Judgment

BHARGAVA, J.:- The appellant, Dev Kanta Barooah, was declared elected at the last General Elections to the Legislative Assembly of Assam in 1967, defeating the four rival candidates who are respondents 1 to 4 in this appeal. Respondent No. 1, Golok Chandra Baruah, filed an election petition challenging the election of the appellant on various grounds, including a charge that false statements as to the personal character of respondent No. 1 had been published with the consent of the appellant, thus constituting a corrupt practice under Section 123 (4) of the Representation of the People Act, 1951 (hereinafter referred to as "the Act"). This is the only ground which has been accepted by the High Court of Assam and Nagaland and the election of the appellant has been set aside on this ground. In this appeal, consequently, the only question that falls for decision is whether the High Court was right in setting aside the election of the appellant on the ground of corrupt practice having been committed within the meaning of Section 123 (4) of the Act. This corrupt practice was alleged by respondent No. 1 to have been committed by the appellant by publication of a leaflet which is, for convenience, reproduced below:-

"Why Gollok Barua was driven away from the Congress? (Picture of a pair of bullock with yoke)

Humble submission,

One leaflet bearing full of downright falsehood and false allegation with the Caption "Why I have left the Congress" has been published and distributed by Sri Golok Chandra Barua in the Samaguri Constituency. The patriot voters of Samaguri have sufficient experience and political consciousness. They would not believe the abominable and false publicity of Sri Golok Barua. Still for the knowledge of the public a brief description of the activities of public life of Sri Barua has been published. From that it will be understood that Sri Golok Barua is not an actual congressman. He is a driven-out congressman wearing a mask.

1. Golok Barua after rolling from several Colleges failed to pass the I. A. and at first became a copyist at the Katchery and thereafter became a Clerk.

At the mass movement of 42 he earned some money by doing Military Contracts.

2. In 1952 by entering in the Congress he sought nomination from the Congress from the Samaguri Constituency. The Congress did not give him nomination as in the 42 Movement he helped the British and revolted against the Country. After breach of promise he was badly defeated by standing against Shrimati Usha Barthakur who was a Congress nominee.

3. Again by entreaties he joined the Congress and on the sudden death of Late Pratap Chandra Sarma Sri Golok Barua became the Chairman of the Nowgong Municipality. Please note some of the instances of injustice and chaos during his tenure of Office.

(Ka) During his time several thousand Rupees were taken away from the Treasury unlawfully on signatures resembling to those of his signatures. The matter is now pending for hearing.

(Kha) When a huge amount of money withdrawn from the National Savings was misappropriated the Government Examiner of Accounts declared Sri Golok Barua alone as guilty.

(Ga) At that time also an account of corruption in the Municipality alone late Dharmeshwar Sarma the then Head Clerk of his time had to commit suicide.

(Gha) While Sri Golok Barua was the Chairman at night like drunkard went to the Ex-Chairman Dr. Birendra Kishore Guha and not finding Dr. Guha behaved with his wife and daughter unmannerly. After that, assaulted Dr. Guha with shoes in presence of many persons. On that offence Sri Golok Barua was compelled to resign his Chairmanship by the Executive Committee of the District Congress Committee.

4. This time Sri Golok Barua sought for nomination from the Congress as a candidate to the Parliament from Kaliabar Constituency and as a candidate to the Legislative Assembly from the Barhampur Constituency. But the Congress refused to give nomination due to his conduct and character and due to his tre