Patna High Court
Bhupendra Narain Mandal vs Ek Narain Lal Das And Ors. on 21 August, 1964
Equivalent citations: AIR1965PAT332, AIR 1965 PATNA 332
JUDGMENT A.B.N. Sinha, J.
1. At the last Parliamentary election from the Saharsa Parliamentary Constituency held in February, 1962, there were three contestants; one each belonging to the Socialist the Swatantra and the Congress Party. Their nomination papers had been duly accepted after scrutiny on the 22nd January, 1962. The polling was done on three dates, namely, 18th, 21st and 23rd February, 1962; and the result was announced on the 28th February 1962 when Shri Bhupendra Narain Mandal, the Socialist candidate, was declared duly elected. Thereafter, two election petitions by two voters respectively seeking for two-fold declarations, namely, (1) that the election of Shri Bhupendra Narain Mandal was void and should be set aside and (2) that Shri Lalit Narain Mishra, the Congress candidate, should be declared to have been duly elected, were presented to the Election Commission, one on the 11th April, 1962 and the other on the 16th April, 1962. The first was registered as election Petition No. 177 of 1962, and the second as Election Petition No. 296 of 1962. The petitioner in each case is an elector duly registered in the said Parliamentary constituency. The respondents, however, were the same in both the petitions: Shri Bhupendra Narain Mandal the returned candidate being respondent No. 1 and Shri Ramanugrah Jha and Shri Lalit Narain Misra, the other two contestants being respondents 2 and 3 respectively.
2. Both the petitions were tried together under Section 87 of the Representation of the People Act, 1951 (hereinafter referred to as "the Act") by the Election Tribunal, Patna, and have been disposed of by one Judgment dated the 9th September 1963. The learned Election Tribunal has allowed the election petitions in part; the election of respondent No. 1 Shri Bhupendra Narain Mandal has been declared to be void under Section 100(1) (b) of the Act, but the prayer that respondent No. 3 Shri Lalit Narain Mishra be declared to have been duly elected under Section 101(b) of the Act has been rejected. The Election Tribunal has further made an order under Section 99(1)(a)(ii) of the Act naming respondents Nos. 1 and 2 as persons found guilty of having committed corrupt practice within the meaning of Sub-section (3) of Section 123 of the Act.
3. Election Appeals Nos. 13 and 14 arising out of Election Petition No. 177 of 1962 and Election Petition No. 296 of 1962 respectively have been preferred by respondent No. 1 and are directed against the orders passed by the Election Tribunal under Section 100(1)(b) of the Act declaring his election as void and under Section 99(1)(a)(ii). of the Act naming him as one of the persons proved to have been guilty of corrupt practice. Election Appeals Nos. 15 and 16 of 1963 arising likewise out of Election Petition No. 177 of 1962 and Election Petition No. 298 of 1962 respectively have been preferred by the petitioners; Election Appeal .No. 15 of 1963 by Shri Ek Narain Lal Das and Election Appeal No. 16 of 1963 by Shri Mahendra Mishra; and both are directed against the judgment and order of the learned Election Tribunal in so far as it rejects their prayer for declaring Shri Lalit Narain Mishra, respondent No. 3, as having been duly elected. All these appeals have been made analogous and have been heard together and this judgment will govern all of them.
4. Shri Ramanugrah Jha, respondent No. 2, being aggrieved by the order passed by the Election Tribunal under Section 99(1)(a)(ii) of the Act against him filed two memoranda on the 7th October, 1963, one in Election Appeal No 13 of 1963 and the other in Election Appeal No. 14 of 1963 purporting to do so under Section 116A(1) of the Act and describing them as memoranda of cross-objections. By order No. 7 dated the 21st November, 1963, a Bench of this Court was pleased to admit the aforesaid two memoranda and directed the objector to deposit security and to file paper books as he would have been required to do if he had preferred independent appeals under Section 116A of the Act. The question of the maintainability of the two memoranda as cross-objections was left open to be decided if the parties so liked at the time of the hearing of the Election appeals themselves. None of the parties, however, raised the question of maintainability at the hearing. Indeed the question will not arise if, in fact or in substance, the memoranda in question being really in the nature of independent appeals could be treated as such and not as memoranda of cross-objection. In any case, all these questions will be examined, while considering the order against respondent No. 2 on its merits.
5. It will he convenient to first take up the two appeals preferred by the returned candidate, Shri Bhupendra Narain Mandal, who, as already stated, figured as respondent No. 1 in both the election petitions. Though various grounds were set forth in the two petitions for getting his election set aside the only ground pressed at the hearing before the Election Tribunal and which has been found against him was that the appellant, his election agent and other agents of his with his consent made appeals to the voters through meetings and propaganda in particular, by distribution of printed hand-bills and leaflets to vote or refrain from voting on grounds of caste.
It was alleged that the appellant who belonged to the Yadav caste, his election agent Shri Urmilesh Jha and other persons with his consent with a view to further the prospects of his election and prejudicially affect the election of respondent No. 3, who belonged to the Brahmin caste. appealed to the voters belonging to the Yadav caste scattered throughout the Parliamentary constituency, being in majority in some areas and ranging between 15 to 20 per cent in others, to refrain from voting for respondent No. 3 on the ground of his being a Brahmin and to vote for him on the ground that he was a Yadav. It was further alleged that the unwholesome propaganda carried on by the appellant on caste basis inevitably induceo an atmosphere of hostility and acrimony between the people of the Yadav and the Brahman castes and thus promoted enmity and hatred between the castes. On the above allegations the petitioners in both the election petitions asserted that the appellant and his election agent and other persons with the consent of the appellants or his election agent had committed corrupt practice under Sub-sections 3 and 3A of Section 123 of the Act, and accordingly his election should be declared to be void.
6. The three respondents to the two election petitions including the appellant appeared in the two cases arising out of the two election petitions and filed their respective written statements. The appellant in his written statement besides taking certain preliminary objections to the maintainability and validity of the election petitions denied all the allegations made against him in the two election petitions. In particular, he denied that he or his election agent or any of his other agents with his consent or otherwise had made at any time any appeal to the voters belonging to the Yadav caste to vote or refrain from voting on grounds of caste or to have done anything to promote feelings of enmity or hatred between the Brahmin and Yadav voters. He dented to have been of any manner connected with the printing, publication or distribution of the hand-bills or leaflets enclosed with the two election petitions. His case was that no such handbills or leaflets as mentioned in Annexure T)(1) in Election Petition No. 296 of 1962 or marked as Annexure B(1) in Election Petition No. 177 of 1962 were published or got printed by him or bv his election agent or by anybody on their behalf with their consent or otherwise, and no such handbills or leaflets, were distributed anywhere in the Constituency during the election. He further stated that it appeared that the handbills or leaflets in question were brought into existence either dunng the election or afterwards by respondent No. 3 or his agents to make use of them when needed as the said respondent and his man had lost all hopes of success in the said election, and, that so far as the election propaganda on his behalf was concerned, it was solely on the lines of the programme of the Socialist Party, to which he belonged, and that the party programme had forbidden all caste appeals.
7. Respondent No. 2 in his written statement denied that he was not a serious candidate and wanted to withdraw from the contest but was induced by the appellant not to do so that he had made any appeal to the voters on the grounds of religion and caste or had printed published or distributed or was in any way connected with the printing publication or distribution of the leaflets bearing his name and enclosed with the election petitions. He however supported the petitioners case that appeals on the ground of caste were made by the appellant to the voters of the Yadav caste and, accordingly, he did not oppose the prayer of the petitioners for declaring the election of the appellant as void, but he opposed the prayer of the petitioners for declaring respondent No. 3 to have been duly elected. Respondent No 3 in his written statement supported the case of the petitioners and the reliefs prayed for by them and he further stated that but for caste propaganda by and on behalf of the appellant and on behalf of respondent No. 2, he would not have been defeated to the election.
8. On the pleadings of the parties as many as nine issues were raised in each of the election petitions. Except the preliminary issue relating to the bar of limitation which was raised in Election Petition No. 296 of 1962 alone, the rest of the issues were common to both the petitions The Election Tribunal has held that Election Petition No. 296 of 1962 was not barred by limitation and this finding has not been challenged before this Court. The other preliminary issues arising in the two election petitions were as follows:
(1) Are the allegations of corrupt practices supported by an affidavit in the prescribed form as required by the proviso to Section 83 of the Representation of the People Act, 1951? It not, what should be the effect hereof?
(2) Are the election petition and the annexures thereto properly verified?
(3) Does the election petition comply with the provisions of Section 81 of the Representation of the People Act, 1951?
9. In regard to the first, the Election Tribunal has held that though the allegations of corrupt practice made in the two election petitions were not supported by an affidavit in the form prescribed under Rule 94A of the Conduct of Election Rules, 1961. as enjoined by the proviso to Section 83(1) of the Act, the said proviso not being mandatory, the petitioners were not debarred from agitating the question of corrupt practice before the Tribunal. The correctness of this conclusion was not seriously contested, and indeed, upon the authorities, it is well settled that a non-compliance with the provisions of Section 83 of the Aet is not fatal to the maintainability of an election petition.
Mr. S. N. Dutt, appearing for the appellant however, contended that besides the fact that the affidavits in support of the allegation of corrupt practice were not in the prescribed form as enjoined by the proviso to Section 83(1), the election petitions even after the amendment of some of the annexures to the same did not contain full particulars of the names of the parties, alleged to have committed the corrupt practice, or the dates and place of the commission of such corrupt practice, and, as such, applying the ordinary rule as to pleadings, evidence of corrupt practice alleged should not have been allowed to be put in and, even if allowed, should not have been looked into. In my opinion, there is no substance, in this contention. I find that in both the cases the petitioners applied for amendment of some of the enclosures to the election petitions with a view to give further and specific particulars as to the commission of the corrupt practice by way of amplifying the statements already made in regard to the alleged corrupt practice in the two election petitions. These amendments were allowed after objections thereto on behalf of the appellant were overruled. Through the amendment as full a statement as possible of the names of the parties alleged to have committed the corrupt practice in question and the date and place of the commission of such corrupt practice were set forth. In case No. 177, for instance, in Annexure B the names of the persons who, it was alleged, had committed the corrupt practice alleged in paragraph 16(b) of that petition with the dates and place of commission thereof had already been given, but as the dates were not mentioned village by village in every case so as to indicate on which date the alleged corrupt practice was committed in a particular village, by the amendment the dates of commission of corrupt practice in each of the villages were specified. Likewise in case No. 296 of 1962, Annexure D had furnished particulars of the corrupt practice alleged in paragraph 21 of the petition giving the names of the persons who had addressed the meetings and had distributed handbills making appeals on caste lines but contained a general statement without details to the effect that those meetings had been addressed throughout certain Assembly constituencies. This defect was sought to be remedied by the amendment petition filed on the 16th October, 1962, whereby the villages where such meetings had been addressed with the date of the meeting, in each village, were sought to be added to the said annexure. In the circumstances, it is not correct to say that as full a statement as possible of the particulars in regard to the names of the parties alleged to have committed the corrupt practice in question and the date and place of the commission of such corrupt practice had not been ultimately furnished. Moreover, even assuming that despite the amendments to the annexures as aforesaid, only insufficient particulars of the corrupt practice alleged had been furnished that by itself will be of no avail to the appellant. As a matter of fact, notwithstanding the alleged insufficiency of particulars, evidence in regard to the corrupt practice alleged against the appellant has been allowed to be given and taken. The Supreme Court in more than one- case (vide Bhagwan Datta Shastri v. Ram Ratauji Gupta, AIR 1960 SC 200 and Balwan Singh v. Lakshmi Narain, AIR 1960 SC 770) while dealing with similar contentions has laid down that when the parties have gone to trial and, despite the absence of full particulars of the corrupt practice alleged, evidence of the contesting parties has been led on the plea raised by the election petitions, the petitions could not thereafter be dismissed for want of particulars, because the defect was one of procedure and not one of jurisdiction of the Tribunal to adjudicate upon the plea in the absence of particulars; and the only question that could arise in such cases was whether, by reason of the absence of full particulars, any material prejudice has been occasioned.
Now, in the present case, I am satisfied upon the state of the record that no such material pre-judice has been occasioned. It will be seen that in none of the two written statements put in by the appellant in the two election cases respectively any grievance has been made that because of the absence of full particulars as to the names of the persons by whom and the date on which and the place or places where the corrupt practice alleged was committed, he was unable to meet the charges made against him. In paragraph 30 of the written statement filed in Election Case No 296 of 1962, the contention was that the allegation in regard to corrupt practice as made in the election petition, was liable to be struck off on account of the absence of full particular therein. In the other written statement filed in Election Case No. 177 of 1962 as well, though a plea was taken in paragraph 13 thereof that the election petition was fit to be dismissed for non-compliance with the provisions of Section 83 of the Act and that he contents of the petitions and their annexures had not been properly verified or supported by any affidavit in the prescribed form, no grievance was made anywhere in any of the several paragraphs that the appellant was unable to meet the charges made against him for lack of full particulars. It appears that the appellant had strenuously opposed the prayer for amendment of the relevant annexures in the two election eases seeking to bring on the record fuller and more specific particulars of the corrupt practice alleged. This must have been done with a view to persuade the Tribunal to dismiss the election petitions after the prayer for amendment had been rejected, presumably on the ground of non-compliance with the provisions of Section 83(1)(b) of the Act; but after the amendments were allowed by the Tribunal and after the application filed under Article 226 of the Constitution to get those orders of amendment quashed had failed it appears that the appellant reconciled himself to the position, with the result that the evidence relating to the corrupt practice alleged in all its particulars was allowed to be admitted on the record without any objection on his part, and indeed, the appellant examined as many as 67 witnesses to meet the allegations of corrupt practice alleged against him and at no time whether during the trial or at the stage of the argument any plea was taken on his behalf that for want of sufficient particulars he had been embarrassed in his defence. In the circumstances, I am unable to hold that any prejudice, much less any material prejudice, has been occasioned on account of the alleged non-furnishing of full particulars in regard to the corrupt practice in question in the election petitions or in the annexures attached thereto. Accordingly, this contention of Mr, Dutt is without any substance.
10. In regard to the second preliminary issue, namely, whether the election petitions and annexures thereto had been properly verified, the Tribunal found that there was nothing wrong with the Verification in Case No. 177 of 1962, but in case No. 296 of 1962 the verification was defective It, however, allowed the defect to be removed by amendment. No grievance has been made by the appellant on that account.
11. In regard to the third and the last preliminary issue which has also been decided against the appellant by the Tribunal, it appears that this issue was not pressed in case No. 177 of 1962, obviously because there was no foundation laid for it in the written statement of the appellant filed in that case. Nowhere in that written statement, not even in paragraph 13 wherein allegations in regard to non-compliance with the provisions of Section 83 of the Act have been made any mention has been made about any non-compliance with the provisions of Section 81 of the Act. So far as case No. 296 of 1962 is concerned, the position on the written statement, which was filed on the 27th August, 1962, was no better. Merely a vague and a general statement was made in paragraph 4 thereof to the effect that the election petition had not been filed in accordance with law. The appellant, however, filed a petition on the 5th October 1962 alleging that the petitioner Mahendra Mishra had not complied with the mandatory provision of Section 81(3) in so far as the copy of the election petition filed by him before the Election Commission and sent to the appellant had not been attested by the petitioner, under his signature to he a true copy of the petition. The copy of the election petition alleged to have been received by the appellant was put in along with his petition on the 5th October, 1962 and later on the basis of his evidence on the 9th July, 1963 was marked as Ext. F. Meanwhile, on the 16th October, 1962, the petitioner Mahendra Mishra had put in a rejoinder supported by an affidavit stating inter alia that he had filed one original and five copies of the election petition with the Election Commission and the copies thereof had been duly attested under his signature to be true copies of the election petition and of the annexure thereto on the starting page which contained the cause title and index of the petition and of the annexures. A true copy of the starting page of the election petition was enclosed with the rejoinder as annexnre I thereto.
It was further stated therein that as soon as the appellant had filed the petition on the 5th October, 1962, the copy of the election petition which had been received by respondent No. 2, namely, by Shri Ramanugrah Jha containing the starting page and the attestation odder the signature of the petitioner thereon, was shown to the Tribunal. The petitioner further pointed out that the fact that the written statement filed on behalf of the appellant did not mention anywhere that the copy of the election petition which had been received had not been duly attested clearly showed that the complaint was an afterthought and it appeared that the appellant had either suppressed the starting page to fish out a ground at such a late stage or the starting page having somehow got misplaced, a false plea had been raised. The Tribunal has accepted the petitioner's case and has held that no case of any non-compliance with Section 81(3) had been made out, and, I am satisfied that there is no merit in the appellant's challenge to this finding.
12. In the first place, I am inclined to take the view that strictly speaking, the appellant has adduced no evidence to show at the copy which he produced before the Tribunal as having been received from the Election Commission, was the same which he had actually received from the Commission. Sub-section (3) of Section 81 of the Act speaks of attestation of copies of the election petition presented to the Election Commission. The allegation of the appellant that the copy of the petition which he received from the Election Commission did not bear the requisite attesiation could, therefore, be substantiated only by the evidence of the Election Commission and not by the mere production before the Tribunal by the appellant of the copy said to have been received from the Commission. As there was no such evidence in the present case, the appellant's contention should have been rejected on the ground alone.
In the second place it may be mentioned that the appellant has admitted in is deposition that he was a candidate from Madhepura cum Tribeniganj and Madhepura constituencies in the Assembly elections of 1952 and 1957, that he won in 1957 but had lost in 1952, that he knew the election rules generally before he contested the election, and finally that he was a lawyer though he had given up his practice. In the circumstances it is impossible to believe that if, in fact the copy of the election petition which he had received from the Election Commission did not contain the requisite attestation thereon as required by Section 81(3) of the Act, he would have omitted to make a specific point out of it in his written statement. The fact that he did not do so quite clearly suggests to me that at the time when he filed the written statement, he had no basis, in fact for making out any such ground for attack to the election petition.
13. (His Lordship considered further evidence and proceeded).
All these factors lead to a reasonable inference that the petitioner's case that he had furnished-five copies, duly attested as required by Section 81(3), to the Election Commission was true and that the copy of the election petition which was served on the appellant did contain the starting page with the cause title and the index and the requisite attestation by the petitioner thereon; but it may be that that starting page having got detached from the rest of the election petition got mislaid somewhere and when the appellant noticed it nearly two months after the filing of his written statement, he came up with a petition on the 5th October, 1962 raising the ground on non-compliance with Section 83(1) of the Act. The finding of the Tribunal on this preliminary issue as well, therefore, must be upheld.
14. On merits, the main attack on behalf of the appellant has been directed against the various findings reached by the Tribunal on which rests its ultimate finding to the effect that corrupt practices within the meaning of Sub-sections (3) and (3A) of Section 123 of the Act had been committed at the election by the appellant, his election agent Shri Urmilesh Jha and by one Shri Asheshwar Goet--an agent of the appellant--at several places in the constituency. The case of the petitioners, which was pressed at the hearing before the Tribunal, was, as has been already stated, that the appellant and his election agent as also other agents with his consent had appealed to the voters belonging to the Yadav caste to vote for him and refrain from voting for respondent No. 3 on the ground of caste, and that these appeals were made through meetings and propaganda and, in particular, by distribution of printed handbills or leaflets, copies whereof had been enclosed with the annexures to the election petitions. According to the petitioners, the offending leaflet constituted in clear terms an appeal to the voters belonging to the Yadav caste to vote for the appellant on the ground that he belonged to their caste and to refrain from voting for respondent No. 3 on the ground that he was a Brahmin by caste. This leaflet on the case of the petitioners, as made out at the hearing, was got printed at the instance of the appellant by Shri Urmilesh Jha, his election agent, who having written the manuscript thereof had sent the same for printing to the Mithila Art Press, Darbhanga through one Bhuneshwar Biswas, one of the polling agents of the appellant with a covering letter in his own hand addressed to the Manager of the said Press. It was further the case of the petitioners that as per the order received from Shri Urmilesh Jha as aforesaid, 5,000 copies of the offending leaflet were printed and delivered to aforesaid Bhuneshwar Biswas on the 9th February, 1962 who paid off the printing charges to the Press, that these leaflets were freely distributed with the consent of the appellant at several places within the constituency on different dates and that the appellant himself was present at some of those places. The petitioners had also adduced evidence to the effect that besides distributing the offending leaflet, the appellant, his agents and workers had indulged in caste propaganda among the Yadav voters, but the Tribunal has placed no reliance on any such evidence on the ground that it was of a general and vague character. It is apparent that the ultimate crucial finding reached by the Tribunal against the appellant rests mainly on its finding relating to the printing and distribution of the offending leaflet.
The case of the appellant on the other hand, was that the offending leaflets were forged and antedated documents and had been printed and brought into existence at the Instance of respondent No. 3 either during or soon after the election, because he had gauged the situation in advance and had lost all hopes of succeeding at the election. According to the appellant, it was false to say that the manuscript or the offending leaflet was in the hand of his election agent, Shri Urmilesh Jha, or that his election agent had got the same printed at the Mithila Art Press as alleged or had sent any letter under his hand to the Manager of the said press. The Tribunal has accepted the petitioners case and has come to the following conclusions:
(i) that from the context, language and tenor of the offending leaflet, it was clear that it constituted an appeal to the Yadav voters to vote for the appellant and to refrain from voting for respondent No. 3 on the ground of caste;
(ii) that both the manuscript of the offending leaflet (Ext. 6/b) and its covering letter were in the hand of Shri Urmilesh Jha, who had sent both, through Shri Biswas, to the Manager of Mithila Art Press, Darbhanga, for getting 5000 copies of Ext. 6(b) printed at the said press, and after printing the Press had delivered the printed copies to Shri Biswas on the 9th February, 1962;
(iii) that the leaflets had been printed subsequently or after the election stood falsified by clear and unimpeachable evidence;
(iv) that the offending leaflet had been distributed in the constituency at Saharsa, Pratapganj Bazar, Basantpur Hat, Pachhoria tola in village Karjain on different dates; and
(v) that the appellant himself was present at the distribution of the leaflet at Saharsa, Pratapganj Bazar, Basantpur Hat and Pachhoria tola in village Karjain.
15. Learned Counsel, appearing for the appellant, has challenged the above findings as wholly erroneous, unjustified and unwarranted on the materials on the record.
16. In regard to the finding that the leaflet in question constituted a clear appeal to the Yadav voters to vote for the appellant, a member of that caste, on the ground of caste and to refrain from voting for respondent No. 3, because he belonged to the Brahman caste and, as such, it had offended against the provisions of Sub-section (3) of Section 123 of the Act, it has been urged that neither the context nor the language or the tenor of the appeal made therein warranted such a finding. I am, however, satisfied that there is no substance in this contention. I have carefully read the manuscript of the offending leaflet (Ex. 6/b) as also its English translation (Ex. 6/b-l) set out in paragraph 37 of the Judgment of the Tribunal. It may be mentioned that the correctness of the translation was not challenged either before the Tribunal or before this Court except to point out, that in the third line instead of the word "suppressed", the more appropriate word would have been "neglected", or "ignored", but even if the word "suppressed" was supplanted by the word "neglected" or "ignored" it will, in my opinion, and as found by the Tribunal make no difference whatsoever to the true meaning and import of the leaflet. The leaflet, as its heading shows, is "An appeal to the Yadav brethren of Saharsa Parliamentary constituency" and as appears from the names of the signatories the appeal has been made on behalf of six members belonging to the Yadav caste. The question, however, is whether its contents constitute an appeal to the Yadav voters to vote for the appellant on the ground of caste and to refrain from voting for respondent No. 3, because he was a non-Yadav and a Brahmin. I have no doubt that it constitutes such an appeal.
Now coming to its contents, it will be seen that having pointedly accused respondent No. 3--a Brahmin--and Pandit Rajendra Mishra, who happened to be his cousin, for their machinations in the interests of the Brahmins, resulting in the Congress authorities giving three tickets for the State Assembly and one for the Lok Sabha to only Brahmin candidates, and thereby ignoring the claim of candidates belonging to the Yadav caste including even their grand old leader Shri Shivanandan Prasad Mandal, though the members of that caste constituted 30 % of the population of Saharsa district, its first paragraph ends by describing the aforesaid action on the part of respondent No. 3 and his cousin as a challenge thrown to the Yadav caste and to the backward communities of that district and by exhorting the members of the Yadav caste to accept the challenge by acting in the manner suggested in the second paragraph, viz., by launching a vigorous election compaign against respondent No. 3---the Congress candidate--and by electing the appellant--a rising Socialist leader--belonging to the Yadav caste. From the tenor of this document it is clear that the emphasis is on the castes of the respective candidates and not on whether they were members of the Congress or of the Socialist Party. It is the Yadav caste voters who, according to the leaflet, had been wronged by the machinations of certain Brahmins including respondent No. 3 in the interests of Brahmins and, it had become, according to the leaflet, the duty of the members or voters of that caste to avenge that wrong and give a fitting reply by electing one of their own castemen, viz., the appellant. In my opinion, the Tribunal has rightly held that in the last sentence of the leaflet the stress is on the caste of the appellant and not on his being a "rising Socialist leader". These were words of mere description. The leaflet read as a whole gives the unmistakable impression that the caste loyalty of the voters belonging to the Yadav caste was being played upon and they were being requested in the name of caste to vote for one of their castemen and refrain from voting for respondent No. 3--the candidate who belonged to the Brahmin caste. On the terms of the leaflet itself, it was clear that the appeal on caste lines was for the furtherance of the prospects of the election of the appellant and for prejudicially affecting the election of respondent No. 3. This contention, therefore, must fail.
17. The next question is whether Ex. 6(b), the manuscript of the offending leaflet, and Ex. 6(c), the covering letter, alleged to have been sent by Shri Urmilesh Jha, the election agent of the appellant, to Shri Ramakant Mishra, the Manager of the Mithila Art Press, Darbhanga, were genuine documents and had been written by Shri Urmilesh Jha or not. The Tribunal has come to a clear finding that they were genuine documents and had been written by Shri Urmilesh Jha. Learned Counsel for the appellant has strenuously challenged the correctness of this finding. It will be seen that this finding of the Tribunal was based not only on a comparison of the disputed writings and signatures with the admitted writings and signatures of Shri Urmilesh Jha but also on the positive evidence of at least two such parsons (P. Ws. 39 and 42) whose acquaintance with the signatures and writings of Shri Urmilesh Jha could admit of no doubt, and, on certain very relevant circumstances. There is no doubt that a decision on this question was of vital importance. Once it was held that both Exs. 6(b) and 6(c) were in the hand of Shri Urmilesh Jha and were genuine documents, the evidence on the question as to who got Ex. 6(b) printed and also on the question of the distribution of the leaflets so printed will naturally gain considerable weight and credence.
18. (His Lordship considered the oral and documentary evidence and proceeded).
Having read the evidence of these two witnesses, to which I need not refer in detail because they have been dealt with by the Election Tribunal In full, I am satisfied that the view of their evidence which has found favour with the Tribunal was quite correct. The importance of direct evidence of witnesses on the question of the genuineness of documents cannot be over-emphasised. Under Section 47 of the Evidence Act, any writing may be proved by the opinion of any person who is acquainted with the handwriting of the man alleged to have written the document. It has long been recognised in England as well as in this country that this kind of opinion was for various reasons better than expert evidence. It was observed by Patteson, J. in Doe v. Suckermore, (1837) 5 Ad. & El. 703, that "The knowledge of the general character of any person's writing which a witness has acquired incidentally and unintentionally, under no circumstance of bias or suspicion, is far more satisfactory than the most elaborate comparison of even an experienced person, called by one side or the other with a particular object,"
and there is no doubt that one of the ways in which the knowledge of a person's handwriting may be acquired is by the witness having seen, in the ordinary course of business, documents which on evidence, direct or circumstantial, are proved to have been written by such person. This being the position, it is not surprising that learned counsel for the petitioners laid great stress on the evidence of P. Ws. 39 and 42 and urged that that evidence by itself constituted sufficient material for the Tribunal's finding that the writings in Exs. 6(b) and 6(c) together with the signature therein were in the handwriting of Shri Urmilesh Jha. In my opinion, he was fully justified in doing so.
19. It was, however, contended on behalf of the appellant that, in fact, the writings in Exs. 6(b) and 9(c) were different from the admitted writings of Shri Urmilesh Jha, and the Tribeni should have acceded to the prayer made on his behalf to get the disputed writings compared with the admitted ones by a handwriting expert so that the difference between the disputed and the admitted writings could be brought out clearly. It has been urged that it was not proper for the Tribunal to have come to a conclusion of its own on a comparison of the disputed writings with the disputed ones without the aid of an expert. It is clear to me however, that the Tribunal, in the present case, was fully justified in rejecting the appellant's prayer for calling for a report from a handwriting expert in regard to the genuineness or otherwise of the disputed documents, (His Lordship considered evidence on this point and continued).
In this connection, relying on certain observations made in Kessarbai v. Jethabhai Jivan, AIR 1928 PC 277, Darshan Singh v Parbhu Singh, AIR 1946 All 67 and Saurendra Mohan Basu v. Saroj Ranjan Sarkar, AIR 1961 Caluse 461 (FB), it was urged on behalf of the appellant that assuming without admitting that the applications filed on behalf of the appellant praying for the examination of the disputed writings by a handwriting expert were belated, still the Tribunal was not justified in rejecting them because it was well settled that it was not desirable for a Judge to embark upon a comparison of the disputed writings with the admitted ones without the aid of the evidence of a handwriting expert, inasmuch as a comparison of the handwriting as a mode of proof was at all times hazardous and inconclusive, and the risk in coming to a finding on such comparison would obviously increase if the comparison is made by a person who was not conversant with the subject and had been done unaided by the evidence of experts. I, however find myself unable to uphold this contention. In the first place, none of the decisions go to that length as suggested by the appellant and are consequently of no assistance to him.
The following observation of Lord Atkin in AIR 1928 PC 277 at p. 281, referred to on behalf of the appellant it is claimed, supports him. Lord Atkin observed as follows:
''But their Lordships are unable to come to the same conclusion as the members of the appellate Court. They would have thought it unsatisfactory and dangerous in any event to stake a decision in such a case as this on the correct determination of the genuineness of a signature by mere comparison with admitted signature, especially without the aid in evidence of microscopic enlargements or any expert advice."
This observation, however, in my opinion, should be read along with the following observations which his Lordship made immediately thereafter. The subsequent observation read as follows:--
"But their Lordships have also themselves carefully compared the endorsements with the admitted signatures and they are unable to feel the certainty which was expressed by the Chief Justice. The signatures appear to be written with different ink and possibly at different times, and though the purported signature of the firm bears a close resemblance to some of the genuine examples produced, notably to a signature in a letter of authority addressed to Jethabhai himself, the purported signature of Keshavlal himself is by no means convincing."
The above observation shows quite clearly that their Lordships of the Privy Council, despite their observations made earlier, themselves compared the signatures in that case; and, accordingly, reading the two observations together it appears to me that the previous observation, quoted above, does not support the plea that in the absence of expert evidence on the question of genuineness or otherwise of the disputed documents, the Court could not use its own eyes and compare for itself the disputed writings with the admitted ones.
The decision in AIR 1946 All 67, is also of no assistance to the appellant. In that case, one of the questions for decision was whether the signature of one Hazari Singh on a particular deed was genuine or not. The plaintiff on whom rested the burden to prove that the signature was a forgery hap failed to examine any expert. That gap the trial Judge had filled in by comparing the disputed signature with the admitted signature of Hazari Singh on another document in his chambers behind the back of the lawyers appearing in that case and had come to a certain conclusion based on such comparison. While dealing with the above procedure which the trial Judge had adopted, the High Court made the following observation:
"The least that the learned Civil Judge should have done was to have sought the assistance of the lawyers concerned in comparing the two signatures and arriving at his conclusions.", and in that connection reference was made to the observations of Sir Lawrence Jenkins in Barindra Kumar v. Emperor, ILR 37 Calause 467 at p. 503, wherein the procedure of embarking upon a comparison of disputed writings with admitted ones without having invited or heard arguments from Counsel on the point was deprecated in strong terms. This Allahabad decision, therefore, also shows that there was no bar to the Court com-paring disputed writings with admitted ones for itself; only it should always do so in the presence of and with the assistance of lawyers appearing in the case.
The observations made in AIR 1961 Cal 461 (FB), as well, read in the context of the facts of that case do not afford any assistance to the appellant. In that case, evidence of a large number of witnesses who were competent to prove the disputed writing and signature had been given. A handwriting expert had also given his opinion on the question. The learned Chief Presidency Magistrate before whom all these materials were available, had however, come to a conclusion of his own on a comparison of the disputed writings and signature's with some admitted ones and had wholly ignored, without giving any reason therefore other materials bearing on that point. It was in that connection that it was observed that "while it is competent on the part of a Judge or a Magistrate to compare the disputed signatures with the admitted signature for himself, vide Section 73 of the Indian Evidence Act, it is unsafe to rely entirely on such personal comparison."
In the present case, as will he shown hereafter, neither the comparison which was made by the Tribunal has been done without the assistance of the lawyers appearing for the parties, nor can it be said that the finding on the question of genuineness or otherwise of the writings in Exs. 6(b) and 6(c) was based entirely on such comparison. There-fore, in my opinion, the observations in Allahabad and Calcutta decisions referred to on behalf of the appellant, far from being of any assistance to tie appellant, really go to justify the correctness of the approach of the Tribunal.
Reference was made on behalf of the petitioner-respondents to a Bench decision of the Calcutta High Court in the case of Bisseswar Poddar v. Nabadwip Chandra Poddar, AIR 1961 Cal 300. In that case, after referring to various English and Indian decisions including the decision in AIR 1928 PC 277, their Lordships, by concurrent but separate judgments, came to the conclusion that there was no legal bar to the Judge using his own eyes to compare disputed signatures with admitted signatures even without the aid of any evidence of a handwriting expert. I am in respectful agreement with the view expressed in this case and with the reason assigned for the same. It will, therefore, follow that there was nothing wrong with the Tribunal in rejecting the appellant's belated applications for examination of a handwriting expert and in comparing the disputed writings with the admitted ones in the presence of and with the assistance of the lawyers appearing for the parties. This contention, therefore must fail.
20. In this Court as well, elaborate submissions were made by learned Counsel appearing for the parties on the question of identity or otherwise of the writings and signatures in Exs. 6(b) and 6(c) with those on the admitted documents. The admitted signatures and writings of Shri Urmilesh Jha were in Exs. 17, 18, 18(a), 16 series and on the deposition of Shri jha before the Tribunal and finally on Exs. C and C/1. The last two were the only documents which had been produced on behalf of the appellant through Asheshwar Goit (appellant's witness No. 55) showing the writings of Shri Urmilesh Jha; but as both of these documents had come into existence after the filing of the election petitions, no notice was taken thereof by the Tribunal and no reference was made to them at the hearing in this Court. It has been strenuously urged on behalf of the appellant that upon a careful and close scrutiny and examination of the disputed writings and of the admitted ones, it will appear that neither the signatures on Exs. 6(b) and 6(c) nor the writings therein were in any way similar to the admitted signatures or writings of Shri Urmilesh jha. On the other hand, Shri K. P. Verma, one of the lawyers appearing for the petitioners, placed before this Court practically each of the letters comprised in Exs. 16 series and the signatures on Exs. 17 and 18 and urged that an examination of the admitted writings and signatures revealed the permanent and significant characteristics of the writings of Shri Urmilesh Jha, and it was contended that the same characteristics were unmistakably notice able in the disputed document; and as such, there was no reason to interfere with the finding of the Tribunal that the writings and signatures in Exs. 6(b)) and 6(c) were in the hand of Shri Urmilesh Jha.
Before indicating my reasons for agreeing with the finding of the Tribunal on this question, it may be useful to point out that the true test to be applied in such cases, as I comprehend it, is to consider the general character of the two writings sought to be compared and not to lose oneself in scrutinising the formation of each individual letter. In (1837) 111 ER 133], Coleridge, J. observed as follows:--
"The test of genuineness ought to be the re-semblance not to the formation of letters in some other specimen or specimens but to the general character of writing which is impressed on it as the involuntary and unconscious result of constitution, habit or other permanent cause and is, therefore itself permanent."
It is not uncommon to find differences in the writing of one and the same person even after a short interval of time. It all depends upon so many extraneous circumstances--then pen, the ink, the paper, the posture or his hand and the general conditions in which he writes. It is for this reason that the law merely requires a consideration of the general character of the two writings.
Applying this test to the task in the present case, I have no hesitation in coming to the conclusion that the writings in Exs. 6(b) and 6(c) as well as in Exs. 16 series disclose various similar, permanent and significant characteristics. (His Lordship indicated common characteristics and proceeded).
In the result, the Ending of the Tribunal that a comparison of the disputed writings and signatures with the admitted writings and signatures of Shri Urmilesh Jha established that both Exs. 6(b) and 6(c) were genuine documents and had been written by Shri Urmilesh Jha must be affirmed.
21. In this connection, it was further contended on behalf of the appellant that the Tribunal should have held that as Shri Urmilesh Jha was not at Saharsa on the 6th February, 1962, the covering letter (Ex. 6/c) could not have been written by him from Sahara on the 6th February, 1962. (His Lordship after considering the evidence rejected this contention and proceeded).
22. The Tribunal, it will be seen, has also taken note of certain circumstances, which are certainly inconsistent with Exs. 6(b) and 6(c) being forgeries. (His Lordship indicated these and proceeded).
In conclusion I find that it must be held that the writings in Exs. 6(b) and 6(c) including the signatures thereon were in the hand of Shri Urmilesh Jha and were thus genuine documents.
23. It was next contended that the Tribunal had erred m holding that the offending leaflets were in existence several days before the polling had skirted and had been brought into such existence at the instance of Shri Urmilesh Jha who had got 5,000 copies thereof printed at the Mithila Art Press, Darbhanga. It has been urged on behalf of the appellant that the evidence on which the Tribunal has placed reliance was by no means reliable, rather a close scrutiny and proper appreciation thereof will reveal that some of the important documents on which the petitioners sought to rely had been really brought into existence for the purpose of these cases, and the oral evidence adduced was interested and partisan and, therefore not at all worthy of acceptance. In my opinion there is no substance in this contention. (His Lordship cammed the evidence and continued).
24. It was also urged on behalf of the appellant that no reliance should have been placed on Ex. 6(i), showing delivery of the leaflet to Shri Bhuneshwar Biswas, because the whole bill book was a fabricated document. Reliance was sought to be placed in this connection of Ex. II which showed that a supplementary edition of 'Darbhanga Samachar' of the 14th February, 1962 had been printed at Nirnan Press and, accordingly, there could be no bill for the printing of Darbhanga Samachar of that date from the Mithila Art Press, and by a petition dated the 25th July, 1063 filed during the course of the arguments before the Tribunal, a prayer was made that a bill dated the 12th February, 1962 showing delivery of 'Darbhanga Samachar" on the 14th February, 1962, contained in the bill-book of the Mthila Art Press should be marked as an exhibit in the two election petitions without requiring any formal proof. It appears that this particular bill had been referred to by the advocate for the appellant during his arguments on the previous day. The Tribunal, however, rejected the prayer for marking the bill dated the 12th February, 1962 in regard to the delivery of 'Darbhanga Samachar' on the 14th February, 1902 as an exhibit. Nonetheless, that particular bill appears to have been included at page 135 of Volume II of the paper book prepared in these appeals. Strictly speaking, no notice can be taken of that document, but even if it were assumed that that document was validly on the record, in my opinion, it is of no assistance to the appellant. (His Lordship elaborated this and continued).
25. Now, as to the finding of the Tribunal that the leaflets were in existence several days before the polling had commenced, it will appear that besides Ex. 6(i), discussed above, which shows that the printed leaflets had been delivered to Shri Bhuneshwar Biswas on the 9th February, 1962, the Tribunal has mainly relied on Exs. 6(d) and 8(b) and on the evidence of P. Ws 14, 15, 34 and 40. In regard to Ex. 6(d), a letter dated the 10th February, 1962, from Rumakant Mishra to the District Magistrate, Darbhanga, enclosing two copies of the printed leaflets (Exs. 6/e and 6/f) it was suggested to P. W. 3. Ramakant Mishra that this letter and its enclosures were subsequently and surreptitiously smuggled into the office of the District Magistrate.
26. (His Lordship continued after further discussing the evidence).
Nothing has been shown on behalf of the appellant in this Court why the Tribunal's appraisal of the evidence of P. Ws. 14 and 15 should be interfered with. I am, therefore, of the opinion that it has been established beyond reasonable doubt on dependable evidence that Exs. 6(b) and 6(e) were in the handwriting of Shri Urmilesh Jha who had sent the manuscript of the leaflet to the Press for printing and that the printed leaflets had come into existence before the polling had commenced. It has already been found that from the context, language and tenor of the offending leaflet, it was clear that it constituted an appeal to the Yadav voters to vote for the appellant and to refrain from voting for respondent No. 3 on the ground of caste, and, as such it offended the provisions of Sub-section (3) of Section 123 of the Act; and, if the finding of the Tribunal that the printed leaflets were distributed at several places in the constituency is correct, the petitioners will have established their case of corrupt practice alleged to have been committed by the appellant or his election agent or any other person with his consent.
27. In regard to the Tribunal's finding on the question of distribution, the main argument on behalf of the appellant was that the leaflets were not in existence on the dates on which they are alleged to have been distributed. It appears from Ex. 7, the final result of the polling, that at Saharsa, Madhipura and Kishanpur the polling was on the 18th February, 1962; at Raghopur and Singheshwar Asthan it was on the 21st February, 1962 and at Tribeniganj on the 23rd February, 1962. I have already held above that the printed leaflets had come into existence at the instance of the Election Agent of the appellant several days before the polling had started, and once that position is established, distribution thereof would be the only natural thing to do. Thus, the evidence of distribution as adduced on behalf of the petitioners, being in consonance with the irresistible probabilities of the case gains considerable weight and credence. Even otherwise having gone through the evidence bearing on the question to which I need not refer in detail, because it has been dealt with by the Tribunal very elaborately, I am satisfied that the independence, disinterestedness and the credibility of the witnesses whose evidence has been accepted by the Tribunal on this point, can hardly be questioned. (His Lordship further perused the evidence and continued.) It follows that the ground on which the appellant's election was sought to be declared void has been established beyond all reasonable doubts; and it must be held that through distribution of the offending leaflet at different places within the constituency by the election agent of the appellant and also by some others in the presence of the appellant, and, therefore, with his implied consent appeal was made to the voters belonging to the Yadav caste to vote for the appellant on the ground that he was a Yadav and to refrain from voting for respondent No. 3 on the ground that he was a Brahmin. Such an appeal must be taken to have induced an atmosphere of hostility and acrimony so as to promote enmity and hatred between the people of Yadav and Brahman castes, Commission of corrupt practice within the meaning of Sub-sections 3 and 3A of Section 123 of the Act having been thus established, the Tribunal's order declaring the appellant's election to be void must be affirmed.
28. The other part of the Tribunal's order against the appellant is under Section 99 (1) (a) (ii) of the Act. This order, in my opinion, was unwarranted. On the materials on the record, it cannot be said that it stands proved that the appellant was personally guilty of the commission of the corrupt practice alleged in the petition. Except the evidence relating to the distribution of the leaflets, the other evidence adduced on behalf of the petitioners about the, appellant and his agents and workers having carried on a propaganda on caste lines among the Yadavs and backward classes has not been accepted by the Tribunal on the ground that it was too general and vague. It is, therefore, clear that the finding of the Tribunal as no commission of the corrupt practice in question was based entirely on the evidence relating to the distribution of the leaflets. There is no evidence of the appellant having himself distributed the leaflet at any place or at any time.
There is however evidence which goes to show that the appellant was present either near about the place or at the very place where the distribution was made by either Shri Urmilesh Jha or by Shri Asheshwar Goit or by other persons. At Saharsa he was alleged to be sitting in a Jeep car which was standing on the road away from the place where the distribution was being made and at some other place he is alleged to have been present for addressing meetings held at those places. Such presence at the highest may establish his liability for acts of corrupt practice committed by his election or other agents but in absence of any evidence of express authorisation on his part or of active participation it does not constitute an act of his own. His vicarious liability for the acts of his agents may be said to have been established but it could not justifiably be said that he had committed those acts himself, and, in my opinion, in view of the serious and rather drastic penalties to be suffered by the person named under S. 99(1)(a)(ii) of the Act, it must be held that persons proved at the trial to have been guilty of any corrupt practice was not intended to include persons proved to have been only vicariously guilty. Moreover, the evidence, such as it is, appears to be too meagre to warrant a positive finding of the type contemplated by Section 99(1)(a)(ii). For all these reasons, I am inclined to accept the contention on behalf of the appellant that this part of the Tribunal's order was not warranted and should be set aside.
29. In the result, Election Appeals Nos. 13 and 14 of 1963 are allowed in pari. The order of the Tribunal passed under Section 100(1)(b) of the Act declaring the election of the appellant to the Lok Sabha as void will stand, but the order under Section 99(1)(a)(ii) of the Act naming the appellant as the person proved to have been guilty of corrupt practice will be set aside.
30. It will be convenient to next take up the case of respondent No. 2. As already mentioned above, a Bench of this Court under order dated the 21st November, 1963, while admitting the two memoranda filed by respondent No. 2 in Election Appeals Nos. 13 and 14 of 1963, respectively, had directed him to deposit security and to file paper books as he would have been required to do so if he had preferred independent appeals under Section 116A of the Act. It appears that respondent No. 2 complied with the said directions, and it was perhaps on that account that the question of the maintainability of the two memoranda as cross-objections, which had been left open to be decided if the parties so liked at the time of the hearing of the election appeals, was not raised by any of the parties. In that view of the matter, the two memoranda in question filed by respondent No. 2 can be treated as independent appeals filed by him under S. 11GA of the Act. It is, therefore, not necessary to decide the question whether in an election appeal before the High Court the respondent was prevented from availing himself of the provisions of Order 41, Rule 22 of the Code of Civil Procedure. It may, however, be pointed out that having regard to the very wide scope of the wording in sub-s. (2) of Section 116A of the Act, there was no reason why the provisions of Order 41, Rule 22 of the Code of Civil Procedure would not be attracted; and in at least two reports cases--one in Tazuddin Ahmad v. Dhaniram Talukdar, AIR 1959 Assam 128, and the other in Inayatullah Khan v. Diwanchand Mahajan, AIR 1959 Madh Pra. 58, it has been held that in an election appeal before the High Court there was nothing to prevent the respondent from filing a cross-objection by taking recourse to the provisions of Order 41, Rule 22 of the Code of Civil Procedure. As the question does not arise in this case, it need not be pursued further.
31. An order under Section 99(1)(a)(ii) of the Act has been passed by the Tribunal against respondent No. 2 on the finding that there was sufficient and reliable evidence to show that he had himself distributed or had caused to be distributed the printed leaflets like Ex. 10 at different places within the constituency. It is this order which respondent No. 2 has challenged as unwarranted. On going through the relevant evidence, I am inclined to take the view that the order under Section 99(1)(a)(ii) of the Act against respondent No. 2 was not justified. (His Lordship considered the evidence and proceeded).
It is well settled that charge of commission of corrupt practice is a charge of a quasi-criminal character, and the standard of proof for establishing the charge is the same as in a criminal trial. In the present case, applying that standard, it cannot be said that the charge as against respondent No. 2 has been brought home to him beyond all reasonable doubts. In the result, the order under Section 99(1)(a)(ii) of the Act passed against respondent No. 2 cannot be allowed to stand and it is, therefore, set aside.
32. Election Appeals Nos. 15 and 16 of 1963 may now be taken up. These two appeals are by the petitioners of the two election cases. They are directed against the order of the Tribunal refusing to grant the prayer made in the two election cases to declare respondent No. 3 as having been duly elected under Section 101(b) of the Act. It has been contended on behalf of the petitioners in these two appeals that the Tribunal having held that the election of the returned candidate was vitiated on account of caste appeal, it was but natural and reasonable inference to hold on the basis of the evidence on the record that but for the caste appeal the returned candidate would not have secured the majority of valid votes and that those valid votes would have been cast for respondent No. 3, Shri Lalit Narain Mishra. It was further contended that the Tribunal had failed to properly apply the principles laid down by the Supreme Court in T. C. Basappa v. T. Nagappa, AIR 1954 SC 440 to the facts and circumstances of this case.
I am however, satisfied that there is no force in any of these contentions of the petitioner-appellants and the appeals are without any merit and must be dismissed. The difference in votes between the returned candidate and respondent No. 3 was 15,133; and, before the Tribunal could bo satisfied that but for the votes obtained by the returned candidate by corrupt practice respondent No. 3, would have obtained a majority of the votes, it was necessary for the petitioners to furnish reliable data from which the Tribunal could reasonably come to a conclusion that the returned candidate had obtained by corrupt practices this huge margin of votes and something more which should be deducted from his total number of votes.
In my opinion, the petitioners have failed to furnish any such data. It will appear that the Tribunal has given very cogent reasons for discarding the result of the so-called census operations held by certain members and whole-time workers of the Congress Party, and in the circumstances it is not possible to place any reliance on the result of that operation. The Tribunal has further pointed out that even if the figure of 54, 279 alleged to be the number of Yadav voters who, it was claimed, had actually cast their votes in the election were accepted, there was no guarantee or even reasonable certainty that either one-half of that figure had cast their votes in favour of the returned candidate and that they or at least 15, 134 of them had so voted for the returned candidate under the influence of the letter's caste appeal. From the materials already on the record It could not be ascertained even approximately how many Yadav voters were approached with caste appeal and how many fell under its influence. The Tribunal has made reference to the evidence showing the decline of respondent No. 3's popularity among certain sections of the voters for various reasons, and, it has also observed that there was evidence that the returned candidate was more popular than his rival candidates among the poor and backward classes. To conclude, it being impossible to find on the materials before the Tribunal that caste appeal was the sole reason for the enormous difference of votes between the returned candidate and respondent No. 3, the prayer made on behalf of the petitioners to declare respondent No. 3 as having been duly elected could not be granted. There is also no substance in the contention that the Tribunal has failed to appreciate the decisions in AIR 1954 SC 440, or in Jamuna Prasad v. Lachhi Ram, AIR 1954 SG 686 and T. Nagappa v. T. C. Basappa, (S) AIR 1955 SC 756. It has dealt with those decisions in detail, and, in my opinion the facts of those cases were not at all similar to the facts of the present case inasmuch as in all those eases the crux was that of numerical preciseness of the questioned votes. These two appeals, therefore, are without any merit and must, therefore, be dismissed.
33. In the result, Election Appeals Nos. 13 and 14 of 1963 are allowed in part. The order passed by the Tribunal declaring the election of Shri Bhupendra Narain Mandal to be void under Section 100(1)(b) of the Act is upheld, but the order under Section 99(1)(a)(ii) of the Act passed against him is set aside. The order against respondent No. 2 Shri Ram Anugrah Jha passed under Section 99(1)(a)(ii) is also set aside. Election Appeals Nos. 15 and 16 of 1963 are, however, dismissed, and the order passed by the Tribunal refusing to declare respondent No. 3 as having been duly elected is affirmed. In view of the divided success of these appeals, the parties shall bear their own cost of this Court.
Misra, J.
34. I agree.