TMI Blog1963 (10) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... f India for an order declaring the election of Mohan Singh void, and Mohan Singh disqualified because of committing corrupt practices detailed in the petition and for an order declaring the applicant Bhanwarlal elected. Among the many grounds of corrupt practices alleged in the petition, two grounds set out in cls. (c) (d) of para 11 of the petition survive for consideration in this appeal. It was averred in these clauses that Mohan Singh the successful candidate had shortly before the polling of votes published two leaflets in Hindi containing statements of fact with regard to the personal character or conduct of the applicant Bhanwarlal which were false and which Mohan Singh believed to be false or did not believe to be true and that the statements were calculated to prejudice the prospects of Bhanwarlal at the election. Copies of the two leaflets were annexed to the petition, and were marked annexures 'D' 'E'. The petition was referred for trial by the Election Commission to the Election Tribunal, Ratlam, under s. 86 of the Representation of the People Act. Mohan Singh by his written statement denied that he had published the leaflets and submitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingh, the petition must stand dismissed without further investigation. In paragraph 11(b) of the petition it was averred that on January 20, 1962, Mohan Singh, offered at Nahargarh to Shri Himmat Singh an independent candidate to help him in procuring a job for him in Dalauda Sugar Factory or elsewhere to withdraw his candidature from the election. That as a consequence of this offer of illegal gratification Himmat Singh withdrew his candidature from the Sitamau Assembly constituency. The language used is somewhat ungrammatical, but the purport is clear--that Mohan Singh with a view to persuade Himmat Singh to withdraw from the election offered to help him to secure employment with the Dalauda Sugar Factory, or with some other employer, and in consequence of this offer which amounted to illegal gratification--Himmat Singh had withdrawn himself from being candidate at the election for the Sitamau constituency. Section 123 (1) defines the corrupt practice of bribery and by el. (B) receipt of, or agreement to receive, any gratification, whether as a motive or a reward-- (a) by a person for standing or not standing as, or for withdrawing from being, a candidate; or (b) by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed his nomination paper, and on that account by virtue of the definition of s. 79 he was a candidate for the purposes of Parts VI, VII VIII, and did not cease to be a candidate merely because he withdrew his candidature. If therefore the petition contained any imputation of corrupt practice made against Himmat Singh, it could not be regarded as properly constituted unless he was impleaded as a respondent, for, by the definition of candidate in s. 79(b), the expression any other candidate in s, 82(b) must include a candidate who had withdrawn his candidature. But in our judgment in para 11 (b) there is no allegation of corrupt practice against Himmat Singh. What is alleged is that Mohan Singh had offered to help Himmat Singh in procuring a job in Dalauda Sugar Factory or elsewhere and that as a consequence of that offer Himmat Singh had withdrawn his candidature from the election. There is no express averment in the petition about the acceptance of the offer by Himmat Singh, but it would border upon supererogation to insist that even if offer to help to procure a job amounted to offer of gratification, an allegation that in consequence of this offer Himmat Singh had w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) as to constitute it a corrupt practice. It was in the circumstances not necessary on the allegations made in para 11(b) of the petition to implead Himmat Singh as a respondent to the petition. We therefore agree with the High Court, though for different reasons, that the petition filed by Bhanwarlal was not defective. Counsel for Mohan Singh challenged the finding of the High Court that Mohan Singh was instrumental in publishing the leaflets annexures 'D' 'E'. He urged that in the trial of an election petition approach to the evidence must be as in a criminal trial and no fact may be held proved unless it is established beyond reasonable doubt. The onus of establishing a corrupt practice is undoubtedly on the person who sets it up, and the onus is not discharged on proof of mere preponderance of probability, as in the trial of a civil suit: the corrupt practice must be established beyond reasonable doubt by evidence which is clear and unambiguous. But the testimony of Rameshchandra corroborated by the circumstances set out in detail in the judgments of the Tribunal and the High Court was accepted and the testimony of witnesses for Mohan Singh who claimed that ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paper of Mohan Singh is of pink colour and that the election symbol is the picture of a tamp It then proceeds to state that Sitamau constituency has awakened. Nahata (Bhanwarlal) has run away. Shinde, Kishen Gupta Patil Patel, you may safeguard the interests of your Bhanwarlal Nahata as much as you like but his surety (security) is sure to be forfeited. Then follow nine paragraphs the third of which alone is material. That para- graph reads: We have heard that your friend has collected 28 thousand rupees from several villages in the name of opium. The agriculturists did not get the licenses and those agriculturists who got them had to spend a lot of money and time and the licenses for opium were received on execution of bonds for 8 seers. The leaflet concludes by a note which reads: Every voter will get' two ballot papers one is of pink colour for Legislative Assembly for Thakur Mohan Singh . . . Put the seal on the symbols of lamp on both the ballots pink and white. You read this pamphlet and give it to your friends to spread the message from house to house. Submitted by Nahata Virodhi Morcha Sitamau Constituency. Annexure 'E' bears the caption: The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the territory which forms the Sitamau constituency, licences for cultivation of opium are granted by the authorities to agriculturists, and the statement made in paragraph 3 apparently is that Bhanwarlal had collected ₹ 28,000 from the agriculturists in the constituency for securing licences for cultivation of opium but the agriculturists did not get the licences and even those who obtained the licences had to spend considerable sums of money. The innuendo in the statement cannot be mistaken: it is that a large amount of money was collected from agriculturists by Bhanwarlal on the 'representation that he would obtain licences for opium cultivation, but he did nothing in that behalf and misappropriated the amount. That is further made clear by paragraph 1 in annexure 'E' relating to Bhanwarlal. The form in which that allegation is made is in the interrogative form. By annexure 'E' certain questions were addressed to Bhanwarlal and one of the questions was whether he had not defrauded the agriculturists with respect to the licences of opium? The interrogative form is often employed not with a view to secure information but to make and emphasize an asserti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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