Judgment

MUDHOLKAR, J. ;

The main question which arises for decision in the appeal from the judgment of the Gujarat High Court is whether the appellant could be said to be guilty of a corrupt practice contemplated by sub-s. (3) of S.123 of the Representation of the People Act, 1951 (hereinafter referred to as the Act) by reason of the fact that his election symbol, a star, was described as Dhruva star in the pamphlets published and distributed by him or by his agents and in which the qualities of Dhruva star were also set out.

2. The election to the Assembly seat was contested by three candidates, the appellant, respondent No. 1 and respondent No. 2:The appellant having secured 20,062 votes as against 15,190 secured by the first respondent and 7,093 by the second respondent was declared to be elected on February 26, 1962. The first respondent thereupon preferred an election petition before the Election Commission challenging the appellant s election on the following five grounds :

(1) That the second respondent had not completed 25 years of age on the date of the scrutiny of the nomination papers, that the acceptance of his nomination paper was improper and that the result of the election was materially, affected thereby inasmuch as all the votes secured by him, would, if he had not been a candidate, have been secured by the first respondent;

(2) that the appellant was guilty of corrupt practices because he and his agents had bribed the voters and had also brought undue influence to bear upon them;

(3) that the appellant and this agents procured bus No. GTA 7673 for taking the voters from village Sodpur to and from the polling booths;

(4) that the appellant and his agents had issued and widely distributed leaflets with star as a symbol prefixed by the word "Dhruva" with a view to give religious impetus and to appeal to the voters to vote for him in the name of religion;

(5) that certain notifications issued by the Governor of the State of Gujarat and the Election Commission had not been issued in due compliance with the provisions of law.

3. The Tribunal rejected all the allegations relating to corrupt practices made against the appellant and also held that the distribution of leaflets did not amount to a corrupt practice. The Tribunal similarly rejected the contention of the first respondent as to the validity of the notifications issued by the Governor and the Election Commission. It however, held that the second respondent s nomination paper had been improperly accepted because he had not attained the age of 25 at the date of scrutiny and that inconsequence thereof the result of the election was materially, affected. Upon this ground it set aside the appellant s election.

4. In appeal the High Court reversed the finding of the Tribunal regarding the age of the second respondent and held that he having completed the age of 25 on January 6,,..1962 which was prior to the date of scrutiny was duly qualified to contest the election. . It, however affirmed ultimately the decision of the Tribunal on the ground that the appellant and the Swatantra party to which he belongs had been guilty of a corrupt practice, namely, of appealing to the electorate on grounds of religion and of using a religious symbol for the furtherance of his prospects in the election. The judgment of the Court was delivered by K. T. Desai C.J. in the course of which he has stated (at p. 245 of the paper book) :

"There are several other points on which the election of the Swatantra party candidate had been challenged before the Election Tribunal. Mr. Daru, the learned advocate for the first respondent before us, has been content with arguing the case of the first respondent before us on the basis of a corrupt practice being committed by the Swatantra Party with the consent of the Swantrya. Party candidate. He has not pressed the other points or other arguments into service. The matter is an election matter and if we had found it necessary we would have gone into othe