Virendra Kumar Saklecha vs Jagjiwan

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1972 Supreme(SC) 193

SUPREME COURT OF INDIA
A.N. GROVER AND A.N. RAY, JJ.
Virendra Kumar Saklecha, Appellant
Versus
Jagjiwan and others, Respondents.
Civil Appeal No. 2509 of 1969,
D/- 22-3-1972.
Advocates Appeared
S. L. Sibbal, Advocate-General for the State of Punjab (M/s. S. L. Garg and S. K. Gambhir, Advocates with him), for Appellant; M. N. Phadke, Sr. Advocate, (M/s. U. N. Bachawat and P. C. Bhartari, Advocates and M/s. J. B. Dadachanji, O. C. Mathur and Ravinder Narain, Advocates of M/s. J. B. Dadachanji and Co., with him) (for No. 1) and M/s. N. K. Shejwalla, Pramode Swarup, S. S. Khanduja and Miss Lalita Kohli (for No. 4), for Respondents.

Headnote:(1) Representation of the People Act, 1951- Ss. 83 & 87-affidavit in the prescribed form-source of information as to facts must be disclosed-effect of Rule 7 of the M.P. High Court Election Petition Rules on Conduct of Election Rules, 1961-R. 94-A.
       Section 83 of the Act requires an affidavit in the prescribed form in support of allegations of corrupt practice. Rule 94A of the Conduct of Election Rules, 1961 requires an affidavit to be in Form No. 25. Form No. 25 requires the deponent to state which statements are true to knowledge and which statements are true to information. Under section 87 of the Act every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code on Civil Procedure to the trial of suits. Under section 102 of the Code the High Court may make rules regulating their own procedure and the procedure of the Civil Courts subject to their supervision and may by such rules vary alter or add to any of the rules in the First Schedule to the Code. [Para 10
       Rule 9 of the Madhya Pradesh High Court Rules in respect of election petitions states that the rules of the High Court shall apply in so far as they are not inconsistent with the Representation of the People Act, 1951 or other rules, if any, made thereunder or of the Code of Civil Procedure in respect of all matters including inter alia affidavits. Rule 7 of the Madhya Pradesh High Court Rules states that every affidavit should clearly express how much is a statement and declaration from knowledge and how much is a statement made on information or belief and must also state the source or grounds of information or belief with sufficient particularity. [Para 11
       Form No. 25 of the Conduct of Election Rules requires the deponent of an affidavit to set out which statements are true to the knowledge of the deponent and which statements are true to his information The source of information is required to be given under the provisions in accordance with Rule 7 of the Madhya Pradesh High Court Rules. In so far as Form No. 25 of the Conduct of Election Rules requires the deponent to state which statements are true to knowledge there is no specific mention of the sources of information in the form. The form of the affidavit and the High Court Rules are not inconsistent. The High Court Rules give effect to provisions of Order 19 of the Code of Civil Procedure. [Para 12
       The grounds or sources of information are to be set out in the affidavit whether the Code applies or not. Section 83 of the Act states that an election petition shall be verified in the manner laid down in the Code. The verification is as to information received. The affidavit is to be modelled on the provisions contained in Order 19 of the Code. Therefore, the grounds or sources of information are required to be stated. (1970) 3 SCR 121, 1966 Supl. SCR 331, 1952 SCR 674 & ILR 37 Cal. 259 relied on. [Para 14
       (2) Affidavits-grounds or sources of information-must be disclosed whether the Code of Civil Procedure applies or not. [Para 14
       (3) Evidence Act, 1872-S. 114-material paper not produced and witness not examined -adverse inference to be drawn against the party. [Para 18

Judgment

RAY, J.:- This is an appeal from the judgment dated 30 September, 1969 of the High Court of Madhya Pradesh setting aside the election of the appellant. The High Court held the appellant to be guilty of corrupt practice under S. 123(4) of the Representation of the People Act, 1951 (hereinafter referred to as the Act) with reference to a speech at Singoli on 29 January, 1967, a speech at Athana on 9 February, 1967 and a speech at Jhatla on 12 February, 1967. The High Court further held the appellant to be guilty of corrupt practice of appealing on the ground of religion as defined in Section 123(3) of the Act and also threatening the electors with divine displeasure being a corrupt practice as defined in Section 123(2) of the Act in regard to the speech at Jhatla on 12 February, 1967. The High Court also held the appellant to be guilty of corrupt practice of appealing on the ground of religion and threatening with divine displeasure those who voted for the Congress in the three speeches delivered on 15 February, 1967 at Morwan, Singoli and Dikaan by the Swamiji of Bhanpura at the instance, and in the presence, and after introduction by the appellant of the Swamiji of Bhanpura to the audience of those three places.

2. On 31 January, 1972 we delivered the order holding that we did not agree with the finding of the High Court and we also held the appellant to be not guilty of any corrupt practice. We stated then that we would give the reasons later. We now give those reasons.

3. The appellant and the respondent Jagjiwan Joshi and the other two respondents were four candidates from Jawad Constituency for election to the Madhya Pradesh Assembly at the general election held in the year 1967. The appellant was successful at the election. The respondent Joshi challenged the election of the appellant.

4. The allegations under Sec. 123 (4) of the Act fall under two classes. The first relates to the speech delivered by the appellant at Singoli on 29 January, 1967 and a speech delivered by the appellant at Athana on 9 February, 1967. The speech at Singoli was alleged to be as follows:-

"The Congress candidate has on payment of Rs. 5,000/- set up Kajod Dhakad ...so that the Jan Sangh votes may be split and he might in. If he practices such corruption even now what service can he do to the public later on. You, should not vote for such corrupt men.

The speech at Athana in addition to the allegations already made in respect of the speech at Singoli was as follows:-

"Joshi has set up Kajod Dhakad on payment of Rs. 5000.

5. The other allegations of corrupt practice under Section 123(4) of the Act were in relation to the same speech at Athana on 9 February, 1967 and a speech at Jhatla on 12 February, 1967. The alleged speech at Athana was as follows:

"Shri Joshi has set up a man to hit me with a knife. Accordingly, if he becomes a legislator the rule of violence (goonda gardi) would be permanently established. Therefore, the public should not only defeat such bad characters (badmash) of the Congress but also see that their deposit is forfeited.

The alleged speech at Jhatla was as follows:-

"This Congress candidate gave a knife to Mohammad Kasai and got him to attack me. But I have the strength of the janata janardhan and my life is dedicated to you. It lies with you whether to save such goondas who try to commit murder or to get their deposit forfeited.

6. The allegations of corrupt practice as defined in Sections 123(2) and 123(3) of the Act in relation to the same speech at Jhatla on 12 February, 1967 were as follows:-

"The votes shall be cast on the 20th and it is fortunate that it is a sacred day being a Monday gyaras. To give a vote to the cowkilling Congress on that day is equivalent to cutting down one cow and it will be on you to bear the responsibility for this sin.

7. The allegations of corrupt practice within the meaning of Sections 123(2) and 123(3) of the Act against the appellant in regard to the three speeches delivered on 15

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1972 Supreme(SC) 193

Cases Referred (2)