Full Judgment Text
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PETITIONER:
RAM AWADESH SINGH
Vs.
RESPONDENT:
SUMITRA DEVI & ORS.
DATE OF JUDGMENT03/12/1971
BENCH:
HEGDE, K.S.
BENCH:
HEGDE, K.S.
GROVER, A.N.
CITATION:
1972 AIR 580 1972 SCR (2) 674
CITATOR INFO :
F 1973 SC 276 (5)
RF 1976 SC1187 (31)
D 1985 SC 847 (23)
ACT:
Representation of the People Act, 1951, ss. 33(4) and
36(4)--Nomination paper--Mistaken entry as to candidates’
name in electoral roll--Mistake not substantial--Acceptance
of nomination paper does not vitiate election.
Evidence--If several instances of corrupt practice are not
separately proved they have no collective effect.
HEADNOTE:
During the mid term election held in 1969 in Bihar the
respondent and 11 others contested from the Arrah Assembly
Constituency. The appellant was declared elected as having
obtained the highest number of votes. His nearest rival
was the respondent.’ The respondent filed an election
petition challenging the election of the appellant on
various. The principal ground taken was that the result of
the election had been material affected by the improper
acceptance of the appellant’s nomination papers. It was
alleged that nomination Paper showed that r the appellant’s
name was registered as an elector in the Arrah Constituency
whereas at the relevant time it had been removed therefrom.
The returning Officer was therefore wrong in accepting the
nomination paper. The other allegations against the
appellant related to corrupt practice. The High Court
rejected the allegations as regards corrupt practice but it
set aside the election of the appellant on the ground that
the nomination paper had been improperly accepted and the
election had been materially affected thereby.. In appeal to
this Court,
HELD : (i) The appellant was fully qualified to be nominated
at the election. The only thing said against his nomination
was that his nomination paper was not properly filled in.
It was proved from the evidence that the Returning officer
did look into the nomination paper but unfortunately he also
did not notice that the name of the appellant had been re-
moved from the electoral roll of Arrah constituency. If he
had noticed F that fact he would have asked the appellant
either to correct the mistake or to file a fresh nomination
paper. The appellant filed his nomination paper on the 6th
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of January 1969 and the last date for filing the nomination
paper was the 8th of that month. That being so there would
have been no difficulty for him neither to correct the
nomination paper filed or to file a fresh nomination paper.
The appellant had with him a certified copy of the electoral
roll of Sandesh Constituency where his name was enrolled and
he had shown the same to the Returning Officer. Mistakes
complained of occurred because both the appellant as well as
the Returning Officer merely looked into the main voters’
list in Arrah constituency but overlooked the deletion noted
in a separate list [670 A-D]
From a combined reading of ss. 33 and 36 of the
Representation of the People Act, 1961 it is clear that a
mis-description as to the electoral roll number of the
candidate or of the proposer in the nomination paper is not
to be considered as a material defect in the nomination
paper. The High Court was accordingly not justified in
allowing the election petition on the ground that the
nomination paper of the appellant was improperly accepted.
[681 A; 683 E]
675
In view of the above finding the further question whether
the result of the election was materially affected did not
survive for consideration. [683 E-F]
(ii) The appeal of the respondent on the question of corrupt
practice had no merit. The three instances mentioned were
in the opinion of the High Court not established by the
evidence. Each instance of a corrupt practice pleaded has
to be established separately. If every one of the instances
was not proved all of them put together cannot be accepted
as true because of the volume of evidence. [685 B-C]
The election petition must therefore be dismissed.
Karnail Singh v. Election Tribuna, Hissar & Ors., 10 E.L.R.
189, Rangilal Choudhury v. Dahu Sao & Ors., [1962] 2 S.C.R.
401, Namdeo Chimnaiji Tapre & Anr. v. Govindas Ratanlal
Bhatia & Ors.. I.L.R. 1964 Bom. 114 and Wey Kanta Barooah v.
Kusharam Nath & Ors,, XXI E.L.R. 459, applied.
Narbada Prasad v. Chhagal Lal & Ors., [1967] I S.C.R. 499,
Ram Dayal v. Brijrai Singh & Ors., [1970] I S.C. R. 530 and
Brijendralal Gupta find Anr. v. Jawalaprasad & Ors., [1960]
3 S.C.R. 650, distinguished.
Vashist Narainin Sharma v. Dev Chandra and Ors., [1965]
S.C.R. 509, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1384 and
1584 of 1970.
Appeals under Section 116-A of the Representation of the
People Act, 1951 from the Judgment and Order dated May.22,
1970 of the Patna High Court in Election Petition No. 2 of
1969.
J. P. Govat, Subhagmal Jain, S. P. Mukherjee, Pranab
Chatterjee and G. P. Roy, for the appellant (in C.A. No.
1384 of 1970) and respondent No. 1 (in C.A. No. 1584 of
1970).
V. M. Tarkunde, P. N. Tiwari, 0. C. Mathur, Ravinder
Narain and J. B. Dadachanji, for respondent No. 1 (in C.A.
No. 1384 of 1970) and the appellant (in C.A. No. 1584 of
1970).
The Judgment of the Court was delivered by
Hegde, J. These are cross-appeals under s. 116-A of the
Representation of the People Act, 1951 (to be hereinafter
referred to as the Act) arising from an election petition
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filed by the first respondent (who for the sake of
convenience will hereinafter be referred to as the
respondent), before the High Court of Patna.
During the last mid term election for the Bihar Legislative
Assembly held in the beginning of 1969, the appellant, the
respondent and 1 1. other contested from the Arrah Assembly
Constituency. The last date for filing the nomination was
January 8, 1969 and the date of scrutiny was January 9,
1969. The poll took place on February 9, 1969 and the votes
were counted on the next day. The appellant was declared
elected as having obtained the highest number of votes i.e
13,556. His nearest rival was the respondent
676
who secured 12,278 votes. The appellant was the nominee of
the Socialist party and the respondent was the nominee of
the Congress party.
After the publication of the results in the official
gazette, the respondent filed the election petition
challenging the validity of the appellant’s election on
various grounds. The principal ground taken by her was that
the result of the election had been materials affected by
the improper acceptance of the appellant’s nomination
papers. She also charged the appellant with the commission
of various corrupt practices to which reference will be made
at a later stage. The learned trial judge accepted the
contention of the respondent that the result of the election
had been materially affected by the improper acceptance of
the appellant’s nomination. He accordingly set aside the
election of the appellant; but lie ,rejected the contention
of the respondent that the appellant was guilty of any
corrupt practice. Aggrieved by the decision of the High
Court, the appellant has filed Civil Appeal No. 1384 of 1970
and the respondent has filed Civil Appeal No. 1. 5 84 of
1970.
The principal questions that arise for decision are : (1)
whether the defects found in the nomination paper of the
appellant are, of " substantial character" within the
meaning of that expression in s. 36(4) of the Act and (2)
whether it in is established that the acceptance of the
nomination of the appellant had materially affected the
result of the election.
After dealing with those questions, we shall proceed to
consider the appeal of the respondent challenging the
conclusion of the trial court regarding the corrupt
practices alleged to have been committed by the appellant.
Before proceeding to consider the relevant provisions in the
Act, it is necessary to set out a few more facts. The
appellant has been contesting from the Arrah constituency
from about the year 1962. He represented that constituency
before the dissolution of the Bihar Legislative Assembly.
He was registered as on elector in the Sandesh Assembly
Constituency of the Bihar State. His name continued to be
on the electoral roll of that constituency even at the time
he filed his nomination from the Arrah constituency on
January 6, 1969 i.e. two days before the last date for
filling the nomination. It appears that in 1968, his name
was also entered in the electoral roll of Arrah
constituency. But later on, evidently because. his name
stood entered in the Sandesh constituency, the same was
deleted from the Arrah constituency. But this deletion was
done without notice to the appellant. The deletion was
shown in a separate supplemented list. In the main
electoral roll, his name continued to be shown in the Arrah
constituency. According to the appellant when he came, to
file his nomination paper, he was not aware of the fact that
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his name was entered in the electoral
677
roll of the Arrah constituency. Therefore he had brought
with him a certified copy of the electoral roll of the
Sandesh constituency. But in the’ morning of January 6,
1969 he came to know that his name was also in the Arrah
constituency. At that time he did not notice the deletion
of his name which was in a separate list. Therefore in his
nomination paper, he entered his electoral roll No., as
shown in the electoral roll of Arrah constituency. But at
the, same time he showed to the Returning Officer the
certified copy of the scrutiny, no one objected to the
nomination of the appellant. The Returning Officer supports
this version of the appellant. After checking the name of
the appellant as well as his electoral number as found in
the electoral roll of Arrah constituency, and also the names
and electoral roll number of his proposers, the Returning
Officer received the nomination paper filed by him. At the
time of the scrutiny, no one objected to the nomination of
the appellant. The Returning Officer accepted his
nomination as a valid nomination. The objection to the
acceptance of the nomination of the appellant was put
forward for the first time, in the election petition. We
have now to consider whether the appellant was validly
nominated.
Section 5 of the Act prescribes the qualifications for
membership of a Legislative Assembly. It says that
"A person shall not be qualified to be chosen to fill a seat
in the Legislative Assembly of a State unless
(a)
(b)
(c) in the case of any other seat he is an elector for any
Assembly constituency in that State"
It is not denied that the appellant possesses all the
qualifications prescribed either under the Constitution or
under the Act and further that he has none of the
disqualifications mentioned either under the Constitution or
under the Act. All that is said against his nomination is
that his nomination paper was not properly filled in. The
law requires that the nomination of a candidate should be in
the prescribed form and among others it should contain the
name of the person nominated, his proposer’s name as well as
the electoral roll numbers of the candidate and his
proposer. Sub-cl. (4) of s. 33 provides that :
"On the presentation of a nomination paper,
the returning officer shall satisfy himself
that the names and electoral roll numbers of
the candidate and his proposer as entered in
the nomination paper are the same as those
entered in the electoral rolls :
Provided that no misnomer or inaccurate
description or clerical, technical or printing
error in regard to the
678
name of the candidate or his proposer or any
other person, or in regard to any place,
mentioned in the electoral roll or the
nomination paper and no clerical, technical or
printing error in regard to the electoral roll
numbers of any such person in the electoral
roll or the nomination paper, shall affect the
full operation of the electoral roll or the
nomination paper with respect to such person
or place in any case where the description in
regard to the name of the person or place is
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such as to be commonly understood; and the
returning officer shall permit any ,such
misnomer or inaccurate description or
clerical, technical or printing error to be
corrected and where necessary, direct that any
such misnomer, inaccurate description,
clerical, technical or printing error in the
electoral roll or in the nomination paper
shall be overlooked."
Sub-s. (5) of s. 33 provides that where a
candidate is an elector ,of a different
constituency, a copy of the electoral roll of
that constituency or of the relevant part
thereof or a certified copy of the relevant
entries in such roll shall unless it has been
filed along with the nomination paper be
produced before the Returning Officer at the
time of the scrutiny.
Section 36 of the Act prescribes the mode of
scrutiny of the nomination. Sub-s. (2) of
that section says :
"The returning officer shall then examine the
nomination papers and shall decide all
objections which may be made to any nomination
and may, either on such objection or on his
own motion, after such summary enquiry, if
any, as he thinks necessary, reject any nomi-
nation on any of the following grounds :
(a) that on the date fixed for the scrutiny
of nomination the candidate either is not
qualified or is disqualified for being chosen
to fill the seat under any of the following
provisions that may be applicable namely .-
Articles 84, 102, 173 and 191
(b) that there has been a failure to comply
with any of the provisions of section 33 or
section 34; or
(c) that the signature of the candidate or
the proposer on the nomination paper is not
genuine."
Sub-s. (4) of that section commands the
Returning Officer not to reject any nomination
paper on the ground of any defect which
679
is not of a substantial character. Sub-s. (6)
of that section prescribes that :
"The returning officer shall endorse on each
nomination paper his decision accepting or
rejecting the same and, if the nomination
paper is rejected, shall record in writing a
brief statement of his reasons for such
rejection."
The only other relevant provision which we
need consider is sub-s. (1) of s. 100 which
prescribes the grounds for declaring election
to be void. That section reads :
"Subject to the provisions of sub-s. (2) if
the High Court is of opinion-
(a) that on the date of his election a
returned candidate was not qualified, or was
disqualified, to be chosen to fill the seat
under the Constitution or this Act or the
Government of Union Territories Act, 1963; or
(b) that any corrupt practice has been
committed by a returned candidate or his
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election agent or by any other person with the
consent of a returned candidate or his
election agent; or
(c) that any nomination has been improper
rejected; or
(d) that the result of the election, in so
far as it concerns a returned candidate, has
been materially affected- (i) by the improper
acceptance of any nomination. or
(ii) by any corrupt practice committed in the
interests of the returned candidate by an
agent other than his election agent or
(iii) by the improper reception, refusal or
rejection of any vote or the reception of any
vote which is void, or
(iv) by any non-compliance with the
provisions of the Constitution or of this Act
or of any rules or orders made under this Act,
the High Court shall declare the election of
the returned candidate to be void."
The first question that we have got to decide is whether the
defects found in the nomination paper of the appellant are
of substantial character. As mentioned earlier, the
appellant was fully
680
qualified to be nominated for the election. The only thing
said against his nomination is that his nomination paper was
not properly filed in. We have earlier seen that a duty is
imposed on the Returning Officer by sub-s. (4) of S. 33 to
look into the nomination’ paper when it is presented and to
satisfy himself that the names and the electoral roll
numbers of the candidate and that of the proposer as entered
in the nomination paper are the same as those entered in the
electoral roll. In this case it is proved that the
Returning Officer did look into the nomination paper but
unfortunately he also did not notice that the name of the
appellant had been removed from the’ electoral roll of Arrah
constituency. If lie had noticed that fact, he, would have
asked the appellant either to correct the mistake or to file
a fresh nomination paper. We have earlier noticed that the
appellant filed his nomination paper on the 6th of January
1969 and the last date for filing the nomination paper was
the 8th of that month. That being so, there would have been
no difficulty for him either to correct the nomination paper
filed or to file a fresh nomination paper. We have earlier
noticed that the appellant had with him a certified copy of
the electoral roll of the Sandesh constituency and he had
shown the same to the Returning Officer. Mistakes
complained or occurred because both the appellant as well as
the Returning Officer merely looked into the main voters’
list but overlooked the deletion noted in a separate list.
But the implication of S. 33 (4) is that a wrong entry in a
nomination paper as regards the name of the candidate or the
proposer or their electoral roll numbers is not a matter of
substantial importance. That is why the legislature
requires the Returning Officer to look into them and if
there are any mistakes to get them corrected. What is of
importance in an election is that the candidate should
possess all the prescribed qualifications and that he
should not have incurred any of the disqualifications
mentioned either in the Constitution or in the Act. The
other information required to be given in the nomination
paper is only to satisfy the Returning Officer that the
candidate possesses the prescribed qualification and that he
is not otherwise disqualified. In other words those
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information relate to the proof of the required
qualifications.
It may also be noted that the legislature itself has made
distinction between the acceptance of a nomination and the
rejection of a nomination. The Returning Officer is
required to give reasons for rejecting a nomination whereas
he is not required to give reasons for accepting a
nomination. Further sub-s. (2) of S. 36 says that "he may
reject the nomination paper". It is further seen that the
proviso to sub-c. (4) of S. 33 says that no inaccurate
description in regard to the name of the candidate or his
proposer or in regard to any place mentioned in the
nomination paper shall affect the full operation of the
nomination.
681
From a, combined reading of ss. 33 and 36, it is clear that
a mis-description as to electoral roll number of the
candidate or of the proposer in the nomination paper is not
to be considered as a material defect in the nomination
paper.
In Karnail Singh v. Election Tribunal, Hissar and ors.(1),
the tribunal held that the nomination paper of one of the
candidates was wrongly rejected on the ground that column
No. 8 in the nomination paper was not duly filled up. The
only defect pointed out was that the name of the sub-
division was not stated therein’. But on the evidence it
was quite clear that there was no difficulty in identifying
the candidate and the candidate himself pointed out to the
returning officer the entry of his name in the electoral
roll. Agreeing with the tribunal this Court held that the
defect in those circumstances was a technical one and the
tribunal was perfectly right in holding that the defect was
not of a substantial character and that the nomination paper
should not have been rejected.
In Rangilal Choudhury v. Dahu Sao and ors. (2) this Court
held that the fact that the name of the constituency was
wrongly, mentioned as ’Bihar’ instead of ’Dhanbad’ in the
nomination paper did not vitiate the nomination as it was
clear from a reading of the entire nomination paper that the
respondent was seeking election from the Dhanbad
constituency. In reaching that conclusion this Court
referred to the requirements, of S. 3 3 (4), S. 3 6 (2) (b)
and (4). After referring to those provisions this Court
observed
"The result of these provisions is that the
proposer and the candidate are expected to
file the nomination papers complete in all
respects in accordance with the prescribed
form; bat even it there is some defect in the
nomination paper in regard to either the names
of the electoral roll numbers, it is the duty
of the returning officer to satisfy himself at
the time of the presentation of the nomination
paper about them and if necessary to allow
them to be corrected, in order to bring them
into conformity with the corresponding entries
in the electoral roll. Thereafter on scrutiny
the returning officer has the power to reject
the nomination paper on the ground of failure
to comply with any of the provisions of s. 33
subject however to this that no nomination
paper shall be rejected on the ground of any
defect which is not of a substantial
character."
In Namdeo Chimanji Tapre and anr. v. Govinddas Ratanlal
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Bhatia and ors. (1), the High Court of Bombay held that as
the
(1). 10, E.L.R. 189.
(2) [1962] 2. S.C.R. 401.
(3). I.L,R. 1964 Bom, 114.
682
identity of the candidate was not in dispute, the rejection
of the nomination paper by the Returning Officer was not
valid having regard to the provisions in s. 33 and s. 36 of
the Act.
In Dev Kanta Barooah v. Kusharam Nath and ors. (1), a
nomination paper for the Nowgong constituency of the Assam
Legislative Assembly contained a recital in the heading that
the respondent was thereby nominated as a candidate for
election "from the Assembly constituency", but against
column No. 2 of nomination paper relating to the electoral
roll number of the proposer and column No. 5 relating to the
electoral roll number of the candidate, the entry was "Assam
Legislative Assembly constituency, Part No. 10 of the
Electoral Roll of village Phulaniati, Mouza Hatichung,
Police Station Sadar, Nowgong, Roll No.. . . . . " The
Returning Officer rejected the nomination paper on the
ground that the name of the constituency to which the elec-
toral roll related was not mentioned in columns 2 and 5 as
required section 33 (4) of the Act. This Court agreeing
with the tribunal and the High Court held that the rejection
of the nomination was improper.
Our attention has not been invited to any decision either of
this Court or of any High Court or even of a tribunal where
the Returning Officer had accepted the nomination paper of a
qualified candidate, the same was found to be improper
because of some defect in the nomination paper. The case of
rejection of a nomination paper by the Returning Officer
stands on a footing different from that of an acceptance of a nom
ination paper. In the latter case the main though not
the only question to be considered is whether the candidate
is qualified to be a candidate. The very fact that the law
requires the Returning Officer to look into the nomination
paper, when filed and get any mistake regarding the name or
electoral number of the candidate or his proposer corrected
shows that the mistake regarding them is not a material
defect.
Learned Counsel for the respondent has sought to place
reliance on some decisions of this Court in support of his
contention that the appellant’s nomination paper was
improperly accepted. We shall now refer to the decisions
relied on by him.,
In Narbada Prasad v. Chhagan Lal and ors. (2) a candidate’s
nomination paper was rejected by the Returning Officer on
the round that he did not produce the proof required under
s. 33(5) of the Act. That rejection was upheld by this
Court. We fail to see how that decision lends any support
to the respondent’s case. Without the required proof, the
Returning Officer could not satisfy himself that the
candidate was qualified to seek election.
(1) XXI, E.L.R. 459. (2) [1969] 1, S.C.R.499
683
Reliance was next placed on the decision of this Court in
Rana Dayal v. Brijraj Singh and ors. (1) Therein the
proposer of the candidate was an illiterate person. He had
not got authenticated or attested the mark put by him in the
nomination paper by one of the designated officers as
required by the relevant provisions of the Act and the rules
framed thereunder. Hence the nomination paper was rejected
by the Returning Officer. That rejection was upheld both by
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the High Court as well as by this Court. No nomination can
be held to be valid unless the candidate is duly proposed.
If the mark put by the proposer is not authenticated in the
manner required by law, it cannot be said that the candidate
has been properly nominated.
In Brijendralal Gupta and ant-. v. Jwalaprasad and ors.(2),
this Court observed that the word ’defect’ in s. 36(4)
included an omission to satisfy the details prescribed in
the nomination. It further observed that the distinction
laid down in English cases between "omission and "inaccurate
description" depended on the specific provisions of the
English statute which did not obtain under the Indian law.
This decision, again has no bearing on the point in issue.
For the reasons mentioned above we are of the opinion that
the defect in the appellant’s nomination paper was not a
substantial defect. Hence the High Court was not justified
in allowing the election petition on the ground that his
nomination was improperly accepted.
In view of the conclusion reached above, it is not necessary
for us to go into the question as to the true interpretation
of s. 100(1) (d). We shall merely notice the arguments
advanced on either side on that question. According to the
appellant th@e legislature has made a clear distinction
between improper rejection and improper acceptance of a
nomination. In the case of improper rejection, the High
Court shall declare the election of the returned candidate
to be void but in the case of improper acceptance before the
election of the returned candidate can be declared void, the
election petitioner will have to establish that the result
of the election in so far as it concerns the returned
candidate has been materially affected. At this stage we,
may notice that prior to the amendment of the Act in 1956,
improper rejection and improper acceptance were placed in
the same category. Clause (c) of s. 100(1) as it stood then
read :
"If the Tribunal is of opinion.
(c) that the result of the election has been
materially affected by the improper acceptance
or rejection of any nomination.
(1) [1970] I S.C.R. 530.
(2) [1960] 3 S.C.R. 650.
684
the Tribunal shall declare the election to be
wholly void."
This Court in Vashist Narain Sharma v. Dev Chandra and ors.
(1) observed in the course of its judgment that where the
person whose nomination has been improperly accepted is the
returned .candidate himself, it may be readily conceded that
his nomination has materially affected the result of the
election. This observation was not the ratio of that
decision. That apart, after this observation was made, the
Parliament has amended the relevant provision and has made a
distinction between improper rejection and improper
acceptance of a nomination. It was urged on ’behalf of the
,appellant that in view of the amendment the observation
made by this Court in Vashist Narain Sharma’s case (supra),
can no more govern the point in issue. According to the
learned Counsel, clause (d) of s. 100(1) as it now stands
definitely requires that in the case of improper acceptance
of any nomination, the election petitioner must establish
that the result of the election in so far as it concerns the
returned candidate has been materially affected. He urged
that the word "any" in s. 100(1)(d) (1) means
every .nomination. On the other hand it was urged on behalf
of the respondent that the amendment of s. 100(1) did not
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affect the correctness of the observation made by this Court
and that observation had been quoted by this Court in two
cases arising under the amended provision. In view of our
earlier finding about the validity of the appellant’s
nomination, it is not necessary to decide the controversy
relating to the interpretation of s. 100 (1) (d).
For the reasons mentioned above, differing from the view
taken by the I earned trial judge, we have come to the
conclusion that the nomination of the appellant was properly
accepted.
This takes us to the appeal filed by the respondent. As
mentioned earlier, the High Court has rejected the charges
of corrupt practices levelled by the respondent against the
appellant. Those charges were sought to be established only
by oral evidence. The learned trial judge was unable to
accept the evidence adduced in support of the alleged
corrupt practices. Ordinarily this Court does not
reappropriation Oral evidence. Our attention has not been
,invited to any exceptional circumstances in this case
requiring us .to go into the evidence afresh. It is well
known that the factious feelings generated during elections
continue even after the election and hence the contesting
parties are able to produce before court large (number of
witnesses, some of whom may be seemingly disinterested’ But
that by itself is no guarantee of the truth of the .evidence
adduced. Mr. Tarkunde, learned Counsel for the respondent
put forward three broad contentions in support of the
(1)[1955] S.C.R. 509.
685
appeal preferred by the respondent. They are : (1) that the
High Court failed to take an overall view of the evidence
adduced; it merely contented itself by examining evidence
relating to each one of the instances, (2) the High Court
erred in not relying on the evidence relating to an instance
when the same is spoken to by a single witness and (3) the
High Court erred in rejecting the testimony of some of the
witnesses on the ground that they were chance witnesses.
None of these contentions appear to have any merit. Each
instance of a corrupt practice pleaded had to be
established separately. If every one of those instances are
not proved, all of them put together cannot be accepted as
true because of the volume of evidence.
Now coming to the instances sought to be proved by the evid-
ence of a single witness, the learned trial judge observed
in the course of his judgment that those instances were not
seriously pressed by the Counsel for the respondent.
Evidently these charges were given up. In appreciating
evidence of the witnesses, the courts have to take into
consideration the probability of their being present at the
time of the alleged incident. Courts have always viewed
with suspicion. the evidence of chance witnesses. There was
nothing wrong in the learned judge not being able to place
much reliance on the evidence of chance witnesses. Hence we
see no merit in the appeal filed by the respondent.
For the reasons mentioned above we allow Civil Appeal 1384
of 1970 and dismiss Civil Appeal No. 1584 of 1970. In the
result the election petition stands dismissed with costs
both in the High Court as well as in this Court-in this
Court the appellant is entitled to only one hearing fee.
G.C. C.A. No. 1384/70 allowed.
C.A. No. 1584/70 dismissed.,
-L643 Sup. C1/72
686
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