Judgment

JAGANMOHAN REDDY, J.:- The respondent - a nominee of the Utkal Congress of which Biju Patnaik an ex-Chief Minister of the Orissa State is the founder leader - was elected to the Lok Sabha from the Kendrapara parliamentary constituency in that State, by defeating two candidates, namely Surendranath Dwivedi - a nominee of the Praja Socialist Party - and Pradyumna Kishore Bal-a nominee of the Indian National Congress (B) Party At this election the respondent Surendra Mohanty polled 1,23,680 votes. Surendranath Dwivedi 1,20,707 votes and Pradyumna Kishore Bal 1,11,235 votes. The appellant - a voter in that constituency - challenged the election of respondent on the ground that corrupt practices under sub-sections (3) and d(4) of Section 123 of the Representation of the People Act, 1951 - hereinafter referred to as the Act - which were detailed in sub-paragraphs (i) to (iv) of paragraph-5 of the petition were committed by him and/or by his agents with his consent. The petition, after it was duly tried, was dismissed by the High Court, against which this appeal has been filed under S. 116-A of the Act.

2. It may be mentioned that the respondent was at all material times, and even at the date of the election petition, an editor of the Oriya Daily "The Kalinga published by the Kalinga Publications whose Chairman is Biju Patnaik. As one of the corrupt practices alleged against the respondent has relevance to the election symbol, it is necessary to state that the symbol allotted to the Utkal Congress was the water wheel (Chakra) and the plough (Langala). The corrupt practices which have been set out in paragraph-5 of the petition and which were alleged to have been committed by the respondent and/or his agents with his consent can be divided into two broad categories:

(1) The appeal to the religious symbol, a corrupt practice under subsection (3) of Section 123 of the Act; and

(2) Imputation against the personal character and conduct of Surendranath Dwivedi, a corrupt practice under sub-s (4) of S. 123 of the Act:

3. In respect of the first category the allegations are (i) that the respondent who was the editor of an Oriya Daily The Kalinga published in his paper dated February 15, 1971, an editorial appealing to the religious symbol of Chakra and Langala the mythological weapons associated with Jagannath and Balaram the most worshipped and esteemed deities in Orissa for the furtherance of the prospects of his election and for prejudicially affecting the election of other candidates . (Paragraph 8 (i) of the petition):

(ii) that Biju Patnaik in a public meeting held on February 15, 1971, at 5. P. M. had "appealed to religious symbol by saying that his party (Utkal Congress) was fully able to eradicate unemployment and poverty from the country by forming a strong Government in the State with the help of the two powers Jagannath and, Balaram whose weapons Chakra and Langala have been chosen by Utkal Congress as its symbol. The statement was made in the presence of the respondent with his consent and without any protest by him and was for the furtherance of the prospect of the respondent... . (paragraph 5 (iii) of the petition); and

(iii) that the respondent in his daily paper The Kalinga dated February 19, 1971 had published a report regarding the meeting held at Karahaghai on February 15, 1971, containing the aforesaid appeal to religious symbol as detailed in (i) above (Paragraph 5 (iv) of the petition).

4. The allegations in respect of the second category are:

(i) that on February 15, 1971 in a public meeting held at 5. P. M. at Marshaghai the respondent made false statements of facts regarding the personal character and conduct of Surendranath Dwivedi to the following effect, which the respondent believed to be false and/or did not believe to be true:

"Shri Surendranath Dwivedi has not yet rendered account of the gift of one lakh rupees from the Marwari Society, Bombay, and Rs. 25,000/- from the Prime Minister brought by him