CIVIL APPELLATE JURISDICTION: Civil Appeal No. 463 of
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 the Appellant.
Shanti Bhushan, Jitendra Sharma, Manjit Singh Khaira and Ms. Deepa Bhushan for the Respondent.
The Judgment of the Court was delivered by
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
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 incidentsGandiwind meeting and Bagicha Singh episode-mainly consisted of oral statements of witnesses.
Some documents, such as the FIR, injury reports, etc. 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 reappreciation 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
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 High Court. 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
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 forums.
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.
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
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 be exercised.
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 v. 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
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.
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
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. indicated:
"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.
In Ch. Razik Ram v. Ch. Jaswant Singh Chouhan & Ors. Sarkaria, J. spoke for this Court in the following terms:
"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
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. Muthukoya.
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;
"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 & Co.
"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
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 extracted:
"123. Corrupt practices-The following shall be
deemed to be corrupt practices for the purposes of this
Act:-
(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
(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
of Gujjar Singh and Kewal Singh son of Surain Singh.
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
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 fifty rupees.
(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 within sub-s. (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 Act.
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:
"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
village".
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 been pleaded:
"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
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
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
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 for convenience:
"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
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 overhanging 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:
’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 doubt. 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 overnight.
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
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 quasi-criminal charge.
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 throughout. M.L.A. Appeals allowed.