Jagannath Prasad Singh v. Kamlapati Tripathi — 1981 DIGILAW 593 (ALL)

JUDGMENT P.N. Goel, J. - On the application (A-17) dated 19-11-1980 moved by the respondent No. 1. On 3-1-1980 there took place polling in connection with the election of a Member of the Lok Sabha from Varanasi Parliamentary Constituency No. 52. Sr; Kamlapati Tripathi, respondent No. 1, and Sri Raj Narain, respondent No. 2, amongst others, were candidates. The result of the election was declared on 8-1-1980. Sri Kamlapati Tripathi won the election by a margin of 24735 votes against Sri Raj Narain, Jagannath Prasad Singh, petitioner, is a voter in the constituency. On 22-2-1980 he filed the election petition challenging the election of the respondent No. 1 on the following grounds :- (1) Respondent No. 1, his agents and workers with his consent committed corrupt practices. (2) The result of the election was materially affected by non-compliance of the provisions of the Constitution, the Representation of the People Act and the Rules and Orders made thereunder. (3) The result of the election was materially affected because the electoral roll was not an electoral roll as envisaged in the Representation of the People Act, 1950. 2. The respondent No. 1 moved an application (A-17) alleging that the corrupt practices alleged by the petitioner even if they were true do not constitute any corrupt practice under the Representation of the People Act, 1951, hereinafter called the Act, that the entire petition did not disclose any cause of action because it did not contain concise statement of material facts, that the electoral roll could not be investigated in the instant case. The respondent No. 1 prayed that paragraphs 3 to 14 of the petition be struck out and the petition be rejected with costs. This application was supported by an affidavit of Om Prakash Sharma. 3. The petitioner filed counter-affidavit (A-18). 4. On 9-7-1981 the case was put up for striking issues. Sri R.C. Srivastava, Advocate, for the petitioner was present. Sri D. S. Sinha and other Advocates were present for respondents Nos. 1 to 3. Sri Sinha urged that there was no triable issue because the petition did not contain material facts. Therefore, it was considered proper to decide application (A-17) first. The case was fixed for 20-7-1981 for hearing of application (A-17). It was clearly directed that parties' counsel would be heard whether the petition contained material facts. 5. 1 to 3. Sri Sinha urged that there was no triable issue because the petition did not contain material facts. Therefore, it was considered proper to decide application (A-17) first. The case was fixed for 20-7-1981 for hearing of application (A-17). It was clearly directed that parties' counsel would be heard whether the petition contained material facts. 5. On 20-7-1981, Sri M.C. Misra, counsel for the petitioner informed that he had written several letters to the petitioner, that the petitioner did not come up, that therefore, he was not in a position to prosecute the case on that date and that Sri R.C. Srivastava, Senior Advocate, could not appear for the petitioner without being instructed by him. As application (A-17) was moved by the respondent No. 1, his counsel Sri D. S. Sinha was asked to argue out the application. Arguments of Sri D.S. Sinha were heard on 20-7-1981 and 21-7-1981. No counsel for the petitioner came up even on 21-7-1981. 6. Section 100 of the Act enumerates the grounds upon which the election of a returned candidate can be declared void. In the present case the petitioner has challenged the election of the respondent No. 1 on grounds mentioned in Cls. (b), (d) (iv) of sub-section (1) of S. 100. GROUND NO. 3 7. The third ground taken by the petitioner may be disposed of first. This ground is that the electoral roll was not an electoral roll as envisaged in the Representation of the People Act, 1950 (vide Para 14 of the petition). This is no ground under Section 100 of the Act. The Representation of the People Act, 1950 is a self-contained Act. It has no connection with the challenging of the election of a returned candidate. Electoral rolls are prepared under Section 21 of the said Act. If any elector/voter has been omitted from the roll, he has to ventilate his grievance before the appropriate authority under the said Act. Section 24 of the said Act also provides an appeal in the matter. Therefore, the election of the respondent No. 1 cannot be challenged on the ground mentioned in Para 14 of the petition. This Court, therefore, cannot go into this question. Section 24 of the said Act also provides an appeal in the matter. Therefore, the election of the respondent No. 1 cannot be challenged on the ground mentioned in Para 14 of the petition. This Court, therefore, cannot go into this question. This view gets support from the following cases: (i) Rarnaswamy v. B. M. Krishnamurty, AIR 1963 SC 458 ; (ii) Kabul Singh v. Kundan Singh, AIR 1970 SC 340 ; (iii) Hari Prasad Mul Shankar v. V. B. Raju, AIR 1973 SC 2602 , and (iv) Niripendra Bahadur Singh v. Jai Ram Verma, AIR 1977 SC 1992 . 8. Before dealing with grounds 1 and 2, it is necessary to make a reference to Section 83 of the Act, which indicates the contents of the petition. Sub-section (1) of this Section reads as follows :- 83. (1) An election petition (a) shall contain a concise statement of the material facts on which the petitioner relies. (b) shall 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; and (c) shall be signed by the petitioner and verified ............ 9. It follows from the above that there should be a concise statement of material facts on which the petitioner relies in the election petition. It means that the petition should contain material facts in respect of the grounds upon which the election of a returned candidate is challenged. If the election is also challenged on the ground of corrupt practice, the petition should not only contain material facts thereof, but should also set forth full particulars of the corrupt practice as laid down in clause (b) of sub-section (1) of Section 83. An election petition is like a pleading of a civil suit. The requirements of the petition mentioned in S. 83 have been taken from the provisions contained in the Code of Civil Procedure. O. 6, R. 2 of the Code of Civil Procedure clearly lays down that every pleading shall contain and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, but not the evidence by which they are to be proved. O. 6, R. 2 of the Code of Civil Procedure clearly lays down that every pleading shall contain and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, but not the evidence by which they are to be proved. It will be noticed that Rule 4 of Order VI C. P. C. lays down that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence and in all other cases in which particular, may be necessary, particulars with dates and items, if necessary, shall be stated in the pleading. 10. It is evident that there is difference between material facts and the particulars. What is meant by these expressions has been laid down by the Supreme Court in the following cases :- (1) Harish Chandra Bajpai v. Triloki Singh, AIR 1957 SC 444 ; (2) Samant N. Bal Krishna v. George Fernandez, AIR 1969 SC 1201 ; (3) Hardwari Lal v. Kanwal Singh, AIR 1972 SC 515 ; (4) Raj Narain v. Smt. Indira Gandhi, AIR 1972 SC 1302 , (5) Udhav Singh v. Madhav Rao Scindia, AIR 1976 SC 744 , and (6) Sultan Saluddin Owasi v. Mohd. Osman Shaweed, AIR 1980 SC 1347 . 11. For the purposes of the present case it will be sufficient to reproduce the following observations from the case of Samant N. Balkrishna, ( AIR 1969 SC 1201 at pp. 1212, 13) (supra) :- "What is the difference between material facts and particulars? The word `material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is present as full a picture of the cause action with such further information detail as to make the opposite party erst and the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct ............ The material facts thus will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. There may be some overlapping between material facts and particulars but the two are quite distinct ............ The material facts thus will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. In stating material facts it will not do merely to quote the words of the section because then the efficacy of the words `material facts' will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. Just as a plaint without disclosing a proper cause of action cannot be said to be a good plaint, so also an election petition without the material facts relating to a corrupt practice is no election petition at all ............It is inconceivable that a petition could be filed without the material facts ...........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............ Since a single corrupt practice committed by the candidate, by his election agent or by another person with the consent of the candidate or his election agent is fatal to the election, the case must be specifically pleaded and strictly proved. If it has not been pleaded as part of the material facts, particulars of such corrupt practice cannot be supplied later on." 12. It will also be useful to reproduce the following observation from the case of Raj Narain ( AIR 1972 SC 1302 at p. 1302) (supra):- "From these decisions. it follows that facts stated in the petition relating to any corrupt practice must be sufficient to constitute a cause of action. In other words the facts must bring out all the ingredients of the corrupt practice alleged. If the facts stated fail to satisfy that requirement then they do not give rise to a triable issue. Such a defect cannot be cured by an amendment after the period of limitation for filing the election petition. But even if all the material facts are stated in the election petition, for a proper trial better particulars may still be required." 13. Such a defect cannot be cured by an amendment after the period of limitation for filing the election petition. But even if all the material facts are stated in the election petition, for a proper trial better particulars may still be required." 13. It will appear from the above that after the expiry of the period of limitation for filing an election petition, the material facts cannot be allowed to be amended, if they fail to satisfy the legal requirement and that better particulars can be called upon if material facts have been stated in the petition and the particulars given thereto are not complete. 14. It may here be indicated that the petition has to be construed as it stands and that it has to be read as a whole to ascertain its true import (vide the case of Uday Singh, ( AIR 1976 SC 744 ) (Supra). 15. Grounds 1 and 2 taken in the petition will now be analysed and examined in the light of the above observations. GROUND NO. 1 16. The respondent No. 1, his agents and workers with his consent committed corrupt practice of (i) bribery. (ii) undue influence. (iii) promotion of feeling of enmity and hatred between different classes of citizens on grounds of religion, caste, community and language. (iv) publication of false statement about the character and conduct of Sri Raj Narain, and (v) hiring of vehicles for carrying electors (vide pars 15 of the petition). 17. The above corrupt practices are mentioned in sub-sections (1), (2), (3A), (4) and (5) of Section 123 of the Act. These corrupt practices may be dealt with one by one. (i) Bribery: 18. Para 12 of the petition says that respondent No. 1, his agents and workers with his consent entertained the electors at their camp outside the polling centres with tea, snacks etc. before sending the electors to cast their votes, that at several places bhang was also offered to the electors before they were sent to the polling stations to cast their votes. Details of this corrupt practice are given in Schedule 5, Part B. First column gives date as 3-1- 1980. The second column mentions the places where tea, snacks and bhang were offered to the voters. 3rd column mentions the names of the persons with his agents and workers who offered tea etc. with the consent of the respondent No. 1. Details of this corrupt practice are given in Schedule 5, Part B. First column gives date as 3-1- 1980. The second column mentions the places where tea, snacks and bhang were offered to the voters. 3rd column mentions the names of the persons with his agents and workers who offered tea etc. with the consent of the respondent No. 1. The names of the voters to whom these articles were offered are not mentioned. 19. Term `bribery' has been defined in sub-section (1) of Section 123 and for the purposes of the instant case, its definition is, any gift or offer with the object of inducing an elector to vote or refrain from voting or as a reward to an elector for having voted or refrained from voting. 20. It has been pointed out that the petitioner has not alleged in para 12 of the petition that tea, snacks or bhang was offered/given to the voters with the object of casting votes in favour of the respondent No. 1 or from not voting in favour of Sri Raj Narain. There is no allegation in the petition that these articles were offered or given as a reward for having voted for the respondent No. 1 or for not voting for Raj Narain. 21. The learned counsel for the respondent has further urged that in the case of bribery as envisaged by the Act, there should be object or motive or element of bargain. In support of his contention he has referred to the cases of- (1) Brij Bhushan v. Raja Anand Brahma Shah, AIR 1961 Allahabad 356;: (2) Trilochan Singh v. Karnail Singh, AIR 1968 Punjab 416 (FB); (3) Ghasi Ram v. Dal Singh, AIR 1968 SC 1191 ; (4) Mrs Om Prabha Jain v. Abinash Chand, AIR 1968 SC 1083 ; (5) Bhanu Kumar Shastri v. Mohanlal Sukhadia, AIR 1971 SC 2025 ; (6) Abdul Hussain Mir v. Shamshul Huda., AIR 1975 SC 1612 and (7) Harjit Singh Mann v. S. Umrao Singh, AIR 1980 SC 701 . 22. 22. For the purposes of this case, it will be sufficient to reproduce the following observations made in the case of Brij Bhushan, ( AIR 1961 All 356 at p. 361) (supra): "Whatever may be the position is England the term of Section 123 (1) (a) of the Act makes it quite clear that it is the object of the Act which determines whether it amounts to `bribery' or not. It is therefore, the motive which is behind the charity that should be taken into consideration in finding whether it is a 'suitable form of bribery" or not. If the motive is corrupt and the object is to induce the voters to vote in a particular way then it is `bribery'. The Court has thus to find out the motive which actuated the distribution of -sweets in question. If it is with a benevolent motive, then cannot amount to "bribery". 23. In the cases of Ghasi Ram v. Dal Singh, ( AIR 1968 SC 1191 ) and Mrs. Oz Prabha Jain v. Abinash Chand, (MB 1968 SC 1083) (supra), it was observed that in case of bribery there should be an element of bargain. In this connection reference is also made to the following observations in the case of B.K. Shastri v. Mohan Lal Sukhadia, ( AIR 1971 SC 2025 at p. 2039) (supra): "Judged by the tests laid down in the decisions, it has to be found out as to who their the respondent Sukhadia did any ad which can be construed to be out of the ordinary or with a view to entering into an election bargain with the voters". 24. The same view was expressed in the case of Harjit Singh Mann v. S. Umrao Singh, ( AIR 1980 SC 701 ) (supra), Relevant observation in this case reads as follows (at p. 707): "It may be mentioned that the trial Court rightly took the view that it was necessary for the purpose of proving the corrupt practice of bribery to establish that there was an element of "bargaining" in what the respondent was alleged to have done for Bara Pind and Littran...... .........It was therefore necessary for the appellant to plead, and prove that there was bargaining between the respondent and the voters.........So when the element of bargain was completely absent from the allegation against the respondent, the trial Court was justified in holding that the alleged corrupt practice had not been established". 25. In the instant case the petitioner has not alleged that the respondent No. 1, his agents and workers entertained the voters with tea, snacks or bhang on the assurance that they would vote for the respondent No. 1 or that they would not vote for Sri Raj Narain, respondent No. 2 or any other candidate. Instances have been noticed in which the voters took bhang etc. at the place of one candidate and actually voted for another candidate. It is for this reason that Section 123 (1) lays down that if gift is given by a candidate to the voter with the object of voting in his favour or for not voting for any other candidate, it is bribery. 26. The position that follows is that the allegations made in para 12 do not fall within the definition of the term `bribery' given in the Act. In other words the allegations do not give material facts of the corrupt practice of bribery. (ii) Undue Influence : 27. Section 123 (2) of the Act purports to define the term/expression "undue influence". It says that unique influence is any direct or indirect interference or attempt to interfere with the free exercise of any electoral right. The essence of this definition is that there should be interference with the free exercise of an electoral right. Sub-sec. (2) further lays down that if a candidate or his agent or any other person with their consent threatens any candidate or any elector with injury of any kind or induces or 'attempts to induce a candidate or an elector to believe that he will become or will be rendered an object of divine displeasure or spiritual censure shall be deemed to interfere with the free exercise of the electoral right of the candidate or elector. 28. Allegations in respect of undue influence have been made in paras 8 and 9 of the petition read with Schedules 1 and 2. 29. 28. Allegations in respect of undue influence have been made in paras 8 and 9 of the petition read with Schedules 1 and 2. 29. Para 8 says that the respondent No. 2 was not allowed to exercise his electoral right by the respondent No. 1, his agents and workers. On 20-12-79 Sri Raj Narain, respondent No. 2 was not allowed to come out of the circuit house, that his car was heavily stoned and that he was injured. Sri Raj Narain and his workers were threatened with dire consequences and later on the same day the election office of the Lok Dal was also stoned. The result was that the workers and supporters of Sri Raj Narain stood terrorised and they also could not freely exercise their electoral right. For several days they could not do any effective canvassing out of fear of loss of their life. The agents and workers of respondent No. 1 were raising slogans against Sri Raj Narain on the State Education Policy. 30. Schedule 1. which relates to the allegations contained in para 8 mentions date in column 1. This date is 20-12-1979, places are mentioned in column 2 as Circuit house Varanasi and Lok Dal office, Chetganj, Varanasi. In column 3 the names of agents and workers of Sri Kamlapati Tripathi are mentioned. In column 4 the names of the workers of Sri Raj Narain who were terrorised are mentioned. It will be noticed that despite the allegations made in para 8, column 4 does not indicate the name of Sri Raj Narain. 31. It was pointed out that the date of polling was 3-1-1980 and that there is absolutely no allegation that Sri Raj Narain and his workers were not allowed to go to the polling booth and cast their votes. The allegations relate to only one date i. e. 20-12-1979. 32. Para 9 of the petition says that respondent No. 1, his agents and workers carried out a false propaganda against Sri Raj Narain that he was the man who polluted the Vishwanath temple in 1956 by forcing entry of Harijans into the temple and that Hindu religion was being polluted by him as he was trying to raise Harijans and backward classes equal to Brahmins, which was a sin and that any one helping Sri Raj Narain in any manner would incur divine displeasure. 33. 33. Schedule 2 relates to the allegations of this paragraph. In the first column of the Schedule the alleged activities are said to have taken place between 8-12-1979 to 3-1-1980. In column 2 the places are mentioned. In column 3, names of Sri Kamlapati Tripathi, has agent Smt. Chandra Tripathi and the names of 6 workers are mentioned. 34. The term electoral right has been defined in S. 79 (d) of the Act as the right of a person to stand or not to stand or to withdraw or not to withdraw from being a candidate or to vote or refrain from voting at the election. 35. The learned counsel for the respondent urged that to constitute undue influence there should be an element of compulsion. 36. The respondent's counsel has referred to the cases mentioned below :(1) Baburao Patel v. Dr. Zakir Hussain, AIR 1968 SC 904 . The relevant observation in this case is : "The fact that the Minister's request was addressed in the form of what is called a whip is also immaterial so long as it is clear that there is no compulsion on the electorate to vote in the manner indicated". (2) Narbada Prasad v. Chhagan Lal, AIR 1969 SC 395 . The relevant observation in this case is: "The gravamen of the charge is that it was added that if the voters voted for the Congress candidate, they would be guilty of the sin of Gohatya and here the law of election steps in". It was held that the case fell within Section 123 (2) (ii) of the Act. (3) Manubhai Nand Lal Ameracy v. Popat Lal Manilal Joshi, AIR 1969 SC 734 . The relevant observation runs as follows :- "The actual effect of the speech is not material. Corrupt practice is committed if the speech is calculated to interfere with the free exercise of electoral right and leave no choice to the electors in the matter." (4) Sudhir Laxman Hendre v. S.A. Dange, 17 Ele LR 373. In this case it was held that the right of a candidate to canvass or to carry on propaganda in support of his candidate could not be said to be an electoral right. (5) Kataria Takandas Hemraj v. Pinto Frederick Michael, (1961) 18 Ele LR 403 (Bom). In this case it was held that the right of a candidate to canvass or to carry on propaganda in support of his candidate could not be said to be an electoral right. (5) Kataria Takandas Hemraj v. Pinto Frederick Michael, (1961) 18 Ele LR 403 (Bom). In this case one of the allegations was that the petitioner's workers were prevented from having access to voters with a view to educate them to vote in his favour by effecting high-handed methods and threatening tactics. There was nothing to suggest that any of the voters was at all scared to an extent that by reason of that he did not go to cast his vote a few days thereafter, i.e., on the date of election. It was held that the prevention of the workers of the petitioner did not amount to a corrupt practice. 37. A bare reading of the proviso to sub-section (2) of S. 123 indicates that threat to cause injury of any kind or inducement causing belief that the candidate or a voter would be an object of divine displeasure or spiritual censure amounts to (interference with the) free exercise of the electoral right, i.e., right of franchise. This proviso does not say that the candidate or the voter did not cast vote because of the threat or inducement. Therefore, it was not necessary for the petitioner to allege that Sri Raj Narain or any other voter could not cast vote on the date of polling. Moreover, in para 8 of the petition, it has been stated that Sri Raj Narain was not allowed to exercise his electoral right. It has also been alleged that the workers and supporters of Sri Raj Narain could not freely exercise their electoral right. 38. It is further evident that threat or inducement should be given before the date of polling and not necessarily on the date of polling. 39. In para 8 it has clearly been alleged that Sri Raj Narain and his workers, were threatened with dire consequences. The literal meaning of the word `dire' is "dreadful, calamitous, ominous". Word 'calamity' means deep distress or grievous disaster. 40. Taking into consideration the allegations made in para 8 and the meaning of the word `dire', I am of the opinion that the allegations do fall within the proviso (a) (i). 41. The literal meaning of the word `dire' is "dreadful, calamitous, ominous". Word 'calamity' means deep distress or grievous disaster. 40. Taking into consideration the allegations made in para 8 and the meaning of the word `dire', I am of the opinion that the allegations do fall within the proviso (a) (i). 41. In para 9 of the petition, it has been alleged that Sri Raj Narain was trying to raise Harijans and backward classes equal to Brahmins, that it was a sin and, that any one helping Sri Raj Narain would incur divine displeasure. These allegations on the very face attract the provisions of proviso (a) (ii). This view gets support from the cases of Narbada Prasad v. Chhagan Lal (1969 All LJ 462) and Manubhai Nand Lal v. Popat Lal ( AIR 1969 SC 734 ) (supra). 42. The position that follows is that paras 8 and 9 contain material facts relating to corrupt practice of undue influence. 43. The learned counsel for the respondent next urged that the particulars in schedules 1 and 2 were vague. In schedule 1 the names of the workers or supporters of Sri Raj Narain who were extended threat at Lok Dal office are not mentioned. The petitioner can be called upon to remove this lacuna. Schedule 2. taking into account the allegations contained in para 9, is general. It does not appear vague. (iii) Promotion of feeling of enmity and hatred between different classes of citizens on grounds of religion, caste, community and language: 44. Section 123 (3A) lays down that promotion or attempt to promote feelings of enmity or hatred between different classes of citizens of India on grounds of religion, caste, community or language by a candidate or his agent or any other person with his consent or that of his election agent for the furtherance of the prospect of the election of that candidate or for pre-judicially affecting the election of any candidate is a corrupt practice. 45. Para 11 of the petition relates to this ground. This paragraph says that the respondent No. 1. his agents and workers with his consent actively carried out a propaganda that respondent No. 2 was harming the Sanskrit language and has done great disservice to the Hindu community in general and Brahmins in particular and this created hatred between different classes of citizens on the grounds of language. This paragraph says that the respondent No. 1. his agents and workers with his consent actively carried out a propaganda that respondent No. 2 was harming the Sanskrit language and has done great disservice to the Hindu community in general and Brahmins in particular and this created hatred between different classes of citizens on the grounds of language. It was publicly said that Sri Raj Narain stood for backward classes and Harijans who were against Sanskrit, a sacred language of caste Hindus and (as) such they should not be helped in this election. ......... Sri Kamlapati Tripathi is a Brahmin. Details of this corrupt practice are given in schedule 4. Col. 1 of Schedule 4 mentions period of propaganda from 20-12-1979 to 3-1-1980. Column 2 indicates the places of propaganda. Col. 3 mentions the names of respondent No. 1, his election agent Smt. Chandra Tripathi and his workers who committed corrupt practice. 46. It will be noticed that neither in para 11 nor in the Schedule it has been alleged that the said propaganda was for the furtherance of the prospects of the election of Sri Kamlapati Tripathi or for pre-judically affecting the election of Sri Raj Narain. It has also to be borne in mind that Sri Raj Narain as well as Sri Kamlapati Tripathi both are Hindus. 47. The position that follows is that the allegations in para 11 and schedule 4 are wholly incomplete and as such they do not constitute corrupt practice as laid down in sub-section (3A) of Section 123. 48. The learned counsel for the respondent has referred to the case of Saligram v. Govindrao, (1965) 27 Ele LR 123 (Bom). In this case the pamphlet was issued in which there were allegations against the personal character of one Saqui Niazi, worker of the respondent. It was urged that the pamphlet was intended to create hatred between Hindus and Mohammedans. It was observed that the pamphlet might have the tendency of inciting a few fanatics against the individual, but there was nothing in the pamphlet to suggest that all Mohammedans as a class are bad and, therefore, the allegations of the pamphlet did not amount to corrupt practice under Section 123 (3A) of the Act. This case is of no help to the respondent. This case is of no help to the respondent. It will, however, be noticed that the allegation in para 11 is that Sri Raj Narain was harming the Sanskrit language and that he stood for the back ward classes and Harijans who were against Sanskrit. Sanskrit is no doubt a sacred language of Hindus but even non- Hindus study Sanskrit. There is no allegation between which classes of citizens the said propaganda created feelings of enmity or hatred. 49. It is apparent from the above that the allegations contained in para 11 and schedule 4 do not amount to corrupt practice as envisaged by sub-sec. (3A) of Section 123. (iv) Publication of false statement about the character and conduct of Sri Raj Narain: 50. Section 123 (4) of the Act lays down that 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, up the candidature or withdrawal of, any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election, is a corrupt practice. 51. Paras 6, 7 and 10 and Schedule 3 of the petition relate to these corrupt practices. Para 6 reads that the respondent No. 1 from the very start of his election campaign decried Sri Raj Narain and called his party as a party of low people, that respondent No. 1 convened a meeting on 8-12-1979 at the Town Hall Varanasi and there he made a false propaganda with intent to prejudice the electoral prospects of the respondent No. 2 as a person belonging to the party which consists of low caste people and that this propaganda was carried out throughout the constituency between 3-12-1979 to 2-1-1980. 52. Para 7 of the petition says that the respondent No. 1, his agents and workers decried respondent No. 2 and his party Lok Dal as agents of Muslims and called the party flag of Lok Dal as a flag of Muslim League. The party flag of Lok Dal is of green colour. The flag of Muslim League is also of green colour. The party flag of Lok Dal is of green colour. The flag of Muslim League is also of green colour. The respondent No. 1 in his meetings called the Lok Dal flags as Pakistani. These allegations have further been elucidated in this paragraph. 53. Para 10 of the petition says that as Sri Kamlapati Tripathi was much behind in the contest, in a mad frenzy to recover the lost ground, the respondent No. 1 raised the bogie of Sanskrit, that a violent propaganda was started that Sri Raj Narain had lowered the prestige of Sanskrit and worked against Hindu religion. The State of Uttar Pradesh made Sanskrit a compulsory subject along with Hindi and Urdu was included in the list of optional subjects. A false propaganda was made by the respondent No. 1. that Sri Raj Narain got this change made in the language policy of the State. 54. In column 1 of schedule 3, the period of propaganda is mentioned as 20-12-1979 to 3-1-1980. In column 2 the places of propaganda and in column 3, the names of the respondent No. 1, his agents and workers who carried out the propaganda are mentioned. 55. The gist of the above allegations is (i) the party of Raj Narain is party of low people. (ii) the flag of the party of Sri Raj Narain being of green colour is flag of Muslim League and as such it was a Pakistani flag, and (iii) Sri Raj Narain lowered the prestige of Sanskrit and got a change made in the language policy of the State. 56. It will be noticed that under subsection (4) of Section 123, the statement of fact should relate to the personal character or conduct of a candidate. The allegations contained in paras 6, 7 and 10 do not at all touch the personal character of Sri Raj Narain. They touch his political or public character. There is no allegation that Sri Raj Narain committed any offence e. g. cheating, theft, murder etc. 57. The learned counsel for the respondent has referred to the following cases: (1) Inder Lal v. Lal Singh, AIR 1962 SC 1156 ; (2) Sheopal Singh v. Ram Pratap, AIR 1965 SC 677 ; (3) Dr. There is no allegation that Sri Raj Narain committed any offence e. g. cheating, theft, murder etc. 57. The learned counsel for the respondent has referred to the following cases: (1) Inder Lal v. Lal Singh, AIR 1962 SC 1156 ; (2) Sheopal Singh v. Ram Pratap, AIR 1965 SC 677 ; (3) Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773 ; (4) Guruji Shrihari Baliraim Jivatode v. Vithalrao, AIR 1970 SC 1841 ; (5) Devo kanta Barooah v. Golok Chandra Baruah. AIR 1970 SC 1231 and (6) N. S. Varada chari v. G.V. Pai, AIR 1973 SC 38 . 58. The contention of the respondent's counsel is that the election petition does not make any allegation that the propaganda attacked the personal character or conduct of Sri Raj Narain. In the first case of Inder Lal (supra) distinction between private character and public character has been indicated. The relevant observation reads as follows (at pp. 1159, 60):- "Though it is clear that the statute wants to make a broad distinction between public and political character on the one hand and private character on the other it is obvious that a sharp and clear cut dividing line cannot be drawn to distinguish the one from the other. In discussing the distinction between the private character and the public character, sometimes reference is made to the "man beneath the politician" and it is said that if a statement of fact affects the man beneath the politician it touches private character and if it affects the politician. It does not touch his private character...... ........If, for instance, it is said that the candidate is a cheat or murderer there can be no doubt that the statement is in regard to his private character and conduct and so if the statement is shown to be false, it would undoubtedly be a corrupt practice. Similarly, if the economic policy of the party to which the candidate belongs or its political ideology is falsely criticised and in strong words it is suggested that the said policy and ideology would cause the ruin of the country that clearly would be criticism, though false, against the public character of the candidate and his political party and as such, it would be outside the purview of the statute ............. If, for instance, it is said that in his public life, the candidate has utilised his position for the selfish purpose of securing jobs for his relations, it may be argued that it is criticism against the candidate in his public character and it may also be suggested that it nevertheless affects his private character". 59. Taking into consideration the above observation, it is clear beyond doubt in the present case that the allegations contained in the petition do not touch the personal character or conduct of Sri Raj Narain and as such the allegations made in paras 6, 7 and 10 do not constitute corrupt practice under subsection (4) of Section 123. (v) Hiring of vehicles for carrying electors: 60. Sub-section (5) of Section 123 of the Act lays down that the hiring or procuring of any vehicle or use of such vehicle for the free conveyance of any elector to or from any polling station is a corrupt practice. 61. The pith and substance of the above provision is that no elector should be provided free conveyance by a candidate or his agents or workers to and from any polling station. The word "or" underlined above is to be construed as "and". 62. Para 12 of the petition and Schedule 5 relate to this ground. Para 12 reads that respondent No. 1, his agents and workers used hired conveyance such as cycle rickshaw, auto-rickshaw, tractors and trollies for carrying electors from their residence to the polling centre and back. 63. Schedule 5 indicates that the said corrupt practice was committed on 3-1-1980, the date of polling. In column 2 places are mentioned from which the voters were taken to the polling station. In column 3 names of the voters of the respondent No. 1 who committed the corrupt practice are given. 64. The gist of the allegation is that the workers of the respondent No. 1 used cycle rickshaw, auto-rickshaw etc. for carrying electors from their residence to the polling centre and back. There is no allegation that the workers or agents of the respondent No. 1 had hired these conveyances and paid their fare. It has not, been alleged that the voters were given free conveyance. In this way the allegations do not comply with the ingredients of the corrupt practice envisaged in sub-section (5) of S. 123 of the Act. 65. There is no allegation that the workers or agents of the respondent No. 1 had hired these conveyances and paid their fare. It has not, been alleged that the voters were given free conveyance. In this way the allegations do not comply with the ingredients of the corrupt practice envisaged in sub-section (5) of S. 123 of the Act. 65. The view expressed above gets support from the following cases cited by the respondent's counsel : (1) Balwan Singh v. Lakshmi Narain, AIR 1960 SC 770 ; (2) Jashbhai Chunibhai Patel v. Anverbeg A. Mirza, AIR 1969 SC 586 ; (3) Ch. Rasik Ram v. Ch. J. S. Chouhan, AIR 1975 SC 667 and (4) Dada Saheb Dattatraya Pawar v. Pandurang Raoji Jagtap, (1978) 1 SCC 504 . 66. In the case of Ch. Rasik Ram (supra). it was held that the conjunction `or' (underlined above) should read as `and' It was further held that the hiring or procuring of the vehicles should be for the free conveyance of the voters. 67. In the present case there is no allegation that the agents of the respondent No. 1 engaged vehicles for the free conveyance of the voters. Therefore, the allegation contained in the petition does not constitute the corrupt practice envisaged by sub-section (5) of Section 123 of the Act. Ground No. 2: Non-compliance with the provisions of the Constitution or of the Act: 68. Section 100 (d) (iv) lays down that the result of the election in so far as it concerned a returned candidate had been materially affected by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act. 69. It is pertinent to remark that the non-compliance should materially affect the result of the election of the returned candidate. 70. Para 13 of the petition relates to this ground. This paragraph says that after the closure of the polling on 3-1-1980 it was widely discussed that Sri Kamlapati Tripathi had lost the election, that the agents and workers of Sri Kamlapati Tripathi firmly discounted it and gave out that they had taken all steps to win the election, that this created doubt in the mind of the petitioner and he was surprised on seeing the election result on 8-1-1980. These allegations are not pertinent and do not indicate any non-compliance with the provisions of the Constitution or of the Act. 71. Para 13 then says that the petitioner came to know that a large number of duplicate ballot papers were circulated by the respondent No. 1, and his agents throughout the constituency, that on 3-1-1980 after the close of the poll, one ballot paper of polling centre No. 106 of Varanasi Cantonment Segment was found in field which bore the office seal and also the cross-mark on the symbol of respondent No. 2. 970 ballot papers were issued to polling centre No. 106 out of which 577 ballot papers were used and 393 remained unused and thus the (sic) what was found correct at the time of counting. The genuine ballot papers bearing the cross-mark on the symbol of respondent No. 2 appear to have been substituted by duplicate ballot papers otherwise the total would differ as one ballot paper was short at the time of counting. Siya Ram Chauhan, an agent of Sri Kamlapati Tripathi has manipulated the substitution of a large number of duplicate ballot papers in collusion with the polling staff. This appears to have been done throughout the constituency and in other constituencies also. A scrutiny of the ballot papers and ballot paper account would indicate that a large number of ballot papers are not genuine. The whole election is a fraud and a complete nullity. The result of the election has been materially affected by non-compliance of the Constitution, the Representation of the People Act and the rules and orders made thereunder. 72. The learned counsel for the respondent urged - (1) The allegations in para 13 are simply speculative and conjectural. The petitioner has used the word "appear" or "appears" which indicates that the petitioner is not certain. And (2) only one ballot paper is said to have been found in a field. If this ballot paper is added to the votes secured by the respondent No. 2, even then the election of the respondent No. 1 cannot be said to have been materially affected because the respondent No. 1 secured 24735 votes more than the respondent No. 2. The petitioner has not given the numbers of the ballot papers which were in favour of the respondent No. 2 and which were substituted by the agents of the respondent No. 1. 73. The petitioner has not given the numbers of the ballot papers which were in favour of the respondent No. 2 and which were substituted by the agents of the respondent No. 1. 73. The contentions of the respondent's counsel are fully justified. Therefore, it can easily be said that the allegations contained in para 13 are wholly incomplete and speculative and do not go to show that the election of the respondent No. 1 was materially affected for the alleged reason. 74. The position that follows from the above discussion is that paras 6, 7, 10, 11, 12, 13 and 14 do not contain material facts as envisaged by Section 83 (1) (a) and as such these paragraphs are liable to be struck off and the petitioner has to be called upon to furnish complete particulars in respect of para 8 of the petition. 75. Paras 3 and 4 of the petition do not allege any ground for setting aside the election of the respondent No. 1. 76. The petitioner Sri Jagan Nath Prasad Singh is, therefore, directed to take steps/apply within 10 days for the striking off of paras 6, 7, 10, 11, 12, 13 and 14 of the petition and to furnish complete particulars in respect of para 8. 77. The counsel of the petitioner (Sri Jagan Nath Prasad Singh) shall be informed immediately of the above order.