Shri Umed Vs. Raj Singh & Ors [1974] INSC 162 (28 August 1974)
PALEKAR, D.G.
PALEKAR, D.G.
BHAGWATI, P.N.
SARKARIA, RANJIT SINGH
CITATION: 1975 AIR 43 1975 SCR (1) 918 1975 SCC (1) 76
CITATOR INFO:
F 1976 SC1187 (29) F 1977 SC1634 (5,9) R 1982 SC 149 (229) E 1991 SC 101 (227)
ACT:
Representation of the People Act (43 of 1951), s.
123(i)(A)(a)--"Withdraw from being a candidate." if includes "retire from contest after last date of withdrawal of candidature under s. 37."
HEADNOTE:
With respect to the election to the State Legislative Assembly the last date for filing nominations was fixed on 11th February, 1972, and the last date for withdrawal of candidature was fixed on 14th February, 1972. The poll was held on 11th March, 1972 and the appellant, who polled the highest number of votes, was declared elected on 12th March.
The respondent filed an election petition challenging the appellant's election alleging that he was guilty of several corrupt practices. The High Court found that, (1) the appellant committed a corrupt practice by hiring and procuring two jeeps and two trucks for the free conveyance of electors to and from the polling stations, and (2) that the appellant committed bribery within the meaning of s. 123 (1)(A)(a) in so far as he, on March, 10, 1972, made a payment of Rs. 1000/to one of the contesting candidates, with the object of inducing him to continue to stand as a candidate at the election and not to withdraw from it, in order to wean away votes of Harijans and members of backward classes from the respondent; and set aside the appellant's election.
in appeal to this Court,
HELD : (1) On the evidence, there was proof of corrupt practice by the appellant only in relation to one truck.
There was no acceptable evidence regarding the two jeeps, and, with respect to the other truck, though it was used for the purpose of conveying electors it could not be held, on the evidence that the appellant or his election agent had procured it for the conveyance of electors. But on that one single ground of corrupt practice found, the order of the High Court setting aside the election of the appellant must be confirmed. [933 E; 934D; 937 A-B; 939 G] (2) The High Court erred in holding that there was any bribery by the appellant within the meaning of s.
123(1)(A)(a) of the Representation of the People Act, 1951, with respect to one of the contesting candidates as alleged by the respondent. It must also be held on the evidence that even if any amount was paid to that contesting candidate it was not with the object of inducing him not to withdraw from the contest. [929 F] (3) Further, s. 123(1)(A)(a) is inapplicable to a situation where a candidates retires from the contest after the date fixed for the withdrawal of his candidature., The words "to withdraw or not to withdraw from being a candidate' in the clause refer to the stage of withdrawal of candidature under s. 37, and they do not apply to a situation where a contesting candidate announces that he does not wish to contest the election or declares his intention to sit down after the last date for the withdrawal of candidature under s. 37 is past and a list of contesting candidates is published under s. 38. [940 H-941 C; 946 C-F] (a) The democratic form of Government requires that the election process must remain pure and unsullied. To secure this various provisions have been made in the Representation of the People Act, 1951, one of which is s. 123 (1)(A)(a).
It must, therefore, be construed so as to suppress the mischief and advance the remedy. But that does not mean that a construction should be adopted which ignores the plain natural meaning of the words or disregards the context and the collocation in which they occur. The words used by the legislature must be construed according to their plain natural meaning, and, in order to ascertain that true intention of the legislature the court must not only look at the words used by the legislature but also have regard to the context and the setting in which they occur. The word "context" is used in a vide sense which 919 requires that all the provisions of the Act which bear upon the same subject matter must be read as a whole and in their entirety, each throwing light and illumining the meaning of the other. [943 F-944 C] (b) Section 55-A relating to retirement from contest, was introduced in the 1951-Act by the Amending Act 27 of 1956.
The Amending Act amended s. 123(1)(a) also, by adding the words "or to retire from contest and the amended clause provided that, bribery with the object, directly or indirectly, of inducing a person to stand or not to stand as or to withdraw from being a candidate or to retire from contest at an election, shall be deemed to be a corrupt practice. Section 55A, however, was deleted by the Amendment Act, 58 of 1958. Since the provision for retirement from contest was thus deleted consequential changes were also made in, s. 123(1) (a) by deleting the words "or to retire from the contest," from it. 1946 F-G] (c) The addition of the words "to retire from the contest in s. 123(1)(a) after the introduction of s. 55A in the Act shows that the original words "to withdraw from being a candidate were not regarded as sufficiently comprehensive or wide enough to cover a situation where a contesting candidate retires from the contest. The court should, as far as possible, construe a statute so as to avoid tautology or superfluity. It would not, therefore, be right to place a meaning on the words "to withdraw from being a candidate" which would have effect of rendering the succeeding words "to retire from contest" superfluous and meaningless. The Court must proceed on the basis that the words "to retire from the contest" were deliberately and advisedly introduced by the legislature with the definite purpose of adding something which had not been said in the immediately preceding words and were not intended merely to repeat what was already enacted there. The words "to withdraw from being a candidate" could not therefore. at that stage, be read as applying to an event where a contesting candidate retires from the contest. And if that was the meaning of those words then, the subsequent deletion of the words "to retire from the contest" could not have the effect of adding to or expanding that meaning. [946 F-947 E] (d) The words "to withdraw from being a candidate" cannot be read in isolation. The concept of withdrawal of candidature is already dealt with in two earlier provisions, namely, ss. 30(c) and 37. Section 30(c) speaks of the last date for withdrawal of candidature, and how the candidature may be withdrawn on or before the last date, is provided for in s. 37. It is reasonable to presume, though the presumption is not of much weight and can be displaced by the context, that the expression "withdrawal of candidature" is used by the legislature in all these sections in the same sense. Therefore, in s. 123 also, the expression must mean withdrawal before the last date fixed for withdrawal of candidature as contemplated in s. 37. [946 A-F] Mills v. Mills (1963) p. 329 and I.R.C. v. Henry.
Anisbacher &Co., [1963] A.C. 191. referred to.
(e) Further, the word "withdraw" in the clause does not stand alone. It is part of a composite expression, "to withdraw from being a candidate." When a person withdraws from, being a candidate, he ceases to be candidate, that is, he is no more a candidate. Clause (b) (i) uses the expression "having withdrawn his candidature" and Cl. (B) (b) uses the expression "to withdraw his candidature they denote the same idea. The only mode in which the candidate can withdraw his candidature and cease to be a candidate is that set out in s. 37. Until the last date for withdrawal of candidature he has a locus poenitentiae and be can withdraw from being a candidate by giving a notice in writing to that effect under s. 37; but once that date is past, he becomes a contesting candidate and he has no choice. No subsequent change of mind can help him to get out of the fight; and whether he likes it or not, whether he energizes himself or not, whether he actively campaigns or not, he remains a contesting candidate and the voters can cast their votes for him and even elect him, despite himself. He cannot, therefore, cease to be a contesting candidate, and if that be so, it must follow a fortiorari that he cannot withdraw his candidature or withdraw from being a candidate, once the last date for withdrawal of candidature under s. 37 is past [945 C-H] 920 (f) The different view taken in Mohd. Yunus Saleem's case (A.I.R. 1974] S.C. 1218) is erroneous and must be overruled.
That case placed emphasis upon the etymological meaning of the word "withdraw" ignoring its contextual, setting and interrelation with the other provisions of the Act, and without considering the effect of the introduction and deletion of s. 55A. Even if "withdraw" were etymologically comprehensive enough to connote" retirement from contest, "retirement from contest" is impossible under the Act after the deletion of s. 55A. The Court was also impressed by the fact that if the words "to withdraw from being a candidate" were given a restricted meaning confined to the stage of withdrawal of candidature under s. 37, an absurd position would arise " where actual withdrawal after the time limit by taking bribe will be free from the vice of corrupt practice whereas that prior to it will not be so." But the function of the court is to gather the intention of the legislature from the words used by it and it would not be right for the court to attribute an intention to the legislature, which though not justified by the language used by it, accords with what the court conceives to be-reason and good sense and then bend the language of the enactment so as carry out such presumed intention of the legislature.
For the Court to do so would be to overstep its limits.
Factual withdrawal under the Act has no legal effect. It is no withdrawal at all, because, the candidate continues to be a contesting candidate and he is as much in the contest as he was before the announcement. The word "withdrawal", in the context in which it occurs cannot be read in a loose and in exact sense to mean something which it plainly does not.
[947 H-948 H]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 936 of 1973.
Appeal from the Judgment & Order dated the 1st May, 1973 of the Punjab & Haryana High Court in Election Petition No. 9 of 1972.
Kapil Sibal, S.K. Mehta, M. Qamaruddin and Vinod Dhawan for the appellant.
E.C. Agarawala and Anand Swarup, for respondent. No. 1.
The Judgment of D. G. Palekar and R. S. Sarkaria, JJ, was delivered by Palekar, J., P.N. Bhagwati, J. gave a separate opinion.
PALEKAR J.-This is an appeal filed by one Umed Singh who was unseated by an Order passed by Narula, J. of the Punjab & Haryana High Court in Election Petition No. 9 of 1972. The election was to the Haryana Legislative Assembly from the Meham Assembly Constituency in Rohtak District in the State of Haryana. Four candidates contested the election. One Raj Singh was set up by the Ruling Congress Party and he polled 19,042 votes. Chatru was set up by the Kisan Mazdoor Party and he polled 4,546 votes. The present appellant Umed Singh stood as an Independent candidate and polled 19,654 votes. Another candidate Tale Ram who also stood as an Independent candidate polle 493 votes. Since the appellant Umed Singh who was respondent No. 1 in the Election Petition polled the highest number of votes he was declared elected.
He was declared elected on 12-3-1972 and the Election Petition was filed by Raj Singh, the Congress candidate on 26-4-1972.
The last date for filing nominations was 11-2-1972 and the last date for withdrawal was 14-2-1972. The poll was held on 11-3-1972 and as already stated the result was declared on 12-3-1972.
921 The Election Petition was filed on the ground that the appellant Umed Singh was guilty of several corrupt practices. The learned Judge held that all the alleged corrupt practices had not been proved but some were.
Accordingly, the appellant's election was set aside.
The corrupt practices of which the appellant was held guilty are as follows (1) That the appellant committed bribery within the Meaning of section 123(1)(A) (a) of the Representation of the People Act, 1951 in so far as be, on March 10, 1972 made a payment of Rs. 1,000/to Chatru-one of the candidates-with the object of inducing him to continue to stand as a candidate at the election and not to withdraw from the same.
(2) That the appellant committed the corrupt practice within the contemplation of section 123(5) of the Act by hiring and procuring the following vehicles for the free conveyance of electors to and from the polling stations on March 11, 1972 between 8.00 A.M. to 5.00 P.M.
(a) Jeep No. PNR 5021 for free conveyance of the voters to and from the polling Station at Madina from the interior of the village and from the fields outside the village.
(b) Jeep No. RRK 668 to and from the polling Station at Sizar from the interior of the village and from the fields outside the village.
(c) Truck No. RRN 8567 to and from the polling station at Chandi from village Indergarh where there was no polling station;
and (d) Truck No. HRR 7101 to and from the polling station at Seman from village Bedwa where there was no polling station.
In the present appeal the appellant has challenged these findings both on facts and law.
Raj Singh, the defeated candidate, who is the principal contestant before us, has not only supported the above findings of the learned Judge but has also claimed a finding in his favour that the election was liable to be set aside on the ground that the appellant had committed the corrupt practice within the contemplation of section 123(7) by obtaining and procuring the assistance of one Dhir Singh, s/o Jodla Singh, a member of the Armed Forces of the Union..
for the furtherance of the prospects of his election by actually canvassing support for him in village Bedwa. The learned Judge recorded a finding against Raj Singh, but it is contended on his behalf hat the finding is manifestly against the evidence.
As already stated the learned Judge had to deal with several allegation of corrupt practices. A large majority of them have been discounted by him and in his view only 5 of them as mentioned above had been satisfactorily established. Undoubtedly the learned judge had to deal with a case in which the evidence was, for the most part, suspect and in this respect we can do no better than quote the learned Judge on the point.
"It appears to be not only appropriate but necessary to give a brier account of the peculiar background of this case in the light of which the entire evidence led by the parties on the various issues has to be appraised. There exists a somewhat fluctuating non-official and nonpolitical Organisation in Meham Constituency which is known as the Chaubisee Panchayat or the Chaubisee. Originally there were 24 villages and the residents of those villages or their representatives used to get together and whatever they decided was called the decision of the Chaubisee. P.W. 17 Swami Indervesh has told the Court that now those villages have been split up into more than 24, but still the joint decision of the representatives of those villages is called the decision of the Chaubisee. The Moham constituency falls within the area of the Chiaubisee with the exception of possibly some villages which do not strictly fall within that area. It appears that this traditional nonofficial panchayat has stilt a good deal of following and its decision in political matters carries some weight. It is the common case of both sides that though the respondent (the present appellant) had stood up to fight the election in question as an Independent candidate, he had been adopted as the candidate of the Chaubisee and was fully and actively supported by the Jan Sangh, the Congress (0) and the Arya Sabha. Though the Arya Sabha had put up some official candidates in other Constituencies for the election to the Haryana Assembly held in March, 1972 and though the respondent (the appellant) was not their official candidate, the Arya Sabha had somehow taken it for granted that the respondent (the appellant), if successful, would be as good as being their candidate as he was an active and important member of the Arya Sabha. Out of the official candidates of the Arya Sabha only one succeeded in the election. The Arya Sabha, however, counted the respondent (the appellant) also as their successful candidate and hoped that he would also join the Arya Sabha as he had been elected with their support and efforts. The respondent (the appellant), after having been elected, frustrated the hopes of the Arya Sabha and the other opposition parties. When the Arya Sabha staged a dharna outside the Haryana Assembly on its opening day, the respondent (the appellant) did not join the same though he was expected to do so. When the Arya Sabha convened a meeting to felicitate the respondent (the appellant) on his success and made all arrangements for the same and proclaimed to the public that the respondent (the appellant) would be honoured in the meeting, the respondent (the appellant) refused to even join and attend the meeting.
Not only did the resPondent (the appellant) let down the parties which had combined to make him successful in the election, but he applied for joining the Congress (R). This conduct of the respondent (the appellant) broke the camel's back and some workers of all the three opposition parties, that is the Arya Sabha, the Jan Sangh and the Congress (0), combined 923 to take a revenge by undoing the wrong which appeared to have been; done to them, by helping the petitioner in getting the respondent (the appellant) unseated if possible by making available to the petitioner ail available material of which those members of the opposition parties happened to be in possession on account of their having been the erstwhile supporters of the respondent (the appellant.) The seal with which some of the active workers of the respondent (the appellants had assisted him in the election was now diverted against the respondent (the appellant) as soon as those workers were cut to the quick by the political somersault taken by the respondent (the appellant). All those workers of the respondence (the appellant), therefore.
focussed their fangs on the respondent (the appellant) It is in these circumstances that there is visible throughout this case a regularly organised attempt on the part of the respondent's (appellant's) erstwhile workers to deprive the respondent (the appellant) of the fruits of the labour of those workers." One has to keep these observations of the learned Judge steadily before one's mind while appreciating the evidence in this case. We shall proceed now to deal with the six findings challenged before us in the order mentioned above.
The case with regard to the bribery of candidate Chatru was that Chatru was set up as a candidate by the present appellant in Order to wean away the votes of the Harijans and members of the backward classes from Raj Singh the Congress candidate. There were about 8,000 to 10,000 voters in the Constituency belonging to that category and Chatru, being a member of the backward class, was expected to obtain the votes of those classes which, it is alleged, used to vote solidly in favour of the Congress candidate in former elections. Indeed. Chatru was formally set up as a candidate of the Kisan Mazdoor Party which had come into existence in recent years. But since it was impossible for a member of the backward class to fight an election for want of funds the appellant, it is alleged, agreed to put him in possession sufficient funds to carry on his election campaign. in pursuance of' the agreement, it is alleged, he was paid in all Rs. 6,500/on four different dates-Rs.
2,000/on February 11, 1972 Rs. 3,000/on February 14, 1972, Rs. 5001on March 6. 1972 and Rs. 1,000/on March, 10, 1972. The appellant denied having set up Chatru as a candidate or having paid him any amount at any time and for and purpose. The learned Judge did not accept the allegations with regard to corrupt practice except in respect of Rs. 1,000/alleged to have been paid on the afternoon of March 10, 1972 which was the day previous to the date of polling. With respect to the sum of Rs.1,0000/he recorded' the finding that Subedar Bharat Singh who was the Election Agent of the appellant had sent Rs.1,000/in cash on March 10, 1972 to Chatru through one Balbir Singh, P. W. 5 and that the said amount was in fact paid to Chatru at Meham with the object of inducing Chatru "not to withdraw from the contest." It is contended on behalf of the appellant firstly. that there was no truth in the allegation that the appellant had through his election, 924 agent paid any amount to Chatru on March 10,1972, much less with the object of inducing Chatru not towithdraw from the contest. Secondly, even assuming that the amount was paid, the evidence-which the appellant described as false-fell far short of proving that the amount was paid with the object of inducing Chatru not to withdraw from the contest. it was contended that the learned Judge fell into the error of treating the expression "withdraw from being a candidate" found in section 123(1) (A)(a) as synonymous with "withdrawing from the contest" when the evidence, taken at its worst, disclosed no more than that Chatru was a little lethargic, for want of funds, in the pursuit of his campaign on March 10, 1972 and the payment had been made with a view to activist him in his campaign. It was contended that appellant was entitled to a finding in his favour on the two above questions. In any event, it was further contended on behalf of the appellant that there could be, in law, no withdrawal from being a candidate after the date for withdrawal was long past on 14-2-1972.
While approaching the question of payment of Rs. 1,000/on 10-3-1972 we cannot ignore the fact that the case was that Chatru was paid in all Rs. 6,500/by the appellant for his election purpose and the learned Judge has disbelieved or, at any rate, not accepted the story with regard to the payment of Rs. 5,500/-.Chatru in his return of expenses submitted to the Election Commissioner had stated that the total expenditure incurred by him was Rs. 900/-. it was argued that it is well-known that candidates do not make a truthful report about the expenses and, therefore, much significance may not be attached to the statement submitted to the Election Commissioner. Be that as it may, we must further note that Chatru had been set up as a candidate by the Kisan Mazdoor Party which had set up 15 or 16 candidates in other constituencies, also. Top officials of that Party land other sympathizers had campaigned for the success of their candidates and it is admitted by Chatru that the campaign was also made in his behalf in his constituency by his Party. Chatru has given evidence on behalf of himself as R2W1 but his evidence is completely biased against the appellant who is supposed to have helped him with funds in his election campaign. If one goes through his evidence one finds that he has come into the witness box only to prove the case of the Congress candidate Raj Singh. On the face of it, therefore, his evidence is very suspect because on his own showing he was wholly hostile to the appellant in the witness box in spite of his case that the appellant had helped him in the election campaign by making over Rs.6,500/to him. But if one has to take him at his word, it is clear that he must have spent more than Rs. 6,000/for his electioneering and on the finding of the learned Judge no more than Rs. 1,000/should have been given to him by the appellant. In that case it is difficult to see where from Chatru got the balance of the amount to spend on his campaign. Evidently a sum of Rs. 1,000/supplied by the appellant on the eve of the election could not have possibly sustained his electioneering, which had started from the second week of February, 72. Therefore, the story about the payment of Rs. 1,000/on 10-3-1972 has to be approached with a good deal of circumspection.
925 It is obvious that the learned Judge would have rejected the evidence of Chatru with regard to the payment of Rs. 1,000/also. but the fact that he found that there was some documentary evidence which supported Chatru's statement.
The case is that on the morning of 10-31972 the appellant and his election agent Bharat Singh met him and enquired from him why he had "turned so lethargic". Chatru says that he told them that he had exhausted his funds, whereupon they promised to send him the money. In the afternoon P W. 5 Balbir Singh came and delivered a sum of Rs. 1,000/to him and obtained his signature on a piece of paper. It is this piece of paper and the writing thereon which has very much impressed the learned Judge and that appears to be the chief reason why he came to the conclusion that this amount of Rs.1,000/must have been paid on that day. The piece of paper is Ext. PW. 5/1. There is a writing thereon admittedly in the hand of Subedar Bharat Singh which reads as follows:
"Bhai Chatru, main ap ke pass ek hazar rupia bhej raha hoon, so aap chunao men mazbooti se datte rahen." which means that the writer had sent Chatru a sum of Rs.1,000/so that he may stand "steadfastly in the election".
Subedar Bharat Singh who was examined on behalf of the appellant as R1W27 admits that this was his writing. But he explains that the writing was a fabrication designed to be used for the purpose of toppling the appellant who after his election with the help of the Arya Sabha and other Parties had turned disloyal to his supporters. It appears that in the first week of April, 72 i.e. the very week in which the new Assembly was to meet, the appellant decided to join the ruling Congress. Bharat Singh has explained that he was so annoyed by the turn-coat activity of the appellant that he became a party to a conspiracy to create evidence for the purpose of helping the election petition which was expected to be filed by Raj Singh. He said that he had not sent any amount with anybody for payment to Chatru on that day and the whole thing was a concoction. The learned judge was no doubt justified in his severe criticism of this witness, but we feel that he lost sight of the caution which he had himself administered with regard to the appreciation of the evidence in this case. The fact is well-established that the former supporters of the appellant had been very much put out by the disloyal activity of the appellant in deciding to join the ruling Congress Party and the witnesses who appeared in support of the election petition made no secret of the fact that they were after the blood of the appellant. Therefore, it is not beyond the bounds of probability that in the first wave of indignation which swept over the appellant's former supporters, Bharat Singh who was the elect-on agent of the appellant and had done considerable work on behalf of the appellant should have agreed to write something which would be detrimental to the interests of the appellant in the election petition. The Writing on the very face of its looks extremely artificial.
Chatru had stated that the appellant and Bharat Singh had seen him earlier that day and promised to send him money.
So all that Bharat Singh need have done was to send the money to Chatru with the messenger or taken the Money himself to Chatru who was at the time in the same village Meham.
926 it was not necessary for him to write at all, much less to say that he was sending Rs. 1,000/"so that he may stand steadfastly in the election", an expression which clearly echoes the supposed requirements of section 123(1)(A)(a).
Moreover' it requires considerable credulity to believe that Bharat Singh would send a message of this nature in writing to Chatru placing in his hands an instrument capable of being used to blackmail the appellant should he succeed in the election. A piece of writing of this nature in the hands of a man of the type of Chatru, as we know him, would have been incredible folly. Subedar Bharat Singh must have been selected as an election agent because of his experience, and we know that the gentleman had on a former occasion, stood as a candidate to the Lok Sabha election. It appears to us that the learned appears to us that the learned Judge has not given sufficient attention to this aspect of the case. He merely went by the Writing and the evidence of Balbir Singh, P.W. 5. according to whom this writing had been handed over alongwith a sum of Rs. 1,000/by Bharat Singh to him to be delivered to Chatru, Balbir Singh who is about 30 years old is admittedly a member of the Arya Sabha. He claims to have worked in the election of the appellant. He says that Bharat Singh gave him Ext.
P.W. 511 and also a sum of Rs. 1,000/to be delivered to Chatru and his case is that he went to Chatru and gave him the money. He took his signature on the back of the chit.
It is rather interesting to know that Chatru is illiterate.
He doesn't know how to read and write. He can merely sign.
It is neither the case of Chatru nor of Balbir Singh that the message contained in the writing was read out to Chatru.
Nor was his signature taken formally below the writing to the effect that Chatru had received Rs. 1,000/-.
Now if this story of Balbir Singh were to be believed we should expect that this document with the signature of Chatru on the reverse should have gone back to Bharat Singh.
But he did not get it back. Balbir says that he kept it with himself. According to him some 8 or 10 days after the election on 11-3-72 he told about this payment to one Beg Raj, P.W. 14 who was also a member of the Arya Sabha. He further says that Beg Raj reminded him that they had done a good deal of work for the appellant in the election and now he had given up the Arya Sabha and joined the Congress Party. He, therefore, requested Balbir to accompany him to the defeated Congress candidate Raj Singh to enquire if this information would be of any use to him. So both of them went to Raj Singh at Rohtak and showed him this chit Ext.
P.W. 511. Raj Singh asked for the chit but Balbir told him that he will not part with it now, but that he will produce the chit in court and thus when Balbir was examined as Raj Singh's witness he produced this document in court. One can see the hostility with which this witness as also the other witness Beg Raj, P.W. 14 pursued the appellant. Both of them belong to the Arya Sabha which had solidly supported the appellant in the election and it is easy to see that they were inclined to leave no stone unturned to see that the appellant who had succeeded in the election should be defeated in court. That the story given by Balbir Singh is patently false is clear from the fact that he says that he had gone with this chit alongwith Beg Raj to Raj Singh within 8 or 10 days after the election. As a matter of fact 927 this was not at all possible, because at the relevant time the appellant had not shown his inclination to join the Congress Party. He was waiting for a proper opportunity.
The new Assembly session was to meet in the first week of April and it is only thereafter that the appellant made his intentions known. In our opinion, neither Chatru nor Balbir nor Be.Raj could be trusted as reliable witnesses in view of their open hostility to the appellant, and since it is extremely unlikely that the Subedar Bharat Singh would place a chit like P.W. 5/1 in the hand of Chatru prior to the election, we cannot accept the finding of the learned Judge that the writing was a genuine document sent by Bharat Singh on the 10th March, 1972. It is also absurd to believe that Chatru would become "lethargic" in his campaign on the eve of the election. it is not the case that he did not actively campaign for himself' alongwith his supporters and members of his Party earlier. One does not quite see how a sum of Rs. 1,000/placed in his hands in the afternoon of 10-3-72 would give a sudden fillip to his dropping spirits. He was a member of a Party which had set up 15 or 16 candidates in the field in other constituencies and it is impossible to believe that Chatru's spirits suddenly dropped on the 10th March, 1972 for want of funds.
A crude attempt was further made by another sympathizer of the Arya Sabha to give added credence to the writing Ext.
P.W. 511. That is P.W. 10 Munshi Ram. He claims to have run the election office of the appellant during the election campaign and in the course of his duties he kept, what is called, a Register Which is P.W. 19/1. The Register describes itself as a "Register of Vehicle arrivals and departure from 28-2-1972 to 15-3-1972". It is true that some entries have been made with regard to vehicles therein but alongwith them other memos are also to be seen in some places and there are entries for some payments also. It was an unpaged book-before it was produced in court. It was paged by order of the learned Judge. Pages 39 to 42 relate to entries showing the distribution of voters lists and other materials to the workers of the appellant. The appellant has accepted these entries as genuine but so far as the other entries are concerned they are not accepted by the appellant. In fact the appellant put forward the case that all the other entries were fabrications made by Munshi Ram after the election. We do not think the, the appellant is telling the truth in that respect. Many entries may be quite true but the book cannot be described as a book kept in the regular course of business. It is kept in a shoddy manner and most irregularly. Many odd entries have been made at odd places. Some entries and memo, important from our point of view, have the distinct appearance of interpolations. The book is not kept continuously. After making some entries on some pages many pages are left blank and then further entries are made. Then again long notes and memos in Urdu are entered in a queer fashion not merely in the reverse order as Urdu books are written but also after turning the book topsy-turvy. We cannot, therefore, allow this memorandum book the dignity of a book written in the regular course of business. No memo or entry made therein can be accepted as reliable unless the court is satisfied about the time at which or the 928 circumstances in which it was made or the contest in which it appears. We have no doubt at all, though it was denied by witness Munshi Ram, that he made this book available to the petitioner who produced it along with the petition. Some of the entries were deliberately introduced with a view to help the election petitioner.
Having thus seen that the so-called register P.W. 19/1 is not reliable in itself we have now to refer to a long entry made therein in Urdu which seems to have considerably impressed the learned Judge on this subject of payment of Rs. 1,000/-. This entry is nearly at the other end of the book at page 94 and when translated in as follows:
"10/3 at about 3.00 p.m. (though) supporters of Raj Singh started a false propaganda to the effect that Chatar Singh (Chatru) has withdrawn from the contest and supporters of Chatar Singh should therefore cast their votes carefully (yet) it does not appeal to reason that Chatar Singh might have thought of taking such a step even in a dream. It is necessary to contact Chatar Singh immediately and it is necessary to have a contradiction of this false rumor being proclaimed as soon as possible from Chatar Singh himself and from his supporters." The learned Judge has fallen into the error of thinking that this entry in the book went a long way in supporting the case of the petitioner that Chatru must have been contemplating withdrawing from the contest on the afternoon of 10-3-1972. One does not see why it was necessary for Munshi Ram to make such an entry. Munshi Ram was not directing the election campaign nor was he giving instructions as to what was to be done from hour to hour.
In fact it was the case of the election petitioner that Chatru was contacted earlier by the appellant and Bharat Singh the learned Judge says that this was in the morning of 10th March, 72, and Chatru had been informed by them that he will receive the necessary funds so that he may. put more vigour in his election campaign. It is also stated that in the. afternoon the amount of Rs. 1,000/was delivered to Chatru through Balbir Singh If that story is true, one does not see the propriety of Munshi Ram writing such a memo at 3 00 p.m. when he himself did not believe the rumour that Chatru was wanting to withdraw from the contest and was convinced that that rumour had been started by the supporters of Raj Singh falsely. It appears to us that this entry is a suspicious entry made by Munshi Ram, in all probability, after it was decided to make this note book available to the election petitioner. In our opinion, the learned Judge was not justified in relying upon this memo made in an odd place in the book in a very artificial manner.
Reference was also made to some other evidence on record to show that since the appellant was very much interested that the backward class and Harijans votes should not go to Raj Singh, the Congress candidate, there was considerable force in the allegation made by Chatru that he had been set up by the appellant with a promise of financial help. In the first place, it must be remembered that Chatru was set up as a candidate by tne Kisan Mazdoor Party. It may be that the appellant would be very happy if a certain block of votes 929 is denied to an opposing candidate. The principal contest was between the Congress candidate and the appellant. It is not the case that Chatru would have been able to defeat either of them in the election. At the same time there is no clear evidence that members of the Scheduled castes and backward classes would have voted for the Congress candidate if there was no backward class candidate. Then again it was difficult to assert that if no Harijan or backward class candidate was in the field the Harijans and backward class votes would not have gone to the appellant. For the matter of that, P.W. 30 Mani Ram who is the resident of village Bedwa has stated that there was greater support for the appellant in his village than for Raj Singh and that actually voters of all classes in the village including Jats, Harijans and members of the backward classes supported his candidature. Indeed it is one thing to say that the appellant Might have been happy if votes which were usually cast in favour of the Congress candidate were cast in Chatru's favour and quite anothersay that with a view to wean away the votes from the Congress candidate he had put up a backward class candidate like Chatru with promise of financial support. The learned Judge has negatived the payment of Rs. 5,500/to Chatru and we have negatived the payment of Rs. 1,000/to him, in which case the only conclusion is that there was no financial support to Chatru from the appellant. When we take this fact alongwith the fact that Chatru had been set up by his own party which had put up 15 or 16 more candidates in other constituencies it will be impossible to hold that Chatru had been set up by the appellant. They may know each other very well and the appellant may be also glad that Chatru had polled more than 4,000 votes which, if distributed unevenly between the appellant and the Congress candidate, might have made a lot of difference to the narrow margin by which the appellant won over Raj Singh. The appellant may have also taken very kindly to Chatru after his victory and both were also photographed with garlands in the victory procession. But that is far from saying that the appellant inspired Chatru's candidature and helped him with financial support. We are, therefore, not inclined to agree with the learned Judge that there was any bribery by the appellant within the meaning section of 123(1)(A)(a) of the Act.
That brings us to the second question raised by the learned counsel for the appellant. It was contended that even if it was assumed that the appellant had paid Chatru a sum of Rs.
1,000/on 10-3-1972 the payment was not shown to be with the object of inducing Chatru " not to withdraw from being a candidate" at the election. The expression postulates that Chatru should want to withdraw from being a candidate but the appellant paid him the amount with the object of inducing him "not to withdraw". The learned Judge seems to have understood the expression "withdraw from being a candidate" as synonymous with "Withdraw from the contest" or "retirement from the contest" and the withdrawal or retirement from the contest )nay take place, in his view, at any time before the actual polling. We shall hereafter, show while dealing with the third question raised by the learned counsel for the appellant that the expression "withdraw from being a candidate" has no application to a situation wherein.
13--M192Sup.CI/75 930 the withdrawal or retirement from the contest takes place after the last date of withdrawal of candidature fixed by the Election programme. Assuming, however, that expression extends also to a withdrawal or retirement from contest after the date of withdrawal, we have to see whether there was evidence in this case to show whether Chatru had decided on 10th March, 72 to withdraw or retire from the contest, and with a view to persuade him not to do so the aforesaid amount of Rs. 1,000/had been paid to him. In our opinion the evidence falls far short of it. Chatru who should know best his own mind does not say anywhere in his evidence that he was contemplating withdrawal from the contest on the 10th March, 72 or at any time. His case is that he was not able to put as much vigour in his campaign on 10-3-72 as was necessary for him to do for want of funds. While telling the court under what circumstances Rs. 1,000/were paid to him, he says in his examination-in-chief "on March 10, 1972 Chaudhary Bharat Singh and respondent No. 1 again met me and enquired why I had turned so lethargic. I told that I had exhausted my funds. They promised to send me the money". Then Balbir Singh came and delivered a sum of Rs.
1,000/to him and obtained his signature on a piece of paper. He then says that "he was taken round in a Jeep fitted with a loudspeaker which announced that he was seriously contesting for the election and had not withdrawn." His statement does not show that he had decided to withdraw from the contest for want of funds. All that could be gathered is that though he wanted to contest the election vigorously he could not do so for want of funds and that had rendered his campaign lethargic. On receiving the amount he got fresh impetus to campaign with energy. In other words, the money had been received by him for boosting his campaign and not because he had decided to withdraw from the context. We are unable to held that slackening of the pace of a campaign for any reason is equivalent to retirement from contest. The latter takes place when a candidate finally decides not to have anything to do with the election and makes it fairly known that he is no longer interested in his own election. We, therefore, accept the contention of the learned counsel of the appellant that even if any amount was paid to Chatru it was not with the object of inducing him not to withdraw from the contest.
The third question raised by Mr. Sibal on behalf of the appellant is that the provision of section 123(1)(A)(a) which speaks of "withdrawal from being a candidate" at the election is inapplicable to a situation where a candidate retires from the contest after the date fixed for the withdrawal of his candidature. In making this submission he admits that he is flying in the face of a recent decision of this Court in Mohd Yunus Saleem v. Shivkumar Shastri and others (1) a decision to which one of us (Bhagwati, J) was a party. The judgment of the Court was delivered by Goswami, J. It was held in that case that the expression "to withdraw or not to withdraw from being a candidate" cannot be confined to the stage where the law permits a candidate to withdraw from the election. It was observed that the expression is of wide amplitude to include a subsequent withdrawal or non-withdrawal even at the last stage prior to the poll. It was held that the (1) AJ.R. 1974 S.C. 1218.
931 word "withdraw" is comprehensive enough to also connote "retire from contest". In that case an allegation had been made that one Surendra Kumar, the alleged financier of the B.K.D. Party, had offered to pay Rs. 30,000/to Rs.
35,0001to a candidate named Malan if the latter would withdraw from the contest and that one Shastri had similarly told Malan that if he withdrew from the contest he would recommend him for a seat in the Legislative Council.
Thereupon Malan told them that he had no need of money and as regards the seat in the Council, that was for the future to decide, but as they were all asking him to withdraw, he would comply. It was alleged that the above offer or promise which had been made was at the instance of Shiv Kumar who had been elected to the Lok Sabha defeating the rival candidate Mohd. Yunus Saleem who was the election petitioner. Two questions arose for consideration-(i) whether there was any such offer or promise with a view to induce Malan to withdraw from the contest and (ii) whether even assuming that gratification was offered to Malan to induce him to withdraw from contesting the election, that would amount to a corrupt practice in-view of the fact that this offer of gratification had been made after the date of withdrawal of the candidature. On facts, the Court held that there was no such offer or promise of gratification, on which finding it was not really necessary to consider the second question. But it appears that since that point was also pressed the Court came to the conclusion that it was unable to accept the submission that even if the facts alleged be established, there can be no corrupt practice within the meaning of section 123(1) (A)(a) of the Act when as a result of the gratification the candidate retired from the contest after the date of withdrawal of candidature. It appears to us that having regard to the history of legislation with regard to the expression "withdrawal of candidature" which was unfortunately not brought to the notice of the court, the law as laid down is not quite correct. One of us (Bhagwati, J) has shown separately how that view is not really sustainable. We are quite aware of the fact that even at the point need not have been decided in the former judgment it need not be decided in this judgment, because on facts we have come to the conclusion that there was no payment to Chatru. But since the view taken in Mohd. Yunus's case is binding on the High courts it has become necessary for us to review that decision.
This brings us now to the second series of alleged corrupt practices under section 123(5) of the Act. That relates to the hiring or procuring of a vehicle by a candidate or his agent or by any other person with the consent of the candidate or his election agent for the conveying of voters to or from any polling station free of charge. Out of the several allegations on this score, the learned Judge has accepted as proved allegations which have given rise to Issues Nos. 13(ii) (iii)(iv) and (v). The first two issues relate to two Jeeps alleged to have been used for the purpose, and the last two relate to two trucks. The vehicles concerned are Jeep No. PNN 5021 of which P.W. 26 Rajinder Prasad was the driver. The other Jeep is RSK 669 of which Jagdish Chander, P. N. 27 is the driver.The two trucks involved are HRH 8567 the driver of which was P.W. 24 Jagan Nath and the other truck 932 is HRN 7101 of which P.W. 25 Simran Dass was the driver. We shall deal with the evidence with regard to these vehicles one after another.
Jeep No. PNN 5021 The allegation was that this jeep had been procured by the appellant for his election work and that it was used for free carriage of voters to and from the polling station at Madina on the polling date. The principal evidence is that of the driver P.W. 26 Rajinder Prasad. This witness says that Jeep No. PNN 5021 had been taken on hire by the appellant, the hire agreement being that the appellant should pay Rs.85/per day in addition to bearing the cost of petrol. According to the witness it was hired from 12th February, 72 to 11th March, 72. He further stated that he was on duty with the appellant, himself suggesting thereby that he was attached to him throughout the period. He further stated that on March, 11 1972 i.e. the polling day, he was on duty to bring voters from their fields and houses to the polling station at Madina, though he could not remember the location of the polling station. The appellant has denied the hiring of this jeep at any time. But the Register P.W. 19/1 does show that this jeep, had been used for election purposes the first entry being of 28th February, 72. We are not disposed to accept the appertain's statement in this respect but at the same time we have to see whether, as a matter of fact, this jeep, though it might have been used for the election campaign of the appellant, had been actually used for conveying the voters free of charge to the polling stations. The election petitioner has not examined any voter who came in this jeep to the polling station. Therefore, we have to rely almost wholly on the evidence of the driver Rajinder Prasad who, however, has not impressed us as sufficiently reliable. In the first place, his case is that this jeep was hired from 12th February, 72 but the register P.W. 19/1 shows that it was used for the election campaign for the first time on 29th February, 72.
Secondly the jeep was not a local jeep. Rajinder Prasad is from Hissar and he is not the owner of the jeep. The owner would have been the best person to speak about the hiring especially as the jeep was supposed to have been hired out for about a month. The owner is not examined. There is no receipt for hiring or procuring of the said vehicle. Though the witness says that this jeep was attached to the appellant throughout, we find from the register Ext. P.W.
19/1 at page 9 that except on one day namely 3rd March, 72 the jeep was under the control of others. The witness further shows great enthusiasm in saying without justification that there were three other jeeps and other vehicles, the members of which he could not remember, which had been procured by the appellant for this purpose. In his cross-examination he stated that one Tara Chand, Sarpanch of village Seman had taken him to the appellant. Tara Chand examined as a witness for the appellant (R.W. 18) does not support the statement. In these circumstances, we find it difficult to hold on the bare statement of this witness that on 11th March he had brought voters to Madina polling station. It may well be that this particular jeep had been used in the election campaign and the witness also might have been the driver 933 of the jeep. But we are concerned with what had happened on 11th March, 72, i.e. the polling day and to determine whether this jeep had been used for conveying voters from the village and the fields free of charge. That is the important point to be decided and having regard to the general unreliability of the witness, we do not think that on the bare statement of this witness we can come to the conclusion that this jeep was used for the particular purpose on 11th March, 72. Reference was made to an entry in P.W. 19/1. That entry is made by P.W. 19 Munshi Ram. it purports to say that this jeep was used from 8.00 A.M. to 7.00 P.M. for polling duties. That is the last entry on the page made by a person definitely hostile to the appellant.
We cannot therefore, rely on it. It appears from a perusal of some of the pages of P.W. 19/1 that the last few entries on successive dates appear to have been made at one time and with one pen. Particular attention may be drawn to pages 21 and 23. On both these pages it will be seen that the three entries from 9th March to 11th March appear to have been made at one time and with one pen. All these entries are in the handwriting of Munshi Ram. If we compare the entries of 9th and 10th March made at page 10 we will find that they appear to be in a pen different from the one not only for making the entry of 11-3-72 on that page but also of the entries of 9th and 10th March on pages 21 and 23. Hence, the probability of the relevant. to entries being made by Munshi Ram for the purpose of this election petition cannot be eliminated. We cannot, therefore, rely on the entry dated 11th March,72 at page 10 of the Register. In our opinion, there is no sufficient reliable evidence for holding that Jeep No. PNN 5021 had been procured by the appellant for conveying the voters free of charge.
We then come to the second Jeep No. RSK 668 the driver of which is one Jagdish Chander, P.W. 27. In this case as in the previous one the driver is examined and not the owner.
The owner was one Lala Pushotam Das of village Ralwas, District Hissar. P.W. 27 Jagdish Chander says that the appellant had hired this jeep and that, actually, the jeep worked with the appellant from 12th February, 72 to 11th March, 72. This witness again says that on March 11, 72 he was on duty with the appellant for sometime in Maham and for the rest of the time in village Sisir. According to him he had transported voters on that day to both the polling stations namely Maham and Sisir. As in the case of the other jeep no voter is called as a witness to show that he was conveyed free of charge to the polling station by this jeep. It is admitted that the jeep had been used in the election campaign and, as a matter of fact, there is a receipt for Rs. 1,500/given by the driver when he was paid this amount. That receipt is P.W.27/1. The receipt shows that the hire was from 22nd February, 72 till March 12, 1972 and that the driver had been paid a consolidated sum of Rs.
1,5001 i.e. to say, for hiring and petrol charges. The witness admits having given this receipt but his case seems to be that the contents thereof are not true. According to him the hiring, as stated earlier, was from 12th February to 12th March. 1972 the hire being Rs. 85/per day besides the appellant bearing the petrol charges. Thus the receipt 934 given by the witness contradicts the witness both with regard to the total period of hire as also the terms of the hire agreement. Then again his case is that he was attached to the appellant on 11th March, 72 i.e. to say he went along with him wherever be went on that day and visited only two places namely 00 and Sisir. This would mean that the appellant was at these two polling stations only throughout the day when we should normally expect him to be moving from one polling station to another-the total number of polling booths being 73. P.W. 19/1 has kept a record of this jeep from28-2-72, its coming and going from day to day. See pages 13 and 14. The last entry with regard to the jeep is at page 14 and it says that it was used for polling for the whole of the day. That entry does no damage to the appellant, because admittedly the jeep had been hired. But the entry on page 23 with regard to another Vehicle HRV 3709 dated 11th March, 72 shows that this vehicle was with the appellant (who is described as Professor) for the whole day thus contradicting both the two drivers Rajinder and Jagdish Chander, each of whom claims that on 11th March, 72 they were attached on duty to the appellant. In this state of the evidence it will be difficult to describe Jagdish Chander as a reliable witness. It is his bare word that voters were transported free of charge in his jeep and we do not think that we can rely upon it.
That brings us to the two trucks by which, it is alleged, the voters of the appellant were conveyed free of charge to the polling stations on the polling day. A common feature about these vehicles is that they were intercepted by the Police for carrying passengers in breach of the provisions of the Motor Vehicles Act and the drivers thereof had been challenge on that very day. We have no doubt that the trucks were used for conveying voters to the polling booths.
But the question for determination is whether the trucks were hired or procured by the appellant or his agent or by any other person with the consent of the appellant or his election agent for the free conveyance of the electors to or from any polling station. It must be noted that the mere conveyance of voters to the polling station free of charge does not amount to a corrupt practice. If, for example a sympathizer or supporter of a candidate carries voters free of charge in a vehicle to the polling station it will not amount to a corrupt practice unless it is shown that the vehicle was procured by that sympathizer or supporter with the consent of the candidate or his election agent. If there was conveyance of electors by the truck and the electors gave evidence to the effect that they were conveyed by the truck at the instance of the appellant, his election agent or their accredited workers, that would be a strong corroboration of the driver's evidence that the truck was hired or procured by the appellant. in the present case, both the truck drivers have given evidence to the effect that the appellant had personally hired their trucks for the purpose of conveying electors to the polling booths. in a case like the present, which is riddled with suspect evidence, one has to be very careful in taking the truck drivers at their word, because a truck driver actually working for some other candidate or at the instance of somebody else, may with the least risk of exposure substitute a candidate's name for the 935 other, especially, when no documentary evidence of hiring the truck is possible to expect in such a case. The charges of corrupt practice are quasi-criminal in nature and, therefore, the approach to the evidence of the truck drivers must be characterised by great caution.
Of the two trucks one is No. HRH 8567 of which P.W. 24 Jagan Nath claims to be the owner/driver. He says that the appellant had himself hired his truck for the polling day agreeing to pay him Rs. 80/per day in addition to bearing all the expenses. According to the witness, he was asked to bring voters from Indergarh to Chandi, the latter place being the polling station. He says that he performed the duty of bringing the voters from 8.00 A.M. till 5.30 P.M.
The voters were brought free of charge. He admits that he was intercepted by the Police for transporting passengers which under his licence he could not do, and, in fact, he says he was challenge by the police at about 11.00 A.M. What he means to say is that after his interception he was served with a summons to appear before the Magistrate on a stated date to answer the charges detailed in the summons. He further adds that his Log Book was inspected by the Police Sub-Inspector who say there an entry made by the witness to the effect that the truck was on election duty of "Chaudhary Umed Singh", that is to say, the appellant. The SubInspector Jaswant Rai, P.W. 9 says that he had found Jagan Nath conveying passengers without a permit and, therefore, he had challenge him. He says that he had seen an entry in the Log Book of the truck and that entry revealed that the passengers were being carried on behalf of the appellant.
The Log Book itself is not produced in court and, therefore, the written entry in the Log Book cannot be proved by either the driver Jagan Nath or the P.S.I. Jaswant Rai. Therefore, reference to the contents of the Log Book must be wholly excluded. Ext. P.W. 24/2 is the summons served upon jagan Nath on 11-3-72 at 11.00 A.M. By that summons Jagan Nath was asked to attend the Court of the Judicial Magistrate at Gohana at 10 00 on 4-4-72 to answer the charge under section 421123 of the Motor Vehicles Act detailed in the summons.
Ext. 21/1 is the receipt for the fine of Rs. 200/dated 104-72 recovered from Jagan Nath. The case is that Jagan Nath was convicted for the offence and had to pay a fine of Rs.2001for the breach of the Motor Vehicles law. As already stated, we feel no difficulty in holding that this particular truck was used for the purpose of conveying the electors before 11.00 A.M. on the day of polling. But the question still is whether the electors were conveyed free of charge, and more important than that, whether that was being done at the instance of the appellant or his election agent.
No voter who is supposed to have travelled by the truck has been called to give evidence in the case. We may also infer from the facts of the case that the electors were being conveyed free of charge. But the question still remains whether we can accept the testimony of the driver that he had been engaged by the appellant for the purpose. He might have been engaged by the appellant, he might have been engaged by his opponent, or he might have been engaged by any sympathizer or supporter of either the appellant or 936 the opponent without their knowledge. In a case like this where corrupt practice is sought to be established on the testimony of the truck driver, who was functioning in defiance of the law, we should remember that there is great likelihood of evidence being purchased at small cost so as to upset the whole election. It is an admitted fact that the appellant was a young man fresh from the University and it does not appear that he had much experience of elections.
Although he stood as an Independent candidate selected by the Chaubisee he had been given active support by several non-Congress Parties. The Arya Sabha seems to have practically adopted him as its unofficial candidate.
Therefore, if any Arya Sabha worker had hired the truck for the purpose of conveying voters without the knowledge or consent of the appellant there is every likelihood of the truck driver being persuaded to name the appellant for the Arya Sabha workers. The truck driver is also not shown to be very reliable in other respects. Though he was challenge at 11.00 A.M. he purports to say that he plied the truck till 5.30 p.m. We think this is very improbable because he had already been caught by the P.S.I. and he won't be so fool-hardy as to persist in the offence after 11.00 A.M.
Then again he admits that he had to pay a fine of Rs. 200/But it does not appear that he made any demand from the appellant for paying him the amount of the fine because, after all, if he was plying the truck for the appellant ill order to oblige him even by committing an offence under the Mo
