Judgment

ALAGIRISWAMI, J.: - In the election held on 11th March, 1972 to the Legislative Assembly of Madhya Pradesh from Damoh constituency the respondent, an independent candidate, was declared elected. The appellant, the Congress candidate filed an election petition for declaring the election of the respondent void on various grounds all of which were found not proved by the learned Judge of the High Court of Madhya Pradesh who tried the petition. The petition was consequently dismissed and this appeal is against that dismissal.

2. We are concerned only with the charge of corrupt practices under Section 123 (4) of the Representation of the People Act in respect of five pamphlets marked Exs. P-3, P-4, P-5, P-6 and P-8 and two public meetings held on 4-3-1972 and 8-3-1972.

3. At the beginning of the arguments an objection was raised on behalf of the respondent that the election petition should have been dismissed on the ground that it did not comply with the requirements of Section 83 of the Representation of the People Act. This was on the basis that the affidavit filed in support of the election petition did not give details as to the material particulars in respect of the various corrupt practices with which the respondent was charged. It was argued in the alternative that in any case no evidence should have been admitted. As far as this appeal is concerned both amount to the same thing because charges with which we are concerned are charges under S. 123 (4). We do not think that there is any substance in this contention on behalf of the respondent.

4. On behalf of the appellant it was made clear that the only charge made in the petition was the charge of publication of the pamphlets and not their printing and evidence regarding the printing was relied upon only to corroborate the evidence regarding distribution of the pamphlets. It is obvious that when Section 123 (4) speaks of publication it means distribution. Mere printing of the pamphlets would not fall under Section 123 (4). Therefore the failure to give particulars of the printing cannot lead to the dismissal of the petition. Nor could evidence regarding it be shut out. The proviso to Section 83 (1) lays down that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. It does not say that the allegation of corrupt practice and particulars thereof should be given in the affidavit. The election petition contains the allegation of corrupt practices and particulars thereof. That this is the intention of the Legislature is also clear from a perusal of Form 25, which is the one prescribed under Rule 94A of the Conduct of Elections Rules. The affidavit filed in support of the election petition is in accordance with that form.

5. Reliance was placed on behalf of the respondent on the decision of this Court in Virendra Kumar v. Jagjivan (1972 (1) SCC 826) . In that case R. 9 of the Madhya Pradesh High Court Rules in respect of election petitions, which 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 the Code of Civil Procedure in respect of all matters including inter alia affidavits, was referred to. On the basis of that Rule R. 7 of the Madhya Pradesh High Court Rules which states that every affidavit should clearly express how much is a statement made on information or belief and must also state the source of or grounds of information or belief with sufficient particularity, was stated to mean that grounds or sources of information are to be set out in the affidavit. This would really mean that the allegations found in the body of the election petition would have to be repeated in the affidavit. However, in that case the failure to conform to Rule 9 and R. 7 of the Madhya Pradesh High Court Ru