# Sri Sntya .1Va1ain Sill th v. Dist1ict Enginr:<r, P. W.D. Mudholkar J

- **Citation:** [1962] Supp. 3 S.C.R. 114
- **Court:** Supreme Court of India
- **Decided:** 1960-08-02
- **Case number:** Civil Appeal No. 280 of 1961
- **Bench:** P. B. Ga.Jj·::>Drac:Adkau, A. K. SARKAU e.ncl IC N. \VANCHOO
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sri-sntya-1va1ain-sill-th-v-dist1ict-enginr-r-p-w-d-mudholkar-j-2360
- **Pages:** 13

## Headnote

Elccfion~--Corn~pf Praclicr-Faf.i;e statement in relatt'on to
7ir.u;o11al 1;/ir1ractcr ()Y r:onducl of canitidaU-StaU.nient alleging
]Htrr},osing of i·of-es-lj tf'dales to pi.rsonal charactr:r-Rcpres~nla
rion of II« l'eop!c Act, 1951 ( 4:J of Jli:jl), "· 123 (4).
Respondent I was declared rlected to the Legislative
Asscrnbly.
llis election \\'as challenged, inter a./ia, on the
ground that he had committed the rorrupt practice under
s. 123 (4~ of the Rep"sentation af People Act, 1951 of making
false statements in relation to the
personal character ·or
conduct uf H.espo11dent 2, a defeated candidate. The staterrcnts "·ere rontained in a pamphlet issued by the agent of
Respondent I ,,·ith his consent.
Among
other statements
the patnphlct contained a false statement that the Respondent 2 \\'as ''purchasrr of the cpponents of the Congress hy
rncans of moneyn.
Respondent I cont,nded that the staten1ent related to the public: or political character of Respondent 2 an<l not to his private character and did not fall
within the mischief of s. 123 (4).
!If-Id,
that the statement
r~lated to the
personal
character of l{t"spondent 2 and Respondent 1 "'"·as guilty of
thr. corrupt practice under s. 123 (4) of the Ar.t. The offending staternent amounted to an allegation that Respondent 2
bought the votes of the opponents of the Congrc~s by offering bribes.
Bribery \Vas itself a corrupt practice and an
allegation of bribery involved moral t11rpitude anrl·clearly
and
unfquivocally
affected
the
private
character of
Respondent 2.
3 S.C.R.
SUPREME COURT REPORTS 115
CrVIL APPELLATE JURISDICTION: Civil Appeal
No. 280 of 1961.
Appeal by special le!llle from the judgment
and order dated August 2, 1960, of the Rajasthan
High Court in D. E. Civil Misc. (Election) Appeal
No. I of 1960.
G. 8. Pathak, A. V. Viswanatha 8astri, 8. N.
Andley and P. L. Vohra, for the appellant. ·
G. C. Mathur, for the respondent No. 2.
1962. February 8. The Judgment of the Court
was delivered by
GAJENDRAGADKAR, J.-This appeal by special
leave arises out of an election petition filed by the
appellant challenging the validity of the eleotion of
respondent No. J, Lal Singh on several grounds.
The ·appellant is an elector in the Chittorgarh
Constituency and the election which led to the
present petition was held in March. 1957, for the
Rajasthan Legislative
Assembly
from the said
constituency. As a result of the election, respondent No. 1 was declared to have been duly elected
on the 11th March, 1957. He secured 7272 votes
whereas respondent No. 2 Laxman Singh
s/o
Maharawal Sir Bijey Singh secured 7261 votes and
respondent No. 3 Chhogalal secured 569 votes.
The appellant's cqse was that respondent No. l's
election was invalid inasmuch as he had practised
corrupt practices at the said election. According to
the appellant, respondent No. l procured or abetted or attempted to 'procure either by himself or by
his agents or by other persons with his connivance
or that of his agents the reception of invalid votes
and .as a result of the said votes, the result of the
Election had been materially affected. The appellant stated in detail the manner in which the said
invalid votes had been procured. The appellant
further pleaded that respondent No. l, his agents
and other· persons with the connivance of respondent No. I or that of his agents published such
' 1861
/ndtr Lal
v.
Lal Singh
1962
lndv L•l
Y.
Lal Sinih
Go;ir1dragarllr.ar J.
116 SUPRE::\fE COURT REPORTS [1962) SUPP.
stR.tements of facts (Exts. 3 & 6) which were false
nnd which thev either bolieved to be false or did
not believe . to ··be true, in rrlation to the personal
character or conduct of' respondent Xo. :! whirh
were likely to prejudice tho prospect of respondent
Ko. 2 at the election. It is on thrse two grounds
that the appellant claimed a declaration that the
election of respondent ;\o. l was im-.ilid.
He also
claimed that reRpondent No. 2 should be declared to
have bl'cn validly elected.
ReRpondent No. 2 filed his written

## Text

1962
Sri Sntya .1Va1ain
Sill th
v.
Dist1ict Enginr:<r,
P. W.D.
Mudholkar J,
1962
Ftbruary fl.
•
114 SUPRE:IIE COURT REPORTS [.962] St.:I P.
crossing of the' Roadways buses over t.he ferry
betwe<'n l\farch 16, 191">4, and the dnto on which the
licence in favour of the appellant expired.
•
The costs of the appellant here and in the
High Court will lrn borne by the r•,8pondents.
Appeal allou:ed.
IXDER LAL
v.
LAL SINGH
(P. B. GA.JJ·::>DRAC:ADKAU, A. K. SARKAU e.ncl
IC N. \VANCHOO, JJ.)
Elccfion~--Corn~pf Praclicr-Faf.i;e statement in relatt'on to
7ir.u;o11al 1;/ir1ractcr ()Y r:onducl of canitidaU-StaU.nient alleging
]Htrr},osing of i·of-es-lj tf'dales to pi.rsonal charactr:r-Rcpres~nla
rion of II« l'eop!c Act, 1951 ( 4:J of Jli:jl), "· 123 (4).
Respondent I was declared rlected to the Legislative
Asscrnbly.
llis election \\'as challenged, inter a./ia, on the
ground that he had committed the rorrupt practice under
s. 123 (4~ of the Rep"sentation af People Act, 1951 of making
false statements in relation to the
personal character ·or
conduct uf H.espo11dent 2, a defeated candidate. The staterrcnts "·ere rontained in a pamphlet issued by the agent of
Respondent I ,,·ith his consent.
Among
other statements
the patnphlct contained a false statement that the Respondent 2 \\'as ''purchasrr of the cpponents of the Congress hy
rncans of moneyn.
Respondent I cont,nded that the staten1ent related to the public: or political character of Respondent 2 an<l not to his private character and did not fall
within the mischief of s. 123 (4).
!If-Id,
that the statement
r~lated to the
personal
character of l{t"spondent 2 and Respondent 1 "'"·as guilty of
thr. corrupt practice under s. 123 (4) of the Ar.t. The offending staternent amounted to an allegation that Respondent 2
bought the votes of the opponents of the Congrc~s by offering bribes.
Bribery \Vas itself a corrupt practice and an
allegation of bribery involved moral t11rpitude anrl·clearly
and
unfquivocally
affected
the
private
character of
Respondent 2.
3 S.C.R.
SUPREME COURT REPORTS 115
CrVIL APPELLATE JURISDICTION: Civil Appeal
No. 280 of 1961.
Appeal by special le!llle from the judgment
and order dated August 2, 1960, of the Rajasthan
High Court in D. E. Civil Misc. (Election) Appeal
No. I of 1960.
G. 8. Pathak, A. V. Viswanatha 8astri, 8. N.
Andley and P. L. Vohra, for the appellant. ·
G. C. Mathur, for the respondent No. 2.
1962. February 8. The Judgment of the Court
was delivered by
GAJENDRAGADKAR, J.-This appeal by special
leave arises out of an election petition filed by the
appellant challenging the validity of the eleotion of
respondent No. J, Lal Singh on several grounds.
The ·appellant is an elector in the Chittorgarh
Constituency and the election which led to the
present petition was held in March. 1957, for the
Rajasthan Legislative
Assembly
from the said
constituency. As a result of the election, respondent No. 1 was declared to have been duly elected
on the 11th March, 1957. He secured 7272 votes
whereas respondent No. 2 Laxman Singh
s/o
Maharawal Sir Bijey Singh secured 7261 votes and
respondent No. 3 Chhogalal secured 569 votes.
The appellant's cqse was that respondent No. l's
election was invalid inasmuch as he had practised
corrupt practices at the said election. According to
the appellant, respondent No. l procured or abetted or attempted to 'procure either by himself or by
his agents or by other persons with his connivance
or that of his agents the reception of invalid votes
and .as a result of the said votes, the result of the
Election had been materially affected. The appellant stated in detail the manner in which the said
invalid votes had been procured. The appellant
further pleaded that respondent No. l, his agents
and other· persons with the connivance of respondent No. I or that of his agents published such
' 1861
/ndtr Lal
v.
Lal Singh
1962
lndv L•l
Y.
Lal Sinih
Go;ir1dragarllr.ar J.
116 SUPRE::\fE COURT REPORTS [1962) SUPP.
stR.tements of facts (Exts. 3 & 6) which were false
nnd which thev either bolieved to be false or did
not believe . to ··be true, in rrlation to the personal
character or conduct of' respondent Xo. :! whirh
were likely to prejudice tho prospect of respondent
Ko. 2 at the election. It is on thrse two grounds
that the appellant claimed a declaration that the
election of respondent ;\o. l was im-.ilid.
He also
claimed that reRpondent No. 2 should be declared to
have bl'cn validly elected.
ReRpondent No. 2 filed his written statement
supporting the petition but he did not appear before
the Tribunal at the hearing. RcRpondent No. 3 did
not appear at all, while respor.dPnt No. I denied all
the allegations made by the appt>llantand contended
that the election petition filed by the appellant
should he dismissed.
On the pleadings of th<' parties, the Election
Tribunal framed as many as ~(j i~snt>s. In substance
it held that the scvcrnl al!Pgations made by the
appellant in respect. of the rccPipt of invalid votes
had not been proved and so the first ground on
which r<'spondent No. l's election was challenged by
appellant, could not succeed.
In regard to the
second ground on which rrspondcnt Xo. l 'H election
was challenged by the appellant, the Tribu1rnl held
that Ext. 3 had hecn published by the ageut of
rcspo11dent No. I bnt; not with his expreRs consent
and in regard to Ext. 6, the Tribunal was not
Ratisfied that it hacl been published by respondent
~o. l's agent.
Th:tt. is how even tho second grounrl
made by the appellant disputing the Yalidity of
respondent No. J's election did not sncc<'<'<L
In
the rPsult, the clt'ction petition was dismisHe<l.
Against the Haid decision, the ap]H•llant preferred an appeal in the RajaHthan High Court. Tho
High Court confirmed the finding of the Tribunal
on the first point in reg;ird t.o the receipt of invalid
votes. It is true that tho High Court wa~ not
•
3 S.C.R.
SUPREME COURT REPORTS
117
satisfied with the approach adopted by the Tribunal
in dealing with this part of the oase and it thought
that some of the reasons given by the Tribunal
in support of its conclusions were not satisfactory.
1962
lnder Lal
v.
Lal Singh
Even so, the High Court felt that the final concluGajendragadkar J,
sion of the Tribunal was, on the whole, correct and
need not be reversed. Thus both the Tribunal and
the High Court have recorded findings against the
appellant 0n the first part of his case.
In regard to the second contention raised by
the appellant, the High Court has accepted the
finding of the Tribunal about the publication of
Ext. 3. In regard to the other document-Ext, 6,
the High Court has reversed the conclusion of the
Tribunal and held that the said document had been
published for the benefit of respondent No. 1 and
differing from the view taken by the Tribunal, the
High Court has held that the publication. of both
the pamphlets was with consent of respondent No. 1
and so was outside the purview of s. 100(2) of the
Representation of the People Act 1951 (43 of 1951)
(hereinafter called the Act). H •:wing thus found
that the two pamphlets had been published by the
agent of respondent No. l and with his consent, the
High Court proceded to examine the question as to
whether the material allegations made
against
respondent No. ·2 by the said pamphlets were true
or false.
The High Court held
that the said
material allegations were false and it came to
the conclusion that they were calculated to effect
prejudicially the prospects of the election of
respondent No. 2.
The High Court was, however,
not satisfied that the said allegations had relation
to the personal character or conduct of respondent
No. 2 and so it held that the corrupt practice alleged by the appellant against respondent No. 2 on the
strength of the said two pamphlets under s. 123(4)
of the act had not been proved. The result was that
though the High Court differed from the Election
Tribunal in regard to some of the findings recordecl
1962
•.
Lol Singh
118 SUPREME COURT REPORTS [1962] SUl'l>,
by the Tribunal on the second ground it;; ultimate
conclusion was the" same as that orthe Tribunal.
Tho appeal preferred by the appellant was accordingly dismissed. lt is against this order that the
appellant has come to this Court
by Special
leave.
In thi• appeal, the only question which we aru
called upon to consider is whether
the two
pamphlets justify tho wntention of the appellant
that respondent No. 1 has committed a corrupt
practice under s. 153( 4). The question a.s to whether
respondent Nu. l's election has been materially assisted by the receipt of invalid votes, is concluded by
concurrent fiudiug of fact recordod against the
appellant and su we have not allowed Mr. Sastri
to dispute the correctness of that finding .
. Before dealing with the short point raised for
our decision under s. 123(4) of the Act, it is
necessary to sot out the material portion of the
pamphlets on which the appellant's case uf currupt
practice is based. The relevant portion in the
pamphlet Ext, 3 to which objection is ta.ken by
the appellant reads thus :-
"(1)
Enemy of Democracy?
(2)
Agent of th:i foreigners strangling the
freedom of Bharat?
(3) Supporter and collaborator of the
conspiracy of Pakistani
attack on
Bharat?
(4)
Bringer of tyrannical rule of Rajas in
Rajastha.n?
(5) Destroyer of Hindu 2\Iuslim unity by
raising tho slogan of Ham llajya.?
(6) Purchaser of the opponents of tho
Congress by means of Money?
3 S.C.R.
SUPREME COURT REPORTS
119
"Maharawal of Dungarpur, Shri Laxman
Singh, who was defeated in the last election
by thousands of votes, has come to mislead
the people of Chittor, has come to push
back the backward district of Chittor by 100
years, has come to destroy the peace and
tranquillity of Chittor under cover of communal organisation,
has come to provide
means to the public to spend their hard
earned money on drinking orgies, has come to
intensify again the tynmny of Raja Maha.rajas
in Rajasthan, has come to make a gift of
Kashmir to the
aggressor Pakistan, has
come to enslave India again by collaborating with Pakistan and Pakistan's friends.
He is a friend of Raja Maharajas and an
enemy of cultivators and labourers. He wants
to grant la,nd to Bhoosw<tmis and thereby
oust the cultivators and wants to establish
once more his pa.gent by exploitation of the
hard labour of cultivators,"
The other pamphlet contains substantially the same
portion and so it need not be reproduced.
It is urged for thii appellant that in describing
respondent No. 2 as the agent of foreigners strangling the freedom· of Bharat, the personal character of
respondent No. 2 has been falsely and adversely
criticised. The same comment is made in respect
of the description of respondent No. 2 as the
supporter and collaborator of the conspiracy of
Pakistani attack on Bharat and in support of this
argument, reliance has been placed on the further
statement in the pamphlet that respondent No. 2
had come to make a gift of Kashmir to the aggressor Pakistan and had come to enslave India by
collaborating with Pakistan and Pakistan's friends.
It is also argued that describing respondent No. 2
as the purchaser of the opponents of the Congress
by means of money, attracts the provisions of 123
( 4). It is mainly on these three allegations in the
J96Z
InderSingh
v.
Lal Singh
Gajendragadkar J.
1!162
Jndu 5;,igh
v.
Lal Singh
Gqjtn-iragodhar J.
120 SUPH.EME COURT REPORTS (1962) SUPP.
pamphlet that the case of the appellant rests and
tho argument is that by making theso allegations,
tho private character of respondent :N'o. :! has been
falsely vilified and that tho said vilification was
reasona1Jly calculated to prejudice the prospects of
his election.
On the other hand, for respondent No. I .\-Ir.
:lfathur who appcarnd u.m-icus curu.ie at our request
has contended that :ill the thrne allegations, though
false, cannot he said to touch or effect the private
character of respondent No. 2.
He has argued that
in dealing with s. l:.!3 (4), it is neceBSary to make
a distinction between the personal or private
oharaeter or conduct of a candidate and his public
or political character. :\Ir. llfathur's contcntibn is
that though the criticism made again~t respondent
No. 2 by tho impugned pamphlet may be extravagant, uuroasonablc and false, >it is nevertheless
criticism made against him in his public and politi·
cal character and as such, a. 123 (4) cannot be
invoked.
It is, therefore, necessary to determine the
true scope and effect of the relevant provision in
s. 123 (4). Section 123 dea!s with corrupt praoticea
and amongst them, is the corrupt practice specified
by sub-section (4). That sub.section roads thus :-
"The publication by 0: candidate or his
agent or by any other1person, of any statement
of fact which is false, and which he either
believes to bo false or docs not believe to be
true, in relation to tho personal character or
conduct of any candidate, or in relation to
tho candidature, or withdrawal, or retirement from contest, of any candidate, being a.
statement reasonably calculated to prejudice
the prospects of that candidate's election."
It would thus be aeon that the publication in
question must be by a candidate or his agent or by
any other person ; the said publication should be
-
3 S.C.R.
SUPREME' COURT REPORTS 121
in regard to a statement of fact which is false and
which he either believes to be false or does not
believe to be true ; that it must have relation to
the personal character or conduct of the candidate,
or should have relation to the candidature, withdrawal
or retirement from contest of any candidate and
that it should be a·statement reasonably calculated to
prejudice the prospects of that candidate's election.
All the requirements of this sub-section, except one,
are held to· have been satisfied by the High Court.
The only requirement of the sub-section which has
not been satisfied according to the High Court is
that the statement has no relation to the personal
character or conduct of respondent ·No. 2. Mr.
Sastri contends that this finding of the High Court
is erroneous in law.
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.
The provision postulates
that if a false statement is made in 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.
This assumption is presumably
based on the theory that the electorate being
politically educated and mature, would not be
deceived by a false criticism against the public or
political character of any candidate.
The public
and political character of a candidate is open to
public view and public criticism and even if any
false statements are made about the political viewa
of a candidate or his public conduct or character,
the electorate would be able to judge the allegations
on the merits and may not be misled by any false
allegations. in that behalf. It is on this theory that
false statements of fact effecting the public or
political character of a candidate are not brought
1962
Inder Lal
v.
Lal Singh
Gajendragadk'lr J.
J9G2
Jr,dn Lal
v.
Lal Si1:9h
G•jtndro1:adkdr J.
122 SUPRE~IE COUHT REPORTS [!DG5J Sl'PP.
within the mischief of ss. 123(4). In order that tho
elections should be free, it is necessary that tho
electorate should be educated on political i&mcs in
a fearless manner and so, the Legislature thought
that full and ample scope should bo left for free
and fcarloss criticism by candidates against tho
public and political character of their opponents.
But the position with regard to the private or
persona.I character of the candidate is very different.
Circulation of false statements about tho private or.
personal character of the candidate during tho
period preceding elections is likely to work against
tho freedom of election itself inasmuch as the effect
created by false statements cannot be met by denials
in proper time and so tho Constituency h<l<!
t,o be
protected against tho circulation of such false
statements which are likely to effect tho voting of the
electors. That is why it is for the protection of the
constituency against acts which would be fatal to
the freedom of election that tho statute provides
for the inclusion of the circulation of false statements concerning tho private character of a. candidate amongst corrupt practices. Dissemination of
false statements about the personal character of a
candidate thus constitutes a corrupt practice.
Though it is clear that tho statute wants to
make a broad distinction between public and political character on the one hand and private character
on the other, it is obvious that a sharp and clear-cut
dividing lino cannot be drawn to distinguish the
one from the other. In discussing the distinction
between the private cha.racter and the public
character, sometimes reference is made to the "~an
beneath the politician" and it iH said that 1f a
statement of fact e.ffcc:ts the man beneath the
politician it touches private character a:nd .if it
affects the politician. It does not touch his private
- character. There may be some false statements of
fact which clearly affect the private character of
...
3 S.C.R. SUPREME COURT REPORTS
123
the candidate ; if, for instance, it is said that the
C'Jtrididate is a cheat or murderer there can be no
doubt that the statement is in regard to his private
character and conduct and so if the statement is
shown to be false, it would undoubtedly be. a
corrupt practice. Similarly, if the economic policy
of the party to which the candidate belongs or its
political idealogy is falsely criticised and in strong
words it is suggested that the said poliqy and idea.
logy would cause .the ruin of . the country, that
clearly would be criticism, though false, against the
public character of the candidate and his political
party and as such, it would be outside the purview .
of the statute. But there may be oases on the
border-line where the false statement may affect
both the politician and the man beneath the politician and it is precisely in dealing with cases on the
border-line that difficulties are experienced in determining whether the impugned false statement constitutes a corrupt practice or not. If, for instance, it
is said that in his public life, the candidate has
utilised his position for the selfish purpose of secur·
ing jobs for his relations, it may be argued that it is
criticism against the candidate in his public character
and it may also be suggested that it nevertheless
affects his private character. Therefore, it is clear·
that in dealing with corrupt practices alleged under
s. 123( 4) where we are concerned with border-line
cases, we will have to draw a working line to distinguish private character from public character and
it may also have to be borne in mind that in some
cases, the false statement may affect both the private
and the public character as well.
.
In the present case, we are satisfied that the
allegation made in the pamphlet that respondent
No. 2 is a purchaser of the opponents of the Congress by means of money clearly attracts the
1962
[nder Lal
v.
Lal Singh
Ga;'u1dragadkar ./.
lllft
/11der J.,al
v.
l~al ,'•lin:J'i
CajcndragadJ;a1 J,
'
124 SCPREllIE COCRT REPORTS [19132] SUPP.
provisions of ss. 123(4). In plain terms, the statement amounts to an allegation that respondent
:N'o. 2 buys by offering bribes the votes of the
opponents of tho Congress.
Bribery is itself a
a corrupt practice and if it iH saicl ag:~inst a candidate that the practices the corrnpt practice of
buying the votes of the opponents of the Congress
by means of bribery, that clearly and unequivocally
affects his private chnracter. Olfei·ing a bribe in
an election introduces an element of moral turpitude and it cannot be denied that a person who
offers bribe loses reputation as an individual in the
eyes of the public. The statement alleges that the
bribes are offered by respondent No. 2 for the purpose of election and in that sense it may be that it
is his public character which is falsely criticised.
But, in our opinion, it would be idle to oontend
that it is a false statement only against the public
character of respondent :N'o. 2.
Having regard to
the moral turpitude involved in tho offering of tho
bribe, the statement in question
undoubtedly
af(ects his private character as woll. Unfortunately,
in dealing with this point, the High Court dotlS not
appear to have considcr~d this statement at all.
It has dealt with this problem in vory genera.I term~.
It has obsorved that tho impugned statements all
refer to the Maharawal as one of thoso various
persons of his class who as a body appear to be
responsible in the opinion of the writer for tho
political mischiefs referred to in the statements,
and that a general reading of the document shows
that the attack upon him is a part of a bigger
organisation of individuals who do not appear to
be as the writer thinks, well inclined towards the
progross of the country.
I.tis perfectly. trne that
in dealin" with the contont1on that the false statement co~tained in tho pamphlet amounts to a
corrupt practice under ss. 12314), it .is Bccessa.ry. to
read the document as a whole before determmmg
the effect of any particular objectionable statement.
-
i i
...
3 S.C.R. SUPREME COURT REPORTS
125
But reading the document as a whole, we see no
justification whatever for the view expressed by the
High Court that the criticism made in the document
is directed against a body of persons and not
against respond<'nt No. 2 himself.
The failure of
the High Court to deal with the. several specific
statements on which the argument of the appellant
is based, has introduced a serious infirmity in its
final conclusion. If only the High Court had considered whether the allegation that respondent
No. 2 was the purchaser of opponents of the Congress by me11ns of money, we are inclined to think
that the High Court would not have brushed aside
the appellant's case with the general observations
which it has made in its judgment. We are, therefore, satisfied that the appellant is right in contending that the false statement of fact to which we
have just referred constitutes a corrupt practice
under ss. 123(4) of the Act.
In that view of the
matier, it is unnecessary to consider whether the
other impugned statements of fact also attract the
provisions of ss. 123( 4).
In the result, we must reverse the finding of
the High Court that publication of the impugned
pamphlets does not constitute a corrupt practice
under ss.
1~3(4).
The result of this conrlnsion
inevitably is that the election of responncnt No. 1
must be declared to be invalid because there is no
doubt that the corrupt practioe proved in this
case
falls under section l OJ(b) and is outside
the purview of section 100(2).
That takes to us the question as to whether
respondent No. 2 can be declared to have been
validly elected at the election in question.
This
question will have to be necided in the light of
provisions of section lOl(b) of the Aot.
The said
section provides. inter alia, that "if any person who
has lodged a petition ha8, in addition to callincr in
question the election of the returned candidate,
1961
lnder Lal
v.
Lal Singh
Gajendragadkm J,
1962
(ntftr Lal
v.
Lal Singh
126 SUPREME COURT REPORTS [1962] SCPP.
claimed a declaration that any other candidate ha.a
been duly elected and the Tribunal is of opinion
that but for the votes obtained by such returned
candidate by corrupt practices such other candidate
would have obtained a majority of thu valid votes,
the Tribunal shall after declaring the election of
the returned candidate to he void declare such
other candidate to have been duly elected." This
question has not been considered by the High Court
and it cannot be de<'ided unless the relevant fact.a
arc examined on the merits and that normally
would mean our reman11ing the case to the High
Court for the decision of the point in acco1·dance
wit.h law. We do not, however, propose to adopt
such a course in view of the fact that it would be
futile to give a11y further least' of life to this
petition. The election which is challenged took
place in 195i and in fact we are now on the verge of
fresh elections which would take place this month.
That is why wo think it would serve no purp·osf
in sending the matter bark for the decision of the
question as to whether on the evidence adduned in
thn case, respondent No. 2 can be declared to have
been validly elected.
The result iH, the a ppPal is allowed and the
el~otion of r.~Hpondent No. I is set aside.
Since
respondent ~o. I did nut appear, there would be no
order as to costs.
Appml allowed.
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