LexBANSILAL KOHISTANI versus RISHI KUMAR KAUSHAL
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146 A B c D G H BANSILAL KOHISTANI v. RISW KUMAR KAUSHAL March 23, 1971 (J. M. SHELAT AND C. A VAIDIALINGAM, JJ.j Jammu & Kashmir Representation of the People Act, 1951-Cui-res~ pondr to s. 123(4) of the Representation of the People Act, 1951-Corrupt Practir:t-Statement as to character and conduct of candidate, what consti .. tuteJ-Onw1 to prove that statement is false is on petitioner. Jn the General Election held in 1967 the appellant and the respondent had filed their nomination papers for election to the Jammu and Kashmir Legislative Assembly from the Reasi Assembly Constituency. The appel- lant was declared duly elected. The respondent filed an election petition cballena;iog the election of the appellant on the ground of corrupt practices commiucd by the appellant his agents and other persons with hi• consent. The High Court held the election to be void on the sole ground that the matters mentioned in paragraphs 16, 17 and 20 of the booklet Ex. P.W. 1 /II constituted corrupt practices under s. 132(4) of the Jammu & Kashmir Represeotalion of the People Act, 1957 corresponding to s. 123(4) of the Representation of the People Act, 1951. In regard to certain other pas- sages in tho booklet namely paragraphs 7, 8, 10, 18 and 19 of Ex. P. W. 1 /JI the High Court held that the allegations therein were not proved to he false and therefore fell outside the ambit of s. 132(4) of the Jammu & Kashmir AcL Appeal against the High Court's judgment was filed in this Court by the appellant. In regard to the allegations in paragraphs 16, 17 and 20 of the offending booklet the appellant urged that the facts mention- ed thereia did not relate to the personal character and conduct of the appellant The respondent sought and obtained leave of tho Court to question the finding of the High Court in regard to paragraph• 7, 8, 10, 18 and 19 of the booklet. HELD: (i) In order to constitute corrupt practice under '· 123(4) of the Indian Act and s. 132(4) of the Jammu & Kashmir Act the false state- ment should have been in relation to the personal character of the candi- date. If a false statement is made with regard to the public or political character of the candidate, it would not constitute a corrupt practice. even if it is likely to prejudice the prospects of the candidate's election. Circuta .. tion of false statement about the private or personal character of the candidate during the period preceding the election is likely to 'Work against the freedom of election itself, inasmuch as the effect created by false ~tatement cannot be met by denial in proper time and so the consti· tuency has to be protected against the circulation of such false ~tate1nent-:; which are likely to affect the voting of the electors. If a statement of fact affects the man beneath the politician it touches the private character : if it afiecM the politician it does not touch his private character. St·rih~ alk>wancc will have to be made in respect of statements made in election meetings as the atmosphere is usually surcharged by partisan feelings and emotions. Allegations of depravity or immorality or affecting the 1noral or n1ental qualities of a person are statements relating to the personal character or conduct of a person. Attributing acts of violence to a cand;M d~te- even if such acts are done during his political career, is a statement re!at!ng to the personal character and conduct. If the conditions of -s. 121.(4) are satisfied it is irrelevant to inquire whether the statetnent has been n1:ide as a counter blast to another statement issued by the opponent. BANSI LAL v. RISHI KUMAR (Vatdialingam, J.) 147 The staiement must be one reasonably calculated to prejudice the prospect• A of the candidate's election. The initial onus establishing the circumstances mentioned in s. 123(4) is on the election petitioner and when once he dis- charges that onus, the burden shifts to the candidate making a false state- ment of fact to show what his belief was. [156G-157D] Case-law referred to. , (ii) There were no statements of fact in paragraphs I 7 and 20 of lhe Ex. P. W. I /II in relation to the personal character or conduct of the res- pondent. There was no allegation in paragraph I 6 that the respondent "as an associate of drunkards. The averment in the said paragraph that •ome of the companions of the respondent on whose political support the respondent relied were found drinking from morning til
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