Chaturvedi, J.:— This is an appeal under Sec. 116A of the Representation of the People Act, Act No. 43 of 1951, as amended by Act No. 27 of 1956. It will be called hereinafter the Act.
2. The appeal arises out of an election held for electing a member to the U.P Legislative Assembly from Constituency No. 24 known as Thanabhawan constituency of Muzaffarnagar district, in the State of U.P There were only two contesting candidates at the election, namely, the appellant Sri Ghayur Ali Khan and the respondent Sri Keshav Gupta. The appellant belonged to the Praja Socialist Party and the respondent to the Congress party. There was thus a straight contest between the candidates set up by the two parties. The polling took place on the 6th March, 1957 and the counting of votes took place on the next day, when the appellant was held to have secured 25933 votes and the respondent 25258 votes. The appellant was accordingly declared to have been duly elected as a member of the U.P Legislative Assembly from the above constituency. The respondent then submitted an election petition to the Election Commission, which was, in due course, forwarded to the District Judge of Muzaffarnagar, Sri Mahesh Chandra who was constituted as the Election Tribunal for disposal of this election petition. The Election Tribunal, on receipt of the petition, issued notice to the parties, and proceeded to try the election petition. As a result of the pleadings of the parties, it framed 16 issues. The parties led evidence before it, but at the time of the argument it appears that the learned counsel for the respondent did not press issues nos. 6, 10, 13 and 14 before the Election Tribunal. The Tribunal accordingly decided only the rest of the issues, deciding issues nos. 1, 2 and 5 in favour of the respondent and the rest against him. Issue no. 1 raised the question of an appeal on the ground of religion and community to the electorate, and issues nos. 2 and 5 related to the exercise of undue influence by the appellant. The decision on issue nos. 1, 2 and 5 being in favour of the respondent, it allowed the election petition and declared the election of the appellant as void. The appellant has accordingly filed the present appeal against the decision of the Election Tribunal. The learned counsel for the appellant challenged the correctness of the decision recorded against him on issues nos. 1, 2 and 5. The learned counsel for the respondent tried to support the decision of the Tribunal on the above issues, and further urged that the decision of the Tribunal against him with respect to issues nos. 3, 4 and 15 was incorrect and the election petition should have been allowed on the further grounds giving rise to the said issues. He had not challenged the correctness of the decision of the Tribunal on issues nos. 7, 8, 9, 11 and 12. We have thus to see whether the decision of the Election Tribunal on issues nos. 1, 2, 3, 4, 5 and 15 is correct or not. Issue no. 16 only posed the question as to the relief the respondent was entitled to. We shall now proceed to decide those issues concerning which arguments have been addressed.
Issue No. 1
“Whether the respondent (appellant in the appeal) himself and his agents, workers and supporters made a systematic appeal and propaganda at his instance and held meetings and printed and distributed handbills to the Muslim voters of the constituency inducing them to vote for the respondent and refrain from voting for the petitioner on the ground of community and religion as alleged in para 3(a) and schedule 1 of the petition?”
3. The relevant averments as to this issue are contained in paragraph no. 3(1)(a) of the election petition. Paragraph no. 3 begins by saying that, the election of the appellant was void and liable to be set it aside on the grounds enumerated in the paragraph. Sub-pragraph (1) says that the corrupt practices enumerated in it were committed by the appellant (respondent in the ejection petition) his agents, workers and supporters with, the consent of the appellant. In clause (a) of sub-paragraph (1) it is averred that there was a systematic appeal and-propaganda by the appellant himself, his agents, workers and supporters making appeals to Muslim voters to vote for the appellant on the ground of religion and community. The communal feelings of the Muslim electors of the constituency were accordingly aroused and 95 per cent of them voted for the appellant. It is further averred that the Muslim voters were induced to believe that they would become objects of divine displeasure and spiritual censure if they did not vote for the appellant and that these appeals were made at the meetings and by distribution of handbills, the particulars of which were enumerated in Schedule 1 of the list of particulars attached to the election petition. Schedule 1 covers more han three pages and the 1st paragraph of it gives details of the meetings, that were held at which communal appeals were made. Paragraph 2 says that there is an Arabic school at Jalalabad, of which the appellant is the patron and it was the duty of the Maulbis to exhort the Muslims, after prayers in mosques, to vote for the appellant and this exhortation was done throughout the constituency. Apart from this, door to door propaganda among Muslims was also carried on at the instance of the appellant. Paragraphs nos. 3, 4, and 5 relate to handbills or pamphlets, which are said to have been distributed with a view to spreading communal appeals. They would be referred to later on in greater detail.
4. In the written statement the appellant denied the above allegations, excepting that the printing of 4000 copies of one handbill was admitted, but it was said that the handbill was not printed by the Praja Socialist Party of Muzaffarnagar. It was further alleged that none of the handbills purported to make any appeal to the Muslims on the ground of religion or community.
5. It would appear that issue no. 1 refers to communal appeals made in three ways. One manner was by making appeals at the meetings, which were called for the purpose or after Prayers to mosques, another was by door to door canvassing of the voters and third was by the printing and distribution of the handbills, which are four in number. We propose to deal with the three types of propaganda separately.
(After discussing the evidence their Lordships observed:—)
6. After a careful consideration of the evidence of the above witnesses and the judgment of the Election Tribunal, we find ourselves wholly unable to accept the finding of the Tribunal that those witnesses have proved that appeals were made by the appellant, his workers and supporters to vote for him or to refrain from voting for the respondent on the ground of religion or community. Some of the witnesses are clearly unreliable and the others also do not inspire confidence. The Election Tribunal has not advanced any good reason for accepting the statements of these witnesses with respect to the different speeches said to have been delivered at the different meetings. The Tribunal has in effect held that the cumulative effect of the evidence proved that the appeals were made on behalf of the appellant on the ground of religion or community. We do not share the view of the Election Tribunal that the cumulative effect of the statements of the witnesses is sufficient for establishing that any such appeal was made by the appellant or by any of his workers or supporters. We have not been able to accept the evidence of any of the witnesses. We hold that it has not been proved that any appeal was made at the meetings, inside or outside the mosque, by the appellant, or his workers or supporters on the ground of religion or community.
7. The oral evidence, with respect to the allegation of the door to door propaganda on communal lines, said to have been carried on by or on behalf of the appellant, is absolutely meagre and unconvincing. We hold that the respondent has fully failed to prove that any such propaganda was carried on.
8. We now come to the main evidence in the case, which is afforded by the four handbills, mentioned in schedule.
9. In the appeals, contained in the handbill, there was no appeal to the members of any particular community. It is an appeal to the public in general for the action or the supposed action of the political party in power. Even if the appeal is to the members of a particular community, it does not necessarily fall within the made chief of sub-sec. (3) of Sec. 123 of the Act, unless the appeal is made on the ground of religion or community. Suppose the action of the political party in power is criticised on the ground that it has passed improper legislation interfering with the Hindu usages and customs in the matter of marriage and divorce and that the persons professing Hindu Faith should, therefore, vote against the candidate set up by such a party. This would be an appeal to the members professing a particular religion, but it is not an appeal on the ground of religion. It is an appeal to vote against a candidate set up by a party, because the policy of the party is not liked by the maker of the appeal. It is really a criticism of that policy. What he does is to criticise the measure of social reform, which the party in power has brought about, though the appeal is an appeal to the members belonging to a particular religion. But the appeal is not on the ground of religion but on the allegation that an improper act has been done by the party in power, and the persons affected by that improper act should not vote for the candidate of that party. It is mainly a criticism of the acts or supposed acts of the party in power and not an appeal on the ground of religion. There may be cases where, in the garb of criticism of the acts or supposed acts of a political party a attempt is made to make an appeal on the ground of religion. If such is found to be the case, the appeal may be held to fall within the mischief of Sec. 123(3) of the Act. The contents of a particular document have, therefore, to be taken as a whole and, after a consideration of the entire document, a decision has to be arrived at whether the document contains merely a criticism of the actions of a political party or it is really an appeal on ground of religion. Similarly, if a political party is criticised on the ground that it has a communal outlook and that its policy is to suppress the members of another community, for example the Jan Sangh or the Muslim League and if it is stated that people should not vote for any of these communal organisations because the essential policy of these organisations is to further the ends of the Hindus or the Muslims, at the cost of the members of the other community, the appeal in such cases also would be to the members of the Hindu or the Muslim community, but it would not be on the ground of religion or community, but on the ground of the wrong policy of the particular organisation. This would be a criticism of the policy of the organisation and not an appeal to vote or to refrain from voting on the ground of religion or community. If the Legislature really mean to prohibit an appeal to a community, it could easily have said so, instead of saying on the ground of religion.
10. We are thus unable to hold that the result of the election would have been different if no communal propaganda had been carried on, on behalf of the appellant or any of his workers or supporters.
11. The learned counsel also argued a point of law in this connection and his contention was that if any agent of the appellant committed any corrupt practice, the appellant would be responsible for it and the case would come under sec. 100(1)(b) of the Representation of the People Act, quite irrespective of the fact whether the appellant had consented to the commission of the corrupt practice by the agent or not. It was further contended that according to explanation I to section 123, the word ‘agent’ would include any person who is held to have acted as an agent in connection with the election with the consent of the candidate. It was argued that every worker would be an agent of the candidate, and every action of such worker would be taken to be an action committed with the consent of the candidate. We think that this contention is in the teeth of the clear wording of Sec. 100(1)(b) of the Act which is as follows:—
“(b) That any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent.”
12. A plain grammatical meaning of the above, sentence is that the corrupt practice itself should have been committed with the consent of a returned candidate or his election agent. According to the contention of the learned counsel for the respondent the moment any other person with the consent of the candidate he fife came agent. Assuming that was the position, the provision for setting aside the election mentioned in the above clause further requires that the corrupt practice should have been committed with the consent of the candidate or his election agent. This last requirement would become absolutely superfluous if the action of every agent of a candidate is to be taken to be the action of the candidate himself. For his interpretation the learned counsel relied on the language of Sec. 100(1)(d)(ii), which is as follows:—
“(ii): By any corrupt practice committed in the interests of the returned candidate by a person other than that candidate or his election agent or a person acting with the consent of such candidate or election agent, or.”
13. The learned counsel argues that the words “a person acting with the consent” describe the qualification of the person's action and do not have reference to the commission of the corrupt practice. He says that if any person was working for a returned candidate with his consent, the action of such person is excluded from the operation of clause (ii). This necessitated the learned counsel to go to the length of saying that there may be cases which do not fall either under section 100(1)(b) or under section 100(1)(d)(ii). According to him the action of an ordinary agent, who commits a corrupt practice but not with the consent of the candidate, would not fall under any of the above two provisions of law. “We do not find it possible to agree with the contention of the learned counsel. There appears to be no reason why an election should be see’ aside if the corrupt practice was committed by a person other than an ngent if the corrupt practice materially affected the result of the election; whereas the election should not be set aside if the corrupt practice has been committed by an ordinary agent even though it materially affected the result. The learned counsel had to concede that, on his interpretation of the two provisions of law mentioned above, there would be no authority in the Election Tribunal to set aside the election even if the commission of a corrupt practice by an ordinary agent of a cardidate had materially affected the result of the election. We do not think that the legislature could possibly have intended any such result. Stress was laid by the learned counsel on the word “acting” as used in section 100(1)(d)(ii); but we think that the word “acting” there refers to acting in the commission of the corrupt practice and not to a person acting generally with the consent of a returned candidate. The interpretation of section 100(1) of the Act, which has appealed to us, would cover all cases of the commission of corrupt practice by any person whatsoever.
14. The learned counsel was forced to the situation that the legislature had given no directions as to what an Election Tribunal should do where an ordinary agent of the returned candidate has committed a corrupt practice, and, in such a case, it has left it to the sweet discretion of the Election Tribunal to set aside the election of a returned candidate or not. He says that sub-section (2) of section 100 authorises the Tribunal to condone the action of an agent when the conditions enumerated in clauses (a) to (d) are all satisfied. In other cases of the commission of corrupt practice, by an ordinary agent without the consent of the returned candidate or his election agent, it is left to the discretion of the Tribunal to set aside the election or not. It is not possible to accept this contention. We do not find any reason why the legislature should not have provided for the most usual type of corrupt practices, namely, those committed by the numerous agents, other than the election agents and why a stranger's action should result in setting aside of the election if he acted in the interest of the returned candidate; but not that of an agent. Then Sub-sec. (2) of section 100 also leaves a discretion in the Tribunal, even if all the conditions mentioned in clauses (a) to (d) are satisfied, to declare the election of the returned candidate to be void or not. If the intention of the legislature was to entirely leave it to the discretion of the Tribunal to set aside an election or not on the ground of the commission of a corrupt practice by an ordinary agent, it need not have specified any of the conditions.
15. After a careful consideration of the points urged by the learned counsel, we have come to the conclusion that sub-sec. (1) of Sec. 100 is a self contained section providing for all cases of commission of corrupt practice by any person whatsoever. If such a corrupt practice has been committed by a returned candidate or his election agent or by another person, including an ordinary agent, with the consent of a returned candidate or his election agent, the Election Tribunal is bound to declare the election to be void irrespective of the fact whether the commission of the corrupt practice materially affected the result of the election or not. In other cases, if a corrupt practice has been committed by any person other than those mentioned in Sec. 100(1)(b), the election is to be declared void only if the commission of the corrupt practice has materially affected the result of the election. It is true that according to our interpretation of Sec. 100(1), Sec. 100(2) becomes a superfluous piece of legislation; but we are constrained to arrive at that conclusion and think that, while re-drafting the section, the Legislature omitted to take into consideration the fact that a case which fulfils all the requirements of clauses (a) to (d) of sub-sec. (2) would never fall under sub-sec. (1), and that according to sub-sec. (1) itself the election cannot be declared to be void by the Tribunal if all the conditions enumerated in clauses (a) to (d) of Sub-sec. (2) have been fulfilled. A Bench of this Court, of which both of us were member, took a similar view in the case of Moti Lal v. Mangala Prasad (First Appeal No. 83 of 1958) decided on 16th May, 1958. In the Act before its amendment in 1956 under sub-sec. (2)(b) the Tribunal could set aside any election if a corrupt practice was committed by any ordinary agent with the connivance of the returned candidate. Then came sub-sec. (3), which was word for word the same as the present sub-sec. (2) excepting for an insignificant difference. In that setting sub-sec. (3), as it then was, had a meaning because it provided an exception to clause (b) of sub-sec. (2); but after the amendment, sub-sec. (2) of Sec. 100 appears to be an entirely superfluous and meaningless piece of legislation.
16. Lastly, the learned counsel argued under this issue that the Election Tribunal, which had the opportunity of watching the demeanour of the witnesses produced before it, has believed the witnesses who stated about the holding of the different meetings in different villages and the statements made therein, even though there was only one witness in respect of one particular meeting. In this connection he referred us to the case of Sarju Prasad v. Jaleshwari A.I.R 1951 S.C 120.. Their Lordships remarked in the above case that where the question for consideration for the appellate Court is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case, the appellate Court has got to bear in mind that it has not the advantage which the trial Judge: had in having the witnesses before him and of observing the manner in which they deposed in Court. They then proceeded—
“This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.”
17. The above is a well established and well known principle of law and we have kept it in view while deciding the question whether the commission of corrupt practice by the appellant or his workers has been proved by the witnesses or not. We have referred to the reasons which led us not to rely on the statements of those witnesses and many of those reasons had not been noticed by the Tribunal. We are called upon to decide whether the charge of the commission of corrupt practice has been proved or not, and we feel that we cannot agree with the decision of the Tribunal as regards the credibility of the witnesses.
18. For the above reasons we decide issue No. 1 against the respondent and hold that it has not been proved that the appellant or any of his workers or agents committed the corrupt practice imputed to them with or without the consent of the appellant. We further hold that it cannot be said that the result of the election has been materially affected even if the commission of corrupt practice by some person without the consent of the appellant had been established. The appellant had not appointed any election agent at all.
19. Issue No. 2: ‘(2) Whether the Muslim voters were induced by the respondent and his agents and workers and supporters at the instance of the respondent to believe that they will become or will be rendered objects of divine displeasure and spiritual censure if they did not vote for the respondent as alleged in para 3(1)(a) and Schedule 1 of the petition?”
Paragraph 3(1)(a) of the election petition, about the end, says:—
“Muslim voters were induced to believe that they will become objects of divine displeasure and spiritual censure if they did not vote for the Muslim candidate, the respondent.”
20. In the particulars given in Schedule I, no particulars are separately given respect to this charge of undue influence falling under section 123(2) of the Act. But it may be taken that what was meant was that these statements were also made while addressing the different meetings alleged to have been held in the constituency. We may, therefore, proceed to the evidence that has been adduced to prove that such an undue influence was exercised.
21. The undue influence is said to have been exercised by the speakers at three meetings held in villages Thana Bhawan, Garhi Abdulla Khan and Bidauli. P.W Janbaz has spoken about the meeting in Thana Bhawan, P.W Inayaetullah of the meeting in Garhi Abdullah Khan, and P.W Amir Abbas of the meeting in Bidauli. They all say that one of the speakers in these three meetings had said that if the Muslims did not vote for the appellant they would be Kafirs. We do not propose to consider the question whether a mere assertion that they would be Kafirs would amount to the exercise of undue influence as defined in sub-section (2) of section 123, because we have already held that we do not find it possible to rely on the statements of the above witnesses at all. It has thus not been proved that it was ever said by the speakers at these meetings that the persons who did not vote for the appellant would be Kafirs. The Election Tribunal has not separately dealt with this issue and has mixed it up with the general issue of the commission of corrupt practice by making appeals on Vie ground of religion or community under issue No. 1, and has remarked that their entire activity was one corrupt practice we have disagreed with the Tribunal's finding under issue No. 1, and we also disagree with it on this finding on issue No. 2, and hold that the exercise of undue influence, which was the subject-matter of issue No. 2, has not been proved at all.
Issue No. 5: “(5)(a): Whether the handbill entitled ‘Kya is Congress ko phir vote diya jave? was published in the Bhawan constituency and whether it contains false statements and is a misrepresentation and fraud and preaches hatred as alleged in the petition?
(b) Whether it interfered with the free exercise of the eletorate right of the voters and does it amount to undue influence within the meaning of section 123(2) as alleged?”
22. This is again an issue raising the question of the exercise of undue influence. We had already occasion to refer to the main parts of this handbill while discussing the question whether it contained any appeal on the ground of community or religion, and we came to the conclusion that it did not. As far its containing any statement which might amount to the exercise of undue influence, we think that the case of the respondent on this point is an impossible one. Ex. 3 nowhere goes near saying anything which might amount to the exercise of undue influence as defined in sub-section (2) of Section 123 of the Act and has merely criticised some acts or supposed acts of the Congress party and its learners. It contains an appeal to the members of the public in general. There is nothing in this exhibit which can be seriously considered to amount to the exercise of undue influence as defined in sub-section (2) of section 123 of the Act. There is no preaching of hatred in it, and there is considerable dispute whether the statements of fact made therein were true or not. We think that the respondent has not been able to prove that those statements are false. Even if they are false, they would come under section 123(2). This issue, accordingly, is also decided against the respondent.
23. We have disposed of all the issues on the decision of which the Election Tribunal set aside the election of the appellant. We may now come to those issues which were decided against the respondent and concerning which the correctness of the decision has been challenged before us by the learned counsel for the respondent. These issues are Issues Nos. 3, 4(b) and 15:
Issue No. 3: “Whethrer the respondent and his agents and workers, at the instance of the respondent, held meetings as alleged in para 3(1)(b) and thereby made a systematic appeal to the caste instinct of Syani voters of the constituency to vote for him and refrain from voting for the petitioner on the promise and understanding that the respondent would get the Muslim voters to vote for Sri Mulkraj, a Syani by caste, and a candidate for the Parliamentary Constituency 302, Saharanpur, and thus interfered with the free exercise of the electorate rights of the Syani voters and committed a corrupt Practice within the meaning of section 123(2) and (3), as alleged in the petition?”
24. The relevant averments concerning this issue are contained in paragraphs 3(1)(b) of the Election Petition. It is stated therein that the meeting between the appellant and Sri Mulkraj, a candidate for the Parliamentary Constituency, took place at the residence of the appellant at Jalalabad on the 10th of February, 1957, and it was agreed at that meeting that the appellant would ask the Muslim voters to vote for Mulkraj in the Lok Sabha and Sri Mulkraj would ask his own caste fellows, the Syanis of the constituency, to vote for the appellant. In support of this agreement meetings were held at Jafarpur on 15th February, 1957, at Bedkheri on 16th February, 1957 and at Thana Bhawan, Lohari and Jalalabad on 4th May, 1957 at which appeals were made on behalf of Sri Mulkraj to the Syani voters to vote for the appellant. The respondent was thus deprived of the Syani votes, most of which went to the appellant. In written statement the appellant has denied the entire allegation.
25. In support of the allegation that such an agreement was arrived at between the appellant and Mulkraj, the respondent has produced one Devendra Kumar to prove the entering into of this agreement, P. Ws. Deep Chand and Raja Singh to prove that the appellant admitted that such an agreement had been arrived at, and P. Ws. Udai Singh, Nathu Hukum Singh and the respondent himself to prove that meetings were held at which an exhortation was made to vote for the appellant in pursuance of the agreement. The Election Tribunal has disbelieved the statements of all these witnesses and we agree with the findings of the Tribunal on this point. The story itself does not appear to us to be a probable one, because the appellant belonged to the Praja Socialist Party while Mulkraj belonged to the Socialist Party, and an agreement like this could not have remained concealed from the other members of the parties.
26. P.W Devendra Kumar stated that he was a member of the Praja Socialist Party for three or four years till 20th February, 1957, and that he worked for the appellant till the date. But eight or ten days the 20th February, he went to the appellant and found three or four persons sitting there amongst whom was Mulkraj mulkraj then said that he would get the appellant Syani votes if the appellant gets him Muslim votes. The appellant then said that one Pitamber Singh was a candidate for Parliamentary Constituency for the Praja Socialist Party and he was bound to support him. But on Mulkraj's persuasion the appellant agreed as suggested by Mulkraj. The witness stated that he was so much disgusted at this action of the appellant that he resigned from the Praja Socialist Party ten days later. He filed a postal receipt evidencing the sending of a registered letter. In cross-examination he stated that he had brought a copy of the resignation, and, subsequently, on being recalled, he actually filed it in Court which was marked Ex. P.W 25/1. This copy does not say anything about any agreement between the appellant and Mulkraj. On the other hand, the reason given for the resignation was that there was an alteration in the views of the witness. It thus does not support the statement of the witness. It is also curious why the witness should have waited for eight or ten days before sending his resignation after he had come to know of the alleged unholy alliance. He even went on working for the appellant till eight or ten days after he had come to know of it.
27. The learned counsel for the appellant drew our attention to what he called the original of this resignation, which is written, on a folder. The postal seal on this folder bears the date 9th February, 1957. But he Tribunal has not referred to it and we think it has not been legally proved. An application was made to recall P.W Devendra Kumar, but on certain statements made by the learned counsel for the respondent the counsel for the appellant withdrew that application.
28. It will be surprising if such an improper agreement which would lead the appellant to act against the interests of the candidate set up by his own party for the Parliamentary seat, would be arrived at in the presence of another member of that party. Devendra Kumar is no particular friend of the appellant, nor does it appear that he was in his confidence. If the thing had become known the appellant might well have been renounced by the party, and it was likely to have withdrawn all support for the appellant. We are unable to accept the statement of this witness.
29. P.W Deep Chand is a Vakil practising in Kairana, district Muzaffarnagar for the last 30 years. He says that one Ch. Sultan Singh was a candidate for the Assembly from Kairana Shamli Constituency on behalf of the Praja Socialist Party. Twenty or 22 days before the election he was sitting near Sultan Singh, who was his friend, when the appellant and Mulkraj also arrived. The appellant then said to Sultan Singh that there had been a pact between him and Mulkraj, and Mulkraj would try to get Syani votes for the appellant and vice versa. He advised Sultan Singh to arrive at a similar agreement with Mulkraj. Sultan Singh did not agree to the proposal. This witness also tries to prove that an agreement like this was openly admitted before Sultan Singh who had been set up by the Praja Socialist party. It is also not clear what sort of votes was Sultan Singh to procure for Mulkraj in return for his Syani votes. If the appellant was Proclaiming the agreement before everybody, including members or his own party, he would be seriously running the risk of having all support of the party withdrawn from him, because his action would be one which would be against the candidate set up for the Parliamentary seat by his own party. We do not know what is the status of this gentleman and whether he pays any income-tax at all after the practice of 30 years. But he has not been believed by the Election Tribunal and we agree with the Tribunal that this statement is not reliable.
30. P.W Raja Singh says that he is a Sikh Syani and resident of Hasanpur. Mulkraj and the appellant went to the witness, and Mulkraj said that he had combined with the appellant and Syanis should vote for the appellant. The appellant said that he would try to get all his votes for Mulkraj. The witness says that he was Mulkraj's agent in Garhi Pukhta. In cross-examination he admitted that he was sentenced to seven years' rigorous imprisonment for murdering one Rahman Ilahi, but that he had undergone the imprisonment. He is the only witness about the direction to Syanis to vote for the appellant concerning village Hasanpur, and we do not find it possible to base a finding on the statement of this witness alone that such a statement was made by Mulkraj and the appellant in village Hasanpur. We agree with the Tribunal in rejecting his evidence.
31. As regards village Lohari, there are the statements of the respondent himself and of P.W Udai Singh. The respondent is an interested party, and Udai Singh says that he is the Pradhan of Lohari village and is a Syani. Mulkraj and the appellant went to his village two days before the election and held a meeting there. Mulkraj said that Syanis should vote for the appellant as the latter had agreed to secure Muslim votes for Mulkraj. In cross-examination he said that the view of the members belonging to Syani community was that they should vote for Mulkraj as he belonged to the same community. He further says that he did not tell anything about this meeting to the respondent at all, and it is difficult to see how the respondent came to know that the talk took place before this witness. He further admits that the Muslims of his village did not actually vote for Mulkraj. The agreement in any case was not thus carried out as far as the Muslims were concerned, and we are not satisfied that any such talk really took place in village Lohari.
32. P.W Nathu speaks of a similar request by the appellant and Mulkraj that Syanis should cast their votes in favour of the appellant as the appellant had agreed to get Muslim votes for Mulkraj. This witness made a curious statement in cross-examination. He said he was a worker for the appellant in the election. It is surprising that he is now deposing against him. Nathu first admitted that he was member of the Congress but subsequent he tried to withdraw that statement. His statement, however, that he was working for the Congress before the incident stands. On the statement of such a witness no folding can be based that the statements imputed to the appellant and Mulkraj were really made in village Bedheri.
33. The last witness P.W Hukum Singh speaks of Jafarpur and makes a similar statement about what Mulkraj and the appellant, had said. This witness was an agent of Sri Ajit Prasad Jain, a candidate for the Parliamentary seat set up by the Congress, and he had actually canvassed for Sri Jain. He was also not believed by the Tribunal, and we see no reason for taking a different view. Both the appellant and Mulkraj have entered the witness-box and have denied the entering into of any such agreement or their trying to secure votes in pursuance of the same.
34. We further think that an agreement between different candidates for securing votes for each other would not be a corrupt practice under Sec. 123 at all but the learned counsel for the respondent argues that an attempt was made in this case to secure votes on the ground of caste or religion and, as such, the agreement falls under Sec. 123(3). We are doubtful whether the agreement even then would fall under Sec. 123(3); but we do not propose to decide this point as we have held that the agreement itself has not been proved. This issue is also decided against the respondent.
Issue No. 4. “(4)(a) Whether the respondent himself, his agents and workers and supporters made, as alleged in para 3(1)(c), an extensive use of the posters bearing the photo of Mahatma Gandhi with the title “Congress ko tor do’ the hut symbol and the writing beneath it deliberately as a device to create an impression in the voters' mind that Mahatma Gandhi was advising and blessing them to vote for the respondent and thus deceived a large number of voters as alleged in the petition?
(b) Is the photo of Mahatma Gandhi a national symbol, and were the voters of constituency deceived by the respondent and did they vote for the respondent on account of fraud as alleged in the ptition?”
35. The relevant averments with respect to this issue are contained in paragraph 3(1)(c) of the election petition and they are to the effect that the posters were widely distributed and by this device the appellant created an impression in the minds of the electors that Mahatma Gandhi was advising and blessing the voters to vote for the candidate of the Praja Socialist Party. It is also said that the photo of Mahatma Gandhi was a national symbol. In the written statement the distribution of the posters and the fact that the photo of Mahatma Gandhi was a national symbol had been denied. It appears that at many places the candidates set up by the Praja Socialist Party of U.P had got such posters distributed, and in the case of Sri Karan Singh v. Sri Jamuna Singh (First Appeal No. 24 of 1958) decided on 16th April, 1958, a copy of this poster was said to have been distributed. We accordingly considered in that case whether the portrait of Mahatma Gandhi was a national symbol or not, and came to the conclusion that it cannot be held to be a national symbol within the meaning of the expression as used in Sec. 123(3) of the Act. The portrait not being a national symbol its use by the respondent did not constitute a corrupt practice and the Election Tribunal was right in holding that the election of the respondent was not liable to be set aside on this ground. One of us was a party to the decision in the above appeal, and we agree with the said decision. The learned counsel for the appellant argued that one of the learned District Judges, who was appointed an Election Tribunal, held in the case of Desai Basawaraj v. Dasankop 4 E.L.R 380. that the portrait of Mahatma Gandhi was a national symbol, and the Legislature not having altered the language of the Act with respect to this matter, it must be presumed that the Legislature agreed with that view and meant to include the portrait of Mahatma Gandhi within the meaning of the expression ‘national symbol’. We do not think that the principle of law inundated by the learned counsel can be extended to every decision of a Judge or a civil Judge and even other Courts functioning in the country. The principle only applies to well known cases of decisions by important Courts, because the Legislature cannot be expected to be aware of a decision arrived at by every district Court.
36. It was then argued that it is said in this poster that Mahatma Gandhi said, “Congress ko tor do” and this is a false statement of fact: But the respondent's own witness Sital Prasad admits that Mahatma Gandhi had said that the Congress, should be dissolved and should be turned into a Sewak Samaj. It thus cannot be said that this statement in the poster has been proved to be false.
37. It is further argued that the poster contains a sort of blessing from Mahatma Gandhi to those who were voting for the Praja Socialist Party in this poster. But it must be known to everybody that the Praja Socialist Party did not exist in the time of Mahatma Gandhi, and Mahatma Gandhi could not, therefore, possibly be said to be blessing the voters who voted for the Praja Socialist Party. The poster shows that the left hand of Mahatma Gandhi was raised and not his right hand. If the right hand had been raised it might have been said that it was with a view to bless these people. In any case, this question is of no importance because even if it was wrongly stated that Mahatma Gandhi said something, that would not amount to an exercise of undue influence as alleged by the learned counsel for the respondent. Undue influence is interfering with the free exercise of the right of voting, and inducements to vote by wrongly imputing statements to leaders cannot be said to amount to interference with the free exercise of the right of voting. At elections, sometimes false statements are made and attributed to the leaders of the parties. But making false statements like this has not been made a corrupt practice. It is in the nature of an argument for voting in favour of the candidate set up by a particular party, and the argument may be false, but it cannot be said that interferes, in any way, with the free exercise of the electoral right.
38. The correctness of the finding of the Tribunal that the appellant himself made use of this poster has not been challenged before us.
39. Issue No. 15. “(15)(a) Did the respondent maintain accounts as required under Sec. 77 of the Representation of People Act, and is the return filed a correct copy of the same? If so, its effect?
(b) Whether the respondent himself through his agents and workers incurred unauthorised expenditure and submitted false return of the election expenses as alleged? If so, its effect?”
40. While considering this issue the Election Tribunal has held that the accounts were not regularly maintained. It says that they should have been maintained by the appellant himself or by his election agent, but the appellant admits that he did not maintain the accounts himself nor had he appointed any election agent. The accounts, he said, were maintained by his Pairokar Brij Mohan Lal, Brij Mohan Lal also does not appear to have written the accounts from day to day. He noted on slips of paper the moneys paid to the workers and the expenditure incurred on different dates and compiled the account subsequently from those Parchas. Those Parchas themselves are not forthcoming. On these facts the Tribunal has held that the appellant did not maintain accounts as required under Sec. 77 of the Representation of the People Act and the return filed by him, therefore, cannot be said to be a correct copy of the accounts maintained.
41. A reading of sub-sec. (1) of Sec. 77 does not show that the direction contained in it is to keep a regular daily account of the expenditure incurred as is done in the account books maintained by commercial firms. What this sub-section requires is that the candidate himself or his election agent should keep a separate and correct account of all expenditure in connection with the election, incurred by the candidate or by his election agent. The requirement is that the account should be a separate one and a correct one, and it is to be kept either by the candidate or by his election agent. The account in this case, a copy of which has been filed, was not mixed up with any other account, and was a separate one. It has also not been proved that there was any mistake in entering the items in the account. The Tribunal has referred to one alleged mistake. It says that the receipt (Ex. 31) shows that a bill was for a sum of Rs. 133, out of which Rs. 50/- had been paid in advance and Rs. 83/- were paid on 16th February, 1957. The payment shown in the accounts is of Rs. 133/- in a lump sum. This is again a case where the expenditure was on different dates but was shown on one date in a lump sum, but it is not a case where it can be said that any wrong entry was made in the accounts.
42. But we are relieved from deciding finally whether an account of the nature, prepared in this case was or was not in accordance with sub-Sec. (1) of Sec. 77 of the Act, because we think that the corrupt practice mentioned in Sec. 123(6) does not cover a case where the accounts have I not been daily and regularly kept by the candid-date or his election agent. That sub-section defines corrupt practice as “the incurring or authorising an expenditure in contravention of Sec. 77.” The corrupt practice thus does not consist in not maintaining the account as required by sub-sec. (1) of Sec. 77, but it consists of incurring or authorising an expenditure in contravention of Sec. 77, which would be a case where the total of the expenditure exceeds the amount prescribed under the rules, as mentioned in sub-sec. (3) of Sec. 77. It is the incurring or authorising an expenditure in contravention of Sec. 77 which has-been made a corrupt practice and not an irregular maintenance of accounts. It would thus appear that the only contravention of sec. 77 which falls under sec. 123(6) is the contravention of sub-sec. (3) of the Sec. 77. The learned counsel argued that the Legislature has not mentioned sub-sec. (3) of sec. 77 in sub-sec. (6) of Sec. 123. It is true that the Legislature has mentioned the entire Sec. 77, but it has also said what type of contravention of the terms of Sec. 77 would be a corrupt practice under sub-sec. (6) of Sec. 123, which is the incurring or authorising an expenditure in contravention of Sec. 77. There is no proof in the present case that the amount of expenditure really incurred by the appellant exceeded the prescribed limit of Rs. 9,000/-. We thus think that the irregularity does not fall under Sec. 123(6) of the Act at all. A Bench of this Court took the same view in the case of Karan Singh v. Jamuna Singh First Appeal No. 24 of 1958 decided on 16th April, 1958, and we agree with that view. This issue is also, therefore decided against the respondent.
43. No other point was urged before us, and, in view of our decision on the different issues argued, this appeal must succeed. We accordingly allow the appeal, set aside the order of the Election Tribunal declaring the election of the appellant to be void and dismiss the election petition with costs in both the Courts. The costs of hearing before the Election Tribunal will be the sum of Rs. 350/- as held by that Court, and the cost of hearing this appeal will be Rs. 590/- on account of counsel's fee, in addition to the other expenditure incurred in printing and other incidental proceeding. The appellant will get the costs of both the Courts from the respondent.
44. Appeal allowed.