# MOHAN SINGH v. BHANW ARLAL & OTHERS

- **Citation:** [1964] 5 S.C.R. 12
- **Court:** Supreme Court of India
- **Decided:** 1963-02-14
- **Case number:** Civil Appeal No. 530 of 1963
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohan-singh-v-bhanw-arlal-others-2966
- **Pages:** 14

## Headnote

1963
12
SUPREME COURT REPORTS
[1964]
have been duly constituted under s.7 A, and the reference
made on December 18, 1957 is to be deemed to have
H.H. the
been made as if the Tribunal were constituted under
Maharana Sahibs. 7 A of the amended Act.
The Validating Act is
Sim Bhagwat
.
.
'
Singh Bahadur because of Item 22, List III of the Seventh Schedule
of Udaipur
to the Constitution, within the competence of the
v.
State Legislature, and it was reserved for the consideraThe State of tion of the President and has received his assent.
Raiasthan
It must by virtue of Art. 254(2) prevail in the State
Shah J.
1963
October 3
of Rajasthan.
The contentions raised in this appeal must therefore fail.
The appeal is dismissed with costs.
Appeal dismissed.
MOHAN SINGH
v.
BHANW ARLAL & OTHERS.
(P.B.
GAJENDRAGADKAR,
K. SUBBA RAO,
K.N.
WANCHOO, J.C. SHAH AND
RAGHUBAR DAYAL JJ.)
Election-Corrupt Practice-lngredients-Pub/ication of leaf'
lets-If and 1vhen
ronstilute corrupt practice-"Gratification"-
Meaning of-The Representation of the People Act, , 195 l (43 of
1951), SS. 82, 123(1) (B) and 123 (4).
The appellant was declared elected to the Madhya Pradesh
Legislative Assembly.
Another candidate Himmat Singh withdrew his candidature before the date of polling.
Respondent l
one of the defeated candidates, challenged the election by a petition
under the Representation of the People Act alleging that the
appellant had disqualified himself by committing corrupt practices.
lt was alleged that he had shortly before the polling of votes published two leaflets in Hindi containing statements of fact with regard
to the personal character or conduct of respondent 1 which were
false and which the appellant believed to be false or did not believe
to be true and that the statements were calcul.ited to prejudice the
prospects of respondent I at the election. The appellant denied
-
- '
5 S.C.R.
SUPREME COURT REPORTS
13
the said allegations and applied to the Election Tribunal for dismissing the petition in limine because Himmat Singh against whom
allegations of corrupt practice in regard to the withdrawal of
candidature \Vere n1adc, was not joined as a respondent. The
Tribunal rejected the application a1id held that it was established
on the evidence that the appellant did commit corrupt practice
by publishing the two leaflets.
In appeal the High Court agreed
with the Tribunal.
It was urged on behalf of the appellant that
the election petition was liable to be dismissed in limine, as it did
not comply with the requirements of s.82 of the Act, that the appellant did not publish the leaflets, and that in any event the publication did not constitute a corrupt practice within the meaning of
s. 123(4) of the Act.
Held: (i) The election petition was not detective. There was
no allegation of corrupt practice against Himmat Singh. It was
merely alleged that the appellant had offered to assist or help
Himmat Singh in obtaining employment with '"Dalauda Sugar
Factory or elsewhere".
The acceptance of offer which constitutes
a motive or reward for withdrawing from the candidature must
be acceptance of gratification. Gratification does not include
offers and acceptances of mere promises, but requires
an offer
and acceptance relating to a thing of some value, though not necessarily estimable in terms of money.
A mere offer to help in getting
employment is not such offer of gratification within the meaning
of s. 123(1)(8) as to constitute it a corrupt practice.
On the
allegations therefore, it was not necessary to implead Himmat
Singh as a respondent to the petition.
(ii) The onus of establishing a corrupt practice is undoubtedly on the person who sets it up, and the onus is not discharged
on proof of mere preponderance of probability, as in the trial
of a civil suit; the corrupt practice must be established beyond
reasonable doubt by evidence which is clear and unambiguous.
(iii) Jn considering whether a publication amounts to a corrupt
practice within the meaning of s. 123(4

## Text

1963
12
SUPREME COURT REPORTS
[1964]
have been duly constituted under s.7 A, and the reference
made on December 18, 1957 is to be deemed to have
H.H. the
been made as if the Tribunal were constituted under
Maharana Sahibs. 7 A of the amended Act.
The Validating Act is
Sim Bhagwat
.
.
'
Singh Bahadur because of Item 22, List III of the Seventh Schedule
of Udaipur
to the Constitution, within the competence of the
v.
State Legislature, and it was reserved for the consideraThe State of tion of the President and has received his assent.
Raiasthan
It must by virtue of Art. 254(2) prevail in the State
Shah J.
1963
October 3
of Rajasthan.
The contentions raised in this appeal must therefore fail.
The appeal is dismissed with costs.
Appeal dismissed.
MOHAN SINGH
v.
BHANW ARLAL & OTHERS.
(P.B.
GAJENDRAGADKAR,
K. SUBBA RAO,
K.N.
WANCHOO, J.C. SHAH AND
RAGHUBAR DAYAL JJ.)
Election-Corrupt Practice-lngredients-Pub/ication of leaf'
lets-If and 1vhen
ronstilute corrupt practice-"Gratification"-
Meaning of-The Representation of the People Act, , 195 l (43 of
1951), SS. 82, 123(1) (B) and 123 (4).
The appellant was declared elected to the Madhya Pradesh
Legislative Assembly.
Another candidate Himmat Singh withdrew his candidature before the date of polling.
Respondent l
one of the defeated candidates, challenged the election by a petition
under the Representation of the People Act alleging that the
appellant had disqualified himself by committing corrupt practices.
lt was alleged that he had shortly before the polling of votes published two leaflets in Hindi containing statements of fact with regard
to the personal character or conduct of respondent 1 which were
false and which the appellant believed to be false or did not believe
to be true and that the statements were calcul.ited to prejudice the
prospects of respondent I at the election. The appellant denied
-
- '
5 S.C.R.
SUPREME COURT REPORTS
13
the said allegations and applied to the Election Tribunal for dismissing the petition in limine because Himmat Singh against whom
allegations of corrupt practice in regard to the withdrawal of
candidature \Vere n1adc, was not joined as a respondent. The
Tribunal rejected the application a1id held that it was established
on the evidence that the appellant did commit corrupt practice
by publishing the two leaflets.
In appeal the High Court agreed
with the Tribunal.
It was urged on behalf of the appellant that
the election petition was liable to be dismissed in limine, as it did
not comply with the requirements of s.82 of the Act, that the appellant did not publish the leaflets, and that in any event the publication did not constitute a corrupt practice within the meaning of
s. 123(4) of the Act.
Held: (i) The election petition was not detective. There was
no allegation of corrupt practice against Himmat Singh. It was
merely alleged that the appellant had offered to assist or help
Himmat Singh in obtaining employment with '"Dalauda Sugar
Factory or elsewhere".
The acceptance of offer which constitutes
a motive or reward for withdrawing from the candidature must
be acceptance of gratification. Gratification does not include
offers and acceptances of mere promises, but requires
an offer
and acceptance relating to a thing of some value, though not necessarily estimable in terms of money.
A mere offer to help in getting
employment is not such offer of gratification within the meaning
of s. 123(1)(8) as to constitute it a corrupt practice.
On the
allegations therefore, it was not necessary to implead Himmat
Singh as a respondent to the petition.
(ii) The onus of establishing a corrupt practice is undoubtedly on the person who sets it up, and the onus is not discharged
on proof of mere preponderance of probability, as in the trial
of a civil suit; the corrupt practice must be established beyond
reasonable doubt by evidence which is clear and unambiguous.
(iii) Jn considering whether a publication amounts to a corrupt
practice within the meaning of s. 123(4) the Tribunal would be
entitled to take into account matters of common knowledge among
the electorate and read the publication in that background, for
one of the ini;redients of the particular corrupt practice is the tendency of the statement in the publication to be re<>sonably calculated to prejudice the prospects of thctt candidate's election. The
test in cases under s. 123(4) is whether the imputation, besides
being false in fact, is published with the object of lowering the
candidate in the estimation of the electorate and calculated to
prejudice his prospects at the election.
Jn ascertaining whether
the candidate is lowered in the estimation of tbe electorate, the
imputation made must be viewed in the light of matters generally
known to them.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
530 of 1963.
1963
Mohan Si11gh
v.
Bhamrar/al
1963
Mohan Singh
v.
Bliamrar!ol
Shah J.
14
SUPREME COURT REPORTS
[1964]
Appeal from the judgment and order dated February 14, 1963, of the Madhya Pradesh High Court
in First Appe;al No. 34 of 1962.
U.M. Tril'edi, J'v!alik A1ju11 Das, Shanti S1mrufJ
K/wm/uja and Ganpal Rai, for the appellant.
G.S. Pathak, U.N. Bhachawat, Rames/mar Nath
and S.N. Andley, for respondent no. l.
October 3, 1963.
The Judgment of the Court was
delivered by
SHAH J.--Eight candidates (including the appellant Mohan Singh and the first respondent Bhanwarlal) filed nomination papers for election to the
Madhya Pradesh Legislative Assembly from the Sitamau constituency. The nomination of one Hussain
Khan was rejected by the Returning Officer at the
initial scrutiny and another candidate Himmat Singh
withdrew his candidature before the date of polling,
which took place on February 24, 1962.
On the
counting of the votes Mohan Singh was found to
have secured the largest number of votes at the election,
and he was declared elected.
Bhanwarlal applied under s. 80 read with ss.
100 and IOI of the Representation of the People Act
(43 of 1951 ), to the Election Commission of lndia
for an order declaring the election of Mohan Singh
void, and Mohan Singh disqualified because of committing corrupt practices detailed in the petition and
for an order declaring the applicant Bhanwarlal
elected.
Among the many grounds of corrupt practices alleged in the petition, two grounds set out in els.
(c) & (d) of para 11 of the petition survive for consideration in this appeal.
It was averred in these
clauses that Mohan Singh the successful candidate
had shortly before the polling of votes published two
leaflets in Hindi containing statements of fact with
regard to the personal character or conduct of the
applicant Bhanwarlal which were false and which
Mohan Singh believed to be false or did not believe
tc be true and that the statements were calculated
·--
'
.. '
r
"
5 S.C.R.
SUPREME COURT REPORTS
15
-
.~
•
'
to prejudice the prospects of Bhanwarlal at the elect!on .
Copies of the two leaflets were annexed to the pet1t1on,
and were marked annexures 'D' & 'E'.
The petition was referred for trial by the Election
Commission to the Election Tribunal, Ratlam, under
s. 86 of the Representation of the People Act.
Mohan
Singh by his written statement denied that he had
published the leaflets and submitted that the leaflets
which appeared to have been published by the electorate
contained "a factual and fair criticism of the publtc
activities" of Bhanwarlal and that they were not
calculated to prejudice his prospects at the election.
Mohan Singh applied to the Tribunal for an
order dismissing the petition in limine on the ground,
among others, that there was non-compliance with
s. 82 of the Act, because one of the candidates at
the election named Himmat Singh-against whom
allegations of corrupt practice in regard to the withdrawal of his candidature were made-was not joined
as a respondent. The Tribunal rejected the applica-
,.
tion for dismissal of the petition and held that it
was established on the evidence that Mohan Singh
and his agents did commit, amongst others, the corrupt
practice defined in s. 123(4) of the Act by publishing
the leaflets, annexures·'D' & 'E', containiilg statements
which were false, to the knowledge and belief of
Mohan Singh, and made with the knowledge that
they would reasonably prejudice the election chances
of Bhanwarlal. In coming to that conclusion the
"'~;.
Tribunal primarily relied upon the testimony of one
Rameshchandra, a compositor in the Maheshwari
Printing Press, Mandsaur, and upon certain corroborative circumstances.
-
In appeal by Mohan Singh against the order, the
High Court of Madhya Pradesh on a review of the
evidence agreed with the Tribunal that Mohan Singh
was instrumental in getting printed leaflets annexures
'D' & 'E' and the leaflets were distributed in certain
villages in the constituency by Mohan Singh and his
agents Satyanarayan and Kailash.
1963
Mohan Singh
v.
Bha111rarlal
Shah J.
1963
Mohan Singh
v.
Bhamvarlal
Shah J.
16
SUPREME COURT REPORTS
[1964]
ln this appeal with special leave it was urged
that the election petition filed by Bhanwarlal was
liable· to be dismissed in limine, as it did not comply
with the requirements of s. 82 of the Representation
of the People Act. On the merits it was urged that
Mohan Singh did not publish the leaflets annexurcs
'D' & 'E', and that in any event the publication did
not constitute a corrupt practice within the meaning
of s. 123 ( 4) of the Act.
Whether for alleged non-compliance with the
requirements of s. 82 of the Act, the petition by
Bhanwarlal was not maintainable must first be determined, for if the petition did not comply with the
mandatory provisions of the statute, irrespective of
whether a corrupt practice was committed by Mohan
Singh, the petition must stand dismissed without
further investigation.
ln paragraph 11 (b) of the petition it was averred
that on January 20, 1962, Mohan Singh, "offered at
Nahargarh to Shri Himmat Singh an independent
candidate to help him in procuring a job for him in
Dalauda Sugar Factory or elsewhere to withdraw
his candidature from the election. That as a consequence of this offer of illegal gratification Himmat
Singh withdrew his candidature from the Sitamau
Assembly constituency." The language used is somewhat ungrammatical, but the purport is clear-that
Mohan Singh with a view to persuade Himmat Singh
to withdraw from the election offered to help him
to secure employment with the Dalauda Sugar Factory,
or with some other employer, and in consequence
of this offer-which amounted to illegal gratificationHimmat Singh had withdrawn himself from being
a candidate at the election for the Sitamau constituency.
Section J 23 (I) defines the corrupt practice of
"bribery" and by cl.
(B) receipt of, or agreement
to receive, any gratification, whether as a motive or
a reward-
(a) by a person for standing or not standing as,
or for withdrawing from being, a candidate; or
•
-
-
5 S.C.R.
SUPREME COURT REPORTS
t7
(b) by any person whomsoever for himself or
any other person for voting or refraining
from voting, or inducing or attempting to
induce any elector to vote or refrain from
voting, or any candidate to withdraw his
candidature,
constitutes the corrupt practice of bribery by a person
other than the candidate. It is submitted that by
para 11 (b) it was averred that Himmat Singh who
had filed his nomination paper had agreed to receive
gratification, as a motive or a reward for withdrawing
from being a candidate, and that it was necessary
in view of s. 82 of the Act to implead Himmat Singh
as a party to the petition, and failure to implead him
would involve dismissal of the petition. To appreciate
the argument it is necessary to refer to certain relevant
provisions of the Act. By s. 80 no election is liable
to be called in question except by an election petition
presented in accordance with the provisions of Part
VI of the Act. Section 81 prescribes the grounds on
which, the persons by whom and the period during
which an election petition may be presented, and
.{ also the procedure for presentation of the petition.
By s. 82 it is enacted that all contesting candidates
shali be joined as party respondents where the petitioner, in addition to claiming a declaration that the election
of all or any of the returned candidates is void, claims
a further declaration that he himself or any other
candidate has been duly elected, and where no such
further declaration is claimed, all the returned candidates shall be joined. Again where allegations of
corrupt practice are made against another candidate,
such other candidate shall be joined as a respondent.
Section 79 which is the interpretation section in respect
of Parts VI, VII and VIII (ands. 82 occurs in Part VI)
defines the expression "candidate" as meaning a
person who has been or claims to have been duly
nominated as a candidate at any election, and any
such person shall be deemed to have been a candidate
as from the time when, with the election in
prospect, he began to hold himself out as a pros•
pective candidate. If the provisions, among others,
1/SCl/64-2
1963
Mohan Singh
y;
Bhanwarlal
-·
Shah/.
'1963
Mohan Singh
v,
Bhanwar/al
.-_ .-.
S}zah J.
l&
; SUPREME COURT REPORTS
[1964]
of ss. 81 or 82 have not been complied with, the Election
Commissioner must dismiss the petition (s. 85), and
if the Commission does not so order the Tribunal
is enjoined by s. 90(3) to dismiss the petition which
does not comply with the provisions of ss. 81 or 82.
Himmat Singh had filed his nomination paper,
and on that account by virtue of the definition of
s. 79 he was a candidate for the purposes of Parts
VI, VII & VIII, and did not cease to be a candidate
merely because he withdrew his candidature. If
therefore the petition contained any imputation of
corrupt practice made against Himmat Singh, it
could not be regarded as properly constituted unless
he was impleaded as a respondent, for, by the definition
of "candidate" in s. 79(b), the expression "any other
candidate" in s. 82(b) must include a candidate who
had withdrawn his candidature. But in our judgment
in para ll(b) there is no allegation of corrupt practice
against Himmat Singh.
What is alleged is that
Mohan Singh had offered to help Himmat Singh
"in procuring a job in Dalauda Sugar Factory or elsewhere" and that as a consequence of that offer Himmat ,
Singh had withdrawn his candidature from the election.
There is no express averment in the petition about
the acceptance of the offer by Himmat Singh, but
it would border upon supererogation to insist that
even if offer to help to procure a job amounted to
offer of gratification, an allegation that in consequence
of this offer Himmat Singh had withdrawn his candidature from the election did not amount to a plea
of acceptance of that offer unless it was so expressly ., ~
averred. However in our view a mere offer of help
to secure employment without more is not offer of
gratification within the meaning of s. 123 (I) (B)
of the Act. The expression "gratification" is not
defined in the Act but the Explanation to sub-s.
(1) of s. 123 furnishes an indication as to what in the
view of the Parliament amounts to gratification. The
Explanation states:
-
"For the purposes of this clause the term
'gratification' is not restricted to pecuniary grati-, '._.
--
5S.C.R.
SUPREME COURT REPORTS
19
fications or gratifications estimable in money
1963
and it includes all forms of entertainment and
all forms of employment for reward but it does Mohan Singh
not include the payment of any expenses bonav.
fide incurred at, or for the purpose of, any election
Bhanwar.lal
and duly entered in the account of election expenses referred to in section 7 8."
Shah J.
The Explanation extends the expression "gratification"
to include all forms of entertainment and all forms
of employment for reward but not payment of bona fide
expenditure incurred at or for the purpose of election
if duly entered in the account of election expenses.
~ Gratification in its ordinary connotation means satis-
.faction. In the context in which the expression is
used and its delimitation by the Explanation, it must
mean something valuable which is calculated to
satisfy a person's aim, object or desire, whether or
not that thing is estimable in terms of money; but
a mere offer to help in securing employment to a
person with a named or unnamed employer would
( not amount to such gratification.
There is no plea that Mohan Singh had offered
employment to Himmat Singh with the Dalauda
Sugar Factory or with another employer; it was
merely alleged that Mohan Singh had offered to assist
or help Himmat Singh in obtaining employment with
the "Dalauda Sugar Factory or else where". The
acceptance of offer which constitutes a motive or
.._
~ reward for withdrawing from the candidature must
be acceptance of gratification; and if gratification
does not include all offers and acceptances of mere
promises, but requires, to constitute it, an offer and
acceptance relating to a thing of some value, though
not necessarily estimable in terms of money, a mere
offer to help in getting employment is not such offer
of gratification within the meaning of s. 123(l)(B)
as to constitute it a corrupt practice. It was in the
circumstances not necessary on the allegations made in
para 1 l(b) of the petition to implead Himmat Singh
as a respondent to the petition. We therefore agree
1963
Mohan Singh
v.
Bhan war/a/
Shah J.
20
SUPREME COURT REPORTS
[1964]
with the High Court, though for different reasons,
that the petition filed by Bhanwarlal was not defective.
CoiJ.nsel for Mohan Singh challenged the finding
of the High Court that Mohan Singh was instrumental
in publishing the leaflets annexures 'D' & 'E'.
He
urged that in the trial of an election petition approach
to the evidence must be as in a criminal trial and no
fact may be held proved unless it is established beyond
reasonable doubt. The onus of establishing a corrupt·
practice is undoubtedly on the person who sets it up,
///
and the onus is not discharged on proof of mere
preponderance of probability, as in the trial of a
civil suit: the corrupt practice must be established
~
beyond reasonable doubt by evidence which is clear·
and unambiguous. But the testimony of Rameshchandra corroborated by the circumstances set out
in detail in the judgments of the Tribunal and the
High Court was accepted and the testimony of witnesses for Mohan Singh who claimed that other
persons without his consent or connivance were
responsible for getting the leaflets printed was dis- \
believed. The evidence about the distribution of the
leaflets in question by the appellant and his agents
was also accepted by the Tribunal and the High Court.
It was also found that these leaflets were distributed
simultaneously. In recording their conclusions the
Tribunal and the High Court did not proceed on
mere grounds of probability. The findings recorded
by the Tribunal and the High Court are therefore
concurrent findings of fact founded on appreciation -
~
of oral evidence and no ground is made out for departing from the settled practice of the Court against
interference with those concurrent findings of fact.
The next question to be considered is whether
the publication of the leaflets amounts to commission
of a corrupt practice within the terms of s. 123 (4)
of the Representation of the People Act, 1951. Section
123 sets out what the diverse corrupt practices recognised by the Act are. Clause (4) defines a corrupt
practice by publication of false statements calculated
J
5 S.C.R.
SUPREME COURT REPORTS
21
to prejudice the prospects of a candidate's election.
To bring a corrupt practice within the purview of
cl. (4) there must be a publication by a candidate or
his agent or by another person with the consent of
the candidate or his election agent: the publication
must contain a statement of fact which is false, and
which the candidate or his agent believes to be false
or does not believe to be true, the statement must be
in relation to the personal character or conduct of
the candidate; and it must be reasonably calculated
to prejudice the prospects of the candidate's election.
The expression "statement of fact" in s. 123 (4) includes not only an express imputation but also an
innuendo if one such may reasonably be raised from
the language in which it is couched and the manner
of its publication.
Annexure 'D' is in Hindi. The caption of that
leaflet is "The surety (security) of Shri Nahata has
to be forfeited because he has defrauded the public
and has shown his face after five years to take votes."
{ · Counsel for Mohan Singh submitted that the expression
· "defrauded" is not a correct rendering into English
of the Hindi expression "dhoka diya"; it means
...
_)
r
"misled". The caption is followed by a photograph
of Mohan Singh together with his elect10n symbol
and it is stated that the ballot paper of Mohan Singh
is of pink colour and that the election symbol is the
picture of a lamp. It then proceeds to state that
"Sitamau constituency has awakened. Nahata (Bhanwarlal) has run away. Shinde, Kishen Gupta Patil
Patel, you may safeguard the interests of your Bhanwarlal Nahata as much as you like but his surety (security)
is sure to be forfeited." Then follow nine paragraphs
the third of which alone is material. That paragraph reads:
"We have heard that your friend has collected
28 thousand rupees from several villages in the
name of opium. The agriculturists did not get
the licenses and those agriculturists who got
them had to spend a lot of money and time and
the licenses for opium were received on execution
of bonds for 8 seers."
1963
Mohan Singh
v.
Bhan war/al
Shah J.
~1963
Mohan Singh
v.
Bhanwarla/
Shah J.
22
SUPREME COURT REPORTS
[1964]
The leaflet concludes by a note which reads:
"Every voter will get two ballot papers one is
of pink colour for Legislative Assembly for Thakur
Mohan Singh
.
.
.
Put the seal
on the symbols of lamp on both the ballots pink
and white. You read this pamphlet and give it to
your friends to spread the message from house to
house.
Submitted by Nahata Virodhi Morcha
Sitamau Constituency."
Annexure 'E' bears the caption: "The Bureaucrats of
yesterday-Congressmen of to-day". It consists of
two parts-the first relates to certain allegations
against one Dr. Raghubir Singh who it appears was
.,._
a candidate from the constituency for Parliament
and the second relates to Bhanwarlal. The portion
dealing with Bhanwarlal Nahata states:
"Let Sriman Shri 1008 of Shri Nahata tell?
(1) Did you not defraud the agriculturists with
respect to the licences of opium?
(the other six questions are not relevant, and
need not be reproduced)
\.
Public has already decided and now it is not going •
to fall prey to your fraud and greed. On all sides
"the public has decided to put seal on lamp and
make it victorious. Therefore the congressmen
should not be misled while making propaganda.
·-
Submitted by Goswami Mahant Ratnagir."
It is said that the last paragraph is not correctly rendered into English: it merely stated, it is urged, that
the public have already known the truth and they
are not going to fall a prey to the misleading promises
and inducements etc. No authorised translation of
the two leaflets is furnished, but we will proceed to
ascertain the purport of the relevant parts of the two
leaflets as incorporated in the printed book, with the
modifications suggested by counsel for Mohan Singh.
.
Paragraph 3 of a1mexure 'D' as it stands rendered
..
into English is not very clear in its import. To a
person completely unacquainted with the local condition.s the expre~sion ."in ~he nani~ o\ opium" may,,
· convey no mearung. But Ill cons1dermg whether a
. ..-..,:
5 S.C.R.
SUPREME COURT REPORTS
23
-·1
r
publication amounts to a corrupt practice within
the meaning of s. 123( 4) the Tribunal would be entitled
to take into account matters of common knowledge
among the electorate and read the publication in that
background, for one of the ingredients of the particular
corrupt practice is the tendency of the statement in
the publication to be reasonably calculated to prejudice the prospects of that candidate's election. The
test in cases under s. 123( 4) is whether the imputation
beside being false in fact, is it published with the object
of lowering the candidate in the estimation of the
electorate and calculated to prejudice his prospects
at the election? And in ascertaining whether the
candidate is lowered in the estimation of the electorate,
the imputation made must be viewed in the light of
matters generally known to them.
It is common ground that in the territory which
forms the Sitamau constituency, licences for cultivation
of opium are granted by the authorities to agriculturists,
and the statement made in paragraph 3 apparently
is that Bhanwarlal had collected Rs. 28,000 from the
agriculturists in the constituency for securing licences
for cultivation of opium but the agriculturists did not
get the licences and even those who obtained the licences
had to spend considerable sums of money.
The
innuendo in the statement cannot be mistaken: it is
that a large amount of money was collected from agriculturists by Bhanwarlal on the representation that
he would obtain licences for opium cultivation, but
he did nothing in that behalf and misappropriated
the amount. That is further made clear by paragraph 1
in annexure 'E' relating to Bhanwarlal. The form
in which that allegation is made is in the interrogative
"form. By annexure 'E' certain questions were addressed to Bhanwarlal and one of the questions was whether
he had not defrauded the agriculturists with respect
to the licences of opium? The interrogative form
is often employed not with a view to secure information
but to make and emphasize an assertion. The use
of the interrogative form would not make the statement
any the less an imputation if it is fairly capable of being
'1963
·-
Mohan Singh
v.
Bhan war la/
Shah J.
1963
"Mohan Singh
.V•
Bhanwar/al
""-
Shah/.
24
SUPREME COURT "REPORTS
[1964] (:...
so read. As we have already observed the evidence
establishes that the leaflets annexures 'D' & 'E' were
published simultaneously and annexure 'D' contains
an allegation about the collection of Rs. 28,000
by Bhanwarlal Nahata "in the name of opium",
and in annexure 'E' an express imputation of defrauding
the agriculturists in the matter of licences for opium
cultivation is made.
On a reasonable reading of these two leaflets there
was no doubt that the person responsible for the publication of these two leaflets intended to convey that
Bhanwarlal had deceived the agriculturists into parting
with the sum of Rs. 28,000 on the representation
that licences for cultivation of opium would be obtained
for them. The two leaflets also clearly imply that
he misappropriated the fund collected by him. Bhanwarlal denied that he had utilised any fund collected
from the agriculturists for his own purposes. He
stated that some amounts of money were collected
from cultivators of opium by the District Congress
Committee, and receipts were given by the District
Congress Committee in respect of those collections
on behalf of the District Congress Committee. He
denied that he had misled the agriculturists or that
he had misappropriated any amount collected from
the agriculturists. He asserted that the amounts
collected from the agriculturists were for the District
Congress Committee, and did in fact go to that body.
The imputation is undoubtedly in relation to the personal conduct of Bhanwarlal, and if the testimony of
Bhanwarlal be accepted, the imputation must be
held to be false.
No attempt was made at the trial
to prove the truth of the imputations. Even in the
written statement filed by Mohan Singh it was not his
plea that the imputations against Bhanwarlal were ·
true or that he believed them to be true.
From the manner in which and the time when the
leaflets annexures 'D' and 'E' were published, there
can be no doubt that those leaflets were published as a
part of a political campaign to injure the prospects of
Bhanwarlal at the election, and if without making an
<
,
I _,.
5 S.C.R.
SUPREME COURT REPORTS
25
enquiry about the collection of the amount of Rs. 28,000
1963
and the destination thereof, it was imputed against
Bhanwarlal that he had defrauded the agriculturists Mohan Singh
and misappropriated the amount collected, the inv.
ference that the statement made was to the knowledge
Bhanwarlal
of the maker false or was not believed by him to be
true, would readily be made.
The imputation was
Shah J.
on the face of it one reasonably calculated to prejudice
the prospects of the candidate Bhanwarlal at the
election. The High Court was therefore right in
holding that the corrupt practice charged against
the appellant Mohan Singh under s. 123 (4) was
established.
The appeal fails and is dismissed with costs.
Appeal dismissed.
CORPORATION OF CALCUTTA
v.
CALCUTTA TRAMWAYS CO. LTD.
(P.B. GAJENDRAGADKAR, K.
SUBBA RAO,
K.N.
WANCHOO, J.C. SHAH AND RAGHUBAR DAYAL JJ.)
Constitution of India, Art. 19(1) (g) and (f}-Enactment making
1963
October 4
A
.I
opinion of Corporation conclusive and non-justiciable-If reasonable
restriction-Severability-Calcutta Municipal Act, 1951 (W.B.
Act 33 of 1951), s. 437(1) (b).
/
The respondent company got its supply of electricity from the
Calcutta Electric Supply Co., converted the same from alternate
current to direct current in its transformer house for running its
tram-cars. The appellant Corporation was of opinion that the
use of the premises as transformer house was dangerous to life,
health and property and was likely to cause a nuisance and asked
the respondent to take a licence under s. 437(1)(b) of the Calcutta
Municipal Act, 1951. The respondent refused to do so and was
therefore prosecuted under s. 537 of the Act. The trial Magistrate
held in favour of the appellant and convicted the respondent and
ientenced it to pay a fine of Rs. 100 only. The respondent moved