ASHOK DULICHAND versus MADAHAVLAL DUBE & ANOTHER

Citation: [1976] 1 S.C.R. 246 · Decided: 05-08-1975 · Supreme Court of India · Bench: HANS RAJ KHANNA · Disposal: Dismissed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

Z46 
ASHOK DULICHAND 
v. 
MADAHA VLAL DUBE & ANOTHER 
August 5, 1975 
(H. R. KHANNA, M. H. BEG, A. C. GUPTA, JJ.] 
Rcpresenta.tion of People Act, 1951-Section 123(4)--Statement relating to 
personal character or conduct-65(a) of Evidence Act-Secondary evidenr:e-
Photostat copy. 
A 
The election for Pandhurna Constituency for the 11.P. Legislative Assembly 
took place in l\.1arch, 1970. There were 6 candidates who contested the electionr 
The main contest waS between respondents nos. 1 and 2. 
Respondent no. 1 was. 
declared elected. The appellant, a voter, filed an Elect!.on Petition challenging 
the election on the grounds that respondent no. 1 published and circulated a 
C 
leaflet containing defamatory and false averments against respondent no. 1 and 
it was calculated to prejudice the election prospects of respondent no. 2. 
The 
leaflet it \vas alleged contained the statement of fact about the personal charac-
ter or conduct of respondent no. 2. 
Tn the leaflet it was mentioned that respon-
dent no. 2 committed rape and he was carrying on \Vith another woman. The 
·activ~ties of respondent no. 2 were stated to ·have driven his wife into insanity. 
Reference \Vas also made to some other shady and unethical activities. 
Before the High Court the appellant wanted to file a photostat copy of the 
manuscript of the leaflet \Vhich according to the appellant was written by res-
pondent no. I. 
The High Court did not admit the aforesaid photostat copy in 
evidence on the grOUJJ.d that there was no sufficient reason for allow:ng the appel-
lant to lead secondary evidence. The High Court also held that though the mate-
rial contained in the leaflet related to the personal character and conduct of res-
pondent no. 2, the appellant failed to prove that its contents wen~ false to the 
knowledge of respondent no. 1, and he did not believe them to be true and that, 
therefore, the corrupt practice defined in section 123 ( 4) of the Representation of 
the People Act was not proved. 
While dis1nissing the appeal this Court held : 
Under secti.on 65(a) of the Indian Evidence Act, secondary evidence may be 
given of the existence, condition or contents of a document when the original is 
shown or appears to be in the possession or power of the person against whom 
the document is ·sought to be proved or when a person refuses to produce it. 
D 
E 
There \\'as no affidavit that the ori~inal document was in possession of respon-
F 
dent no. 1. The photostat copy appeared· to the High Court to be not above sus-
picion. In view of all the circumstances, the High Court rightly came to the 
conclusion that no foundation was 1aid by the appellant for leading secondary 
evidence in the shape of _photostat copy. There is no evidence on record to show 
that the contents of the leaflet were false. T·he respondent ne. 2 was not examined 
as a witness. 
No other evidence was also led of any person who knew about 
the character or conduct of respondent no. 2 to show that the statements con-
ta:.ned in the leaflet in question were false. 
Apart from the other requirements, 
it is of the essence of section 123(4) of the Representation of the People Act, 
G 
19-51 that the impugned statement of fact in relation to the personal character 
or conduct of a Candidate which is alleged to have been published should be 
false. 
[249D, F-250D] 
Cl\IL APPELLATE JURI'SDICTION: Civil Appeal No. 
1327 of 
1973. 
From the judgment and order dated the 21st July, 1973 of the 
H 
Madhya Pradesh High Court in Election Petition No. 36 of 1972 
N. lvl. Ghatate and S. Baldkrishnan, for the appellant. 
• 
• 
A 
B 
c 
D 
E 
F 
G 
H 
ASHOK v. MADAHAVLAL (Khanna,!.) 
247 
S. S. Khanduja, for respondent No. 1. 
The Judgment of the Court was delivered by 
KHANNA, J .-This appeal is directed 
against the 
judgment of 
Madhya Pradesh High Court whereby that court dismissed the el~c­
tion petition filed by the pelltioner-appellant to challenge the e_lection 
of respondent No. 1 to Madhya Pradesh Legislative Assembly from 
p,, ndhurna constituency in Chhindwara district. 
The election for Pandhurna constituency took place on March 8, 
i 972. 
There were six capdidates who contested the election. 
The 
main contest was, however, between Madahav!al Dube respondent 
No. 1 and Dr. Ratanchand Mangalchand Sanghvi respondent No. 2. 
Respondent No. 1 was declared elected. 
The appellant, who was an 
elector in the above mentioned constituency, filed election petition to· 
challenge the

Excerpt shown. Read the full judgment & AI analysis in Lexace.