Full Judgment Text
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PETITIONER:
BALWAN SINGH
Vs.
RESPONDENT:
PRAKASH CHAND & OTHERS(Vice-Versa)
DATE OF JUDGMENT04/02/1976
BENCH:
SHINGAL, P.N.
BENCH:
SHINGAL, P.N.
GOSWAMI, P.K.
CITATION:
1976 AIR 1187 1976 SCR (3) 335
1976 SCC (2) 440
CITATOR INFO :
RF 1979 SC 234 (40)
RF 1986 SC 3 (22)
D 1987 SC1577 (27)
ACT:
Representation of People Act 1951-s. 123(5)-Corrupt
Practice-Procuring of a tractor and trolly belonging to the
candidates wife for carrying voters to the polling station-
If corrupt practice.
Words and phrases "procuring" meaning of-
Practice-Amendment of election petition after the
period prescribed for presentation-If could be done-Whether
obligatory for the election petitioner to examine himself at
the trial.
HEADNOTE:
The appellant’s election to the State Assembly was set
aside by the High Court on the ground of corrupt practice
falling under s. 123(S) of the Representation of People Act.
The appellant, it was alleged, hired and procured vehicles
for the free conveyance of voters. This was however denied
by the appellant. The High Court allowed amendment of the
election petition by inserting a new sub-paragraph 12(d),
stating that the names of the persons who hired or procured
the vehicles for carrying the voters to the polling station
were given in schedule lII(i) of the petition, on the view
that the information given was a necessary particular to
allege and prove that the vehicle was used for the
conveyance of the voters.
It was contended in this Court. (i) that the tractor in
which the voters were alleged to have been carried to the
polling station, was taken there in some other connection
and that though the tractor was in the name of his wife as
benamidar. it really belonged to the appellant and, as such,
no question or hiring or procuring it, whether on payment or
otherwise, arose so as to make it fall within the purview of
s. 123(5) of the Act. and (ii) that the High Court had
committed a serious. error of law in allowing the election
petition to be amended after the expiry of the period
prescribed for its presentation.
Dismissing the appeal,
^
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HELD : The finding of the High Court that the appellant
procured the tractor with trolly and used it for the purpose
of transporting the voters to the polling station and
thereby committed a corrupt practice within the meaning of
s. 123(5) of the Act is correct. [348E]
(1) (a) There is no justification for contending that
there could be no question or occasion for hiring or
procuring the tractor because it belonged to the appellant.
It cannot be urged that the tractor, which belonged to his
wife mutt be deemed to belong to the appellant or that it
should be inferred that she was a mere benamidar when that
was not the appellant’s case anywhere The tractor belonged
to the wife of the appellant and was not his own property
[341E-F1
(b) It would amount to "procuring" the tractor if it
could be shown that r the appellant obtained or got or
acquired the tractor from his wife The dictionary meaning of
the word "procure" is "to obtain as by request loan effort,
labour; get, gain, come into possession of". This is the
correct meaning of the word used in s. 12(5). [341G-H]
(c) It is not always possible for an election
Petitioner to adduce direct evidence to prove that a
particular vehicle was hired or procured by the candidate or
his agent or by any other person with the consent of the
candidate or his election agent, but this can be inferred
from the proved circumstances where such inference is
justifiable. [348B]
336
Bhagwan Datta Shastri v. Badri Narayan Singh and others
A.I.R. 1960 S.C. 200: Shri Umed v. Raj Singh and others.
A.l.R. 1975 S.C. is; Ram Awadesh Singh v. Sumitra Devi and
others. [1972] 2 S.C.R. 674; Rahim Khan v. Khurshid Ahmed
and others, [1975] 1 S.C.R. 643. Baburao Ragaji Karemore and
others v. Govind and others [1974] 2 SCR 429. and Smt.
Indira Nehru Gandhi v. Raj Narain. A.I.R. 1975 S.C. 2299;
referred to.
(2) It is futile to contend that a new corrupt practice
was allowed to be. inserted by the High Court’s order of
amendment. The schedule was an integral part of the election
petition and the original election petition contained what
was required to be stated by s. 83 of the Act and the
amendment was meant to furnish some further particulars in
regard to the same corrupt practice When issue No. 2 was
framed by the High Court, the appellant was fully aware that
the election petitioners had alleged the user of the
vehicles also and that was why he joined issue for the trial
of that allegation. [340B-C]
(3) There is no obligation on the part of the election
petitioners to examine themselves at the trial in the High
Court. The evidence which they were able to produce at the
trial could not have been rejected for any such fanciful‘
reason when there was nothing to show that the election
petitioners were‘able to give useful evidence to their
personal knowledge but stayed away purposely
[349F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 775
and 1107 of 1975.
(From the Judgment and order dated the 9-4-19.75 of the
Allahabad High Court in Election Petition No. 24 of 1974)
N. S. Bindra. K. C. Agarwala. R. D. Uppadhaya and M. M.
L. Srivastava, for the appellant in CAs 775/75.
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Yogeshwar Prasad and Miss Rani Arora and Bir Bahadur
Singh, for the appellant in CA 1107/75.
N. S. Bindra, K. C. Agarwala, R. D. Uppadhaya and M. M.
L. Srivastava, for the respondent in CAs 1107/75.
Yogeshwar Prasad, Miss Rani Arora and Bir Bahadur
Singh, for respondents 1 and 2 in CAs 775/75.
The Judgment of the Court was delivered by
SHINGHAL, J.-Civil Appeal No. 775 of 1975 has been
filed under section 116A of the Representation of‘People
Act, l95l, hereinafter referred to as the Act, by Balwan
Singh whose election to the Uttar Pradesh Legislative
Assembly from the Sarwan Khera constituency at the general
election of 1974, has been set aside by the Allahabad High
Court by its judgment dated April 9, 1975. The appellant has
been. held guilty of committing a corrupt practice under
section 123(S) of the Act. and has been disqualified for a
period of six years. this election was challenged on several
grounds by an election petition filed by respondents Prakash
Chandra and Jai Chandra, hereinafter referred to as the
election petitioners, who were electors of the constituency.
There were several candidates at the election, but the main
contestants were appellant Balwan Singh of the Bhartiya
Kranti DaI (B.K.D.) who secured 34.968 votes, and Ragunath
Singh, respondent No. 2 of the Congress (R) party who
secured 31,008 votes. Appeal No.1167 of 1975 is by election
petitioner Prakash Chandra for setting aside the judgment on
issues decided against the election petitioners.
337
The allegation regarding the commission of the corrupt
practice referred to above was to the effect that the
appellant, his workers, agents and supporters, with his
consent hired and procured vehicles for the free conveyance
of electors. A concise statement of the mate rial facts in
that respect was made in paragraph 12 of the election
petition. Particulars of the vehicles used for the free
conveyance of the electors were given in Schedule III of the
petition. The appellant denied the allegation and pleaded
in his written statement that none of the vehicles mentioned
in Schedule III was either, procured or hired by him or his
workers and agents with his consent for the purpose of
carrying voters to and from the polling stations and that no
such vehicle was "used for the purposes of carrying electors
to and from the polling stations on the date of poll". It
was also stated that the allegations contained in sub-
paragraphs 12(a), 12(b) and 12(c) were not the facts
required by section 83. They were totally vague and lack ed
in material particulars, and were liable to be struck off.
The High Court considered that and the other objections and
stated in its order dated August 30, 1974, in regard to the
objection that the names of the persons who procured or
hired vehicles were not given in paragraph 12 or Schedule
III, that the counsel for the election petitioner had
undertaken to furnish the names. The election tioners
furnished better particulars by adding paragraph 12(d)
stating that the names of the persons who hired or procured
the vehicles by which the electors were "carried free of
cost from their houses to the polling station" on the date
of election by respondent No. 1 were given in Schedule
III(l). They save the percentage and residence of the
persons named in Schedule III, as also particulars and names
of the persons who hired and procured vehicles for the free
conveyance of the electors, and the names of the owners of
the vehicles. An objection was then taken that such an
amendment was not permissible. The High Court rejected that
objection by its order dated October 10, 1974, except that
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the names of two new persons were not allowed to be inserted
in Schedule V, with which we are not concerned.
The High Court framed several issues, including issue
No. 2 which was as follows-
"2. Whether the respondent No. 1 himself, or his
workers and agents with his consent, hired or procured
vehicles for the free conveyance of the voters and
whether the vehicles so hired and procured were used
for the purpose and , . thereby the respondent No. 1
committed corrupt practice."
After recording the evidence of the parties, the High Court
recorded its finding as follows.-
"My answer on issue No. 2 accordingly is that the
respondent No. 2 procured tractor 9962 with trolly and
hired Jeep UPW 359 and Tractor UTE 5865 with trolly and
that the said vehicles were used for free conveyance of
voters to Maubasta, Jaganpur and Tigain polling
stations and further that the respondent No. 1 thereby
committed a corrupt practice under section 123(5) of
the R.P. Act."
338
It was in view of that finding that the election petition
was allowed with costs, the election of the appellant was
declared void, and he was disqualified as aforesaid. That is
how appeal No. 775 has arisen The other appeal No. 1 107 has
been filed by election-petitioner. Prakash Chandra, as he
feels aggrieved against the High Court’s findings on the
other issues, but Mr. Yogeshwar Prasad has stated that he
would not press that appeal. We have therefore only Balwan
Singh’s appeal for consideration.
It has been argued by Mr. Bindra on behalf of Balwan
Singh, hereinatter referred to as the appellant, that the
High Court ought not to have entertained the election
petition as it was not verified in the manner laid down in
the Code of Civil Procedure for the verification of
pleadings even though that was the clear requirement of
section 83(1)(c) of the Act. We asked the counsel to refer
us to any such objection of the appellant in the triaI
court, and all that he could do was to invite our attention
to paragraph 5 of the application dated November 27, 1974.
That paragraph however relates to the objection regarding
the defective verification of the - affidavit accompanying
the election petition, which is a different matter. That is
in fact the subject matter of Mr. Bindra’s second argument,
and we shall deal with it separately. The fact remains that
an objection regarding the alleged defective verification of
the election petition was not taken in the High Court, and
it was not a point at issue there. There is therefore no
justification for allowing it to be raised here. It is in
fact significant that even though an objection was taken on
November 27, 1974 in regard to the verification of the
affidavit, no such objection was taken about the
verification of the main election petition. It was vaguely
stated that verification of the affidavit and verification
of the Schedule (i.e. Schedule III) were "at variance", but
that was a different matter. In so far as the verification
of the affidavit is concerned, it would be sufficient to say
that that part of it which related to the commission of the
corrupt practice which was the subject matter of issue No. 2
was concerned (Schedule III) it was verified in accordance
with the prescribed form (No.25 of the Conduct of Election
Rules, 1961) as true to the election petitioner’s
information received from the persons mentioned in it. It
was therefore quite in order.
It may be mentioned that although the High Court
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examined the objections of the appellant on two occasions,
no objection was taken or pressed for its consideration in
regard to the verification of the main election petition,
its schedules or the affidavits. An objection was raised in
the appellant’s application dated November 27, 1974 that the
election petition may not be tried because of defective
affidavit, but it was rejected by the High Court’s order of
the same date on the grounds that it was a belated
objection, and the allegation of corrupt practice could not
be deleted merely because of the defective form of the
affidavit. No issue was joined in respect of any such
objection and it cannot be allowed to be raised for the
first time in this appeal.
It has next been argued by Mr. Bindra that the High
Court committed a serious error of law in allowing the
election petition to be
339
amended, after the expiry of the period prescribed for its
presentation, even though it did not allege that any vehicle
was used for the free conveyance of any elector and did not
specify the names of the persons who were alleged to have
hired or procured the vehicles. It has been urged that as
the facts alleged in the petition did not bring out all the
ingredients of the corrupt practice, there was no cause of
action for trial. Reference in this connection has been made
to Samant N. Balakrishna etc. v. George Fernandez and
Others(1). Hardwari Lal v. Kamal Singh,(2) Rai Narain v.
Smt. Indra Nehru Gandhi and another(3) and Vatal Nagaraj v.
R. Dayanand Fagar.(4).
By the amendment in question, the election petitioners
had applied for insertion of a new sub-paragraph (d) in
paragraph 12 of the petition as follows,-
"The names of the persons who hired or procured
the vehicles by which the electors were carried free of
cost from their houses to polling station on the date
of election by respondent No. 1, his workers and agents
with his consent are given in schedule III(i) of the
election petition."
Schedule III(i) gave the particulars and names of the
persons who hired and procured the vehicles for the free
conveyance of electors. The High Court took note of the law
that a fresh corrupt practice could not be alleged by means
of an application to amend the election petition and, after
referring to the decisions in Balwan Singh v. Lakshmi Narain
and others(5) and Joshbhai Chunibhai Patel v. Anwar Beg A.
Mirza,(6) given before and after the amendment made by Act
47 of 1966, it held that it was the requirement of the law
that in addition to proving the hiring or procuring of the
vehicles for the free conveyance of any elector to and from
any polling station, it was a necessary particulars‘ to
allege and prove that the vehicle was used for - the
conveyance of the electors. It then noticed paragraph 9 (iii
) of the election petition which stated that the appellant,
his workers, agents and supporters with his consent, hired
and procured vehicles for the free conveyance of electors
and committed corrupt practice as provided under sub-section
(S) of section 123 of the Act. It also noticed paragraph 12
which clearly stated that the concise statement of material
facts in-relation to the aforesaid ground relating to the
procuring and hiring of tractors, jeep and car "for free
conveyance of voters to thc polling stations from their
houses" were given in sub-paragraphs (a) and (b). Those sub-
paragraphs clearly mentioned that the vehicles had been
hired and procured for the free conveyance of the electors-
from their houses to the polling stations on the date of
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poll. Reference was also made to Schedule III of the
petition for which it was stated in paragraph 12(c) of the
petition that the full particulars in regard to the corrupt
practice were given in it. That schedule contained the
"particulars of vehicles used for
(1) [1969] 3 S.C.R. 603. (2) [1972] 2 S.C.R. 742.
(3) [1972] 3 S.C.R. 811.(4) [1975] 2 S.C.R. 384.
(5) [1960] 3 S.C.R. 91.(6) [1969] 2 S.C.R. 97.
340
free conveyance of electors on the date of election" and
contained not only the place from which the electors were
conveyed, the time of conveyance, the name of the polling
station. The particulars of The vehicle, but also the names
of the electors who were so conveyed and the names of the
workers and agents who conveyed them. The schedule was an
integral part of the election petition, and the original
election petition thus contained what was required to be
stated by section 83 of the Act, and the amendment was meant
to furnish some further particulars in regard to the same
corrupt practice. It is therefore futile to contend that a
new corrupt practice was allowed to be inserted by the High
Court’s order of amendment. It may be pointed out that, as
would appear from paragraph 12(c) of the appellant’s
original written statement to the unamended election
petition, he also understood the allegation in the election
petition to mean that it related to the use of the vehicles
for carrying the electors to and from the polling stations
on the date of poll. It will be recalled that the issues
were framed on August 30, 1974, before the making of the
application for leave to amend the election petition, and
issue No 2 clearly raised the question whether appellant
Balwan Singh, or his workers and agents with his consent,
hired or procured the vehicles for the free conveyance of
the voters and whether the vehicles so hired and procured
"were used for the purpose." The appellant was therefore
fully aware that the election petitioners has, inter alia,
alleged the user of the vehicles also, and that was why he
joined issue for the trial of that allegation. There is thus
no justification for the argument to the contrary.
We have already made a mention of issue No. 2 and the
High Court’s finding thereon in favour of’ the election
petitioners in respect of tractors No. as UPG 9962 and UTE
5865, and jeep No. UPW 359, for the free conveyance of
electors to Naubasta, Jaganpur and Tigain‘ polling stations.
Mr. Bindra has challenged that finding and we shall proceed
to examine his arguments in respect of the Naubasta polling
station.
The election petitioners alleged in the election
petition that the appellant, his workers, supporters and
agents hired and procured the vehicles mentioned in Schedule
III, with his consent, for the free conveyance of electors
from their houses to the polling stations on the date of
poll namely. On February 26, 1974. Particulars of the
corrupt practice were given in the schedule. It was thus
stated. in regard to Naubasta polling station, that electors
were conveyed there from Bbimpur and Basehi villages, by
tractor No. UPG 9962. in a trolly. It was specifically
stated that electors Munshi Lal (P.W.2O), Ram Swarup (P.W.
13) and Misri Lal (P.W. 13) of Bhimpur, and Radhelal and
Bahulal (P.W.Il) of Basehi were thus taken to Naubasta. So
also, it was stated that some of the workers and agents who
conveyed the electors were Bhavwan Singh (P.W. 11) and Babu
Singh of Naubasta, and Maikoo of Bhimpur.
The appellant pleaded in his written statement that the
allegation was "totally incorrect and false," and that "none
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of the vehicles men -
341
tioned in Schedule III was either procured or hired by the
answering A respondent or by any of his workers and agents
with his consent for the purposes of carrying voters to and
from the polling station, nor any such vehicles were used
for the purpose of carrying electors to and from the polling
stations on the date of poll." It was not the case of the
appellant that tractor No. UPG 9962 was taken to Naubasta
polling station in some other connection, or that there was
no occasion or question of hiring or procuring it as it was
his own property, or that it was otherwise utilised for his
election campaign or for some other work. He merely stated
that the tractor "was not used in connection with the
election."
It has been argued by Mr. Bindra that the tractor
really belonged to the appellant, and that his wife was only
a ’benamidar’ so that there could be no question of "hiring
or procuring it whether on payment or otherwise" within the
meaning of sub-section (5) of section 123 of the Act.
Reliance in this connection has been placed on Surinder Nath
Gautam v. Vidya Sagar Joshi(’).
That tractor No. UPG 9962 belonged to the appellant’s
wife Smt. Vimla, has been clearly admitted by him in his own
statement in the High Court. In fact, as has been stated, it
was not his case in the written statement that this was not
so and that it was his own property and there could be no
question of hiring or procuring it. A. U. Siddiqui (P.W.2),
tax clerk of the office of R.T.O. Kanpur, has proved that
the tractor was registered in the name of Smt. Vimla Yadav,
wife of appellant Balwan Singh, and that it stood in her
name since May 1, 1971. Balwan Singh’s statement shows that
she was an independent candidate for being coopted as a
member of the Zila Parishad. and it appears from the
statement of Vijay Kumar Singh (P. W. 5) that she was her
husband’s counting agent. It cannot therefore be urged with
any justification that the tractor which belonged to her,
must be deemed to belong to her husband, or that it should
be inferred that she was a mere ’benamidar’ when that was
not the appellant’s case anywhere. We must therefore accept
it as proved beyond doubt that tractor No. UPG 9962 belonged
to the wife of the appellant and was not his own property.
There is thus no justification for contending that there
could be no question or occasion for hiring or procuring it
as it belonged to the appellant.
The word "procure’ has been defined in the Century
Dictionary to mean "to obtain, as by request, loan, effort,
labour, or purchase; get; gain, come into possession of." It
has been defined in the Oxford English Dictionary to mean
"to gain, win, get possession of, acquire." This in our view
is the correct meaning of the words as used in sub-s. (5) of
s.123 of the Act. It would therefore amount to "procuring"
the tractor if it could be shown that the appellant obtained
or got it or acquired it from his wife. As has been stated.
the tractor did not belong to the appellant and, in that
view of the matter. it is not necessary for us to examine
the correctness of the view taken by the Delhi High Court in
Surinder Nath Gautam’s case (supra).
(1) 35 E.L.R. 129.
342
We shall now examine whether tractor No. UPG 9962 was
used for the free conveyance of any elector to or from the
Naubasta polling station on the date of the poll, and
whether it was hired or pro cured for that purpose by the
appellant or his agent or by any other person with his
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consent.
As has been stated, polling in the constituency took
place on February 26, 1974. It has been stated by Vijay
Kumar Singh (P.W. S) who was the polling agent of respondent
Raghunath Singh, that he saw the workers of the appellant
bringing voters to Naubasta polling station in the trolly of
tractor No. UPG 9962. The tractor, according to him, carried
the B.K.D. flag and the posters of that party were pasted on
the trolly. When he saw the tractor making the first trip to
the polling station, he made an oral complaint to the
presiding officer. It took some time for him to come out of
the polling station, and by that time the tractor had gone.
But when the tractor came for the second time, he made
written complaint Ex. 4 about it to Mr. Singh who was the
presiding officer, and he made an endorsement on it in his
presence. The witness has stated further that the presiding
officer came out of the polling station and himself saw the
tractor as well as the persons who got down from it. Those
persons, according to the witness, were assisted by the
workers of the B.K.D. in standing in the queue at the
polling booth. "Parchis were given to them from the camp of
the B.K.D. which also had that party’s flag and posters.
According to Vijay Kumar Singh, The tractor and the trolly
made only two trips to the polling station, the second trip
being at about 3.30 p.m. The witness has stated further that
the presiding officer made an enquiry on his complaint, and
he must have mention ed the result of the enquiry in his
diary. He has stated further that the presiding officer saw
the tractor from a distance of about 100 paces and the
registration number could be read from that distance.
The witness was cross examined at length, but nothing
could be brought out to discredit his testimony, except that
both the witness and respondent Raghunath Singh were related
to one Shashi Bhushan Singh. That might be the reason why
the witness was appointed as the polling agent of respondent
Raghunath ’Singh, but that distant relationship cannot
justify the argument that the witness is unreliable and his
testimony should be rejected for that reason.
The statement of vijay Kumar Singh has in fact been
corroborated in material particulars by the statement of M.
P. Singh (P.W. 6) who was an employee of the U.P. Institute
of Agricultural Sciences and was the Presiding officer of
the Naubasta polling station. He has stated that the
aforesaid complaint Ex. 4 was presented to him by Vijay
Kumar Singh on February 25, 1974 at 3.30 p.m. and that he
made an endorsement to that effect on the complaint. The
complaint Ex. 4 was in Hindi but it’ is not disputed that
its English translation reads as follows:
"It is submitted that the workers of Sri Balwan
Singh have brought voters in UPG 9962 tractor trolly
bearing flag, and the agents of B.K.D. are setting them
in queue. It is
343
entirely illegal. I have already spoken to you in this
connection. But no action has been taken. Kindly taker
proper action."
M. P. Singh has stated that he came out of the polling
station, as the polling agent said that he should see things
for himself, and also because he was aware of paragraph 60
of the "Instruction to Presiding officers" issued by the
Election Commission of India. The witness admitted that it
was the requirement of the instruction that the Presiding
officer of the polling station should forward any complaint
filed before him in regard to the illegal conveyance of
voters to the sub-divisional and other magistrate having
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jurisdiction, with such remarks as he could make on his "own
observation and personal knowledge." He saw on coming out of
the polling station that a tractor and trolly were standing
at a distance of 500 or 600 yards from the polling .
station. The witness admitted ultimately that the "tractor
was standing near the camp of the B.K.D.", he "saw some
persons getting down from the tractor and the trolly" and
that "those who got down from the tractor were seen by me
(him) going towards the B.K.D. Camp." It may be mentioned
that the High Court allowed the counsel for the election
petitioners to cross-examine the witness as there was some
inconsistency in the statement made by 1 him in the Court
and the report (Ex. 5) made in his diary. We shall refer to
that report in a while. It was then that the witness stated
as follows:
"I had read the whole of the complaint (Ex. 4)
while going out. Having seen the tractor and the trolly
outside the polling station near the B.K.D. camp and
having seen the persons getting down the tractor and
trolly and moving towards the camp, I concluded that
everything contained in the complaint (Ex. 4) was
correct, and it was for this reason that I mentioned in
the report (Ex. 5) that the facts of the complaint were
found to be correct. I stayed outside the polling
station for hardly 5 or 6 minutes."
The witness has therefore corroborated the statement of
Vijay Kumar Singh (P.W. 5) in several material particulars.
He has thus stated that (i) complaint Ex. 4 was presented to
him on February 26, 1974 at 3.30 p.m. by Vijay Kumar Singh,
(ii) he read the whole of it, (iii) he came out of the
polling station to see for himself whether the allegation
was correct, (iv) he saw that the tractor and trolly were
outside the polling station near the B.K.D. camp, (v)
persons were getting down the tractor and trolly, and (vi)
they were moving towards the camp. The witness has also
stated that he forwarded the complaint to the District
Election officer and that he made report Ex. 5 in his diary
to the following effect,-
"22-Serious complaint made by the candidates.
The Congress polling agent made a complaint, that
B.K.D. workers were conveying voters to the polling
station by a tractor and trolly. ’ The fact of the
complaint were found to be correct and the complaint
forwarded."
344
M. P. Singh was cross-examined in regard to the correctness
of the report, but he was unable to deny its genuineness or
correctness. His explanation that he merely concluded after
seeing what he has stated, that everything contained in
complaint Ex. 4 was correct, but did not notice the
registration number of the tractor and did not see any flag
or posters on the tractor or the B.K.D. agents setting them
in queue, cannot be accepted because of his statement that
he went out of the polling station as he considered it
necessary to see for himself whether the allegation was
correct, and also because of his contemporaneous note in the
diary that "the facts of the complaint were found to be
correct." We have therefore no reason to disagree with the
view taken by the High Court that the statement of M. P.
Singh and documents Exs. 4 and 5 go to prove the correctness
of the statement of Vijay Kumar Singh (P.W. 5).
Mr. Bindra has argued that M. P. Singh could not have
seen-the registration number of the tractor as it was
standing at a distance of 500 or 600 yards from the polling
station, and that there is no reason to disbelieve his
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statement to that effect. It would be sufficient for us to
say in this connection that Vijay Kumar Singh (P.W 5) has
stated that the Presiding officer had seen the tractor from
a distance of about 100 paces, and his statement to that
effect has not been contradicted by any other witness except
M. P. Singh (P.W. 6) who, as has been shown, tried to give
an inconsistent statement and was allowed to be cross-
examined by an order of the High Court. But even M. P. Singh
has stated that he saw the tractor standing near the B.K.D.
camp. Section 130 of the Act prohibited canvassing or
exhibiting any notice or sign within a distance of 100
metres of the polling station, and Mr. Bindra was unable to
refer us to any requirement of the law that it was not
permissible for a candidate to locate his camp at that
distance. Moreover, if it had not been possible for M. P.
Singh to see the registration number of the tractor, he
would not have recorded in his report Ex. 5 that the facts
mentioned in the complaint (Ex. 4) were "found to be
correct." The same is the position in regard to M. P.
Singh’s statement that he did not notice whether the tractor
and the trolly did or did not carry any flag or posters. It
is pertinent to point out in this connection that the
complaint (Ex. 4) of Vijay Kumar Singh was that workers of
the appellant had brought the voters in the tractor trolly,
and it would not have been possible for him to "conclude
that everything contained in the complaint Ex. 4) was
correct" if he had not seen some distinguishing mark on the
tractor or the trolly to connect it with the appellant. It
has been stated by Vijay Kumar Singh (P.W. S) that the
persons who got down from the tractor trolly went and took
"parchis" from the B.K.D. camp outside the polling station.
M. P. Singh (P.W. 6) has also stated that those who got down
from the tractor were seen by him going towards the B.K.D.
camp. It is not the case of the appellant that they were not
the electors of the constituency. In fact it would not have
availed him or his workers to bring those who were not the
electors to the polling station.
The election petitioners stated in the petition that
the names of some of the electors who were conveyed to
polling station Naubasta
345
were Babu Lal (P.W. 11) and Radhey Lal ’(P.W. 12) of village
A Basehi, and Ram Swarup (P.W. 13), Misri Lal (R.W. 13) and
Munshi Lal (P.W. 20) of village Bhimpur. While Babu Lal,
Radhey Lal, Ram Swarup and Munshi Lal have been examined by
the election petitioners, Misri Lal (R.W. 13) has been
examined by the appellant.
We have gone through the statement of these witnesses.
Babu Lal (P.W. 11) has stated that a tractor having a trolly
came to Basehi on the date of poll carrying the flag and
posters of the B.K.D. and that he travelled in it to the
polling station along with others including Radhey Lal (P.W.
12), Kunji Lal, Hira, Babbu Prasad and Raghubar Dayal, and
that no fare was demanded, or was paid Voluntarily. Radhey
Lal (P.W. 12) has stated much to the same effect, except
that he was not asked to name the other persons who
travelled with him in the trolly. He has however stated that
Babu Lal had gone with him in the trolly. Nothing has been
elicited in the cross-examination to shake the testimony of
these witnesses.
We have also gone through the statements of Ram Swarup
(P.W. 13) and Munshi Lal (P.W. 20) of Bhimpur. Ram Swarup
has stated that a tractor and trolly carrying the flag and
posters having the symbol of "Haldhar Kisan" came to Bhimpur
on the date of poll and that he and Munshi (P.W. 20) and
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Lallu, Sukhnandan and his sons went in it to the polling
station to cast their votes and that they were neither asked
to pay any fare for travelling by the tractor to Naubasta
nor did they voluntarily pay anything. He has stated that he
returned to the village in the same tractor, after casting,
his vote. Munshi Lal (P.W. 20) has deposed much to the same
effect, and he has stated that Ram Swarup (P.W. 13) also
travelled in the tractor trolly along with the other persons
named by him. The statements of these witnesses have not
been shaken in cross-examination.
As has been stated, Misri Lal (R.W. 13) was also named
in the schedule to the election petition as the elector who
was conveyed in the tractor trolly, and he has been examined
on behalf of the appellant. He has stated that there is a
distance of 2 or 2 1/2 furlongs between the "abadi" of
Bhimpur and the "abadi" of Naubasta, and that he went on
foot to cast his vote at the polling station. He has stated
further that the persons living at Bhimpur had gone to the
polling station on foot and that it was wrong to say that
any tractor come to Bhimpur to transport the voters to the
polling station. The appellant has admitted that he knew
Misri Lal for 3 or 4 years, and we are unable to think that
the High Court erred in rejecting his statement in face of
the other evidence to which reference has been made above.
It was specifically stated in Schedule III of the
election petition that Bhagwan Singh (R.W.ll) and Babu Singh
of Naubasta, and Maikoo of Bhimpur were the workers and
agents of the appellant who conveyed the electors to the
Naubasta polling station. Of these only one Bhagwan Singh
(R.W.ll) has been examined on behalf of Balwan Singh. He has
stated that it was wrong to say that he, Maikoo and
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Babu Singh brought any’voters in tractor trolly from Bhimpur
to Naubasta, or that he got any "parchis" distributed to any
voters in the queue at the polling station. It may be
mentioned that the election petitioners made it clear that
Bhagwan Singh was Bhagwan Singh Thakur. Bhagwan Singh
(R.W.ll) has admitted that there r was another Bhagwan Singh
in his village. He has stated that he did not see appellant
Balwan Singh during the election, in his village, that he
had put the flag and poster of the Congress party at his
house and that he and his sons worked for the Congress in
the election. As against this, the appellant has stated that
he did go to Naubasta and talked to Thakur Bhagwan Singh
there who was a sympathiser of B.K.D. It therefore appears
that Bhagwan Singh (R.W.ll) cannot be said to be the worker
named in the Schedule of the petition, and nothing can
possibly turn on what he has stated.
It will be recalled that Vijay Kumar Singh (P.W.5) who
was the polling agent of the Congress candidate at Naubasta
had stated in the trial court that he had made an oral as
well as a written complaint about the conveyance of voters
by the workers of the appellant, to the Presiding officer.
The appellant also appointed his polling agent at the
polling station, but he has not examined him in rebuttal of
Vijay Kumar Singh’s statement to that effect.
We have gone through the other evidence which has been
led by way of rebuttal of the allegation regarding the use
of tractor No. UPG 9962 for the conveyance of electors to
Naubasta polling station. We have already dealt with the
statements of Bhagwan Singh (R.W. 11) and Misri Lal (R.W.13)
and have given our reasons for rejecting them as
unsatisfactory. The remaining witnesses, to whose testimony
our attention has been invited by Mr. Bindra, are Vijai Pal
Singh (R.W.14) and appellant Balwan Singh (R.W.34). Vijai
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Pal Singh is a self-condemned witness for whereas he stated
that he was the polling agent of Ayodhya Prasad who
contested the election as a Congress (o) candidate and did
not see any tractor trolly conveying voters to Naubasta
polling station although he remained present at the polling
station, he admitted under cross-examination that he was not
a polling agent at the Naubasta polling station and had made
a false statement to that effect. In so far as Balwan Singh
(R.W.34) is concerned, it will be sufficient to say that he
has admitted that he did not go to Naubasta on the date of
the poll. He could not therefore disprove the evidence of
the election petitioners in regard to the alleged corrupt
practice. He once ventured to state that he came to know on
the "next day after polling that (his) tractor had gone to
the National Sugar Institute" for transporting "seta" and
"patwar", but he qualified that statement by saying that the
tractor may have been sent there by his wife and that "seta"
and "patwar" were obtained before February 26, 1974. An
attempt was made to examine Iqbal Bahadur Dwivedi along with
the original gate pass of the Institute, but it was given up
by Balwan Singh. He cannot therefore be said to have
rebutted the evidence of the election petitioners. It may be
mentioned in this connection that although the important
role of conveying voters to Naubasta polling station had
been assigned to Babu
347
Singh and Maikoo in the election petition, they were not
examined in defence.
It may be mentioned that some witnesses of the election
petitioners, namely, Babu Lal (P.W.II), Ram Swarup (P.W.13)
and Munshi Lal (P.W.20) named certain persons who, according
to them, travelled with them to the polling station Naubasta
free of cost. Most of those persons were summoned at the
instance of the appellant, but they were not examined
ultimately, and were given up.
The election petitioners have also led evidence to
prove that tractor UPG 9962 was procured by appellant Balwan
Singh himself for the conveyance of the electors to the
Naubasta polling station. Amarpal Singh (P.W.33) has stated
in this connection that he held a diploma in motor mechanism
and was running a repairing shop at Rawatpur for motors and
tractors. The appellant was known to him and asked him to do
the repair work of the vehicles at the B.K.D. office at
Rania for Rs. 25/- per day. He has stated further that he
went to Rania and worked there for 12 days. One day before
polling, the tractor of the appellant was brought to Rania
as it had developed some defects. Balwan Singh’s wife Smt.
Vimla and his driver were present when he was working on
that tractor. Ram Swarup Sharma, Babu Singh and the
appellant came there at that time and the appellant asked
the witness to complete the repairing work as early as
possible, and he asked Smt. Vimla to send the tractor to
Naubasta with Babu Singh for transporting voters. Witness
has stated further that his partner Ramesh was present at
that time. Ram Swarup Sharma is dead. Appellant Balwan Singh
cited Babu Singh as a defence witness, but gave him up. He
did not examine Ramesh. Uma Shankar (R.W.24) was examined to
prove that the appellant did not have any election office at
the house of Ram Swarup in Rania and no vehicle of the-
appellant was repaired there, but he has not stated anything
about Amarpal Singh, and it is difficult to place - reliance
on his statement as he was admittedly a worker of the B.K.D.
party in Rania. Rania, according to the witness, had a
population of some 3500 persons and it is difficult to
believe that the appellant had no office there. The
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appellant recorded his own statement to the effect, inter
alia, that he did not employ Amarpal Singh for repairing any
vehicle and did not give any instruction that Babu Singh -
should take the tractor for transporting voters. No reason
has how ever been assigned why Amarpal Singh should have
tried to implicate the appellant falsely. The trial Judge
has placed reliance on his statement, and we see no reason
for taking a different view.
Tractor UPG 9962 belonged to the appellant’s wife Smt.
Vimla, and it was alleged from the very inception, in the
contemporaneous report Ex. 4, that it had been used for the
conveyance of electors, some of whom were named in the
Schedule to the election petition along with the names of
the workers and agents who utilised the tractor for the
work. It could be expected of the appellant that he would
give satisfactory particulars and details about any other
use of the tractor on the date of the poll if that was
within his special knowledge, but he has not done so. On the
other hand, as has been
348
shown, his attempt to prove that the tractor had been sent
to the National Sugar Institute met with dismal failure. His
wife Smt. Vimla did not even appear as a witness and no
attempt was made even to examine the driver of the tractor
although the appellant has stated that tractor UPG 9962 was
driven by a driver whose name was Rangilal.
It is not always possible for an election petitioner to
adduce direct evidence to prove that a particular vehicle
was hired or procured by the candidate or his agent or by
any other person with the consent of the candidate or his
election agent, but this can be inferred from . the proved
circumstances where such inference is justifiable. Reference
in this connection may be made to the decisions of this
Court in Bhagwan Datta Shastri v. Badri Narayan Singh and
others(1) and Shri Umed v. Raj Singh and others(2). In the
present case, it has been proved by clear and reliable
evidence that tractor UPG 9962 was used for the conveyance
of electors to and from the Naubasta 1’ a polling station,
and r that it was so used by the workers of the appellant.
Then there is the further fact that the voters were conveyed
free of cost. It has also been proved that the tractor
belonged to the appellant’s wife and he could not succeed in
his effort to prove that it was used elsewhere or for some
other purpose. In these facts and circumstances, it would be
quite permissible to draw the inference that the tractor had
been procured, by the appellant for the free conveyance of
the electors.
For the reasons mentioned above, we have no doubt that
the finding of the High Court that appellant Balwan Singh
procured ‘tractor No. UPG 9962 with trolly and that they
were used for the purpose of transporting the voters to the
Naubasta polling station, and he thereby committed a corrupt
practice within the meaning of’ section 123(5) of the Acts.
is correct and must be upheld. In view of this categorical
finding it is not necessary for us to examine the allegation
regarding the hiring or procuring of tractor No. UTE 5865
and jeep No. UPW 359 for the free conveyance of electors to
two other polling stations.
It may be mentioned that in arriving at the above
finding we have ’’ taken due note of the view expressed by
this Court in Ram Awadesh Singh v. Sumitra Devi and
others(8) in regard to the generation of factious feelings
during elections and their continuance even after the
election enabling the parties to produce a large number of
witnesses some of whom may be seemingly disinterested, and
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the view expressed in Rahim Khan v. Khurshid Ahmed and
others(4) that an election once held should not be treated
in a light-hearted manner and’ the court should insist on
clear and cogent testimony compelling it to uphold the
corrupt practice alleged against the returned candidate. So
also, we have noticed the view expressed in Baburao Ragaji
Karem ore and others v. Govind and others(5) that the Court
should
(1) A.I.R. 1960 S.C. 200. (2) A.I.R. 1975 S.C. 43.
(3) [1972] 2 S.C.R. 674. (4) 19751 S.C.R. 643.
(5) [1974] 2 S.C.R. 429.
349
examine the evidence having regard to the fact that where
the electorate has chosen their candidate at an election,
their choice ought not to be lightly upset. We have also
taken notice of the view expressed by Ray C.J. in Smt.
Indira Nehru Gandhi v. Raj Narain(1) that in an election
contest it is the public interest, not the parties’ claims,
which is the paramount concern. Mr. Bindra has placed
consider " able reliance on these decisions. But, as has
been shown, the finding of the High Court regarding the
aforesaid corrupt practice is based on clear, cogent and
convincing evidence and there is no justification for
interfering with it.
Mr. Bindra has laid much stress on the fact that the
appellant was successful at the election to the U.P.
Legislative Assembly from another constituency in 1957, but
his election was set aside on the round, inter alia, that he
and/or his election agent and/or other persons with his
consent, had committed corrupt practice, including the
corrupt practice of hiring a tractor for the conveyance of
electors. He has argued that in view of this Court’s
decision against him in Balwan Singh v. Shri Lakshmi Narain
and others (supra) he could not possibly have taken the risk
of committing another similar corrupt practice at the
election in question. The argument is based on mere
conjecture and cannot disprove or rebut the clear, cogent
and reliable evidence on which the appellant has been held
guilty of committing the corrupt practice in this case.
Mr. Bindra tried to argue further that the High Court
committed an illegality in setting aside the appellant’s
election without finding that the result of the election had
been materially affected thereby. The argument is
misconceived, for it is not the requirement of section
100(1) (b) which has been found to be applicable to the
corrupt practice in question, that the High Court should
declare the election of the returned candidate to be void
only if the result of the election has r been materially
affected by it.
Another argument of Mr. Bindra was that the corrupt
practice in question should not have been found to have ben
committed as the election petitioners did not examine
themselves during the course of the trial in the High Court.
There was however no such obligation on them, and the
evidence which the election petitioners were able to produce
at the trial could not have been rejected for any such
fanciful reason when there was nothing to show that the
election petitioners were able to give useful evidence to
their personal knowledge but stayed away purposely.
In the result, the appeal (Civil Appeal No. 775 of
1975) filed by Balwan Singh fails and is dismissed with
costs. The cross-appeal (Civil Appeal No. 1107 of 1975) is
dismissed as not pressed, but without any order as to the
costs.
P.B.R. Appeal dismissed.
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(1) A.I.R. 1975 S.C. 299.
8-L522SCI/76
350