1968 Supreme(SC) 320

SUPREME COURT OF INDIA
M. HIDAYATULLAH, C.J.I. AND A.N. GROVER, J.
Narbada Prasad, Appellant
Versus
Chhaganlal and others, Respondents.
Civil Appeal No. 2 of 1968,
D/-30-7-1968.
Advocates appeared
Mr. S. V. Gupte, Senior Advocate (M/s. R. K. Vijayavargiya and S. S. Khanduja, Advocates, with him), for Appellant; M/s. V. K. Sanghi, G. L. Sangh and A. G. Ratnaparkhi, Advocates, for Respondent No. 1.

Headnote:(1) Representation of the People Act, 1951 - S. 33(5) - candidate registered as a voter in a different constituency-papers to be tiled with the nomination papers-those mentioned in the sub-section should be filed-candidate filing affidavit of the entry and a Certificate of Tahsildar based on the affidavit-requirement not complied with -Court cannot dispense with the requirement.

       Section 33 (5) of the Act requires that when the candidate is an elector In a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such electoral roll, unless it has been filed along with the nomination paper, be produced before the returning officer at the time of scrutiny.

       Where the candidate produced a certificate from Tahsildar, an officer who did not have the authority to issue a certified copy of the electoral roll, together with an affidavit on his own part in which the gist of the entry was given, and the certificate of the Tahsildar was, in fact based on the affidavit annexed with the certificate, there was no compliance with the provisions of section 33 (5) of the Act and there was no power in the Court to dispense with this requirement. The nomination was rightly rejected. E.P. No.5 of 1967 reversed on this point. [Para 5]

       (2) Practice-manner of doing a thing prescribed by statute-it should be done in that manner-other modes excluded.

       It is a well understood rule of law that if a thing is to be done in a particular manner it must be done in that manner or not at all. Other modes of compliances ace excluded. [Para 5]

       (3) Practice-small inaccuacries-effect-matter can be made certain is certain.

       Where there are small inaccuracies, the Courts should not go by them; because the law is that which can be made certain is certain. [Para 5]

       (4) Representation of the People Act, 1951 - S. 116 - A-scope of the appeal- re-assessment of evidence-how for can be made-assessment of evidence based on observation by trial Court- may not be disturbed in appeal.

       (5) Appeal-burden is on appellant-assessment of evidence by Court challenged-matters to be shown -burden how discharged.

       No doubt. an appeal before the Supreme Court under section 116-A is an appeal as of right and is open both on facts and law; still the practice of the Courts has uniformly been to give the greatest assurance to the assessment of evidence made by the Judge who hears the witnesses and watches their demean-our and judges of their credibility in the first instance. In an appeal the burden is on the appellant to prove how the judgment under appeal is wrong. To establish this he must do something more than merely ask for a re-assessment of the evidence. He must show wherein the assessment has gone wrong. Where the Court of first instance relies upon probabilities alone, the appellate Court may be in as good position as the Court of trial in judging of the probabilities; but where the Court of trial relies upon its own sense of the credibility of a witness the appellate Court is certainly at a disadvantage, because it has not before it the witness but the dead record of the deposition as recorded. [Para 10]

       Where there is evidence which the Judge considers truthful not on the probabilities of the case but because the Judge on his observation of the manner in which the witness deposed, the appellate Court should be slow to depart from the conclusion of the trial Judge. [Para 11]

       (6) Representation of the People Act, 1951 - S. 123(2)(ii)-telling the voters that if they voce for other candidate they would be committing sin of gohatya - is a corrupt practice.

       A statement that if the voters vote for the Congress Candidate they would be committing the sin of gohatya amounts to an attempt to induce the voters to believe that they would become or would be rendered an object of divine displeasure or spiritual censure. A statement of this kind falls within this provision of the section it is not necessary to enlarge upon the fact that cow is venerated in our country by the vast majority of the people and that they believe not only in its utility but its holiness. It is also believed that one of the cardinal sins is that of gohatya. Therefore, it is quite obvious that to remind the voters that they would be committing the sin of gohatya would be to remind them that they would be objects of divine displeasure or spiritual censure. [Para 13]