Judgment

SHAH, C.J.I. : - At the mid-term poll held on February 9 1969 for electing a member to the Bihar Legislative Assembly from Dhanha Constituency there were four contesting candidates. Yogendra Prasad Shrivastava who stood "on the P. S. P. ticket", was declared elected by a majority of 2162, votes over his nearest rival - Markandeshwar Singh who stood "on the Congress ticket".

2. Markandeshwar Singh applied to the High Court of Patna for an order setting aside the election of Yogindra Prasad on the ground that the latter, his agents and his supporters with his consent had committed several corrupt practices at the election. Three principal corrupt practices set up in the petition were -

(1) that Yogendra Prasad procured the printing of a leaflet bearing the caption "SIDHA SAWAL" and containing false and malicious statements of fact, which he believed to be false, in relation to the personal character and conduct of Markandeshwar Singh in order to malign him and to lower him in the estimation of the voters. The statements were reasonably calculated to harm and prejudice the prospects of his election. Yogindra Prasad, his agents and supporters with his active consent and connivance distributed and circulated the leaflet in the Constituency during the election;

(2) that Yogindra Prasad also procured the printing of posters in different sizes containing false and malicious statements of fact in relation to the personal character and conduct of Markandeshwar Singh in order to malign him and lower him in the estimation of the voters, and the statements were reasonably calculated to harm his prospects of election. These posters were pasted on the walls at various places throughout the Constituency and were also displayed at different places during the election; and

(3) that Yogindra Prasad had obtained and procured the assistance of persons in the service of the Government, such as, Dafadars, Law Clerks of the Forest Department, Compounders of Government Hospital, Headmasters and teachers of Government or Government aided Schools and Presiding Officers of different booths for furthering his prospects at the election, particulars in respect of which were set out in Sch. 3 annexed to the petition.

The High Court held that Yogindra Prasad had committed corrupt practices described in items (1) and (2) only. Since no appeal has been preferred against the order rejecting the plea relating to the commission of corrupt practice with respect to item (3) nothing more need be said in that behalf.

3. Item (1) related to the printing, publication and distribution of a pamphlet, in the course of the election campaign. The caption of the pamphlet was "Straight Question" The caption was preceded by the symbol of a hut which is the election symbol of the P. S. P. candidates and a couplet in Hindi which freely translated reads "the river bank contract and the free land will be snatched away by the people. The people will not tolerate the dacoity and murder under the mask of Congress". The caption "Straight Question" is followed by a statement that the people of Dhanha want an answer from Markandeshwar Singh. Then were set out thirteen questions. It is not disputed that the author of the pamphlet intended to malign Markandeshwar Singh. Serious allegations were made in the pamphlet relating to the personal conduct of Markandeshwar Singh. The pamphlet attributed acts of dacoity, murder and violence to Markandeshwar Singh. It is conceded that the allegations which related to the personal character and conduct of Markandeshwar Singh were false and were reasonably calculated to prejudice the prospects of his election.

4. A poster was also published. It contained an exhortation to the voters to vote for Yogindra Prasad who was described as the "Hope of the poor, Leader of the youth, Fearless socialist". The poster bore the symbol of a hut. It was followed by a couplet in Hindi "The river bank contract and the free land will be snatched away by the people. The