JUDGMENT

JASWANT SINGH, J :— This appeal under Section 116-A of the of Representation of the People Act, 1951 (hereinafter referred to as the Act) is directed against the judgment and order dated April 26, 1974, of Indore Bench of the High Court of Madhya Pradesh whereby the election of the appellant to the Madhya Pradesh Legislative Assembly from Kachrod Assembly Constituency No. 247 at the general elections of 1972 has been set aside under Section 100 (1) (b) of the Act on the election petition filed by Vimal Kumar Choudhury, respondent herein, who was an elector in the said constituency.

2. Pursuant to the notifications issued under Section 30 of the Act calling upon the aforesaid constituency to elect a member to the M. P. Legislative Assembly, nomination papers by the appellant and some others were filed on February 8, 1972. On scrutiny of the nomination papers held by the Returning Officer on February 9, 1972, nomination of 8 candidates was found valid. Out of the said 8 candidates, 3 withdrew their candidature with the result that only five candidates including the appellant who was set up by Bhartiya Jan Sangh and Rajendra Jain (P. W. 39) who was set up by the Indian National Congress contested the election. The poll took place on March 8, 1972. On March 12, 1972, the appellant was declared elected as a result of counting of the polled votes which showed that he had secured 23,572 votes as against 22,327 secured by Rajendra Jain (P. W. 39), his nearest rival. On April 24, 1972, the respondent herein presented an election petition challenging the election of the appellant alleging commission by the latter of various acts of corrupt practices. The particulars of corrupt practices alleged to have been committed by the appellant were set out by the respondent in paragraphs 13, 14 and 15 of his election petition. In paragraph 13 of the election petition, it was inter alia stated as under :-

"(13) That the respondent has committed the corrupt practice of publication of false statement of fact in relation to the personal character and/or conduct of Shri Rajendra Jain (hereinafter referred to as the Congress Candidate falling in the purview of Section 123 (4) of the Act as per the facts and particulars mentioned hereinafter.

Leaflet.

(13) (xi). That the Congress candidate is the follower of the Jainism wherein the eating of cow meat is absolutely prohibited. Shri Rajendra Kumar Jain does not eat meat at all. Amongst Hindus who form a majority of the voters in the Constituency, cow is regarded as a sacred animal and worshipped like God. Persons who eat cow meat are looked with hatred by the Hindus and are discarded from the society.

(13) (xii). That the respondent/Election Agent got printed and distributed a leaflet entitled :

"Beware, understand the Congress Candidate." (Leaflet is attached hereto and marked as Annexure A).

(13) (xiii). That the leaflet Annexure A contains the following statement of facts which respondent either believed to be false or did no believe to be true in relation to the personal character and/or conduct of the Congress Candidate, being the statements reasonably calculated to prejudice the prospects of Congress candidates election ;

".......What to speak of other things, Rajendra Jain went on tour to those countries where beef is prepared and served in Hotels and there he took beef even. Do you want to cast your vote in favour of a person who is atheist, who is a beef eater and is devoid of Dharma......"

(13) (xiv). That the particulars regarding the date, place, time and name regarding the distributors of Annexure A are given below :-

Sr. Date Place Name of Distributor Time

(a) 5-3-72 Khachrod (Shukarvariya Chowk), in the meeting of Jan Sangh at which the respondent and his election agent Shri Anirudda Hada were also present Rampratap s/o Ramsukh, Khachrod. About 3.00 P. M.

(b) 6-3-72 Nagda Ramsingh r/o Ganesh Chowk Birlagram, Nagda 9.00 A. M. to 11.00 A. M

3. The election petition was vigorously contested by