Harisingh Pratapsingh Chawda Vs.
Popatlal Mulshanker Joshi & Ors [1975] INSC 225 (19 September 1975)
ALAGIRISWAMI, A.
ALAGIRISWAMI, A.
GOSWAMI, P.K.
UNTWALIA, N.L.
CITATION: 1976 AIR 271 1976 SCR (1) 897 1976
SCC (3) 275
CITATOR INFO:
RF 1978 SC1162 (5)
ACT:
Reprentation of the people Act-S. 123(1).
Bribery-Gift or inducement to cause defection whether bribery-The voters must
know about the gift and inducement-Burden of proof in a case of bribery-Oath
against oath whether sufficient.
HEADNOTE:
The first respondent, a candidate of the
ruling Congress was elected to the Lok Sabha from Banaskantha constituency in
Gujarat, defeating his rival candidate of Organisation Congress. The appellant
a voter in the constituency belonging to the Organisation Congress filed an
election petition challenging the validity of election of respondent No. 1 on
various grounds. The only ground surviving now is the allegation that
respondent No. 1 or his agents or other persons with his consent made a gift or
promise of gratification to the petitioner with the object of directly or
indirectly inducing the petitioner to vote for respondent No 1 or to refrain
from voting for respondent No. 2. The allegation is that the first respondent's
agent Maulvi and the respondent's son Bipin with the consent of the first
respondent made a gift of Rs. 10,000/- and promised to secure a party ticket
for the appellant and to construct a hostel for the Kshatriya students of the
Bansaskantha district. A specific allegation was made that the first respondent
wanted the appellant to vote for him.
It was also alleged that the first respondent
asked the appellant to convey to Madhusudan Sinhji, another voter an offer of a
party ticket for the Legislative Assembly election, and to pay to him also a
sum of Rs. 10,000/- The High Court after considering the evidence held that
Bipin handed over Rs. 10,000/- to the appellant to bring about the appellant's
defection from the Organisation Congress. The High Court took the view that the
object of the gift was to bring about the appellant's defection from the
Organisation Congress and not to induce directly or indirectly any voters to
cast their votes for the ruling Congress candidate or to refrain from voting in
favour of the second respondent. The High Court held that the payment of Rs.
10,000/- and holding out inducement to build the hostel for Kshatriya students
does not amount to any offence under the election law.
On an appeal, the appellant contended: (i)
that the first respondent or his agent or his son with his consent induced the
appellant and Madhusudan Sinhji to vote for respondent No. 1 and to refrain
from voting for respondent No. 2.
(ii) that the whole purpose of the defection
was that the appellant and Madhusudan Sinhji should canvass votes for
respondent No. 1. particularly, from the Kshatriya voters on the inducement of
building hostel for the Kshatriya students.
(iii) that the decision of this Court in the
case of Kalia Singh v. Gendalal requires to be reconsidered.
(iv) that there was a specific request by
respondent No. 1 to the appellant to vote for him in exchange for the gift and
inducement.
Dismissing the appeal, ^
HELD: (1) We are in entire agreement with the
finding of the High Court as regards the payment of Rs. 10,000/- to the appellant
and also the offer to build hostel for Kshatriya students. [900-H] 898 (2) The
payment of Rs. 10,000/- to the appellant was with a view to induce him to
defect from Organisation Congress to the ruling Congress. It may carry with it
the implication that he was expected to use his influence with the voters to
vote for the candidate set up by the ruling Congress. [901-B-C] (3) The
decision of this Court in the case of Kalia Singh v. Genda Lal approved. The
said decision does not require any re-consideration. The expression
"directly or indirectly" is intended to cover situations where
payment to a husband, wife son or father is intended to induce the wife,
husband, father or son to vote for the bribe giver, that would be indirect
inducement. Otherwise it would be easy for the bribe given to say that he did
not bribe the voter himself. This provision was not intended to cover a case
where money is paid to a certain person in order to make him induce another
person to vote for the person who paid him the money would be obvious by
looking at the converse case. When a candidate or anybody on his behalf pays
any gratification to a person in order that the payment made to him may induce
the voter to vote for the bribe giver, it is bribery. But where the gratification
is paid to a person in order that he may induce the other person to vote for
the bribe giver, it is not bribery on the part of the bribe giver. [901-C-H,
902-A] (4) In this case it is obvious that the primary object of the payment
made to the appellant was to induce him to defect from the Organisation
Congress to the ruling Congress. The bargain was not for his vote. The bargain
was for defection. That is not a corrupt parctice under the Representations of
the People Act. Even if the payment was received with the promise that he would
induce the voters to vote for the bribe giver, it will not be bribery on the
part of the bribe giver but only bribery on the part of the bribe taker. The
defection of the appellant to the ruling Congress, if it took place, might mean
that he was expected to work for the ruling Congress. Equally it may not. The
fact of the appellant and Madhusudan Sinhji's joining the ruling Congress might
be expected to influence the voters to vote for the candidate set up by the
ruling Congress. But, that would not be because of the payment made to the
appellant and Madhusudan Sinhji nor would such payment be bribery. It is the
payment to the appellant that must induce the voters to vote for the candidate
set up by the ruling Congress in order that it might amount to bribery. It is
not enough that his defection from Organisation Congress to the ruling Congress
induces voters to vote for the ruling Congress candidate. [902 B-E] (5) As far
as the promise to build a hostel for the Kshatriya students is concerned,
before it can be termed a bribery the matter should come to the knowledge of
the voters. Only if the voters know that the promise has been made to the
appellant and Madhusudan Sinhji, can that promise would induce the voters to vote
for the first respondent. In the present case, the knowledge of the promise
remained confined to the appellant. If the payment or the promise was to induce
the voters, it cannot induce the voters unless they come to know about the
payment or the promise. It is not necessary that the voters should have
accepted the bribe but the voters must have a knowledge about the offer. Then
only it would be a bargain. Therefore, in the present case the offer to build a
hostel does not amount to bribery. [904-D-F] (6) But, if there was a specific
request by the first respondent to the appellant that he should vote for him in
exchange for the gift and the inducement in that case it would be bribery and
even bribery to one voter is enough to make a election void. A specific
allegation to that effect was made in the election petition and that has not
been considered by the High Court. This Court, therefore, went through the
evidence and came to the conclusion that no such request for vote was made to
the appellant for the following reasons.
[902H; 903A] (i) Madhusudan Sinhji was not
put a question about the exact date on which Maulvi and the first respondent
met him.
Quite possibly there was no such meeting on
the 9th February and that is why the question was not put to him. [903-E] 899
(ii) The statement of Madhusudan Sinhji is too slander a foundation on which
the argument could be built. It is, thus, a case of the appellant's oath
against the first respondent's oath and in a case of serious charge like
bribery we would not be satisfied merely on the basis of an oath against an
oath.
[903-H] (iii) Three other possible witnesses
including the appellant's wife Pushpa who could have been examined to establish
that the first respondent accompanied the Maulvi to the appellant had not been
examined. [904-A] (iv) No evidence was led about the first respondent's having
asked the appellant to vote. The allegation regarding the request to appellant
to vote for first respondent is put in merely for the purpose of election
petition and not a fact. [904-C] (v) All parties would have proceeded on the
understanding that when the appellant defected to the ruling Congress, he would
both work and vote for the ruling Congress. There could not have been a
specific bargain for the vote. [904-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 90 of 1973.
From the Judgment and Order dated the 24th
and 25th July, 1972 of the Gujarat High Court in Election Petition No. 2 of
1971.
S. N. Andley, K. J. John and Shri Narain
Mathur for the appellant.
F. S. Nariman, P. H. Parekh, Mrs. S. Bhandare
and Manju Jaitley for respondent No. 1.
The Judgment of the Court was delivered by
ALAGIRISWAMI, J. This appeal arises out of an election petition questioning the
election of 1st respondent in the election held in March 1971 to the Lok Sabha
from the Banaskantha constituency in Gujarat. In that election the 1st
respondent, a nominee of the Ruling Congress was declared elected securing
1,16,632 votes as against 92,945 votes secured by the 2nd respondent, a nominee
of the Organisation Congress. The appellant, a voter in the constituency, also
belonging to the Organisation Congress, filed a petition challenging the
validity of the election on various grounds out of which only those covered by
issue No. 10, hereinafter set out, survive for consi deration:
"(10) Whether respondent No. 1 or his
agents or/ other persons with his consent made a gift or promise of
gratification to the petitioner with the object directly or indirectly of
inducing the petitioner to vote for respondent No. 1 or to refrain from voting
for respondent No. 2 ?" The allegation relating to this charge in the
election petition is that the 1st respondent and his agent Maulvi Abdur Rehman
and the 1st respondent's son Bipin Popatlal Joshi with the consent of the 1st
respondent had made a gift and a promise of gratification to the appellant for
voting in 1st respondent's favour. The appellant as well as one
Madhusudansinhji, who has been examined as P.W. 10, seem to have been at that
time prominent members of the Organisation Congress and also leaders of the
Kshatriya community which formed 900 about 20 to 25 per cent of the votes in
the Banaskantha constituency. It was alleged that on February 9, 1971 the 1st
respondent and Maulvi Abdur Rehman came to the appellant's residence and
persuaded him to leave Congress (O) and join Congress (R) offering (1) to
secure a party ticket for the appellant for the election to the Gujarat
Legislative Assembly in 1972, (2) to meet all his expenses for that election and
to pay him Rs. 10,000/- in cash towards the said expenses, and (3) to construct
a hostel for the Kshatriya students of the Banaskantha district. A specific
allegation was made that the 1st respondent wanted the appellant to vote for
him. It was also alleged that the 1st respondent asked the appellant to convey
to Madhusudansinhji an offer of a party ticket for the Legislative Assembly
election in 1972 and to pay him also a sum of Rs. 10,000/-. The Prime Minister
was addressing a meeting at Palanpur on that day. The appellant, his wife and
Madhusudansinhji were taken to the helipad, Palanpur when the Prime Minister
landed there and also to the dais from which the Prime Minister was addressing
a public meeting.
One Akbarbhai Chavda, convener of the
District Congress Committee announced that the appellant and Madhusudansinhji
had joined Congress (R), and asked the appellant to say a few words. The
appellant went to the microphone, took out the bundle of notes of Rs. 10,000/-
given to him and flung it in the air and told the gathering that he and his
colleagues could not be purchased and that they would remain loyal to the
Organisation Congress.
During the trial of the election petition
Madhusudansinhji, who had by that time joined the Ruling Congress and Maulvi
Abdur Rehman were examined as witnesses on behalf of the appellant.
The learned Judge of the High Court after
considering the evidence before him held that Bipin Popatlal Joshi, son of the
1st responident, handed over Rs. 10,000/- to the appellant as a bribe to bring
about the appellant's defection from the Organisation Congress. But he took the
view that the object of the gift was to bring about the appellant's defection
from the Organisation Congress and not induce directly or indirectly any voters
to cast their votes for the Ruling Congress candidate or to refrain from voting
in favour of the 2nd respondent. As regards the offer to build the hostel for
Kshatriya students he held that the fact that a person who defects from another
party to the Ruling Congress would be expected to work for that party and would
be expected to use his personal influence in support of the candidate of that
party does not mean that the object of bringing about the defection was to
indirectly induce the Kshatriya voters to cast their votes for the 1st
respondent.
He therefore held that payment of such money
and holding out such inducement does not amount to any offence under the
Election Law and it was with regret that he had to decide the case in favour of
the 1st respondent.
We are in entire agreement with the finding
of the learned Judge as regards the payment of Rs. 10,000/- to the appellant
and also the offer to build hostel for Kshatriya students and do not consider
it 901 necessary to go into the evidence in support of that finding. That
finding is supported not only by the evidence of Madnusudansinhji and Maulvi
Abdur Rehman but also the letter Ex. T, passed by the latter to the appellant
and Madhusudansinhji.
The question is whether that finding is
enough to establish the charge of bribery against the 1st respondent.
There is still another finding necessary in
regard to the allegations made in the petition in respect of which the learned
Judge has given no finding and that is with regard to what happened of the 9th
of February 1971. We are at one with the view of the learned Judge that the
payment of Rs.
10,000/- to the appellant was with a view to
induce him to defect from organisation Congress to the Ruling Congress. It may
carry with it the implication that he was expected to use his influence with
the voters to vote for the candidate set up by the Ruling Congress. It has been
held by this Court in Kalia Singh v. Genda Lal & ors.(1) to which two of us
(Untwalia & Alagiriswami JJ) are party, that a payment made to a person in
order to induce him to canvass votes on behalf of the bribe giver would not be
bribery within the definition of that word in section 123(1) of the
Representation of the People Act. It was held that it is only in a case where
the payment to a third person by itself induces the voter to vote for the bribe
giver that it would fall under s. 123(1). Mr. Andley appearing on behalf of the
appellant tried to persuade us that that decision requires reconsideration.
After having considered his arguments we are still of the opinion that the view
taken in that decision is correct. The object of providing that a payment
should not be made to a person in order that that payment should induce some
other person to vote for the bribe giver is obvious. It is apparently intended
to cover situations where payment to a husband, wife, son or father is intended
to induce the wife, husband, father or son to vote for the bribe giver. That
would be indirect inducement. otherwise it would be easy for the bribe giver to
say that he did not bribe the voter himself and therefore it is not bribery.
That this provision was not intended to cover
a case where money is paid to a certain person in order to make him induce
another person to vote for the person who paid him the money would be obvious
by looking at the converse case.
Under s. 123(1)(B)(b) the receipt of or
agreement to receive, any gratification, whether as a motive or a reward by any
person whomsoever for himself or any other person for voting or refraining from
voting or inducing or attempting to induce any elector to vote or refrain from
voting, or any candidate to with draw or not to withdraw his candidature is
bribery. Under this clause any person who receives or agrees to receive any
gratification as a reward for inducing or attempting to induce any elector to
vote etc. would be receiving a bribe. The law therefore contemplates that where
a person makes any payment to another person in order to make him use his
influence to induce a third person to vote for him that is not bribery by the
person who pays but the receipt of money by the second person for inducing or
attempting to induce another elector to vote is bribery. It is also bribery for
the voter himself to receive 902 the money. We, therefore, reiterate the view
that when a candidate or anybody on his behalf pays any gratification to a
person in order that the payment made to him may induce the voter to vote for
the bribe giver it is bribery. But where the gratification is paid to a person
in order that he may induce the other persons to vote for the bribe giver it is
not bribery on the part of the bribe giver. It is, however, as we have
explained above, bribery on the part of the bribe taker even when he takes it
in order to induce an elector to vote for the bribe giver.
In this case it is obvious that the primary
object of the payment made to the appellant was to induce him to defect from
the Organisation Congress to the Ruling Congress. That is not a corrupt
practice under the Representation of the People Act. Even if the payment was
received with the promise that he would induce the voters to vote for the bribe
giver it will not be bribery on the part of the bribe giver but only bribery on
the part the bribe taker. The defection of the appellant to the Ruling Congress,
if it took place, might mean that he was expected to work for the Ruling
Congress. Equally it may not. A person who changes his party allegiance at the
time of the election probably might not command much respect among electors if
the 1 electors knew that he had done so after receiving some money. Otherwise
the fact that two important persons the appellant and Madhusudansinhji, a
younger brother of the ex-ruler of Danta Stata had joined the Ruling Congress
might be expected to influence the voters to vote for the candidate set up by
the Ruling Congress. But that would be not because of the payment made to the
appellant and Madhusudansinhji. Nor would such payment be bribery. To
reiterate, it is the payment to the appellant that must induce the voters to
vote for the candidate set up by the Ruling Congress in order that it might
amount to bribery. It is not enough that his defection from organisation
Congress to the Ruling Congress induces voters to vote for the Ruling Congress
candidate. As we said earlier, if the payment to the appellant came to be known
as the cause for his changing allegiance it may have a boomerang effect. It is
therefore clear that the payment made to the appellant would not have induced
the voters to vote for the Ruling Congress candidate. While after his defection
therefore the appellant might have been expected to work for the Ruling
Congress candidate or equally might not have been, it is perhaps implicit that
he would also vote for the Ruling Congress candidate. Is this enough to make
the payment made to the appellant bribery ? The payment was made not for the
purpose of inducing him to vote but to make him defect to the Ruling Congress.
That was the purpose for which the payment was made. That incidentally he might
vote for the Ruling Congress candidate does mean that the payment was made to
him in order to make him vote for the Ruling Congress candidate. The bargain
was not for his vote, the bargain was for his defection. Therefore on this
point we agree with the learned Judge of the High Court. But if there was a
specific request by the 1st respondent to the appellant that he should vote for
him then the position would be different. In that case it would be bribery and
even bribery to one 903 person is enough to make an election void. A specific
allegation to that effect has been made in the election petition and that has
not been considered by the learned Judge of the High Court. We shall now
proceed to do so.
The appellant gave evidence to the effect
that the 1st respondent asked him on 9th February to vote for him and made the
three promises earlier referred to. He was not cross-examined on that point but
the 1st respondent in his turn deniesd this when he gave evidence. Maulvi Abdul
Rehman speaks to his having met the appellant on February 9, 1971 but he says
that the 1st respondent was not with him at that time. Madhusudansinhji says
that he had met the appellant before the 14th and that at that time the
appellant told him that the Maulvi and the 1st respondent were insisting that
the appellant and he (Madhusudansinh) should join Congress (R). He also denied
a suggestion put to him in cross- examination that it was not true that the
appellant had told him before the 14th of February anything about the Maulvi or
the 1st respondent telling the appellant that the appellant and he
(Madhusudansinh) should join the Congress (R) on certain terms. This is the
evidence relied on to show that on the 9th the 1st respondent also had met the
appellant. If the appellant and Madhusudansinhji had met at Palanpur before the
14th and the appellant then told him that Maulvi and the 1st respondent were
insisting that they should join the Ruling Congress the meeting should have
been on the 13th or earlier and the request to him on the 12th or earlier.
Naturally having chosen to examine
Madhusudansinhji, who had by that time joined the Ruling Congress, as his
witness the appellant would not have risked putting questions about the exact
date on which Maulvi and the 1st respondent had met him. Quite possibly there
was no such meeting on the 9th of February and that was why that question was
not specifically put to him. When that question was put to Maulvi Abdul Rehman,
who was examined as P.W. 8 a little earlier, he denied that the 1st respondent was
with him on the 9th February. Coming to the conversation which the appellant
and Madhusudansinhji had before the 14th, if the Maulvi and the 1st respondent
were insisting either on the 13th or earlier that the appellant should join the
Ruling Congress there should have been a meeting between them a little earlier
than the 13th and it should have been on the 9th is the argument on behalf of
the appellant. But there are many imponderables in this argument. If the Maulvi
and the 1st respondent were insisting that the appellant and Madhusudansinhji
should join the Ruling Congress it does not mean that they both did so at the
same time. They could have been doing it on different occasions separately. Nor
does it follow that the Maulvi and the 1st respondent met him on the 9th. Nor
does it follow that on that date the 1st respondent asked the appellant to vote
for him. The statement of Madhusudansinh is too slender a foundation on which
this argument could be built. It is thus a case of the appellant's oath against
1st respondent's oath and in a case of a serious charge like bribery we would
not be satisfied merely on the basis of an oath against oath to hold that it
has been satisfactorily established that the 904 1st respondent asked the
appellant on 9th February to vote for him. He may also mention that with regard
to the alleged visit of the Maulvi and the 1st respondent to the appellant
three other possible witnesses including the appellant's wife, Pushpaben who
could have been examined to establish that the 1st respondent accompanied the
Maulvi to the appellant had not been examined. A further fact which
improbabilises this story is that in the election petition it is stated that
the 1st respondent told the appellant that he would arrange for a ticket for Madhusudansinh
in the 1972 elecations and pay him Rs. 10,000/- if Madhusudansinh left
organisation Congress and joined the Ruling Congress and voted and worked for
him (1st respondent) and asked him to convey the offer to Madhusudansinh. No
evidence was let in about the voting and what is more Madhusudansinh was not a
voter in the Banaskantha Constituency. This shows that the allegation regarding
the request to appellant to vote for 1st respondent is of the character as the
request to Madhusudansinh and put in merely for the purposes of the election
petition and not a fact. On broader considerations also it is very unlikely
that when the talk was about the appellant and Madhusudansinh defecting to the
Ruling Congress from the organisation Congress there would have been any talk
about the voting itself. All parties would have proceeded on the understanding
that when they defected to the Ruling Congress they would both work and vote
for the Ruling Congress. The distinction between a gift or offer combined with
the request to vote and the gift or offer to a person asking him to work for
him with the incidental result that person might vote for him should always be
kept in mind. In such a case there is no specific bargain for the vote. Were it
not so it would be impossible for persons standing for election to get any
person to work for them who is not also a voter in the constituency. This was
brought out by this Court in the decision in onkar Singh v. Ghasiram Majhi(1).
We would, therefore, hold that the case that 1st respondent bargained for the
appellant's vote has not been satisfactorily made out.
On behalf of the 1st respondent it was urged
that the actions of the appellant and Madhusudansinhji immediately after the
payment of Rs. 10,000/- and the dramatic developments at the meeting addressed
by the Prime Minister show that there would not have been any bargaining for
the appellant's vote. The points relied upon were (1) that it was not said by
the appellant when he threw the money into the crowd on the 18th that he was
asked to vote for the 1st respondent, (2) that it was not mentioned in the
statement (Ex. 5) made by the appellant and Madhusudansinhji on 18-2- 1971, (3)
that was not mentioned in the interview given to the newspaper reporters found
in Ex. 7 or in the newspaper report Ex. 8. We do not consider that these things
are of much importance. At that time the most important factor was the attempt
to persuade the appellant and Madhusudansinhji to defect to the Ruling Congress
and any request to the appellant to vote for the 1st respondent would have been
insignificant 905 even as we have held that when requesting the appellant and
Madhusudansinhji to defect to the Ruling Congress it is not likely that they
would have been asked to vote for the 1st respondent. The reference to the
piece of evidence just mentioned cannot be said to establish that there was no
request made to the appellant to vote for the 1st respondent. That would have
to be decided on other factors and other evidence and on the basis of that evidence
we have already held that it is not established that the 1st respondent
requested the appellant to vote for him.
Now remains the question of the offer to
build a hostel for Kshatriya boys. Strictly speaking this does not arise on
issue 10. This is probabilised by the evidence of Madhusudansinhji, Maulvi
Abdul Rehman and the appellant as well as Ex. T. Whether it was to be in Danta
or Banaskantha does not make much difference as long as it was for the
Kshatriya boys. The two places are near to each other though in different
Parliamentary constituencies and in whichever place it was situate it will
benefit Kshatriya boys and there is no. doubt that if the hostel were
constructed by respondent No. 1 or the Ruling Congress party at his instance
that would induce the voters to vote for the Ruling Congress candidate. But
before that happens the matter should come to the knowledge of the voters. Only
if the voters knew that the promise had been made to the appellant and
Madhusudansinhji that promise would induce the voters to vote for 1st
respondent. But the knowledge of the prormise remained confined to the
appellant and P.W. 10, in addition of course to Maulvi Abdul Rehman and the 1st
respondent's son. If the payment or the promise was to induce the voters, it
cannot induce the voters unless they come to know about the payment or the
promise. There is no evidence her that the voters knew about the promise to
build the hostel. The bargain in such cases as we have mentioned in the
judgement delivered by us today in S. Iqbal Singh v. Gurdas Singh & Ors. is
really an offer on the part of the bribe giver that he would do such a thing if
the voters would vote for him.
It is not necessary that the voters should
have accepted it.
But the voters should have a knowledge about
the offer. Then only it would be a bargain. An offer contemplated and retained
in the mind of the offerer and not articulated and made known to the offeree
will not be a bargain. It therefore follows that in this case the offer to
build a hostel does not also amount to bribery.
In the result we upheld the judgment of the
High Court and dismise this appeal. We make no order as to costs.
P.H.P Appeal dismissed.
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