Judgment

MITTER, J.: This is an appeal by an unsuccessful candidate at an election held in February 1967 for the Bihar State Legislative Assembly from the Single Member Rajmahal Constituency No. 139. Originally there were eight candidates: we are concerned only with two of them, namely, the election petitioner and respondent, Nathmal Dokania, the returned candidate as a result of the election. The election petitioner lost before the High Court. The main ground on which he presses this appeal are based on paras 4(c) and 4 (e) of the petition. The relevant issue framed by the learned trial Judge with regard to paragraph 4 (c) is issue No. 5 reading:-

"Did the respondent or his election agent or his workers with his or his election agent s consent resort to corrupt practices in the election as alleged by the petitioner and has the result of the election been materially affected thereby?" In para 4 (c) it is pleaded that the respondent himself and his agents and workers including certain name persons with his consent "committed a corrupt practice of publication of statement of facts throughout the constituency and mainly at Shahebganj, Teen Pahar and Rajmahal during the election campaign during the period 11th February 1967 to 15th February 1967 which induced and caused deception in the mind of the electors whereby the respondent procured a large number of votes which he would not otherwise have secured but for the corrupt practice aforesaid." Copies of the pamphlets form Annexure 2 series to the petition.

2. Mr. Latifi appearing for the appellant submitted that Annexure 2 (A) does not further his client s cause. His grievance is based on Annexure 2. The translation of this Annexure of which the original was in Hindi shows that it was a call to the Muslim voters of Rajmahal to "hear the message and prepare the graveyard for the Congress. Reference was made therein to the appeal of the day by Maulana Syed Usman Ghani Saheb of Phulwari Sharif Khankah" "that nobody should be in illusion that Muslims have to vote for the Congress this time also". It was also suggested that on account of high-handedness of the Congress group Muslims should not support it. There was also a reference to the appeal of Pir Saheb of the Dargah of Phulwari Sharif that Muslims should not vote for any Congress candidate. The appeal ends with the sentence, "when you have lifelong connection with Sri Nathmal Dokania, the candidate of the Swatantra Party and when the Head of your religion, your Islam also opposes the Congress, then it becomes your duty to come out victorious by affixing stamps on the Star symbol."

3. Mr. Latifi tried to argue that by the publication of the pamphlet an attempt was made to induce Muslim electors not to vote for a Congress candidate in opposition to the mandates of the two name religious heads. In other words, his contention was that undue influence within the meaning of Section 123 (2) of the Act was sought to be exercised on the Muslim voters in the name of the religious heads mentioned in the pamphlet under the threat of divine displeasure or spiritual censure. He also sought to argue that the reference to the mandate of Islam in the pamphlet amounted to the use of a religious symbol and as such the appeal by the pamphlet came within the mischief of Section 123 (3) of the Act.

4. Under section 128 (2), a candidate may be guilty of corrupt practice if he uses undue influence" which in the words of the section means any direct or indirect interference or attempt to interfere with the free exercise of any electoral right of a voter. Mr. Latifi s submission was that the pamphlet came within the mischief of sub-clause (ii) of proviso (a) to Section 123 (2). Unfortunately for Mr. Latifi although the pamphlet might have sustained a plea of undue influence about which we express no opinion, there is no pleading to that effect in the petition. In order that a pleading may be sufficient to make out a case of undue influence, it must set ou