Judgment

ALAGIRISWAMI, J. :- The appellant, an unsuccessful candidate in the election to the Legislative Assembly of Haryana from Hathin Constituency held on 11th March, 1972, has filed this appeal against the dismissal of his election petition, challenging the election of the 1st respondent, by the Punjab and Haryana High Court.

2. There were four allegations of corrupt practice against the returned candidate, that he was guilty of (l) the corrupt practice of bribery, (2) the corrupt practice of publication of a false statement relating to the personal character of the appellant falling under Section 123 (4), (3) the corrupt practice of hiring and procuring vehicles falling under Section 123 (5) and (4) the corrupt practice of incurring and authorising expenditure in contravention of Section 77 of the Representation of the People Act. Charges (3) and (4) were given up even before the High Court and charge (1) was given up before this Court. The only charge that survives for consideration by this Court is the charge of publication of a pamphlet containing false allegations against the appellant which fall under Section 123 (4) of the Act. We may, however, have to refer to the evidence in respect of charge (1) while considering the allegations under charge (2).

3. As we agree with the High Court in its conclusions we are referring only to the broad features of the evidence. The allegations regarding the charge under Section 123 (4) are found in paragraphs 6 (b) and 8 of the election petition. In paragraph 8 it was stated that the returned candidate finding that he was bound to lose, became desperate and he in league with his election agent and Shri Hukam Chand of Palwal and Dharam Chand of V. Hathin decided to indulge in character assassination of the petitioner. This was said to have been in the form of a pamphlet which reads as follows :

"IMMORAL CANDIDATE FROM HATHIN CONSTITUENCY Shameful black deeds of Shri Hem Raj

Brothers and sisters

We feel ashamed in telling you that this time again that person has been given Congress ticket because of whose atrocities the public is already upset. By the black deeds of Shri Hem Raj even today the sisters and daughters of the area are exiled from their houses in the same manner as the young women of Bangladesh. So many teacheresses and nurses have become victim of his sexual lust. The chastity of so many victims belonging to small castes has been taken away. The Sunari and Kumbari scandal of his own village is hidden from whom ?

If Shri Hem Raj is successful again then the honour of sisters and daughters will not be safe. It is strongly appealed to you that you should secure honour of your sisters and daughters by defeating this lustful wolf.

Brothers we pray to you that you should make Ch. Ramji Lal Dagar, independent candidate, who is a young man of character, successful. His election symbol is elephant.

Symbol of Elephant

Appellants

Residents of Hathin constituency"

It should be stated even at this stage that in the election petition as originally filed the names of Hukam Chand and Dharam Chand were not found and also that though their names were mentioned in the amended election petition they were not examined. On the other hand the appellant s case as developed during the trial was that Kishan Singh, the 5th respondent, election agent of the successful candidate and one Debi Singh, the man who wrote the manuscript, went to the Samta Press at Palwal on 8th March, 1972 and gave the manuscript to the proprietor of the press, Mukhi Bhim Sen and placed an order for 5,000 copies. Debi Singh himself was not examined. But Kishan Singh gave a story as to how he came to write on the back of the manuscript asking Bhim Sen to print 5,000 copies, a story which the learned Judge characterised as one from the Arabian nights.

4. Bhim Sen was summoned to produce his account books. He did not produce the account books. He produced a note book purporting to be an order book. A mere look at it would show that it is