ORDER
R.S. Garg, J.
1. The present Election petition has been filed by the petitioner claiming himself to be a voter of Assembly constituency No. 83 Kotma to challenge the elections of the said constituency.
2. According to the petitioner, the Assem-bly Elections were notified as per the provisions of Section 31 of Representation of the People Act. According to the programme, the date for submission of the nomination form was 23-10-93 to 30-10-93. The date of scrutiny was 1-11-93. The date for the withdrawal was 3-11-93 and the date for polling was fixed on 24-11-93. The respondent No. 1 filed nomination as candidate of National Congress (I) for ihe Assembly Constituency, Kotma (No. 83). According to the petitioner she had filed the nomination paper and declared her name as Rajesh Nandini Singh wife of Dalveer Singh. As alleged the said name Rajesh Nandini Singh was not recorded in the voters list of the said Assembly for the year 1993. On the other hand, at serial No. 18 name of Rajeshwari Singh wife of Dalveer Singh was recorded in the voters list. The respondent No. 1 (The Returned Candidate) filed her nomination somewhere on 29 or 30-11-1993. The grievance of the petitioner is that the said nomination form which deserved to be rejected was illegally accepted by the Returning Officer. According to the petitioner, she was a voter in Pushpraj garh Assembly Constituency No. 86, Shahdol. The petitioner submits that before accepting the nomination form filed by the respondent, the Returning Officer took an affidavit and directed correction of the name. The petitioner submits that corrections can be made in accordance with Rule 26 of Electoral Rules, 1960 and if the name of the voter was not corrected in the electoral roll an application could be given to the Registering Officer, who after giving a public notice could correct the name. The petitioner submits that the last date of the nomination was 30-11-93 and name of the respondent No. 1 could not be included in the electoral roll nor could it be corrected. According to the petitioner, if some entry has been made by the Registration Officer, the same is contrary to law and is illegal. The petitioner submits that name of any person cannot be included or amended in the voters list after the election process has started. The petitioner submits that the Returning Officer illegally received an application and affidavit from the respoindent and illegally ordered correction of name of the respondent. It is submitted that the action of the Returning Officer was contrary to law. It is further submitted that in accordance with Section 33(4) of the Representation of People Act, a nomination form could be submitted. It is contended that if the nomination form was not illegally accepted, the respondent could notbe permitted to take part in the elections. It is further contended that name of the respondent was corrected because of the influence of her husband who is Ex-State Finance Minister and sitting Member of Parliament from Shahdol Constituency. It is also submitted that the returned candidate was not qualified and there has been a failure in complying with the provisions of Section 33 of the Representation of the People Act.
3. Number of other allegations were also made relating to the corrupt practise but the said allegations were later on withdrawn. It is contended by the petitioner that during the election campaign the returned candidate used pamphlets and posters. In the said pamphlets and posters the name of the printer and publisher were not mentioned, therefore use of the said pamphlets and posters was contrary to the directions. It is further submitted that respondent had committed violation of Section 127A of Representation of the People Act, therefore also the election of respondent No. 1 deserves to be set aside.
4. The respondent in her return admitting the material facts about the notification of the election, date of nomination, scrutiny and withdrawal but has denied the material facts. According to her, the name of the respondent was recorded in the voters list of Pushprajgarh Assembly Constituency (No. 86) village Kirgi. The respondent wanted to seek election from reserved assembly constituency No. 83. Kotma, therefore filed her nomination papers. According to respondent, she had filed the nomination form in name of Rajeshwari Singh. The respondent contends that she is commonly known as Rajesh Nandini Singh, though her correct name is Rejeshwari Singh. The respondent is popularly known by the common name and in the voters list of 1988 the common name of the respondent viz. Rajesh Nandini Singh wife of Dalveer Singh was recorded. The respondent requested the Returning Officer in writing to record her name as Rejesh Nandini Singh in the ballot papers. The Returning Officer in accordance with the instructions of the Election Commission made necessary correction in the list in Form-4. Placing reliance on certain instructions of the Election Commission, it was contended that if a candidate considers that his or her name was incorrectly spelled or was otherwise incorrectly shown in the nomination paper or was different from the name by which he or she was popularly known he may at any time before the list of contesting candidates was prepared furnish in writing to the Returning Officer, the proper form and spelling of name and the Returning Officer on being satisfied as to the genuineness of request could make necessary corrections or alterations in the list in Form-4 and adopt that form and spelling in the list of contesting candidates.
5. The respondent submits that at her request the Returning Officer corrected Form-4 and the list of the contesting candidates and accordingly name of the respondent was published in the ballot papers as Rajesh Nandini Singh. It is submitted that at the time of the scrutiny none challenged the identity of the respondent. According to respondent, she is the only married wife of Dalveer Singh and there was no scope for raising any doubt to the identity of the respondent. The respondent submits that the voters list was corrected by the Returning Officer and name of the respondent was recorded in the voters list as disclosed in the nomination form. According to her, the nomination form was rightly accepted. She submits that the Returning Officer at the request of the respondent directed to provide her popular name viz. Rajesh Nandini Singh in the ballot papers on being fully satisfied that Rajeshwari Singh and Rajesh Nandini Singh were the same person. The respondent denied the allegations that because of the pressure of her husband, the Returning Officer acted illegally. The allegations relating to the corrupt practice were denied. It was further contended that the respondent never used any pamphlets or posters on which the reliance was placed by the petitioner filing copies of certain documents. The respondent contends that particular type of the posters and pamphlets were used. The documents filed by her do bear the name of printer and publisher with their complete address. The respondent contends that her nomination was rightly accepted and the petition deserves dismissal. On 4-8-97, the following issues were framed :
(i) Whether the Election Officer illegally accepted the nomination form of Rajesh Nandini Singh (the returned candidate) and it has adversely affected the election results?
(ii) Whether the respondent has violated the provisions of Section 127A of Representation of the People Act, 1951 and if yes, it is a fact?
(iii) Whether the petitioner is entitled to file the present election petition and the election petition at his instance is maintainable?
(iv) Relief and costs.
6. In support of the allegations, petitioner has examined P.W. 1 T. Dharamrao (Collector, Shahdol). P.W. 2 Chandra Sekhar (Petitioner), P.W. 3 Balram Jaiswal, P.W. 4 Suryapratap Singh Parihar (Returning Officer) and P.W. 5 Dr. Jai Kumar Jain. The petitioner has exhibited 12 documents in support of her case while the respondent has exhibited 8 documents (including Ex. D-6A) in support of her case.
7. P.W. 1 T. Dharamrao. Collector, Shahdol has clearly stated that in the year 1993 at the time of the assembly election he was posted at Jabalpur, therefore he had no personal knowledge of the elections. He however brought the original records. The said witness produced the original nomination form at Annexure-P/1. He also produced copy of the voters list for 1993 at Annexure-P/2. He also produced the receipt Annexure-P/3 and also produced the original application submitted by the respondent Rajesh Nandini Singh to the Returning Officer on 30-10-93. He also produced copy of the affidavit of the respondent dated 30-10-93 at Annexure-P/5. In the cross-examination, the witnesses admitted that from the original records, it was clear that in all four nomination forms were submitted by the respondent. The witness has produced Annexures-D-1, D-2 and D-3 which were the other nomination forms. He also produced the copy of the affidavit required to be filed under Article 84(A)/173A of the Constitution of India as Annexure-D-4. He submitted that as Forms Nos. 7 and 4 were not called for he did not bring the said Forms. In the examination-in-chief, as further stated that date of the scrutiny was 1-11 -93 and the last date for submission of the nomination form was 30-10-93. He admitted that the forms were submitted on 30-10-93. In the further examination in chief, he submitted that the application Annexure-P/4 was submitted on 1-11-93.
8. From the Statement of this witness it would1 appear that the respondent had filed four nomination forms. Ex.P/1 and Ex. D-1 were submitted in the name of Rajeshwari Singh wife of Dalveer Singh of Village Kirgi (Rajendragram). The other two forms Ex. D-2 and Ex. D-3 were submitted on 30-10-93 in the name of Rajesh Nandini Singh, wife of Dalveer Singh of village Kirgi (Rajendragram). From Ex. D-4, it would appear that the affidavit in support of the nomination Form was filed in the name of Rajesh Nandini Singh. Before considering the other evidence, it is necessary to consider the evidence of PW-4 Suryapratap Singh. the then Returning Officer. The witness has admitted that the nomination forms Ex. P/1. Exs. D-1, D-2 and D-3 were submitted before him. He further stated that along with Ex. P-4 and Ex. P-5 the voters list of 1988 wherein the name of respondent is shown as Rajesh Nandini Singh was not filed before him. He admitted that Ex. P-1 and Ex. D-1 were filed in the name of Rajeshwari Singh, while Ex. D-2 and Ex. D-3 were filed in name of Rajesh Nandini Singh. in the examination in chief it was suggested to him that in Ex. P-2 when name was mentioned as Rajeshwari Singh wife of Dalveer Singh, he was obliged to accept the Forms Ex. P-1 and Ex. D-1 only, and in reply to the question he said that it was not necessary referring to Chapter 6 para 4 of hand book of Returning Officer issued by the Election Commission he submitted that if there was more than one nomination forms those were to be scrutinized in a particular manner. He stated that small mistakes could be corrected. He further staled that as Ex. P-1 and Ex. D-1 were in accordance with 1993 voters list he tightly accepted the said nomination forms. He further stated that Ex. D-2 and Ex. D-3 could also be accepted by him in the name of Rajeshwari Singh and he accordingly accepted the said forms. According to witness through Ex. P-4 and Ex. P-5, it was brought to his notice at the lime of the scrutiny that in the voters list in theyear 1993 name of the respondent was misprinted, therefore before allotting election symbols he made enquiry into the facts. He stated that electoral roll of 1988 was not produced before him but the same was available with him in his office. On basis of 1988, electoral roll, he accepted the said nomination forms Ex. D-2 and Ex. D.3. He admitted that he did not make a mention of these facts on Ex. P-4 but simply wrote O.I.C. Nirvachan (Election) for necessary action. He states that below his signatures, the endorsement 'Prapatra 7-Ka Banate Samay Ise Rakhen' (While making Form-7A this be kept) was made by the O.I.C. According to him. Form-7A is the list of the candidates. In Form 7A name of the respondent was recorded as Rajesh Nandini Singh. He submits that receipt Ex. P-3 was Issued in name of Rajeshwari Singh. He states that vide Ex. P-4 a request was made to him that name of the respondent be read as Rajesh Nandini Singh but following the instructions issued by the Election Commis-sion, he passed the necessary orders. Referring to para 17 of Chapter 5 of the hand book for Returning Officer he stated that if there was some mistake in the voters list then the rights of such candidate were not to be adversly affected. He further stated that if there was some mistake in the electoral roll, in view of the instructions it could be ignored. He admitted that he did not correct or amend the electoral roll but he maintained that he could accept the nomination forms without making any correction in the electoral roll. He admitted that under Ex. P-4, two prayers were made to him viz. name of the candidate be corrected in the electoral roll and her name be correctly published in the ballot papers. He stated that after the elections were declared he could not correct the name in the electoral roll, therefore he did not make any correction in the electoral roll but in accordance with Rule 8 he directed that correct name be published in the ballot papers. Referring to para 17 of Chapter-5 he stated that if there was some mistake regarding name or place in the electoral roll then treating that to be a printing mistake further proceedings could be drawn. He states that all nomination forms were accepted in name of Rajeshwari Singh. He further states that if the Returning Officer was satisfied that the name or the spelling in the name or the common name was misprinted in that electoral roll then Ignoring the said mistake the Returning Officer could direct printing of the correct name in the ballot papers. He denied that the Returning Officer had only a right to make an amendment in form-4A. Referring to Ex. P-8 he admitted that the petitioner was recorded as a voter for the said constituency in the voters list of 1993.
9. In the cross-examination, the witness after perusing the electoral roll of 1988 (Ann. D-7) admitted that name of Rajesh Nandini Singh wife of Dalveer Singh was mentioned at serial No. 7. Referring to the electoral roll of 1993 (Annexure-D/8). he stated that except the age there was no distinction in the entries of Rajeshwari Singh and Rajesh Nandini Singh. He states that he accepted the nomination form Ex. D-2 and Ex. 3 because he was satisfied that there was a printing mistake in the electoral roll and the real name was Rejesh Nandini Singh. He states that he was satisfied that Rejeshwari Singh and Rajesh Nandini Singh were one and the same person. According to him, even if Ex. D-2 and Ex. D-3 nomination Forms were not submitted before him then too on being satisfied that Rajeshwari Singh's name was or she was commonly known as Rajesh Nandini Singh, he could have permitted publication of her name in the ballot papers as Rajesh Nandini Singh. He states that according to paragraph No. 9 of Chapter 6 of the Hand Book, the nomination forms could not be rejected on formal mistakes. In the further re-examination he denied the suggestion that if there was no distinction in the name as found in the electoral roll and the nomination form then such name could not be corrected.
10. From the statement of this witness, two things would clearly emerge, firstly that four forms were submitted before him and he accepted all the forms. Two were in name/ of Rajeshwari Singh and the other two were in name of Rajesh Nandini Singh, From the endorsement on the back of Annexure-P-1 and D-l, it would appear that the forms filled in name of Rajeshwari Singh were accepted in the name of Rajeshwari Singh. From Annexure-D/2 and D-3. it would ap-pear that the forms were submitted in the name of Rajesh Nandini Singh but the same were accepted in the name of Rajeshwari Singh. It would also appear that the respondent filed an affidavit in support of her form in name of Rajesh Nandini Singh. Whether the said witness had a right to direct publication of the name of Rajesh Nandini Singh in the ballot papers or not would be considered later on but from his statements it would clearly appear that on receipt' of Ex. P-4 and Ex. P-5 he directed the O.I.C. (Election) to take necessary action and the said O.I.C. directed that while making Form 7-A, the document be considered. From the statement of this witness, it would appear that he was of the opinion that if there was some mistake in the name then the name could be corrected and in any case while preparing Form-7A the corrections could be made. From the statement of this witness it further appears that the petitioner is a recorded voter in the said constituency.
11. The petitioner has examined himself as P.W. 2. He states that at the time of the scrutiny when the application and affidavit for correction of name were filed, he and the others raised number of objections and submitted to the Returning Officer that the Form could not be accepted in name of Rajesh Nandini Singh. He further states that he raised an objection that only formal mistake could be corrected but the entire name could not be changed but the said objection was over ruled and the officer informed them that he has such an authority. In the cross-examination, he admitted that he did not file any written objection. He states that the oral objections were made before the Returning Officer. In the cross-examination he admitted that two forms were filled in name of Rajeshwari Singh and the other two were submitted in name of Rajesh Nandini Singh. He also admitted that name of the husband in each of the form was shown as Dalveer Singh. He also admitted that all the forms were accepted in name of Rajeshwari Singh. He also admitted that the Returning Officer did not make any order for correction in the electoral roll. P.W. 5, Dr. Jai Kumar Jain states that at the time of the scrutiny he was present. According to him, the respondent moved an application with an affidavit to the Returning Officer that her real name was Rajesh Nandini Singh which was wrongly printed as Rajeshwari Singh, therefore the same be corrected. According to him, written and oral objections were raised that the name could not be corrected and the form was liable to be rejected. He states that the Collector over ruled the objections and accepted the forms. In the cross-examination, he stated that at the time of the scrutiny he and Jugal Kishore Gupta raised objections, he maintained that he had filed the written objections. According to him, written objections were returned back to him. He stated that regarding return of the written objections he made a complaint to the Election Commission but was not in possession of the copy of complaint The complaint sent by him to the Election Commission was made on 8-1-94 and was produced by him as Annexure-P-9. In reply to the Court's question, he stated that with the said complaint Annexure-P/9 he contacted the counsel for the petitioner and asked him whether on basis of said document the election petition could be filed, according to him before he met the counsel for the petitioner he did not meet the petitioner, he states that there was no mention in Ex. P-9 that the original objections were returned back to him.
12. DW-1 Rajesh Nandini Singh, in her statement has stated that she had filed Ex. P-1, Ex. D-1, D-2 and D-3. According to her, in electoral roll of 1988, her name was printed as Rajesh Nandini Singh. In support of her contention she filed Ex. D-7. She stated that after submission of nomination forms, she filed the application and affidavit Ex. P-4 and P-5. In the cross-examination, she stated that P-4 and P-5 were submitted to the Returning Officer at the time of scrutiny. She however admitted that before submission of the application P-4 she did not move application for correction of the name. She was sought to be confronted with Annexures-P/11 and 12 and was asked that she had filed only two nomination forms. In para 7 of her statement she stated that she had filed four nomination forms. She was asked that if she had filed four nomination forms why this fact was not mentioned in the written statement. In para 9 of her statements, she states that her name was Rajesh Nandini Singh but it was printed as Rejeshwari Singh, she had filed two forms in name of Rajeshwari Singh and the other two forms in name of Rajesh Nandini Singh.
13. From the statements of the witnesses it would appear that all the four nomination forms were filed by the respondent. Two forms were submitted in name of Rajeshwari Singh and the other two forms were filed in name of Rajesh Nandini Singh. It would also appear that at the time of the scrutiny, certain objections were raised but the Returning Officer rejected the said objections. It would also appear that all the four forms were accepted in name of Rajeshwari Singh and the Returning Officer directed the O.I.C. to take necessary action. It would also appear that the O.I.C. observed that while making Form No. 7A, the document be kept. It would also appear that the respondent was making submission that her name was misprinted in the electoral roll, the same was required to be ignored and her correct name Rajesh Nandini Singh was required to be read and the same was required to be printed in the ballot papers.
14. Learned counsel for the petitioner submits that the Returning Officer could not amend or substitute the name. Referring to Section 33(4) proviso of Representation of the People Act. 1951, it was contended that only printing error in relation to the name commonly understood could be corrected and the different name could not be substituted. Referring to Rule 8 of Conduct of Election Rules, 1961 it was submitted that the correction could be made in the nomination form and not in the voters, list. It was further submitted that if the Returning Officer agreed with the submission of the respondent he could only correct the name in Form-4. It was also submitted that in para-3 of the written-statement, the respondent stated that she was Rajeshwari Singh but was known as Rajesh Nandini Singh, therefore the form of Rajeshwari Singh was also liable to be rejected. Referring to Section 23 of Representation of the People Act, 1950, it was submitted that amendment in the voters list was permissible upto date of nomination form and not beyond it therefore, the Returning Officer had no jurisdiction to direct inclusion of names in the ballot papers.
15. It was further contended that on application dated 1-11-1993 (P-4 and P-5), as the last date of nomination was 30-10-1993, under Section 23(3) of 1950 Act, voters list could not be corrected and as P-4 was an application for correction of voters list neither the nomination form could be corrected nor Form-4 could be corrected. Placing reliance upon the judgment of this Court In the matter of Jogaya v. Beti Joga, 1974 MPLJ 802, it was contended that every (sic) nomer or error could not be ignored under the proviso to Section 33(4) of 1951 Act. Placing reliance upon the judgment of the Supreme Court in the matter of Samar Singh v. Kedar Nath, AIR 1987 SC 1926 it was submitted that Returning Officer had no power to correct if electoral roll and nomination have the same names. It was submitted that the form was in name of Rajeshwari Singh and the electoral roll also showed her as Rajeshwari Singh, therefore there was no scope for making a correction. Placing reliance upon the judgment of the Supreme Court in the matter of Narendra Madivalapa Kheni v. Manikrao Patil, (1977) 4 SCC 16 : (AIR 1977 SC 2171) it was submitted that no correction in the voters list could be made after the nomination hour was over.
16. Shri Saxena, learned counsel for the respondent submitted that two forms were filed in the name of Rajeshwari by way of abundant precaution and the other two forms were filed in the name of Rajesh Nandini Singh. Placing reliance upon proviso to Sub- section (4) of Section 33 of 1951 Act, it was submitted that the Returning Officer had jurisdiction to over look the inaccurate description or misnomer. Placing reliance upon the Rule 8 of the Election Rules, 1961, it was submitted that at any time before the list of contesting candidates is prepared the candidate could furnish in writing to the Returning Officer, the proper form and spelling of his name and the Returning Officer on being satisfied is obliged to make necessary correction or alteration in the list in Form-4 and adopt that form and spelling in the list of contesting candidates. Referring to AIR 1987 SC 1926, it was submitted that even if the nomination is in wrong name has given in the electoral roll the same could be accepted by the Returning Officer as there was nothing wrong in it. He submits that the Returning Officer had fullest jurisdiction to accept the Form either in the name of Rajesh Nandini Singh. He submits that the petitioner does not dispute the fact that the respondent is known as Rajeshwari Singh. According to him, it was a case of misnomer that is using one name for another. He submits that a misnomer can be ignored. His further submission is that in the present case, the misnomer was not corrected but was accepted and the authority was justified in directing that the misnomer be corrected and the O.I.C. was also justified in observing that this may be taken into consideration at the time of preparation of Form-7-A.
17. Section 23 of 1950 Act reads as under:--
Inclusion of names in electoral rolls.-
(i) Any person whose name is not included in the electoral roll of a constituency -may apply to the electoral registration officer for the inclusion of his name in that roll.
(ii) The electoral registration officer shall, if satisfied that the applicant is entitled to be registered in the electoral, direct his name to be included therein.
Provided that if the applicant is registered in the electoral roll of any other constituency, the electoral registration officer shall inform the electoral registration officer of that other constituency and that officer shall, on receipt of the information, strike off the applicant's name from that roll.
(Ill) No amendment, transposition or deletion of any entry shall be made under Section 22 arid no direction for the inclusion of a name in the electoral roll of a constituency shall be given under this section after the last date for making nominations for an election in that constituency or in the parliamentary constituency within which that constituency is comprised and before the completion of that election.'
18. According to Section 23, when name of a particular person is not included in the electoral roll he may apply to the registration officer for inclusion of his name. On being satisfied the said officer shall direct his name to be included therein. Sub-section (3) of Section 23 provides that no amendment, transposition or deletion of any entry shall be made under Section 22 and no direction for inclusion of name in the electoral roll of a constituency shall be given under Section 23, after the last date for making nominations for an election in the constituency or in the parliamentary constituency within which the constituency is comprised and before the completion of that election. In view of the judgment of the Supreme Court of Narendra Madivalapa Kheni v. Manikrao Patil, (1977) 4 SCC 16 : (AIR 1977 SC 2171} the last date in Section 23(3) means in the context, last hour of the last date. From the very language of the Section it would clearly appear that amendment, transposition or deletion of any entry cannot be made under Section 22 nor a direction for inclusion of name can be given under Section 23 after the last hour of the last date.
19. Section 33 of 1951 Act reads as under:
'Presentation of nomination paper and requirement for a valid nomination.-
(1) On or before the date appointed under Clause (a) of Section 30 each candidate shall, either in person or by his proposer, between the hours of eleven o'clock In the forenoon and three o'clock in the afternoon deliver to the Returning Officer at the place specified in this behalf in the notice issued under Section 31 a nomination paper completed In the prescribed form and signed by the candidate and by an elector of the constituency as proposer;
Provided that no nomination paper shall be delivered to be Returning Officer on a day which is a public holiday:
Provided further that in the case of a local authorities' constituency, graduates' constituency or teachers' constituency, the reference to 'an elector of the constituency as proposer' shall be construed as a reference to 'ten per cent of the electors of the constituency or ten such electors, whichever is less, as proposers.'
(1-A) Notwithstanding anything contained in Sub-section (1), for election to the Legislative Assembly of Sikkim (deemed to the Legislative Assembly of that State duly constituted under the Constitution), the nomination paper to be delivered to the Returning Officer shall be in such form and manner as may be prescribed:
Provided that the said nomination paper shall be subscribed by the candidate as assenting to the nomination, and -
(a) in the case of a seat reserved for Sikkimcse of Bhutia-Lepcha origin, also by at least twenty electors of the constituency as proposers and twenty electors of the constituency as seconders;
(b) in the case of a seat reserved for Sanghas, also by at least twenty electors of the constituency as proposers and at least twenty electors of the constituency as seconders;
(c) in the case of a seat reserved of Sikkimese of Nepali origin, by an elector of the constituency as proposer;
Provided further that no nomination paper shall be delivered to the Returning Officer on a day which is a public holiday.) (2) In a constituency where any seat is reserved, a candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the State.
(3) Where the candidate is a person who, having held any office referred to in Section 9 has been dismissed and a period of five years has not elapsed since the dismissal, such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by the Election Commision to the effect that he has not been dismissed for corruption or disloyalty to the State.
(4) On the presentation of a nomination paper, the Returning Officer shall satisfy himself that the names and electoral roll numbers of the candidates and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls:
Provided that no misnomer or inaccurate description or clerical technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked.
(5) Where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed along with the nomination paper, be produced before the returning Officer at the time of scrtuniy.
(6) Nothing in this section shall prevent any candidate from being nominated by more than one nomination paper;
Provided that not more than four nomination papers shall be presented by or on behalf of any candidate or accepted by the Returning Officer for election in the same constituency.'
20. According to Sub-section (4) of Section 33 on the presentation of a nomination paper, the Returning Officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls. Sub-section 4 of Section 33 is governed by the proviso which provides no misnomer or inaccurate description or clerical technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood. The Returning Officer is required to permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and wliere necessary direct that any such misnomer. Inaccurate description, clerical technical or printing error in the electoral or in the nomination paper shall be overlooked. A comparison of Section 23 of 1950 Act and Section 33(4) would provide that according to Section 23 of 1950 Act a name not included in the electoral roll can be included. According to Section 22 of 1950 Act, that any entry in the electoral roll of the constituency if is erroneous or defective in any particular then it could be ordered to be corrected. Conjoint reading of Sections 23 and 22 of 1950 Act would provide that before the last date for making nominations for an election in the constituency the entry which is erroneous or defective in any particular, can be corrected and a name not included in the electoral roll can be included, that would go for an ordinary voter. Section 33 of 1951 Act goes a step ahead. It says that a misnomer or inaccurate description etc. in regard to the name of the candidate mentioned in the electoral roll or in the nomination paper shall not affect the full operation of the electoral roll or the nomination paper, it obliges the Returning Officer to permit any such misnomer or inaccurate description to be corrected and if found necessary direct that any such misnomer, inaccurate etc. in the electoral roll or in the nomination paper shall be overlooked. The proviso authorises the Returning Officer to direct correction of such misnomer or inaccurate description or to over look such misnomer or inaccurate description etc. Section 34 of the Act 1951 is not controlled by Section 23 of 1950 Act. Section 23 of 1950 Act refers to the powers of the Registration Officer while Section 33 refers to the powers of the Returning Officer. If Section 33 of 1951 Act is read in its true perspective, it would mean that the electoral roll and/or the nomination paper can be directed to be corrected. The power of the Registration Officer comes to an end on the last date of submission of the nomination form but the power of the Returning Officer starts on submission of the nomination form. The Returning Officer is entitled and if is satisfied, is obliged to permit correction of such misnomer or inaccurate description. He is also entitled and if satisfied, obliged to direct that such misnomer and/or in-accurate description etc. be ignored or over looked. This power clearly clothes the Returning Officer with a jurisdiction to direct correction of the electoral roll to avoid the misnomer or inaccurate description etc. and also clothes in with the Jurisdiction to ignore or over look the said misnomer or inaccurate description etc. It cannot be contended that if the Registration Officer has no power under Section 23 of 1950 Act, the Returning Officer would also have no powers under Section 33(4) proviso of 1951 Act to direct correction in the electoral roll or nomination form or to over look or ignore such misnomer or inaccurate description.
21. Rule 8 of the Conduct of Elections Rules. 1961 reads as under:
List of validly nominated candidates.-
(1) The list of validly nominated candidates referred to in Sub-section (8) of Section 36 shall be in Form-4.
(ii) The name of every such candidate shall be shown in said list as it appears in his nomination paper.
Provided that if a candidate considers that his name is Incorrectly spelt or is otherwise incorrectly shown in his nomination paper or is different from the name by which he is popularly known, he may, at any time before the list of contesting candidates is prepared, furnish in writing to the Returning Officer the proper form and spelling of his name and the Returning Officer shall, on being satisfied as to the genuineness of the request, make the necessary correction or alteration in the list of Form 4 and adopt that form and spelling in the list of contesting candidates.'
22. According to Rule, the list of validly nominated candidates referred to in Sub-section (8) of Section 36 shall be in Form-4. Section 36 says that on the scrutiny of nominations under Section 36 of 1951 Act the Returning Officer shall prepare a list of validly nominated candidates that is to say candidates whose nomination have been found valid and would affix the same to his notice board. The said list is required to be in Form-4. According to Rule-8 the name of every such candidate shall be shown in the said list as it appears in his nomination paper. At this stage again, if a candidate considers that his name is incorrectly spelt or is otherwise incorrectly shown in his nomination paper or is different from the name by which he is popularly known, he may, at any time before the list of contesting candidates is prepared, furnish in writing to the Returning Officer the proper form and spelling of his name and the Returning Officer shall, on being satisfied as to the genuineness of the request make the necessary correction or alteration in the list in Form-4 and, adopt that form and spelling in the list of contesting candidates. Rule 8 of 1961 Rules, if is compared with the proviso appended to Section 33(4) it would appear that on the presentation of a nomination paper a candidate may make a request to the Returning Officer that the inaccurate description or misnomer etc. be corrected in the electoral roll or in the nomination form or the same be ignored or over looked. If at the time of submission of the nomination form such a request is not made, under Rule 8 of 1961 Rules before the list is prepared in Form-4 such an application can be made. Undisputedly in the present case an application for correction/ignoring or over looking the misnomer/Inaccurate description was made on the date of the scrutiny and before the list of the validly nominated candidates was made in Form-4 in accordance with Sub-section (8) of Section 36. Exercising the powers under Section 33(4} the Returning Officer could direct correction of the electoral roll or the nomination form etc. or could direct that such inaccurate description or misnomer be ignored or over looked. Before the list is prepared in Form-4, the Returning Officer on being satisfied as to the genuineness of the request is bound and obliged to make necessary correction or alteration in Form-4 and is further obliged to adopt that form and spelling in the list of contesting candidates. The powers of the Registration Officer cannot be compared with the powers of the Returning Officer. The Registration Officer has limited powers but the Returning Officer has very wide powers, he can direct correction of the electoral roll and is also entitled to direct that such misnomer or inaccurate description be ignored.
Once the Returning Officer is satisfied as to the genuineness of the request, he can certainly direct and make necessary correction or alteration in the list in Form-4 and can also direct that the form and spelling furnished by the candidate in writing be included in the list of the contesting candidates.
23. Rule 8 clearly provides that on being satisfied as to the genuineness of the request, the Returning Officer can make the necessary correction or alteration in the list in Form 4 and adopt that form and spelling in the list of contesting candidates. The list of contesting candidates referred to in Sub-section (1) of Section 38 shall be in Form 7-A or Form 7-B as may be appropriate and shall contain the particulars set out therein and shall be prepared in such language or languages as the Election Commission may direct. In the present case, after the application Ex. P-4 and Ex. P-5 were filed before the Returning Officer after appreciating the request and being satisfied as to the genuineness of the request, he directed the O.I.C. to take necessary action. It was further directed by the O.I.C. that while preparing Form 7-A the same be taken into consideration. It would appear from the marginal order that the Returning Officer was satisfied as to the genuineness of the request and it was ordered that while preparing the list of contesting candidates in Form 7-A the submissions made in the application be taken into consideration. Order makes it clear that the request was accepted and it was ordered that the form and spelling be adopted in the list of contesting candidates.
24. The matter does not end here, because according to the petitioner every misnomer cannot be connected under Section 33(4) (proviso) of 1951 Act. Placing reliance upon a judgment of this Court in the matter of Jogaya v. Beti Joga. 1974 MPLJ 802 it was contended that the error can be ignored only when the Inaccurate description mentioned in the electoral roll can be commonly understood to refer to the proper person. In the said matter name of BetiJoga, the contest-Ing candidate was not entered in the electoral roll instead name of Beti Hadma was entered in the electoral roll. It was undisputed before the Court that Beti Hadma was respondent's father and was dead at the time of preparation of the electoral roll. The Returning Officer accepted the nomination form inter alia holding that there was a misnomer and the same could be ignored. The High Court found that the respondent Beti Joga was not commonly known at Beti Hadma. The High Court further found that Beti Joga and Beti Hadma were different persons. The High Court also found that as name of a dead person was entered in the electoral roll, it could not be held that it was a misnomer. The High Court was impressed by the fact that name of the respondent was at all not entered in the electoral roll. The High Court observed that a reading of the proviso will show that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate cannot affect the full operation of the electoral roll 'where the description in regard to the name of the person is such as to be commonly understood.' This Court observed that the question, therefore was whether the description 'Beti Hadma' mentioned tn the electoral roll would be commonly understood to refer to the respondent. After appreciating the factual aspect, the High Court observed that the proviso could not be pressed into service nor be attracted because the respondent's name was entirely missing and his father's name was entered in its place. The factual matrix is little different in the present case. The respondent has clearly stated that she was commonly known as Rajesh Nandini Singh but the name was misprinted as Rajeshwarl Singh. The present is not a case where name of respondent is absolutely missing from the electoral roll. It is not in dispute before me that name of the husband In each of the entry i.e. of 1988 entry and 1993 entry is same. The respondent in her statement has categorically stated that she is the only married wife of Dalveer Singh it is also not in dispute that the petitioner did file two nomination forms in the name of Rajeshwari Singh and other two forms in name of Rajesh Nandini Singh. The petitioner does not say that Rajeshwari Singh and Rajesh Nandini Singh are different person. Their contention is that Rajesh Nandini Singh could not be substituted in place of Rajeshwari Singh. In my opinion by directing that the request be taken up for consideration while preparing Form 7-A the Returning Officer did not substitute a person nor did he direct inclusion of the name of the respondent for the first time in the electoral roll. In fact, the Returning Officer simply found that Rajeshwari Singh was commonly known as Rajesh Nandini Singh and exercising the powers under Sections 33(4), 36 and Rule 8 it ordered that while preparing Form 7-A the request be adhered to. In my opinion the Returning Officer was justified in directing so. In the matter of Jogaya (1974 MPLJ 802) (Supra), the Hon'ble Judge has given instances of inaccurate description where there could be no mistake in understanding a right person. The High Court found that where the name Bhamani Shanker was entered in the roll for Bhawani Shanker and Lajia for Lajja, it was a case of inaccurate description. The High Court further observed that as the respondent's name was entirely missing and his father's name was entered in its place, such an entry cannot get the protection of the proviso to Section 33(4) of the Act.
25. Placing reliance upon a judgment of the Supreme Court in the matter of Samar Singh v. Kedar Nath, AIR 1987 SC 1926, it was contended that if name of candidate and his proposer as entered in nomination paper were same as entered in the electoral roll and there was no variation or difference in two documents, the returning officer had no power to permit correction of any entry either in electoral roll or in nomination pa-per. In the said matter name of the petitioner was printed as Samay Singh S/o S.P. Singh instead of Samar Singh S/o S.P. Singh. The appellant had filed his nomination paper under the name of Samay Singh. His nomination paper was accepted by the Returning Officer and he was allotted symbol of 'Lion' on 30-11-84 and his name was included in the list of contesting candidates showing 'Samay Singh S/o. S. P. Singh. The said appellant moved an application before the Returning Officer for correcting his name in the list of contesting candidates and also for issue of direction for correcting the relevant entry in the Electoral roll. The Returning Officer rejected the petitioner's application by his order dated 1-12-84. The Supreme Court observed that the appellant presented his nomination paper on 27-11-84, on examination the returning officer found that the name in electoral roll number of the appellant and his proposer as entered in the nomination paper were the same as entered in the electoral roll. The returning officer's attention was not drawn to any inaccurate description or printing error with regard to the appellant's name and his proposer in the electoral roll. The said appellant had given a solemn declaration on oath under Clause (d) of Form 2-A. that his name and his father's name as mentioned in the nomination paper was correct. The Supreme Court found that the appellant himself represented to the returning officer that he was 'Samay Singh S/o. S. P. Singh' as mentioned in the electoral roll. The Supreme Court found that in those circumstances the returning officer had no authority in law to permit correction of any entry either in the electoral roll or in the nomination paper.
26. In the matter of Samar Singh, (AIR 1987 SC 1926) (Supra), the Supreme Court observed that the proviso empowers the returning officer to ignore and overlook any misnomer or inaccurate description, clerical technical or printing error with regard to the name of the candidate or his proposer or with regard to place, mentioned in the electoral roll or in the nomination paper. The Supreme Court further observed that once nomination paper was accepted and on scrutiny it was found to be valid and the list of contesting candidates was prepared in accordance with Section 36, the returning officer had no jurisdiction to make any correction therein, as neither the Act nor the Rules confer any such power on him.
27. In the case in hands, the list of the contesting candidates was not made under Section 38. The application for ignoring the misnomer or correction of the same was made on the date of the scrutiny of the nomination form. When an application is moved before publication of list of candidates, the returning officer would have fullest powers under Section 36 of 1951 Act and Rule 8 of 1961 Rules either to correct or ignore any such misnomer, inaccurate description etc. The present is not a case where the nomination form was submitted only in name of Rajeshwari Singh. Undisputedly Ex. D-2 and Ex. D-3 were filed in name of Rajesh Nandini Singh. The returning officer accepted all the four forms in name of Rajeshwari Singh, probably being under the impression that the forms have been submitted by the same person in the same name. When it was brought to his notice vide Annexures-P/4 and P-5, he not only accepted the application but ordered that the prayer be considered while preparing Form 7A. The present is not a case where the respondent had given a Solemn affirmation in name of Rajeshwari Singh. Ex. D-4 shows that the affidavit was submitted in name of Rajesh Nandini Singh, the returning officer, in his hand-writing recorded that the said oath was submitted before him by Smt. Rajesh Nandini Singh. The present is not a case where there was no variation between the entries mentioned in the nomination paper and the electoral roll. Right from submission of the nomination form, the respondent was contending before the returning officer that she was commonly known as Rajesh Nandini Singh. The facts of the case of Samar Singh (Supra) are altogether different.
28. The petitioner Chandra Shekhar Chaturvedi, has clearly stated that he was registered as a voter in constituency No. 83. Though in the cross-examination certain questions were put to him, but from the statement of PW-4 Suiya Pratap Singh it clearly appears that the petitioner Chandra Shekhar was a registered voter of Constituency No. 83. From Ex. P-8 also it clearly appears that the petitioner was a registered voter from the said constituency.
29. In view of the above discussion, it can be held that the petitioner being a registered voter in constituency No. 83 he is entitled to file the present election petition and the election petition at his instance is maintainable. The issue No. 3 is decided in affirmative.
30. Regarding issue No. 1, it is held that the election officer did not commit any illegality in accepting the nomination form of the respondent and acceptance of the said form has not adversly affected the election results. Issue No. 1 is decided in negative.
31. The question now for consideration is whether the respondent violated the provisions of Section 127A of Representation of the People Act. 1951 and if yes, what is the effect.
32. Section 127A provides that no person shall print or publish, or cause to be printed or published, any election pamphlet or poster which does not bear on its face the names and addresses of the printer and the publisher thereof.
33. Section 100 provides the grounds for declaring election to be void :--
(1) Subject to the provisions of Sub-section (2) if the High Court is of opinion-
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Govt. of Union Territories Act, 1963 (20 of 1963); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent oi' a returned candidate or his election agent: or
(c) that any nomination has been improperly rejected: or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the Improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act.
the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied--
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;
(b) ** * *
(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void.
34. According to Section 100(1)(b), election can be set aside if any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent. An election can also be set aside if in the opinion of the High Court, the result of the election in so far as it concerns a returned candidate has been materially affected by the improper acceptance of any nomination, by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under the Act, Even it is proved to the satisfaction of the High Court that a returned candidate has been guilty by an agent, other than his election agent or any corrupt practice then it is to be further proved that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent, that the candidate and his election agent look all reasonable means for preventing the commission of corrupt practices at the election and that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents. Section 127A can be read under Clause iv of Section 100(1)(d). The election petitioner is required to show to the Court that because of the non-compliance with the provisions of the Constitution or of the Act or of the Rules or orders made under the Act, the result of the election, in so far as it concerns a returned candidate, has been materially affected. Unfortunately neither t here is a plea nor any evidence to say rather to suggest that result of the election has been materially affected because of non-compliance with the provisions of this Act specially Section 127A.
35. IfSection 127A is stretched logically then printing of pamphlet sand posters which do not bear on its face the names and addresses of the printer and the publisher thereof may fall in the mischief of clause ii of Section 100(1)(d) that corrupt practice was committed in the interests of the returned candidate by an agent other than his election agent. If breach of Section 127A, is taken to be a corrupt practice then in view of the judgment delivered by the Supreme Court and reported in (1996) 4 JT (SC) 67 : (AIR 1996 SC 1691) and (1996) 5 JT (SC) 643 : (AIR 1996 SC 3350) : (1996) 5 JT (SC) 681, the petition cannot be tried as there is an apparant violation of Rule 94-A and Section 81(3), 83(1)(c) and Section 86 of 1951, Act. Be that as it may. I will consider the evidence relating to the said issue. PW2 Chandra Shekhar has stated in Paragraph 4 that Exs.P-6 and P-7 were published during the election campaign in contravention of provisions of Section 127A of the Act. According to him, names of the printer and publisher were not printed on the said pamphlets/ posters. According to him, he gained knowledge about Exs.P-6 and P-7 during the election campaign. In the cross-examination, Paragraph No. 8, he has stated that Ex. P-6 was hanged like a flag and with help and assistance of one of the worker he could get Ex.P-6. According to him, Ex.P-7 was fixed on a wall by a nail which also he secured with the help and assistance of his co-worker. In para-8, he clearly made a statement that he had no knowledge as to who got Exs.P/6 and P/7 published or exhibited on a wall. According to him, he was informed by the village people that respondent and her husband when came for an election campaign, they got these pamphlets exhibited in the village. According to him, he was Informed by one Jaiswal of the village. When Ex.D-5 was shown to him he has admitted that Exs. P/6 and D-5 were identical but for the fact that in Ex.D-5 name of printer and publisher were mentioned. In para 10 he stated that pamphlets like Exs.P/6 and P-7 were seen by him in many villages. In response to the Court question, he admitted that he did not lodge any report to the police or to the returning officer or the Election Commission that Exs.P-6 and P-7 were published. In para-14 of his statement, he admitted that the facts that Exs.P-6 and P-7 were pasted by the returned candidate and her husband if were missing from the election petition then this was a mistake on his part. He further admitted that he did not make any complaint to the Election Commission or the Returning Officer that respondent and her husband were using pamphlets like Exs.P-6 and Ex. P-7. PW-3 Balram Jaiswal, made a statement that Ex.P-6 and Ex.P-7 were pasted under the directions/ Instructions of the respondent. He stated that Ex.P-6 and Ex.P-7 were supplied by him to the election petitioner. According to him, Exs.P-6 and P-7 were pasted on wall of Sambhoo Jaiswal. He later on stated that Ex. P-6 was hanging on rope and Ex. P-7 was pasted on the wall of house of Sambhoo Jaiswal. When he was further asked, taking somersault he stated that Ex.P-6 and Ex.P-7 were not removed by him nor were supplied by him to the persons of Janta Party. In para 6, he has stated that pamphlets like Ex.P-6 and Ex.P-7 were seen by the Janta Party people before he brought the same to the notice of the said person. According to him when Exs. P-6 and P-7 were collected by Janta Party people he was not present on the spot. From the statement of this witness, it would clearly appear that he has no respect for the truth. Firstly he stated that Exs. P-6 and P-7 were supplied by him to the election campaigner. Later on taking a somersault he started submitting that Exs.P-6 and P-7 were collected by Janta Party people and he was not present on the spot. I am unable to rely upon the statement of PW-3, Balram Jaiswal.
36. Dr. Jai Kumar Jain (PW-5J in paragraph No. 2 has stated that he had seen posters and pamphlets like Ex.P-6 and Ex.P-7 during the election campaign. According to him he had made a complaint to the Election Commission on 8-1-94. At this stage it would be necessary to observe that this complaint was sent on 8-1-94. The elections were held in November, 93. From Dr. Jal Kumar Jain, who knows about the election and its laws, it was not expected that immediately after finding the said pamphlets and posters he would not make a complaint to the Election Commission but make a complaint after everything was over. According to the witness, after sending the complaint Ex.P-9 to the Election Commission, he came to contact the counsel for the present petitioner. The present petition was filed on 13-1-94. It does not satisfy my Judicial conscience that immediately after making the complaint on 8-1-94, this witness came to contact the petitioners' counsel. According to him, he asked the counsel as to whether there was sufficient ground for filing the petition, on this the counsel informed him that if he wanted to file an election petition then some more documents were to be brought. According to the witness, he went back to Kotma where because of ill-health of his wife he was detained and thereafter he gave all the papers to the petitioner. In para-11 of his statement, he has stated that documents Ex.P-6 and Ex.-7 were collected by him and before filing the election petition, he gave the documents to the election petitioner. In paragraph-7 the witness has clearly stated that he brought Ex.P-6 and Ex.P-7. This statement runs contrary to the statement of the election petitioner. According to this witness, he got these pamphlets and posters removed from the wall of the house of Jaiswal. According to him, these were removed after the election was over. On the other hand, according to the petitioner, during the election campaign Ex.P-6 and Ex.P-7 were obtained by him. To this witness also Exs.D-5 and D-6 were shown. He admitted that Exs. D-5 and D-6 to show name of the printer and publisher. According to him. barring the said difference, there was no difference in Ex.P-6 and Ex.D-5 and. Exs.P-7 and P-6. It was suggested to him that Exs.P-6 and P-7 were concocted by them for the election petition. In para-14, he admitted that while making the complaint to the Election Commission, he was in possession of Ex.P-6 and Ex.P-7 but did not mention in the complaint to the Election Commission that he was in possession of Ex.P-6 and Ex.P-7. He made various other statements regarding Ex.P-6 and Ex.P-7., DW-1 Smt. Rajesh Nandini Singh has stated that Ex.D- 5 and Ex.D-6 were got printed during the election campaign. After perusing of Ex.P-6 and Ex.P-7 she stated that such posters and pamphlets were not printed at her Instance. She also stated that during the election campaign, she did not go to village Rausha or Chaka. According to her, she did not meet Balram Jaiswal or Samnu Jaiswal. She stated that Ex.P-6 and Ex.P-7 or other posters were not pasted by her or under her instructions. In paragraph-12, she has stated that Ex.D-6A and Ex.D-7, posters were got printed by the District Congress Committee. She stated that she did not get any posters or pamphlets printed. She further stated that in the said posters Ex.P-7 and Ex.D-6A, the photographs are found. In para-14, she further stated that the photographs shown in Ex.P- and Ex.D-5 are same. She however stated that she did not know as to how Ex.P-6 and Ex.P-7 came into existence. DW-2, Samnu stated on oath that Balram Jaiswal is his son-in-law. In elections of 1993, nobody pasted any posters on his house. In the cross-examination it was not suggested to him that the posters were pasted on his house rather it was suggested to him that as he was in some dispute with his son-in-law, he came to give wrong statements. From the evidence of the above referred witnesses it cannot be held that the poster Ex.P-6 or Ex.P-7 were exhibited or pasted on wall during the election campaign. It also cannot be held that Ex.P-6 and Ex.P-7 came in possession of PW-2 (Election petitioner) during the election campaign because his statements run contrary to the statement of PW-5, Dr. Jai Kumar Jain who stated that Ex.P-6 and Ex.P-7 were obtained by him after the elections were over. The complaint Ex.P-9 which refers to Ex.P-6 and Ex.P-7 cannot be relied upon because the same was sent on 8-1-94. Ex.P-9, in fact appears to have been made and concocted to provide a ground to challenge the election. There are material contradictions in the statement of PW-2 election petitioner, PW-3 Balram Jaiswal and PW-5 Dr. Jai Kumar Jain. I am unable to rely upon to their statements. On the other hand. I would prefer to rely upon the statements of the respondent and her witness Samnu. The fact, that Ex.P-6 and Ex.P-7 were got printed and pasted by the respondent are not to be found in the petition nor the material fact that these were accepted and pasted by her are to be found in Ex.P-9. In absence of the positive evidence, it cannot be held that the respondent committed breach of Section 127A of 1951 Act. In absence of the positive evidence, it cannot be held that the result of the Election has been materially affected because of non-compliance with the provisions of the Con-stitution or this Act or of any Rules or orders made under the Act. The petitioner does not say that as to how the result of the election has been materially affected nor the petitioner or his witnesses in their statements say as to how the result of the election has been materially affected because of the said non-compliance.
37. If breach of Section 127A is taken to be a corrupt practice, then there is no evidence on record that the corrupt practice was committed at the election by the candidate or by his election agent nor it can be held that the petitioner is guilty by an agent. The petitioner was required to prove to the satisfaction of the Court that the respondent has been guilty by an agent. In absence of the positive and material evidence issue No.3 cannot be derided in favour of the petitioner. It is held that the respondent did not violate the provisions of Section 127A of Representation of the People Act, 1951.
38. In view of the findings recorded above, the petitioner is not entitled to succeed, the petition deserves to and is accordingly dismissed. The respondent shall be entitled to her costs. Counsel fee Rs. 5,000/-. Security amount is adjustable towards the cost and the balance be paid by the petitioner.