Full Judgment Text
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PETITIONER:
IQBAL SINGH
Vs.
RESPONDENT:
S. GURDAS SINGH & ORS.
DATE OF JUDGMENT19/09/1975
BENCH:
ALAGIRISWAMI, A.
BENCH:
ALAGIRISWAMI, A.
GOSWAMI, P.K.
UNTWALIA, N.L.
CITATION:
1976 AIR 27 1976 SCR (1) 884
1976 SCC (3) 284
CITATOR INFO :
RF 1976 SC 271 (10)
C 1991 SC2001 (22,26)
ACT:
Representation of the People Act (43 of 1951), s.
123(1)-Corrupt practice of bribery-Gratification’ and
’Bargaining for votes’, what amounts to.
HEADNOTE:
In the election to Parliament from a constituency in
Punjab the respondent was declared elected. The appellant
filed an election petition alleging, inter alia, (i) that at
least 15,000 invalid and void votes had been included and
counted in favour of the respondent, and (ii) that the Chief
Minister of Punjab, who was the brother of the respondent,
directed, (a) the distribution to Harijans of large sums of
money for construction of Dharamshalas, and (b) the issue of
a large number of gun licences, as gratification for
inducing voters to vote for the respondent and that thereby,
the corrupt practice of bribery under s. 123(1),
Representation of the People Act, 1951, was committed. The
High Court dismissed the election petition
Dismissing the appeal to this Court,
^
HELD: (1) On the evidence, the High Court was right in
holding that the appellant had not succeeded in establishing
the allegation regarding the 15,000 votes. [889F]
(a) Rule 56 of the Conduct of Elections Rules as
amended in 1971, provides that only a ballot paper which did
not contain both the mark and the signature of the polling
officer would be invalid. Even then it does not
automatically become invalid. If the Returning Officer was
satisifed that the failure to affix the stamp or signature
was due to the fault of the polling officer but the ballot
paper was itself genuine he could include it among the valid
ballot papers, because, under pressure of work, the polling
officer might have failed either to affix the stamp or his
signature. [887F-H]
(b) The evidence adduced on behalf of the appellant is
not consistent as to the ground of invalidity of the ballot
papers; as to how the number of 15,000 was arrived at; and
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as to whether they were counted in favour of the respondent
or both the appellant and the respondent. [889E-F]
(c) There cannot be any hard and fast rule as to the
circumstances when an order of recount would be permissible
and it always depends upon the circumstances of the case. On
the facts of the present case, there is not the slightest
justification for ordering a recount. [889G-H]
(2) In the case of both the allegations regarding
Dharamshalas and gun licences, there was no gratification
offered and there was no bargaining for votes, and hence
there was no corrupt practice. [896B]
(a) The word ’gratification’ in s. 123(1) should be
deemed to refer only to cases where a gift is made of
something which gives a material advantage to the recipient.
There is a distinction between licences which give a
material advantage and those which do not. For example, a
licence in a prohibition area to deal in liqueur confers a
material advantage on the licensee, whereas a licence
enabling a person to imbibe liqueur in such an area gives
him no material advantage. It is only the grant of the
former that might amount to gratification. Arms licence is a
licence for regulatory purposes. Its possession give no
material advantage to its possessor. [893C-G]
(b) To constitute the corrupt practice of bribery under
s. 123(1) there must be a bargain for votes. But a bargain
for the purposes of the section does not mean that the
candidate or his agent makes an offer and the voter accepts
it in the sense that he promises to vote. It is not
necessary that the
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voter should say that he would vote and that thereafter only
the candidate or his agent should pay the money. It is
enough if the candidate or his agent makes the gift or
promise on that condition. [889G-890A]
(c) In the present case, the State Government had set
apart a sum of Rs. 50 lacs for the purpose of construction
of Dharamshalas for Harijans. A sum of Rs. 3 lacs was spent
towards the end of the financial year, in the district in
which this particular parliamentary constituency was
situate. Punjab has 11 districts and it cannot, therefore,
be said that, the amount is disproportionately large. [889H-
890A]
(d) The anxiety to spend the money towards the end of
financial year is also natural. [890A-B]
(e) It may not be setting up a high standard and it may
be very desirable that whatever is done for the people
should be done by persons in authority throughout the period
of their office and not when election time is approaching.
But where a large section of the people get an amentiy which
they ought, in any case to get, and which they got probably
a little more easily because it was election time, it cannot
be said that the person in authority making a promise and
holding out that he would carry out many remedial measures
to benefit the people was resorting to bribery or bargaining
for votes. [890B-D]
(f) The issue of the unusually large number of gun
licences may be an improper use of power. But, there is no
evidence regarding bargaining for votes by the promise of
gun licences. [890D-G, 893G]
(g) Maganlal Bagdi v. Hari Vishnu Kamath, 13 E.L.R. 205
Khadar Sheriff v. Munnuswami Gounder & Ors. A.I.R. 1955 S.C.
775, Ghasi Ram v. Dal Singh [1968] 3 S.C.R. 102, Radha
Krsihna Shukla v. Tara Chand Maheshwar 12 E.L.R. 276,
amirchand v. Surendra Lal Dha E.L.R. 57, Om Prabha Jain v.
Abnash Chand & Anr. [1968] 3 S.C.R. 111,Bhanu Kumar v. Mohan
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Lal [1971] 3 S.C.R. 522, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1172 of
1973.
From the Judgment and Order dated the 10th April, 1973
of the Punjab & Haryana High Court at Chandigarh in Election
Petition No. 1 of 1971.
Hardayal Hardy, Bishamber Lal and Mrs. Indira Sahni,
for the appellant.
H. L. Sibal, Kapil Sibal, P. H. Parekh, Mrs. S.
Bhandare, Miss Manju Jaitley and S. S. Kang, for respondent
No. 1.
The Judgment of the Court was delivered by-
ALAGIRISWAMI, J. This appeal relates to the election to
the Parliament from the Fazilka constituency in Punjab held
on 5th March 1971. The Parliamentary constituency consisted
of eight assembly constituencies of Malout, Muktsar,
Gidderbha, Fazilka, Jalalabad, Abohar, Lambi and Faridkot.
The votes were counted on 10th and 11th of March at five
different places. The counting of the votes of the Malout
Assembly constituency was held on 10th March by Mr.
Aggarwal, Assistant Returning Officer, of Muktsar and
Gidderbha on 10th and 11th by Mr. Sayal, of Fazilka and
Jalalabad on the 10th and 11th by Mr. Mahajan, of Lambi and
Abohar on the 10th and 11th
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by Mr. Ram Lal and of Faridkot on the 11th by Mr. Garg.
6,409 votes were declared invalid and the 1st respondent was
declared elected having secured 1,52,677 votes. The
appellant obtained 1,47,354 votes. There were six other
candidates about whom it is not necessary to refer.
A number of allegations were made in the election
petition about many irregularities that took place on the
date of the polling. It is not necessary to refer to them as
the issues concerned with them were not pressed even before
the High Court. Only two issues, issue 1 and 4 were
considered by the High Court and those are the issues urged
before us also. They are:
"1. Whether the respondent No. 1 is guilty of
corrupt practices specified in paras 19, 20,
22 and 23 and 26 to 29 of the election
petition as amended ? If so, what is the
effect ?
4. Whether 15000 ballot-papers were invalid and
were wrongly polled and counted ? If so, with
what effect ?"
It is also necessary to refer to issues 3 and 6 for they
have some relevance in discussing issues 1 and 4:
"3. Whether the petitioner is entitled to the
scrutiny of the ballot-papers alleged to have
been illegally rejected and those of the
respondent alleged to have been illegally
accepted and on that account is entitled to a
recount?
6. Whether the allegations made in para 7 of the
petition are correct, and if so, what is the
effect ?"
As issue 6 was not pressed the various allegations of
irregularities at the time of polling including collusion by
Polling Officers and consequent false voting and stuffing of
ballot boxes could not be considered. As issue 3 was not
pressed recount cannot be asked for on the allegation of
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wrong counting of votes that is that the appellant’s votes
were wrongly rejected and the 1st respondent’s votes were
wrongly accepted.
With regard to issue 1 the allegation was that corrupt
practice of bribery was committed in the interest of the 1st
respondent by his brother Shri Parkash Singh Badal, who was
at that time the Chief Minister of Punjab. One of the items
of bribery alleged was that large sums of money were
distributed to Harijans in the form of contributions towards
construction of Dharamshalas for the purpose of inducing
them to vote in favour of the 1st respondent. The second
allegation was that Shri Parkash Singh Badal directed Mr.
Sayal, one of the Assistant Returning Officers, to issue
3,304 gun licences for furthering the prospects of the 1st
respondent’s election and that this was a gratification for
inducing the electors to vote for the 1st respondent.
Similarly, Mr. O. P. Garg, another Assistant Returning
Officer was alleged to have issued 485 gun licences in the
months of February and March, 1971. Shri Parkash Singh Badal
was alleged to have arranged and addressed a number of
meetings in various
887
villages promising to help the voters in many ways if they
would vote for his brother. There were certain other
allegations of corrupt practices but the only ones canvassed
before us were those relating to gun licences and grants in
respect of construction of Dharamshalas to Harijans.
The allegations which relate to issue 4, as found in
the petition, were that at least 15,000 invalid and void
votes had been included and counted in favour of the
returned candidate, which should have been rejected and not
counted at all and that in addition at least 3,000 invalid
ballot papers which should have been rejected under rule 56
had been wrongly counted as valid votes in favour of the
returned candidate. The distinction between 15,000 and 3,000
votes was this: The 15,000 ballot papers were said to
consist of (i) spurious ballot papers (ii) ballot papers not
bearing serial number or design authorised for use at the
particular polling stations, and (iii) ballot papers not
bearing booth marks and the full signatures of the Presiding
Officer. The 3,000 ballot papers were said to have been so
marked as to render it doubtful to which candidate the vote
is given, or the ballot papers bore marks with instrument
other than the one supplied for the purpose, or ballot
papers marked in favour of more than one candidate had been
wrongly counted in favour of the returned candidate. No
evidence in fact was let in respect of the 3,000 votes. The
attack was concentrated on the 15,000 invalid and void
votes. In view of issues 3 and 6 having been given up, the
effect of which we have earlier referred to, the only
question that arises is whether these 15,000 votes should
not have been counted at all, whether for the appellant or
for the 1st respondent on the basis that they bore neither
the stamp nor the signature of the Polling Officer.
The whole of the evidence let in was of a uniform type
that a number of ballot papers did not bear the signature of
the Polling Officer or the stamp of the booth. Indeed the
allegation in the petition on this point is "ballot papers
not bearing booth marks and full signatures of the Presiding
Officer were wrongly counted as valid votes". It is not said
that the ballot papers bore neither the mark nor the
signature of the Presiding Officer. The rule in question,
rule No. 56, was amended in 1971 providing that only a
ballot paper which did not contain both the mark and
signature would be deemed invalid but even then it is not as
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though it automatically became invalid. The Returning
Officer had to scrutinise it in order to see whether the
ballot paper was a genuine ballot paper. This provision was
apparently put in because under pressure of work the Polling
Officer might have failed either to affix the stamp or his
signatur. If the Returning Officer was satisfied that the
failure to affix the stamp or the signature was due to the
fault of the Polling Officer but the ballot paper was itself
genuine he could include it among the valid ballot papers.
Therefore, merely by giving evidence that the ballot papers
did not contain both the signature and the stamp it would
not be established that the ballot paper concerned was not a
valid ballot paper. But that is the only type of evidence
which has been let in.
Apart from this the number 15,000 seems to be a case of
wild guess. The appellant’s voting agents were alleged to
have kept a note
888
of the number of invalid ballot papers that they had noticed
but none was produced. Some of the counting agents gave
evidence that they brought it to the notice of the chief
counting agent who sat on the dais along with the Assistant
Returning Officer at the time of the counting. Neither the
counting agents nor the chief counting agent had complained
in writing to the Assistant Returning Officer. It is
impossible to believe that if there were as many as 15,000
invalid ballot papers, which amount to about two thousand
from every assembly constituency they would have kept quiet
without raising hell. On both the days of counting an
observer deputed by the Election Commissioner had gone round
all the places where the votes were counted. No serious
infirmities were pointed out to him. One or two ballot
papers which did not bear either the signature of the
Polling Officer or the stamp were shown to him only in the
Lambi constituency and he scrutinised them and found that
the serial numbers tallied and he was satisfied about their
genuineness. He as well as the various Assistant Returning
Officers had offered that if there were any complaints the
candidates could ask for a recheck. No such recheck was
asked for. It was argued on behalf of the appellant that the
recheck offer meant only a check on whether the number of
votes had been correctly added. We find it impossible to
accept this suggestion. The reference to the checking in the
observer’s report shows that the checking meant also
scrutiny as to whether the ballot paper was signed by the
Presiding Officer. The Returning Officer has also mentioned
in his order on the application made by the appellant for a
recount that he was asked to specify as to whether in any
assembly segment he or any of his agents had asked for the
recheck or pointed out any discrepancy in the figures and
that the appellant had failed to cite any such specific
instance, and that he was also asked as to whether he wanted
the recounting of any specific assembly segment but he
reiterated that he wanted a total recount.
Four of the Assistant Returning Officers, Mr. Sayal,
Mr. Ram Lal, Mr. Garg and Mr. Aggarwal have been examined
and they did not support the appellant’s case that there
were such a large number of invalid ballot papers or that it
was brought to their notice even orally. Mr. Ram Lal said
that at the most there might be 200 such votes which were
objected to; that is in respect of the two constituencies in
which he was the Assistant Returning Officer. This would
mean that there might have been about one thousand invalid
ballot papers at the most and we have already mentioned that
6,409 votes had been declared invalid. We do not know how
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many of them were ballot papers which did not contain either
the signature or the stamp.
The way the appellant’s case has been developed is also
very interesting. We have pointed out that votes of four
constituencies were counted on the 10th and of four other
constituencies on the 11th. The first move of the appellant
was to send a telegram on the 11th. By that time half the
number of votes had been counted and probably more than half
because we do not know at what time on the 11th the
telegram, Ex. B-2 was sent. Even assuming that nearly half
the number of votes had been counted the appellant probably
had an inkling of the possibility of his being defeated. In
this telegram he re-
889
ferred to about fifteen thousand ballot papers which did not
contain either the signature of the Presiding Officer or the
Polling Officer of the polling station and booth numbers. He
also mentioned that about six thousand three hundred votes
had been wrongly rejected. Apparently he wanted to imply
that they would otherwise have gone in his favour. But his
case of six thousand votes which ought to have gone to him,
but had been wrongly rejected, had been completely given up
later. Another telegram sent on the 13th March 1971 was
similar to the telegram sent on the 11th. A similar telegram
was sent by the appellant to the General Secretary of the
Congress Party as also the Prime Minister. But in the
petition given to the Returning Officer asking for a recount
on the same day the complaint was that some of the ballot
papers did not bear the official stamp on their back as
provided by rules and they seem to have been smuggled
illegally and the number given in "thousands". Another
complaint was that some of the ballot papers did not bear
the signatures of the Presiding Officer on the back, which
were also "in thousands" and even more than five thousand.
So here we do not find the allegation that the ballot papers
contained neither the signature nor the stamp. In his
petition before the Election Commission asking for recount
he mentioned fifteen thousand ballot papers as having been
found which bore no distinction mark or signature of the
Presiding Officer. He also mentioned the rejection of more
than 6,000 votes. As we have already pointed out, there is
absolutely nothing on record to show how the figure 15,000
was arrived at. We are, therefore, satisfied that the
mention about 15,000 votes, 3,000 votes and 6,000 votes are
only steps in the attempt to secure a recount at any cost
and to fish for evidence. As we have already pointed out,
the allegation in the petition was that 15,000 invalid votes
were counted in favour of the returned candidate but in the
evidence as well as the arguments it was only claimed that
there were 15,000 invalid ballot papers which were counted.
There is nothing to show how many of those 15,000 went to
the appellant and how many to the 1st respondent. Indeed as
we have earlier explained what was asked for was elimination
of the 15,000 votes altogether from the counting. The whole
thing is mere kite flying. We are therefore, in agreement
with the learned Judge of the High Court that the appellant
has not succeeded in establishing the allegations covered by
issue No. 4.
There are a large number of decisions of this Court on
the question regarding the circumstances under which a
recount can be ordered. It has been recognised in all those
decisions that there can never be any hard and fast rule as
to the circumstances when an order of recount would be
permissible and should always be dependent upon the
circumstances of the case. We do not therefore consider it
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necessary to refer to any of those decisions. Suffice it to
say that the facts of this case do not leave even the
slighest justification for ordering a recount.
Now we come to the question corrupt practice. We shall
first of all deal with the grant for construction of
Dharamshalas for Harijans. The Punjab Government appears to
have set apart a sum of Rs. 50,00,000 for this very purpose.
All that is established is that a sum of Rs. 3,00,000 was
spent towards the end of the official
890
financial year 1970-71 in the district in which this Fazilka
Parliamentary Consituency is situate. Punjab has 11
districts and it cannot therefore be said that this sum is
disproportionately large. The anxiety to spend the money
towards the end of the financial year is also natural. If
the end of the financial year also happens to be the period
when an election is going on parties in power naturally
bestir themselves to show that they are active in helping
the people to get what they want. The election time is the
time when people in power as well as ordinary politicians
are active in trying to show that they are out to help the
people. They address meetings and hold out all sorts of
promises. Where a large section of the people are concerned,
who only get an amenity which they ought in any case to get
and which they get probably a little more easily because it
happens to be election time, it cannot be said that the
person in authority making that promise and holding out that
he would carry out many remedial measures to benefit the
people was resorting to bribery or bargaining for votes. It
may not amount to setting up a very high standard and it may
be very desirable that whatever is done for the people
should be done by persons in authority throughout the period
of their office. But they naturally are more active at
election time than other times. That cannot be said to
amount to corruption.
We then come to the question of gun licences. It has
been pointed out that during the months of January, February
and March 1971 Mr. Sayal had issued 3,304 gun licences and
Mr. Garg 485 gun licences, the usual number in an ordinary
year being about 300. When every explanation offered on
behalf of the officials is taken into consideration, the
fact remains that an unusually large number of gun licences
had been issued during that period. We are satisfied that to
some extent at least this amounts to improper use of power.
We do not say that this is an abuse or misuse. In fact there
is evidence that the proper procedure has been followed in
these cases. In one case, for instance, a man who had
applied for a gun licence long time back approached the
Chief Minister when he had come to the village and he at
once told the District Magistrate and the man got his
licence. We can see nothing improper in that instance. But
the gun licences themselves are issued by the officials and
not by the Chief Minister. It also appears that a large
number of relatives of the Chief Minister as well as his
Mukhtiar-e-Aam, his maternal uncle, and even the returned
candidate had taken interest in the issue of gun licences.
It was sought to be proved that the Chief Minister had
addressed a number of meetings promising to issue gun
licences if they would vote for his brother. But there was
no allegation in the election petition relating to the
meetings he addressed or his having held out the promise in
those meetings that he would issue gun licences if the
people voted for his brother. The 1st respondent himself not
having had notice of the specific allegation of meetings at
which such promises were held out we have left out of
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consideration the evidence regarding the meetings and the
promises held out by the Chief Minister in those meetings as
inadmissible.
Assuming that it was the returned candidate or his
agent that had held out an inducement to get gun licences
issued for people who vote
891
for the returned candidate, does it amount to bribery under
s. 123(1) of the Representation of the People Act ? Bribery
is defined thus:
"123(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 in ducing-
(a) ........................
(b) an elector to vote or refrain from voting at
an election, or as a reward to-
(i)..........................
(ii) an elector for having voted or refrained from
voting;
(B) the receipt of or agreement to receive, any
gratification, whether as a motive or a reward-
(a)..........................
(b) by any person whomsoever for himself or any
other person for voting or refraining from voting, or
inducing or attempting to induce any elector to vote or
refrain from voting, or any candidate to withdraw or
not to withdraw his candidature.
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 entertainment and 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."
In order to understand the exact implication of the word
’gratification’ it may be useful to refer to another statute
which has been in force for over a century, that is, the
Indian Penal Code as most legislations tend to folow
established precedents. In section 161 of the Code, which
deals with bribery, one of the explanations is as follows:
"Gratification." The word "gratification" is not
restricted to pecuniary gratification, or to
gratification estimaable in money."
Illustration (a) to the section is as follows:
"(a) A, a munsif, obtains from Z, a banker, a
situation in Z’s bank for A’s brother, as a reward to A
for deciding a cause in favour of Z. A has committed
the offence defined in this section."
We may also quote s. 171-B of the Code and s. 171-E which
find a place in the Chapter of Offences Relating to
Elections, which was inserted in the Code in the year 1920:
892
"171-B. (1) whoever-
(i) gives a gratification to any person with the object
of inducing him or any other person to exercise any
electoral right or of rewarding any person for having
exercised any such right; or
(ii) accepts either for himself or for any other person
any gratification as a reward to exercising any such right
or for inducing or attempting to induce any other person to
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exercise any such right,
commits the offence of bribery:
Provided that a declaration of public policy or a
promise of public action shall not be an offence under this
section.
(2) A person who offers, or agrees to give, or offers,
or attempts to procure, a gratification shall be deemed to
give a gratification.
(3) A person who obtains or agrees to accept or
attempts to obtain a gratification shall be deemed to accept
a gratification, and a person who accepts a gratification as
a motive for doing what he does not intend to do, or as a
reward for doing what he has not done, shall be deemed to
have accepted the gratification as a reward."
"171-E. Whoever commits the offence of bribery shall be
punished with imprisonment of either description for a term
which may extend to one year or with fine, or with both.
Provided that bribery by treating shall be punished
with fine only.
Explanation.-"Treating" means that form of bribery
where the gratification consists in food, drink,
entertainment, or provision."
It would be noticed that the Explanation to section 123(1)
of the Representation of the People Act and the Explanation
to section 161 of the Indian Penal Code relating to
gratification are similar. In addition, the Representation
of the People Act refers to all forms of entertainment and
all forms of employment for reward. The employment for
reward is covered by illustration (a) to s. 161 of the
Indian Penal Code. The words "all forms of entertainment" in
the Explanation to section 123(1) of the Representation of
the People Act apparently refer to offence of treating found
in s. 171-E of the Indian Penal Code. When Parliament
enacted the provision regarding bribery in the
Representation of the People Act it should have had before
it the comparable provisions in the Penal Code. It is to be
noticed that the giving of any gratification with the object
of inducing the receiver or any other person to vote is an
offence while acceptance of gratification by a person either
for himself or for any other person or for inducing any
other person to vote is an offence. In other words giving is
an offence if paid to the voter or such giving induces
another person to vote. It is not giving a gratification in
order that he may induce another person to vote that is an
offence whereas
893
receipt of a gratification in order to induce another person
to vote is an offence. The reason for the distinction
between the provision in s. 123(1) (A) and 123(1) (B) seems
to be this: In the former case a person standing for
election has necessarily to have a number of people to work
for him and he may have to bear their expenses. That by
itself should not be deemed to be bribery. In the latter
case when a person takes money offering to induce other
people, of course, induce by wrong means, to vote for the
person who pays him the money he is really poking his nose
into something which is no business of his and that practice
should be discouraged. See Kalya Singh’s case(1) and our
judgment in Harisingh Pratapsingh Chawda v. Popatlal
Mulshanker Joshi & Ors.(2) So far as we are aware it has
never been held that the issue of a gun licence amounts to
bribery under s. 171-B. We are of opinion that the word
’gratification’ should be deemed to refer only to cases
where a gift is made of something which gives a material
advantage to the recipient. There is hardly any need to say
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that giving of anything whose value is estimable in money is
bribery. A gun licence gives no material advantage to its
recipient. It might gratify his sense of importance if he
has a gun licence in a village where nobody else has a gun
licence. So might the conferment of an honour like Padma
Bhushan. A praise from a high quarter might gratify the
sence of vanity of a person. But the word ’gratification’ as
used in s. 123(1) does not refer to such gratifications any
more than in s. 171-B of the Indian Penal Code. Taking the
case of licences: Possibly the grant of a licence which
enables a man to do some business and thus make money may
confer a material advantage to him. We are not here speaking
of licences which are insisted upon merely for regulatory
purposes like municipal licences. But a licence given to a
person to deal in fertilizers might confer a financial
advantage to that person; so might an import licence or an
export licence. Such licences differ from licences for
regulatory purposes. Arms licence is a licence for
regulatory purposes. Its possession gives no material
advantage to its possessor. A licence in a prohibition area
to deal in liqueur might confer a material advantage to the
licensee. But a licence enabling a person to imbibe liqueur
in such area gives the licensee no material advantage. Such
a licence is only regulatory. We must therefore distinguish
between various kinds of licences and hold that where a
licence gives a material advantage to the licensee the grant
of such licences amounts to a gratification. In that sense
the grant of gun licences to voters in the Fazilka
Constituency would not amount to bribery. We have discussed
this question on the basis that the authority to grant a
licence is the returned candidate or his brother the Chief
Minister.
We have already pointed out that there is no evidence
regarding bargaining for votes by promise of gun licences. A
bargain for the purposes of this section does not mean that
the candidate or his agent makes an offer and the voter
accepts it in the sense that he promises to vote. It is
enough if the candidate or his agent makes the gift or
promise on that condition. If a candidate or his agent pays
money to a voter saying that he wants him to vote it is a
bargain for the pur-
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poses of this section. It is not necessary that the voter
should say that he would vote and thereafter the candidate
or his agent should pay the money. Even in such a case the
voter after receiving the money might or might not vote.
The law regarding bribery in elections in our country
has been discussed in various decisions of this Court. In
Maganlal Bagdi v. Hari Vishnu Kamath(1) the candidate
offered to construct a well in a village if the voters voted
for him and not for the rival candidate and money was
actually deposited for this purpose and was to await the
result of the election. It was held that there was a clear
bargain for votes. In Khader Sheriff v. Munnuswami Gounder &
Ors.(2)it was observed by this Court that it may be
meritorious to make a donation for a charitable purpose but
on the eve of an election such a gift may be open to
construction that it was made with the intention of buying
votes. In Ghasi Ram v.Dal Singh(3) it was held that the gift
must be proved to have a direct or indirect connection with
votes and this must admit of no other reasonable excuse. In
Radha Krishna Shukla v. Tara Chand Maheshwar(4) general
promises by Ministers to redress certain public grievances
or to erect certain public amenities like hospitals, if
elected, were held not to amount to corrupt practice. They
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were treated as promises of general public action. In
Amirchand v. Surendra Lal Jha(5) it was laid down that if a
Minister redresses the grievances of a class of the public
or people of a locality or renders them any help, on the eve
of an election, it was not corrupt practice unless he had
obtained promises from the voters in return, as a condition
for their help. The promise to grant gun licences would
really amount to a redressal of the grievances of a class of
the public or rendering them any help. There is no evidence
here of obtaining a promise from the voters in return. The
observations made in Ghasi Ram’s case (supra) regarding the
action taken by a Minister which helps a class of the public
may be noticed in this connection:
"The position of a Minister is difficult. It is
obvious that he cannot cease to function when his
election is due. He must of necessity attend to the
grievances, otherwise he must fail. He must improve the
image of his administration before the public. If
everyone of his official acts done bona fide is to be
construed against him and an ulterior motive is spelled
out of them, the administration must necessarily come
to a standstill. The State of Haryana came into
existence on November 1, 1966. With an election in the
near future, the political party had to do acts of a
public nature. The grant of discretionary grants were
parts of the general scheme to better community
development projects and to remove the immediate
grievances of the public. The money was required to be
spent in about 3 months’ time. The action of the
Minister had often the concurrence and recommendation
of his subordinate staff. It is for this reason
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that the orders about the improvement of the supply of
waters were not pressed. They were incapable of being
construed against the first respondent. Therefore,
emphasis was placed upon the distribution of money. The
money was not distributed among the voters directly but
was given to Panchayats and the public at large. It was
to be used for the good of those for and those against
the candidate. No doubt they had the effect of pushinf
forward his claims but that was inevitable even if no
money was spent, but good administration changed the
people’s condition. We cannot, therefore, hold that
there was any corrupt practice. If there was good
evidence that the Minister bargained directly or
indirectly for votes the result might have been
different but there was no such evidence."
The issue for decision in Om Prabha Jain v. Abnash Chand &
Anr.(1) was similar to the case here in respect of the
grants for Dharamshalas for Harijans. It was held that the
action of the Minister could not be construed against her
and that it was done in the ordinary course of her duties as
Minister and there was no evidence that it was, directly or
indirectly, part of a bargain with the voters. In Bhanu
Kumar v. Mohan Lal(2) it was alleged that the Chief Minister
by ordering the covering of a nallah, the construction of a
road, the installation of water taps and the grant of pattas
to the inhabitants of a colony for construction of houses
had made a bargain with the people for votes and thus
committed corrupt practice as defined in s. 123(1) of the
Representation of the People Act. This Court pointed out
that ordinarily amelioration of grievances of the public is
innocuous and cannot be construed against a candidate who is
a Minister but that if there is evidence to indicate that
any candidate at the election abused his power and position
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as a Minister in the Government by utilising public revenues
for conferring advantage or benefit on a particular group of
people for the purpose of obtaining their votes, different
considerations will arise and it may be held to be a corrupt
practice within the meaning of s. 123(1). In that case it
was held that in all the instances relied upon by the
appellant the evidence showed that there were long standing
public grievances and the Government had from time to time
made suggestions and recommendations for redress of the
grievances and amelioration of the condition of the people
and that it could not be said that on the eve of election
there was any sudden or spontaneous outburst of public
activity in the shape of
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diverting money to win electors to the side of the Chief
Minister by throwing baits or giving them any particular
and specially favoured treatment. These observations apply
to the case of grants for Harijan dharamshalas.
We are therefore saisfied that the case of both the
allegations of corrupt practice there was no gratification
offered, that there was no bargaining for votes in the sense
we have explained earlier and these issues must also be
found against the appellant.
The appeal is, therefore, dismissed with costs.
V.P.S Appeal dismissed.
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