Surinder Singh Vs. Hardial Singh &
Ors  INSC 201 (29 October 1984)
MISRA RANGNATH MISRA RANGNATH BHAGWATI, P.N.
ERADI, V. BALAKRISHNA (J)
CITATION: 1985 AIR 89 1985 SCR (1)1059 1985
SCC (1) 91 1984 SCALE (2)659
CITATOR INFO :
RF 1986 SC1253 (20) D 1986 SC1534 (11) R 1990
Constitution of India-Art. 136-Supreme
Court-When would interfere with findings of the High Court reached on
assessment of evidence.
Representation of the Peoples Act, 1951
i-Section 123-Allegation of Corrupt Practice
made in an election petition-How should be established-Whether on basis of
preponderance of probabilities as in civil litigation or "proof beyond
reasonable doubt" as in Criminal trials.
ii-Section 116A(1)-Election appeal-Nature of
findings of facts-If could be interfered with by Supreme Court.
iii-See. 123 (2)-Corrupt Practice of
"Undue influence"- Nature and proof of-Whether disturbing election
meeting a corrupt practice u/s. 123 (2)-Whether appointment by the returned
candidate of a person charged for murder as his polling agent amounts to
exercise of "undue influence".
iv-Sec. 123 (1) (A)-Corrupt Practice of
"Bribe"-Whether ameliorating grievances of the public while
canvassing for votes amounts to corrupt practice.
The appellant was declared elected on May 31,
1980 to the Punjab Legislative Assembly from a constituency known as
Non-shehra-Pamuan Assembly Constituency. Respondent Nos. 1 and 2, two voters of
the Constituency challenged his election before the High Court on two grounds,
namely, (1) that the appellant's supporters disturbed a meeting of the Akali
Party by using fire arms and fatally injuring one and otherwise inflicting
injuries on many others and thus he committed a corrupt practice of "undue
influence" u/s. 123 (2) of the Representation of the Peoples Act 1951; and
(2) that the appellant in order to get the votes of one Bagicha Singh Chakiwala
and his family members as also of his brotherhood, promised to Bagicha Singh to
get the uncovered electric wires, which were dangerously passing over his
house, removed after paying its expenses etc. and so he approached the Punjab
State 1060 Electricity Board employees, put pressure on them and got the amount
of expenses deposited and the wires removed on 30th May 1980 i.e. One day
before the poll. Thus, the appellant had committed a corrupt practice of
123 (1) (A) of the Act. The High Court
declared the election of the appellant void holding that both the corrupt
practices had been committed by the appellant himself or through others with
his consent and were covered by ss 123 (1) (A), (B) and (2) of the Act. Hence
this appeal, The respondent-petitioners in addition to the above- mentioned two
grounds of challenge contended (i) that the charges of corrupt practice should
be allowed to be established on the basis of preponderance of probabilities as
in civil litigation and not by asking for proof of the allegation beyond reason
able doubt as in a criminal case;
(ii) that it was the practice of the Supreme
Court in election appeals not to enter into re-appreciation of evidence and
disturb findings of fact reached by the High Court and therefore the Supreme
Court should not attempt a re-appreciation of the evidence while dealing with
this appeal; and (iii) that the appointment of Gurdial Singh who had disturbed
the Akali Meeting and had also been charged for murder, by the appellant as his
polling agent in the Gandiwind Polling Booth amounted to exercise of
"undue influence" within the meaning of the Act.
Allowing the appeal,
HELD: (1) Section 116-C makes it clear that
an appeal to the Supreme Court under the Act is to be treated as a Civil appeal
and the jurisdiction to be exercised is as extensive as in the case of an
appeal from a matter disposed of in exercise of original civil jurisdiction of
the High Court Section 116-A (I) of the Act clearly indicates that the appeal
to this Court has to be disposed of by exercising the same jurisdiction as is
exercised in an appeal against the original judgment of the High Court In this
view of the matter there can really be no rule, whether statutory or evolved by
this Court by long usage as alleged, that the Court would not interfere with
the findings of fact reached at the trial stage. Ordinarily a finding reached
on assessment of the evidence particularly when it is oral would not be
interfered with but where the Court is satisfied that on account of a wrong
approach to a matter, injustice has been done to one of the parties before it,
it would not only be within the powers of the Court but it would be its
obligation to rectify the mistake and do justice to the party.[1066E-G,1070G-H
] Ramabhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji & Ors.  I
S.C.R. 712, Bhanu Kumar Shastri v. Mohan Lal Sukhadia & Ors.  3 S.C.R.
522. Mohd. Yasin Shah v. Ali Akbar Khan  2 S.C.C. 23. Laxminarayan v.
Returning Officer  I S.C.R. 822 & Sh. Raghbir Singh Gill V. S. Gurcharan
Singh Tohra & Ors.  Suppl. S.C.C. 53, relied upon.
Sarju Prasad v. Raja Jwaleshwari Pratap
Narain Singh & Ors.  S.C.R 781. Wart v. Thomas 1947 A. 484. Narmada
Prasad v. Chagan Lal  1 S R. 499. Prabodh Chand v. Mohinder Singh AIR
1971 SC 257. Sumitra Devi v; Sheo Shankar Prasad Yadav  2 S.C.R. 920,
Chand Singh v. Shiv Ram 1061 AIR 1975 SC 403, Vital Nagaraj v. R. Dayanand
Sagar,  2 S.C.R. 384 and Laxmi Narain v. Chander Singh  2 S.C.R.
412 referred to.
2. By a catena of decisions of this Court it
has by now been very well settled that allegations of corrupt practice are
quasi-criminal charges and the proof that would be required in support of such
allegations would be as in a criminal charge. Therefore, charges of corrupt
practice are to be equated with criminal charges and proof thereof would be not
preponderance of probabilities as in civil action but proof beyond reasonable
doubt as in criminal trials.
[1071A-B; 1075D-C] Dr. M. Chenna Reddy v. V.
Ramchandra Rao & Onr. 40 E.L.R. 390. Magraj Patodia v. R.K. Birla &
Ors.  2 S.C.R. 118, Mohan Singh v. Bhanwar Lal & Ors.  5 S.C.R.
12. Guruji Shrihar Baliram Jivatode v. Vithalrao & Ors.  2 S.C.R.
766. Mehant Shreo Nath v. Choudhry Ranbir Singh  3 S.C.C. 647, Abdul
Hussain Mir v. Shamsul Huda & Onr.  4 S.C.C. 533, Ch. Razik Ram v. Ch.
Jaswant Singh Chouhan & Ors.  4 S.C.C. 769, Surya Kant Roy v. Imamul
Hak Khan  1 S.C.C. 531, Nizamuddin Ahmed v. Narbada Prasad & Ors.
 1 S.C.C. 1., D. Venkata Reddy v. R. Sultan & Ors.  2 S.C.C.
455. Bir Chandra Barman v. Anil Sarkar & Ors.  3 SCC 88, Ramji Prasad
Singh v. Ram Bilas Jha & Ors.  1 S.C.C. 260, Lakshmi Raman Acharya v.
Chandan Singh & Ors.  2 S.C.R. 412, Amolak Chand Chhazed v.
Bhagwandas Arya & Ors.
 3 S.C.C. 566, Ramanbhai Nagjibhai
Patel v. Jasvant Singh Udesingh & Ors.  3 SCC 142, Haji C.H Mohammad
Koya v. I. K .S. M. A. Muthukoya  2 SCC 8, A. Younus Kunju v. R.S. Unni
& Ors.  3 SCC 346 & Manmohan Kalia v. Yash & Ors.  3
SCC 499; followed.
3. Election disputes are not cases at common
law or equity but are strict statutory proceedings and result of an election is
not available to be interfered with lightly, [1076B] Jagannath v. Jaswant Singh
& Ors.  5 SCR 892 D. Venkata Reddy v. R. Sultan & Ors.  2
4. Section 123 (2) of the Act defines 'undue
influence'. Any direct or Indirect interference or attempt to interfere with
free exercise of the electoral right by a candidate, his agent or any person
with his consent or the candidate's election agent has been made a corrupt
practice u/s 123 (2) of the Act. Chapter II of the Act deals with agents and
refers to appointments of election agent, polling agent and counting agent.
Section 79 (d) defines "Electoral Right" to mean' the right of a
person to stand or not to stand or to withdraw or not to withdraw from being a
candidate or to vote or refrain from voting at any election.
[1080G-H; 1079D] (5) The fact that firearms
were freely used first by Gurdial Singh and his party and then by way of
retaliation by Akali workers and gun shots resulted in the death of Daya Singh
and thus a grave situation arose is really not very material unless that would
amount to a corrupt practice within the meaning of 1062 s. 123 (2) of the Act.
Undoubtedly, disturbing the meeting as alleged is ont covered under sub-s. (2)
of s. 123 of the Act and is clearly an electoral offence dealt with by s. 127
of the Act. [1079H; 1080A] (6) The High Court clearly overlooked the fact that
disturbing the election meeting by itself did not constitute undue influence.
For establishing the link between the disturbance of the meeting and the
returned candidate the evidence is wholly oral in character and has to be
scrutinised with greater rigour. Merely on the statements of some of the witnesses
who were essentially Akali Party workers or supporters a charge of corrupt
practice could not have been taken as proved. The approach of the learned trial
judge to the matter is contrary to law as settled by decisions of this Court
relating to corrupt practice and proof thereof. [1084B-C] (7) It is the
admitted position that neither the Akali candidate S. Ranjit Singh nor the
appellant who was another contesting candidate came to the place of the meeting
so held on 20.5.80. There is evidence that the meeting so convened was
disturbed. The disturbance to the meeting is said to have been caused by a
group of people consisting of Gurdial Singh, Hardial Singh, Rachhpal Singh,
Kulwant Singh and Gurnam Singh. There is no specific plea that these five persons
were agents of the appellant. Admittedly, by May 20, 1980, none of these
persons was an agent of any of these classes of the returned candidate. The
only other aspects by which the appellant would be liable for the action of
these five people would be if their act of disturbing the meeting was with his
consent. Consent is the life line to link up the candidate with the action of
the other person which may amount to corrupt practice and unless it is
specifically pleaded and clearly proved in view of the fact that all
ingredients have to be proved beyond reasonable doubt the appellant cannot be
charged for the action of Gurdial Singh and his group. [1078B-D; 1083B] (8) In
the instant case, though there is some oral evidence to implicate the
appellant, even for what followed the disturbance to the meeting, this Court
does not think in the absence of the plea such evidence can be entertained for
any effective purpose. The fact that protection had been extended by the
appellant to his supporter Gurdial Singh and members of his family even by
raising quarrel with the local police inspector would not lead to a backward
presumption of consent for the acts of Gurdial Singh. [1081F; 1083A-B] (9) It
is difficult to accept the submission of the respondent that by appointing a
person charged for murder as polling agent the appellant had exercised undue
There is clear evidence also that voting was
free and quite a large percentage of the voters had exercised their electoral
right. These are circumstances which clearly militate against the allegation of
the election petitioners that voters had been threatened and their free
exercise of electoral right had been affected. Moreover, in the absence of
requisite pleading, want of any contemporaneous complaint in writing or
otherwise to the public officers within the polling booth and the nebulous
nature of the oral evidence placed from the side of the election petitioners,
it cannot be said that any objection could really be taken to the election on
account of Gurdial Singh having acted 1063 as polling agent in the particular
electoral booth. [1083E- G;
(10) A candidate is entitled to canvass for
votes. One who is in the field to be an electoral representative is also
entitled to nourish his constituency. Amelioration of grievances of the public
is innocuous and cannot be construed against a candidate. We agree that while
nourishing is a legitimate activity, it is of paramount importance that
nourishing should not transgress the limit so as to corrupt the electoral process.
The appellant was already in the field as a candidate for the legislature and
was entitled to help the people in his constituency in a legitimate way.
[1087E-G] (11) There was no clear plea in the election petition that the money
had been deposited by the appellant though in paragraph 8 it was stated that on
28.5.1980 appellant had told Bagicha Singh that he (Bagicha Singh) should not
bother about the expenses involved. There is no oral evidence even to suggest
that the appellant caused the amount to be deposited. There is a presumption
that the person in whose name the receipt has been drawn up was the payer of
the amount and burden lay on him who wanted to contend that the facts were
otherwise. In these circumstances, it cannot be accepted that the appellant had
got the estimated demand deposited with the authorities of the Board. Once the
allegation that the appellant had deposited the amount of Rs. 944 is discarded,
his taking up of the cause of Bagicha Singh for early shifting of the electric
wires over-hanging the first floor of his house would not amount to 'bribe'. At
any rate, the evidence on record is only of PW.12. That evidence even if
accepted as a whole would not be sufficient to establish the charge of corrupt
practice on this score.
Oral evidence, particularly, coming from a
tainted source cannot form the sole basis of proof of corrupt practice.
Therefore, the High Court was wrong in
accepting the case of the election petitioners that the appellant had committed
corrupt practice for procuring the votes of Bagicha Singh, members of his
family and his friends by getting the over- hanging electric wires removed.
After all, if there be any scope for doubt, it must resolve in favour of the
appellant who was facing a quasi-criminal charge. [1087B-D; G-H; 1088E-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 463 of 1982 From the Judgment and Order dated the 21st January, 1982 of the
Punjab and Haryana High Court in Election Petition No. 4 of 1980.
H.L. Sibbal, D.N. Mishra and K.K. Lahiri for
Shanti Bhushan, Jitendra Sharma, Manjit Singh
Khaira and Ms. Deepa Bhushan for the Respondent.
The Judgment of the Court was delivered by
1064 RANGANATH MISRA, J. This appeal under section 116-A of the Representation
of the People Act, 1951 ('Act' for short), is directed against the judgment of
the Punjab & Haryana High Court setting aside the election of the appellant
to the Punjab Legislative Assembly from Constituency No. 25 known as
Naushehra-Pannuan Assembly Constituency. Election was held on May 31, 1980, and
the result was declared the following day. Appellant was declared elected with
26980 votes while respondent 3 Ranjit Singh lost with 26739 votes.
The election petition was filed by two voters
of the constituency (respondents 1 and 2). Respondent 1 (PW. 5) was admittedly
the counting agent of respondent 3. The election of the appellant was
challenged on two allegations of corrupt practice in the main, namely,
disturbing a meeting of the Akali Party at a place called Hadur-Shah in Village
Gandiwind on May 20, 1980, where the appellant's supporters allegedly used
fire-arms and fatally injured one and otherwise inflicted injuries on many
others. The relevant allegations in support of this plea are to be found in
paragraph 5 of the election petition. The other was an allegation of corrupt
practice of bribery with reference to Bagicha Singh Chakiwala. Appellant with
his supporters in the course of canvassing is said to have contacted Bagicha
Singh on May 28, 1980, at his village Chola-Sahib and asked for votes of his
and members of his family. Bagicha Singh was alleged to have told the appellant
that uncovered electric wires were dangerously passing over his house and
despite his best of efforts he has not been able to get them removed and the
sum being demanded for their removal was beyond his means. Bagicha Singh is
alleged to have told the appellant that if he got the same removed he would get
the votes of himself, members of the family as also of his brotherhood.
Appellant promised to get the needful done and approached the Punjab State
Electricity Board employees and on putting pressure, got the same done on May
30, 1980, one day before the poll. The relevant particulars of the allegation
are contained in paragraphs 8 and 9 of the election petition.
Several other allegations were made in
paragraphs 6, 7 and 10 of the election petition relating to threats to electors
of Gandiwind on May 20, 1980, after the meeting was disturbed, improper
reception of votes, reception of void votes, terrorisation of the voters at the
booth on the day of polling, etc. but the same do not seem to be 1065 relevant
as the High Court has not relied on the same nor in the course of hearing of
this appeal have those allegations been pressed into service. It is relevant to
indicate here that neither the defeated candidate nor the election petitioners
had any personal knowledge of the two incidents referred to above. Verification
of the election petition indicated that the allegation in paragraph 5 was true
to the information received from Gurmukh Singh, PW. 10 and Milkha Singh, PW, 11
while information relating to the Bagicha Singh episode was obtained from
Darshan Singh, PW. 12.
At the trial, Hardial Singh, election
petitioner I was examined as PW.5. Respondent 3 was, however, not examined as a
witness. The evidence in regard to both the incidents- Gandiwind meeting and
Bagicha Singh episode-mainly consisted of oral statements of witnesses.
Some documents, such as the FIR, injury
and the deposit receipt in regard to Bagicha
Singh episode do not throw any conclusive light inasmuch as they lack the
material aspect of correlating the appellant with the events. The appellant had
in his written statement denied the allegations in so far as they implicated him
with the incidents. He examined himself and led other evidence to support his
stand. The learned single Judge before whom the election petition came up for
trial accepted the evidence of the election petitioners and held that both the
corrupt practices had been committed by the appellant himself or through others
with his consent and were covered by ss. 123 (1) (a), (b) and (2) of the Act.
The election was declared void.
Mr. H.L. Sibal appeared in support of the
appeal and Mr. Shanti Bhushan represented the election petitioners. The appeal
has been heard at great length and detailed submissions have been advanced by
both sides. Mr. Shanti Bhushan emphatically contended that it was the practice
of this Court in election appeals not to enter into re- appreciation of
evidence and disturb findings of fact reached by the High Court. Therefore, we
should not attempt a re-appreciation of the evidence while dealing with the
appeal. He next contended that election disputes were essentially civil in
nature. To require the allegations of corrupt practice to be proved as in a
criminal charge was not the proper approach. With a view to preserving the
purity of the electoral process and sanctity of the democratic system to which
our country is wedded, it is meet and 1066 proper that charges of corrupt
practice should be allowed to be established on the basis of preponderance of
probabilities as in civil litigation and not by asking for proof of the
allegation beyond reasonable doubt as in a criminal case. We are of the view
that these two contentions should be first dealt with in order that a proper
approach to the matter can be indicated and once that is done the materials
available on record can be assessed for the Purpose of disposal of the appeal.
Section 116-C of the Act lays down the
procedure in appeal. It provides:
"(1). Subject to the provisions of this
Act and of the rules, if any, made thereunder, every appeal shall be heard and
determined by the Supreme Court as nearly as may be in accordance with the
procedure applicable to the hearing and determination of an appeal from any
final order passed by a High Court in the exercise of its original civil
jurisdiction: and all the provisions of the Code of Civil Procedure, 1908 and
the Rules of the Court (including provisions as to the furnishing of security
and the execution of any order of the Court), shall, so far as may be, apply in
relation to such appeal..." This provision makes it abundantly clear that
an appeal to this Court under the Act is to be treated as a civil appeal and
the jurisdiction to be exercised is as extensive as in the case of an appeal
from a matter disposed of in exercise of original civil jurisdiction of the
Mr. Shanti Bhushan placed a series of
decisions before us in support of his proposition regarding the extent of
interference available in an appeal. The first of these cases is Sarju Prasad
v. Raja Jwaleshwari Pratap Narain Singh and Ors. This was a regular civil
appeal and not under the Act. This Court quoted with approval the observations
of Viscount Simon in Watt v. Thomas. Viscount Simon had stated, inter alia:
"But if the evidence as a whole can
reasonably be regarded as justifying the conclusion arrived at the trial, and
especially if that conclusion has been arrived at on 1067 conflicting testimony
by tribunal which saw and heard the witnesses, the appellate court will bear in
mind that it has not enjoyed this opportunity and that the view of the trial
Judge as to where credibility lies is entitled to great wight." Viscount
Simon proceeded further to indicate:
"This is not to say that the Judge of
first instance can be treated as infallible in determining which side is
telling the truth or is refraining from exaggeration. Like other tribunals, he
may go wrong on a question of fact, but it is a cogent circumstance that a
Judge of first instance, when estimating the value of verbal testimony, has the
advantage (which is denied to Courts of appeal) of having the witnesses before
him and observing the manner in which their evidence is given." There
cannot be much dispute that ordinarily this rule is applicable to all appellate
Mr. Shanti Bhushan then referred to the cases
of Narmada Prasad v. Chagan Lal Prabodh Chand v. Mohinder Singh; Sumitra Devi
v. Sheo Shankar Prasad Yadav Chand Singh v. Shiv Ram; Vital Nagaraj v. R.
Dayanand Sagar; and Laxmi Narain v. Chander Singh. In each of these cases,
depending on the facts thereof, the Court has made an observation that the
trial judge's assessment was entitled to great weight and respect and was,
therefore not to be ordinarily interfered with. None of these cases, however,
indicated that this Court would not go into the matter if the facts and
circumstances warranted a detailed examination or a fresh assessment.
We shall presently refer to some of the
decisions of the Court where this aspect has also been examined. To start with
is the case of Ramabhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji and Ors.
1068 disposed of by a five Bench. That was a
case prior to amendment of the Act. Under the scheme then prevalent, election
disputes were tried by a tribunal and an appeal lay to the High Court and the
matter was before this Court by way of appeal by special leave. Dealing with
this aspect of the matter, the Court held:
"For, as soon as special leave is
granted there is an appeal before this Court and while dealing with such an
appeal this Court exercises its civil jurisdiction.
It is true that the rules framed by this
Court in exercise of its rule making powers do not contain any provision
analogous to O. XLI, r. 22 of the Code of Civil Procedure which permits a party
to support the judgment appealed against upon a ground which has been found
against him in that judgment. The provision nearest to it is the one contained
in O. XVIII, r. 3 of the Rules of this Court which requires parties to file
statement of cases. Sub-rule (1) of that rule provides that Part I of the
statement of the case shall also set out the contentions of the parties and the
points of law and fact arising in the appeal. It further provides that in Part
II a party shall set out the propositions of law to be urged in support of the
contentions of the party lodging the case and the authorities in support
thereof. There is no reason to limit the provision of this rule only to those
contentions which deal with the points found in favour of that party in the
judgment appealed from. Apart from that we think that while dealing with the
appeal before it this Court has the power to decide all the points arising from
the judgment appealed against and even in the absence of an express provision
like O. XLI, r. 22 of the Code of Civil Procedure it can devise the appropriate
procedure to be adopted at the hearing. There could be no better way of
supplying the deficiency then by drawing upon the provisions of a general law
like the Code of Civil Procedure and adopting such of those provisions as are
suitable. We cannot lose sight of the fact that normally a party in whose
favour the judgment appealed from has been given will not be granted special
leave to appeal from it. Considerations of justice, therefore, require that
this Court should in appropriate cases permit a party placed in such a position
to support the judgment in his favour even 1069 upon grounds which were negatived
in that judgment".
The ratio of this decision makes the position
clear that an appeal laid before this Court whether under a statute conferring
a right of appeal or as a result of grant of leave under Article 136 of the
Constitution opens up the normal civil appellate jurisdiction of the Court to
In Bhanu Kumar Shastri v. Mohan Lal Sukhadia
and Ors., Ray, J. (as he then was), indicated:
"If the High Court has overlooked
important and crucial documents or oral evidence, such evidence will justify
this Court to support the contentions of the respondent that the findings of
fact arrived at by the High Court are against clear and cogent proof of facts.
This Court will, therefore, be justified in
recording the correct findings on ample and abundant materials which have been
overlooked and ignored by the High Court. In the present case, we have had
occasion to deal with these aspects on the rival contentions and recorded our
findings." In Sumitra Devi's case (supra), a decision of a three Judge
Bench on which Mr. Shanti Bhushan also relied, the Court observed:
"It has been the consistent practice of
this Court not to interfere with findings on questions of fact unless there is
some grave or palpable error in the appreciation of the evidence on the basis
of which the findings were arrived at." In Mohd. Yasin Shah v. Ali Akbar
Khan, a three Judge Bench referred with approval to the ratio in Laxminarayan
Returning Officer and said:
"The propositions enunciated by this
Court are well established and there can be no dispute with the propositions
mentioned above. In the instant case, however, we find that the approach of the
learned Judge was not 1070 correct. We have already pointed out a number of
salient features appearing in the evidence which have rendered the case of the
petitioner inherently improbable. The learned Judge appears to have overlooked
these essential features. Further, the learned Judge himself had observed that
issue No.1 which he had framed was wide enough to include the plea of the
appellant, and even if the order of the Returning Officer in rejecting the
nomination paper on the ground of the absence of the candidate or his proposer
was wrong, it could still be supported on the ground that the signature of the
proposer was not genuine. The learned Judge has not determined this aspect of
the matter. In these circumstances, therefore, we feel that the judgment of the
High Court is erroneous both on fact and in law and although the appellate
Court is extremely slow in disturbing the findings of fact, in the instant
case, we are satisfied that the judgment of the High Court is against the
weight of the evidence on record and preponderance of probabilities." In
S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and Ors., it was again
pointed out that if something is radically wrong with the approach of the
learned Judge trying the election petition it would be for this Court to
rectify the error.
The jurisdiction to exercise in an appeal
under the Act, therefore, appears to be as wide as in any other civil appeal.
Section 116-A (1) of the Act clearly indicates that the appeal to this Court
has to be disposed of by exercising the same jurisdiction as is exercised in an
appeal against the original judgment of the High Court. In this view of the
matter there can really be no rule, whether statutory or evolved by this Court
by long usage as alleged, that the Court would not interfere with the findings
of fact reached at the trial stage. Ordinarily a finding reached on assessment
of the evidence particularly when it is oral would not be interfered with but
where the Court is satisfied that on account of a wrong approach to a matter,
injustice has been done to one of the parties before it, it would not only be
within the powers of the Court but it would be its obligation to rectify the
mistake and do justice to the party.
1071 We shall now turn to the other
submission of Mr. Shanti Bhushan. By a catena of decisions of this Court it has
by now been very well settled that allegations of corrupt practice are
quasi-criminal charges and the proof that would be required in support of such
allegations would be as in a criminal charge. Mr. Shanti Bhushan has canvassed
that the standard of proof required in such a case would be dependent upon the
gravity of the charge and there is no justification to adopt the rule that in
every case of allegation of corrupt practice the standard applicable to a
criminal trial involving a grave charge like murder should be adopted. He has
drawn support from the observation of this Court in Dr. M. Chenna Reddy v. V.
Ramchandra Rao & Ors. It may be pointed out here that the ratio in Chhenna
Reddy's case runs counter to the current of judicial thought on the point. In
fact, quite close in point of time after Chenna Reddy's case came the case of
Magraj Patodia v. R.K. Birla & Ors. Hegde, J. indicated:
"It is true that as observed in Dr. M.
Chenna Reddy v. V. Ramachadra Rao & Anr., that a charge of corrupt practice
cannot be equated to a criminal charge in all respects. While the accused in a
criminal case can refuse to plead and decline to adduce evidence on his behalf
and yet ask the prosecution to prove its case beyond reasonable doubt such is
not the position in an election petition. But the fact remains that burden of proving
the commission of the corrupt practice pleaded is on the petitioner and he has
to discharge that burden satisfactorily. In doing so he cannot depend on
preponderance of probabilities. Courts do not set at naught the verdict of the
electorate except on good grounds." Charges of corrupt practice have been
dealt with by this Court for over 20 years now in election appeals under the
Act. The first important case which came before this Court was disposed of by a
five judge bench in the case of Mohan Singh v. Bhanwar Lal & Ors. Shah, J.
(as he then was), spoke for the Court thus:
"The onus of establishing a corrupt
practice is undoubtedly on the person who sets it up, and the onus is not 1072
discharged on proof of mere preponderance of probability, as in the trial of a
civil suit; the corrupt practice must be established beyond reasonable doubt by
evidence which is clear and unambiguous." Hegde, J. in Guruji Shrihar
Baliram Jivatode v. Vithalrao & Ors., reiterated the proposition by saying:
"It is trite to say that the burden of
proving everyone of the ingredients of the corrupt practice alleged is on him
who alleges it. If he fails to establish any one of them to the satisfaction of
the Court he must fail." In Mahant Shreo Nath v. Choudhry Ranbir Singh, it
was again observed:
"A plea in an election petition that a
candidate or his election agent or any person with his consent has committed a
corrupt practice raises a grave charge, proof of which results in
disqualification from taking part in elections for six years. The charge in its
very nature must be established by clear and cogent evidence by those who seek
to prove it. The Court does not hold such a charge proved merely on
preponderance of probability: the Court requires that the conduct attributed to
the offender is proved by evidence which establishes it beyond reasonable
doubt." In Abdul Hussain Mir v. Shamsul Huda & Anr., Krishna Iyer, J.
"Charges, such as have been imputed
here, are viewed as quasi-criminal carrying other penalties than losing a seat,
and strong testimony is needed to subvert a Returning Officer's declaration....
When elections are challenged on grounds with a criminal taint, the benefit of
doubt in testimonial matters belongs to the returned candidate Oral evidence ordinarily
is inadequate especially if it is of indifferent quality or orally procurable.
1073 In Ch. Razik Ram v. Ch. Jaswant Singh
Chouhan & Ors.
Sarkaria, J. spoke for this Court in the
"Before considering as to whether the
charges of corrupt practice were established, it is important to remember the
standard of proof required in such cases.
It is well settled that a charge of corrupt
practice is substantially akin to a criminal charge. The commission of a
corrupt practice entails serious penal consequences. It not only vitiates the
election of the candidate concerned but also disqualifies him from taking part
in elections for a considerably long time.
Thus, the trial of an election petition being
in the nature of an accusation, bearing the indelible stamp of quasi-criminal
action, the standard of proof is the same as in a criminal trial. Just as in a
criminal case, so in an election petition, the respondent against whom the
charge of corrupt practice is levelled, is presumed to be innocent unless
proved guilty. A grave and heavy onus therefore rests on the accuser to
establish each and every ingredient of the charge by clear, unequivocal and
unimpeachable evidence beyond reasonable doubt. It is true that there is no
difference between the general rules of evidence in civil and criminal cases,
and the definition of "proved" in section 3 of the Evidence Act does
not draw a distinction between civil and criminal cases. Nor does this
definition insist on perfect proof because absolute certainty amounting to
demonstration is rarely to be had in the affairs of life, Nevertheless. the
standard of measuring proof prescribed by the definition, is that of a person
of prudence and practical good sense. 'Proof' means the effect of the evidence
adduced in the case. Judged by the standard of prudent man, in the light of the
nature of onus cast by law, the probative effective of evidence in civil and
criminal proceedings is markedly different. The same evidence which may be
sufficient to regard a fact as proved in a civil suit, may be considered
insufficient for a conviction in a criminal action. While in the former a mere
preponderance of probability may constitute an adequate basis of decision, in
the latter 1074 a far higher degreed of assurance and judicial certitude is
requisite for a conviction. The same is largely true about proof of a charge of
corrupt practice, which cannot be established by mere balance of probabilities,
and, if after giving due consideration and effect to the totality of the evidence
and circumstances of the case, the mind of the Court is left rocking with
reasonable doubt-not being the doubt of a timid, fickle or vacillating mind-as
to the veracity of the charge, it must hold the same as not proved." To
the same effect are the following decisions of this Court in Surya Kant Roy v.
Imamul Hak Khan Nizamuddin Ahmed v. Narbada Prasad & Ors; Venkata Reddy v.
R. Sultan & Ors;
Bir Chandra Borman v. Anil Sarkar & Ors.
Romji Prasad Singh v. Ram Bilas Jha & Ors; Lakshmi Raman Acharya v. Chandan
Singh & Ors Amolak Chand Chhazed v. Bhagwandas Arya & Ors.
Ramanbhai Nagjibhai Patel v. Jashvant Singh
Udesingh & Ors.
Haji C.H. Mohammad Koya v. I.K.S.M.A.
We may now refer to two decisions of this
Court rendered this year where the same question had arisen for consideration.
In A. Younus Kunju v. R.S. Unni & Ors. one of us observed:
"There is total consensus of judicial
opinion that a charge of corrupt practice under the Act has to be proved beyond
reasonable doubt and the standard of proof is the same as in a criminal case...
In Manmohan Kalia v. Yash & Ors. a three
Judge Bench reiterated;
1075 "It is now well settled by several
authorities of this Court that an allegation of corrupt practice must be proved
as strictly as a criminal charge and the principle of preponderance of
probabilities would not apply to corrupt practices envisaged by the Act because
if this test is not applied a very serious prejudice would be caused to the
elected candidate who may be disqualified for a period of six years from
fighting any election, which will adversely affect the electoral process."
It is thus clear beyond any doubt that for over 20 years the position has been
uniformly accepted that charges of corrupt practice are to be equated with criminal
charges and proof thereof would be not preponderance of probabilities as in
civil action but proof beyond reasonable doubt as in criminal trials. We are
bound by the decision of the larger Bench in Mohan Singh's case (supra) as also
by decisions of coordinate benches and do not feel inclined to take a different
view. We also find no warrant for the contention of Mr. Shanti Bhushan that a
fresh look is necessary in the matter. On the other hand we feel advised to
follow the dictum of Lord Devlin when he observed:
"Precedents keep the law predictable and
so more or less ascertainable." Lord Chancellor Hailsham very
appropriately summed up the English practice when he said in Broom v. Cassell
"Their Lordships regard the use of
precedent as an indispensable foundation upon which to decide what is the law
and its application to individual cases. It provides a least some degree of
certainty upon which individuals can rely in the conduct of their affairs, as
well as a basis for orderly development of legal rules." A judge-made
change in the law rarely comes out of a blue sky. Rumblings from Olympus in the
form of obiter dicta will give warning of unsettled weather. Unsettled weather
is itself, of course, bound to cause uncertainty, but inevitably it precedes
the acceptance of a change. Such a situation has not arisen yet and, therefore,
a 1076 rethinking as suggested by Mr. Shanti Bhushan is not warranted.
One more aspect should be referred to here
before we proceed to examine the facts of the case. A five judge Bench of this
Court in Jagannath v. Jaswant Singh & Ors. indicated that election disputes
are not cases at common law or equity but are strict statutory proceedings and
result of an election is not available to be interfered with lightly. It was said:
"It is also well settled that it is a
sound principle of natural justice that the success of a candidate who has won
at an election should not be lightly interfered with and any petition seeking
such interference must strictly conform to the requirements of the law.
This view has been reiterated by this Court
in Venkata Reddy's case (supra).
We have already taken note of the position
that the election has been set aside in the present case on a finding of
commission of two corrupt practices, one relating to the election meeting in
Village Gandiwind on May 20, 1980, and the other relating to the allegation of
bribery in the matter of Bagicha Singh. We shall now proceed to deal with these
two aspects separately.
The corrupt practices as alleged in the
election petition have been found by the High Court to come within the ambit of
sub-sections (1) and (2) of s. 123 of the Act.
The legal position is well settled, and it
has not been disputed before us, that the Act is a complete Code by itself on
the subject of elections to Parliament as also to the State Legislatures and an
election can be declared void only if one or the other of the stated grounds in
s. 100 of the Act is attracted. Section 100 (1) (b) provides that if corrupt
practice is committed by a returned candidate or his election agent or by any
other person with the consent of the returned candidate or his election agent,
the election of the returned candidate shall be declared void.
The relevant provisions in s. 123 may now be
"123. Corrupt practices-The following
shall be deemed to be corrupt practices for the purposes of this Act:- 1077 (1)
'Bribery', that is to say,- (A) any gift, offer or promise by a candidate or
his agent or by any other person with the consent of a candidate or his
election agent of any gratification, to any person whomsoever, with the object,
directly or indirectly, of inducing- (a) x x x x x (b) an elector to vote or
refrain from voting at an election, or as a reward to- (i) x x x x x (ii) by
any person whomsoever for himself or any other person for voting.... or
inducing or attempting to induce any elector to vote............
Explanation-For the purposes of this clause
the term 'gratification' is not restricted to pecuniary gratifications or
gratifications estimable in money and it includes all forms of employment for
reward but it does not include the payment of any expenses bona fide incurred
at, or for the purpose of, any election and duly entered in the account of
election expenses referred to in section 78.
(2) Undue influence, that is to say any
direct or indirect interference or attempt to interfere on the part of the
candidate or his agent, or of any other person with the consent of the
candidate or his election agent, with the free exercise of any electoral right:
Provided that- (a) without prejudice to the
generality of the provisions of this clause any such person as is referred to
therein who- (i) threatens any candidate or any elector, or any person in whom
a candidate or an elector is interested, with injury of any kind including
social ostracism and excommunication or expulsion from any caste or community;
or 1078 (ii) ........shall be deemed to interfere with the free exercise of the
electoral right of such candidate or elector within the meaning of this
clause." We shall first deal with the Gandiwind incident of may 20, 1980.
The election petition in paragraph 5 makes allegations with reference to this
incident. For convenience the contents of the entire paragraph are extracted:
"5. That the respondent No. 1 along with
Gurdial Singh, Hardial Singh, Rachhpal Singh sons of Tara Singh, Kulwant Singh
son of Sewa Singh, Gurnam Singh son of Jinda Singh hatched a conspiracy not to
allow the akali candidate respondent No. 2 and his supporters to hold any
meeting or do any canvassing at Village Gandiwind on 20.5.1980. They had
collected at the house of Gurdial Singh at about 1. 30 P.M. where the above-
mentioned decision was taken. At about the same time the villagers were
collecting for a meeting at the place known as Hadur-Shah and that meeting was
to be addressed by S. Lehna Singh Tur, M.P. and respondent No. 2. At about 2
P.M. the aforesaid persons armed with fire arms except respondent No. 1 came
out of the house of Gurdial Singh. Then the respondent No. 1 told them not to
allow the meeting to proceed at any cost and himself stayed behind. On reaching
the meeting place, they stood by at one side of the Jalsa. At about 2. 30 P.M.
when S. Lehna Singh Tur reached at the meeting, these persons started shouting
slogans against respondent No. 2 and S. Lehna Singh and in favour of Respondent
No. 1 and caused obstruction in the proceedings of the Jalsa and did not allow
S. Lehna Singh Tur to speak. When Piara Singh son of Inder Singh, Daya Singh
son of Ishar Singh requested them not to do it and tried to stop them, they got
into a rage and started hurling abuses at respondent No. 2, S. Lehna Singh Tur
and others and suddenly started firing.
On this the people started running for
shelter and a shot fired by Gurdial Singh hit Daya Singh son of Isher Singh on
his forehead who fell down and the shots fired by the others hit Piara Singh
son of Inder Singh, Kehar Sing son 1079 of Gujjar Singh and Kewal Singh son of
All the aforesaid persons kept on firing
shots which were returned by some people." The Akali Party had organised a
meeting in the village to make election propaganda for respondent No. 3 and PW.
4 was the organiser. S. Lehna Singh, PW. 7 who was a sitting Member of the Lok
Sabha was to address that meeting. It is the admitted position that the Akali
candidate S. Ranjit Singh was not to, and did not, come to the meeting. It is
also the common case of both the parties that the appellant who was another
contesting candidate also did not come to the place of the meeting. There is
evidence, and Mr. Sibal for the appellant did not dispute the position, that
the meeting so convened was disturbed. The disturbance to the meeting is said
to have been caused by a group of people consisting of Gurdial Singh, Hardial
Singh, Rachhpal Singh, Kulwant Singh and Gurnam Singh. There is no specific
plea that these five persons were agents of the appellant.
Chapter II of the Act deals with agents and
refers to appointment of election agent, polling agent and counting agent.
Admittedly, by may 20, 1980, none of these persons was an agent of any of these
classes of the returned candidate. The only other aspect by which the appellant
would be liable for the action of these five people would be if their act of
disturbing the meeting was with his consent.
There is evidence which the High Court has
accepted that when PW. 7 arrived at the meeting place and slogans in favour of
the candidate and PW. 7 were raised, Gurdial Singh and his group raised counter
slogans. Soon disorder spread.
When PW. 4 and Daya Singh wanted to pacify
the situation with a view to making the holding of the meeting possible,
Gurdial Singh opened fire from his rifle which hit Daya Singh on the forehead.
Others who were armed with 12 bore guns also fired their arms and with pellets
coming from their firearms many were injured. Though Mr. Sibal made a serious
attempt to combat the finding of the High Court regarding the disturbance to
the meeting, we are inclined to agree with the High Court that the meeting
convened by the Akali Party in Village Gandiwind on may 20, 1980, where PW.
7 was to address the electors was disturbed
by Gurdial Singh and others. The fact that firearms were freely used first by
Gurdial Singh and his party and then by way of retaliation by Akali workers and
gun shots resulted the death of Daya Singh 1080 and thus a grave situation
arose is really not very material unless that would amount to a corrupt
practice within the meaning of s. 123 (2) of the Act. According to Mr. Sibal,
disturbing an election meeting is not undue influence and for the matter of
that a corrupt practice, but has been separately provided for in s. 127 of the
Act and is an electoral offence. Section 127 provides:
"127. Disturbances at the election
meeting- (1) Any person who at a public meeting to which this section applies
acts, or incits others to act, in a disorderly manner for the purpose of
preventing the transaction of the business for which the meeting was called
together, shall be punishable with fine which may extend to two hundred and
(2) This section applies to any public
meeting of a political character held in any constituency between the date of
the issue of a notification under this Act calling upon the constituency to
elect a member or members and the date on which such election is held...."
Undoubtedly the meeting in question is squarely covered by sub-s. (2) of s. 127
and the role assigned to Gurdial Singh and his group would certainly bring it
(1) of that section. It is not open to doubt
that Gurdial Singh and his supporters in the event of the allegations being
accepted had committed an electoral offence within the meaning of s. 127 of the
The question that has next to be considered
is whether disturbing such a meeting would also amount to undue influence under
s. 123 (2) of the Act. Direct or indirect interference or attempt to interfere
with free exercise of the electoral right by a candidate, his agent or any
person with his consent or the candidate's election agent has been made a
corrupt practice. "Electoral Right" has been defined in s. 79 (d) of
the Act to mean the right of a person to stand or not to stand as or to
withdraw or not to withdraw from being a candidate or to vote or refrain from
voting at any election.' In paragraph 5 of the election petition there is no
allegation of any threat. It is proper at this stage to refer to the pleadings
in paragraph 6 of the election petition where it has been pleaded:
1081 "That later on the same day aforesaid
assailants threatened that any body who will support or vote for respondent No.
2 shall meet the same fate as Daya Singh. Gurdial Singh son of Tara Singh along
with others created such a terror in the Village that subsequently it became
very difficult and risky for anyone to canvass for respondent No. 2 in this
Disturbing the meeting as alleged in
paragraph 5 of the election petition in our view is not covered under sub-s.
(2) of s. 123 of the Act and is clearly an
electoral offence dealt with by s. 127 of the Act. The allegations contained in
paragraph 6 of the election petition would perhaps come within s. 123 (2) (a)
(i) of the Act. In paragraph 5 of the election petition the following fact had
"Then the respondent No. 1 told them not
to allow the meeting to proceed at any cost and himself stayed behind".
If this statement of fact is accepted consent
of the appellant for disturbing the meeting can be found but in the absence of
any specific plea that it was appellant's instruction that the electors should
be threatened, the facts alleged in paragraph 6 of the election petition cannot
be accepted to have been with the consent of the appellant.
Mr. Shanti Bhushan, learned counsel for
respondents 1 and 2 has not disputed, and in our opinion rightly, that
allegations of corrupt practice have to be strictly pleaded with material
particulars and evidence beyond the ambit of plea would not be permitted to be
led. Though there is some oral evidence to implicate the appellant, even for
what followed the disturbance to the meeting, we do not think in the absence of
the requisite plea such evidence can be entertained for any effective purpose.
Though in paragraph 5 of the election
petition the link between the appellant and Gurdial Singh and his group was
pleaded in the manner extracted above, oral evidence was led particularly by
PWs. 10 and 11 about the details of instructions given by the appellant to
create disturbance at the meeting. The learned trial judge applied his mind to
the evidence and came to held:
"Whether that omission from the election
petition was due to the fact that they had not given these facts to the 1082
petitioner, whom, as per their testimony they had met a few days after the
announcement of the election result;
or had given the version, and the petitioner
did not retain in his memory the version that was given to him when instructing
the counsel, who drafted the petition.
Be that as it may, the fact remains that the
version remains omitted from the petition. I am, therefore, out of abundant
caution, not prepared to go to the extent of accepting the version of these two
witnesses that they had heard respondent No. 1 telling Gurdial Singh and his
co-accused to disturb the meeting and the latter having assured him that they
would do the needful".
We agree with the said conclusion of the
learned trial Judge in the facts and circumstances of the case.
Mr. Shanti Bhushan next contended that even
if the conversation between the appellant and Gurdial Singh and his group is
discarded, the fact that the appellant had come to the house of Gurdial Singh
in Village Gandiwind cannot be disbelieved. Learned counsel for both sides have
placed the entire evidence of the witnesses twice over before us. Mr. Sibal has
asked us to discard the evidence of PW, 10 and 11 in support of the visit of
the appellant to the house of Gurdial Singh while Mr. Shanti Bhushan has
contended that the defects highlighted by Mr. Sibal do not make the evidence
liable to rejection. In our opinion, it is totally unnecessary to go into this
aspect of the matter as we have already found that even if the appellant had
consented to disturbing the meeting it did not amount to "undue
influence" so as to be a corrupt practice within the meaning of the Act.
Evidence was led again without any material
pleading that the appellant had used his influence to protect Gurdial Singh
from police harassment as also to ensure that he was not arrested. It is not
disputed that Gurdial Singh was an Akali supporter at previous elections and
continued his allegiance to the Akali Party until a few months before the
election of 1980. On account of personal disputes with some of the Akali
members he switched over his support to the opposite faction. It is not in
dispute, however, that Gurdial Singh was a supporter of the appellant and had
even worked as his polling agent in the Gandiwind booth. To extend protection
to a supporter, particularly, a fresh but powerful supporter, is normal 1083
human conduct. The fact that protection had been extended by the appellant to
Gurdial Singh and members of his family even by raising quarrel with the local
police inspector would not lead to a backward presumption of consent for the
acts of Gurdial Singh. Consent is the life line to link up the candidate with
the action of the other person which may amount to corrupt practice and unless
it is specifically pleaded and clearly proved-in view of the fact that all
ingredients have to be proved beyond reasonable doubt-the appellant cannot be
charged for the action of Gurdial Singh and his group.
In paragraph 7 of the election petition
allegation was made of exercise of undue influence on the date of polling by
appointing Gurdial Singh as appellant's polling agent in the Gandiwind polling
booth. Some oral evidence has been led in support of that plea. The field of
operation of the polling agent is within the polling booth itself where the
polling agents of the contesting candidates would be present, the Presiding
Officer of the polling booth and other public functionaries would also be
present. No complaint in writing had been given against the illegal activity of
Gurdial Singh within the polling booth.
Contemporaneous attention of the Presiding
Officer could have been drawn to such nefarious act, if any. There is no
evidence that the Presiding Officer or the polling officers had been notified
of any such complaint. There is clear evidence also that voting was free and
quite a large percentage of the voters had exercised their electoral right.
These are circumstances which clearly militate against the allegation of the
election petitioners that voters had been threatened and their free exercise of
electoral right had been affected. It is difficult for us to accept the
submission of Mr. Shanti Bhushan that by appointing a person charged for murder
as polling agent the appellant had exercised undue influence. It is not his
contention that Gurdial Singh has not the requisite qualification for being
appointed as a polling agent and his appointment was bad in law. Mr. Sibal has
indicated that until then there was only a charge of murder and he made a
statement from the Bar that Gurdial Singh has been acquitted of the charge in
due course, with that we are of course not concerned. In the absence of
requisite pleading, want of any contemporaneous compliant in writing or
otherwise to the public officers within the polling booth and the nebulous
nature of the oral evidence placed from the side of the election petitioners,
we are not inclined to agree with Mr.
Shanti Bhushan that any objection could
really be taken to the election on 1084 account of Gurdial Singh having acted
as polling agent in the particular electoral booth.
The High Court clearly overlooked the fact
that disturbing the election meeting by itself did not constitute undue
influence. For establishing the link between the disturbance of the meeting and
the returned candidate the evidence is wholly oral in character and has to be
scrutinised with greater rigour. Merely on the statement of some of the witnesses
who were essentially Akali Party workers or supporters a charge of corrupt
practice could not have been taken as proved. The approach of the learned trial
judge to the matter is contrary to law as settled by decisions of this Court
relating to corrupt practice and proof thereof.
Even if the charge of this corrupt practice
fails, if the other is accepted the decision of the High Court cannot be
interfered with because one corrupt practice would be sufficient to have the
election declared as void. We shall, therefore, now proceed to examine the
material with reference to the Bagicha Singh episode.
The requisite pleading for this part of the
allegation is available in paragraphs 8 and 9 of the election petition.
It is appropriate that we extract the same
"8. That on 28. 5. 1980 the respondent
No. 1 visited villaged Chola-Sahib and there while requesting for votes, he
went to the house of Mistri Bagicha Singh Chakiwala and asked him for his vote
and votes of other family members and friends. During this some others
belonging to the village had also collected around him.
Shari Bagicha Singh told him that the
uncovered electric wires were dangerously passing above his house and despite
his best efforts he has not been able to get them removed and the sum being
demanded for their removal was beyond his means. He further told him that
whosoever gets this job done will get his family's votes and he would help him
get the votes of his brotherhood also. On this the respondent No. 1 said that
he would get the needful done and they should not bother about the expenses
involved in case they promised him the votes of his brotherhood. On this
Bagicha Singh said that respondent No 2 had also come to him and we had put our
problem to him also but he had said 1085 that he would help them get the wires
shifted after the election. On this the respondent No. 1 said that he would get
the needful done before the election and pay the expenses also. On this Bagicha
Singh agreed to poll all the votes of his family and also assured that he would
help respondent No. 1 in getting the votes of his brotherhood as well".
"9. That the respondent No. 1 approached
the Punjab State Electricity Board Employees concerned and put pressure on them
and also get the amount deposited and the wires were removed on 30. 5. 1980.
The respondent No. 1 is guilty of having committed the corrupt practice of
bribery as defined under section 123, sub-sections A & B of the Act and his
election is liable to be declared void under section 100 of the Act on the
ground of this commission of this corrupt practice of bribery. The respondent
No. 1 has received more than 200 votes by committing this corrupt practice and
the election of respondent No. 1 has been materially affected and but for the
votes obtained by respondent No. 1 by the commission of this corrupt practice,
the respondent No. 2 would have obtained a majority of valid votes and he has a
right to be declared as elected".
Commission of corrupt practice per se makes
the result of election void when the corrupt practice is committed by the
returned candidate. The allegation here is that the appellant, the returned
candidate, had personally committed the corrupt practice. The evidence shows
that Bagicha Singh is a resident of Chola-Sahib. On September 13, 1978, notice
was given to him by the Electricity Board that he should demolish his
construction on the first floor as it was too close to the over-hanging
electric wire. A second notice was given to the same effect on July 13, 1979. Within
a week, i.e. on July 20, 1979, Bagicha Singh made the initial deposit of Rs.
100 with a view to shifting of the over- hanging electric wires as such
shifting would save the construction from being required to be demolished. The
estimate had not been prepared notwithstanding the deposit of Rs. 100. When the
matter stood at such stage, on May 28, 1980, appellant is alleged to have
approached Bagicha Singh at his house in the course of election propaganda.
The requisite pleadings in paragraphs 8 and 9
of the election petition were on the basis of disclosure made by PW. 12. That
witness stated in his evidence:
1086 'S. Surinder Singh Kairon and others
including myself while canvassing for votes, reached the house of Bagicha
Singh. Makian Singh was present in the house of Bagicha Singh. When S. Surinder
Singh Kairon asked for his votes and for getting the votes of his Biradri, he
replied that he had a bit of problem of getting the over-hanging electric wire
removed from his house. He went on to say that although he had deposited Rs.
100 about two years back yet the department had not taken any action and they
were asking for a further deposit of Rs. 1000 which amount he did not have and
that when S. Ranjit Singh visited him, he had told him also the same thing. S.
Ranjit Singh is said to have told him that he would get it done after the
election was over.
Bagicha Singh made it clear that anybody who
would solve his problem would get his own and family votes.
Thereupon S. Surinder Singh said that he
would get the needful done before the polling date and that he should not
worry. They canvassed two more house and thereafter I left them".
The evidence of PW. 12 does not mention
anything about the financial aspect involved in the deal though the election
petition refers to that part of it. From the documentary evidence it appears
that on May 29, 1980, the estimate was prepared and Rs. 944 was required to be
deposited. The S.D.O. of the State Electricity Board at Sarhalli sent his
estimate to the Executive Engineer whose office was located at Patti, some
distance from Sarhalli.
The estimate was drawn in the name of Bagicha
Singh. The deposit appears to have been made on May 30, 1980, in the name of
Bagicha Singh also and the removal was done on the same day. P.W.6 is the
S.D.O. who has produced some of the papers and has spoken about events with
reference to the record. He was not there at the relevant time and has candidly
admitted that he was not personally aware of anything. That an old pending
matter where no action was being taken has been done too quickly is not open to
We are prepared to assume on the basis of
submissions made by Mr. Shanti Bhushan that in the facts of the case, Sardar
Surinder Singh was likely to have taken some interest in ameliorating the
difficulties of Bagicha Singh; otherwise where there was no movement for about
a year since the deposit of Rs. 100 everything could not have been done
1087 The demand of Rs.944 as per the estimate
had been raised, P.W.6 has said that the demand was against Bagicha Singh and
the deposit has been made and the receipt in the name of Bagicha Singh has been
prepared. It was bound to be so. The material aspect for consideration is as to
who deposited the amount. Was it Bagicha Singh or was the source the unseen
hands of the appellant ? On this material particular there is practically no
evidence. We cannot accept the submission of Mr. Shanti Bhushan that in the
facts of the case learned trial judge was right in accepting the case of the
election petitioners that Surinder Singh deposited the money. We have already
taken note of the fact that there was no clear plea in the election petition
that the money had been deposited by Surinder Singh though in paragraph 8 it
was stated that on 28.5.1980 appellant had told Bagicha Singh that he (Bagicha
Singh) should not bother about the expenses involved. There is no oral evidence
even to suggest that Surinder Singh caused the amount to be deposited. There is
a presumption that the person is whose name the receipt been drawn up was the
payer of the amount and burden lay on him who wanted to contend that the facts
were otherwise. We cannot therefore, in these circumstances, accept the
conclusion of the learned trial judge which is vehemently supported by Mr. Shanti
Bhushan that Surinder Singh had got the estimated demand deposited with the
authorities of the Board.
A candidate is entitled to canvass for votes.
One who is in the filed to be an electoral representative is also entitlen to
nourish his constituency. As pointed out by this Court in Bhanu Kumar Shastri's
case, amelioration of grievances of the Public is innocuous and cannot be
construed against a candidate. We agree that while nourishing is a legitimate
activity, it is of paramount importances that nourishing should not transgress
the limit so as to corrupt the electoral process. The appellant was already in
the field as a candidate for the legislature and was entitled to help the
people in his constituency in a legitimate way. Once the allegation that he had
deposited the amount of Rs. 944 is discarded, his taking up of the cause of
Bagicha Singh for early shifting of the electric wires overhanging the first
floor of his house would not amount to 'bribe'. At any rate, the evidence on
record is only of PW. 12. We do not think that evidence even if accepted as a
whole would be sufficient to establish the charge of corrupt practice on this
score. This Court has rightly indicated that oral evidence, particularly,
coming from a tainted source cannot form the sole basis of proof 1088 of
corrupt practice. In Younus Kunju's case,(supra) it has been stated:
"Admittedly all these witnesses were the
workers of the appellant. There is overwhelming material on the record, and
even counsel fairly admitted, that the election was fought on party basis and
there was sharp division of the electorate on the basis of political parties.
That being the position workers at the election with party alignment would
necessarily be political supporters of the respective candidates and when
called as witnesses they would support their stand. Instances are not uncommon
where such witnesses support their respective candidates and their cases though
the same be far from truth. In such circumstances we do not think on the oral
testimony of these four witnesses the charge of publication of objectionable
materials can be said to have been established." PW.12 was a supporter of
the Akali Party as stated by him though he also indicated that he had
accompanied the appellant in the course of canvassing for votes to Bagicha
Singh's house. A sum total view of the evidence, in our opinion, falls short of
the legal requirement for finding corrupt practice. Here again, we are of the
view that the High Court went wrong in accepting the case of the election
petitioners that the appellant had committed corrupt practice for procuring the
votes of Bagicha Singh, members of his family and his friends by getting the
over-hanging electric wires removed. After all, if there be any scope for
doubt, it must resolve in favour of the appellant who was facing a
The appeal has to succeed. We accordingly
reverse the decision of the High Court and uphold the election of the
appellant. The finding of the High Court that he was guilty of corrupt practice
under ss. 123(1) and (2) stands vacated.
Parties are directed to bear their own costs
M.L.A. Appeals allowed.