Pandey, J.
1. This is an appeal under Section 116A of the Representation of the People Act, 1951 (hereinafter called the Act against the order of the Election Tribunal, Chhatarpur, dated 16-7-1958 by which the appellant's election petition under Section 81 of the Act calling in question the election of the respondents 1; and 2 from the Khurai Rural Constituency to the Slate Legislative Assembly was dismissed.
2. The constituency in this case is a double- member constituency, one of the seats being reserved for a member of the Scheduled Castes. The polling took place on 9-3-1957 and the respondents 1 and 2, who secured the largest number of votes, were declared elected to the general and the reserved seat respectively. On 25-4-1957, the appellant, who contested the election for the general seat, filed his election petition alleging that the respondent 1, and others acting for the respondents 1 and 2, had committed a number of corrupt practices detailed in schedules A and B and that the respondents 1 and 2, who suppressed or imperfectly disclosed their election expenses detailed in schedule C, incurred expenditure in excess of the scale prescribed for the election under Section 77(3) of the Act. The appellant prayed that the election of the respondents 1 and 2 might be declared void and that he might be declared as duly elected.
3. The respondents 1 and 2 filed their written statements denying the allegations. It was pleaded that since the details given in schedules A, B and C were vague, indefinite and lacking in particulars, which had to be given under Section 83(1)(b) of the Act, the petition deserved to be rejected summarily. In any event, the allegations lacking in particulars might be ignored and the enquiry restricted to only those allegations which were not wanting in necessary particulars.
4. The respondents 3, 4, 5 and 6, who were the other candidates for the election, remained absent and allowed the trial of the election petition to proceed ex parte against them.
5. Since the appellant claimed that he be declared as duly elected, the respondent No. 1 gave notice of a recrimination under Section 97 of the Act alleging therein that the appellant was convicted of an offence under Section 399 read with Section 120B of the Indian Penal Code and sentenced to rigorous imprisonment for three years and was for that reason disqualified under Section 7(b) of the Act for being chosen as a member of the State Legislative Assembly, It was further alleged that the appellant systematically appealed to the voters to vote for him as lie was a SanaSani Hindu and thereby committed a corrupt practice. The appellant traversed the grounds put forward in the recrimination and stated that he was at the time of his conviction a sitting member of the Legislative Assembly and that he preferred an appeal against his conviction and sentence and, therefore, under Section 8(1)(a) of the Act, the disqualification did not take effect.
6. On 12-8-1957, the respondent 1 raised a preliminary objection that certain corrupt practices disclosed in schedules A and B, were vague, indefinite and lacking in particulars and urged that these might be ignored and not enquired into. The case was fixed for 1-9-1957 for arguments on the preliminary objection and issues, when the appellant applied for an adjournment to enable him 'to file amendment and amplification of the, particulars'. This was not granted and arguments were heard on that day aid on the following day when the appellant submitted 'further and better particulars by way of amplification of the particulars of the petition' covering 12 pages.
It is remarkable that the appellant did not formally apply for leave to amend the petition. Further arguments were heard on the petition on 7-9-1957 when the Election Tribunal took the view that under Section 90(5) of the Act only the particulars of a corrupt practice -alleged in the petition could be amended or amplified and that, where no particulars were given, fresh instances could not be introduced in the guise of particulars. In that view, while some of the particulars were permitted to be introduced, several others were disallowed.
7. Against the order dated 7-9-1957, the appellant filed Miscellaneous Petition No. 195 of 1957 dated 31-1-1958 under Arts. 226 and 227 of the Constitution. This Court dismissed the petition on the ground that the Election Tribunal bad jurisdiction to allow or disallow the amendment and that the discretion exercised in the matter will not be interfered with by means, of a writ. It was also observed that the matter may properly be taken up in appeal: K.C. Sharma v. Election Tribunal, Chhattarpur, 1958 MFC 194: (AIR 1958 Madh-Pra 236).
8. The appellant thereafter moved the Election Tribunal for a review of the order dated 7-9-1957, but the application made for the purpose was dismissed on 19-5-1958 as being out of time and stale.
9. The point has been raised again in grounds 8, 10 and 11 of the appeal. So far as the first two grounds are concerned, the counsel for the petitioner had not, during the trial, pressed the instances of corrupt practice numbered 5, 6 and 7 of schedule A. On the analogy of Section 110 of the Act, however, it was argued before us that there could be no withdrawal of those instances. This provision relates to withdrawal of an election petition, which is not the same thing as withdrawal of instances of a corrupt practice, but even in that case the application for withdrawal may only be refused, if, in the opinion of the Election Tribunal, it has been induced by any bargain or consideration.
No such suspicion attaches here, and, therefore, it was open to the Election Tribunal to allow the appellant not to press one or more instances of corrupt practice, especially when he had not given full particulars of the instances as contemplated by Section 83(1)(b) of the Act. In our opinion, the instances of corrupt practice abandoned in these circumstances before the Tribunal cannot be allowed lo be urged in appeal.
10. In regard to other particulars, the appellant was not ready before the Election Tribunal with the particulars of instances 1 to 4 of schedule B and asked for deletion of instances 12 and- 18 of that schedule. Before us, the appellant did not press- instances 1, 2, 4, 16 to 19 and 21 to 23 of schedule B. Therefore, we are left with instances 2. 3 and 4 of schedule A and instances 3. 6 to 15 of schedule B and the instances of schedule C. As regards items 5, 6 and 7 of schedule A, no particulars were given before the Election Tribunal and the items themselves were not pressed. We have already held that the instances of those items, which were abandoned before the Election Tribunal, cannot be allowed to be urged before us.
This leaves us with items 2, 3 and 4. As regards the instances of item 2, the particulars do not show that Yadnas were performed though it was-alleged that money was paid for their performance to appeal to the religious sentiments of the voters. Those particulars, therefore, do not disclose any corrupt practice as defined in Section 123(3) of the Act and cannot be allowed. As regards items 3 and 4, since no fresh particulars were given, no question of amendment of the particulars relating thereto arises.
11. Corning to schedule B, neither item 3 nor the particulars given subsequently relating thereto, disclosed that the voters wore entertained to induce them to vote or refrain from voting for any particular candidate. These allegations, therefore, do-not amount to a corrupt practice as defined in Section 123(1) of the Act. As regards items 6 and 7, the question is whether the particulars given were sufficient to constitute corrupt practice as defined in Section 123(2) and (4) of the Act. As regards item 8, the question is whether the use of the candidate's own truck or of a truck voluntarily offered by another amounts to hiring or procuring within the meaning of section 123(5) of the Act. Regarding item 9, the particulars do not indicate whether the voters lowhom an appeal was made were of the caste of the returned candidates.
Coming to item 1-3, the question is whether the particulars regarding taking assistance from assistant masters and railway servants is contemplated by section 123(7) of the Act. As regards item 14, the particulars given in paras 1, 4, 5, 7 to 11 and 13 do not relate to any donations to temples and akhadas, which were the only items that were mentioned in the schedule under item 14. The question is whether such particulars, which were not covered by item 14, could be allowed. The particulars given as regards item 11, 12 and 15 were full and the question is whether the discretion in disallowing them was properly exercised.
12. So far as schedule C is concerned, it was, conceded before us that the expenditure in the instances alleged would not, if totalled, exceed the prescribed scale. With these observations, we proceed to consider whether the order of the Election Tribunal disallowing the amendment as regards the particulars of the items, which were properly given, was justified.
13. We agree that, where, in an election petition, a corrupt practice has been alleged, but no paiticulars at all are furnished, the Election Tribunal has, under Section 90 (5) of the Act, power to allow such particulars or instances to be given are showing good cause and in accordance with the law of; procedure : Babulal Sharma v. Brijnarayan Brajesh, AIR 1958 Madh Pra 175 (FB). That being so, the Election Tribunal was not right in taking the view that where no particulars were initially given, fresh instances could not be' introduced at all.
14. As we have shown earlier, the Election Tribunal granted leave to the appellant to give fuller particulars wherever he had given some particulars in his schedules. We have to consider whether, in the instant case, particulars of other corrupt practices should have been refused where no particulars were given in the schedules attached to the petition.
It was not explained why the appellant did not incorporate the particulars in those schedules. It was also not alleged that he came to know of the particulars after he had filed the petition. All that was urged before us was that mere delay could be no ground for not allowing an amendment. Here the respondent 1 had pointedly brought the defect in the petition to the notice of the Election Tribu-nal which fixed the case for arguments on the point on 1st September, 1957. When it became obvious that the defect was serious, the appellant applied on that day for adjournment. That was refused and arguments were heard on that day and the following day.
It was at that stage that the appellant gave the particulars, presumably taking advantage of the shortcomings pointed out in the arguments. As pointed out by us earlier, he did not even make a formal application for amendment thinking that he was entitled as of right to give the particulars. The Election Tribunal took all these facts into consideration and referred to the following observations of the Supreme Court in Harish Ghandra Bajpai v. Trilokisingh, (S) AIR 1957 SC 444 at p. 457 :
'And what is remarkable about this application is that no attempt was made to explain why it was made after such long delay and why the new allegations were not made in the original petition. The position taken up by the respondents was that the amendment only made express what was implicit in para 7(c). The Tribunal was of opinion that notwithstanding all these features, the amendment should be allowed as it was in the interest of the public that purity of election should be maintained. But then public interest equally demand that election disputes should be determined with despatch. That is the reason why a special jurisdiction is created and Tribunals are constituted for the trial of election petitions. Vide the observations of Lord Simonds L. C. in Senanayake v. Navaratne, 1954 AC 640.'
It was in the discretion of the Election Tribunal to allow or not to allow the amendment. That discretion the Election Tribunal had to exercise judicially for ensuring a fair and effective trial of the petition. Having regard to the fact that no particulars, at all were given of certain corrupt practices when, as required by Section 83(1)(b) of the Act, full particulars had to be given, in our view it was, in the circumstances of the case, a sound exercise of the judicial discretion not to give leave to introduce the particulars for the first time at that stage.
15. We have next to consider the grounds of appeal on which the findings recorded by the Election Tribunal have been assailed. The pamphlet Ex. A-1 was filed on 2nd September, 1957 and not along with the petition on 25th April, 1957. It is a cyclostyled document when it is not disputed that respondent 1 could well afford to have it printed if he wished to do so. Indeed, no other pamphlet issued by the respondent 1 was shown to be cyclostyled. The appellant's counsel referred to the evidence of K.C. Sharma (P.W. 1), Phoolsingh (P.W. 6), Narainsingh (P.W. 11), Gokalprasad (P.W. 14), Prem narain (P.W. 15) and Ramashanker (P.W. 16).
The evidence of K. C. Sharrna (P.W. 1) is hearsay on this point. Phoolsingh (P.W. 6) is unable to read and could not say if this pamphlet was distributed. The last four witnesses did support the appellant, but their evidence is not safe for reliance. The respondent 1 filed several suits against Narain-singh (P.W. 11). Gokalprasad (P.W. 14), a brother of a teacher working for long under the appellant in his capacity as President of Khurai Municipal Committee, was himself a rival candidate on behalf if Jan Sangh.
Premnarain (P.W. 15), an ex-head constable and a previous convict under the Prohibition Act, held a licence from the Municipal Committee. Ramashanker (P.W. 16), an uncle of an employee of the appellant, also holds a licence from the Committee. All these witnesses appeared unsummoned and the Election Tribunal was right in taking the view that they were interested and did not for that reason inspire confidence. The evidence given by them was effectively rebutted by Rishab Kumar (R-W. 3), V. Sapre (R.W. 9) and Kamal Kumar (R.W. 11). In view of the evidence, we confirm the Tribunal's findings that the respondent 1 did not issue the pamphlet Ex. A-1 and did not also get it distributed,
16. In view of the evidence referred to in paragraphs 14 to 18 of the impugned order, we are inclined to agree with the Tribunal that the statements, in the pamphlet are substantially true. The pamphlet also refers only to political and public activities of the petitioner and does not attack his personal character or conduct. That being so, subsection (4) of section 123 of the Act is not attracted.
17. In regard to the publication of a false statement relating to the appellant's arrest, he examined Sumersingh (P.W. 3) and Laxminarayan (P.W. 4), an unsummoned witness, to show that, on the polling day, Dr. Babulal (R.W. 2) and Sunderlal (R.W. 5) stated that the appellant was arrested and no useful purpose would be served by voting for him. At one stage, Laxminarayan (P.W. 4) stated that the two persons merely disclosed that the appellant was convicted in a dacoity case.
Apart from this divergence, the witnesses were merely on-lookers and the persons, who were said to have been addressed, were not examined. The respondent's witnesses, Dr. Babulal (R.W. 2) and Sunderlal (R.W. 5) denied the acts attributed to them. Also, while Dr. Babulal (R.W. 2) stated that ho was inside the booth as a polling agent almost throughout that day, Sunderlal (R.W. 5) said that he did not work for the respondent 1. The Tribunal distrusted the two witnesses examined by the appellant on this point and wo have no good reason for taking a different view. Accordingly, we confirm the findings on issues 2(a) and (b). In view of the findings, issue No. 2(c) does not arise.
18. Before us, grounds Nos. 5(a) and 5(c) were not pressed. As we pointed out elsewhere, the appellant conceded that the instances of expenditure disclosed in schedule C would not by themselves show that the prescribed scale was exceeded. That being so, it is unnecessary to enquire whether the expenses were in fact incurred. In Misc. Petn. No. 195 of 1957 : (AIR 1958 Madh Pra 236), arising out of the case, this Court observed ;
'We cannot leave this case without pointing out that in schedule attempt has been made to use the sixth sub-section of section 123 of the Representation of the People Act, 1951, for a purpose for which it is not meant. The words of that sub-section are :
'The incurring or authorising of expenditure in contravention of Section 77'.
This does not mean that omissions in the accounts can be pointed out and the Election Tribunal is made to embark upon an enquiry as to what was actually spent or not. The practice of the account is really a matter for the Election Commission, though suppression of items of expenditure may result in the exceeding of the prescribed maximum. Where instances are cited to show that the prescribed maximum has been exceeded, there may be a case under Sub-section (3) of Section 77 of the Act, but the words the incurring or authorising of expenditure' do not lead to the application of Subsection (2) or Sub-section. (1) of Section 77 in the context of an election petition. No doubt, the accounts have to be corrected under Sub-section (1) of Section 77, but the incurring or authorising of expenditure in contravention of the rules has to be shown and not merely the making of an allegation that the accounts were not correctly maintained. The learned Tribunal has taken a similar view of the matter and we find ourselves in full concurrence with it.'
This disposes of grounds 5, 6 and 7 of the appeal.
19. So far as ground No. 8 is concerned, it relates to instance 6 of schedule A, which was given up. However, the donation of Rs. 25,000/- made by the respondent 1 to the Congress Fund On 13 January, 1957 cannot, in our opinion, be regarded as an election expense. This is even apart from the consideration that the donation was made prior to [the. date of publication of the notification calling the election. Also, since the donation was made to the party fund at Delhi it would not be regarded as one made with the object, directly or indirectly, of inducing any elector to vote or refrain from voting at the election. In our view, therefore, there is no substance in the contention.
20. The Election Tribunal has held that the appellant was disqualified under section 7(b) of the Act because on 7th July, 1956 he was admittedly convicted of an offence under Section 399 read with Section 120B of the Indian Penal Code and sentenced to rigorous imprisonment for three years. It is clear from section 8(1)(a) of the Act that the disqualification does not take effect against a sitting member of the Legislative Assembly of a State as long as his appeal or revision against his conviction or sentence is pending, if such appeal or revision if filed within three months from the date of such disqualification. It is not disputed that the appellant had preferred an appeal against his conviction and sentence within three months of 7th July, 1956. If then the appellant was a sitting member of the Legislative Assembly on 7 July, 1956, the disqualification remained ineffective, because he was ultimately acquitted on 14 August, 1958.
On the other hand, if he was not a sitting member, section 8(1)(a) ibid would not be attracted and the operation of the disqualification would not be suspended. The Election Tribunal has observed that the saving referred to above did not apply to the present case. It is not clear whether that observation was made because it was found that the appellant was not a sitting member of the State Legislative Assembly at the relevant time. Having regard to the view that we have taken of this appeal on other grounds, we do not consider It necessary further to dwell on this point.
21. Only one 'other point remains to be considered. The appellant has challenged the Election Tribunal's finding that the pamphlet Ex. N.A.-l, admittedly issued with his knowledge and concurrence, fell within the mischief of Section 123(3) of the Act. We think that an appeal to vote for the appellant to protect the mother-cow is not an appeal on the ground of religion: Lachhiram v. Jamuna Prasad, 9 Ele. LR 149. We are also of opinion that an appeal made to religious-minded people generally, and not merely to the followers of a particular religion, to vote for the appellant to protect their religion is not an appeal to vote on the ground of religion. In our view, the pamphlet Ex. N. A-1 is not within the mischief of Section 123(3) of the Act.
Even the Tribunal has not recorded a clear finding on the point and observed that a sporadic or solitary instance of appeal is not enough when the provision requires a systematic appeal. We may add that even if we were to take a different view on this particular point, it would be inconsequential.
22. In the result, the appeal fails and is dismissed with costs. Hearing fee Rs. 250/-, whichshall be paid out of the security amount. The remaining amount of security deposit shall be refunded to the appellant.