),
the false statement should have been in relation to the personal
character of the candidate.
If a false statement is made with
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's election.
Circulation of
(I) [1969] I S.C.R. 766.
(2) [1901] S, O' M. & H. lSS.
BANS! LAL v. RISH! KUMAR ( Vaitlialingam, J.)
157
false statement about the private or personal character of the candidate during the period preceding the election is likely to work
against the freedom of election itself inasmuch as the effect created by false statement cannot be met by denial in proper time and
so the Constituen;;y has .to be protected against the circulation of
such false statements which are likely to affect the voting ·:if the
elec10rs.
If a statement of fact affects the man beneath the politician, it touches the private character; and if it affects the politician it does not touch his private character. Some allowance will
have to be made in respect of statements made in election meetings as the 31tmosphere is usually surcharged by partisan feelings
and emotions.
Allegations of depravity or immorality or affecting the moral or mental qualities of a person are statements re!atir,g to the personal character or conduct of a person. Attributing
acts of violence to a candidate even if such acts are done during his
political career, is a statement relating to the personal character
and conduct. If the conditions of Section 123 (4) are satisfied it is
irrelevant to inquire whether the statement has been made as a
counter-blast to another statement issued by the opponent.
The
statement must be one reasonably calculated to prejudice the pro;-
pects of the candidate's election.
The initial onus of establishing
the circumstances mentioned in Section 123 (4) is on the election
petitioner and when once he
discharges that onus, the burden
shifts to the candidate making a false statement of fact to show
what his belief was.
Bearing in mind the above propositions, we will now proceed
to consider whether the statements in paragraph 16, 17 and 20 in
Ex. P. W. I /II are statements in relation to the personal character
or conduct of the respondent.
In considering this question it is necessary to note that the
respondent was then a sitting member of the Legislative Assembly
and the pamp.lilet itself is addressed not only to the respondent but
also to other Jan Sangh leaders.
There is no controversy that the
respondent belonged to Jan Sangh Party.
Before we consider the contents of the said three paragraphs
of Ex. P. W, II II, we can deal with and dispose of the contentions raised on behalf of the appellant that the booklet was issued
as a counter blast to the pamphlet issued by the Jan Sangh Party
Ex. P. W. II B.
As stated by this Court in T. K. Gangi Reddy
and others (), case Section 123 (4) defining corrupt practice, is
not conditioned by any proviso to the effect that it would cease
tc be a .corrupt practice if the statement was made to counteract
the rival statement of an opponent.
Therefore, it follows that if
the conditions mentioned in sub-section (4) of Section 123 are
held to be satisfied, it is irrelevant to inquire whether the booklet
(1) [1960] 22 E.L.R. 261.
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Ex. P. W. l /11, has been published as a counter-blast to Ex. P. W.
l/B
Now coming to the material portion of the pamphlet itself,
we are of the opinion that the High Court has misunderstood and
misinterpreted the averrnents contained in paragraphs 16, 17 and
20. Before we deal with paragraph 16, we will consider tho nature
of the statements made in paragraphs 17 and 20.
Paragraph 17 in substance refers to seizure of cattle and livestock of the persons when they were being taken to their home.
There is a reference to the cattle being impounded and the persons
filing a case in the court. The charge is that the respondent
never rendered any help to those persons who had been arrested
and tried by the courts.
There is a reference .to the respondent
doing propaganda about the COW-tilaughter and his not havin& done
anything for the benefit of the villagers. In spite of not doing
anything to the villagers, the respondent is alleged to bs asking
for votes from the villagers. It is further stated that the people
of the village have been helping the respondent for over 20 years
and the latter had done nothing to help the villagers. This para·
graph. unfortunately, has been understood by the learned Jadge as
containing the statements to the effect:
(a) that the respondent is a preacher of cow-slaughter
and that it is a malafide statement made to rouse the
wrath of Hindu Janta against him and to malign him;
(b) that the respondent is begging for votes from door
to door on humiliating terms;
(c) th.at the respondent has committed acts of fraud.
None of the above conclusions drawn by the High Court
from paragraph 17 are supported by the statements contained !heroin.
On the other haoo, it is a wholesale attack against the respendetit as a politician for having ignored the requirements of
the village and the villagers but at the same time trying to woo
their votes which he does not deserve. There is no statement to
the effect that the respondent has preached cow-slaughter in which
case it wt11 be a very serious allegation.
On the other hand the
statement is that the respondent did propaganda about cow·
slaughter. Nor is there any allegation that he is begging for votes
on hwn!liating terms.
Even if such a statement is there, it will
not be a statement in relation to the personal character or con·
duct.
On the other hand, every candidate during elections makes
requests for votes and for this purpose he may be visiting the
voters from door to door.
To say that a candidate is asking for
votes, has no reference to the personal character or conduct of that
candidate.
But the actual statement in paragraph 17 is that he:
BANS! LAL v. RISH! KUMAR (Vaidialingam, J.)
159
is knocking at every door and staggering around saying "vote for
me".
In our opinion, this statement has no relation to the personal character or conduct of the respondent and it only criticises
him for asking for votes from the voters when he has not done
any good to them ; nor is there any statement to the effect that
the respondent has committed acts of fraud.
An argument was
made by Mr. Bhalgotra, learned counsel for the respondent that
there is an averment that the respondent has committed deception
and the people from the village get bad name. Deception, according to the learned counsel, consists in the respondent having misled the peopfe in believing that the cattle were being taken for
slaughter and when the villagers got into trouble, when they
attempted to prevent the cattle from being so taken, the respondent did not render any help to them.
We are not inclined to
accept this interpretation sought to be placed on these averments
in paragraph 17.
The deception that is referred to is attributed
to the people of the town generally and the people from the village suffering on account of that.
This only reveals the antago·
uism of the villagers to the town people on the ground that the
latter exploit the village people for their own purpose.
Therefore. none of the reasons given by the learned Judge for coming
to the conclusion that paragraph 17 contained statements in reiation to the personal character or conduct of the respondent appeal
to us.
A
Coming to paragraph 20, the learned Judge had taken the
view that there is an allegation that the respondent has been asked to appropriate the looted property of the poor.
Here again
there is a fallacy underlying the reasoning of the High Court.
Paragraph 20 in substance is only to the effect that there is a wide
disparity between the people in the town and in the villages and
that the former are gaining at the expense of the latter. It is in
this context that it is sarcastically mentioned that the people of
tile town can put up an iron curtain and enjoy the advantages
gained from the poor.
The sentiments underlying paragraph 20
reveal only the grievance of the people in the village that their
claims are being neglected and that the people in the town are having all the. benefits at the expense of the village people. The
words "wealth robbed" have been understood by the learned
judge as the property looted from the poor.
There is no warrant
for such an interpretation.
Those expressions have been used
only to bring out very forcibly that the people in the town are having all the benefits at the expense of the people of the villages who
are comparatively stated to be poor.
Therefore, paragraph 20
again, in our opinion, does not contain any statement relating to
the personal character or conduct of the respondent.
Taking up paragraph 16, the High Court has held that it contains two statements which relate to the personal character or
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conduct of the respondent, namely, (a) that the respondent apologised for extricating himself from a criminal case by paying money
to the other side, and (b) the respondent is shown to be an associate of drunkards on whose support he counts and in whose company he moves.
Broadly, the statements in paragraph 16, relate
to the attack of two persons by the urban people including the
respondent, their arrest and the case instituted by them being
dropped or compromised on the respondent asking for a pardon
by paying some small amount.
There is a further statement that
the respondent relies on the support of his companions who are
found drinking from morning till evening and the respondent not
having taken any action against them, cannot blame the villagers
Here again the theme seems to be the same, namely, of the
town ~ople receiving a more favourable treatment than the people
in the villages.