# LAKHI PRASAD AGARWAL v. NATHMAL DOKANIA

- **Citation:** [1969] 2 S.C.R. 41
- **Court:** Supreme Court of India
- **Decided:** 1968-09-06
- **Bench:** M. Hidayatullah, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lakhi-prasad-agarwal-v-nathmal-dokania-4509
- **Pages:** 5

## Headnote

Representation of the People Act, 1951 s. 123(2), (3) and (4)-Allegations of corrupt practice-Necessity of proper pleadings-Contentions
cannot b,e considered if not borne out by pleadings-Arrest of candidate
immediately before election-Whether inference of mala fide or collusion
with opposing candidate can be drawn.
The election of the respondent to the Bihar Legislative Assembly
at the 1967 general election was challenged by the appe!lant--0ne of the
defeated candidates-in an election petition.
Annexure 2 to the petition
was a pamphlet alleged to have been issued by the respondent an.cl his
supporters in which reference was made to the call of two Muslim religious heads that Muslims should not vote for the Congress party to which
Islam was opposed.
The High Court dismissed
the election
petition
whereupon appeal was filed in this Court. The appellant urged that (i)
In the aforesaid pamphlet an attempt was made to induce muslim voters
not to vote for a Congress candidate in opposition to the mandate of two
named religious heads and this amounted to the corrupt practice of
"undue influence" under s. 123(2) of the Representation of the People
Act 1951; (ii) The reference to the mandate of Islam amounted to the
use of a religious symbol within the mischief of s. 123 (3); (iii) The s·aid
pamphlet also came within the mischief in s. 123 ( 4); (iv) The Returning
Officer who was also the Sub-Divisional Officer of the Dist'rict ordered
the arrest of the appellant immediately before the election; this was done
mala fide, in collusion with the. respondent and the appellant was thereby
hampered in his election campaign.
HELD : (i) The pleadings in the appellant's election petition did not
permit consideration of his contention based on s. 123(2) of the Act.
In order that a pleading may be sufficient to make out a case
of
undue influence it must set out full particulars of it in compliance with
s. 83(1)(c) of the Act comparable to Order 6 r. 4 of the Code of Civil
Procedure. The said provision of the Act read with s. 123 ( 2) makes
it obligatory on a party setting up a case of corrupt practice by exercise
of undue influence as suggested, to give full 11articulars thereof by stating
inter alia who attempted to induce electors to believe that voting for a
particular person would render them objects of divine displeasure or
spiritual censure and in what manner such
attempts
were
made. The
real charge in the relevant )1aragraph of the petition in the present case
was that the pamphlet complained of misled the elector.1 hy false statements.
Such a pleading falls short of an allegation of tl'lldue intluenoe
by an attempt to make electors exercise their franchise in a particular
manner.
[43 H-44 CJ
(ii) The contention that the case fell under s. 123(3) because of the
use of the mandate of Islam as a religious symbol was also not borne
out by the pleadings and therefore could not be considered. [44 DJ
(iii) To bring the case under s. 123(4) there must be a publication
by the candidate or his agent of any statement of same' fact which is
2Sup. Cl/69-4
42
SUPREME COURT REPORTS
[1969] 2 S.C.R.
false, and which is believed to be false or not believed to be true, in relation to the personal character or conduct of any candidate, or in
relation to the candidature or withdrawal of any candidate being
a
statement reasonably calculated to prejudice the prospects of that candidate's election. The pamphlet in question did not cast any aspersion
l()D the personal character or conduct of the election petitioner.
Nor was
ithere any false statement in relation to the candidature1 of the petitioner.
:Section 123(4) was therefore not attracted to the case. [44 E-F]
(iv) The evidence in the case did not prove that the Returning Officer
'Caused the appellant to be arrested mala fide or in collusion with the respondent. The arrest immediately before the election surely
hampered
the campaign of the election petitioner, but by itself the mere fact of
arrest does not l

## Text

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LAKHI PRASAD AGARWAL
v.
NATHMAL DOKANIA
September 6, 1968
[M. HIDAYATULLAH, C.J. AND G. K. MITTER, JJ.]
Representation of the People Act, 1951 s. 123(2), (3) and (4)-Allegations of corrupt practice-Necessity of proper pleadings-Contentions
cannot b,e considered if not borne out by pleadings-Arrest of candidate
immediately before election-Whether inference of mala fide or collusion
with opposing candidate can be drawn.
The election of the respondent to the Bihar Legislative Assembly
at the 1967 general election was challenged by the appe!lant--0ne of the
defeated candidates-in an election petition.
Annexure 2 to the petition
was a pamphlet alleged to have been issued by the respondent an.cl his
supporters in which reference was made to the call of two Muslim religious heads that Muslims should not vote for the Congress party to which
Islam was opposed.
The High Court dismissed
the election
petition
whereupon appeal was filed in this Court. The appellant urged that (i)
In the aforesaid pamphlet an attempt was made to induce muslim voters
not to vote for a Congress candidate in opposition to the mandate of two
named religious heads and this amounted to the corrupt practice of
"undue influence" under s. 123(2) of the Representation of the People
Act 1951; (ii) The reference to the mandate of Islam amounted to the
use of a religious symbol within the mischief of s. 123 (3); (iii) The s·aid
pamphlet also came within the mischief in s. 123 ( 4); (iv) The Returning
Officer who was also the Sub-Divisional Officer of the Dist'rict ordered
the arrest of the appellant immediately before the election; this was done
mala fide, in collusion with the. respondent and the appellant was thereby
hampered in his election campaign.
HELD : (i) The pleadings in the appellant's election petition did not
permit consideration of his contention based on s. 123(2) of the Act.
In order that a pleading may be sufficient to make out a case
of
undue influence it must set out full particulars of it in compliance with
s. 83(1)(c) of the Act comparable to Order 6 r. 4 of the Code of Civil
Procedure. The said provision of the Act read with s. 123 ( 2) makes
it obligatory on a party setting up a case of corrupt practice by exercise
of undue influence as suggested, to give full 11articulars thereof by stating
inter alia who attempted to induce electors to believe that voting for a
particular person would render them objects of divine displeasure or
spiritual censure and in what manner such
attempts
were
made. The
real charge in the relevant )1aragraph of the petition in the present case
was that the pamphlet complained of misled the elector.1 hy false statements.
Such a pleading falls short of an allegation of tl'lldue intluenoe
by an attempt to make electors exercise their franchise in a particular
manner.
[43 H-44 CJ
(ii) The contention that the case fell under s. 123(3) because of the
use of the mandate of Islam as a religious symbol was also not borne
out by the pleadings and therefore could not be considered. [44 DJ
(iii) To bring the case under s. 123(4) there must be a publication
by the candidate or his agent of any statement of same' fact which is
2Sup. Cl/69-4
42
SUPREME COURT REPORTS
[1969] 2 S.C.R.
false, and which is believed to be false or not believed to be true, in relation to the personal character or conduct of any candidate, or in
relation to the candidature or withdrawal of any candidate being
a
statement reasonably calculated to prejudice the prospects of that candidate's election. The pamphlet in question did not cast any aspersion
l()D the personal character or conduct of the election petitioner.
Nor was
ithere any false statement in relation to the candidature1 of the petitioner.
:Section 123(4) was therefore not attracted to the case. [44 E-F]
(iv) The evidence in the case did not prove that the Returning Officer
'Caused the appellant to be arrested mala fide or in collusion with the respondent. The arrest immediately before the election surely
hampered
the campaign of the election petitioner, but by itself the mere fact of
arrest does not lead to the conclusion that the Returning Officer was trying to bring pressure on the election petitioner not to contest the election
A
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and much less that the arrest was made in collusion with the successful
C
candidate. [45 G]
CIVIL APPELLATE JURISDICTION:
Civil Appeal No, 20 of
1968.
Appeal under Section 116-A of the Representation of the
People Act, 1951 from the judgment and order dated the Novem-
.ber 30, 1967 of the Patna High Court in Election Petition 19 of
D
1967.
Danial A. Latifi, and R. A. Gupta, for the appellant.
D. Goburdhun, for the respondent.
The Judgment of the Court was delivered by
Mitter, J.
This is an appeal by an unsuccessful candidate
at an election held in February 1967 for the Bihar State Legislative Assembly from the Single Member Rajmahal Constituency
No. 139. Originally there were eight candidates : we are con-
.cerned only with two of them, namely, the election petitioner and
respondent, N athrnal Dokania, the returned candidate as a result
·Of the election.
The election petitioner lost before the High
Court.
The main ground on which he presses this appeal are
based on paras 4 ( c) and 4 ( e) of the petition.
The relevant issue
framed by the learned trial Judge with regard to paragraph 4(c)
is issue No. 5 reading :-
"Did the respondent or his election agent or his
workers with his or his election agent's consent resort
to corrupt practices in the election, as alleged by the
petitioner and has the result of the election been materially affected thereby ?"
In para 4 ( c) it is pleaded that the respondent himself and his
agents and workers including certain named persons with his consent "committed a corrupt practice of publication of statements
of facts throughout the constituency and mainly at Shahebganj,
Teen Pahar and Rajmahal during the election campaign during
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L. P. AGARWAL v. N. DOKANIA (Mitter, J.)
43
the period 11th February 1967 to 15th February 1967 which
induced and caused deception in the mind of the electors whereby the respondent procured a large number of votes which he
would not otherwise have secured but for the corrupt practice
aforesaid." Copies of the pamphlets from Annexure 2 series to the
petition.
Mr. Latifi appearing for the appellant submitted that Annexure
2 (A) does not further his client's cause. His grievance is based
on Annexure 2.
The translation of this Annexure of which the
original was in Hindi shows that it was a call to the Muslim voters
of Rajmahal to "hear the message and prepare the graveyard for
the Congress." Reference was made therein to "the appeal of the
day by Maulana Syed Usman Ghani Saheb of Phulwari Sharif
Khankah" "that nobody should be in illusion that Muslims have
to vote for the Congress this time also".
It was also suggested
that on account of high-handedness of the Congress group Muslims should not support it.
There was also a reference to the
appeal of Pir Saheb of the Dargah of Phulwari Sharif that Muslims should not vote for any Congress candidate.
The appeal
ends with the sentence, "when you have life-long connection with
Sri Nathmal Dokania, the candidate of the Swantantra Party and
when the Head of your religion, your Islam also opposes the
Congress, then it becomes your duty to come out victorious py
affixing stamps on the "Star" symbol."
Mr. Latifi tried to argue that by the publication of the pamphlet an attempt was made to induce Muslim electors not to vote
for a Congress candidate in opposition to the mandates of the
two named religious heads.
In other words, his contention was
that undue influence within the meaning of s. 123(2) of the Act
was sought to be exercised on the Muslim voters in the name of
the religious heads mentioned in the pamphlet under the threat of
divine displeasure or spiritual censure.
He also sought to argue
that the reference to the mandate of Islam in the pamphlet
amounted to the use of a religious symbol and as such the appeal
by the pamphlet came within the mischief of s. 123(3) of the
Act.
Under s. 123(2), a candidate may be guilty of corrupt practice if he uses "undue influence" which in the words of the section
means any direct or indirect interference or attempt to interfere
with the free exercise of any electoral right of a voter.
Mr. Latifi's
submission was that the pamphlet came within the mischief of subclause (ii) of proviso (a) to section 123(2). Unfortunately for
Mr. Latifi, although the pamphlet might have sustained a plea of
undue influence about which we express no opinion, there is no
pleading to that effect in the petition.
In order that a pleading
may be sufficient to make out a case of undue influence, it must
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SUPREME COURT REPORTS
[1969] 2 S.C.R.
set out full particulars of it under the provisions of s. 83 ( 1) ( c)
of the Act which may be compared with Order 6 rule 4 of the
Code of Civil Procedure.
The said provision of the Act read
with s. 123 (2) makes it obligatory on a party setting up a case
of corrupt practice by exercise of undue influence as suggested, to
give full particulars thereof by stating inter alia who attempted
to induce electors to believe that voting for a particular person
would render them objects of divine displeasure or spiritual censure and in what manner such attempts were made.
The real
charge in paragraph 4 ( c) of the petition is that the pamphlet
complained of misled the electors by false statements.
Such a
pleading falls far short of an allegation of undue influence by an
attempt to make electors exercise their franchise in a particular
manner.
Para 4 ( c) does not even mention Muslim voters and
does not contain any averment to the effect that they were sought
to be influenced by the opinion of the religious lieads.
Mr. Latifi's attempt to bring his case undt r s. 123(3) is
equally futile.
Mr. Latifi sought to argue that (slam was a religious symbol of Muhamedans and the publica non of the pamphlet containing a reference to the mandate of Islam was
an
attempt to prejudicially affect the election of the. petitioner. This
case too is not borne out by the pleadings. Failing in his attempt
to bring the case under the two sub-sections mentioned already,
he tried to bring his case under s. 123 ( 4) of the Act. In this too,
in our view, he cannot succeed.
To bring the case under this
sub-section, there must be a publication by the candidate or his
agent of any statement of some fact which is false, and which he
believed to be false or did not believe to be true, in relation to
the personal character or conduct of any candidate, or in relation
to the candidature or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that
candidate's election.
The pamphlet does not cast any aspersion
on the personal character or conduct of the election petitioner.
Nor is there any false statement in relation to the candidature of
the petitioner. In fact there is no reference to him at all.
Conseque,ntly, the election petition does not attract the operation
of the aforementioned sub-sections of s. 123 of the Act. The learned trial Judge should not have entertained any argument under subsections 3 and 3A of s. 123 of the Act as in view of the pleadings
issue No. 5 did not permit the raising of such contentions.
In
view of the pleadings we did not permit Mr. Latifi to pursue his
arguments on this issue on the basis of s. 123 sub-ss. (2) or (3)
of the Act.
That leaves us only with the allegation in para 4( e) of the
petition which runs thus :
_ "The election of the respondent is void, because the
Returning Officer who is also the Sub-Divisional MagisA
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L. P, AGARWAL v. N. DOKANIA (Mitter, J.)
45
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trate of the area, in collusion with the respondents
harassed the petitioner in all possible ways so much so
that a mere application for correction in the petitioner's
name was allowed at the last juncture and the petitioner
had been arrested the very next day of the said application, was put in jail for eight valuable days and thereby
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prevented from pursuing the election campaign."
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The issue under which the above complaint was
sought to be
raised was the general one, namely, whether the election of the
respondent is liable to be set aside ?
Mr. Latifi drew our
attention to
portions of the
testimony of the
Returning
Officer where he denied that he was in collusion with
Nathmal Dokania or that because of such collusion he got the
petitioner arrested after he had filed applications for correction of
the entries with respect to his name in the electoral roll.
He also
denied that he got the petitioner arrested with any mala fide
intention so that he might not be able to contest the election. In
his cross-examination, the Returning Officer referred to the proceedings started against the petitioner and said that the petitioner had
been arrested once in January and for a second time in February
1967.
The arrest in January 1967 was in connection with proceedings under s. 107 of the Code of Criminal Procedure.
The
arrest in February 1967 was in connection with a case for some
substantive offences. He added however that he was not in a
position to say what was the offence alleged to have been committed by the petitioner by a mere reference to the certified copy
of the order sheet.
On this evidence there was nothing before the
court to justify a conclusion in favour of the petitioner on the
general issue.
Only some suggestions had been made to the
Returning Officer in his cross-examination that he had acted mala
fide and that he had a acted in collusion with the successful candidate. No details with regard to the complaints leading to or the
grounds for the arrests were forthcoming.
We find it difficult
to believe that the petitioner did not know the grounds on which
he was put under arrest.
The arrest immediately before the election surely hampered the campaign of the election petitioner, but
by itself the arrest does not lead to the conclusion that the Returning Officer was trying to bring pressure upon the election petitioner
not to contest the election and much less that the arrest was made
in collusion with the successful candidate.
These being the only two points which were urged before us
in the appeal, the appeal must fail and it is hereby dismissed with
costs.
Appeal dismissed.