Full Judgment Text
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PETITIONER:
RAM DAYAL
Vs.
RESPONDENT:
BRIJRAJ SINGH AND ORS.
DATE OF JUDGMENT:
30/04/1969
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
MITTER, G.K.
CITATION:
1970 AIR 110 1970 SCR (1) 530
1969 SCC (2) 218
CITATOR INFO :
R 1971 SC 267 (33)
R 1971 SC1295 (17)
R 1972 SC 580 (22)
E 1973 SC 178 (9)
R 1975 SC 308 (13,14)
RF 1975 SC2299 (118,495,498)
D 1985 SC1133 (6,21)
ACT:
Representation of the People Act, 1951, ss. 31(1), 77(1)
81(1)--If material amendment of election petition can be
allowed after expiry of period in S. 81(1) within which
petition itself must be filed-Signature and authentication
of petition under S. 31(1)-If authentication can be done
subsequent to presentation of petition--Voluntary expenses
to help candidate’s election-If liable to be included within
limits under S. 77(1).
HEADNOTE:
The first respondent was elected to the Madhya Pradesh
Legislative Assembly in February 1967. The appellant, a
voter in the constituency, challenged his election by an
election petition claiming that the nomination paper of one
D was illegally rejected by the Returning Officer and that
the respondent had committed several corrupt practices; it
was also alleged that the Maharaja and Rajmata of Gwalior
had helped the first respondent’s election in a number of
ways and had in effect acted as his agents and had incurred
considerable expenditure which exceeded the limits
prescribed by the statute. The High Court dismissed the
petition and also dismissed an application made by the
petitioner for amendment of the petition to include a new
allegation on the ground that it was made after the expiry
of the period prescribed for filing an election petition.
On appeal to this Court,
HELD : Dismissing the appeal : (i) The High Court had
rightly held that it could not exercise its power to permit
amendment of a petition so as to allow new grounds or char-
es to be raised or the character of the petition to be so
altered as to make it in substance a new petition, if a
fresh petition on those allegations would be barred on the
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date of the proposed amendment.
Harish Chandra Bajpai v. Triloki Sinqh [1957] S.C.R. 370;
followed.
(ii) The mark made by the proposer on D’s nomination paper
was not authenticated or attested by one of the designated
officers as required under s. 31(1) read with the definition
of the expression "sign" in s. 2(1) of the Representation of
the People Act, 1951, and the provisions of r. 2(2) of the
Conduct of Election Rules. 1961. It was therefore rightly
rejected by the Returning.- Officer.
The requirement of s. 33(1) of the Act that the nomination
shall be signed by the candidate and by the proposer is
mandatory. Signing, whenever signature is necessary, must
be in strict accordance with the requirements of the Act and
where the signature cannot be made it "must be authorised in
the manner prescribed by the Rules." Attestation is not a
mere technical or unsubstantial requirement within the
meaning of s. 36(4) of the Act -and cannot be, dispensed
with. The attestation and the satisfaction must exist at
the stage of presentation and omission of such an essential
feature may not be subsequently validated at the stage of
scrutiny any more than the omission of a candidate to sign
at all could have been. [532 F, 533 D-F]
531
Rattan Anmol Singh and Another v. Atma Ram & Others [1955] 1
S.C.R. 481; referred to.
(iii) The High Court had rightly held on the evidence
that none of the corrupt practices alleged was proved.
Unless it is established that expenditure was incurred in
connection with the election by the candidate or by his
election agent or was authorised by him it is not liable to
be included under s. 77 of the Representation of the People
Act. Expenses incurred by any other agent or person without
anything more need not be included in the account or return,
as such incurring of expenditure would be purely voluntary.
Assuming in the present case that expenditure was incurred
by the Maharaja and the Rajmata of Gwalior for the purpose
of canvassing votes against the principal candidate opposing
the first respondent, in the absence of any evidence to show
that the Maharaja and the Rajmata of Gwalior acted as
election agents of the first respondent or the expenditure
was authorised by him it was not liable to be included in
the account of the election expenses.
[541 D-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
1526 of 1968.
Appeal under S. 116-A of the Representation of the People
Act, 1951 from the judgment and order dated May 4, 1968 of
the Madhya Pradesh High Court in Election Petition No. 39 of
1967.
G. L. Sanghi, Sobhag Mal Jain and B. P. Maheshwari, for
the appellant.
H. R. Gokhale, P. L. Dubey, Rameshwar Nath and Mahinder
Narain, for respondent No. 1.
V. C. Parashar, for respondent No. 4.
The Judgment of the Court was delivered by
Shah, J. At the general elections held in February 1967,
Brijraj Singh (first respondent in this appeal) was declared
elected to a seat in the Madhya Pradesh Legislative Assembly
from the Sabalgarh Constituency defeating his rival
candidate Raja Pancham Singh by 1706 votes. The appellant
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Ram Dayal who is a voter in the constituency moved an
election petition in the High Court of Madhya Pradesh for an
order setting aside the election on two grounds :
(1) that the nomination paper of one Dhani
Ram was illegally rejected by the Returning
Officer; and
(2) that Brijraj Singh and his agents
committed several
corrupt practices in relation to the election.
A third ground that Dataram (third respondent in this
appeal) when his nomination was accepted was below the age
of 25 and was on that account incompetent to stand for
election, was sought to set up a new ground made after the
expiry of the period prestion. The application was
disallowed by the High Court. The High Court held that an
application for amendment which sought to be set up by an
application for amendment of the election peticribed for
filling an election petition cannot be entertained. On
532
a consideration of the evidence the High Court rejected the
other grounds, and dismissed the petition. The appellant
has appealed to this Court.
An election petition has, under S. 81 (1) of the
Representation of the People Act, 1951, to be filed within
45 days of the date of the publication of the result of the
election. An application for setting aside the election,
that Dataram was below the age of 25 and on that account the
election was liable to be set aside under S. 100(1)(d)(i) of
the Act made on August 15, 1967, would plainly have been
barred, and by amendment the ground could not be permitted
to be added. This Court in Harish Chandra Bajpai v. Triloki
Singh(1) held that the Election Tribunal has power to allow
an amendment in respect of particulars of illegal and
corrupt practices, or to permit new instances to be
included. provided the grounds or charges are specifically
stated in the petition, but its power to permit amendment of
a petition under O. VI r. 17 of the Code of Civil Procedure
will not be exercised so as to allow new grounds or charge,;
to be raised or the character of the petition to be so
altered as to make it in substance a new petition, if a
fresh petition on those allegations would on the date of the
proposed amendment be barred. By the amendment a new ground
for setting aside the election was sought to be introduced,
and the High Court was right in rejecting the application
for amendment.
The plea that the rejection of the nomination paper of Dhani
Ram by the Returning officer was illegal has no substance.
On January 19, 1967 Dhani Ram delivered to the Returning
Officer two nomination papers signed by him. Each
nomination paper bore a thumb impression of one Gokla as the
proposer. But the thumb impressions were not authenticated
or attested in the presence of the Returning officer or any
other officer specified in the Rules. The Returning Officer
rejected the nomination papers.
Sec. 33(1) of the Representation of the People Act, 1951,
requires that each candidate shall deliver to the returning
officer a nomination paper completed in the prescribed form
and signed by the candidate and by an elector of the
constituency as proposer. The expression "sign" is defined
in s. 2 (1) of the Act as amended by Act 27 of 1956 as
meaning "in relation to a person who is unable to write his
name authenticate in such manner as may be prescribed".
Rule 2(2) of the Conduct of Election Rules, 1961 provides :
"For the purposes of the Act or these rules, a
person who is unable to write his name shall,
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unless otherwise expressly provided in these
rules, be deemed to have signed an instrument
or other paper if-
(1) [1957] S.C.R. 370.
533
(a) he has placed a mark on such instrument
or other paper in the presence of the
Returning officer or the Presiding officer or
such other officer as may be specified in this
behalf by the Election Commission.
(b) such officer on being satisfied as to
his identity has attested the mark as being
the mark of that person.
Where a person is unable to write his name, he may place his
mark on the instrument or other paper and the requirements
of law are complied with, provided he puts the mark in the
presence of the Returning officer or the Presiding officer
or such other officer as may be specified in that behalf by
the Election Commission and such officer on being satisfied
as to his identity attests the mark as being the mark of
that person. Gokla was illiterate. He impressed his thumb
mark on the nomination paper : but it was not placed in the
presence of any of the designated officers, nor was there
any authentication or attestation of the thumb-mark The
requirement under s. 33 (1) of the Act that the nomination
-shall be signed by the candidate and by the proposer is
mandatory. Signing, whenever signature is necessary, must
be in strict accordance with the requirements of the Act and
where the signature cannot be written it must be authorised
in the manner prescribed by the Rules. Attestation is not a
mere technical or unSubstantial, requirement within the
meaning of s. 36(4) of the Act and cannot be dispensed with.
The attestation and the satisfaction must exist at the stage
of presentation and omission of such an essential feature
may not be subsequently validated at the stage of scrutiny
any more than the omission of a candidate to sign at all
could have been : Rattan Anmol Singh and Another v. Atma Ram
& Others.(1). The nomination papers of Dhani Ram were filed
on the last day fixed for receiving the nomination papers.
Not being attested as required by law on the date of filing,
the defect could not be rectified at the time of scrutiny.
Evidence of witnesses for the appellant who deposed that
that at the date of scrutiny. Gokla was present outside the
office of the Returning Officer and that Dhani Ram brought
to the notice of the Returning Officer that Gokla was
present and that his signature may be attested, and that the
Returning officer declined to accede to the request need not
be considered. The Returning officer could not allow Dhani
Ram or his proposer to rectify the defect in the nomination
papers after the last date of nomination.
Several corrupt practices were set up in the petition. The
corrupt practices relied upon by the appellant in this
appeal may be broadly classified under three heads
(1) [1955] 1 S.C.R. 481.
534
(1) that on January 19, 1967, Brijraj Singh
paid Rs. 250 to Sone Ram respondent No. 5 at
Morena and successfully persuaded him not to
file his nomination paper.
(2) that Brijraj Singh and his agents toured
the constituency in a jeep fitted with a
microphone and visited many villages and
delivered speeches reflecting upon the
character and conduct of Raja Pancham Singh a
candidate sponsored by the Congress Party.
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One Chhotey Lal respondent No. 4 was made to contest the
election by Brijraj Singh to "divide the votes of Raja
Pancham Singh" and that Chhotey Lal who supported the
candidature of Brijraj Singh made statements between January
20, 1967 and February 19, 1967 and distributed leaflets
containing statements of fact relating to the personal
character and conduct of Raja Pancham Singh which were false
to the knowledge of Chhotey Lal or who did not believe them
to be true, and that the leaflets were issued and circulated
with the consent of Brijraj Singh, and
(3) that the Maharaja Scindia of Gwalior
accompanied by Brijraj Singh visited several
villages in a helicopter and addressed
election meetings in support of the
candidature of Brijraj Singh and the Maharaja
acted as his agent and incurred expenditure
for carrying on election propaganda : if the
expenditure incurred for the purpose of
obtaining the use of the helicopter and a
fleet of motor cars used by him were taken
into account, such expenses being incurred or
authorised by Brijraj Singh would considerably
exceed the limit prescribed by the statute.
In the view of the High Court Chhotey Lal did commit a cor-
rupt practice in that he distributed on January 29, 1967 at
Kelaras village leaflets containing statements of fact
relating to the personal conduct of Raja Pancham Singh, but
it was not proved that Chhotey Lal contested, the election
at the instance of Brijraj Singh "to divide the votes of
Raja Pancham Singh" or that he was the agent at any time of
Brijraj Singh nor was it proved that Chhotey Lal had ever
supported the candidature of Brijraj Singh or that any
pamphlet of the nature circulated by Chhotey Lal was issued
or circulated by Brijraj Singh. In that view the High Court
held that the election of Brijraj Singh was not materially
affected by the candidature of Chhotey Lal. ’Me High Court
rejected the contention of the appellant that Brijraj Singh
committed other corrupt practices alleged. The High Court
accord-
535
ingly passed an order declaring that the appellant had
failed to establish that Brijraj Singh had committed any
corrupt practice with which he was charged. The High Court
dismissed the election petition filed by the appellant with
costs, but declared that the 4th respondent Chhotey Lal was
guilty of the corrupt practice within the meaning of s. 123
(4) of the Act and was on that account disqualified for a
period of six years from the date of the order under s. 8A
of the Act. Against that order this appeal has been
preferred by the appellant.
Chhotey Lal has not appealed against the order recorded
against him. He is impleaded as a party-respondent and he
has appeared before this Court through counsel. At the
hearing counsel appearing for Chhotey Lal urged that the
finding of the High Court that Chhotey Lal was guilty of the
corrupt practice charged against him is contrary to
evidence. But in the absence of an appeal filed by Chhotey
Lal the ground cannot be permitted to be agitated by him.
The appeal was filed by the appellant challenging the order
of the High Court refusing to set aside the election of
Brijarj Singh on the three grounds set out hereinbefore. the
scope of the appeal cannot be expanded by permitting chhotey
lal who could have but has not chosen to appeal, to plead
that he has not committed any acts amounting to a corrupt
practice.
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The case that Brijraj Singh gave Rs. 250 to Sone Ram and
induced him to withdraw his candidature is unreliable. One
Shanker Lal deposed that on January 19, 1967, he met Brijraj
Singh and Sone Ram in the compound of the office of the
Collector, Morena, and the former induced Sone Ram not to
contest the election and offered to pay a bribe of Rs. 250,
and paid Rs. 250 to Sone Ram. According to the witness
there were several persons present at the time when the
bribe was offered and paid, but none of those persons was
called as a witness on behalf of the appelant. One Tikaram
who was alleged to be present was examined on behalf of
Brijraj Singh and he denied that any such offer was made or
bribe paid. Sone Ram also denied that he had received any
bribe from Brijraj Singh. He stated that he had borrowed
Rs. 200 from his maternal uncle to deposit the amount for
his candidature but since his maternal uncle declined to
incur any further expenditure and dissuaded him from
contesting the election he had to abandon his candidature.
In the opinion of the Trial Judge the witness Shanker Lal
was an untruthful witness and we see no reason to disagree
with that view.
We may now turn to the plea that Brijraj Singh made false
allegations against the personal conduct and ’character of
Raja Pancham Singh orally and by circulating pamphlets, on
which a great deal of argument was advanced before us. It
was the case Sup, C.1.169-5
536
of the appellant that Brijraj Singh and his two workers
Laxmi chand and Shankarlal visited several villages between
February 2, 1967 and February 26, 1967, in connection with
the election campaign and made false statements against the
character and conduct of Pancham Singh in the meetings held
in those villages, and "in door to door canvassing in" those
villages. Those allegations are denied by Brijraj Singh and
by Laxmichand and Shankar lal. The case of the appellant
was that these allegations were made in the course of the
election propaganda in ten villages. but evidence was led in
respect of statements made in six villages. It is said that
Brijraj Singh and his supporters visited the village Narhela
and held a meeting in that village. One Dhaniram stated
that a meeting was held at the village Narhela, but the
witness did not say that either Brijraj Singh or his workers
made any allegations against the personal character of
Pancham Singh. According to this witness Brijraj Singh
merely requested the persons assembled therein the. meeting
to vote for him. Witness Ghansu stated that a meeting was
held at the village Narhela and the same was addressed by
Brijraj Singh and Laxmichand and that these two persons
stated that Pancham Singh was " associating with dacoits"
and had misappropriated money belonging to a school and had
got the school closed and that whenever any member of the
legislative assembly sought to visit him be set his dogs at
him. In the election petition there was no reference to any
meeting held at Narhela or of any offending statements made
at any such meeting. It was stated in paragraph III(a) of
the election petition, in setting out the details of the
corrupt practices, that the first respondent accompanied by
Laxmichand and Shankerlal toured in a jeep fitted with a
microphone and visited the village Narhela on February 2,
1967 and canvassed votes going from door to door. The
witness Ghansu did not belong to Narhela, and no witness
from village Narhela was examined. Laxmichand, Shankerlal
and Brijlal Singh denied that any statement against the
personal conduct and character of Pancham Singh was made by
them at Narhela either in any meeting or in "door to door
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canvassing". Phoolsingh-the only witness examined on behalf
of the appellant-did not support his case that Singh at
Budhreta. About the village Khirla, witness Kesharsingh
stated that Brijraj Singh and Laxmichand had held meetings
and had -made statements against the personal conduct and
character of Pancham Singh. But the witness did not belong
to the village Khirla : he is a resident of Pahadgarh
village which is at a distance of fifteen miles from Khirla.
No witness from Khirla was examined. Witness Dataram said
that at a meeting held at Sujarma, Brijraj Singh had made
any statements derogatory of Pancham Pancham Singh." But the
testimony of the witness who is said to be constantly under
"police surveillance" is unreliable. About the meeting held
at Village Kelaras the appellant examined three
537
witnesses-Narayan, Kanhaiyalal and Sardarsingh. The first
two. witnesses said nothing about any statement made about
the personal character of Raja Pancham Singh at the meeting.
Sardarsingh supported the case, of the appellant, but the
testimony of the witness was inconsistent with the case of
the appellant. About the meeting held at village Kulouli
the appellant examined witness Badri who stated that both
Brijraj Singh and Laxmichand had made statements derogatory
of Pancham Singh. His explanation about his presence at the
village Kulouli was apparently untrue and his testimony was
otherwise unreliable.
The learned Judge summarised the evidence of the witnesses.
on behalf of the appellant and concluded that the appellant
had, "miserably failed" to establish that Brijraj Singh and
his agents Laxmichand and Shankar Lai had made any
statements derogatory to the personal character of Pancham
Singh. In the view of the learned Judge it was not proved
that Brijraj Singh and his two agents had made statements
that Pancham Singh was an associate of dacoits, nor was the
statement that Pancham Singh had misappropriated the funds
of the school proved. The learned Judge, also held that the
statement alleged to have been made by Brijraj Singh and his
agents that Pancham Singh was responsible for getting the
school at Pahadgarh closed and that "he lets loose ferocious
dogs towards the persons who go to see him" were trivial and
did not involve any moral turpitude, and even assuming that
those statements were made, no corrupt practice could we
said to have been committed on that account under s. 123 (4)
of the Act.
The learned Trial Judge found that Chhotey Lal committed a
corrupt practice by distributing pamphlets casting
reflections upon the personal character of Pancham Singh.
But in the view of the learned Trial Judge there was no
reliable evidence to prove that Chhotey Lal acted on behalf
of Brijraj Singh. or that the latter defrayed the expenses
of the pamphlet or that the agents of Brijraj Singh
distributed the offending pamphlets. The learned Judge has
carefully considered the evidence and no serious argument
has been advanced before us on that part of the case which
may justify as in taking a different view. Not a word was
said that the expenses incurred by Chhotey Lal for getting
the pamphlets printed were reimbursed, nor was the evidence
of the witnesses Sanwaldas Gupta, Kalyansingh Tyagi examined
on behalf of the appellant hat Brijraj Singh and his agents
circulated the Pamphlets true. The learned Judge observed
that the story that out of the 2,500 copies of the pamphlets
printed, 2,000 copies of the pamphlet had been handed over
by Chhotey Lal to Brijraj Singh on the night on January 19,
1967, was "a clumsy and crude invention of these wo
witnesses", and "was utterly false and unreliable". After
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con-
538
sidering the various improbabilities and the discrepancies
relating to the testimony of the witnesses Sanwaldas Gupta
and Kalyansingh Tyagi, the learned Judge observed that these
witnesses "invented lies" and did "their best to introduce
clumsy and crude improvements at the stage of evidence" with
the "object of bolstering up" the appellant’s case and
through him that of Raja Pancham Singh. In his view the
story that the pamphlet Annexure ’A’ was issued or
circulated with the consent of Brijraj Singh was false. The
learned Judge also found on a consideration of the evidence
that at no stage did Chhotey Lal support the candidature of
Brijraj Singh and that it was not proved that the pamphlet
Annexure ’A’ was ever issued or circulated with the consent
,of Brijraj Singh. In his view Brijraj Singh had no
connection -with the printing and publication of the
pamphlet and on that account the plea of corrupt practice
set out and founded on the ,circulation of the pamphlet was
not proved. We see no reason to disagree with the view
expressed by the learned Judge.
It was then urged that the Maharaja Scindia of Gwalior in-
curred considerable expenditure as agent of Brijraj Singh in
canvassing votes and the expenditure so incurred was liable
to be included in the election expenses of Brijraj Singh.
It was claimed -that the, Maharaja and the Rajmata of
Gwalior as agents of Brijraj Singh took a leading part in
canvassing votes in different villages .and in doing so used
a helicopter and a fleet of motor cars and spent large sums
of money which were not disclosed in the account ,of
election expenses filed by the &St respondent Brijraj Singh.
Brijraj Singh had contested the election as an independent
candidate. But the appellant says that the, Maharaja and
the Rajmata of Gwalior addressed election meetings and in
those meetings they declared that Brijraj Singh was
sponsored as a candidate by them, and that the voters should
support Brijraj Singh. Brijraj Singh in his evidence stated
that the Maharaja had the "Central Election office of
Maharaja Gwalior’ representing the alliance of various
political parties and individuals opposed to the Congress
candidate and in propagating its views and policy during the
election this Organisation also supported the candidates who
,opposed Pancham Singh.
There was no reliable evidence that the candidature of
Brijraj Singh was sponsored by the Maharaja and the Rajmata
of Gwalior. The opinion expressed by the witness Dataram
cannot do duty for evidence in support of the case of the
appellant. Sanwaldas Gupta and Kalyansingh Tyagi stated
that they had requested the Maharaja to adopt Chhotey Lal as
his candidate for election but they were told by the
Maharaja that he had already decided to set up Brijral Singh
as his candidate -and that they also should actively
-support him. The evidence of these witnesses was found to
be
539
unreliable by the High Court. In our judgment the High
Court has rightly rejected their testimony. It was said
that in certain villages speeches were made by Brijraj Singh
that he was set up as a candidate by the Rajmata of Gwalior.
But there is no reliable evidence in support of that case.
Reliance was strongly placed upon visits made by the Rajmata
of Gwalior at villages Kelaras and Sabalgarh on Feb. 4 or
Feb. 5, 1967, with a fleet of motor cars and about the
speeches delivered in those villages declaring that Brijraj
Singh was set up by her and that the voters should vote for
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him -and strengthen her hands. It is also said that the
Maharaja visited Kelaras, Pahadgarh, Sujarma, Budhreta,
Kulhouli, Sabalgarh, Jhunpura and Narhela on Feb. 11 or 12,
1967 in a helicopter and addressed meetings in those
villages and in Ms speeches declared that Brijraj Singh was
sponsored as a candidate by him and his mother -and the
voters should vote for him.
A large number of witnesses Keshrisingh, Narayan Sardar-
singh, Dhaniram, Phoolsingh, Kanhaiyalal, Mata Prasad,
Dwarka Prasad, Sanwaldas Gupta, Kalyansingh Tyagi, besides
the appellant, were examined in support of that case.
Brijraj Singh admitted that on Feb. 4 or 5, 1967, the
Rajmata had visited the villages Kelaras and Sabalgarh and
had addressed meetings in those villages. But he denied that
she declared in those meetings that he was set up as a
candidate by her. He further stated that the Maharaja had
visited on Feb., 11 or 12, 1967, five villages, Kelaras,
Pahadgarh, Budhreta, Jhundpura and Sabalgarh in a helicopter
and addressed meetings in those villages. But in none of
those meetings did he declare that Brijraj Singh was a
candidate set up by the Maharaja. The witnesses examined on
behalf of the appellant were, in view of their general
tenor, found unreliable. The learned Judge therefore stated
his conclusion that on Feb. 4 or 5, 1967 the Rajmata of
Gwalior visited two villages, Kelaras and Sabalgarh and
addressed meetings there; and her -son the Maharaja visited
five villages, namely, Kelaras, Pahadgarh, Budhreta,
Thundpura and Sabalgarh in a helicopter on or about Feb. II
or 12, 1967 and addressed meetings there, but there was no
reliable evidence to prove that Brijrai Singh was sponsored
as a candidate by the Rajmata or the Maharaja of Gwalior.
In the view of the learned Judge the testimony of the
witnesses on behalf of the appellant was "so thoroughly
unreliable" that no reliance could be placed upon it. He
concluded, after considering the evidence of Budharam, that
Brijraj Singh was an independent candidate and contested the
election as an independent candidate, and even though
meetings were addressed by the Maharaja and his mother-the
Rajmata-they did not say that Brijraj Singh was set up as
their candidate." We have carefully gone through the
evidence of the witness and heard the arguments ad at the
540
Bar and see no reason to disagree with the view taken by the
learned Judge.
The evidence of the witnesses that Brijraj Singh travelled
with the Maharaja of Gwalior in his helicopter and visited
several villages for his election campaign was also
unreliable and was, in our judgment, rightly disbelieved.
The evidence shows that when the Maharaja visited the
village Kelaras the only occupants in the helicopter were
the Maharaja and the pilot and that Brijraj Singh was not in
the helicopter when the Maharaja visited Kelaras. Similarly
about the village Jhundpura there is evidence that Brijraj
Singh was not with the Maharaja in the helicopter. About
the village Budhreta the witness Phoolsingh deposed that
Brijraj Singh was in the helicopter travelling with the
Maharaja. But from the cross-examination of the witness it
appears that his testimony was "worthless." The testimony of
Phoolsingh was inconsistent with the testimony of
Ramcharanlal-Sarpanch of the village. Similarly about the
visit to Sabalgarh village two of the witnesses examined
were Budhram and Sanwaldas Gupta. Budhram said nothing
about Brijraj Singh accompanying the Maharaja in the
helicopter. Sanwaldas Gupta supported the case of the
appellant, but having regard to his interest in the
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appellant and the general unreliability of his testimony, he
could not be believed. About the village Pahadgarh,
according to Mata Prasad examined on behalf of the
appellant, Brijraj Singh was in the helicopter and the
witness claimed that he had taken photographs of Brijraj
Singh while he was in the helicopter. We have seen the
original photographs Exts. P-11A, P-11B, P-12A, P-12B, P-
13A and P-14A which are in respect of the journeys by the
helicopter, the helicopter getting ready for take off, of
the meetings addressed by the Maharaja and of the occupants
in the helicopter. Some of the photographs are so hazy and
indistinct that it is impossible to identify any one in the
group. For instance the photograph Ext. P-13A in which it
is claimed that Brijraj Singh was in the helicopter shows
merely a smudge and it is impossible to say that any one was
sitting in the helicopter. In the view of the learned Judge
the witness Mata Prasad and Dwarka Prasad had been tutored
to give false testimony that Brijraj Singh had accompanied
the Maharaja at the time when the helicopter landed and also
when it took off and on the consideration of the evidence it
was established that Brijraj Singh was not with the Maharaja
of Gwalior either at the time when the helicopter landed at
the five villages--Kelaras, Jhundpura, Budhreta, Sabalgarh
and Pahadgarh or when the helicopter took off. The learned
Trial Judge disbelieved the witness Mata Prasad. We have
scrutinized the evidence of Mata Prasad and have seen the
original photographs and have no doubt that the learned
Judge was right in holding that the testimony of the witness
Mata prasad was unreliable.
541
In the absence of any connection between the canvassing
activities carried on by the Maharaja and the Rajmata with
the candidature of Brijraj Singh, it is impossible to hold
that any expenditure was incurred for Brijraj Singh which
was liable to be included in the election expenses of the
first respondent. Under s. 123(6) of the Representation of
the People Act, 1951, the incurring or authorizing of
expenditure in contravention of S. 77 is -a corrupt practice
and s. 77 provides, insofar as it is material
"(1) Every candidate at an election shall,
either by himself or by his election agent,
keep a separate and correct account of all
expenditure in connection with the election
incurred or authorised by him or by his
election agent between the date of publication
of the notification calling the election and
the date of declaration of the result thereof,
both dates inclusive.
(2)
(3) The total of the said expenditure shall
not exceed such amount as may be prescribed."
Unless it is established that the expenditure was incurred
in connection with the election by the candidate or by his,
election agent or was authorised by him it is not liable to
be included under s. 77 of the Representation of the People
Act. We agree with the High Court that under s. 77(1) only
the expenditure incurred or authorised by the candidate
himself or by his election agent is required to be included
in the account or return of election expenses and thus
expenses incurred by any other agent or person without any-
thing more need not be included in the account or return, as
such incur-ring of expenditure would be purely voluntary.
Assuming that expenditure was incurred by the Maharaja and
the Rajmata for the purpose of canvassing votes against Raja
Pancham Singh, in the absence of any evidence to show that
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
the Maharaja and the Rajmata of Gwalior acted as election
agents of Brijraj Singh or the expenditure was authorised by
Brijraj Singh it was not liable to be included in the
account of the election expenses.
We agree with the High Court that there is no evidence on
the record to prove that Brijraj Singh actually spent any
money on the helicopter used by the Maharaja in visiting the
five villages and the two cars used by the Rajmata in
visiting the two villages. There is no evidence on the
record direct or circumstantial to prove that Brijraj Singh
had authorised the Maharaja and his mother to incur the
expenditure on the helicopter and the two cars. It is not
necessary then to consider whether the expenditure incurred
by the Maharaja and the Rajmata of Gwalior in respect of the
helicopter and the motor cars can be said to be expenditure
incurred by a political party for carrying on propaganda to
542
promote their views and their party interest and their
policies and to educate the electoral constituency, and on
that account is non liable to be included in the election
expenses of the candidate.
Having carefully considered the evidence and having heard
the arguments advanced at the Bar at considerable length, we
are ,of the view that the appellant has failed to establish
that Brijraj Singh was set up as a candidate by the Maharaja
or the Rajmata of Gwalior as their nominee or that the
Maharaja and the Rajmata had incurred any expenditure as an
agent of Brijraj Singh or the expenditure incurred by the
Maharaja and the Rajmata of Gwalior was authorized by
Brijraj Singh and was liable to be included in his account
of election expenses under s. 77 of the Representation of
the People Act, 1951.
The appeal fails and is dismissed with costs in favour of
the first respondent. The order of costs in favour of the
4th respondent passed by the High Court is set aside.
R.K.P.S. Appeal dismissed.
543