Holding

The election petition must be dismissed because the petitioner failed to establish all the ingredients of section 123(4) and the appellant was not proved to have printed or distributed the poster, and Kanshi Ram need not be impleaded.

Summary

In the 1982 Himachal Pradesh Assembly election, Ram Chand Bhatia (BJP) was elected over Hardyal (Congress). Hardyal filed an election petition alleging that a poster (Annexure PA) printed by Janata Party candidate Kanshi Ram contained false statements about his personal character and was distributed with Bhatia’s consent, constituting a corrupt practice under the Representation of the People Act, 1951. The High Court held the poster pertained to personal character, found Bhatia had distributed it, and declared his election void, while refusing to implead Kanshi Ram. On appeal, the Supreme Court ruled that the petitioner failed to prove the essential ingredients of section 123(4)—that the statements were false, related to personal character, and were published by Bhatia or his agent—nor was Bhatia shown to have printed the poster. Consequently, no corrupt practice was established and the election was not void. The Court also held that Kanshi Ram need not be impleaded as the alleged corrupt practice against him pre‑dated his candidacy.

Issues considered

Whether a candidate against whom a corrupt practice charge is made must be impleaded under section 82(b) of the Representation of the People Act, 1951.
Whether the contents of Annexure PA constitute a corrupt practice under sections 123(3), 123(3A) and 123(4).
Whether the statements in the poster relate to the personal character of the respondent and are false.
Whether the appellant or his agent printed or distributed the offending poster.
Whether the alleged statements were reasonably calculated to prejudice the respondent’s election prospects.
Who bears the burden of proof in an election petition alleging corrupt practice.

Legislation cited

Representation of the People Act, 1951s. 100(1)(b), s. 123(3), s. 123(3A), s. 123(4), s. 79(b), s. 81, s. 82(b)

Subjects

Representation of the People Actcorrupt practiceelection petitionimpleadmentpersonal characterfalse statementsburden of proofHimachal Pradesh Assembly election

Judgment

177
A

RAM CHAND BHATIA
v.
HARDYAL
B
JANUARY 29, 1986

[E.S, VENKATARAMIAH AND R.B. MISRA, JJ,]

Representation of the People Act, 1951 sections 79(b)
and 82(b) - Impleadtng a candidate as a necessary party, when
arises - Corrupt practice - Ingredients of sections 123(3)
and ( 4). - Onus of proof lies on the election p-etitt.onet -
c
Distinction between the personal character or c::enduct of the
candidate and his public or political character and conduct,
explained. ·
In the 1982 Himachal Pradesh State Assembly elections
,. the appellant Rsm Chand Bhatia sponsored by Bhartiya Janata
D
,.. Party was declared elected defeating the next rival candidate
Hardyal the respondent cwn election petitioner cwn official
nominee of the Congress (I) Party by a margin of 3364 votes.
Kanshi Rsm sponsored by Janata Party secured 1049 votes while
Vidhi Chand official nominee of the Co1111111nist Party of India
secured 1889 votes. The respondent filed an election petition
E
challenging the election of the appellant on the ground that
Kanshi Rsm, Janata Party candidate conspired with the appel-
lant and other persons to get printed posts like the one
annexed to the petition (as Annexure PA later on exhibited as
PI during Trial) containing false statement of facts assailing

~
. the personal character of the election petitioner and to
F
distrib.ute the same during the election pe~iod with. the.obje.ct.
of prejudicially affecting the prospects of the election
petitioner. The appellant contested the election petition
denying the allegations made.
The lMrned Judge held ·(i) that Kanshi Ram was not a
necessary party to the election petition; and (ii) that the
G
contents of Annexure PA pertain to the personal character and
conduct of the election petitioner-respondent. He found that
the appellant had distributed the offending poster, but
refrained from giving any finding on the question whether his
~- election agent or any other person with his . consent had
~ distributed the said poster. As regards the printing of the H
~ offending poster, the learned Judge found that even if it was
178 SUPREME COURT REPORTS [19861 1 s.c.R.

·A not proved that the poster in question was printed at the
instance of the appellant or his election agent, the offence
of corrupt practice is established in view of his finding that
the appellant himself had distributed the offending poster. On
these findings the election petition was allowed declaring the
election of the appellant as void. Hence the appeal by Special
Leave.
B Allowing the appeal, the Court

HELD : l. The impleadment of a candidate against whom a ,
charge of corrupt practice has been made as a party is
necessary, only when the charge of corrupt practice was made
against a "Candidate" as defined in section 79(b) of the
c Representation of the People Act, that is after he was
nominated as a candidate. [191 D-F]

2.1 Section 123 of the Representation of People Act does
not stop a man from speaking. It merely prescribes conditions
which 1111St be observed if he wants to enter Assembly or
D Parliament. The right to stand as a candidate and contest an
election is not a common law right. It is a special right
created by Statute and can only be exercised on the condi-
tions laid down by, the statute. [185 C-D]

2.2 In order to make out the charge of corrupt practice
E under sub-section 4 of section 123 of the Representation of
People Act, the election petitioner has to show that (i) the
impugned statement of facts was published by a candidate or
his agent or by any other person with the consent of the
candidate or his agent; (ii) that the statement was false and
which the maker either believes to be false or does not
F believe to be ture; (iii) that the statement relates to the 4I
personal character and not to the political character of a ,
candidate; and (iv) that the statement was reasonably calcu-
lated to prejudice the prospects of the other candidates'
election. [186 E-F, 190 G-H, 191 A-BJ
G Adverse criticism however severe, however undignified,
ill mannered, however regretable it might be, in the interest
of purity and decency of public life, in relation to the
political views, position, reputation or action of a candidate
would not bring it within the mischief of the statute. What is l
objectionable is a false statement of fact and not a false
H statement of opinion, however unfounded or unjustified. The
RAM CHAND BHATIA v. HARDYAL 179
A
public or political character of a candidate is open to public
view and public criticism. If a false statement is made about
the political views or his public conduct or character, the
electorate would be able to judge the allegations on the
merits and would not be misled by any false allegation in that
behalf. It is on this theory that false statements of facts B
affecting public or political character of a candidate are not
brought within the mischief of section 123(4). It is only.when
a person "beneath the politician" is sought to be assaulted
that sub-section 4 of section 123 of the Act is attracted.
(193 A-B, D-F] .
2.3 n.e burden of proof lies on the election petitioner
to prove beyond reasonable doubt all the necessary facts which t
would establish the allegation of corrupt practices that have
been alleged in the election petition. nte Court does not hold
such a charge proved merely on preponderance of probability.In
judging whether a publication of the statement has affected
the voters the Court has to ascertain whether the statement is
reasonably calculated to prejudice the prospect of the candi- D
date in an election by keeping in the forefront·the electorate
at the time of election. The Court has to conaider the effect
of impugned document on the mind of the ordinary voters who
read the poster by the offending the personal character of a
candidate.[185 B-C; 194 E-F].
Devi Prasad v. llallurllll Singhania & Ors. [1969] 3 S.C.C. E
595 referred to.
In the instant case; (i) the election petition contains
all the necessary facts to constitute corrupt practice within
the meaning of sub-sections 3 & 4 of section 123 and as such
the preliminary objection as to maintainability of the
election petition has been rightly overruled; (ii) the allega- F
tion of corrupt practice against Kanshi Ram was before his
nomination as a "Candidate" and therefore, he was not neces-
sary party in the election petition; (iii) from the evidence
on the record (a) it cannot be said that the statement of fact
in Exhibit PA assailing the personal character of the respon-
dent was false and not true. nte learned Single Judge Ollllitted G
to record any finding on this important aspect and he simply
assumed that he had recorded a finding in the early part of
the judgment.(b) The election petitioner has failed to esta-
blish the first link of the charge that the appellant had got
the off ending poster printed as alleged in the election
petition. Rather the allegation has been belied by PW 2 Om H
180 SUPREME COURT REPORTS [19861 1 s.c.R.
A
Prekash Sarotri, the election petitioner's own witness. if
this important link of the charge has not been established it 1
wiU be difficult to accept the allegation that the appellant,
his election agent or any other person with his consent dis-
tributed the poster in public meetings at various places.
Further since the appellant would not support his opponent by
reading or distributing a poster which invokes to vote for a
B
rival candidate and it has not been established that the
appellant has made a coaaon cause with the contesting
candidate to start vilification c:ompaign against the respon-
dent the appellant cannot be held responsible for what has
been done by Kanshi Ram or his brother, and the post election
fact sought to be relied upon is too meagre to warrant a con-
c clusion that appellant and Kanshi Rall were in collusion, when
the latter had contested against the appellant. The mere fact
that Kanshi Rall wu happy over the success of the appellant or
was garlanded alongwith the appellant in the victory
procession cannot lead to the conclusion that they had a
c..-on cause. (198 B; 192 A-B; G; H; 195 B-C; 196 B-C; E-F;
D
197 H; 198 A-BJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4392
(NCE) of 1984.
From the judgment and Order dated 11.10.1984 of the
Himschal Pradesh High Court in E.P. No. 7 of 1982.
E
R.P. Bansal, K.C. Dua and N.N. Aggarwal for the Appel-
lant.

T.S. Krishnarurthy Iyer, V.C. Mahajan, K.R. Nagaraja and
R.S. Hegde for the Respondent.
F
The Judgment of the Court was delivered by

MISRA, J. The present appeal by special leave is
directed against the' judgment of the learned Single Judge of
the High Court of Himschal Pradesh at Simla dated 11th
October, 1984 declaring the election of the appellant as void
G
under section 100(1 )(b) of the Representation of People Act
1951 (hereinafter referred to as the Act).
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
H
rules framed therein, a number of persons filed their
RAM CHAND BHATIA v. HARDYAL [MISRA, J.] 181
A

._ 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 llardyal the respondent. was the official nominee of
Congress (I) Party, Shri Kanshi Ram was a Janata Party B
candidate and Shri Vidhi Chand was the official nominee of the
CoD1InJnist 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

J candidate. Shri Kanshi Ram, Janata Party candidate secured
1049 votes while Shri Vidhi Chand secured 1889 votes.
The respondent filed an election petition challenging
the election of the appellant under section 81 of the Act on
c
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 llardyal and D
distributed the same during the election period with the
object of prejudicially affecting the prospects of election
of Shri llardyal; The poster annexed to the petition as
Annexure PA later on exhibited as Pl 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 E
paragraphs of the Election Petition to bring out the points
involved in the case:
" ..................................................
3. Tnat Shri Virendar, Advocate of Kangra, Kali
Dass, Pradhan Massal Panchayat, Shri Ram Chand
Bhatia, respondent, Kanshi Ram, Janata Party F
. ,
candidate and Shri Kidar Nath Bassi who was
election incharge 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 G
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. H
4. That these posters came out for the first time
182 SUPREME COURT REPORTS [1986] 1 s.c.R.
A

in the Constituency during the last week of March, __..
1982. However, whispering campaign assessinating
character and conduct of the petitioner had started
by the respondent in collusion and connivance with
Shri Kanshi Ram, Janata candidate. Shri Kanshi Ram,
B the Janata Candidate, is the Pardhan of Gram
Panchayat, Pathiar and the respondent innediately
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
c 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 through out 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 in the
name of Shri Parma Nand. The contents of this
E poster malign the conduct of the petitioner as an
M.L.A. and Mir.ister in addition to his personal
character.
6. That the contents of the poster at Annexure 'PA'
contain appeal to the voters to ref rain from voting
in favour of the petitioner on the ground of caste
F and colDllllnity which has prejudicially affected the
election of the petitioner.
7. That the respondent through the contents of
Annexure 'PA' has actually promoted feelings of
enmity and hatred between the voters of the
constituency on the grounds of caste and co111111nity
G with a view to prejudicially affect the election of
the petitioner."

The Election Petition thereafter refers to the various
meetings held in the constituency wherein the said posters
were read out and distributed by the respondent, his election
H
agent as well as B.J.P. workers with the consent of the
respondent.
RAM CHAND BHATIA v •. HARDYAL [MISRA, J.] 183
A
The Election Petition was contested on grounds inter alia
that appellant was in no way party to bring out the poster
Annexure 'PA' which clearly shows that it was issued by one
Parma Nand Pathiar the brother of Shri Kanshi Ram after having
got it printed at Modern Press at Nagrota; that poster like
Annexure 'PA' appeared in the constituency during the last B
week of March when there was only a possibility that election
might be held in June 1982; that respo~dent had no connection
with Shri Kanshi Ram who in fact opposed the appellant in the
election and was himself a candidate on behalf of the Janata
Party; that Annexure 'PA' in no way tranished the personal
character of the election petitioner and that it only related
to the political conduct of the petitioner - respondent as an c
M.L.A. and Minister during the period of 15 years from 1967
onwards when he was elected as an M.L.A. for the first time;
that there was no appeal in the poster Annexure 'PA' that the
voters should refrain from voting in favour of the respondent
on the ground of caste and community and that in fact, all the
contesting candidates except Shri Vidhi Chand belong to the D
same caste and community; that the contents of Annexure 'PA'
cannot be said to promote the feelings of enmity and hatred
between the voters of the constituency on the ground of caste
and community, The appellant also denied calling of some of
the ·meetings in the constituency on various dates. He also
' denied the printing or the publication or distribution of the E
poster in tJ:!e constituency by him or his agent or any other
person with his consent. The allegations of the parties gave
rise to the foll&ing six issues:
1. Whether Shri Kanshi Ram, who was a candidate in
the election, is a necessary party to the petition
in view of the allegations made in paras 3, 4 and F
19 of the Election Petition? If so, what is its
effect? O.P.R.
2. Whether the contents of Annexure 'PA' fall
within the definition of corrupt practices as
defined under section 123(3), (3A) and (4) of the
Representation of the People Act? O.P. Parties. G
3. Whether the respondent, his agent or any other
person with his consent, published or distributed
himself, through his agent or any other person with
his consent annexure 'PA' as alleged in the
Election Petition? O.P.P.
H
184 SUPREME COURT REPORTS [19861 1 s.c.R.
A

4. Whether the respondent, his agent or any other
person, with his consent, appealed to the voters to
vote in his favour and to refrain from voting in
favour of the petitioner on the basis of the caste
and community, as contained in the Election
B Petition? If so, what is its effect? O.P.P.
5. Whether the respondent through the contents of
Annexure 'PA' actually promoted feelings of enmity
and hatred between the voters of the constituency
on the grounds of caste and community with a view
to prejudicially affect the . election of the
c petitioner? If so, what is its effect? O.P.P.
6. Whether the contents of Annexure 'PA' pertain to
the personal charater and conduct of the petitioner
and were even false to the knowledge of the
respondent and he did not believe the same to be
true? if so what is its effect? O.P.P.
D
Issue No. 1 was treated as preliminary issue at the
request of the counsel for the parties. After hearing the
arguments on the preliminary issue the same was decided
against the appellant holding that Shri Kanshi Ram was not a
necessary party to the Election Petition. The remaining issue
E Nos. 2, 3, 5 and 6 being interconnected were disposed of
together. The learned Judge held that the contents of Annexure
'PA' pertain to the personal character and conduct of the
petitioner. He further found that the appellant had
distributed the offending poster. The learned Judge however
refrained from giving any finding on the question whether his
F election agent or any other person with his consent had
distributed the said poster. As regards the printing of the /
>-
offending poster, the learned Judge found that even if it was
not proved that the poster in question was printed at the
instance of the appellant or his election agent, the offence
of corrupt practice is established if it is proved that the
G appellant himself had distributed the offended poster. On
these findings he allowed the Election Petition and declared
the election.of the appellant as void.

The appellant feeling aggrieved by the impugned order of
H the learned Single Judge has approached this Court by Special
leave.
...

RAM CHAND BHATIA v. HARDYAL [MISRA, J. l 185

A
f Before dealing with the points urged before us we would
like to refer to the well established principle in dealing
with the charge of corruption in an Election Petition. A plea
in an Election Petition that a candidate or his election agent
or any other person with his consent has resorted to corrupt
practice raises a grave charge, proof of which results in B
disqualification from taking part in election of six years.
The charge in its very nature must be established by clear and
cogent evidence by those who seek to prove it. The court doe~
not hold such a charge proved merely on preponderance of
probability. The court requires that the conduct attributed
to the offenders is proved by evidence and is established
beyond reasonable doubt. Section 123 of the Representation of c
People Act does not stop a man from speaking. It ..,rely
prescribes conditions which must be observed if he wants to
enter Assembly or Parliament. The right to stand as a
candidate and contest an election is not a comm.on law right.
It is a .special right created by Statute and can only be
exercised on the conditions laid down by the statute. This D
Court in Devi Prasad v. Malluram Singhania and Others, [19691
3 S.C.C. 595, dealing with the corrupt practice observed:
"It must be remenlbered that the proceedings
involving proof of corrupt practices are of a quasi
criminal nature and it was for the appellant to
prove beyond doubt a 11 the necessary facts which E
would establish the comlliission of the corrupt
practices that have been alleged in the Election
.Petition."
Corrupt practice has been dealt with in section 123 of
the Act. In the instant case we are concerned with corrupt
.., practices as defined in section 123(3) and (4). It will be F
"· relevant at this stage to refer to the provisions insofar as
they are relevant for the purpose qf this case. The relevant
provisions are quoted below

Section 123(3), (3A} & (4):
G
"123(3): The appeal by a candidate or his agent or
by any other person with the consent of a candidate
or his election agent to vote or refrain from
voting for any person on the ground of his
religion, race, caste, comm.inity or language •• ••••
••••••••••••••••••••for the furtherance of the H
.
186 SUPREME COURT REPORTS [1986] 1 s.c.R.

A
prospects of the election of that candidate or for
prejudically affecting the election of any candi-
date • ••.••...............••••.•........
.
(3A) : The promotion of, or attempt to promote,
feelings of enmity or hatred between different
B classes of the citizens of India on grounds of
religion, race, caste, community, or language, by a
candidate or his agent or any other person with the
consent of a candidate or his election agent for
the furtherance of the prospects of the election of
the candidate or for prejudicially affecting the
c election of any candidate.
(4) : The publication by a candidate or his agent
or by any other person, with the consent of a
candidate or his election agent of any statement of
fact which is false, and which he elther believes
to be false or does not believe to be true, in
D relation to the personaly character or conduct of
any candidate or in relation to the candidature, or
withdrawal of any candl.date, being a gtatement
reasonably calculated to prejudice the prospects of
that candidate's election."
The respondent had to satisfy the conditions contemplated
E in sub-section (3) and (41 of section 123 to bring home his
charge of corrupt practice against the appellant. As the
charge of corrupt practice amounts to a criminal charge, it
has to be dealt with like a quasi-criminal proceedings. As the
fate of this appeal hinges upon the contents of the offended
poster, it will be appropriate at this stage to extract the
F contents. An English translation of the content• of the
document is given below:

NOTICE

G (One has one's own view-point)

Fifteen years' 20-Point programme of Shri Hardyal
Ji and reply thereto by Parma.nand, keeping in view
janata Party candidate Chaudhary Kanshi Ram 't ·-.
(Ex-serviceman), Pathiar. ~
H
RAM CHAND BHATIA v. HARDYAL '[MISRA, J.] 187

A
{
1. Like Hardyalji I will never say that I have
Raj-Yog on my forehead (destined to rule) and I
have not acquired this position because of your
votes.

2. Like Hardyalji I wi 11 also not say that the B
children of Harijans and Ghtrth community do not
have brains, so I do not employ them in my office.
I will rather establish the fact that even the
children of Harijans and Ghirths have brains and
given opportunity they can also work like the
children of others.
3. Whi.le Shri Hardyalji was Forest Minister, 1700 c
boys were employed in Dhaulandhar Project and 300
boys were recruited as Forest Guards. Besides, boys
were also employed in Transport, Electricity,
Agriculture, Hospital and as Patwaris. We want to
ask it from Sh. Hardyal as to how many boys have
been employed from Nagrota constituency. D
4. As Forest Minister, Mr. Hardyal has
discontinued 'Chuharam' of the forest and
eleminat@d the income of village Panchayats. Why
so?

5. We want to ask it from Mr. Hardyal as to how E
many persons of Nagrota constituency have been
qppointed as Gazetted Officers during his 15 years'
tenure as M.L.A. and Minister.

6. Had Mr. Hardyal provided employment to 5 boys
per .Panchayat per year during his 15 years' tenure F
as M.L.A. and Minister, two thousand children of
Nagrota constituency would have been employed by
now and there would have been no unemployment in
Nagrota area.

7. Every party while in power will construct G
roads, dispensaries, bridges and schools in
villa~es because there is provision for such things
in the constitution. Mr. Hardyal is misleading the
innocent village folks by saying that he had done
all that. This is all false.
H
188 SUPREME COURT REPORTS [1986] 1 S.C.R.
A
8. 1 want to ask it from the people of Nagrota -4
that an outsider has been befooling the people for
15 years on the plea of 'Raj Yog' and even in the
capacity of MLA he has been living outside the area
of Nagrota in a splendid house worth R•.2 lacs at
Darhi and thus grinding his own axe. Why so?
B 9. May I ask if Chaudhary Hardyal being a Ghirth
MLA could not find olace to stay in the house of
some Ghirth or the person of any other connnuni.ty?
For the last 15 years we have been seeing him )-'
staying alongwith his car with green flag at, the
house of one Amirzada (Aristocrat), Seth Saran Dass
c who is the duplicate of Mr. Hardyal at Nagrota.
Seth Saran Dass.

10 • . I am a son ·of a farmer and labourer. What are
the 1ifficulties of farmers and labourers, I will
manage to get them removed by the Govt.
D
11. Like Hardyalji 1 will not try to deceive any
,one. If anobody's work would be worth doing I shall
definitely do that and if that may not be possible
for me to do 1 will tell that the work cannot be
done.
E 12. 1 will never stay at the house of Seth Saran
Dass rather I would go to the house of some poor
man and will help him minimise his sufferings.

13. Like Hardyalji 1 wi 11 not go to the house of a
poor at the time when he is dead. I will go to the
F house of poor, arrange, for his medical treatmen·t, / >-
provide him with medical treatment, provide him
with medical aid in hospital and will get the money
arranged. But 1 will not do like Hardyalji who
visited the house of late Bararu Ram very poor
person of Mauza Sarialakkar, Tansutra Tikka
G Pathiar, who died without medical aid on the day of
Kappar Dhulai and participated in the meals of shok
Saradh in order to befool the people.

14. Like Hardyalji I will also not visit the people
on the occasion of marriages etc. If I visit such \ -
H places in my capacity as an M.L.A. then naturally
RAM i::HAND BHATIA v. HARDYAL (MISRA, J. J 189 A

40/50 other persons will also gather there and that ,
will add to the expenses of the persons _celebrating
the marriage. But, of course, if someone invites-me
before marriage I will go there and will help him
in making up the deficiency, if any. B
15. I will never try to befool the poor people as
Mr. Hardyal has deceived a very poor old man. Five
years ago an old man gave an application to Mr.
Hardyal to the effect that he was a very poor man
and his son was a matriculate and that Mr. Hardyal·
should help in providing a job to the boy. Three
years thereafter that boy died. When the time to c
seek votes came, Mr. Hardyal put his hand on the
shoulders of the old man and said that he was
arranging for the immediate arrival of the
appointment orders of his son.
16. Interviews for the posts of Patwaris were held
on 30.1.1982 at Dharamsala. Interview cards were D
issued to 125 boys of every Tehsil, that is to say
that 500 boys were called for interview from 4
Tehsils, but only 7 cards were issued to the boys
of Nagrote constituency• Mr. Hardyal has got it
done deliberately because Mr. Hardyal wanted that
the seats in the share of Nagrota constituency E
should go to Pt. Sant Ram and Sat Mahajan.
17. Panchayat Sangathan of Nagrota Rlock had passed
a resolution 2-1/2 years back that Bador should be
made a Sub Tehsil. During the Janata regime, Shanta
Kumarj i had ordered to establish Sub Tehsils at
Kundia. Baijnath, Fatehpur (Nurpur), Bangana (Una), F
Amb (Una), Badoh (Nagrota), Kotkhal etc. All other
Sub Tehsils have since been established but the
establishment of Badoh Sub Tehsil was withheld by
Mr. Hardyal with the view that he may inaugurate
its inception when the elections are near and thi.iS
mislead the innocent village folks that , he has G
established the Sub Tehsil.
18. On 18th January, 1981 Ghirth Mahasabha had
demanded from the Centre to open recruiting offices
of Air Force and Navy at Nagrota but Chaudhary
Hardyal had flatly ref used to support this demand.
Why so? H
190 SUPREME COURT REPORTS (19861 1 s.c.R.

A
19. Chaudhary Hardyal has flatly refused to support -,t
the demands pertaining to the quota of Backward
classes but he managed to obtain admission in the
medical college for his son against a seat of
backward classes. Why so?
20. 15 years ago Mr. Hardyal was the President of
B the Jan Sangh Group of the Tea Garden Trade Union,
and joined the Congress after shifting his loyalty.
It is for this reason that he does not help the
village people to secure the e1!1'loyment. He help• )
only the children of rich people, that too
· outsiders. The lands have been given to the tenants
c on the basis of the provisions of the Constitution
of India. Mr. Hardyal has been misleading the
inn0cent people saying that it is he who has
provided them with lafids. It ts all false. I
earnestly wish the success of Janat~ Party
candidate Mr. Kanshi Ram through your all possimle
D efforts.

Parma Nand
R/o Pathia~ Halqa
Nagrota, Bagwan.
Modern Pre•s, Nagrota
E
So far as a charge of corrupt practtce withl.n the meaning
of sub-section (3) of section 123 is concerned there is not
much difficulty. The appellant and respondent both belong to
the same caste and community and the contents of the offending
poster does not indf.cate that the voters were asked to refrain
F from voting in favour of the respondent on the ground of..>-
caste. All that it contains is that although respondent
belongs to the same co111111mity he has ·got scant regard for his
caste and community people. This can hardly mean that the
poster incites the voters who were mostly of the same
colllllllnity from refraining from voting in favour of the
G respondent on the ground of caste & community. The real
difficulty arises with regard to the charge of corruption as
defined in sub-section (4) of section 123. In order to make
out the charge of corruption under sub-section (4), the
·election petitioner has to show that (i) the impugned
statement of facts was published by a candidate or his agent<.,
H or by any other person with the consent of the candidate or
RAM CHAND BHATIA v. HARDYAL [MISRA, J.] 191

A
It his agent (ii) that the statement was false ·and which the
· maker either believes to be false or does not believe to be
true (iii) that the statement relates to· the personal
character of a candidate· and (iv) that the statement was
reasonably calculated to prejudice the prospects of the other
candidates' election. All the .aforesaid ingredients had to b_e B
established before an election petitioner can succeed on the
charge of corrupt .practi.ce.
Now we proceed to deal with the points raised .on behalf
of the parties. The first contention raised by the learned
counsel for the appellant is that the Election Petition was
liable to be dismissed in view of section 82 (b) of the Act
for not impleading Kanshi Ram who was a contesting candidate c
and· against whom allegations of corrupt practice had been
made. The learned Single Judge however overruled this
objection on the ground that the allegation of corrupt
practice, if any, made against Kanshi Ram pertained to a
period prior to his becoming a candidate and as such it will
not attract sectfon 82 (b) of the Act. The impleadment of a D
candidate against whom a charge of corrupt practice has been
made, as a party is necessary only when the charge of corrupt
practice was made against a candidate. Section 79 (b) of the
Act defines 'candidate'. It reads as under:
"79 (b): 'candidate' means a person who has been or
claims to have been duly nominated as a candidate E
at any election."

The position was however different before the Election Law
Amendment in 1975 and the definition of a candidate as
provided in section 79 (b) prior to its Amendment. in 1975 was
·· .,.·.,_ as under: F

"79 (b): 'candidate' means a person who has been or
claims to have been duly nominated as a candidate
at any election and any such person shall be deemed
to have been a candidate as from the time when,
with the election in prospect, he began to hold G
himself out as a prospective candidate."

Unless the allegations made against Kanshi Ram about corrupt
practice were at a time when he was nominated as a candidate,
clause (b) of section 82 is not attracted. H
192 SUPREME COURT REPORTS [1986) 1 S.C.R.
A
The next contention raised on behalf of the learned
counse 1 for the appellant is tl)at the necessary allegations
which would satisfy the requirement of sub section (4) of
section 123 have not been made and therefore the Election
Petiticn was liable to be dismissed on this score alone. We
have perused the Election Petition and in ciur opinion all the
B necessary facts to constitute a corrupt practice within the
meaning of sub section (4) have been made out and the Election
Petition cannot be dismissed on this ground.
This leads us to the important question as to whether the
ingredients of sub-section (4) of section 123 had been
satisfied in the instant case to make out a charge of corrupt
c practice. One of the ingredients of sub-section (4) of section
123 is that the statement of the offending document must be
false and the person making it either believes it to be false
or does not believe it to be true in relation to the personal
character or conduct of the candidate. The learned Judge has
~bserved in the judgment as follows:
D
11
1 have already concluded that the posters like P.·1 ...1
contain statements of facts which are false and not
believed to be true by the respondent, in relation
to the personal character and conduct of the
petitioner."
E On a perusal of the judgment we find no such finding recorded
by the learned Judge in the earlier part of his 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
F 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,
in our opinion, was not justified by assuming that he had
G
already recorded a finding on this aspect.

The next question for consideration is whether the
contents of the impugned document attack the personal
character of the respondent or only the political character of
the respondent. The requirement of sub-section (4) of section '
H
123 is that the content of the impugned document should relate
RAM CHAND BHATIA v. HARDYAL [MISRA, J.] 193

to the personal character and not to the political chatacter. A
The law is well settled. Adverse criticism however severe,
however undignified, ill mannered, however 'regrettable it
might be, in the interest of purity and decency of public
life, in relation to the political views, position, reputation
or action of a candidate would not bring it within the
mischief of the statute. What is objectionable is a false B
statement of fact and not a false statement of opinion
however, unfounded or unjustified.
A distinction has been drawn between the personal
-.._' character or conduct of . the candidate and his public or
political character and conduct. Law postulates that if a
false statement is made in regard to the public or political
character of the candidate it would not constitute a cortupt c
practice even if it is likely to prejudice the prospects of
that candidate's election. The public or political character
of a candidate is open to public view and public criticism. If
a false statement is made about the political views or his
public conduct or character, the electorate would be able to
judge the allegations on the merits and could not be misled by D
''' any false allegation in that behalf. It is on this theory that
false statements of facts affecting public or political
character of a candidate are not brought within the mischief
of section 123(4). The courts have taken the view that it is
only when a person 'beneath the politician' 'is sought to be
assaulted that sub-section (4) of section 123 of the Act is E
attracted. In some border line cases difficulty arises to find
out whether the assault is on the person 'beneath the
politician' that is on the personal character and conduct of a
man or on his political opinion and conduct. It will depend on
the facts of each case whether in the particular given case
_ _, the assault is on the personal character and conduct of the F
~ candidate or on his political conduct.
In the. instant case the contents of the impugned poster
have been set out above. The respondent has been either a_n
M.L.A. or a Minister for the 15 years and most of the
allegations relate to his achievements or failures as· an
M.L.A. or as a Forest Minister. Points 1 to 14 of the impugned G
document which have already been quoted in extenso in the
earlier part of the Judgment dealing with the polittcai
failures of the respondent. Except paragraph 15 of the
offending poster other paragraphs deal with the political
character and conduct of the respondent. Paragraph 15 reads as
follows: H
194 SUPREME COURT REPORTS [1986] 1 s.c.R.

A
"I will never try to befool the poor people as Mr,
Hardyal has deceived a very poor old man. Five
years ago an old man gave an application to Mr.
Hardyal to the effect that he was a very poor man
and his son was a matriculate and that Mr. Hardyal
should help in providing a job to the boy. Three
years thereafter that boy died. When the time to
B seek votes came, Mr. Hardyal put his hand on the
shoulders of the old man and said that he was
arranging for the immediate arrival of the
appointment orders of his son."
This also relates to the failure of the respondent in getting
a job for the son of the old man in spite of his assurances
c for the same. He continued to give the assurance even though
the son of the old man had died. It only indicates that there
was no touch of sincerity in the assurances•of the respondent
either as M.L.A. or as a minister. It, however, may be said
•
thst the content• of this paragraph also malign the personal
character and conduct of. the respondent. All other paragraphs '
D deal with the political failures or political opinion of the
respondent.
The electorate at the time of election has to be kept in
the forefront l.n judging whether a publication of the
stat.e~nt has affected the voters. The court has to ascertain
wh.etl\er· th.e st"iitenient is reasonably calculated to prejudice
E the prospect of the candidate in an election. It would be
unrealistic to ignore that when appeals are made by the
candidate there is an element of partisan feeling and there is
extravagance df expression in attacking one another and the
court has to consider the effect of the impugned document on
the mind of the ordinary voters who read the poster.
F Even assuming for the sake of argument that some of the ,. >- -
paragraphs of the offending poster assail the personal
character of the respondent, the charge of corrupt practice
within the meaning of sub-section (4) of section 123 cannot be
made home unless it was further established that the impugned
statement of fact is false and the candidate either believed
G that statement to be false and not believe it to be true. We
have already found that the learned Judge has not recorded any
categorical finding on this aspect and he erroneously assumed
that he had already recorded a finding. On the evidence on the
record we can't say that the statement of fact assailing the
H
personal character of the respondent was false or at any rate "Z:'
believed by the appellant to be false. and not true.
RAM CHAND BHATIA v. HARllYAL [MISRA, J.] 195
A
Shri Krishna Murtl Iyer for, the respondent strenuously
contended that even if it is found that the appellant was not
responsible for the printing of the poster still if the charge
of publishing and distributing the offending poster by the
i<ppellant or his election agent or by any other person with
his consent is establtsh~d the appellant will not be out of
B
the wood.
The allegation made In the. Election Petition is that the
appellant was responsible for the· printing of the -offending
poster and also for publ \shing and distributing the same in
various meetings. The fhst link of the offending docu...nt
that it was printed at th~ lnstabce of the appellant ha• not
been established at all. Rather the evidence of P.W. 2 Shri Oin
Prakash Sarotri runs co1.1nt~r to the allegation. In his
c
depositiOn he said :
"I have brought the manuscript of the poster. Oil
3rd· March, 1982 the manuscript of the posters like
Ex.P.l was given to me for printing by Shrl Kanshl
Ram Chaudl11>ry, Pradhan of Pathiar Panchayat,
D
••••••i••••••••••••••••••it•••••••••••···· .. ···When 1
asked Shrl. Kans hi R;!m as to why he did not ment 1011
his own naine in the poster, he told me that Shri
') Parma Nano ls his elder btother and the poster io
tO be iesued in his name, I 11·1 • • • • • 1 1 1 1 1 1••1 1 • • 1 1 • 1

) I asked for making some payment in aJvance for
E
j printing the posters. Shr! Kanshi Ram paid me a sum
of Rs. 125 as advance •.••....•.•.. ,,,,,,, .••.•..... ,
1 delivered 3000 posters to Shrl Kanshl Ram who was
accompanied by some persons and he paid me the
balance amount of Rs. · 225 on that day. I had
issued a receipt in token of the rec!!ipt of the
- -/· amount to Shri Kanshi Ram l.n the name of Shri Parma F
"'· Nand."

In cross examination he admitted that :

"There were two or three persons accompanying Shri
G
Kanshl Ram but the respondent was not seen by me."

The respondent in the Election Petition was the ptesent
appellant. Therefore on the statement of the witness of the
respondent-election petitioner, the order was placed by Kanshi
Ram Chaudiiary, the brother of the respondwnt. On the offending
H
196 SUPREME COURT REPORTS [1986] 1 S.C.R.
A poster el~tfon symbol of the Janata Party i.e. a farmer with
a plo11gh 6n his shoolder within a wheel (Haldhar) was shown on
the top of the poster soliciting vote for Janata Party
candidate, Shri Kanshi Ram. In the end it solicited vote for
Shri Kanshi Ram, Janata Party candidate. The Modern Press
Nagrote, Bagwan was shown as the printer of the poster. It
also showed Shri Patmanand, resident of Pathiar, Halqua
B Nagrote (Bagwan) as the publisher of the poster. Such a poster
on the face of it could not have been issued by the appellant
through Parmanand who was admittedly the cousin of Shri Kanshi
Ram in whose favour the said poster was taken out. Neither the
name of the appellant nor his party was anywhere mentioned in
the said poster. The learned Judge rest content only by
c observing that the respondent may hav·e some connection with
the printing. But in our opinion on the statement of P.W.2
itself the allegatior. about the printing of the poster at t.he
instance of the appellant is belied. The learned Judge however
was of the opinion that even if the respondent has failed to
establish that the appellant was responsible for the printing
L of the poster, he could still be held up for the charge of
corrupt practice if he or his election agent or persons with
his consent had distributed the poster in various meetings.
The learned Judge has recorded a finding that the appellant
himself had distributed the offending document in various
meetings. He however, as stated earlier, refrained from giving
E any finding as to whether his election agent or other persons
with his consent had distributed the offending document.
In our opinion it does not stand to reason that a poster
which was issued at the instance of Janata Party, which
contained the symbol of the Janata Party, invoking the voters
to vote for Kanshi Ram the rival candidate would be distribu-
F ted in the meetings by .the appellant. Kanshi Ram was a candi-
date opposing the appellant.
The learned Judge has simply given the synopsis of 24
witnesses produced on behalf of the election petitioner and 17
witnesses on behalf of the appellant. But there is absolutely
no discussion of the evidence. The court has to give reason
G why it believes a particular witness and discards the other.
But there is absolutely no discussion and it appears to be
mere his .!E_ se dixit to rely on the statement of P.W.17 Shri
Kedar Nath Bassi, P.W.19 Nek Ram, P.W.20 Gian Chand produced
on behalf of the respondent. The learned Judge also relied
upon the alleged admission of Jaishi Ram R.W.4 that Ramchand r,.-
RAM CHAND BHATIA v. llARDYAL [MISRA, J. ] 197

A
Bhatia had distributed the offending poster on various dates.
Curriously enough there is no such admission in the statement
in chief or cross examination of R.W.4. There appears to be
misreading of the deposition of R.W.4. It must be remembered
that the election proceedings involving charge of corrupt
practice are of quasi criminal nature and it was for the B
election petitioner to prove beyond reasonable doubt all the
necessary facts which would establish the allegation of
corrupt practice that have been alleged in the Election
Petition. The respondent has failed to establish the link that
the appellant was responsible for the printing of the
off ending poster. If the important link of the charge is not
established it will be difficult to accept the succeeding link c
that respondent or his agent or person with his consent
distributed the of fending poster in the various meetings. It
would be unsafe to accept the 01;al evidence on its face value
without seeking for assurance from some other circ~tances
speak for themselves. The appellant would never support his
opponent by reading or distributing a poster which invokes to D
vote for a rival candidate. It is true that paragraph 3 of the
Election Petition does allege that Shri Virender, Advocate of
Kangra, Kali Dass, Pradhan Massal Panchayat, Shd Ram Chand
Bhatia, respondent, Kans hi Ram, Janata Party candidate and
Shri Kidar Nath Bassi who was election incharge in the consti-
tuency for B.J.P. joined hands amongst themselves and started E
a villification campaign against the character and conduct of
the petitioner. The allegations have been more easily made
than made out. Unless it is established that respondent has
also made a common cause with the contesting candidate to
start villification campaign against the respondent, the
appellant cannot be held responsible for what has been done by F
Kanshi Ram or his brother.
The learned Judge has laid undue emphasis on the post
election facts and circumstances to prove that the appellant
made a common cause with Shri Kanshi Ram in assailing the
personal character of the respondent. It ls true that there is
evidence of Kedar Nath Bassi P.W.11 that Kanshi Ram had G
participated in the victory procession of the appellant and he
was also garlanded and seemed to be happy. But in our opinion
the subsequent facts sought to be re lied upon is too meagre to
warrant a cone lusion that appellant and Kans hi Ram was in
collusion, when Kanshi Ram had contested against the appellant
and had polled 1049 votes. It all depends upon the attitude of H
a person. Some take election result too seriously and some
198 SUPREME COURT REPORTS [1986] 1 S.C.R,

take in it sportsman's splrit. Have we not seen that in a game ,l.-
even the defeated party says huray to the winning party? It
is all in the game. 'nle'refore the mere fact that the Kanshi
Ram was happy or was garlanded will not lead to the
irressistible concluslon that the appellant and respondent had
B a common cause.
In the result all the requirements of sub-section (4) of
section 123 have not been satisfied in this case and the
learned Judge, in our opinion, has committed a grave error in
setting aside the election of the appellant. We therefore
allow the appeal and set aside the judgment and order of the
c learned Single Judge dated 11th October, 1984 and dismiss the
Election Petition. 'nlere Is, however, no order as to costs.

S.R. Appeal allowed.
'