Hegde, J.:— The unsuccessful petitioner in Election Petition No. 189 of 1957 before the Election Tribunal, Bangalore, has come up in appeal under Section 116-A of the Representation of the People Act (which shall be hereinafter called ‘the Act’). In his petition the petitioner has prayed that the election of the first respondent be set aside and he be declared as having been duly elected. The petitioner and the respondents were the contesting candidates for the Chintamani Constituency during the last general election. The election was held on 4th March, 1957 and the votes were counted and result declared on 10th March, 1957. The first respondent having secured 16,411 votes as against 12,595 secured by the petitioner, 2,074 by the second respondent and 709 by the third respondent, was declared duly elected. The petitioner represented the Congress Party; the first respondent the Communist Party; the second respondent the Praja Socialist Party, whereas the third respondent stood as an independent.

2. Respondents 2 and 3 have not interested themselves in these proceedings. They were ex-parte in the lower Court and they have not appeared in this Court.

3. The validity of the election of the first respondent has been assailed by the petitioner on various grounds. They are: (i) that on the date of the election the first respondent was disqualified to be a candidate under Section 7(d) of the Act as his joint family had an existing contract with the State Government at the time of the filing of the nomination and consequently his election is liable to be set aside under Section 100(1)(a); (ii) that the first respondent had committed a corrupt practice falling under Section 123(7) of the Act by procuring the assistance of Sri T.R Marishankariah, the then Tahsildar of Chintamani, for the furtherance of the prospects of his election and thereby his election is liable to be set aside under section 100(1)(b) of the Act; (iii) that the first respondent or his supporters with his consent published statements of fact, which are false and which they believed to be false or at any rate which they did not believe to be true, relating to his personal character or conduct or relating to his candidature and calculated to prejudice the prospects of his election and thereby committed corrupt practices falling under Section 123(4) and hence the election of the first respondent is liable to be declared void under section 100(1)(b) or in the alternative under Section 100(1)(d) read with Section 123(4) as these false statements have materially affected the result of the election; and (iv) the first respondent had in connection with his election incurred or authorised expenditure exceeding the maximum fixed, i.e, Rs. 6,000, and had submitted a false return of election expenses and thereby contravened Section 77, which is a corrupt practice under Section 123(6) of the Act.

4. The first respondent has denied the several allegations made against him and in addition he has pleaded that the petition is liable to be dismissed in limine as it contravenes Section 83 of the Act read with Order VI, Rule 15, Civil Procedure Code. The Tribunal has accepted the first respondent's contention that the petition is bad for non-compliance of Section 83(c) of the Act. Further it has rejected the several grounds urged by the petitioner for invalidating the election of the first respondent and in the result the petition has been dismissed with costs. In this appeal the petitioner has reiterated his contentions urged before the Tribunal.

5. The first respondent wants to non-suit the petitioner on the ground that the petition did not comply with the provisions of Section 83(1)(c) read with Order VI, Rule 15, Civil Procedure Code. The verification reads as follows:

“I, the petitioner, hereby declare the contents of paras 1 to 16 supra to be true to the best of my knowledge, information and belief.”

Quite clearly the verification does not comply with the requirements Order VI, Rule 15, Civil Procedure Code which is applicable to election petitions. The said Rule requires that the person verifying “shall specify by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true”. Hence we may agree with the tribunal that the verification in question does not conform to the rule. But the real question for decision is whether this irregularity touches the core of the proceedings. The Rule as regards verification relates to procedure and any infringement of that Rule ordinarily affects the form and not the substance. Unless this infringement prejudices the contesting respondent, the petition ought not to be dismissed on that ground. It is not shown to us how this irregularity has prejudiced the case of the 1st respondent. Hence I do not think that the petition is liable to be dismissed in limine. The finding of the Tribunal on this point cannot be sustained and is hereby set aside.

6. Now turning to the grounds urged by the petitioner for invalidating the election of the first respondent, I do not think that there is any substance in the petitioner's contention that the first respondent was disqualified to be a candidate as his joint family was interested in an existing contract with the State Government, for the execution of the restoration of Thulavanur Tank. The contract in question admittedly stood in the name of Rama Reddy, the brother of the first respondent. It is not the case of the petitioner that this Rama Reddy was the manager of his joint family. Nor is there any evidence on record to show that the contract in question was taken for and on behalf of the joint family. It is also not shown that any joint family funds were utilised for executing that contract. It is not the law that a contract standing in the name of a junior member should be presumed to be a contract for and on behalf of the joint family. There is also satisfactory evidence to show that even prior to the date of the nomination and possibly as a measure of abundant caution, the said Rama Reddy had given up the contract as per Exhibit P-30. The contract in question was a piecework contract. There was no written contract between the Government and Rama Reddy. Hence no importance can be attached to the order made by P.W 37 (Sri N. Gundu Rao, Executive Engineer) in Exhibit P-30(b) as is made clear by P.W 37 in his evidence. There is absolutely no evidence to show that Rama Reddy of Salamankanahalli who took up the contract in question after the same was surrendered by the first respondent's brother was a benamidar for the joint family of the first respondent. In my judgment the Returning Officer very rightly rejected this objection of the petitioner when the same was raised at the time of the scrutiny of nominations. Hence this objection fails.

7. The next ground of attack is that the first respondent taking advantage of the enmity existing between the petitioner and Sri T.R Marishankariah (D.W 36), the then Thasildar of Chintamani, procured his (D.W 36's) assistance for the furtherance of his election prospects. It is true that there were differences between the petitioner and Sri T.R Marishankariah even prior to the election. The petitioner had laid a complaint against Sri T.R Marishankariah before the Anti-Corruption Department. But according to D.W 36 the Anti-Corruption Department had found no substance in that complaint and had dropped the matter. The petitioner relies on Exhibit P-63, the petition sent by him against Sri T.R Marishankariah on 30th January, 1957. In that petition the petitioner expressed his fear that D.W 36 is likely to work against him as there was enmity between the two. This is a natural suspicion, but is of no assistance in finding out whether in fact the first respondent had procured the assistance of D.W 36 or whether D.W 36 had worked for the first respondent.

8. The evidence adduced by the petitioner on this charge could be classified under two heads. The evidence of P.W 40 (Velayudam) the then Revenue Peon of D.W 36 is to the effect that the first respondent sought and obtained the assistance of D.W 36. The remaining evidence is to show that in fact D.W 36 worked for the first respondent. It will be seen that the more important evidence is that of P.W 40 as it relates to the procuring of the assistance of a Government servant. The fact that the Thasildar (D.W 36) worked for the first respondent even if true by itself cannot make it a corrupt practice. Hence the evidence of P.W 40 is of utmost importance. His evidence is uncorroborated. P.W 40 swears that he was the cook under D.W 36 during the months of January to March 1957; on several occasions he overheard conversations between the first respondent and D.W 36; during these conversations the first respondent solicited the assistance of D.W 36 and D.W 36 assured him of the same. It may be remembered that at the time when P.W 40 was examined in Court, D.W 36 had been transferred out of Chintamani D.W 36 denied that P.W 40 was his cook at any time and he further denied the fact that either the first respondent sought his assistance or that he worked for him during the election. The tribunal was not impressed with the evidence of P.W 40. We have been taken through his evidence and his evidence appears to be artificial and unconvincing. I am unable to place any reliance on the same.

9. A large volume of evidence has been adduced to show that Sri T.R Marishankariah (D.W 36) worked for the first respondent during the election. Witnesses examined on this point are P.W 8 (Ramiah), P.W 11 (Patel Adeppa), P.W 12 (Narayana Reddy), P.W 19 (Rama Reddy), P.W 27 (Narasimhiah), P.W 29 (P. Rama Rao), P.W 30 (V. Narayana Reddy), P.W 48 (Narasinga Rao) and P.W 49 (Kempiah). The petitioner has also sworn in support of his allegations. The evidence of the petitioner is necessarily interested. Among the witnesses examined on this point, P.W 27, (Narasimhiah) the President of the Taluk Congress Committee, Chintamani and P.W 30 (V. Narayana Reddy) former Secretary of the said Taluk Congress Committee and a Member of the Executive Committee of the Taluk Congress Committee at the time of the election, can be considered as partisan witnesses and their evidence is not of much assistance. The other witnesses examined on this point are omnibus witnesses. Their evidence was not accepted by the Tribunal. Nor am I satisfied that the same could be safely accepted as true. It must be remembered that in an Election Petition, partisans can easily appear in the role of disinterested witnesses. As against the evidence adduced by the petitioner on this point, the first respondent has examined D.W 36 and D.W 35 (Thirumaliah), the then Revenue Inspector of Chintamani. Both these witnesses have denied the allegations made by the petitioner. It is unnecessary to assess the evidence of these witnesses, as in my opinion, the petitioner has failed to make out his case.

10. We next proceed to examine the allegations relating to corrupt practices falling under Section 123(4) of the Act. Before we analyse the evidence in respect of these allegations it is necessary to be clear about the requirements of Law. Considerable arguments have been advanced at the Bar regarding the true scope of Section 123(4) read with Section 100(1) of the Act. The requisites of Section 123(4) are: (i) there must be a publication by a candidate or his agent or by any other person; (ii) the publication in question must be a statement of facts; (iii) the fact stated must be false and the maker of the statement should have either believed it to be false or at any rate should not have believed it to be true; (iv) the statement of fact must relate to the personal character or conduct of the opposite candidate or it must relate to his candidature, etc.; and (v) the statement in question must be reasonably calculated to prejudice the prospects of the opposite candidate's election. The penal section (if I may use the language of the Criminal Law) is Section 100(1) of the Act. As per section 100(1)(b) if the corrupt practice in question is proved to have been committed by the returned candidate or his election agent, or any other person with the consent of the returned candidate or his election agent, the election is per se void. If on the other hand the said corrupt practice has been committed in the interest of the returned candidate by any person other than those mentioned in section 100(1)(b), the returned candidate's election will be declared void under Section 100(1)(d)(ii), if the corrupt practice in question has affected the result of the election in so far as it concerns the returned candidate. Thus far it is plain. But what would be the result, if the alleged corrupt practice is committed by an agent as defined in Explanation (1) to Section 123(7) of the Act? It will be seen that the expression “agent” does not appear either in section 100(1)(b) or in Section 100(1)(d)(ii) though section 100(1)(b) speaks of an election agent. If Section 100(1) is read by itself, it appears that an “agent” can come into the picture only if he acts with the consent of the returned candidate or if the corrupt practice committed by him comes within the mischief of Section 100(1)(d)(ii). This interpretation is also supported by the fact that in section 100(1)(b) Parliament chose to use the expression “election agent” and not “agent”. It can be argued that if Parliament had intended to include an agent as well, the easiest thing would have been to use the comprehensive word “agent” instead of “election agent.” Why did then the legislature incorporate Section 100(2) providing for certain exceptions in the case of corrupt practices committed by “agents” other than by the election agent and further say that Section 100(1) is subject to Section 100(2)? That sub-section is meaningless unless the corrupt practice committed by an “agent” as such is included in Section 100(1). One explanation is that the draftsman while recasting Section 100 of the Act in 1956 overlooked the significance of the changes effected and unwittingly retained the old Section 100(3) and renumbered it as 100(2). This is a plausible explanation. It will be seen that Section 100 as it stood prior to 1956 provided for an integrated scheme under which Section 100(3) the present Section 100(2) was relevant and important as in that section corrupt practices committed by “agents” were also specifically included. This is the view taken by the Allahabad High Court in the case of Ghayar Alikhan v. Keshav Gupta(1). A somewhat similar view is taken by the Bombay High Court in Sudhir Laxman Hendre v. Sripat Amrit Dange(2).

11. But according to well established cannons of interpretation of statutes no provision of a statute should be considered superfluous unless that is the only possible construction, or unless any other construction leads to absurdity. Efforts-should be made to give a reasonable meaning to the provision and harmonise the same with the other provisions in the statute. It is a strong thing to presume that the Legislature enacted or retained any provision without knowing its own mind and it is a wrong thing to do so if the provision in question could be given an appropriate place in the scheme of things. At this stage it may be noticed that sub-sections (1) to (5) of Section 123 speak of corrupt practices that may be committed by an “agent.” So does Section 99 speak of “agent at the election” which is the same thing as “agent” as could be gathered from Section 99(2). Under these provisions “agent” is grouped as a separate class and corrupt practice committed by him is classified separately. If the corrupt practice committed by an “agent” was intended to be synonymous with that committed by “any person”, it was wholly unnecessary to use the expression “agent” separately in those sections. Again it will be seen that Section 100(1) opens with the words “subject to the provisions of Section 100(2).” It is also difficult to believe that Parliament retained these provisions in a fit of absent-mindedness.

12. At this stage we may consider the history of the relevant provisions. section 100(1)(b) as it stood prior to the amendment in 1956 did not make any distinction between a corrupt practice committed by a candidate or his election agent or any “agent” though if it was committed by an “agent” the candidate could, in appropriate cases, avail himself of the benefit of Section 100(3) as it then stood. This was the law even under the earlier measures. Law presumes “that the Legislature does not intend to make any substantial alteration in the Law beyond what it explicitly declares either in express terms or by clear implication, or in other words beyond the immediate scope and object of the statute. In all general matters outside those limits the Law remains undisturbed.” (Maxwell on interpretation of Statutes.) There are no materials before us to conclude that Parliament intended to make any change in the Law relating to agent's liability in the matter of corrupt practices. If it had so intended it is reasonable to think that it would have conveyed its intention by appropriate words.

13. Before I proceed to the next point it is necessary to examine another contention of Sri S.K Venkataranga Iyengar, the learned Counsel for the first respondent. He urged with some force that evidently Parliament wanted to bring the Law in this country, as regards the corrupt practice of publishing false statements of facts, in line with English Law and consequently it must have omitted the word “agent” from Section 100(1). At first sight this argument appears to be plausible but on closer examination it will be found, that section 100(1)(b) and Section 100(1)(d)(ii) deal with not merely the corrupt practice mentioned in Section 123(4) but all corrupt practices enumerated in Section 123(1) to 123(5). Looked at that way, if the contention of Sri Iyengar is right, we would be going farther away from the Law as it is in England.

14. This takes us to the question whether Section 100(2) is a proviso to section 100(1)(b) or it is a proviso to Section 100(1)(d)(ii). A Bench of the Madras High Court in the case of M.A Muthia Chettiar v. Sa. Ganesan, appears to have accepted Mr. Nambiar's submission that all agents other than election agents come within the category of “other persons”. No reasons are given for arriving at this conclusion. Similarly the Rajasthan High Court in the case of Sheopatsingh v. Narishchandra, observed:—

“It is true that an election cannot be held to be void merely upon the proof of a corrupt practice by an agent any longer.”

It is further observed:—

“The cases in which the election is void are enumerated in sub-section (1) to Section 100. Sub-section (2) to Section 100 can only be regarded as a proviso to clause (d) of sub-section (1) and will only be applicable to those cases where a corrupt practice of trivial and limited character has materially affected the result of the election.”

15. With great respect to their Lordships I am not able to agree with this view. I feel, their attention was not invited to the scope of the several sub-sections of Section 100(2) which have to be considered cumulatively. Moreover it is difficult to conceive, how trivial and limited corrupt practices could materially affect the result of an election. This aspect is made further clear when we consider the second part of clause (b) of Section 100(2). It refers to customary hospitality which did not affect the result of the election and this provision is clubbed along with corrupt practices which are of a trivial and limited character. Hence it is reasonable to presume that the Legislature did not think that corrupt practices of trivial and limited character could affect the result of an election, much less could it materially affect its result. The second and a more formidable difficulty in accepting the reasoning of their Lordships is that if their logic is correct, while corrupt practices of a trivial and limited character committed by a stranger in the interest of the returned candidate would vitiate the result of an election, if in the opinion of the Tribunal those corrupt practices have materially affected its result, a different result would follow if the same corrupt practices have been committed by an “agent”. In other words a returned candidate would be in a more advantageous position in the matter of corrupt practices committed by his “agents” than by strangers. This could never have been the intention of the Legislature. If it is otherwise, it would mean, that an “agent” whose corrupt practices were more or less equated with those committed by the candidate himself under the law as it stood prior to 1956 would now be in a more aedvantageous position than a rank outsider, who acts in the intersts of the returned candidate. This position would not merely be anomalous but opposed to the first principles of Election Law.

16. Before I proceed to consider the provisions contained in Section 100(2), I should like to examine one more decision cited at the Bar, i.e, the case of Biswanath Upadya v. Haralal Das. In this decision also there is a casual observation to the effect that before a petitioner could get any relief under Section 100, he has not only to prove that a corrupt practice has been committed by an “agent” but that the same has been done with the consent of the returned candidate. There is no discussion in the judgment disclosing the basis of this view. It is not clear what their Lordships meant when they spoke of the consent of the candidate. Could it also include the consent contemplated in Explanation (1) to Section 123(7)? In other words are the acts of an “agent” deemed to have been consented to by the candidate? I shall elaborate this line of reasoning a little later.

17. I have already dealt with the implication of clause (b) of sub-section (2) of Section 100. Thus there remain to be considered clauses (a), (c) and (d). Clause (a) speaks of corrupt practices not committed by the candidate or his election agent, and every such corrupt practice committed contrary to the order or without the consent of the candidate or his election agent. This provision can have no relationship with the provisions contained in Section 100(1)(d)(ii), because the corrupt practices committed under that provision must be those committed by persons other than the candidate or his election agent or by any other person with the consent of the candidate or his election agent. If these corrupt practices are committed by any one of the persons enumerated in clause (b) of sub-section (1) of Section 100 then the same cannot fall within the ambit of Section 100(1)(d)(ii). From this it follows that clause (a) of sub-section (2) of Section 100 cannot be a proviso to Section 100(1)(d)(ii). Clause (c) of sub-section (2) of Section 100 stipulates that if the Tribunal is satisfied that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices by an “agent” at an election then the result of the Election need not be set aside. Clause (d) requires that in all other respects the election should have been free from any corrupt practice on the part of the candidate or any of his agents. If we remember the fact that an election can be set aside under Section 100(1)(d)(ii) only if the result of the election has been materially affected in so far as it concerns a returned candidate, then it would be clear that neither clause (c) nor clause (d) of Section 100(2) could have any application to the corrupt practices contemplated in Section 100(1)(d)(ii). Once it is established that the result of the election has been materially affected by any corrupt practice committed in the interests of a returned candidate then the fact that the candidate or his election agent took all reasonable means for preventing the commission of corrupt practices at the election or that in all other respects the election was free from any corrupt practice on the part of the candidate or his agent becomes immaterial. From the above discussion it follows that none of the provisions contained in sub-section (2) of Section 100 can have any bearing on the corrupt practices falling under clause (d) of sub-section (1) of Section 100 and consequently Section 100(2) cannot be a proviso for Section 100(1)(d)(ii).

18. Thus by a process of elimination we are now left with the consideration of clause (b) to sub-section (1) of Section 100. On a plain reading of that clause, it would appear that only three classes of people fall within the mischief of that clause, i.e, (a) a returned candidate, (b) his election agent and (c) any other person acting with the consent of a returned candidate or his election agent. Hence an “agent” can if at all only come within the last category. But then what is meant by the consent of the candidate or his election agent? Does it also include “consent in law” as distinguished from “consent in fact”? I must confess that Parliament has spoken like the Oracle of Delphi. It has been suggested to us that we may read into that clause the word “agent” as an unwritten word. It is true that some times Courts have been compelled to read words into a provision to give it a proper meaning. But this is done only in exceptional cases. Reading words into a provision is as irksome as omitting words from a provision. In this case there is a further difficulty. It will be remembered that in section 100(1)(b) as it stood prior to the amendment in 1956, corrupt practices committed by an “agent” were specifically included. But in the amended Act the word “agent” is replaced by the word “election agent”. In the face of this change it is difficult to read into that section the word “agent”. Hence this construction cannot be accepted.

19. There appears to be only one solution to meet the situation that has arisen due to what I may call errors of draftsmanship. I think it is reasonable to assume that the words “by any other person with the consent of a returned candidate or his election agent” found in section 100(1)(b) should be held to comprehend two classes of persons, i.e, (i) “an agent” whose actions are deemed to have been consented to by a candidate and (ii) other persons whose actions are in fact consented to by a candidate or his election agent. It may be noted that an “agent” is one who is held to have acted as agent in connection with the election with the consent of the candidate. Once it is established that a person has acted as an “agent” in an election, law deems that he has so acted with the consent of the candidate. Hence whatever he does within the scope of his “election agency” must be deemed to have been consented to by the candidate. After all one has got to take the bad with the good. It is true that this construction puts a strain on the language, in equating consent for acting as an agent in connection with the election with consent to the committing of corrupt practices. But we must remember that the scope of an election agency is much wider than an agency under the law of contract. Coupled with that we must not forget that we have to attach some meaning to Section 100(2) and the other provisions earlier referred to.

20. We shall now proceed to examine whether we can fit in the provisions contained in sub-section (2) of Section 100 as a proviso to clause (b) of sub-section (1) of Section 100. Let us take clause (a) of sub-section (2) of Section 100. We have earlier held that the consent contemplated in section 100(1)(b) includes both consent in the fact as well as consent in law. Clause (a) of Section 100(2) also speaks of the consent of the candidate. Do the two things mean the same thing? If that is so, then clause (a) to Section 100(2) cannot be a proviso to section 100(1)(b) because the corrupt practices committed directly come within the main provision and there is no room for an exception. But if it is considered that the consent referred to in Section 100(2)(a) is a consent in fact, then it could be said the whereas under the main provision, the law deems that a candidate has consented to the corrupt practice committed by the “agent”, he is allowed under Section 100(2)(a) to mitigate the evil by showing that in fact he had not consented. I am aware of the fact that this construction is opposed to the rule that ordinarily the words appearing in a statute should be given the same meaning wherever they occur. But if I adhere to this rule then the alternative left is to ignore several provisions in the Act. The choice appears to me to be obvious. Moreover in drafting this measure there has been a failure to adhere faithfully to the rules of drafting. It is seen that different words are used to convey the same meaning. In Section 99 instead of using the word “agent”, a term of law, the draftsman has used the expression “agent at the election” by which he means an “agent”, though in other sections he has used that word “agent”. Continuing the thread of discussion it appears that under clause (b) a returned candidate is permitted to prove that though the corrupt practices committed by his “agent” are deemed to have been consented to by him, yet they were of a trivial and limited character or they took the form of customary hospitality which did not affect the result of the election. Similarly under clauses (c) and (d) he will have to prove in addition to the requirements of clauses (a) and (b) that he and his election agent took all reasonable means of preventing the commission of corrupt practices at the election and that in all other respects the election was free from any corrupt practice on their part as well as on the part of his agents. To sum up, though the result of the election is liable to be set aside, because the corrupt practices committed by his “agents” are deemed to have been consented to by him, he can avoid that result by establishing the requirements of Section 100(2). From what I have said before it is clear that it has not been a plain sailing for me. It is possible to complain that these exercises in mental gymnastics could easily have been avoided if the draftsman had bestowed a little more care in drafting an important section like Section 100. But as Denning L.J said in Seaford Court Estates Ltd. v. Asher:—

“Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise; and that, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this, not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give ‘force and life’ to the intention of the Legislature. That was clearly laid down by the Resolution of the Judges in Heydon's case which is set out by Lord Coke in the third volume of his Reports and it is the safest guide today. Good practical advice on the subject was given at about the same time by Plowden in his second volume. But into homely metaphor it is this; A Judge should ask himself the question: if the makers of the Act bad themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A Judge must not alter the material of which it is woven, but he can and should iron out the creases.”

I have endeavoured to apply these principles in finding out solutions for the difficulties confronting us in the present case.

21. Before concluding this branch of the case, it is necessary to consider the true effect of the “amendments” made to Sections 99, 100 and 123, by the amending Act No. 58 of 1958 which received the assent of the President on 30th December, 1958. If they purported to effect any change in the law, then they are irrelevant for the purpose of this case. But could it be said that these are legislative clarifications of the law as it existed prior to 30th December, 1958?

22. As per section 123 as it stood prior to the “amendment” in 1958, a ‘corrupt practice’ could be committed by a candidate or his agent or by any other person. But according to the amended section nothing is a corrupt practice for the purposes of the Act unless it is committed by the candidate or his agent or by some one with the consent of the candidate or his election agent. This is a serious departure from the law as it stood in the past. Probably as a corrollary to this change Section 99(1)(a)(i) has been amended by deleting the words “by or with the consent of any candidate or his agent”. Evidently by oversight the draftsmen did not carry out necessary changes in sub-section (2) of Section 99. Coming to Section 100, an amendment carried out now materially alters Section 100(1)(d)(ii). Under the altered provision the election of the returned candidate can be invalidated only if the result of the same has been materially affected by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent. The resulting position is that if a ‘corrupt practice’ is committed by the candidate or his election agent or by any other person with the consent of the candidate or his election agent then it would fall within the mischief of section 100(1)(b); if it is committed by an agent of the returned candidate other than his election agent, then it would come within the ambit of Section 100(1)(d)(ii); but even if the result of the election of the returned candidate has been materially affected by any corrupt practice (in ordinary parlance) committed in the interests of the returned candidate the election cannot be set aside, if it is committed by persons other than those mentioned in Sections 100(1)(b) and 100(1)(d)(ii). This again is an important departure from the Law as it stood ever since 1920. Incidentally I may mention that even after the recent amendments some of the anomalies which I pointed out earlier continue to exist. I have not been able to find any justification for the existence of the first part of Section 100(2)(a). If any corrupt practice is committed by the candidate or his election agent or by any other person with their consent, then it will be hit by Section 100(1)(a). Hence I fail to see how the first part of Section 100(2)(a) could be a proviso to Section 100(1)(d)(ii). It may further be noticed that according to the amended provision, even if the corrupt practices committed by an “agent” have materially affected the result of the election of the returned candidate, still the result of the election need not be declared void if the candidate proves that he has complied with the requirements of Section 100(2)(a), (c) and (d). This is not only anomalous but is a striking departure from the law as it was understood ever since 1920. The effect of the deletion of clause (b) to Section 100(2) needs closer examination. If we take into consideration the multiplicity, as well as the magnitude of the changes effected it is reasonable to assume that Parliament was amending the law and not clarifying any ambiguity.

23. In the amending Bill as originally published, as well as in the Bill as it emerged from the Select Committee, no amendments to Section 100 were suggested. When the Bill emerged from the Select Committee, Section 100 stood unchanged though the Select Committee suggested that Section 123 be amended in the manner it has now been done. Evidently amendments to Section 100 were moved on the floor of the house. To some extent they were necessitated by the changes proposed to be made in Section 123. Hence from the history of these amendments it is clear that Parliament intended to change the law relating to corrupt practices during Elections.

24. I have earlier referred to the decisions of the several High Courts interpreting the scope of Section 100 as it stood prior to 1958. It must be presumed that Parliament was aware of these decisions. Possibly as a result of the experience gained or because of the light thrown by those decisions Parliament might have thought that a change in the law is desirable.

25. To clarify there must be an ambiguity. At any rate there was no ambiguity as regards Section 123. It was just the old law. It will be strain on the language to consider the changes effected in that section as clarifications.

26. It is important to note that the preamble of the Bill does not state that the amending bill was brought forward with a view to clarify any ambiguities or clear the difficulties that had arisen in the interpretation of any of the provisions of the Act. On the other hand it says that it is “An Act further to amend the Representation of the People Act, 1950, and the Representation of the People Act, 1951”.

27. Moreover if we consider those provisions as legislative interpretations, we would be in fact giving these provisions a retrospective operation and consequently they might unsettle many settled matters.

28. It is a sound rule of law to deem all amendments as prospective in operation unless they are made retrospective by specific provisions or they are clearly so by necessary implication. The same test will have to be applied in the case of the so called Legislative interpretations, lest there should be retrospective legislation in the guise of Legislative declaration. There must be convincing material before the Court to conclude that Parliament intended to give a legislative interpretation. It cannot be lightly assumed.

29. In passing I may say that the law relating to corrupt practices during elections has been generally considered to have worked reasonably well in the past and one can only hope that these “amendments” have not made dangerous loopholes in that Law. I do not desire to transgress into the field of legislative policy. But to effectively and satisfactorily discharge its onerous duties. Parliament is entitled to know from courts the implications of the measures enacted by it.

30. To come back to the point under consideration, the Courts ought to lean against any construction favouring the view that any change effected is a legislative declaration. Such an interpretation should be adopted only if it is made imperative by any specific provision in the amending Act or the same flows as a necessary inference from the terms or tenor of the amending Act. In the instant case none of these circumstances are available. Hence I see no justification to consider the changes effected in Sections 99, 100 and 123 of the Act, as Legislative interpretations.

31. As a result of the foregoing discussion, I have arrived at the conclusion with some difficulty though without doubt that the petitioner before he could succeed in his petition must establish the following: (1) that corrupt practices as defined in Section 123(4) have been committed; and (2) that the corrupt practices in question were committed (a) by the first respondent (the first respondent had no election agent); or (b) by any other person with his consent (other than by any of his agents); or (c) by his “agent”; or (d) by persons other than those mentioned in (a) to (c) but committed in his interests and the said corrupt practices have materially affected that the result of the election in so far as it concerned the first respondent.

32. If the offence established in this case, if any, falls under clauses (2)(a) or (2)(b) enumerated in paragraph 31, then the election is per se void. If it falls under clause (2)(c) the election is liable to be declared void, unless the first respondent establishes that he is entitled to the protection afforded by Section 100(2). If it falls under clause (2)(d) the election is liable to be set aside only if the Tribunal is satisfied the corrupt practices in question have materially affected the result of the election.

33. Bearing in mind these requirements and also bearing in mind the fact that the proof required in establishing a corrupt practice is one that is required to establish a criminal offence, I shall proceed to examine the facts of the present case.

34. The petitioner complains that during the election and particularly some days before the polling day, there was a bitter and widespread campaign of vilification against him conducted by the first respondent and his supporters by means of pamphlets published and speeches made at different election meetings. In support of his allegation he has produced Exhibits P-1 to P-5. He has also examined a large number of witnesses to establish that Exhibits P-1 to P-5 and particularly Exhibits P-3 and P-4 were distributed by the first respondent and his supporters. Some of his witnesses also speak to the fact that the first respondent and his supporters repeated the allegations contained in Exhibits P-3 and P-4 at several meetings and made many more allegations against the petitioner.

35. Exhibit P-2 lauds the character of the first respondent and presents him to the public as an embodiment of peace and virtue. It is not shown how any facts stated in Exhibit P-2 could come within the mischief of Section 123(4) of the Act. There is no proof as to who published this leaflet. Hence the petitioner's learned Counsel rightly did not rely on the same. Exhibit P-1 is purported to have been published by the Ryots' Sangha, Chintamani, on 31st January, 1957, i.e, long before the elections. The petitioner has not been able to adduce any evidence to fix the responsibility for its publication on the first respondent or on any of his supporters. It is true that this document contains serious allegations relating to the personal character and conduct of the petitioner. In the absence of any satisfactory evidence that the same was published either by the first respondent or by his “agent”, or some one with his consent it affords no evidence to support the petitioner's case. Further there is no satisfactory evidence to show that Exhibit P-1 was published during the election. Quite appropriately the learned Counsel for the petitioner did not lay much stress on this document. Exhibit P-5 is an issue of “Jana Shakthi” paper published on 3rd March, 1957, i.e, a day before the polling. There is undisputed evidence in the case to show that this paper is a Communist paper. But there is no evidence on record to hold that the statements of facts mentioned therein were published by the first respondent or with his consent. In paragraph 11 of the petition, it is alleged that the statements of facts appearing in Exhibit P-5 were published by the petitioner. But this allegation remains unproved. There are no allegations in the petition, that the Editor or the Publisher of the paper published the statements in question as an “agent” of the first respondent. Hence this aspect of the case has not been investigated by the Tribunal. Nor can we go into that matter for want of proper allegations or even particulars in the petition.

36. Thus we are left with Exhibits P-3 and P-4. These are important Exhibits. Hence it is desirable to quote them in full with a view to find out the true meaning of the allegations contained in them and the real purpose for which they were published. These leaflets are in Kannada. But I have had them translated into English. I think the translation has brought out correctly the tenor as well as the meaning of these leaflets.

37. Exhibit P-3 is purported to have been published on 26th February, 1957 by the Election Committee of the United Front, Kolar. It may be noted that the first respondent's candidature was sponsored and supported by the Communist Party as well as by the United Front. United Front is said to be a combination of several parties including the Communist Party, joined together for the purpose of setting up candidates in the Kolar District, to oppose the Congress candidates. It appears that the Praja Socialist Party and some other Parties did not join the United Front. Before coming to the contents of Exhibits P-3 and P-4, it may be useful to state one more fact. On 24th February, 1957 there appears to have been a clash between the Congress workers and the workers belonging to the United Front. During that clash one Narayanaswami was injured and he subsequently died in the hospital on the same evening. From the evidence on record it appears that both the Congress and the Communist Parties claimed him as their worker and tried to exploit his death for election purposes. In the Election Petition the petitioner claims that the said Narayanaswami was a Congress worker and that he was actually canvassing for him. In the written statement filed by the first respondent he merely denies that the said Narayanaswami was a Congress worker. But he nowhere claims that the said Narayanaswami was either a Communist or that he was his supporter during the election. During the course of evidence some half-hearted attempts were made to show that the said Narayanaswami's father was at one time a member of the Ryots' Sangha, a wing of the Communist Party. Narayanaswami's father (Ramiah) has been examined in the case as P.W 513. He supported the petitioner's case. It was not suggested to him that he was at any time a member of the Ryots' Sanghas The Congress Party was the first to claim Narayanaswami as their worker. They took out his dead body in procession. There is little doubt that this procession was a part of the election campaign. The brother-in-law of the first respondent and another supporter of the first respondent were charged with the murder of Narayanaswami. This accusation was laid and backed by the Congress supporters. But those accused were acquitted. The evidence adduced by the petitioner to show that the deceased Narayanaswami was a Congress worker is far from satisfactory. Quite clearly he was not a supporter of the first respondent or the Communist Party. It is likely that he was an on-looker who was caught up in the melee. But after his death both sides tried to make him a martyr with ulterior purpose. Congressmen were able to pursuade his father to issue, a statement alleging that his deceased son was a Congress worker and indirectly holding the Communists responsible for his death. It is also clear that the Congress Party either openly or by a whispering campaign was trying to exploit the death of Narayanaswami in furtherance of their election prospects. It is in this setting Exhibits P-3 and P-4 were published.

38. The English translation of Exhibit P-3 reads as follows:—

“Woe unto the murderous goondaism of the Congressmen.

Let the people of the Democratic Republic be united against the goondaism of the Congressmen and organised violence and incitement to violence.

“Gentlemen!

(1) The wickedness and the organised goondaism of the Congressmen who are convinced of their defeat in the elections, has reached its climax in the Chintamani area. By the devilish activities of the Congress goondas on the date, 24th February, 1957, Sunday, a menace has been created to the life of the peaceful citizens and to the carrying on of the election propaganda in an atmosphere free from fear and anxiety. The Congressmen who are convinced that they are no longer able to stem the power of the people growing against the Congressmen in a just and peaceful manner, have resolved to gain a victory by creating fear in the minds of the people by their organised acts of goondaism and have entered into a conspiracy for that purpose. The Congressmen have been feverishly carrying on the propaganda of the meanest type in order to screen from the public the acts of goondaism indulged in by them at Chintamani on the date, 24th February, 1957, Sunday, and to throw the responsibility of their wicked acts on the opposite parties. ‘It is a matter of great pain to see that the Congress leaders in responsible positions have also taken part in such wicked activities’.

“(2) Members of the public of Chintamani are aware of the truth of the happenings at Chintamani on the date, 24th February, 1957, Sunday. On that day a procession was arranged for carrying on the election propaganda of the candidate of the United Front of Chintamani area. Congressmen also with bullock carts and lorries and armed with sticks took out a procession. On the road near the Naganatheswara temple, the processions on both the sides met and the Congressmen threw stones on the members of the opposite party. Several members in the Congress procession belaboured with sticks the members of the opposite party who were unarmed and inflicted injuries on them.

“(3) After 3 o'clock in the noon, the Congress Office-bearers took out a (procession) and they looted the rice shop of Janab Dastgir Sab who was carrying on election propaganda on behalf of the United Front. They broke all the cycles in the bicycle shop of Janab Rahim Sab and inflicted severe injuries on him. They rushed into the shop of the Tailor Sheriff Sab and seriously injured him. These wicked people went into the shandy and looted many shops with the result that all the people who were in the shandy got afraid and ran away. This cannot be concealed from anyone.

“(4) The goondas then invaded the office of the United Front, demolished the windows, broke the table, took away all the moneys found in it and burnt all the records therein. They have greatly damaged the van that was outside. They looted the shop of Smt. Nagamma which was by the side of the said office and beat her. They beat the workers of the United Front who were unarmed with sticks and stones. They inflicted severe injuries on Sri Narayanaswami, Tailor, who was carrying on propaganda on behalf of the candidate of the United Front and as a result the said person died in the hospital. The Congressmen who were conscious of the opposition of the people, having been convinced of their defeat, have become mad and have stooped to commit such wicked acts.

“(5) Despite this goondaism, they have been carrying on anti-propaganda in various ways to the effect that Sri Narayanaswamy was a Congress worker, and that the Communists (United Front, Chintamani) have by committing evil acts against the Congressmen murdered Sri Narayanaswami. The Congressmen have sacrificed innocent Sri Narayanaswamy and they are carrying on many unnatural activities with a view to flutter the flag of their victory, over the dead body of a great person like him. They have been conspiring to foist the accusation of the murder of the said person on innocent persons.

“(6) While the Congressmen have been boasting to hold the election in an impartial manner the congress goondas have been vehemently ‘shouting in streets that they would murder the candidate of the United Front, and some other workers. From this it will be elear to what a mean level the Congress election propaganda has reached. It is not a new thing that the Congress candidate Sri M.C Anjaneya Reddy has been trying to suppress his opponents by means of violent acts. The members of the public have in their memory many such acts having taken place in his political career.

“We pray that members of the public should realise the devilish acts committed by the vote hunting Congressmen who claim to be non-violent and the devotees of Gandhi, and they should not be taken in by their fraudulent and false stories, and should condemn their wicked acts and all the citizens of the Democratic Republic should unite and carry on activities against the goondaism of and incitement to violence by the Congressmen and destroy the ambition of the Congressmen who are attempting to establish dictatorship and without losing heart or raising any passion against ‘goondaism’ they should fight unitedly in a democratic manner.

Chintamani,Election Committee,

United Front.”Dated 26th February, 1957.

(Underlining is mine)

39. Exhibit P-4 is in much stronger terms. Its English translation runs as follows:—

“The ‘Goondaism’ of the Congressmen at Chintamani;

The Organised wickedness of Anjaneya Reddy; the police negligence!!!

“Gentlemen,

In Chintamani there is no limit to the wicked acts of the Congressmen. Under the leadership of Shri M.C Anjaneya Reddy who has joined Congress last month, a conspiracy is being hatched for some days past, to stop the workers on behalf of Sri Gangi Reddy, the United Front candidate and the Communist Leader from carrying on propaganda and to bring the propaganda to a standstill.

“This wickedness reached its climax at Chintamani on Sunday, the date 24th February, 1957. On that day in the evening 300 people on behalf of Shri M.C Anjaneya Reddy who had joined Congress staging a demonstration beat Muslim workers of the Communist Party so that the workers lost their consciousness. In the evening they entered the office of the Ryots' Association and destroyed the articles there. They destroyed 20 cycles, one motor car and one loud-speaker. A shop belonging to a well-wisher of Shri T.K Ganga Reddy who was subject to the violence of these very goondas in the last Municipal Elections was destroyed. The desciples (Shiahyaru) of Shri M.C Anjaneya Reddy ‘beat’ with ‘Agula’ Shri Narayanaswami who had come to take care of the office of the Ryots' Association. As a result Shri Narayanaswami died an unnatural death that very moment. The late Narayanaswami was the well-wisher of Shri T.K Ganga Reddy. An attempt is being made to foist this wicked act upon the Communists. No one who is aware of the history of Shri M.C Anjaneya Reddy will believe this. Nobody can forget the ‘galata’ made by him by throwing stones so as to prevent a meeting (of people) (to be addressed by) Shri K.C Reddy in connection with the last Elections. The people of Chintamani have not forgotten the organised wicked acts indulged in by them after the Municipal Elections. But Shri M.C Reddy had not joined Congress then. Today Shri N.C Nagiah Reddy's Congressmen are exhibiting him as a great ‘Deshabhakta’ and an exponent of non-violence. We pay our homage to Shri Narayanaswami who died an unnatural death. We pray that you will not lend your ears to evil propaganda. Be united against the wickedness of Congressmen.

K.G.FKolar District Samithi Communist Party, Kolar.”

(Underlining is mine)

40. Exhibit P-4 is purported to have been published by the Kolar District Samithi of the Communist Party. It does not bear the date of its publication. But the evidence on record shows that it was published on 28th February, 1957, Exhibits P-3 and P-4 contain allegations both against the Congress Party and against the petitioner.

41. The first point that we will have to determine is whether any allegations made against a political party comes within the scope of Section 123(4) of the Act. Quite clearly it will not come within the expression “in relation to the personal character or conduct of any candidate”. But could it be said to come within the expression “in relation to the candidature”? The corresponding English Statute does not contain these or similar words. There have been some controversies before the Courts as to what exactly is the true import of the expression “in relation to the candidature”. One view is that it means the right, or qualification or factum of candidature—See Krishnaji Bhimrao Antrolikar v. Shanker Shanta Ram More. Some doubt is cast on the correctness of this decision by a Bench of the Madhya Pradesh High Court in Manganlal Bagadi v. Hari Vishnu Kamath. Taking Section 123(4) as a whole, it would appear that the Legislature did not intend to bring within its mischief any attack against a political party. Any view to the contrary would be a clean departure from the law as understood in this country for a long time now. There is no justification to give an extended meaning to the words “in relation to the candidature” either in principle or in policy. It is true that the freedom of criticism given might be sometimes misused. The political history of even countries like England discloses that sensational false allegations against a political party made particularly on the eve of an election might upset the party's electoral fortune. But the advantage gained from free criticism though sometimes it may turn out to be irresponsible—in the long run outweighs the disadvantages. It is in the interest of the nation that such criticism should be allowed. This is the view of political thinkers and the conclusion in question has been arrived at after balancing the advantages and disadvantages. A political party's reputation is not built on shifting sands. It has, at any rate it should have, firmer foundation and should not be affected by passing winds. But in the case of individuals a different approach is necessary. A campaign of slander is likely to create prejudice in the minds of the people against him. It cannot be put down as cynicism when it is sometimes said that the bigger the lie the greater is the chance of its being accepted as true. There is unfortunately a tendency in the mind of the unwary public to believe the worst about individuals. Democracy will be a farce if interested persons are allowed to freely indulge in character assasination during election. Section 123(4) as I understand it embodies the twin principles discussed above.

42. Hence in considering the allegations found in exhibits P-3 and P-4, I have left out of consideration allegations made against the party of the petitioner, excepting in so far as they afford any evidence to find out the purpose for which the impugned statements were made and the meaning to be attached to the words and phrases used in Exhibits P-3 and P-4.

43. The first question that presents itself for our determination is as to who published Exhibits P-3 and P-4. That they were in fact published during the election is not denied. According to the petitioner they were published either by the first respondent or by someone else with his consent. The attitude of the first respondent on this point is somewhat ambiguous. In the statement field by him he did not state as to how Exhibits P-3 and P-4 came to be published or who published them. His statement was studiedly vague on this point. In para 18 of his statement he alleged as follows:—

“He, however, submits that if persons who have got the same published not believing them to be untrue felt in all sense of duty as a part of the democratic machinery to give publication to allegations which, they consider true in the interest of purity of elections the petitioner cannot complain that such allegations come within the category of corrupt practice within the meaning of Section 123(4) of the R.P Act, 1951.”

44. On 27th July, 1957 the petitioner filed I.A No. I an application under Order VI, Rule 5 C.P.C read with Section 90 of the R.P Act, 1951, calling upon the first respondent to disclose the name of the person or persons who published Exhibits P-1 to P-5. This application was resisted by the first respondent. He evidently took the stand that he did not know who published these leaflets. Consequently the said application was dismissed by the Tribunal, observing:—

“A perusal of para 18 of the written statement of the first respondent shows that the first respondent had denied that the documents marked A to E (Exhibits P-1 to P-5) were published by him or his election agent or persons interested in him. This does not mean that the respondent knows the names of the persons who published the said documents. In these circumstances I.A No. I is dismissed. No costs.”

45. It is difficult to believe that the first respondent did not know who published Exhibits P-3 and P-4. It is still more difficult to believe that even after the election Petition was filed, the first respondent did not care to enquire and ascertain as to how Exhibits P-3 and P-4 came to be published. Suffice it to say that in the circumstances of this case, it should have been possible or at any rate it would have been easy for the first respondent to investigate and find out who published Exhibits P-3 and P-4. The circumstances under which these leaflets were published as well as their publication remained a guarded secret till a late stage of the enquiry. It was only when his witnesses were being examined the first respondent sprang a surprise by producing R.W 39 (Sri Narasimhan) and R.W 41 (Sri R.N Byra Reddy) in a more or less dramatic manner to speak to the fact that R.W 39 (Sri Narasimhan) was the author of Exhibit P-4 and R.W 41 (Sri R.N Byra Reddy) was the author of Exhibit P-3. Even they only deposed that they got the leaflets in question printed but they did not know what happened to them. Even if we take this evidence to be true, could it be denied that these documents were published by the “Agents” of the first respondent? I may repeat that the first respondent was a candidate put up by the Communist Party as well as by the United Front and was supported by those organisations. R.W 39 Sri Narasimhan is a Member of the Provincial Committee of the Karnataka Branch, of the Communist Party of India. He stood and was elected to the Mysore Assembly from the Kolar Constituency on the Communist ticket. He himself admits that he had campaigned for the United Front candidates in other Constituencies in the Kolar District. His evidence makes it clear that he published Exhibit P-4 as a part of the election campaign and to counter the propaganda carried on by the Congress Party. He further states:

“We had no time to convene a formal District Communist Party meeting of all the members. With the available leading Members, i.e, Sri Byra Reddy, Sri Govindhan, Sri Venkatagiriappa, Sri Vasan and others, I consulted and published Exhibit P-4 pamphlet.”

He speaks to the fact he had campaigned for the first respondent both before and after the publication of Exhibit P-4. His evidence on this point is corroborated by the first respondent. Similarly R.W 41 (Sri Byra Reddy) was one of the leading figures in the United Front. He is an Advocate of standing. Admittedly he is one of the founders of the United Front in Kolar District during the last election. He was a member of its Executive Committee and was one of the Secretaries of the United Front. The first respondent had paid contribution both to the Communist Party and to the United Front, evidently for carrying on propaganda on his behalf. Sri Byra Reddy is also an office bearer of the District Ryots Sangha and the first respondent was the President of Ryots Sangha at Chintamani. This witness admits that he toured the entire district of Kolar and three Taluks in Bangalore District, i.e, Bangalore North, Hoskote and Devanahalli to support the candidature of the United Front candidates. A reading of his evidence shows that he was one of the top leaders of the United Front and that he compaigned actively for the United Front candidates. The evidence of R.W 39 and R.W 41 coupled with the evidence of the first respondent, even leaving aside the other evidence, leaves me in no doubt that both R.Ws 39 and 41 were the “agents” of the first respondent as understood in election law. Hence even if we accept the first respondent's case that he did not publish Exhibits P-3 and P-4 and that they were not published with his consent, he cannot escape the responsibility for its publication unless it is shown that he is protected by Section 100(2). Such a protection was neither pleaded nor is there any evidence to show that he fulfils the conditions laid down in Section 100(2) of the Act.

46. But it is contended on behalf of the first respondent that this Court is precluded from considering the case that R.Ws 39 and 41 were the “agents” of the first respondent as no such allegations were made in the petition; nor was it alleged therein that these two persons published Exhibits P-4 and P-3 respectively; and under any circumstance the petition was defective for want of particulars as required by Section 83. This argument has found favour with the Tribunal. But there is no merit in the same. Section 83(1)(b) of the Act requires that an election petition should set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the Commission of each such practice. Be it noted that the particulars of the statement of facts required are subject to the qualification “as possible”. In the instant case, the petitioner could not have the knowledge as regards the persons who published Exhibits P-3 and P-4. Even the first respondent's case is that he did not know at the time he filed the written statement as to who published them. If that is so, the petitioner's plea of want of knowledge, cannot be said to be unbelievable. The petitioner filed I.A No. I to ascertain the names in question. But the first respondent did not, but according to him could not, supply the necessary information though from the circumstances of the case, I am convinced that the first respondent deliberately suppressed the relevant information from the petitioner. For these reasons it cannot be said that the petition is defective for want of necessary particulars. Moreover, it is not shown how the first respondent is prejudiced by these omissions. It is the first respondent who produced and examined as his witnesses R.W 39 (Sri Narasimhan) and R.W 41 (Sri Byra Reddy). It is clear enough that he knew that they were canvassing for him during the election and consequently they were his “agents”, In these circumstances it was up to him to plead and prove the grounds set out in Section 100(2) of the Act. Hence if Exhibits P-3 and P-4 come within the mischief of Section 123(4) of the Act then the election of the first respondent is liable to be set aside.

47. We shall next consider whether the allegations made in exhibits P-3 and P-4 relate to the character or conduct of the petitioner. Strangely enough the Tribunal thought that the allegations, “it is not a new thing that the Congress candidate Sri M.C Anjaneya Reddy has been trying to suppress his opponents by means of violent acts. The Members of the public have in their memory many such acts having taken place in his political career” found in Exhibit P-3 and several allegations contained in Exhibit P-4 do not touch the person of the petitioner but deal with him as a Politician. The occassion for making these allegations might have arisen because of the fact the petitioner was a candidate in the election. But the allegation of fact, (i) that he has been hatching a conspiracy to stop the workers on behalf of the first respondent, from carrying on propaganda and to bring his propaganda to a standstill, (ii) that on 24th February, 1957, 300 people on behalf of the petitioner beat the Muslim workers of the Communist Party and those workers lost their, consiousness, (iii) the disciples (Shishyaru) of the petitioner beat Narayanaswami with agulas when he had gone to take care of the Ryots Association as a consequence of which Narayanaswami died an unnatural death, and (iv) the several insinuations directed against the first respondent are certainly accusations touching the person of the petitioner. Under no circumstance can these allegations be regarded as having been directed against the petitioner merely in his role as a politician. When the allegations of fact pierce the politician and touch his person then an offence under Section 123(4) is committed. There may be some times border line cases where it may be difficult to say whether the allegations have exceeded the permissible limits or not. But in the present case I do not think that we are faced with any such difficulty. The target of the attack was the petitioner,—his character and conduct. Equally there is no doubt that the allegations contained in Exhibits P-3 and P-4 are statements of facts and not opinion.

48. Next we may consider whether the statements in question are “reasonably calculated to prejudice the prospects” of the petitioner's election. These statements were published between 26th February, 1957 and 3rd March, 1957, i.e, during the thick of the election fight. The contents of Exhibits P-3 tod P-4 make it abundantly clear that they were intended to prejudice the prospects of the petitioner's election. These personal attacks against the petitioner could not have been provoked by any propaganda carried on by the Congress Party. It is not alleged that the Congress Party had made any personal allegations, against the first respondent. They were clearly made with a view to bring the petitioner down in the estimation of the public and create prejudice against him and damage his prospects in the election.

49. We now come to the question whether the statements of fact made in Exhibits P-3 and P-4 are false and were published knowing them to be false at any rate not knowing them to be true. The burden of proving these negative facts is on the petitioner. He can do it only, by placing the relevant circumstance before the Court and it is for the Court to draw the necessary inference from the proved facts. Ordinarily it may not be possible to prove these facts by evidence aliunde. The petitioner has examined himself and has denied the allegations contained in Exhibits P-3 and P-4. There was opportunity for the opposite side to cross-examine him and elicit facts in support of their case. Barring some desultory cross-examination and some random suggestions indicating that the petitioner had a bad past, nothing substantial has been elicited from his evidence to show that there is any justification for the serious allegations contained in Exhibits P-3 and P-4. The petitioner has fully set out his case in his Election Petition. The first respondent has met these allegations in his written statement. In paragraph 8 of the written statement, it is stated:

“That the shop of Dastagir Sab was looted is true and the same is the subject matter of a judicial trial. This matter being sub-judice cannot be the subject matter of an election enquiry by a side wind as it were.”

The written statement is silent as to who looted Dastagir Sab's shop. In para 14, it is stated:

“The allegations that the Communist Election Office was raided and that the workers of the Communist Party and the party's goods were interfered with are true.”

Again it is not mentioned whether the petitioner had anything to do with it. It further alleged:

“The petitioner has some bad record in that it is a fact that he disturbed K.C Reddy's Election (possibly meaning some election meeting) in 1952.”

It will be remembered that both the petitioner as well as the first respondent were charge-sheeted for this alleged offence. But later on the charge-sheet was withdrawn. In paragraph 15, it is stated:—

“The case relating to the death of Narayanaswami is also pending trial and it is not proper that the matters relating there to should be dragged in the Election Petition and exploited by the petitioner and his men. However it is false and mischievous to allege that the situation created by Narayanaswami's death was exploited by the first respondent and his partisans. This respondent is not aware of Narayanaswamy being a Congress worker on behalf of the petitioner. The allegations relating to Narayanaswami's death have absolutely no relevancy to and in an election petition. It is hard to imagine how that the pamphlets A, B, C, D (Exhibits P-1 to P-4) could interfere with the free exercise of votes, to the grave detriment of the petitioner.”

In paragraph 18, it is stated:

“This respondent does not admit that the allegations made in “A” to “B” (Exhibits P-1 and P-2) documents are false and come within the category of Section 123(4) as alleged in para 12 of the petition. He, however, submits that if persons who have got the same published not believing them to be untrue felt in all sense of duty as a part of the democratic machinery to give publication to allegations which they consider true in the interest of purity of elections the petitioner cannot complain that such allegations come within the category of corrupt practice within the meaning of Section 123(4) of the R.P Act, of 1951…………”

From these it is seen that the first respondent did not make bold to assert in his written statement that allegations contained in Exhibits P-3 and P-4, at any rate the more serious allegations therein are true. No evidence was adduced by the first respondent to substantiate any of these serious allegations made in Exhibits P-3 and P-4. A reading of the evidence of R.Ws 39 and 41 shows with what supreme indifference these allegations were made. They do not claim to know personally the truth of the allegations made by them. It is true that they assert that the allegations made by them are true. But no facts are disclosed in support of this assertion. They claimed to have got their facts from others, who have not been examined in the case. They could not have made these allegations with any sense of responsibility. The circumstances under which these allegations are made, the sweeping manner in which they are made, the serious nature of those allegations, the use to which Exhibits P-3 and P-4 are put and the total lack of any reliable evidence on behalf of the first respondent in support of these allegations leave no doubt that these allegations are false and the maker or makers of those statements knew them to be false or at any rate could not have believed them to be true. It cannot be said that these statements are even exaggerated versions of true facts. Even the proverbial mole-hill is not there. In Exhibit P-3 it is suggested that it is usual with the petitioner to suppress his opponents by violent means. Not one such incident is satisfactorily proved in this case, may there is not even material to think that there is any basis for this allegation. The story of the conspiracy to silence the propaganda of the first respondent, the allegation of petitioner's disciples murdering Narayanswami the so called supporter of the first respondent and the allegation about the organised and limitless-wickedness of the petitioner does not appear to have a semblance of truth about them. No reasonable man much less R.W 39 and R.W 41 or for that matter the First Respondent, all men of wordly wisdom, could have believed them to be true.

50. At first eight it appears as if there are material differences between the English Law and Indian Law in the matter of establishing the corrupt practice of making false statements during election. The English Law requires the petitioner to prove that the statement of facts made is false. Once that is established it is for the opposite side to establish that the maker of that statement had reasonable grounds for believing and in fact he believed the same to be true. But in this Country the burden of proving that (i) the statement of fact made is false and (ii) the maker believed it to be false or did not believe it to be true is placed on the petitioner. But on an examination it will be found that the difference is only in the approach and emphasis and does not touch the substance of the matter. This would be clear if we bear in mind the fact that the petitioner is required to prove a negative and further that when a fact is especially within the knowledge of any person the burden of proving that fact is upon him.

51. The case of the petitioner goes further and he charges the first respondent with having published Exhibits P-3 and P-4 or in the alternative his case is that they were published with his consent. I have earlier set out the community of interest that existed between R.Ws 39 and 41 and the first respondent in the matter of the election of the first respondent. R.Ws 39 and 41 did not belong to the rank and file of the party. They held prominent positions in the United Front. It may be remembered that according to the first respondent he was in the procession and later in the Ryot Sangha Office on 24th February, 1957 and hence he had the opportunity to know the true state of facts. At least he had better opportunity to ascertain things more easily than R.Ws 39 and 41, who do not belong to Chintamani nor were they present in Chintamani on 24th February, 1957. Yet, his written statement is revealing not because of what is stated in it but because of its omission to vouchsafe the correctness of the statements found in Exhibits P-3 and P-4 though the first respondent in his evidence went all out to support these allegations. This hide and seek attitude could only be explained on the hypothesis that he had understandable hesitation in supporting the allegations contained in these leaflets, the reason being that he knew them to be false or that he knew them not to be true. The fact that he did not disclose the names of R.Ws 39 and 41 till a late stage during the enquiry of the case is not without significance. It is not satisfactorily explained how he was able to discover during the enquiry the fact that R.Ws 39 and 41 were the authors of Exhibits P-4 and P-3 respectively. The first respondent admits that both R.Ws 39 and 41 met him at the police station on 25th February, 1957. They had gone to Chintamani to find out for themselves about the happenings there on 24th February, 1957. Yet according to all these witnesses, while they talked on other matters for some mysterious reason they failed to talk about the incidents that took place at Chintamani on the previous day. Again admittedly they met the first respondent after the publication of Exhibit P-3 and Exhibit P-4 and before the election. But we are told that they did not tell the first respondent anything about Exhibits P-3 and P-4. All these are difficult to digest and it does not require a microscope to find out the truth. We are told on behalf of the first respondent that the petitioner should prove by positive conclusive evidence that the first respondent consented to the publication of Exhibits P-3 and P-4 and if the consent in question has to be inferred from circumstantial evidence then not merely the circumstances must be proved by unimpeachable evidence, but also the inference to be drawn should be the only inference possible. It is true that the circumstances relied on must be proved by satisfactory evidence and the inference to be drawn must be a reasonable one, the benefit of doubt if any going to the first respondent. But it is not correct to imagine that law has laid down impossible conditions in the matter of proving corrupt practices. I refuse to believe that the Legislature's intention was to make a mockery of democracy in this country and its purpose was merely to lay down high sounding but meaningless maxims. The petitioner has examined a large number of witnesses to prove that these leaflets were distributed widely during the election by the first respondent and his workers. Some of them appear to be disinterested witnesses. These witnesses also speak to the fact that the first respondent and his supporters repeated the allegations contained in those leaflets in, their election meetings.

52. It is true that in an enquiry of an Election Petition a large number of witnesses are examined by the parties. The emotion worked up during the election is kept going during the enquiry and it is not surprising that some at least of their supporters make common cause with them during the enquiry. Hence the evidence adduced will have to be scrutinised with more than ordinary care. But it will be destructive of all principles relating to the appreciation of evidence if we assume that the oral evidence adduced by the parties is invariably false. In this case the evidence of several of the witnesses, particularly P.W 3 (Narayanappa), P.W 4 (Appi Reddy), P.W 6 (Mallappa), P.W 6 (Gangareddy), P.W 13 (Chowdanna), P.W 16 (Chowdappa) and P.W 25 (Rangappa) appear to be disinterested. The Tribunal has given no reason to discard their evidence. All these witnesses speak to the distribution of Exhibits P-3 and P-4 or at least one or the other of them. They further speak about the publication of the contents of those leaflets. Their evidence accords with the probabilities of the case. The success of a candidate at the polls will not be lightly set aside as it is a most serious affair. Compelling reasons are required to set at naught the apparent Verdict of the people. But the Courts will not be justified in finding out excuses for rejecting election petitions however well founded they are. Success of democracy in this country depends on free and fair elections. If we overlook the factors undermining the purity of elections then democracy must necessarily be short lived in this country.

53. From the evidence on record it is clear that the death of Narayanaswami was a signal for the two parties, the Congress and the Communists, to exploit that occasion for election purposes. It is likely that the Congress Party set the ball rolling and started a campaign, open or whispering or both, that the Communists were responsible for the murder of Narayanaswami. But that is not a justification for indulging in personal attacks against the petitioner. It is not shown that the Congress Party or the petitioner had carried on any campaign touching the personal character or conduct of the first respondent. Even if they had done so, the corrupt practice proved would still come within the scope of section 123(4). The fact that it was provoked by similar false statements of facts by the other side is no defence in law. See Halsbury's Laws of England, Third Edition, Volume 14, Edited by Lord Simonds at page 227. The learned author relying on Monmouth (Boroughs) case states the law as follows:—

“It is irrelevant whether the statement complained of has or has not been provoked by a statement of a similar character made on the part of an opponent.”

The law in this Country appears to be the same.

54. It is urged on behalf of the first respondent relying on the evidence of R.Ws 39 and 41 that Exhibits P-3 and P-4 were provoked by Exhibit D-62, a statement said to have been published by one Sri Seethappa, the Secretary of the District Congress Committee, Kolar. There is no reference to this statement in the written statement filed by the first respondent; nor was it suggested to any of the witnesses examined on behalf of the petitioner. This document (a copy of the printed pamphlet) was produced for the first time when R.W 39 (Sri Narasimban) was examined. No explanation is offered as to why this document was not produced earlier. There is no proof to show that this leaflet had been published either by Sri Seethappa or by the District Congress Committee. It is contended on behalf of the petitioner that it is a got up document. Though it has not been proved that leaflets similar to Exhibit D-62 had been published by the Congress Party, there is the evidence of R.W 39 and R.W 41 to show that such leaflets were distributed by the Congress volunteers. I am inclined to believe this evidence. It is true that the existence of this document has not been referred to in the written statement nor was it produced at the appropriate stage. But there is no need to be surprised about this indifference if one knows the way in which the first respondent's case has been handled. Even if we accept the evidence of R.Ws 39 and 41 on this point, it is of no assistance to the first respondent as no amount of provocation could afford a valid defence for publishing Exhibits P-3 and P-4.

55. In the result, I must hold that the statements of fact contained in Exhibits P-3 and P-4 and enumerated earlier came within the mischief of section 123(4) read with section 100(1)(b) of the Act. In view of this finding it is necessary to consider whether the petitioner has made out a case under Section 100(1)(d)(ii) of the Act.

56. The last point for decision is whether the first respondent has contravened the provisions of section 77 of the Act. In Miscellaneous Appeal No. 52 of 1958 (D. Venkataramiah v. E. Narayana Gowda—Bangarpet Election Case) we have held that before an election could be invalidated, the successful candidate should be proved to have contravened section 77(3). Mere contravention of section 77(1) or 77(2) is by itself insufficient to vitiate the result of an election. In that case we have observed that if any candidate contravenes sub-sections (1) or (2) of section 77, the Courts may draw adverse inference against the returned candidate in appropriate cases. We have also indicated the circumstances under which an adverse inference may be drawn. Hence the only thing to consider in this case is whether there is any contravention of section 77(3), i.e, whether the first respondent is proved to have spent more than Rs. 6,000.

57. The learned Counsel for the petitioner has pressed before us several items of expenditure alleged to have been incurred by the first respondent, but not included in his election return. According to him these items are deliberately suppressed.

58. The first item to which our attention is invited is the expenditure alleged to have been incurred by the first respondent in hiring the car bearing registration No. MYC 7674. It is admitted that this car was used by the first respondent for election purposes for a week. But according to him, R.W 42 (Abdul Khuda of Chintamani) procured that Car for him free of hire. This car belonged to one Abdul Khuddus of Anekal. The petitioner has examined P.W 31 (Abdul Azeez) who claimed to have been the driver of that Car during the time when the same was used by the first respondent. His evidence is to the effect that the car was hired by the first respondent at the rate of Rs. 30 per day and that he was paid Rs. 210 towards the hire and he has also paid at the rate of Rs. 3 per day as allowance. R.W 42 in his evidence says that P.W 31 was not the driver of that car. But this evidence cannot be accepted as true as no suggestion to this effect was made to P.W 31 when he was examined. In fact the first respondent's witnesses themselves have admitted that the driver of the car was a muslim. R.W 42 tried to give the go by to this evidence and has sworn that one Naranappa was the driver. It is not possible to believe the testimony of R.W 42 on this point. There is little doubt that P.W 31 was the driver of the car at the time when it was used by the first respondent. The owner of the car was not examined by either of the parties. It is urged on behalf of the petitioner that the owner was not willing to give evidence, as he had hired out a private car and thereby contravened the law. No satisfactory explanation is offered by the first respondent as to why the owner has not been examined by him. It is not the case of the first respondent that the owner of the car is a friend of his. It is difficult to believe that R.W 42 could have secured some one's car free of charge and made it over to the first respondent. It will also be seen from Exhibit P-12 the voucher taken for the allowance paid to the driver, that the same is not executed by the driver but by R.W 42. I am of opinion that the car in question had been hired by the first respondent and he has failed to include the hire charges given for the same in his election returns.

59. We then come to MYC 566. It is a seven seater van. The first respondent admits that he used this vehicle during the election. The van in question belonged to R.W 38 (Hyder Ali). He is its owner-driver. The case of the first respondent is that one Seetharama Reddy of Madanapalli, a friend of his, pursuaded R.W 38 to lend this van to him free of charge. The said Seetharama Reddy has not been examined in the case. R.W 38 supports the first respondent's case. He says that he was using this van to carry commodities from the village to the shandy. It may be also seen that R.W 38, who claims to have made available this van to the first respondent free of charge, was quite keen to take his daily allowance. According to the first respondent as well as this witness the driver (R.W 38) was paid Rs. 19-8 as allowance. This circumstance does not fit in with the story of giving the van free of charge. On the side of the petitioner there is the evidence of P.W 44 (Syed Fatullah) to the effect that this van though registered as a private vehicle is being let out for hire. This witness is a bus driver, driving a bus from Madanapalli to Chintamani. He speaks to the fact that when R.W 38 was working in Chintamani during the election he had occasion to meet him there and he learnt from him that he had hired out his van to the first respondent. There is no reason to disbelieve this evidence.

60. Next we come to vehicle bearing registration No. MYK. 582. This car belongs to one Sabu Sab (R.W 29). He was abmittedly a supporter of the first respondent. He swears to the fact that he gave the car to the first respondent for his use free of charge. There is no reason to disbelieve his evidence. The petitioner has not been able to adduce any evidence to show that this car had been given to the first respondent for hire. The evidence on record is not sufficient to conclude that the said or was taken on hire. The petitioner has also alleged that the first respondent has used vehicles bearing registration Nos. ADC. 599, MSZ. 968 and MYC. 1359, but he has failed to include in his election returns the hire charges paid in respect of those vehicles. There is no satisfactory evidence to show that these vehicles were used by the first respondent or that any hire was paid for the same.

61. It was strenuously argued on behalf of the petitioner that the first respondent has deliberately failed to include in his accounts, all the petrol charges incurred by him. This argument was mainly founded on the fact that in several of the bills issued by the petrol bunk clerks, the number of the vehicle was not mentioned. We are not shown any rule or regulation which requires the persons in charge of petrol bunks to mention the number of the vehicle for which the petrol is used. It is true that some of the petrol bills produced by the first respondent bear the number of the vehicle for which it is used. It is possible that some times the number is mentioned but on other occasions it was not mentioned. From this no adverse inference can be drawn against the first respondent.

62. It was next argued that though some of the petrol bills submitted by the first respondent show that particular vehicles had been used during the election, corresponding hire charges are not mentioned in the return of election expenses. It is explained on behalf of the first respondent that the petrol taken under some of those bills was used for the cars of the party leaders who came from other areas. There is no reason to reject this explanation. I do not think that the petitioner has been able to satisfactorily establish the suppression of any other items of expenditure under this head.

63. It was next argued that the first respondent has suppressed several items of expenditure incurred by him for printing, etc., and in particular be has failed to include the expenses incurred for publishing Exhibits P-1 to P-5. I have earlier come to the conclusion that there is no satisfactory evidence to show that the first respondent was responsible for printing Exhibits P-1 and P-2. There is no evidence to show that the first respondent has incurred or authorised any expenditure for publishing Exhibit P-5. In view of my earlier findings that the first respondent was responsible for the publication of Exhibits P-3 and P-4, I must hold that he was bound to include the expenditure incurred for printing these leaflets as he had either incurred the same or at any rate authorised that expenditure.

64. From the evidence accepted by me as established, it follows that the first respondent did suppress certain items of expenditure incurred or authorised by him. But that is not enough to hold that he has contravened section 77(3) of the Act. We must be in a position to come to a reasonable conclusion that he has incurred or authorised expenditure exceeding Rs. 6,000. His election return shows that the expenditure incurred or authorised by him is Rs. 2,977-1-6. From the evidence on record it is not possible to come to a satisfactory conclusion that the expenditure incurred by him exceeded Rs. 6,000.

65. Sri V. Krishnamurthy the learned counsel for the petitioner, contends that the first respondent would not have suppressed any items of expenditure except for the fact that if all the items of expenditure incurred are included in the accounts the same would exceed the prescribed maximum. There is force in this contention. But one should not overlook the fact that some items of the expenditure might have been suppressed to be on the safe side and not because the addition of these items would take the expenditure incurred or authorised beyond the prescribed maximum. For these reasons I must hold that the petitioner has failed to establish that the first respondent has contravened section 77(3) of the Act.

66. From the conclusions reached earlier, it follows that the election of the first respondent is liable to be declared void, under section 100(1)(b) read with section 123(4) of the Act. Hence I set aside his election. As a consequence it follows that I have to name him under section 99. But at this stage I must mention that from the evidence on record it is clear that the first respondent was a victim of the foul atmosphere that prevailed in Chintamani Constituency during the election. Neither the Congress Party nor the Communist party observed the ethics of a democratic election. The propaganda carried on by both these parties was of a low level. They lost no opportunity to exploit every occasion that arose. The death of Narayanaswami came in handy for them. On going through the evidence the impression left in one's mind is that the first respondent never led his team but allowed himself to be led by the bosses of the United Front. He was willing to toe the line. It appears that his sole anxiety was to win the election. He seems to have left the planning of his election campaign in other hands and was willing to adopt the line of least resistence.

67. The petitioner has not made out a case to declare him as elected. There is no material from which we could conclude that he would have been elected but for the corrupt practices committed.

68. I do not think that I will be justified in awarding costs to the petitioner in this case. There is reason to believe that the Congress Party was the first to take advantage of Narayanaswami's death. The rest followed as a sequence. In these circumstances, I direct the parties to bear their own costs in this Court as well as before the Tribunal.

Nittoor Sreenivasa Rau, J.:— I agree with the conclusions arrived at by my learned brother and with the order proposed by him.