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SUPREME COURT OF INDIA
E.S. VENKATARAMIAH AND R.B. MISRA, JJ.
Ram Chand Bhatia, Appellant v. Hardyal, Respondent.
Civil Appeal No. 1392 (NCE) of 1984, D/-29-1-1986.
– in the case of Ram Chand v. Hardyal, AIR 1986 SC 717, on a perusal of the judgment, the Supreme Court found no such finding recorded by the learned Judge in the earlier part of the judgment. This appears to be under part of the judgment. This appears to be under some misapprehension. The learned Judge has referred to the contents of the impugned poster but the Court has got to record its own finding whether the statements of facts about the personal character of the respondent was false to the knowledge of the appellant or in any case believed by him to be false and not true. In the absence of a finding on this requirement of sub–section (4), the appellant could not be held to have committed a corrupt practice within the meaning of Section 123 (4) of the Act. The learned Judge, was not justified by assuming that he had already recorded a finding on this aspect. On the evidence on record the Supreme Court could not say that the statements of the fact assailing the personal character of the respondent was false or at any rate believed by the appellant to be false and not true. The learned Judge has recorded a finding that the appellant himself had distributed the offending document in various meetings but he refrained from giving any finding as to whether his election agent or other persons with his consent had distributed but the offending document. Hence held that the learned Judge committed a grave error in setting aside the election of the appellant.
Judgment
MISRA, J. :- The present appeal by special leave is directed against the judgment of the learned Single Judge of the High Court of Himachal Pradesh at Simla dated 11th October, 1984 declaring the election of the appellant as void under section 100(1)(b) of the Representation of the People Act 1951 (hereinafter referred to as the Act).
2. Pursuant to a Notification dated 17th of April, 1982 under sub-section (2) of section 15 of the Act calling upon all the assembly constituencies in the State to elect members of the Legislative Assembly in accordance with the Act and the rules framed therein, a number of persons filed their nomination papers from 46 Nagrota Constituency. After scrutiny there remained only 4 contestants in the field. The appellant Shri Ram Chand Bhatia was sponsored by Bhartiya Janata Party, Shri Hardyal the respondent was the official nominee of Congress (1) Party, Shri Kanshi Ram was a Janata Party candidate and Shri Vidhi Chand was the official nominee of the Communist Party of India. The appellant was declared elected to the Himachal Pradesh Legislative Assembly by a margin of 3364 votes. Shri Hardyal the respondent was the next rival candidate. Shri Kanshi Ram, Janata Party candidate secured 1049 votes while Shri Vidhi Chand secured 1889 votes.
3. The respondent filed an election petition challenging the election of the appellant under section 81 of the Act on the ground that Shri Kanshi Ram, Janata Party candidate, conspired with the. appellant and other persons to get printed posters like the one annexed to the said petition as Annexure PA containing false statement of facts assailing the personal character of the, election petitioner Shri Hardyal and distributed the same during the election period with the object of prejudicially affecting the prospects of election of Shri Hardyal. The poster annexed to the petition as Annexure PA later on exhibited as P1 in the course of the trial of the case, is the bone of contention in the election petition. It will be relevant to extract the relevant paragraphs of the Election Petition to bring out the points involved in the case:
".......................................................
3. That Shri Virendar, Advocate of Kangra, Kali Dass, Pradhan Massal Panchayat, Shri Ram Chand Bhatia, respondent, KanshiRam, Janata Party candidate and Shri Kidar Nath Bassi who was election in charge in the Constituency for B.J.P. joined hands amongst themselves and started a vilification campaign against the character and conduct of the petitioner. They came out with a poster like Annexure PA allegedly purported to have been published by Shri Parma Nand, brother of Shri Kanshi Ram, none the less as would be clear from the paragraphs hereinafter contained that it was the respondent who was instrument in preparing the draft as well as getting the posters printed in the name of Shri Parma Nand.
4. That these posters came out for the first time in the Constituency during the last week of March, 1982. However, whispering campaign assassinating character and conduct of the petitioner had started by the respondent in collusion and connivance with Shri Kanshi Ram, Janata candidate. Shri Kanshi Ram, the Janata Candidate, is the Pardhan of Gram Panchayat, Pathiar and the respondent immediately before his election, was also Pradhan of Gram Panchayat, Amtrar and both of them have close relations with each other since long time back.
5. That the contents of the poster and facts stated therein are false to the knowledge of the respondent and the respondent does not believe these facts to be true. The bare perusal of Annexure PA would show that the contents are in relation to the personal character and conduct of the petitioner. These statements of facts contained in Annexure PA are not only published and circulated throughout the constituency by the consent of the respondent but as a matter of fact these posters have been got printed and circulated by the respondent himself surreptitiously i
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