# NARBADA PRASAD v. CHHAGAN LAL AND ORS

- **Citation:** [1969] 1 S.C.R. 499
- **Court:** Supreme Court of India
- **Decided:** 1968-07-30
- **Case number:** Civil Appeal No. 2 of 1968
- **Bench:** M. Hidayatullah, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/narbada-prasad-v-chhagan-lal-and-ors-4427
- **Pages:** 9

## Headnote

Representation of the People Act (43 of 1951), ss. 33(5), 116-i.4
and 123-Compliance with s. 33(5), what ls-Threatening voters that if
they voted for rival candidate they would be committing the •in of
gobatya-Jj election offence-Assessment of evidence by this Court und•r
s. 116A.
The election of the appellant to the Madhya
Pradesh Legislative
Assembly from Khategaon constitnency was challenged on two gronnds :
(I) That the nomination paper of one of the contesting candidates was
wrongly rejected by the Returning Officer; and ( 2) that there was a
violation of s. 123 of the Representation of the People Act, 1951, in that
the appellant and his election agent made speeches, wherein they stared,
that Congress had not abolished cow slaughter in India and that to vote
for the Congress thereforer was to commit the sin of gohatya. The trial
Judge of the High Court allowed ·the petition on both the grounds.
In appeal to this Court under s. 116-A the Act,
HELD : (I) The candidate whose nomination paper was
rejeeted
was not registered as a votelr in the Eleetoral Roll relating to Khategaon
eonstituency but to a different constituency. Under s. 33(5) of the Act,
he had to produoe before the Returning Officer at the time of serutiny,
a copy of the Eleetoral Roll of that constituency, or of the relevant part
thereof, or a certified copy of the relevant ent!ry in such Roll, or s_hould
have filed any of those documents earlier with his nomination paper. He
did not do any of these but instead, filed with his nomination paper a
certificate giving only a gist of an entry from the Electoral Roll of the
other constitnency, and that too from an officer who was not prOTed
to have the authority to issue a celrtified copy of the Electoral Roll. The
provisions of the section were thus not complied with and the Court bad
no power to dispense with the requirement.
Therefore, the rejection of
the nomination paper of the candidate, by the Returning Officer. was
justified and the trial Judge erred in holding that it was wrongly rejected
(501 F-H; 502 A-EJ
(2) By stating that if the voters voted fdr congress they would be
committing the sin of gohatya, the appellant and his agent attempted
to induce the voter8 to believe that they would become objects of divine
displeasure or spiritual censure and thus committed an election offence
under s. 123 of the Act. [506 G; 507 BJ
Since the witnesses who spoke about the $peeches were believed by
the trial Judge not on the probabilities of the case, but, on his observation
of thei'.r demeanour this Court would be slow to depart from the trial
Judge's assessment of the evidence.
According to that evidence. the
voters were reminded that they would be committing the sin of goluttya.
Since the cow is venerated in this Countcy and it is also beleved that
11ohatya is one of the car~inal sins, such a reminder would be equivalent
to reminding them that they would' be objects of divine displeasure of
ipiritual censure.
The case therefore fell within s. 123(2) (ii) and the
'500
SUPREME COURT REPORTS
[1969] I S.C.11.. .
trial Judge was right in holding that the election. of the returned candidate
~bould be set aside. (505 D-E; 506 HJ

## Text

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499
NARBADA PRASAD
v.
CHHAGAN LAL AND ORS.
July 30 1968
[M. HIDAYATULLAH, C.J., AND A. N. GROVER, J.]
Representation of the People Act (43 of 1951), ss. 33(5), 116-i.4
and 123-Compliance with s. 33(5), what ls-Threatening voters that if
they voted for rival candidate they would be committing the •in of
gobatya-Jj election offence-Assessment of evidence by this Court und•r
s. 116A.
The election of the appellant to the Madhya
Pradesh Legislative
Assembly from Khategaon constitnency was challenged on two gronnds :
(I) That the nomination paper of one of the contesting candidates was
wrongly rejected by the Returning Officer; and ( 2) that there was a
violation of s. 123 of the Representation of the People Act, 1951, in that
the appellant and his election agent made speeches, wherein they stared,
that Congress had not abolished cow slaughter in India and that to vote
for the Congress thereforer was to commit the sin of gohatya. The trial
Judge of the High Court allowed ·the petition on both the grounds.
In appeal to this Court under s. 116-A the Act,
HELD : (I) The candidate whose nomination paper was
rejeeted
was not registered as a votelr in the Eleetoral Roll relating to Khategaon
eonstituency but to a different constituency. Under s. 33(5) of the Act,
he had to produoe before the Returning Officer at the time of serutiny,
a copy of the Eleetoral Roll of that constituency, or of the relevant part
thereof, or a certified copy of the relevant ent!ry in such Roll, or s_hould
have filed any of those documents earlier with his nomination paper. He
did not do any of these but instead, filed with his nomination paper a
certificate giving only a gist of an entry from the Electoral Roll of the
other constitnency, and that too from an officer who was not prOTed
to have the authority to issue a celrtified copy of the Electoral Roll. The
provisions of the section were thus not complied with and the Court bad
no power to dispense with the requirement.
Therefore, the rejection of
the nomination paper of the candidate, by the Returning Officer. was
justified and the trial Judge erred in holding that it was wrongly rejected
(501 F-H; 502 A-EJ
(2) By stating that if the voters voted fdr congress they would be
committing the sin of gohatya, the appellant and his agent attempted
to induce the voter8 to believe that they would become objects of divine
displeasure or spiritual censure and thus committed an election offence
under s. 123 of the Act. [506 G; 507 BJ
Since the witnesses who spoke about the $peeches were believed by
the trial Judge not on the probabilities of the case, but, on his observation
of thei'.r demeanour this Court would be slow to depart from the trial
Judge's assessment of the evidence.
According to that evidence. the
voters were reminded that they would be committing the sin of goluttya.
Since the cow is venerated in this Countcy and it is also beleved that
11ohatya is one of the car~inal sins, such a reminder would be equivalent
to reminding them that they would' be objects of divine displeasure of
ipiritual censure.
The case therefore fell within s. 123(2) (ii) and the
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SUPREME COURT REPORTS
[1969] I S.C.11.. .
trial Judge was right in holding that the election. of the returned candidate
~bould be set aside. (505 D-E; 506 HJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2 of 1968.
Appeal under section 116-A of the Representation of the
People Act 1951 from the judgment and order dated November
30, 1967 of the Madhya Pradesh High Court, Indore Bench
in Election Petition No. 5 of 1967.
S. V. Gupte, R. K. Vijayavargiya and S. S. Khanduja, for
the appellant.
V. K. Sanghi, G. L. Sangh; and A. G. Ratnaparkhi, for mtpondent No. I.
The Judgment of the Court was delivered by
Hidayatullah, C. J.
This is an appeal against the judgment,
November 30, 1967, of a learned Single Judge of the High Court
of Madhya Pradesh at Indore setting aside the election of the appellant to the Khategaon Legislative Assembly Constituency No.
259.
The facts on which the petition was based and the judgment of the High Court has been rested, may now be stated.
At the last General Election to the Madhya Pradesh Legislative Assembly from the Khategaon Constituency there were five
contesting candidates. They were the appellant and respondents
2 to 5. The appellant received 9622 votes as against the second
respondent who obtained 8030 votes. The other contesting can-
-Oidatcs received fewer votes in comparison. The present election
petition was filed, not by any of the defeated candidates, but by
an elector to the Legislative Assembly Constituency. In the array
of the respondents in the High Court one Ram Kishen s/o Lakshmi
Narain Dcswali was also joined because his nomination paper was
rejected by the Returning Officer.
A point was made about this
rejection in tho High Court and we shall come to it in due course.
The election petition was based on two broad facts. The first
was that the nomination paper of Ram Kishen was wrongly ~
joctcd and the other fact comprised allegations of corrupt practices on the part of the returned candidate and his election agent.
These corrupt practices consisted of oral speeches connected with
the Manifesto of the Jan Sangh relating to cow slaughter in India.
During the course of the speeches, it was alleged the returned candidate. who belongs to the Jan Sangh and his election agent Ram
Niwas Somani made speeches at 19 villages in which they referred
to this election manifesto and claimed that the Congress had not
abolished cow slaui?hter in India and on the other hand was promoting it and that the Jan Sangh would stop cow slaughter. They
added to these statements. which might have been quite innocuous, two other statements, namely. that to vote for the Congress
was to commit the sin _of gohatya and that the Congress candidate
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NAIUIADA PRASAD v. CIUIAGAN LAL (Hidizyatullah, C.J.)
50 I
Shrimati Manjulabai herself ate beef.
There were other allegations regarding exhibition of posters which depicted the Congress
as a butcher intent upon slaughtering a cow.
This part of the
case however, was not accepted in the High Court and we need
not say anything about it. The petition therefore succeeded on
the two grounds which! we have mentioned, namely, that the nomination paper of Ram Kishen was wrongly rejected and that the
corrupt practice attn'buted to the Jan Sangh candidate and his election agent was established.
In this appeal we are only required to consider these two points
and we shall take them in the same order. In so far as the rejection of the nomination paper is concerned it may be pointed out
that Ram Kish en s/ o Lakshmi Narain Deswali was registered as
a voter, not in the Electoral Roll relating to Khategaon Tehsil but
in the Harda Tehsil.
Along with this nomination paper Ram
Kishen produced a certificate from the Tehsildar of Harda which
reads as follows :-
"I certify that there is an entry of the name of Ram
Kishan son of Laxmichand, village Dholgaon, at Anukaran No. Harda 217, Electoral roll of 1966, part of
Anukaran No. 177, District Hoshangabad, Tehsil Harda,
under the heading Ra-Ni-Ma, Serali, Serial No. 196,
House No. 91/2, with particulars Ramkishen Laxmi
Chand, male, aged 45 years.
16-1-1967
Sd/-
16-1-1967
Tehsildar, Harda."
He did not produce the kind of evidence which section 33(5) of
the Representation of the People Act, 1951, requires to be produced when a candidate is registered as a voter in some other
constituency.
Section 33(5) of the Representation of the People
Act requires that where the candidate is an elector of a different
constituency, a copy of the electoral roll of that constituency or
o~ th~ relevant part thereof or a certified copy of the relevant entries m such roll shaU, unless it has been filed along with the nomination paper, be produced before the returning officer at the time
of scrutiny. The nomination paper of Ram Kishen was filed on
February 20, 1967. The date of scrutiny was 21st of the same
month. Ram Kishen had two alternatives before him. One was
to produce any of the documents mentioned before the returning
officer or to have filed it earlier with his nomination paper. He
did neither. He produced a certificate from an officer who it is
not proved to our satisfaction had the authority to issue a certified
copy of the electoral roll. He also added an affidavit on his own
part in which the gist of the entry was given. Indeed the certi-
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SUPREME COURT REPORTS
(1969] I S.C.R.
ficate of the Tehsildar was based on the affidavit which was annexed to the certificate. There was no compliance with the provisions of s. 33(5) of the Representation of the People Act and there
was no power in the court to dispense with this requirement. It is
a well-understood rule of law that if a thing is to be done in a
particular manner it must be done in that manner or not at all
Other modes of compliance are excluded.
Even the certificate of
the Tehsildar was not a certified or a true copy of the entry. It
only gave the gist of the entry taken from the affidavit. It contains a mistake because the village "Dholgaon" is mentioned without the addition of the word 'Kalan'. It appears that there are two
villages, Dholgaon Kalan and Dholgaon Khurd. The entry in the
electoral roll clearly shows that it is Dhalgaon Kalan.
In other
words the certificate was inaccurate. The affidavit of Ram Kishen
was also inaccurate inasmuch as it described the house as No. 91
whereas in Electoral Roll the house is given the number 91 /2. We.
however, do not go by these small inaccuracies because :igain the
law is that which can be made certain is certain, but the fact is
clear that the requirements of s. 33(5) had to be and were not
complied with.
The rejection of the nomination paper of Ram
Kishen by the Returning Officer was thus justified. Ram Kishen
explained that he was running about trying to get the other evidence and indeed he did arrive at 5 p.m. having earlier sent a
telegram that he was coming with the required evidence. Unfortunately both the telegram and Ram Kishcn arrived after the rejection of the nomination paper and therefore the Returning Officer
could not recall what lie had ordered.
We arc satisfied that the
learned Single Judge erred in holding that the nomination paper
of Ram Kishen was wrongly rejected. It was rightly rejected.
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entitled to succeed, but there remains still the question of corrupt
practice.
A great deal of argument was addressed to us on this
subject and we were taken through the evidence of all the witnesses
who have deposed to the corrupt practice on the part of the returned candidate and hLs election agent. We are satisfied that the reading of this evidence by the learned Judge, although some times
strained, was clearly right and that the corrupt practice had been
brought home to the candidate and his election agent. Without
going too much into the details we shall scan that evidence once
again to show that this fact stood duly proved.
Out of the 19 villages at which speeches were made the learned
Judge selected two, for basing hLs conclusion and we shall therefore confine ourselves to evidence relating to those villages. They
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arc Khatcgaon and Kannod.
The speeches at Khategaon took
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place on the 11th and at Kannod on the 16th February. It appears
that February 11, was a day of many speeches.
Earlier in the
day the Congress held its own session to persuade the voters to
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NARBADA PRASAD v. CHHAGAN LAL (Hidayatul/ah, C.J.)
503
vote for that party. The Chief Minister (D. P. Misra) addressed
a gathering of about 2000 persons. The speeches made at that
meeting need not be referred to here because they do not bear
upon the present matter. The Jansangh then followed and held
its own meeting. Many spoke at that meeting including the returned candidate, Narbada Prasad who also goes under the name
of Kinkarji. The election petitioner examined in this connection
three witnesses and also examined himself.
These witnesses are
Rulchand (P.W. 2), Babula! (P.W. 7) & Chandragopal (P.W. 15).
The election petitioner is P.W. 17. It is argued by the learned
counsel for the appellant that the testimony of PWs. 2, 7 and 15
should not have been accepted because there were many discrepancies in the versions of these witnesses as to what was said at
the meeting. There are also some arguments regarding the credibility of each of these witnesses and we shall briefly refer to these
two points now.
P.W. 2 Balchand stated that he had not gone specifically to
the meeting but that the meeting. was thrust upon him.· He had
gone on the 11th to the house of an ailing relative and was with
him in the evening when the meeting took place.
This meeting
was held right opposite the residence of his relative and he was
therefore in a position to hear what was said. He did say that he
attended the meeting but he might well have being so close to it
although his explanation of how he happened to be there is acceptable. He stated that Kinkari was one of the speakers.
Kinkarji complained of the division of Kashmir and also that the
Congress 'had increased price level.' He stated further that to
bring Hindu Raj, the voters must not vote for Congress but cast
their votes for the Jansangh. He added :
"In the Congress Raj thousands of cows are cut every
day. To vote to Congress is to take on your heads the
sin of gohatya.
Manjula Bai the Congress candidate
herself eats cow-flesh. You should go away from here
after swearing to yourselves that you would not vote
congress and bring on yourself the sin of gohatya."
It is convenient to compare what the other two witnesses said in
this behalf P.W. Ts (Babula!) version was that Kinkarji "spoke
of Kashmir, Pakistan and said that 'the Congress-walas' did not
get sugar or grain for them". He concluded:
"The congress men get thousands of cows killed.
Manjula Bai Wagle who stands on the congress ticket
eat~ cow'~ flesh. It is necessary to bring the Hindu Raj
and so give vote to the deepak and make it victorious.
Yon better swear by the cow that you will not vote congress but vote Jan Sangh. If you do not vote Jan Sangh
you will be getting the sin of cow killing." .
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(1969] I S.C.R.
The version of P.W. 15 (Chandergopal) was to this effect.
When
he went there Kinkarji was speaking and said :
"The congress party is a hatyara party. It gets thousands of cows and bulls killed. The candidate who stands
against me in this election is Manjula Bai set ilp by the
congress and she cats cow's flesh.
I have been set up
by the Jansangh for bringing the Hindu Rajva. To
bring it please vote on my deepak mark."
·
. A point is made by the learned counsel fqr the appellant that
smce P .W. 15 does not speak of the sin of gohatya, we should
discount the evidence of the other two witnesses who have exaggerated the whole storv.
He also contends that even if the words
were used about the sin of gohatya we should not give too much
meaning to the word 'sin' which bears different shades of meanings and the strongest meaning need not necessarily be chosen.
He also contends that this speech, even if it is accepted from the
version of P.W.s 2 and 7 did not amount to the kind of coITUpt
practice which is made a ground for setting aside clectiom under
s. 123(2)(ii).
Whether we should believe the witnesses or not involves how
far we should enter into facts.
No doubt, an appeal before this
Court under section l l 6A is an appeal as of right and is open
both on facts and law; still the practice of the courts has uniformly
been to give the greatest assurance to the assessment of evidence
made by the Judge who hears the witnesses and watches their demeanour and judges of their credibility in the first instance.
In
an appeal the burden is on the appellant to prove how the judgment under appeal i.s wrong. To establish this he must do something more than merely ask for a re-assessment of the evidence.
He must show wherein the assessment has gone wrong.
Where
the court of first instance relies upon nrobabilities alone. the appclfatc court may be in as good position as the court of trail in
judging of the probabilities; but where the court of trial relies upon
its own sense of the credibility of a witness the appellate court
is certainly at a disadvantage, because it has not before it the- witness but the dead record of the deposition as recorded. If it was
a question only of the probabilities of the case, we would have
undoubtedly gone into the matter more closely.
The matter has
however been put before us strictly on the ground of credibility
of the witnesses and it is there we feel that the appellate court is
at a disadvanta_ge.
This has been laid down hoth by this Court
and the Privy Council in cases which arc quite familiar and need
not be quoted.
Applying these tests, we go once again into the submissions of
the learned counsel for the appellant to see how far he has been
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NARBADA PRASAD v. CHHAGAN LAL (Hidayatullah, C.J.)
505.
able to prove to our satisfaction that the apl?raisal of the e~dence
of these witnesses is such that we must re3ect the conclus10n of
the learned High Court Judge and substitute for it an'?ther conclusion. It is said about P.W. 2 (Balchand) that he clalIDed that he
was not interested in the Congress but P.W. 11 Parasram stated
that Balchand worked for the Congress.
Learned counsel submits that here at the very start we have a lie from the witness and·
we should not therefore believe him. He further comments that
P.W.2. (Balchand) did not attend the meeting that he only heard
what was being said at the meeting, that he was an unsummoned
witness and did not go to Manjula Bai but went to Chagan!al the
elector who had no connection with the election and thus has
shown considerable interest in the success of the election petition .
All these things were before the learned Judge who tried the
case. In spite of them he has chosen to draw an inference from
the testimony of these witnesses taken with the other material on
the record.
In this connection it is pertinent to point out that
the learned Judge referred to the evidence of Tiwari P.W. 10 and
Ramchandra Agrawal P.W. 13 (particularly the former) about
whom he said that he was considerably impressed by the way in
which he deposed and it appeared to him that that witness was
speaking the truth. Where there is evidence which the Judge considers truthful not on the probabilities of the case but becau~. the ·
Judge on his observation of the manner in which the witness deposed, the appellate Court should be slow to depart from the
conclusion of the trial Judge. In this case Kunjilal Tiwari P.W.
I 0 admitted that he was a member of the Jansangh. He further
said that he did not approve of the methods of the Jansangh in
making such speeches and had therefore come forward to depose
truthfully as to what had happened.
This witness no doubt spoke·
about Kannod but he lent assurance to the statements of P.W.2
(Balchand), P.W. 7 (Babula!) and P.W. 15 (Chandergopal) about
Khategaon.
The learned Judge although he examined the two
incidents separately, seemed to have viewed the entire propaganda of Kinkarji as integrated and has drawn the conclusion from
both aspects of the case taken together. Therefore the case comes
to this, that the witnesses who spoke about the speech at Khate--
gaon were not unanimous 1as to the version of the speech, but that
in OUT Op!Il!On JS not acircumstance of Vital importance, because
speeches were also made at Kannod in which the returned candidate made similar observation about the sin of gohatya.
The
witnesses here are P.W. 4.
(Narsingh Dass), P.W. 8 (MazharuI·
Haq) and P.W. 10 (K. L. Tiwari). We shall now refer to what
they stated. P.W 4 (Narsingh Das) stated that on February 16,
1967 there was a meeting in his village in front of Ramniwas
Somani's house.
This Somani was the election agent of the returned candidate.
At this meeting both Somani arid Kinkarji
spoke. When he went there Kinkarji was speaking. This is the.
version which he gave of the speech.
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"The congress gets cows killed sctyou should not vote
for congress, but you should put your stamp on the
dccpak our emblem. If you still vote for Congress you
shall get the sin of killing a cow."
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P.W. 8 (M. azharul Haq) also said that Kinkarji recited some slokas
and when he came to the end of the speech he said :
"Congress gets cows killed. The congress candidate
Manjula Bai Wagle cats cow's flesh.
We have to bring
Hindu Raj; put the seal on the dcepak mark."
P.W. I O's (Kunji Lal Tiwari) version was that Kinkarji said that
the Congress was getting the cows killed. Manjula Bai should not
be given any votes. If she was voted for there would be a sin.
He also spoke that the congressmen were doing blackmarketing.
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It thus appears that at Kannod also there was a repetition of
the same kind of speech which the other witnesses stated had been
made at Khategaon. The question is do we believe these witnesses
or not ? In our judgment there is ample evidence in this case that
there was a reference to cow slaughter and the campaign of the
Jan Sangh that cow slaughter should be abolished in India. One
cannot say that it is wrong to make such a propaganda. It would
be perfectly legitimate for any party to promise that if it came
into power it would abolish cow slaughter. That is not the gravamen of the charge.
The gravamen of the charge is that it was
added that if the voters voted for the Congress candidate, they
would be guilty of the sin of gohatya and here the law of election
steps in.
Section 123 provides that it is an election offence of
undue influence, that is to say, any direct or indirect interference
or attempt to interfere on the part of the candidate or his agent
or of any other person with the consent of the candidate or his
election agent with the free exercise of any electoral right when
any such person, as is referred to therein, induces or attempts to
induce a candidate or an elector to believe that he or any person
in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure.
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The question is whether in stating that if they voted for the
Congress or a Congress candidate, they would be committing the
sin of gohatya amounted to an attempt to induce the voters to
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believe that they would become or would be rendered an obiect
of divine displeasure or spiritual censure. In our opinion a statement of this kind falls within this provision of the section. It is
not necessary to enlarge upon the fact that cow is venerated in
our country by the vast majority of the people and that they believe not only in its utility but its holiness. It is also beheved t~at
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one of the cardinal sins is that of goltatya. Therefore it is quite
obviou.s that to remind the voters that they would be committing
the sin of gohatya would .be to remind them that they would be
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objects of divine displeasure or spiiitual censun.\ Kinkarji went
beyond the permitted limits of canvassing and exhortation when
he added to the legitimate manifesto of his party this observation
that by voting for the congress or the congress candidate the voters
would be objects of divine displeasure or spiritual censure.
In
our opinion both spiritual censure and divine displeasure are implicit in the speeches as made.
The case, therefore, falls clearly
within s. 123 (2) (ii) of the Representation of the People Act,
1951.
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It will be encumbering this judgment if we record the incidents
which relate to the election agent, except to say that the election
agent Somani made similar speeches and the fact has been well
established by reliable evidence. We are accordingly satisfied that
the returned candidate was guilty of corrupt practice and the High
Court was right in holding that the election of the returned candidate should be avoided,
We may point out that there was a further statement that the
congress candidate Manjula Bai ate beef.
Manju]a Bai did not
appear in the witness-box to deny this. In fact she showed little
interest in the election petition and is reported to have left the
matter to the elector who filed this petition. No one on her behalf
appeared to deny this fact and therefore we leave the matter there.
We do not express any opinion that any corrupt practice in relation to that statement was committed either in fact or in law.
In the result the appeal must fail. It will be dismissed with
costs.
V.P.E.
Appeal dismissed.