Full Judgment Text
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PETITIONER:
MOHD. YUNUS SALEEM
Vs.
RESPONDENT:
SHIV KUMAR SHASTRI AND OTHERS
DATE OF JUDGMENT25/03/1974
BENCH:
GOSWAMI, P.K.
BENCH:
GOSWAMI, P.K.
BHAGWATI, P.N.
CITATION:
1974 AIR 1218 1974 SCR (3) 738
1974 SCC (4) 854
CITATOR INFO :
O 1975 SC 43 (18,27,33,35,38,39)
O 1975 SC1634 (5)
R 1984 SC1406 (9)
R 1989 SC1283 (5,15,18)
RF 1991 SC 101 (227)
ACT:
Representation of the People Act (43 of 1951),Ss. 30,116-A
and 123(1) (A)(a)--Election Commissioner if he can alter
date of poll--Appreciation of evidence by Supreme
Court--Bribe for withdrawal after the date fixed for
withdrawal--if corrupt practice.
HEADNOTE:
A parliamentary constituency from which election to Lok
Sabha took place in March 1971 consisted of five assembly
constituencies. The polling at two of them was scheduled to
take place on March 1, and at the other three on March 3.
1971. 15th March. 1971 was fixed as the last day for the
completion of the election. The polling at the first two
constituencies took place on March 1. 1971. but. on March 2,
there was a communal riot as a result of which, the Election
Commissioner postponed the poll at the other three
constituencies from March 3 to March 9. After the polling
took place the first respondent was declared elected. The
appellant filed an election petition challenging the
election of the first respondent alleging several corrupt
practices against him, one of which was that on 6th March.
the second respondent, who was one of the candidates, was
induced to withdraw from the contest by the first respondent
offering to recommend him to a seat in the legislative
council and by a financier offering him a large sum of
money; and that the second respondent, though he declined
the offers, did, in fact, withdraw. He also contended that
the Election Commissioner had no power to alter the date of
poll at the remaining constituencies. The election petition
was dismissed by the High Court.
in appeal to this Court, the first respondent raised the
contention that even if the facts relating to the offers
were established, the first respondent would not be guilty
of the corrupt practice under s. 123(1)(A)(a), because, the
withdrawal of the 2nd respondent was after the date fixed
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for withdrawal from being a candidate.
Dismissing the appeal to this Court,
HELD.(1) The Election Commissioner had power to alter the
date of the poll from 3rd March to 9th March in the
remaining constituencies. Secs. 57 & 58 could not be
invoked by Election Commissioner for this purpose, because
they are applicable only in the circumstances specified and
in the manner provided, in those sections and s. 153. on
which the High Court relied, is also not applicable,
because it in terms provides only for extending the time for
completion of election and not for altering the date of the
poll. But s. 30 of the Representation of the People Act.
read with s. 21 of the General Clauses Act gives the
necessary power to the Election Commissioner to alter the
date of the poll. [742H; 743F-H; 744C-E-]
(2) The amendment of the date of the Poll gets engrafted in
the original form no. 1 in pursuance of the subsequent
notification made in valid exercise of the power under s. 30
of the Representation of the People Act read with s. 21 of
the General Clauses Act, and therefore, a fresh notification
of the date under r.3 of the Conduct of Election Rules. in
the requisite form, is not necessary. [744E-G]
(3) If the facts regarding the offers to the second
respondent had been established it would amount to corrupt
practice within the meaning of s. 123(1) (A)(a) of the
Representation of the People Act. (a) Bribery to induce a
person to withdraw from being a candidate at an election
amounts to corrupt practice within the meaning of the sub-
section. It cannot be said that since the time for
withdrawal of candidature fixed for that purpose in the
appropriate notification had already expired in this case
there could be no withdrawal of candidature after the date.
When s.123 (1) (A)(a) speaks of withdrawal from being a
candidate it is not limited to a condidate who has been
validly nomi-
739
nated and who has withdrawn earlier according to law. The
expression "to withdraw from being a Candidate" cannot be
given a restricted meaning and confined to the stage where
law permits a’ candidate to withdraw from the election. For
the purpose of the section the words are of wide amplitude
to include subsequent withdrawal even at the last stage
prior to the poll. [746B-747C]
(b)The omission of the words "retire from contest" from the
section as it originally stood is not significant, because
the dictionary meaning of the word withdraw’ includes ’to
retire from the field or battle or any contest’, and it is
because the words ’retire from contest’ have become
unnecessary that they were advisedly deleted by the
legislature. [746G-H]
(c) Since purity of elections is the most important object
of the Act, a narrow meaning to the word "withdraw" to refer
only to legal withdrawal under section 37 would defeat the
very aim. We have therefore, to give meaning to the word
"withdraw" keeping in mind the object and scheme of the Act
with a view to effectuate the intention of the legislature
to ensure purity in ,elections; else there will be an absurd
position where actual withdrawal after the time limit by
taking bribe will be free from the vice of corrupt practice
,whereas that prior to it will not be so. Such an intention
cannot be attributed to the legislature from deletion of the
words "retire from contest". The word "Withdraw" is
Comprehensive enough to also connote "retire from contest".
[747C-F]
(4) On the evidence, however, it could not be held that any
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corrupt practice had been proved to have been committed by
the first respondent under s. 123(1) to (4) of the Act. In
the matter of appreciation of oral testimony in an election
dispute this Court, in an appeal under s. 116-A, must have
convincing and clinching reasons to take a contrary view
from that of the High Court. It is not enough that another
view is merely possible on the oral evidence. Strict proof
of the allegations is Called for and the High Court has in
the present case rightly declined to accept the oral
evidence of the appellant’s ,,side and rightly preferred
that on the respondent’s side. [753A-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 282 of 1972.
From the judgment and order dated the 21st December, 1971,
of the Allahabad High Court in Election Petition No. 6 of
1971.
A. Subba Rao and J. B. Dadachanji for the appellant.
Hardyal Hardy, S. S. Khanduja and S. K. Dhingra, for
respondent No. 1.
L. N. Sinha. Solicitor General of India and M. N. Shroff,
for the respondent no. 2.
The Judgment of the Court was delivered by
GOSWAMI, J. This election appeal under section 116A of the
Representation of the People Act, 1951 (briefly the Act) by
the appellant, Mohd. Yunus Saleem, the defeated
Congress(R)candidate, is against the judgment of the
Allahabad High Court wherein he challenges the election of
the B.K.D. candidate, Shiv Kumar Shastri (Respondent No.1)
to the, Lok Sabha from the 76 Aligarh Parliamentary
constituency in the general elections held in March 1971.
This constituency consists of five Assembly constituencies
namely, 376-Aligarh, 377-Koil, 378-Iglas, 379-Khair and 380-
Chandaus. ’Mere
740
were seven candidates on the-run for the election from this
constituency. The poll was scheduled. to take place in
Aligarh and Koil on March 1, 1971. and in Iglas, Khair and
Chandaus on March 3, 1971. The polling. in Aligarh and Koil
was completed peacefully on March 1, 1971 and the appellant
obtained the highest number of votes as will appear from the
chart given below
367 377 378 379 380
City Koil Iglas Khair Chandaus Total
------------------------------------------------------------
Sarva Shri
Amar Singh 205 559 603 760 868 3,995
Jagdish Gandhi 500 1,291 1,114 1,103 927 4,937
Pooran Singh
Malan 18,385 4,165 310 337 386 23,583
Mohd. Yunus
Saleem 44,422 25,228 17,134 19,372 18,030 124,186
Virpal Singh 622 1,240 1,026 1,254 1,320 5,462
Shiv Kumar
Shastri 4,719 16,260 42,281 53,240 43,012 180,313
Saheb Singh 558 3,170 1,653 1,671 3,076 6,958
On March 2, 1971 a communal riot between Hindus and Muslims
took place in Aligarh city and as a result of this the
Election Commission on receipt of reports of the local
authorities at Aligarh postponed the poll in the remaining
segments from March 3, 1971 to March 9, 1971. As will
appear from the above chart, during the poll this time on
March 9, 1971, the first respondent obtained a very high
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percentage of votes with the result that he was declared
elected. The 2nd respondent, although a Samyukt Socialist
Party candidate (SSP), was sponsored by the four parties
alliance consisting of Jan Sangh, Swatantra, Congress led by
Shri Nijalingappa, and Samyukt Socialist Party.
The appellant alleges several corrupt practices in his
election petition before the High Court and also raises
certain question of law. The Chief Election Commissioner
has been impleaded as a respondent in this appeal. The High
Court has repelled the contentions of the appellant We are
now concerned in this appeal with the following issues :--
Issue No. 2 : "Whether the order of the
Election Commission adjourning the poll from
3rd March to 9th March was without
jurisdiction and illegal" ?
Issue No. 5 : "Whether Pooran Singh Malan
(respondent No. 2) withdrew from the election
on 6th March and asked ’his supporters to vote
instead for respondent No. 1. If so, was this
done as a result of inducements offered at the
instance of respondent No. 1" ?
741
Issue No. 7 : "Whether voters were induced by
threats offered by Hukum Singh, the polling
agent of respondent No. 1, to promise not to
vote for the petitioner but to vote for
respondent No. 1 (as detailed in paragraph 28
of the petition) " ?
Issue No. 8 : "Whether respondent No. 1 and
Kalyan Singh, M. L.A. appealed to Hindu voters
in Gordha village on 7-3-1971 not to vote for
the petitioner because he was a Muslim (as
detailed in para 29 of the petition); and
whether similar appeals were made to voters by
respondent No. 1 and Prakash Vir Shastri,
Virendra Varma, Raghunath Singh and Ram Prasad
Deshmukh in Khair, Chandaus and Iglas between
7-3-1971 and 9-3-1971 (as detailed in para 30
of the petition)" ?
Issue No. 8A: "Whether respondent No. 1 and
the other persons named in paragraph 30 of the
petition and the statement of further
particulars made speeches in Khair, Chandaus
and Iglas Tehsils alleging that the petitioner
was responsible for communal riots in Aligarh
and other placer,, which statements were known
by them to be false" ?
Issue No. 9 : "Whether Virendra Varma and
Raghunath Singh appealed to Jat voters to vote
for respondent No. 1 on the ground that he was
the candidate of a party led by Shri Charan
Singh (as detailed in para 30 of the
petition)" ?
Issue No. 10 : "Whether respondent No. 1’s
election agent Yogendra Pal Singh and Virendra
Varma and Charan Singh appealed to Jat and
Thakur voters at Iglas on 7-3-1971 not to vote
for the petitioner as he was a Muslim and not
to allow Muslim, Jatav and Brahmin voters to
vote (as detailed in para 34 of the petition)"
?
Issue No. 11 : "Whether at the same meeting
mentioned in para 34) Yogendra Pal Singh
falsely stated that the petitioner was a
Razakar of Hyderabad and had instigated the
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Aligarh riots" ?
Issue No. 12 : "Whether respondent No. 1 has
committed corrupt practices as defined in
clauses (1), (2), (3), (3A) and (4) of section
123 of the Representation of the People Act" ?
The learned counsel for the appellant has firstly addressed
us on the 2nd issue and we will, therefore, take the same
first. To appreciate the point in controversy, some facts
may be stated :
The Election Commission published a notification in the
Gazette of India Extraordinary dated 27th January, 1971,
fixing the following dates for the purpose of the election
under section. 30 of the Act
February 3, 1971-The last date for making nominations.
742
February 4, 1971-The date for the scrutiny of nominations.
February 6, 1971-The last date for the withdrawal of
candidatures.
Various dates between March 1, 1971 and March 5, 1971-For
holding the poll in different constituencies in Uttar
Pradesh.
March 15, 1971-The date before, which the election shall be
completed.
The ;notification fixed March 1, 1971, for the poll in the
Aligarh and Koil segments and March 3, 1971 in the Iglas,
Khair and Chandaus segments. The learned counsel for the
appellant submits that the Election Commission had no
jurisdiction or authority to alter the dates fixed under
clause (d) of section 30 in the aforesaid notification ex-
cept under circumstances mentioned in sections 57 and 58 of
the Act. We may, therefore, first look at sections 57 and
58 of the Act. Section 57 in terms provides for a situation
when the proceedings at any polling station in an election
are interrupted or obstructed by any riot or open violence,
or if it is not possible to take the poll at any polling-
station on account of any natural calamity, or any other
sufficient cause. Section 57 empowers the presiding officer
or the returning officer to adjourn the poll to another date
in any of those circumstances. The returning officer
under,sub-section (2) has to report the circumstances to the
appropriate authority and the returning officer next fixes
appropriate dates for poll with the previous approval of the
Election Commission. Under section 57(2) when the poll has
to be postponed after the same has commenced and voters have
exercised their right to vote for some time, there is
provision for fixing the hours during which the next poll
shall be taken and there is a direction in this sub-section
not to count the votes cast at such election until such ad-
journed poll has been completed. Section 57, therefore,
does not deal with the direct exercise of power by the
Election Commission in altering dates of poll under the
conditions specified in that section. Section 58 provides
for a contingency where a ballot box used at a polling
station or at a place fixed for the poll is unlawfully taken
out of the custody of the presiding officer or the returning
officer, or is accidentally or intentionally destroyed or
lost or is damaged or tampered with to such an extent that
the result of the poll at that polling station or place
cannot be ascertained or any such error or irregularity in
procedure is likely to vitiate the poll is committed
therein. in such an event the returning officer has to
report the matter to the Election, Commission who after
taking all material circumstances into account has to take a
decision to declare the poll void and appoint a day and fix
the hours for taking a fresh poll after an appropriate
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notification in that behalf. The Election Commission under
this section may even decide against a fresh poll after
considering the various circumstances and direct the
returning officer for the further conduct and completion of
the election. It is, therefore, clear that these two
sections can be invoked only in very specified circumstances
and in the manner provided therein. On the other hand, our
attention is drawn to two other sections, namely, section 30
and section 153 of the Act, which were
743
relied upon by the respondents in the High Court and the
submissions were accepted there. We may read these two
sections
Section 30 : "Appointment of dates for nominations, etc.-
As soon as the notification calling upon a constituency to
elect a member or members is issued, the Election Commission
shall, by notification in the Official Gazette, appoint-
(a) the last date for making nominations,
which shall be the seventh day after the date
of publication of the first-mentioned
notification or, if that day is a public
holiday, the next succeeding day which is not
a public holiday;
(b) the date for the scrutiny of
nominations, which shall. be the day
immediately following the last date for asking
nominations or, if that day is a public
holiday, the next succeeding day which is not
a public holiday;
(c) the last date for the- withdrawal of
candidatures, which shall be the second day
after the date for the scrutiny of nominations
or, if that day is a public holiday, the next
succeeding day which is not a public holiday;
(d) the date or dates on which a poll shall,
if necessary, be taken, which or the first of
which shall be a date not earlier than the
twentieth day after the last date for the
withdrawal of candidatures; and
(e) the date before which the election shall
be completed".
Section 153 : "Extension of time for
completion of election-
It shall be competent for the Election
Commission for reasons which it considers
sufficient, to extend the time for the
completion of any election by making necessary
amendments in the notification issued by it
under section 30 or sub-section (1) of section
39".
The High Court has held that "section 153 can be construed
as declaring the competency of the Election Commission to
extend time under clause (d) as well as clause (e) of
section 30". We are unable to agree with the High Court
that section 153 can be properly invoked in this case to the
aid of the Election Commission in changing the dates of poll
for the three remaining constituencies, specified in the
notification under section 30(d) of the Act. Section 153 in
terms provides for extending "the time for completion of any
election by making necessaryamendments in the notification
issued by it under section 30.........Section 30 (e) deals
with "the date before which the election shall be
completed". It is clear in this case, as set out earlier,
that the last date for completion of the election was fixed
by the appropriate notification to be 15th March, 1971 and
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the altered date of poll in this case from 3rd to 9th March
is within the last date for completion of the poll under
section 30(e). Section 153, therefore. cannot
744
come,to the aid of the Election Commission to alter the date
of poll, ’Is has been done in this case, as the said section
is inapplicable to the facts and circumstances of this case.
We may, therefore, examine whether the Election Commission
has got power to alter the date of poll under section 30 of
the Act read with section 21 of the General Clauses Act
which is undoubtedly applicable in interpretation of the,
provisions of the Act. We may read section 21 of the
General Clauses Act
Section 21 : "Where, by any Central Act or
Regulation, a power to issue notifications,
orders, rules, or bye-laws is conferred, then
that power includes a power, exercisable in
the like manner and subject to the like
sanction and conditions if any, to add to,
amend, vary or rescind any notifications,
orders, rules or bye-laws so issued".
The Election Commission in this case exercised power under
section 30 of the Act and issued the notification appointing
the various dates mentioned therein for the purposes
specified. Once this power is conferred under section 30
upon the Election Commission, the power to amend the same,
which will include alteration of the dates of poll, can be
exercised under section 21 of the General Clauses Act.
There is, therefore, no merit in the contention that the
Election Commission had no power or jurisdiction to alter
the date of poll from 3rd March to 9th March, 1971, in the
remaining constituencies in this case. Issue No. 2 is,
therefore, rightly decided by the High Court although we do
not agree with the High Court with regard to the
construction of section 153 of the Act. In the view we have
taken, it is not necessary for us to consider whether
Article, 324 can, be invoked in this case in aid ox’ the
power to alter the date of poll by the Election Commission.
The learned counsel for the appellant also submits that
there should have been a fresh notification of the date in
form No. 1 under rule 3, read with section 31 of the Act, of
the Conduct of Elections Rules 1961. We are, however, not
impressed by this submission as tile amendment of the date
of poll gets engrafted in the original form in pursuance of
the subsequent notification dated 2nd March, 1971, made in
valid exercise of the power under section 30 of the Act,
read with section 21 of the General Clauses Act.
We now turn to issue No. 5 relating to the corrupt practice
of bribery defined under section 123(1)(A)(a ) of the Act,
The case of the appellant with regard to this issue is as
follows :-
"At about 7.00 P.M. on 6-3-1971 there was a
meeting at the Aligarh residence of K. N.
Agarwal (said to be one of the financiers of
the B.K.D. Party in the election), which was
attended by Shiv Kumar Shastri (respondent No.
1), Pooran Singh Malan (respondent No. 2),
Virendra Verma (Home Minister of the then U.P
Government). Surendra Kumar (another alleged
financier of the B.K.D. Party), and a number
of other persons. One Atma Deo Sharma stood
up and made an appeal to Shastri and Malan
745
that only one of them should stand for election and there-
upon Shastri, Malan and Surendra Kumar went into an
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adjoining room, where Surendra Kumar offered to pay
Rs.30,000/- to Rs. 35,000/- to Malan if he ’ would withdraw
from the contest, while Shastri told Malan that he would
recommend him for a seat in the Legislative Council. On this
Malan said that he had no need of money and as regards the
seat in the Council, that was for the future to decide, but
as they were all asking him to withdraw, he would comply.
The three of them then joined the others and Malan announced
his withdrawal and requested his supporters to transfer
their allegiance to Shastri".
Before we discuss the evidence, we may deal with a question
of law addressed by Mr. Hardy, learned counsel for the
contesting respondent. According to the learned counsel,
even assuming that any gratification was offered to Malan on
6th March, 1971, to induce him to refrain front contesting
the election, that would not amount to a, corrupt practice
within the meaning of section 123(1)(A)(a) of the Act. We
may, therefore, read that part of the section :
Section 123 : "Corrupt practices-The following
shall be deemed to be corrupt practices for
the purposes of this Act
(1) ’Bribery’, that is to say,-
(A) any gift, offer or promise by a candidate
or his agent or by any other person with the
consent of a candidate or his election agent
of any gratification, to any person
whomsoever, with the object, directly
or in-
directly of inducing-
(a) a person to stand or not to stand as, or
to withdraw or not to withdraw from being a
candidate at an election, or;"
The allegation in the present case is that an offer of
gratification was made to Malan to induce him "to withdraw
from being a candidate". It is submitted that since the
time for withdrawal of candidature had’ already expired,
there can be no withdrawal of candidature after the date
fixed for that purpose in the appropriate notification to
come, within the mischief of section 123 (1) (A) a). It is
further submitted’that even though he may not have taken any
part in the election after the expiry of the date of
withdrawal, he will remain a contesting candidate thoughout
the election. It is also pointed out that in fact Malan
obtained votes in the election which was held on 9th March,
1971 in various constituencies as will also appear from the
chart given above. The learned counsel also drew our
attention to the earlier law on the subject where a
provision under section 123(1) (a) stood as follows
"a person to stand or not to stand as or to
with-draw from being a candidate or to retire
from contest, at an election;"
746
Mr. Hardy submits that the words "to retire from contest"
are omitted from the present section, which, according to
him, is very significant. He, therefore, submits that since
Malan could not in law withdraw from the candidature on 6th
March, 1971 and there is no question of retiring from the
contest under the present law, no corrupt practice has been
committed within the meaning of section 123 (1 ) (A) (a).
It is well settled that election under the Act is from the
date of publication of the notification calling the election
to the date of declaration of the result of the election,
both days inclusive. We have, therefore, a terminus a quo
and terminus ad quem under the law. The word "candidate" is
defined for Part VI (Disputes regarding Elections) and Part
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VII (Corrupt Practices and Electoral Offences) under Section
79(b) and it means "a person who has been or claims to have
been duty nominated as a candidate at any election and any
such person shall be deemed to have been a candidate as from
the time when with the election in prospect, he began to
hold himself out as a prospective candidate". Section 32
provides for nomination of candidates for election. Under
section-36(8), "Immediately after all the nomination papers
have been scrutinised and decisions accepting or rejecting
the same have been recorded, the returning officer shall
prepare a list of validly nominated candidates, that is to
say, candidates whose nominations have been found valid, and
affix it to his notice boar&’. Section 37 provides for
withdrawal of candidature within the time specified therein.
Section 38 provides for publication of list of contesting
candidates,, that is to say, candidates who were included in
the list of validly nominated candidates and who have not
withdrawn their candidature within the, said period. The
word "contesting candidate" as such is not defined in the
Act, but the word "candidate" under rule 50(a) and rule
28(a) of the Conduct of Elections Rules 1961 means a
contesting candidate. The question is whether after the
time for withdrawal has expired and a list of contesting
candidates has been published, withdrawal thereafter from
the contest on receipt of bribe will be within the mischief
of section 123(1) (A)(a).
We have already set out the material portions of section 123
(1) (A) as well as the earlier section to which our
attention has been drawn. It is strenuously submitted by
Mr. Hardy that the omission of the words "retire from
contest" is very significant and the legislature now
confines withdrawal under section 123(1)(A)(a) to the stage
as envisaged under section 37 and not thereafter. The
Shorter Oxford English dictionary gives the meaning of the
word "withdraw" (verb intransitive) to go away or retire
from the field of battle or any contest. Withdraw or not to
withdraw, therefore, includes "retire from contest" or not
to retire from contest. There is, therefore, nothing
-significant etymologically in the deletion of the words
"retire from contest". When, therefore, section 123(1)(A)
speaks of withdrawal from being a candidate, it is not
limited to a candidate who has been validly nominated and
who has withdrawn earlier according to law. It is because
of this reason that the words "retire from contest" become
unnecessary and were advisedly deleted by the legislature.
747
Again looking from another angle, section 123 (1) (A) (a)
has got two stages; the first stage relates to the period
when even before filing of nomination paper a person is
contemplating to stand or not to stand as a candidate in the
election [see definition of candidate under section. 79(b)].
The second stage is reached after filing of the nomination
paper when law gives a candidate requisite time to withdraw
from the candidature. It is true that the words "to retire
from contest" in the old provision are now deleted and the
provision is recast by adding the words "not to withdraw" in
addition to- the words "to withdraw" in the earlier
provision. We are, however, unable to hold that the
expression "to withdraw or not to withdraw" from being a
candidate has only a. restricted meaning to be confined to
the stage where law permits a candidate to withdraw from the
election. For the purpose of section 123 the words "to
withdraw or not to withdraw" from being a candidate are of
wide amplitude to include a subsequent withdrawal or non-
withdrawal even at the last stage prior to the poll.
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We may also consider whether deletion of the aforesaid words
makes any difference under the scheme of the Act. "Since
purity of elections is the most important object of the Act,
a narrow meaning to the word "withdraw" to refer only to
legal withdrawal under section 37 would defeat the very
aim. We have, therefore, to give a meaning to the word
"withdraw" keeping in mind the object and scheme of the Act
with a view to effectuate the intention of the legislature
to ensure purity in elections; else there will be an absurd
position where actual withdrawal after the time limit by
taking bribe will be free from the vice of corrupt practice
whereas that prior to it will not be so. Such an intention
cannot be attributed to the legislature from deletion of the
words "retire from contest". The word "withdraw" is
comprehensive enough to also connote "retire from contest"."
We are, therefore,. unable to accept the submission that
even if the facts alleged be established, there can be no
corrupt practice within the meaning of section 123 (1) (A)
(a) of the Act.
We will, therefore, deal with the allegations to see how far
they are. established on the evidence. We have already set
out the allegations with regard to this issue and the first
respondent has denied all the allegations. His case is that
no bribe was offered nor any promise. made to Malan and in
actual fact Malan did not withdraw from the. contest and
continued to fight the election to the end. The solitary
witness who claims to have been present when the offer of
gratification was made is Devendra Pal Singh (P.W. 20).
This witness claims to have been one of the workers of the
first respondent and indeed proposed Shastri’s nomination.
He, changed his allegiance, from one party to another,
namely, from the B.K.D. to the Congress (R) in September
1971. We are unable to hold that the High Court is ’wrong
in not placing reliance upon his evidence. The High Court
has also found the corroborating evidence equally
unreliable. Since we agree. with the appreciation of the
evidence of the witness by the High Court with regard to
this charge, we may only briefly allude to the other evi-
dence to demonstrate its unreliability. Radha Raman Dhwaj
Prasad Singh (P.W. 21) was examined to support these
allegations. He has been a B. K. D. worker since 1969 and he
claimed also to be in that
748
party on the date (12-12-1971) he, gave evidence for the
appellant. He admits to have worked for the first
respondent in 1971 election. Although he did not depose to
the entire episode and did not go into the room-where the
discussion took place with regard to the bribe and the
promise of a seat in the Council, he stated that Malan
announced that he was withdrawing in favour, of Shiv Kumar
Shastri and told his workers to see that Shastri was
successful. He admits to have taken Joan from the Aligarh
Cooperative Bank at a time when Devendra Pal Singh (PW 20)
was the Chairman of the Bank. He has not received any
recovery notice. This witness has also changed his loyalty,
for reasons best known to him and cannot be considered as a
reliable witness in an election matter where one may not
fail to come across truth being sacrificed at the altar of
political expediency. Tile next witness is Shashi Bhushan
(P.W. 32). He has been a Member of Parliament since 1967.
He went to Aligarh on 7th March, 1971, to help the appellant
in his election. He met Pooran Singh Malan on 7th March,
1971, in Aligarh. He asked him why he was withdrawing from
the election since he had read about this in an Agra
newspaper called "Amarujwala", which, however, has not been
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produced. According to his evidence, Malan told him that
the atmosphere had changed since the communal riots and the
grand alliance which had been supporting him was no longer
supporting him. He further stated to this witness that he
had been promised a seat by Shiv Kumar Shastri in the
Legislative Council. He further stated that he was going to
a meeting of Shastri to announce his withdrawal. This
evidence is absolutely improbable in view of P.W. 21’s
statement that Malan had announced his withdrawal on the
previous day, viz., 6th March, 1971. It is not easy to
comprehend why Malan should have at all exposed himself to
unsavoury comments and other consequences by stating to this
witness in the manner he is alleged to have done. We cannot
say that the High Court has wrongly rejected the testimony
of P.W. 32. Another witness is Anand Pal (P.W. 10) who
attended, according to him, certain meeting at Gordha Bazar
on 7th March, 1971. He deposed to the effect that Kalyan
Singh was addressing the meeting and Kalyan Singh while
addressing the meeting said, "he had got Pooran Singh Malan
to withdraw", so that all Hindus could unite to vote for a
Hindu. Shiv Kumar Shastri also repeated the same things.
He said he was a staunch Hindu and they should vote for him
and he had got Malan to stand down". It is difficult to
believe that the first respondent would expose himself in
such an open manner by stating in public that "he ’had got
Malan to stand down". This was not ;it all necessary to
state. Such a serious charge cannot be established on mere
statement of this kind. Gajendra Singh (P.W. 18) is another
witness to depose about the withdrawal of Malan amongst
other things. He is a member of B.K.D. Party and was a
polling agent of Mrs. Gyatri Devi (wife of Sri Charan Singh)
in 1967. In 1971 Parliamentary election he worked for the
first respondent and yet he went against him to depose
against his interest.. It is difficult to place any reliance
upon such a witness land the High Court has rightly rejected
his testimony. Kishan Singh (P.W. 23) also deposed that be
was present in a meeting at Iglas on 7th March, 1971 and be
heard Jogendra Pal Singh, election agent of the first
respondent, speaking in the meeting to the effect, amongst
other things, "that Malan had been made to withdraw and
votes should
749
now go to Shastri who was if Charman Singh’s party", This is
not at all direct evidence about the allegations which are
made by the appellant to support the charge. Ram Das Singh
(P.W. 19) was also examined with reference to this charge.
His evidence too is not direct on the point and cannot be
held to be at all helpful in establishing the charge. On
the side of the respondents, the allegations have been
denied by Virendra Varma (R.W. 7) and also by Mahendra Singh
(R.W. 3). In view of the nature of the evidence on the side
of the appellant it is not even necessary to refer in detail
to the respondent’s evidence.
A grievance was made by the learned counsel for the
appellant that a petition was made by the appellant for
examination of additional witnesses and the High Court
wrongly rejected the same. We find from the order of the
High Court that the party had been warned that "any proposed
addition to the list of witnesses would have to be
justified". The High Court found that beyond saying that
their names were left out "by inadvertence or oversight" no
other sufficient ground was given by the appellant to
justify his prayer. We, therefore, do not find any
justification for the grievance on this score. Another
petition was also filed by the appellant on 18th November,
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1971, for examination of Pooran Singh Malan (respondent No.
2) as a witness. The High Court rejected the prayer on the
ground that his name did not figure in the list of witnesses
supplied on 9th November, 1971. Since Malan is a
respondent, who on the proof of the averments could have
been named under section 99, the appellant cannot make a
grievance for rejection of his prayer. It is not possible
for this Court to interfere with the discretion exercised by
the learned trial Judge in a matter like this.
We now come to issue No. 7. This issue is with regard to the
corrupt practice of undue influence under section 123 (2) of
the Act. Tile allegations are that on 7th March, 1971, two
days before the poll, the first respondent visited the
village of Sapera and after collecting a number of Hindus at
the chaupal of the Sarpanch, Hukum Singh, went, along with
them to the Muslim quarter of the village and by means of
threats forced the Muslim voters of that place to swear by
the Quran that they would vote for him and not for the
appellant or any other candidate. After the Muslims had
taken the oath, Shastri is alleged to have warned them that
if they did not act in accordance with the oath, they would
be in danger of divine displeasure. The witnesses examined
by the appellant for establishing this charge are Raghubir
Singh (PW II), Rafiq (PW 14) and Sheodan Singh (PW 15).
These witnesses are residents of Sapera. Both PWs 11 and 15
admit that they are supporters of the Congress and were
supporting the Congress in the election but claim that on
account of Shastri’s visit to the village on 7th March,
1971, they turned over to him. Even then they have come
forward to give evidence against Shastri in this case. The
High Court has given cogent reasons for discarding their
testimony and we are unable to take a contrary view. P.W.
14, Rafiq, is also undependable. Although he spoke about
the swearing by the Quran at tile mosque, he did not know
the name of the Mulla. He has no opinion of his own and
admitted that when asked by Shastri and others lie told that
he would vote "as they directed". Finally be did not go to
vote
750
on the day of poll. Besides, their statements are
satisfactorily rebutted by the evidence of the first
respondent, R.W. 1, Giraj Singh and R.W. 8 Hari Singh, the
polling agent of the first respondent. We are satisfied
that the High Court has correctly appreciated the testimony
of these witnessess with regard to this charge.
We will now deal with issues Nos. 8, 8A, 9, 10 and 11.
These issues are interconnected and relate to the
allegations made in paragraphs 29, 30 and 34 of the election
petition. They refer to a number of meetings held at
various places, namely, Gordha, Iglas, Jatari, Gaghana and
Beswa, on 7-3-1971 and 8-3-1971, at which speeches were made
either by the first respondent or by his agents and
supporters. Since we agree with the conclusions reached by
the High Court with regard to the proof of the various
allegations, we do not propose to deal exhaustively with the
evidence and only make a brief reference to some broad
features.
Meeting at Gordha :
The allegations are that on 7th March, 1971, in village
Gordha in the afternoon at weekly bazar, Kalyan Singh,
M.L.A., addressed a huge Gathering in the following terms :-
"In Aligarh Muslims at the instance of the
petitioner have chopped off the breast
s of the
Hindu women and have inflicted bodily
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injuries. Now I ask every Hindu who is
present in this gathering : Are you so
shameless to vote for a Muslim candidate ?" He
posed a question that you are the descendants
of Shivaji and Rana Pratap and you should see
that the butcher miyan (i.e. the petitioner)
is defeated. He also said that for this
purpose only we got Shri Pooran Singh Malan,
respondent No. 2, to withdraw his candidature
so that Hindu votes may not be divided and a
Muslim candidate may not win the election".
It is further stated in paragraph 20 of the petition that
"the first respondent was also present from the very
beginning at the meeting and he also addressed the gathering
supporting Kalyan Singh and requested them to vote for him
as he was a Hindu and that they should not vote for the
petitioner who was a Muslim butcher, whose members of the
community butchered the innocent Hindus and looted their
properties in Aligarh city". To establish the charge the
appellant examined Kesho Deo Haryana (PW 6), Khacheru Lal
(PW 8), Subedar Singh (PW 9) and Anand Pal (PW 10). The
first respondent examined himself (RW 14), Nem Singh Chauhan
(RW 5) and Jaipal Singh
(P.W 6).P. W. 6 (Kesho Deo Haryana) : He is a counting agent
of the appellant and was working for him. He is a Congress
(R) worker. He does belong to Gordha village. He went
there for propaganda work for the appellant. Though he
claims that he was present at the meeting held at Gordha on
7th March, 1971, and that offensive speeches were made by
Kalyan Singh and the first respondent at the meeting, he
deposed to the following effect
751
"I sent no written report about the speeches
to the authorities. I made no written report
to any one. I merely reported orally to our
President... He made a note in a file".
Such a file was not produced to corroborate his testimony.
P. W. 8 (Khacheru Lal) : He does not belong to
Gordha; his village is two miles from Gordha.
He states that there is a Sunday market in
Gordha and that he attended the meeting held
there on 7-3-1971. He did not attend any
other meeting. He has further stated that he
does not know how many candidates were
contesting the election. He even does not
know which party Pooran Singh Malan,
respondent No. 2, was representing, though he
alleges that Kalyan Singh in his speech at the
said meeting inter alia, said "he had got
Malan to withdraw". He could not also name
the parties whose representatives had gone to
his village in connection with votes; nor
could he give the name of any one who went
there to carry on propaganda.
P. W. 9 (Subedar Singh) : He states that he attended
meetings at Kashipur Power House and at Nawala, but could
not remember the dates of these meetings. Although he
stated that only Bir Pal Singh made a speech at the Kashipur
meeting, he could not reproduce what Bir Pal Singh had said
in the course of his speech. He gave the same pattern of
evidence with regard to the Nawala meeting and could not
give any idea about the speech that Kesho Deo Haryana made
there. He did not make any notes of the speeches at Gordha
meeting and did not report to any one about it.
P. W. 10 (Aand Pal) : He states that he made no written
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report meeting. He was asked by Babu Lal, former
Chairman of the Municipal Board of Aligarh and an active
Congress (R) worker, to give evidence. He gave him his
ticket at the railway station and told him that he could
stay in the Congress office.
These allegations have been denied by R. W. 14 (the first
respondent), R.W. 5 (Neem Singh Chauhan) and R.W. 6 (Jaipal
Singh) as will appear from their evidence which we have
closely examined.
Meeting at Iglas
The appellant’s case is that a meeting was held at Iglas at
the Jawahar Inter College at 8.00 A.M. on March 7, 1971. He
examined Gajendra Singh (P.W. 18) and Ram Das Singh (P.W.
19), Kishan Singh (P.W. 28) and Brij Lal Sharma (P.W. 31).
P.Ws. 18 and 19 were the active workers of the B.K.D. party
yet they deposed that on hearing the allegations against
Yunus Saleem and the Muslims of Aligarh they changed their
minds and worked day and, night for the success of the first
respondent. Even at the time of giving evidence they
claimed to be in favour of the B.K.D. party, yet came forwad
to give evidence against the successful B.K.D. candidate.
Kishan Singh (PW 23) is a member of the Aligarh District
Congress Committee and claims to have gone to the meeting
organised by the rival party in order to find out what was
being said. He, however, made no report about the unlawful
propaganda being carried on at this meeting to the election
752
authorities. He was conscious that this meeting held within
48 hours of the time fixed for the closing of the poll was
an illegal one, yet he made no report to the authorities
about this. Brij Lal Sharma (P.W. 31) is also a supporter
of the Congress (R). Even he did not make any report to any
one about what he had heard in the meeting. The High Court
has observed that "the unreliability of the petitioner’s
allegations regarding this alleged Iglas meeting stands
further more revealed by the discrepancy between the
testimony of these witnesses and the details given in the
statement of further particulars filed by the petitioner on
26-8-71". It is also disclosed in the further
particulars "that among those whoaddressed the meeting
held in Igias at 8.00 P.M. on 7-3-1971 was Chaudhary Charan
Singh, but none of four witnesses deposes to Chaudhary
Charan Singh’s participation in the meeting and from the
statement of Brij Lal Sharma it is clear that Chaudhary
Charan Singh did not attend it". As against this, we have
the evidence of Ramesh Chandra (R.W. 10) and Virendra Varma
(R.W. 7) who deposed denying the allegations. Virendra
Varma (R.W. 7) who was then the Home Minister of U.P.
frankly admitted that he had been to Iglas on 7-3-1971 in
order to meet the B. K. D. workers of those places and not
hold any public meeting or to make any electioneering
speeches. The High Court has accepted his testimony and we
have no reason to disagree with the conclusions reached by
the High Court with regard to these allegations being not
established against the first respondent.
Meetings at Jatari, Gabhana and Beswa:
It is also alleged in the further particulars filed by the
appellant in the High Court on 26-8-1971 that a meeting was
held at Jatari at 10.00 A.M. on 7-3-1971. The appellant
examined Bed Vir Singh (P.W. 16) and Govardhan Singh (P.W.
17) to establish the allegations with regard to the speeches
made by Mahendra Singh (R.W. 3), Yogendra Pal Singh and
Virendra Varma (R.W. 7). There was also another meeting at
Gabhana Village at 11.00 A.M. on 8-3-1971 at which speeches
were said to have been made by the first respondent and
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Prakash Vir Shastri, General Secretary of the B.K.D. The
appellant’s witnesses with regard to this meeting are Raj
Kumar Singh (P.W. 24), Ombir Singh (P.W. 25), Chetanya Raj
Singh (P.W. 26) and Dev Dutta Bhardwaj (P.W. 29). To refute
allegations made by these witnesses, the, first respondent
examined himself (R.W. 14), Jodh Pal Singh (R.W. 11) and
Raghunath Prasad Sharma (R.W. 12). A meeting was also held,
according to the appellant, in the village of Beswa on 8-3-
1971 at 12.30 P.M. at which Pooran Singh Malan, Yogendra Pal
Singh and Virendra Varma are said to have made objectionable
speeches. Evidence was led by the appellant with regard to
this meeting by examining Radha Raman Dhwaj Prasad Singh
(P.W. 21) and Harcharan Lal (P.W. 22). Virendra Varma (R.W.
7) and Virendra Singh (R.W. 9) denied the allegations. The
first respondent also produced rebutting evidence with
regard to each of these alleged meetings.
We have examined the evidence in regard to each of the
aforesaid meetings. The High Court after a correct
appreciation of the evidence
753
led by the appellant came to the conclusion that the
evidence produced by the respondent has to be preferred and
held that allegations and imputations alleged to have been
made in these meetings were not established. We have been
taken through the evidence by the learned counsel for the
appellant and we are unable to hold that another view with
regard to the oral testimony of the appellant’s side is even
possible in this case. Although we have referred to the
evidence with regard to two meetings earlier in the
judgment, we do not propose to restate the evidence and the
improbabilities again since we are in complete agreement
with the conclusions with regard to all these charges
reached by the High Court.
In view of the nature of the evidence led by the appellant
with regard to these meetings and its refutation by the
witnesses of the first respondent, we have no reason to
differ from the High Court’s conclusion that the allegations
have not been established
In the matter of appreciation of oral testimony in an
election dispute, this Court in an appeal under section 116A
must have convincing and clinching reasons to’ take a
contrary view from that of the High Court. It is not enough
that another view is merely possible to take on the oral
evidence. Strict proof of the allegations is called for and
the High Court has, in our opinion, rightly declined to
accept the oral evidence of the appellant’s side and rightly
preferred that of the respondent’s side. We do not feel at
all justified in this case to take a contrary view. We,
therefore, hold that Issues Nos. 8, 8A, 9, 10 and 1 1 are
correctly decided by the High Court. We have no hesitation
to bold that the election petition was rightly dismissed.
As for Issue No. 12, it is a consequential issue and in the
view we have taken in the foregoing discussion it was
rightly decided against the appellant. We hold that no
corrupt practice has been proved to have been committed by
the first respondent under section 123(1), (2), (3), (3A)
and (45 of the Act.
In the result the appeal fails and is dismissed with costs.
V.P.S. Appeal dismissed.
754