TMI Blog1969 (2) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... y contested and Mr. S. K. Patil gave his full support to the petition. The election petition failed and it was dismissed with an order for costs against the election petitioner and Mr. S. K. Patil. Two appeals have now been filed against the judgment of the Bombay High Court, one by the election petitioner and the other by Mr. S. K. Patil. They have been heard together and this judgment will dispose of both of them. The petition was based on numerous grounds which were, set out in paragraph 2 of the petition. These grounds were shown separately in sub-paragraphs A to J. Sub-paragraphs A to D dealt with the invalidity of the election for non- compliance with s, 62 of the Representation of the People Act and Arts. 326 and 327 of the Constitution. These concerned the secrecy of ballot (A), registering of some voters in two constituencies (B), omission of qualified voters from electoral rolls (C) and impersonation by persons for dead or absent voters (D). These, four grounds were given up in the High Court itself and we need not say anything about them. Sub-paragraphs E to J contained allegations of corrupt practices. The petition was accompanied by four annexures Nos. A to D which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint under s. 123 (4) of the Representation of the People Act. In Sub-paragraph 1 four issues of the 'Maratha' of the 5th and 31st January, 1967 and 5th and 8th of February, 1967 were exhibited as Ex. C. It was stated in the first two that the Shiv Sena supported the Maharashtra traitor Sadoba Patil and that the Shiv Sena was really Sadoba Sena. A cartoon showing Mr. S. K. Patil as Vishwamitra and the leader of Shiv Sena as Menka with the caption 'Sadoba denies that he has no connection with Shiv Sena like Vishwamitra Menka episode , was the third. The last of these articles was headed harassment from Gondas of Sadoba Patil Shiv Sena in the service of Sadhshiv (S. K. Patil) . These statements were said to be false and made by the 'Maratha' in favour of respondents other than respondent No. 2 (Mr. S. K. Patil) or at any rate on behalf of Mr. Fernandez. These were said to prejudice the minority communities and thus to offend section 123(4) of the Representation of the People Act. The statements were said to be made with the knowledge and consent of Mr. Fernandez and for his benefit. In Sub-paragraph J three issues of 'Maratha' of the 24th, 28th a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K. Patil won elections by tampering with the ballot boxes or substituting the same . These statements were said to be made by Mr. Fernandez deliberately and maliciously and that he believed them to be false or did not believe them to be true. The report of the speech was quoted from the 'Maratha' of February 1, 1967 and was included as part of Ex. E. In the second Sub-sub-paragraph a Press Conference at Bristol Grill Restaurant on February 9, 1967 addressed by Mr. Fernandez was referred to. At that Conference Mr. Fernandez charged Mr. S. K. Patil with unfair and unethical electioneering practices and as illustrations of his methods mentioned the release of 70 dangerous characters from jail on parole and the suspension of externment orders against some and the allowing of some other externed persons to return, were alleged. It was also said that these persons were being used by Mr. Patil in his campaign. Extracts from the issues of the 'Maratha' of the 10th and 11th February, 1967 were made part of annexure E. In the third Sub-sub-paragraph a public meeting at Sabu Siddik Chawl, of' February 10, 1967 was referred to. At that meeting, it wag alleged, Mr. Ferna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one of the Advocates for the petitioner replied to the objection as follows : We undertake to file the original issues and official translations later as the same is (sic) with the Chief translator, High Court, Bombay before the service of Writ of Summons . Till July 3, 1967 no effort seems to have been made to file the originals. On that date the 'Rozanama' read as follows Mr. Jethmalani applies for leave to amend the petition by pointing out that 'D' in last sentence of paragraph 2 on page 12 of the petition be corrected and read as 'E' and to annex reports in original P. C. leave to amend granted. The issues were settled on the same day and particulars were asked for. On July 7, 1967 the 'Rozanaina' read as follows Mr. Gurushani tenders the original of the exhibits A (Coll) to Exhibit E (Coll) mentioned in para 2J of page 1 1 of the petition. A chamber summons was taken out because the particulars were not supplied and on August 4, 1967 the particulars were furnished. It was then on September 12, 1967 that the application for seven amendments was made, four of which were allowed and three were rejected. This was by an order dated Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be found in Sub-paragraphs 2E, H, I and J. The change of Exs. D to E and the filing of E show that the extracts which were with the translator were referable to those extracts already mentioned in the petition and not those mentioned in the last paragraph of 2J. It will be noticed that that paragraph refers to 33 numbers of the 'Maratha'. Extracts from those were furnished only on July 3, 1967 when Ex. E was separately filed and according to the Rozanama, the originals were filed on July 7, 1967. Mr. Kanuga could not have referred to all the 33 issues of the 'Maratha'. Only 10 extracts from the 'Maratha' were in Exs. A to D and of these eight are included in the list of 33 numbers of the 'Maratha' in the last paragraph of 2J. If they were already filed, Mr. Kanuga would have said so and not promised to file them later. He mentions in his note that they were with the translation department and would be filed later. If all the 33 issues of the 'Maratha' were already filed there would be no occasion for the office objection and the reply of Mr. Kanuga could apply to two numbers only. They were the issues of 25th January and 5th February, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 86(5) particulars can be amended and amplified, new instances can be cited and it is an essence of the trial of an election petition that corrupt practices should be thoroughly investigated. He refers us to a large body of case law in support of his contention. On the other hand, Mr. Chari for Mr. Fernandez contends that there was no reference to the speeches by Mr. Fernandez in the petition. The cause of action was in relation to the publication in the 'Maratha' and not in relation to any statement of Mr. Fernandez himself and that the amendment amounts to making out a new petition after the period of limitation. To decide between these rival contentions it is necessary to analyse the petition first. Paragraph 2J as it originally stood, read as follows : The Petitioner says that false statements in relation to character and conduct of the Respondent No. 2 were made by the 1st Respondent and at the instance and connivance of the' 1st. Respondent, Maratha published the following articles, as set out hereinafter. The petitioner says that the said allegations are false and have been made with a view to impair and affect the prospects of Respondent No. 2's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Law. By yet another application reference to an article in the 'Blitz' was 'Sought to be included as Sub- paragraph 2L. At the conclusion of the arguments on this part of the case we announced our decision that the amendment relating to the speeches of Mr. Fernandez at Shivaji Park, Sabu Siddik Chowk and Dr. Vigas Street and his Press Conferences at Bristol Grill Restaurant and the article in the 'Blitz' ought not to have been allowed but that the amendment relating to the agency of the 'Maratha' etc. and that seeking to incorporate the averment about the lack of belief of Mr. Fernandez were proper. We reserved our reasons which we now proceed to give. The subject of the amendment of an election petition has been discussed from different angles in several cases of the High Courts and this Court. Each case, however, was decided on its own facts, that is to say, the kind of election petition that was filed, the kind of amendment that was sought, the stage at which the application for amendment was made and the state of the law at the time and so on. These cases do furnish some guidance but it is not to be thought that a particular case is intende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted in the interests of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void. (2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied :- (a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent; (c) that the candidate and his election agent took all reasonable means, for preventing the commission of corrupt practices at the election, and learning an election to be void. These include corrupt practices committed by the candidate, his election agent and any person with the consent of the returned candidate or his election agent. The second s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) that in fact the petitioner or such other candidate received a majority of the valid votes; or (b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the High Court shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected. practice committed in his interest by an agent other than an election agent or by the improper reception, refusal or rejection of votes or by any noncompliance with the provisions of the Constitution or of the Representation of the People Act or rules or orders made under it. This condition has to be established by some evidence direct or circumstantial. It is, therefore, clear that the substantive rights to make an election petition are defined in these sections and the exercise of the right to petition is limited to the grounds specifically mentioned. Pausing here, we may view a little more closely the provisions bearing upon corrupt practices in s. 100. There are many kinds of corrupt practices. They are defined later in s. 123, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not refer to all of them. For the purpose of these appeals it is sufficient if we refer to the fourth sub-section of s. 123. It reads : 123. The following shall be deemed to be corrupt practice for the purposes of the Act (4) The publication by a candidate or his agent or by any other person, with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election. This corrupt practice may be committed by (a) the candidate (b) his agent, that is to say- (i) an election agent (ii) a polling agent (iii) any person who is held to have acted as an agent in connection with the election with the consent of the candidate. (c) by any other person with the consent of the candidate or his election agent. We are concerned in this appeal with (a) and (b) (iii) men- tioned in our analysis. In the original petition the allegations were made on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then provides that the *Section 83. (1) An election petition- (a) shall contain a concise statement of the material facts on which the petitioner relies : (b) shall setforth 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; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings : (provided that where the petitioner alleges any corrupt practice, the petition shall also be accompained by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (2) Any y schedule or annexure to the petition shall also be singed by the petitioner and verified in the same manner as the petition. election petition must contain a concise statement of the material facts on which the petitioner relies and further that he must also setforth fun particulars of any corrupt practice that the Petitioner alleges including as full a stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had to be included in the petition and the particulars in a schedule. It is inconceivable that a petition could be filed without the material facts and the schedule by merely citing the corrupt practice from the statute. Indeed the penalty of dismissal summarily was enjoined for petitions which did not comply with the requirement. Today the particulars need not be separately included in a schedule but the distinction remains. The entire and complete cause of action must be in the petition in the shape of material facts,. the particulars being the further information to complete the picture. This distinction is brought out by the provisions of section 86 although the penalty of dismissal is taken away. Sub- section (5) of that section provides (5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Mr. Fernandez was left out. No allegation was personally made against him. The only allegations against him personally were contained in paragraph 2G. There it was said that Mr. Fernandez had made certain speeches to the effect that Mr. Patil was against the Muslims and Christians. No evidence was led and they were not even referred to at the hearing before us. The next reference in 2J is to statements of Mr. Fernandez. and published by the Maratha. These were specified and only three such statements were included. Since the gist of the election offence is the publication of false statements, the charge is brought home to the candidate through the publication by the Maratha. It is to be remembered that even the allegation that in doing so the Maratha acted as the agent of Mr. Fernandez, itself came by way of an amendment which we allowed as it completed the cause of action and is per- missible. The bar of section 86(5) (latter part) does not apply to it and under Order VI rule 17 of the Code of Civil Procedure, which is applicable as far as may be, such an amendment can be made. Similarly the allegations that such statements were false or were believed to be false or were not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne in so far as the election law provides. In a large number of cases it has been laid down by the High Courts in India that the material facts, must make out a charge and it is only then that an amendment to amplify the charge can be allowed or new instances of commission of corrupt practice charged can be given. If no charge is made out in the, petition at all the addition of particulars cannot be allowed to include indirectly a new charge. This was laid down in Din Dayal v. Beni Prasad and Another (15 E.L.R. 131), Balwan Singh v. Election Tribunal, Kanpur and Others(15 5E.L.R. 199) by the Allahabad High Court, in T. L. Sasivarna Thevar v. V. Arunagiri and Others (17. E.L.R. 313) by the Madras High Court and in Hari Vishnu Kamath v. Election Tri- bunal, Jaipur and Another(14 E.L.R. 147) by the Madhya Pradesh High Court. All these cases rely upon Harish Chandra Bajpai's case (11957] S.C.R. 370) to which we have referred. Harish Chandra Bajpai's case (11957] S.C.R. 370) was based on an English case Beat v. Smith (L.R. 4 C.P. 115). In that case it was held that under the Parliamentary Election Act of 1868 it was enough to allege generally in the petition that the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction enlist the support of certain government servants and that the appellant No. 1. had employed two persons in excess of the prescribed number for his election purposes. No list of corrupt practices was attached. Thereafter names were sought to be added. The amendment was allowed by the Tribunal after the period of limitation and the addition was treated as mere particulars. It was held by this Court that an election petition must specify grounds or charges and if that was done then the particulars of the grounds or charges could be amended and new instances given but go new ground or charge could be added after the period of limitation. The reason given was that the amendment introducing a new charge altered the character of the petition. Venkatarama Iyyar, J. emphasised over and over again that new instances could be given provided they 'related to a 'charge' contained in the petition. The result of the discussion in the case was summarised by the learned Judge at page 392 as follows : (1) Under s. 83(3) the Tribunal has power to allow particulars in respect of illegal or corrupt practices to be amended, provided the petition itself specifies the grounds o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the appellants in furtherance of their election prospects, and that thereby the corrupt practice mentioned in s. 123 (8) had been committed. The new matters introduced by the amendment so radically alter the character of the petition as originally framed as to make it practically a new petition, and it was not within the power of the Tribunal to allow an amendment of that kind.,' It would appear from this that to make out a complete charge the facts necessary must be included in relation to a 'ground' as stated in the Act. Merely repeating the words of the statute is not sufficient. The petitioner must specify the ground i.e. to say the nature of the corrupt practice and the facts necessary to make out a charge. Although it has been said that the charge of corrupt practice is in the nature of quasi criminal charge, the trial of an election petition follows the procedure for the trial of a civil suit. The charge which is included in the petition must, therefore, specify the material facts of which the truth must be established. This is how the case was understood in numerous other cases, some of which we have already referred to. In particular see J. Devaiah v. Nagapp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist of an election offence the charge was against the 'Maratha'. If it was intended that Mr. Fernandez should be held responsible for what he said then the allegation should have been what statement Mr. Fernandez made and how it offended the election law. In 2J itself only three statements were specified and two of them had nothing to do with Mr. Fernandez and the third was merely a news item which the 'Maratha' had published. There was no reference to any statement by Mr. Fernandez himself throughout the petition as it was originally filed. In fact there was no charge against Mr. Fernandez which could have brought the case within s. 101 (b) of the Act. The attempt was only to make out the case under s. 100 (1) (d) against the 'Maratha' (or Mr. Atrey) pleading Mr. Atrey as agent of Mr. Fernandez. That too was pleaded in the amendments. The result is that the case gets confined to that of a candidate responsible for the acts of his agent. In the argument before us Mr. Chari for Mr. Fernandez conceded the position that Mr. Atrey could be treated as the agent of Mr. Fernandez. We are therefore relieved of the trouble of determining whether Mr. Atrey could be he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which had defamed the candidate and these posters were exposed on the walls. Rama Krishna admitted that he had seen these posters and also that he had paid for- the posters when the bill was presented to him. In fact he included the amount in his return of election expenses. It was from these combined facts that the consent of Rama Krishna to the corrupt practice of. making false and defamatory statements was held proved. The case therefore is not one in which the person while acting in a different capacity makes a defamatory statement. In the case from Rajasthan the rule laid down was that the association of persons or a society or a political party or its permanent members, who set up a candidate, sponsor his cause, and work to promote his election, may be aptly called the agent for election purposes. In such cases where these persons commit a corrupt practice unless the exception in s. 100(2) apply the returned candidate should be held guilty. We shall consider this question later. Before we deal with the matter further we wish to draw attention to yet another case of this Court reported in Kumara Nand v. Brijmohan Lal Sharma([1967] 2 S.C.R. 127). In that case s. 123(4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case that the statement that the respondent was the greatest of all thieves, was false. It is also not seriously challenged that the appellant did not believe it to be true. The contention that Avinash Chander's belief should have been proved must therefore fail. From this case it follows that to prove a corrupt practice in an agent is not enough, the belief of the candidate himself must be investigated with a view to finding out whether he made a statement which he knew to be false or did not believe to be true. When we come to the facts of the case in hand we shall find that most of the statements were made by a newspaper editor in the normal course of running a newspaper. Some of the passages which are criticised before us were made as news items and some others were put in the editorial. It is to be remembered that the newspaper ran a special column called George Femandez's Election Front . No article or comment in that column has been brought before us as an illustration of the corrupt practice. A newspaper publishes news and expresses views and these are functions normal to a newspaper. If the same news appeared in more than one paper, it cannot be said tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atha' and Chairman of the Sampurna Maharashtra Samiti. Mr. Atrey was also a candidate supported by the Sampuma Maharashtra Samiti. Mr. Fernandez and Mr. Atrey had a common platform and they supported each other in their respective constituencies. The 'Maratha' carried a column George Femandez's Election Front which was intended to 'be a propaganda column in favour of Mr. 'Fernandez. He contended that Mr. Fernandez could not be unaware of what Mr. Atrey was doing. He pointed out several statements of Mr. Fernandez in which he sometime unsuccessfully denied the knowledge of various facts. He contended lastly that Mr. 'Fernandez had social contacts with Mr. Atrey and could not possibly be unaware that Mr. Atrey was vociferously attacking Mr. Patil's character and conduct. Mr. Jethamalani therefore argued that there was knowledge and acquiescence on the part of Mr. Fernandez and as there was no repudiation of what the 'Maratha' published against Mr. Patil, Mr. Fernandez must be held responsible. The learned trial Judge in his judgment has given a summary of all these things at page 695 and it reads To sum up, it is clear from the above discuss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be directly proved and a consistent course of conduct in the canvass of the candidate may raise a presumption of consent. But there are cases and cases. Even if all this is accepted we are of opinion that consent cannot be inferred. The evidence proves only that Mr. Atrey was a supporter and that perhaps established agency of Mr. Atrey. It may be that evidence is to be found supporting the fact that Mr. Atrey acted as agent of Mr. Femandez with his consent. That however does not trouble us 'because Mr. Chari admitted that Mr. Atrey can be treated as an agent of Mr. Fernandez. It is however a very wide jump from this to say that Mr. Fernandez had consented to each publication ;as it came or ever generally consented to the publication of items defaming the character and conduct of Mr. Patil. That consent must be specific. If the matter was left entirely in the hands of Mr. Atrey who acted solely as agent of Mr. Fernandez something might be said as was done in Rama Krishna's case(C.A. No. 1949 of 1967 decided on April 23,1968) by this Court. Otherwise there must be some reasonable evidence from which an inference can be made of the meeting of the minds as to these, publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... himself attended one such meeting on February 4,1967, but he does not allege that there was any attack on his personal character or conduct. The learned trial Judge has also commented on this fact. We think that regard being had to the activities of Mr. Atrey as editor and his own personal hostility to Mr. Patil on the issue of Sampuma Maharashtra Samiti, we cannot attribute every act of Mr. Atrey to Mr. Fernandez. Mr. Chari is right in his contention that Mr. Atrey's field of agency was limited to what he said as the agent of Mr. Fernandez and did not embrace the field in which he-was acting as editor of his newspaper. It is also to be noticed that Mr. Atrey did not publish any article of Mr. Fernandez, nor did he publish any propaganda material. The meeting at Shivaji Park about which we shall say some- thing presently, was not held in Mr. Fernandez's constituency. The similarity of ideas or even of words cannot be pressed into service to show consent. There was a stated policy of Sampuma Maharashtra Samiti which wanted to, join in Maharashtra all the areas which had not so far been joined and statements in that behalf must have been made not only by Mr. Atrey but by seve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh OtherS(20 E.L.R. 275), Krishna Kumar v. Krishna Gopal(A.I.R. 1964 Rajasthan 21), Lalsing Keshrising Rehvar v. Vallabhdas Shankerlal Thekdi and Others(A.I.R. 1967 Gujarat 62), Badri Narain Singh and Others v. Kamdeo Prasad Singh and Another (A.I.R. 1961 Patna 41) and Sarat Chandra Rabba v. Khagendranath Nath and others(A.I.R. 1961 S.C. 334). It is not necessary to refer to these cases in detail except to point out that the Rajasthan case dissents from the case from Assam on which Mr. Jehamalani relied. The principle of law is settled that consent may be inferred from circumstantial evidence but the circumstances must point unerringly to the conclusion and must not admit of any other explanation. Although the trial of an election petition is made in accordance with the Code of Civil Procedure, it has been laid down that a corrupt practice must be proved in the same way as a criminal charge is proved. In other words, the election petitioner must exclude every hypothesis except that of guilt on the part of the returned candidate. or his election agent. Since we. have held that Mr. Atrey's activities must be viewed in two compartments, one connected with Mr. Fernandez and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arded as the agent no more can the 'Maratha'. A newspaper reporting a meeting does so as part of its own activity and there can be no inference of consent. What was necessary was to plead and prove that Mr. Fernandez said this and this. Then the newspaper reports could be taken in support but not independently. Here the plea was not taken at all and the evidence was not direct but indirect. Mr. Jethamalani referred to some similarity in the reaction of the 'Maratha' and Mr. Fernandez to the events. The Babu- bhai Chinai incident was said to be a fake by both the 'Maratha' and Mr. Fernandez, the Sayawadi meeting (not pleaded) was said to be followed by similar statements in the 'Maratha', the Bristol Grill Conference was reported in the 'Maratha'. All this shows that the rival party believed in certain facts but it does not show that the 'Maratha' was publishing these articles with Mr. Fernandez's consent. In fact this argument has been wrongly allowed. Before this there was not so much insistence upon consent as thereafter. Now it may be stated that mere knowledge is not enough. Consent cannot be inferred from knowledge alone. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tnesses who gave the exact words of Mr. Fernandez. Mr. Fernandez was alleged to have said that Mr. Patil was not honest and won elections by changing ballot boxes. Mr. Fernandez did not admit having made the speech. Four witnesses Tanksale, Bhide, Khambata and Bendre who alleged that they were present at the meeting deposed to this fact. We have looked, into their evidence and are thoroughly dissatisfied with it. Ramkumar, a reporter was also cited. He covered the meeting for the 'Indian Express' but his newspaper had not published this part and Ramkumar was examined to prove that it was deleted by Rao the Chief Reporter. The evidence of Ramkumar was so discrepant with that of Rao that the trial Judge could not rely on it and we are of the same opinion. The fact that in Ex. 56 Mr. Fernandez had spoken of the 'ways and means' of winning elections of Mr. Patil cannot be held to be proof nor the activities of Shanbhag in arranging for a watch of the ballot boxes. Every candidate is afraid that the ballot boxes may be tampered with and there is no inference possible that because Mr. Fernandez or Shanbhag 'his worker took precautions, Mr. Fernandez must have made a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) that the statement was made by an agent, (b) that it was false etc., (c) that it related to the personal character and conduct of Mr. Patil, (d) that it was reasonably calculated to harm his chances but also (e) that it in fact materially affected the result of the election in so far as Mr. Fernandez was concerned. Of these (a) and (c) are admitted and (b) is admitted by Mr. Fernandez because he said that he did not believe that there was any truth in these statements. The question next is whether they were calculated to affect the prospects of Mr. Patil. Here there can be no two opinions. These articles cast violent aspersions and were false as admitted by Mr. Fernandez himself. The course of conduct shows a deliberate attempt to lower his character and so they must be held to be calculated to harm him in his election. So far the appellants are on firm ground. Even if all these findings are in favour of the appellants, we cannot declare the election to be void under S. 100(1) (d) (ii) unless we reach the further conclusion that the result of the election in so far as Mr. Fernandez was concerned had been materially affected. The section speaks of the returned candidate when it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent circumstances. It seems to me to be a problem which the human mind has not yet been able to solve, namely, if things had been different at a certain period, what would have been the result of the concatenation of events upon that supposed change of circumstances. I am unable at all events to express an opinion upon what would have been the result, that is to say, who would have been elected provided certain matters had been complied with here which were not complied with. It was contended that I might hear evidence on both sides as to how an elector thought he would have voted at such election. That might possibly induce a person not sitting judicially to form some sort of vague guess, out that would be far short of evidence, which ought to satisfy the mind of a judge of what any individual who might express that opinion would really do under what might have been entirely changed circumstances. But, besides that, one of the principles of the Ballot Act is that voting should be secret, and voters are not to be compelled to disclose how they voted except upon a scrutiny after a vote has been declared invalid. Notwithstanding that, I am asked here, assuming the construction fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms to me, the reasonable and fair meaning of the section is to prevent an election from becoming void by trifling objections on the ground of an informality, because the judge has to look to the substance of the case to see whether the informality is of such a nature as to be fairly calculated in a reasonable mind to produce a substantial effect upon the election. Mr. Jethamalani invites us to apply the same test and in the light of his facts to say that the result of the election in so far as Mr. Fernandez is concerned was materially affected. On the other hand, Mr. Chari relies upon the facts that there was a difference of 30,000 votes between the two rivals and as many as 38,565 votes were cast in favour of the remaining candidates. He says that Mr. Patil had contested the earlier elections from the same constituency and the votes then obtained by him were not more in faithless. He says it is impossible to say how much Mr. Patil lost or Mr. Fernandez gained by reason of the false statements and whether the affected voters did not give their votes to the other candidates. He argues that the best test would be to see what Mr. Patil's reactions were on hearing of his def ..... X X X X Extracts X X X X X X X X Extracts X X X X
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