Judgment

SUBBA RAO, J. :

The appellant, Shepat Singh, and two others, namely, Ramchander Chowdhary and Surja Ram, contested the election for a seat in the Rajasthan Legisaltive Assembly from Hanumangarh constituency. The appellant polled 31,501, Ramchander Chowdhary, 18,217, and Surja Ram, 1285 votes. The appellant was declared elected. The respondent, one of the electors, filed an election petition under S. 81 of the Representation of the People Act, 1951, hereinafter called the Act, for setting aside the election of the appellant on various grounds. The Election Tribunal, by its order dated June 18, 1963, held that the respondent had failed to substantiate the allegations made against the appellant and, on that finding, dismissed the petition. Against the said order, the respondent preferred an appeal to the High Court of Judicature for Rajasthan at Jodhpur. A Division Bench of that Court heard the appeal and came to the conclusion that the appellant was guilty of a corrupt practice under sub-s. (4) of S. 123 of the Act in publishing a poster, Ex. 3, which contained a statement of fact about the personal character and conduct of Ramchander Chowdhary, one of the candidates in the election. On that finding, it set aside the order of the Election Tribunal and declared the election of the appellant void. The appellant, by special leave, has preferred this appeal to this Court against the said order of the High Court.

2. Learned counsel for the appellant raised before us two points, namely, (i) that Ex. 3, the poster, published and circulated by the appellant is not hit by the provisions of S. 123(4) of the Act, and (ii) that the election petition should have been dismissed under S. 85 of the Act on the ground that it had not impleaded Hariram, another duly nominated candidate who withdrew his candidature before the election and against whom allegations of corrupt practice were made.

3. The first argument of the learned counsel is elaborated thus. Under S.123(4) of the Act the burden is upon the person who seeks to impute corrupt practice described thereunder to establish all the ingredients of corrupt practice laid down therein. He has not only to prove that the elected candidate published a statement of fact, which is false, in relation to the personal character or conduct of another candidate, but also that he believed it to be false or he did not believe it to be true. He has to prove further that the said statement was calculated to prejudice the prospects of the other candidate s election, that is to say that the voters had the knowledge that the corrupt practice or practices were attributed to him and because of that knowledge did not vote for him. In the instant case, Ex. 3 contained only general allegations against the misrule of the Congress Party and even if the statements can be related to Ramchander Chowdhary, there is no evidence that the voters knew that it was he who was referred to in the poster.

4. The first question is whether Ex. 3 is hit by the provisions of S.123(4) of the Act. Before we consider the terms of the document it will be convenient and useful to notice the ingredients of the section. It reads :

Section 123 (4) The publication by a candidate or his agent or by another 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.

The sub-section may be dissected into the following component parts relevant to the present enquiry : (1) the publication of any statement of fact by a candidate; (2) that fact is false; (3) the candidate believes it to be false or does not believe it to be true;(4) the statement is in relation to the personal character or conduct of the ca