as to who commits them. The first class consists of corrupt practices committed by the candidate or his election agent or any other person with the consent of the candidate or his election agent. These, if established, avoid the election without any further condition being fulfilled. Then there is the corrupt practice committed by an agent other than an election agent. Here an additional fact has to be proved that the result of the election was materially affected. We may attempt to put the same matter in easily understandable language. The petitioner may prove a corrupt practice by the candidate himself or his election agent, or someone with the consent of the candidate or his election agent, in which case he need not establish what the result of the election would have been without the corrupt practice. The expression "Any other person" in this part will include an agent other than an election agent. This is clear from a special provision later in the section about an agent other than an election agent." Page 7 of 13 http://JUDIS.NIC.IN SUPREME COURT OF INDIA With so much statement of law, we now proceed to deal with each of the three publications. Re: Daily Sanchar dated 31.1.1995 Ext. ‘A’:- Vide para 9 of election petition, the respondent has averred that the appellant and with his consent his agents and workers have got published in the local newspapers, having circulation in Latur constituency i.e. Daily Sanchar a special article of Raja Mane, a report dated 31.1.95. The respondent has not named the alleged agents and workers where the local newspaper carrying the impugned publication is said to have been distributed. Names of even a few persons by way of illustration to whom the newspaper might have been delivered are not given. The averments made in para 9 of the election petition have been verified as " based on information received by me from the persons and newspapers mentioned in the said paras which I believe to be true". Para 9 does not mention name of any person; only the name of newspaper is given. In the affidavit filed in support of the petition, vide para 2 the said article has been stated to have been contributed by Raja Mane who is a special reporter for Latur district. Thus, so far as, the contents of the election petition, verification thereon and the supporting affidavit are concerned, the only person who would speak in support of the averments is indicated to be Raja Mane and none else. Needless to say, the averments in this regard are not claimed by the respondent to be based on his personal knowledge. Raja Mane has appeared in the witness box as PW 2. In the examination-in-chief itself he has stated that the article was his own creation based on the discussions which were going on in the constituency about the word ‘MAMULI’. He has further stated - "the very object in writing this article was that I felt that the campaign in elections should not be on the basis of communal footing and the constituency and the voters should not adopt such culture". Raja Mane was neither an election agent nor an agent of the respondent. He was "any other person" a charge of corrupt practice by reference to sub section (4) of Section 123 of the RPA cannot be said to have been brought home to the respondent unless it was proved that the said publication was with the consent of the candidate i.e. the appellant or his election agent. There is no evidence adduced in this regard. Thus the appellant cannot be connected with the publication in Daily Sanchar dated 31.1.1995. Shri V.A. Mohta, the learned senior counsel for the appellant has submitted that the contents of the publication Ext. ‘A’ do not even prima-facie make out a case of corrupt practice. There is no reference to either of the two candidates in the publication. There is no ‘appeal’ as such to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language as such.On the contrary, the article condemned the activity or tendency on the part of any person to use caste/community formulas/equations in the election. The charge of corrupt practice against the appellant in this regard cannot be said to have been made out even prima facie. Re: Daily Jan Jagar dated 25.1.1995 Ext. ‘B’ :- Vide Page 8 of 13 http://JUDIS.NIC.IN SUPREME COURT OF INDIA para 10 of the election petition Prof. Mohan Kamble, the editor of Daily Jan Jagar has been alleged to be an "active canvasser" of appellant "during election process". It is also alleged that " the said publication by Mr. Mohan Kamble is with the consent of the respondent (i.e. the appellant before us) for the furtherance of his election prospect and for prejudicially affecting the election of the petitioner (i.e. the respondent before us) ." Prof. Mohan Kamble was not an election agent of the appellant. An inference as to Prof. Mohan Kamble being agent of the appellant is supposed to be drawn from the allegation that he was an active canvasser of the appellant during election process. The averment so made in the election petition is verified " on information received by me from the persons and newspapers mentioned in the said paras" and believed to be true. Vide para 3 of the affidavit filed in support of the election petition, it is again stated that the publisher was "active canvasser of respondent during election campaign" and that "the said publication by Mr. Mohan Kamble is with the consent of the respondent for furtherance of his election prospect and for prejudicially affecting the election of me". The respondent does not claim the averment made in this regard to be based on his personal knowledge. The pleadings, the verification and the affidavit give an indication only of Prof. Mohan Kamble being the person who would substantiate the averments made in the petition. Prof. Mohan Kamble has not been examined in the court. There is no other evidence, muchless satisfactory evidence, available on record to hold that Prof. Mohan Kamble was an active canvasser of the appellant as alleged in the petition. Vide para 11 of the election petition, it is alleged that after the election a public meeting was addressed by the respondent on 20.2.1995 at Town Hall Latur. From what the appellant spoke at the public meeting some link between the appellant and the two reportings Ext.‘A’ and Ext.‘B’ was sought to be established. The petition itself alleges the proceedings of the meeting having been video recorded on a cassette by Madhav Pachare. The said video recording has not been produced in the court. When the best evidence available in respect of the issue has been withheld, an adverse inference has to be drawn and the issue cannot be held to have been proved. In Manohar Joshi vs. Nitin Bhaurao Patil and another (1996) 1 SCC 169, this court noticed the distinction between clause (b) of sub-section (1) of sub -clause (ii) of clause (d) of sub section (1) of Section 100 of the RPA and stated that under the former provision the commission of any corrupt practice by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent by itself is sufficient to declare the election to be void; while under the later provision the commission of any corrupt practice in the interests of the returned candidate by an agent other than his election agent (without the further requirement of the ingredient of consent of a returned candidate or his election agent) is a ground for declaring the election to be void only when it is further pleaded and proved that the result of the election insofar as it concerns a returned candidate has been materially affected. It was further held:- Page 9 of 13 http://JUDIS.NIC.IN SUPREME COURT OF INDIA "Even if the acknowledged leaders of a party have committed any corrupt practice which results in benefit to the returned candidate then on proof of the benefit having materially affected the election result in favour of the candidate, his election would be set aside on the ground under Section 100(1)(d)(ii)of the R.P.Act. There is thus no occasion to read into the ground in Section 100 (1)(b) or the definition of "corrupt practice" the implied consent of the candidate for any act done by a leader of that party to dispense with a clear pleading and proof of the candidate’s or his election agent’s consent as a constituent part of the corrupt practice for the ground under Section 100 (1)(b) of the R.P. Act." "Whenever the requirement is of consent, it must be free consent given by the giver of the consent, of his own volition. Ordinarily, it also implies a subservient role of the person to whom consent is given and the authority of the giver of the consent to control the actions of the agent. It is difficult to ascribe to an acknowledged leader of the party a role subservient to the candidate set up by that party inasmuch as the candidate is ordinarily in no position to control the actions of his leader. However, if even without giving his consent, the candidate has received benefit from the leader’s act in a manner which materially affects his election favourably, on pleading and proof of such material effect on the election, the candidate’s election is liable to be set aside on the ground under Section 100 (1)(d)(ii) unless, as provided in sub-section (2) of Section 100 he further discharges the onus placed upon him that in spite of his opposition and taking due precautions that act had been committed for which he cannot be responsible." The court observed that in the of pleadings it would not suffice to merely repeat the language of the statutory provision in the pleadings; material facts have to be pleaded. General averments suffering from deficiency of requisite pleading of all the constituent parts of the corrupt practice would not constitute a pleading of the full cause of action and shall have to be ignored and struck out in accordance with order 6 rule 16 of the CPC. In Prof. Ramchandra G. Kapse Vs. Haribansh Ramakbal Singh - (1996) 1 SCC 206 a leader of the political party to which the respondent returned candidate belonged addressed a meeting during the election in which the said leader made some statements on ground of religion amounting to corrupt practice under Sections 123(3) and (3A) of RPA. The returned candidate was alleged to be present at the time of speech by the said leader and he had also invited and welcomed the political leader at the meeting. It was held that an inference as to implied consent of the returned candidate to the contents of the speech by the leader of the party could not be drawn. In Chandrakanta Goyal Vs. Sohan Singh Jodh Singh Kohli - (1996) 1 SCC 378 it was held that the leader of the political party to which the candidate belongs was not an election agent of the candidate. Implied consent of the candidate to the speeches made by such leader could not be inferred. The factum of consent of the candidate or his election agent had to be specifically pleaded and proved. So is the view taken in Moreshwar Save Vs. Dwarkadas Yashwantrao Pathrikar - (1996) 1 SCC 394 and Ramakant Mayekar Vs. Celine D’silva - (1996) 1 SCC 399. In Page 10 of 13 http://JUDIS.NIC.IN SUPREME COURT OF INDIA Charan Lal Sahu Vs. Giani Jail Singh - 1984 (1) SCC 390 the Constitution Bench has drawn a distinction between the concepts of ‘connivance’ and ‘consent’. The two cannot be equated. It has been held that connivance may in certain situations amount to consent but consent implies that parties are ad idem. In the case at hand, there are neither facts alleged nor any evidence adduced wherefrom an inference as to agency of Mohan Kamble or his having acted with the consent of appellant could be drawn. Section 100 (1) (b) is not therefore attracted. There are no averments nor evidence attracting applicability of Section 100 (1)(d)(ii) and to hold the corrupt practice having been committed in the interest of the returned candidate and consequent thereupon the result of the election having been materially affected. The up-shot of the abovesaid infirmities in the pleadings and the evidence is that the charge of corrupt practice by reference to the reporting in Daily Jan Jagar dated 25.1.1995 Ext.‘B’ can also not be said to have been proved against the appellant as required by law. Re: Reporting in Weekly ‘LAWALAVI’ dated 5.2.1995 Ext.‘C’:- Dr. A.M. Singhvi, the learned senior counsel for the respondent assisted by Shri A.M. Khanwilkar advocate has during the course of hearing heavily laid emphasis on the findings recorded by the learned designated Election Judge as regards the corrupt practice committed by the appellant referable to publication Ext. ‘C’ and submitted that even if the alleged corrupt practices referable to two documents Ext. ‘A’ and Ext ‘B’ were not proved, the charge of corrupt practice referable to publication Ext. ‘C’ was certainly made out beyond any shadow of doubt against the appellant and all the ingredients contemplated by sub sections (3A) and (4) of Section 123 of RPA were also made out. Dr. Singhvi submitted that very title of the article was - "unhuman attack on muslims". The contents suggested old aged and helpless members of the muslim family having been brutally attacked. The modesty of female members of a muslim family was alleged to have been violated. Such allegations were aimed at promoting feelings of enmity or hatred against the respondent (who is a non-muslim) in the minds of muslim population of voters. The preparators of the criminal assault were referred to as the father of the respondent and his relations. Thus, the publication was aimed at prejudicially affecting the election of the respondent. The contents were partly false as also highly exaggerated. The incident was of December, 1994 published in the issue dated 5.2.1995 of Weekly ‘LAWALAVI’ and widely circulated soon after publication. The date of publication strategically preceded the date of polling i.e. 9.2.1995 which was just three days hence. Ample evidence has been adduced proving the factum of publication and circulation of the weekly newspaper in the Latur constituency. Thus, charge of corrupt practice atleast by reference to Ext.‘C’ was undoubtedly brought home to the appellant. The respondent’s case as regards Ext.‘C’ is set out in para 12 of the election petition. The verification states the contents of para 12 were based on "information received" by the appellant from the persons and newspapers mentioned therein. The only name mentioned in this para 12 is of Prof. M.B. Pathan and the newspaper mentioned is obviously ‘LAWALAVI’. In the affidavit filed in support of the petition, vide para 5, it is stated that Prof. M.B. Page 11 of 13 http://JUDIS.NIC.IN SUPREME COURT OF INDIA Pathan, editor of weekly ‘LAWALAVI’ was an active worker, during the election campaign, and supporter of the appellant. The oral evidence adduced in this regard consists of the statements of the respondent himself (PW1) and Mahboob Khan Pathan (PW 3). In rebuttal, there is the testimony of the appellant Pradeep Patil (DW 2) and Jagdish Suryavanshi, a legal practioner (DW 4). As already stated, the respondent Vilasrao Deshmukh has not claimed any personal knowledge about the publication Ext.‘C’ though he did state that the contents were false, highly exaggerated and motivated with the idea of assassinating his character. He also stated that M.B. Pathan was an active campaigner for the appellant though he has not given any particulars or such facts based whereon the court could draw an inference that M.B. Pathan was an active campaigner for the appellant. Mahboob Khan (PW 3) stated that he was a professor and also proprietor and editor of Weekly ‘LAWALAVI’. As to the source of information by which he prepared the article, he has stated that he had visited the office of Janta Dal where the officers of the Janta Dal were discussing the matter. He heard the story and prepared his notes. On reaching home he put down the story in a narrative form. He also stated that the contents of his writing were true and correct. He was specifically asked if he had obtained anybody’s consent for the publication ? His reply was that the question did not arise "because it was already discussed with the candidate and other workers". In the later part of cross-examination, the witness stated that he was not sure if the contents of his writing published on 5.2.1995 in Weekly ‘LAWALAVI’ were the same facts as were told to him by Elahi Pasha Bagwan. Obviously, this part of the statement is false in the light of the contents of the news item Ext.‘C’ which itself stated that the reporting was based on the information collected by personally meeting the Bagwan family. Pradeep Patil (DW 2) is himself a journalist and editor of a newspaper "Jan Morcha". He had accompanied M.B. Pathan when the latter was collecting information about the incident. The inference which flows from the testimony of this witness is that M.B. Pathan had taken care to ascertain the correctness of the facts narrated in the news item and then only he had made the reporting. A criminal complaint appears to have been filed in the court relating to the incident referred to in the news item Ext.‘C’. The counsel for the complainant was .pl80 the witness Jagdish Suryavanshi (DW 4). He has stated that what was published in the newspaper was similar to the facts stated in the complaint which was filed by Elahi Pasha through this witness. It is clear from the evaluation of the evidence adduced by the parties that the contents of the news item were substantially correct. They were based on the information collected by M.B. Pathan from the various witnesses specially members of Bagwan family. The version of the witness M.B. Pathan that the reporting was based on the information gathered from the talks which were going on in the office of Janta Dal whereat the appellant was also present does not appear to be correct. Such evidence is also liable to the excluded from consideration because such Page 12 of 13 http://JUDIS.NIC.IN SUPREME COURT OF INDIA is not the case set out in the election petition. The incident had formed subject matter of a criminal prosecution. The complainant had set out his version in the criminal complaint filed before a criminal court and the contents of the news item were substantially the same as set out in the criminal complaint. Neither the respondent has stated in his deposition nor was it suggested to the appellant during his cross-examination that the contents of the publication were false and believed to be false or not believed to be true by the appellant. The ingredients of sub section (4) of Section 123 of the RPA were therefore not satisfied. Though truth is no .pa defence under sub-section (3-A) of Section 123 if the impugned activity has the requisite consequence as its result, but Prof. M.B. Pathan is not proved to have made publication with the consent of the appellant or his election agent. On the material available on the record, an inference as to the publication having been made with the consent of the appellant cannot at all be drawn merely because Mahboob Khan Pathan has been alleged to be canvasser of the appellant. As we have already pointed out, from the statement of Mahboob Khan Pathan (PW 3) himself, it is clear that he as journalist and owner of a newspaper, was, of his own, collecting information relating to the incident covered by Ext.‘C’. Having collected the facts, also having verified the correctness thereof, he of his own wrote out the facts collected in a narrative form so as to give it the shape of newsreport and then published the same in his newspaper. The publication was neither sponsored by nor made with the express consent of the appellant. There are no facts and circumstances brought on record to draw an inference as to existence of even implied consent of the appellant in the publication. No evidence has been adduced to prove how many copies of ‘LAWALAVI’ and on which date to whom and by whom were distributed. A careful appraisal of the evidence shows that the respondent has failed to establish the charge of corrupt .pa practice against the appellant. The judgment has proceeded more on "assumptions" and "surmises" than on any established facts. For the foregoing reasons we are of the opinion that the High Court was not right in holding the issues numbers 6 to 15 proved. The High Court was also not right in holding that the petition did not suffer from the infirmity of noncompliance with Rule 94 A read with Form 25 of the Conduct of Election Rules. In fact, a substantial part of the allegations made in the election petition could not and should not have been put to trial at all on account of such non-compliance. The findings of the High Court on all the issues i.e. issue no. 3 and issues numbers 6 to 15 being erroneous are hereby set aside. The appeal is allowed. The election petition filed by the respondent is directed to be dismissed with costs throughout. The costs incurred in this court are quantified at Rs.10,000/-. Page 13 of 13