Full Judgment Text
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PETITIONER:
S. B. ADITYAN
Vs.
RESPONDENT:
S. KANDASWAMI AND OTHERS
DATE OF JUDGMENT:
30/04/1958
BENCH:
ACT:
Election Petition-Corrupt Practice-Bribery-Acceptance of
gratification, if corrupt Practice of bribery-Representation
of the people Act, 1951 (43 Of 1951), ss.82, 90(3) and 123.
HEADNOTE:
After the poll the appellant was declared elected to the
Madras Legislative Assembly. Respondent No. 1 filed an
election petition praying that it be declared that the
election of the appellant was void. In the petition it was
alleged that two of the candidates at the election accepted
money paid to them by the appellant and his election agent
to induce them to abandon the contest and they actually
abandoned the contest. These two candidates were not made
parties to the petition. The appellant applied to the
Election Tribunal to dismiss the petition under s. 90(3) Of
the Representation of the People Act, 1951, for non-
compliance with the provisions of s. 82 of the Act on the
ground that allegations of a corrupt practice were made
against the two candidates and Respondent No. 1 had failed
to make them parties to the petition as required by s. 82:
Held, that the acceptance of gratification is not a corrupt
practice within the meaning of s. 123(1) Of the Act and
consequently it could not be said that allegations of
corrupt practice had been made against the two candidates.
There was thus no non-compliance with the provisions of s.
82 and the election petition was not liable to be dismissed
under s. 90(3).
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No.130 of 1958.
Appeal by certificate granted by the Madras High Court
against its judgment and order dated November 1, 1957, in W.
P. Nos. 623 and 624 of 1957.
1958. April 30. May 1. A. V. Viswanatha Sastri, T. R.
Venkatarama Iyer, K. R. Sharma and K. R. Choudhri, for the
appellant. The petition is liable to be dismissed for non-
joinder of Muthu and Meganathan who were candidates as
defined in s. 79(b) of the Representation of the People Act,
1951. The allegation is that Meganathan accepted a gift of
Rs. 10,000 and in pursuance thereof withdrew his
candidature, and also that Muthu accepted a gratification of
Rs. 5,000 and in pursuance thereof, he retired from
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the contest. On the language of s. 123(1) of the Act, such
acceptance constitutes a corrupt practice’. The words I by
a candidate or his agent or by any other person’ in the
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section are to be read with the words offer or promise’ and
not with gift’. In view of the provisions of the Transfer
of Property Act, a I gift’ is a bilateral Act and it
includes both the giving of the gift and the acceptance of
that gift. Section 99 of the Act shows that a receipt of a
bribe is a corrupt practice. See ss. 82 (b), 98 and 99 of
the Representation of the People Act, 1951. Under s. 99 the
Tribunal has to record a finding whether a corrupt practice
has been committed with the consent of any candidate. When
a candidate accepts a gift with the object of inducing him
to withdraw his candidature, he consents to the corrupt
practice of bribery being committed and such a candidate is
liable to be named under the section. Alternatively, the
term gratification in s. 123 is very wide and includes the
withdrawal of candidature by a candidate to induce another
candidate to stand at an election. Affording of such
gratification amounts to a corrupt practice within s. 123.
Section 82(b) talks of I allegations of any corrupt
practice’ and it, therefore, contemplates any allegation
relating to or concerning, a corrupt practice.
C. K. Daphtary, Solicitor-General of India, A. N. Sinha
and N. H. Hingorani for respondent No. 1. A candidate who
accepts a gift from a returned candidate does not commit
corrupt practice’ within the meaning of s. 123(1) and
therefore is not necessary party to the election petition
under s. 82(b) of the Act. The section defines the corrupt
practice of bribery and the words I gift, offer or promise
by a candidate or his agent or by any other person’ clearly
contemplates the making of a gift. Further, s. 123(1) does
not include the acceptance of a gift as a corrupt practice.
This is also apparent from consideration of s. 124(3) of the
Act which was deleted by the amending Act XXVII of 1956.
Section 124(3) made receipt of gratification by candidate or
intending candidate a minor corrupt practice and s. 123 (1)
made bribery by a candidate or his agent, a major
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corrupt practice. The amending Act has done away with the
classification of major and minor corrupt practices. Some
of the minor corrupt practices have been retained as corrupt
practices and the rest dropped altogether. The amending Act
has dropped the provision making acceptance and agreement to
accept a bribe, a corrupt practice with no material change
in s. 123(1) to bring within it these cases. By omitting s.
124(3) from the Act Parliament, therefore, intended that
acceptance of a bribe was no longer to be treated as a
corrupt practice. Section 99 does not purport to define a
corrupt practice mentioned in s. 82(b) ; s. 99 read in the
light of definition section does not support the appellant.
Cur. adv. vult.
1958. May 20. The Judgment of the Court was delivered by
SARKAR J.-In the 1957 general elections, nine persons filed
nomination papers for election to the Madras Legislative
Assembly from the Sathankulam constituency all of which were
found on scrutiny to be valid. Among these persons were the
appellant, the respondent Kandaswami and two others called
M. R. Meganathan and G. E. Muthu. Meganathan, Muthu and
three others whom it is not necessary to name as they are
not concerned with this appeal, did not go to the poll and
dropped out of the election earlier. At the end the
election was actually contested by the appellant, the
respondent Kandaswami and two other candidates with whom
also this appeal is not concerned. The appellant was
successful at the poll and was on March 6,1957, declared
elected.
On April 15, 1957, the respondent Kandaswami whom we will
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hereafter refer to as the respondent, preferred an election
petition under the provisions of the Representation of the
People Act, 1951, for a declaration that the election of the
appellant was void. The appellant was made the first
respondent to the petition but Meganathan and Muthu were not
made parties to it at all. Some of the other candidates at
the election were also made parties to the petition but
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it is unnecessary for the purpose of this appeal to refer to
them.
The petition was referred to an Election Tribunal for trial.
The appellant then made an application to the Election
Tribunal which was marked I. A. No. 1 of 1957 for the
dismissal of the petition under s. 90(3) of the Act. That
section provides that, " The Tribunal shall dismiss an
election petition which does not comply with the provisions
of section 81, section 82 or section 117 ". The appellant’s
case was that the petition had not complied with the
provisions of s. 82. Section 82 states:
" A petitioner shall join as respondents to his petition-
(b) any other candidate against whom allegations of any
corrupt practice are made in the petition."
The appellant contended that allegations of corrupt practice
were made in the petition against Meganathan and Muthu and
they should, therefore, have been made parties to the
petition under s. 82 and as that had not been done, that
section had not been complied with and so the petition had
to be dismissed under s. 90(3). It is not in dispute that
non-compliance with the provisions of s. 82 entails the
dismissal of an election petition. The respondent’s answer
to the application was that no allegation of corrupt
practice had been made in the petition against Meganathan or
Muthu. The Tribunal accepted the contention of the
respondent and dismissed the application of the appellant.
The appellant then moved the High Court at Madras by two
applications, one for the issue of a writ of certiorari
quashing the, order of’ the Tribunal dismissing his
application and the other for the issue of a writ of
prohibition directing the Tribunal not to proceed with the
hearing of the election petition. The High Court by its
judgment dated November 1, 1957, dismissed both the
applications, taking the same view as the Tribunal. Hence
this appeal.
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It is not in dispute that Meganath an and Muthu were
candidates. A candidate has been defined in s. 79 of the
Act as meaning among others, a person who has been duly
nominated as a candidate at any election and both Meganthan
and Muthu had been so nominated.
The only question that arises in this appeal is whether
allegations of corrupt practice are made against them in the
election petition. The statements in- the petition which
are said to constitute such allegations are in these terms:
" IV-A. The returned candidate has committed the following
act,% of bribery-corrupt practices according to section
123(1) of Act 43 of 1951 :-
(2) Sri M. R. Meganathan was candidate for Sattankulam and
Tiruchandur Assembly Constituencies at the election. The
first respondent and his election Agent paid him a gift of
Rs. 10,000 to induce him to withdraw from being a candidate
at the election from Sattankulam Constituency and in
pursuance thereof Sri M. R. Meganathan withdrew his
candidature at the election from Sattankulam
Constituency,..............................................
(4) One Sri G. E. Muthu, candidate at the election in this
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Constituency was paid a gratification of Rs. 5,000 by the
first respondent and his Election Agent for the purpose of
making him retire from contest and in pursuance thereof he
retired on the contest
Putting it shortly, the allegations in the petition are that
the appellant and his election agent paid Meganathan Rs.
10,000 and Muthu Rs. 5,000 to induce them to drop out of the
election and they accordingly abandoned the election
contest. So all that is said here against Meganathan and
Muthu and we are concerned only with allegations against
them- is that they accepted money paid to them to induce
them
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to abandon the contest and actually abandoned the contest.
Is an allegation then, that a candidate accepted money paid
to him to induce him to drop out of the election test and
actually so dropped out, an allegation of corrupt practice
against such a candidate ? The High Court field that it was
not and that only the giving of a bribe was a corrupt
practice and not an acceptance of it. We are in agreement
with this view.
T
he Act contemplates various kinds of corrupt practices and
defines them in s. 123. We are concerned with the corrupt
practice of bribery which is the corrupt practice alleged in
the petition. Bribery again is of several varieties. We
are concerned with a gift to a candidate for inducing him to
abandon his candidature. This form of the corrupt practice
of bribery is thus defined in the Act:
"Section 123-The following shall be deemed to be corrupt
practices for the purposes of this Act:
(1) Bribery, that is to say, any gift, offer or promise by a
candidate or his agent or by any other person, of any
gratification to any person whomsoever, with the object
directly or indirectly of inducing
(a) a person to stand or not to stand as, or to withdraw
from being, a candidate, or to retire from contest, at an
election;
Explanation.-For the purposes of this clause the term "
gratification " is not restricted to pecuniary
gratifications or gratifications estimable in money and it
includes all forms of entertainment and all forms of
employment for reward; but it does not include the payment
of any expenses bona fide incurred at, or for he purpose of,
any election and duly entered in the account of election
expenses referred to in section 78."
is an acceptance of a bribe, by which word we mean a gift
made with the intention specified, a corrupt practice within
this definition ? We do not think it is. What this
definition makes the corrupt practice of bribery is a "
gift, offer or promise by a candidate or his agent or by any
other person, of any gratification" made with the object
mentioned. The words " gift,
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offer or promise by a candidate or his agent or by any other
person " clearly show that what is contemplated is the
making of a gift. These words are wholly inappropriate to
describe the acceptance of a gift. The words " with the
object, directly or indirectly, of inducing" also indicate
that only the making of a gift is contemplated, for the
object is of the person making the gift, and clearly not of
the person accepting it. Mr. Sastri who appeared for the
appellant contended that the words " by a candidate or his
agent or by any other person " are not to be read with the
word " gift " but only with the words " offer or promise ".
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It seems to us that this is an impossible reading of the
section as it is framed. Even on this reading, the section
would still contemplate a gift " to any person " and
therefore only the giving and not an acceptance, of it.
That s. 123(1) does not contemplate the acceptance of a gift
to be a corrupt practice is also apparent from a
consideration of s. 124 of the Act which was deleted by an
amendment made by Act XXVII of 1956. Under el. (3) of that
section the receipt of or an agreement to receive a gift
with substantially the same object as mentioned in s. 123
was a corrupt practice. As legislative provisions are not
duplicated, such a receipt of or an agreement to receive a
gratification was clearly not a corrupt practice within s.
123(1) as it stood before the amendment. The amending Act
has dropped the provision making acceptance and an agreement
to accept a bribe, a corrupt practice but has made no change
in s. 123(1) to bring within it these cases. Section 123(1)
cannot therefore be read as including within the definition
of a bribe contained in it an acceptance of it. By omitting
s. 124(3) from the Act therefore the legislature intended
that acceptance of a bribe was no longer to be treated as a
corrupt practice. In view of this clear indication of
intention, it would be idle to enquire why the legislature
thought fit to exclude the acceptance of a bribe from the
definition of corrupt practice. If the omission is
accidental, then it is for the legislature to take the
necessary action in that behalf. We cannot allow any
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consideration of the reason for the omission to affect the
plain meaning of the language used in s. 123(1).
Mr. Sastri then contended that in view of the provisions of
the Transfer of Property Act, there can be no gift without
an acceptance of it by the donee, and therefore whenever a
gift is mentioned both the giving and the acceptance of the
thing given are necessarily simultaneously contemplated. He
said that, it followed from this that the corrupt practice
of bribery by a gift mentioned in s. 123(1) included the
acceptance of the gift. It is true that a gift contemplates
both a giving and an acceptance; but these are none the less
different acts and it is open to the legislature to attach
certain consequences to one of them only. It was therefore
open to the legislature in enacting s. 123(1) to provide
that the making, that is to say, the giving of a gift alone
should be a corrupt practice. This is what it has done: it
has not made the receipt of a gift a corrupt practice. It
has deliberately omitted the acceptance of a gift from
corrupt practices described in the Act. Though a gift
cannot be mad(,, without an acceptance of it, such
acceptance has not been made a corrupt practice.
Mr. Sastri also contended that s. 99 of the Act showed that
the receipt of a bribe was a corrupt practice. Section 98
states that at the conclusion of the trial of an election
petition the Tribunal shall make one or other of the orders
therein mentioned. Then comes s. 99 which states that in
certain circumstances besides these orders, certain other
orders have also to be made by the Tribunal. The material
portion of this section is in these terms:
" S. 99-(1) At the time of making an order under section 98
the Tribunal shall also make an order-
(a) Where any charge is made in the petition of any corrupt
practice having been committed at the election, recording-
(i) a finding whether any corrupt practice has or has not
been proved to have been committed by, or with the consent
of, any candidate or his agent at the election, and the
nature of that corrupt practice; and
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(ii) the names of all persons, if any, who have been proved
at the trial to have been guilty of any corrupt practice and
the ture of that practice;and.
Mr. Sastri contended that under this section the Tribunal
has to record a finding whether a corrupt practice has been
committed with the consent of any candidate. He said that
when a candidate accepts a gift made to him with the object
of inducing him to withdraw his candidature, he consents to
the corrupt practice of bribery being committed and such a
candidate is liable to be named under the section. He added
that in order that such a candidate can be Bo named a charge
of the corrupt practice has to be made against him in the
election petition. The result, therefore, according to Mr.
Sastri, is that a candidate who consents to a bribe being
paid to him to withdraw his candidature is guilty of a
corrupt practice and therefore an allegation of such a
corrupt practice can be made in the petition if it is
intended to have him named under s. 99 and once such an
allegation is made in the petition, s. 82(b) would be
attracted and the candidate has to be made a party to the
petition. He says such allegations were made against
Meganathan and Muthu.
This contention seems to us to be clearly fallacious.
Section 99 does not purport to define a corrupt practice.
The definition of corrupt practice occurs in s. 123 and the
corrupt practice mentioned in s. 99 has to be a corrupt
practice as so defined. A corrupt practice committed with
the consent of a candidate is not in itself a new kind of
corrupt practice. When s. 99 talks of a corrupt practice
having been committed with the consent of a candidate it
means a corrupt practice as defined in s. 123 having been
committed and a candidate having consented to its
commission. The consent by a candidate to the commission of
a corrupt practice by some one else whatever its con-
sequences under the Act may be, is not itself a corrupt
practice. Therefore, to say that a candidate consented to a
corrupt practice being committed by accepting a gift made to
him to induce him to withdraw his
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candidature, is not to say that he himself committed a
corrupt practice. Such a statement in an election petition
is not an allegation of corrupt practice against the
consenting candidate. Hence s. 82(b) does not require that
he should be made a party to the petition. We wish to make
it clear that we are not to be understood as holding that a
candidate accepting a gift made to him to induce him to
withdraw his candidature is one who consents to a corrupt
practice being committed. We do not think it necessary to
say anything on that question in this case.
Mr. Sastri then said that the term gratification in s. 123
was very wide and would include the withdrawal of his
candidature by a candidate to induce another candidate to
stand at an election. He contended that the affording of
such a gratification would amount to a corrupt practice
within s. 123. He submitted that such corrupt practices had
been alleged in the petition against Meganathan and Muthu
and they should therefore have been made parties to the
petition under s. 82(b). We are wholly unable to agree that
the withdrawal of his candidature by a candidate to induce
another candidate to stand at an election would be
gratification within s. 123. But assume it is so. That
does not help the appellant at all. Here, there is no
allegation in the petition that Meganathan and Muthu with-
drew their candidature in order to induce the appellant to
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stand at the election, so there is no allegation in the
petition of corrupt practices having been committed by them
by so withdrawing their candidature. It was therefore not
necessary to make Meganathan and Muthu parties to the
petition under s. 82(b).
Lastly, Mr. Sastri contended that s. 82(b) talked of
allegations of any corrupt practice " and it therefore
contemplated any allegation relating to or concerning, a
corrupt practice. He said that the election petition
contained allegations against Meganathan and Muthu, relating
to a corrupt practice inasmuch as it stated that they
accepted the gratifications paid to them to withdraw their
candidature and actually withdrew
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such candidature. Hence, he said, s. 82(b) required that
they should have been made parties to the petition. We are
of opinion that when s. 82(b) talks of allegations of
corrupt practice against a candidate it means allegations
that a candidate has committed a corrupt practice.
Allegations can hardly be said to be " against " one unless
they impute some default to him. So allegations of corrupt
practice against a candidate must mean that the candidate
was guilty of corrupt practice. We are also unable to
appreciate how an allegation that a candidate accepted a
gratification paid to him to withdraw his candidature is all
allegation relating to a corrupt practice. The acceptance
of the gratification does not relate to any corrupt
practice, for we have earlier shown that the corrupt
practice consists in the giving of the gift and
riot in the acceptance of it.
In the result this appeal fails and it is dismissed with
costs.
Appeal dismissed.