Judgement

VAIDIALINGAM, J.:- This is an appeal under Section 116-A of the Representation of the People Act, 1951 (hereinafter to be referred as the Act) against the judgment and order dated June 30, 1970 of the Patna High Court in Election Petition No. 11 of 1969, setting aside the election of the appellant to the Bihar Legislative Assembly in the mid-term elections held in that State in February, 1969.

2. In the mid-term elections held in Bihar in February, 1969, for the Minapur Assembly Constituency No. 65 in the District of Muzaffarpur, eight candidates including the appellant and the respondent had filed their nomination papers and contested the election on behalf of various parties. The appellant was a candidate of the Congress party having a symbol of "a pair of bullocks with yoke" and the respondent was a candidate on behalf of the Soshit Dal, the symbol of which was "Fish". Though there were eight candidates in the field, the main contest was between the appellant and the respondent. The appellant was a Rajput by caste and the respondent a Bhumihar Brahmin. The date of poll was February 9,1969, but in respect of two polling booths Nos. 57 and 99, there was a repoll on February 12, 1969. The counting of votes took place on February 13, 1969 and the results of the election were declared the same day. The apellant got 33,903 votes as

against the respondent who got 32,978 votes and there was a difference of 925 votes between the appellant and the respondent. In consequence the appellant was declared elected.

3. The respondent filed, under Sections 80-A and 81 of the Act, Election Petition No. 11 of 1969 in the High Court, challenging the election of the appellant on various grounds. According to the respondent the appellant, his agents, workers and supporters, with his consent had committed corrupt practices on a very large scale under sub-sections (2) and (3) of Section 123 of the Act.

4. The first allegation was that the appellant, his agents, workers and supporters, with his consent, had made propagand and canvassed for votes for the appellant orally and through a pamphlet in the name of Rajput caste in different villages from about 10 days before the date of the poll. This canvassing on the basis of caste brought about tension and ill-feeling between the Rajputs, to which sect the appellant belonged and the Bhumihars, to which sect the respondent belonged. The allegations concerning the caste appeal have been made in paragraphs 17 and 18 of the election petition and particulars regarding this allegation have been given in Schedule II of the election petition. In the first column the names of the persons who committed corrupt practice under S. 123 (3) were mentioned; in column No. 2, the period during which the said practice was committed has been indicated and in column No. 3, the names of places where such corrupt practice was committed, were referred to.

5. The appellant on the other hand in paragraphs 16 and 17 of his written statement denied these allegaetions and in turn made counter-allegations against the respondent. He further pleaded that the respondent was also guilty of appealing to voters to vote on the basis of caste. Particulars of such acts of the respondent were given in great detail in the written statement. In particular the appellant pleaded that no such pamphlet referred to in the election petition has been printed or circulated by him or on his behalf with his consent. As the pamphlet has not been produced, it must be a got up document for the purpose of boosting up the case of the respondent. Regarding the allegations contained in Schedule II of the election petition, the appellant pleaded that the respondents allegations were false and that he has purposely included in the list persons who are hostile or inimical to the appellant.

6. The second allegation was that the appellant, his agents, workers and supporters, with his consent, committed corrupt practice of undue influence on a large scale under S