Full Judgment Text
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PETITIONER:
DHARMESH PRASAD VERMA
Vs.
RESPONDENT:
FAIYAZAL AZAM
DATE OF JUDGMENT17/07/1984
BENCH:
VARADARAJAN, A. (J)
BENCH:
VARADARAJAN, A. (J)
FAZALALI, SYED MURTAZA
MISRA RANGNATH
CITATION:
1984 AIR 1516 1985 SCR (1) 11
1984 SCC (4) 3 1984 SCALE (2)21
CITATOR INFO :
F 1987 SC1577 (26)
ACT:
The Representation of the People Act 1951, Section 123
(5).
Corrupt practice-Procuring of vehicle for free
conveyance of voters- Evidence and proof.
Jeep belonging to friend of candidate-Carrying of
voters in jeep-Whether corrupt practice.
HEADNOTE:
The respondent was elected to a State Assembly
Constituency. The appellant who had contested the election
pleaded four items of corrupt practice in his Election
Petition filed against the respondent.
The Legislative Assembly to which the respondent was
elected has been dissolved and a fresh election has been
held. Notwithstanding, the fresh election the appellant
pursued his election petition in order to prove corrupt
practice on the part of the respondent.
In his election petition, the appellant pleaded that
the respondent committed a corrupt practice falling under
section 123 (5) of the Representation of the People Act,
1951 by procuring and using a jeep for the free conveyance
of voters to the polling station on the date of poll. The
respondent denied the charge and contended that the
appellant had not complied with the mandatory provisions of
sections 81, 82 and 83 of the Act read with Order VI, Rule
15 of the Code of Civil Procedure and section 117 of the Act
and the election petition was therefore liable to be
dismissed.
The Judge who tried the petition, followed this Court’s
ruling in Rahim Khan v. Khurshid Ahmed [1975] 1 SCR 653 that
Proceedings arising out of
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election petitions are quasi-criminal in nature and that
evidence relating to corrupt practices should be scrutinized
with scrupulous care and merciless severity; considered the
evidence adduced by the parties, and found that the jeep
bearing No. USJ 5226 while carrying five ladies including
P.Ws. 10, 11, 42 who were voters, free of cost, for casting
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votes on behalf of the respondent was seized by the District
Magistrate and the Superintendent of Police about 1.5 miles
from the polling booth and that at the time of the seizure,
the jeep was driven by a close friend of the respondent and
that this friend had worked for the respondent in the
election and was present in the booth on the date of the
polling and that the respondent’s polling agent stood surety
for the release of the jeep. The Judge held that these facts
were not sufficient to hold that the respondent procured the
jeep, and that since the jeep with the voters was caught not
at the polling station but at some distance way from it, it
was only a case of an attempt at corrupt practice and not
corrupt practice itself under section 123 (5) of the Act,
and dismissed the election petition.
Allowing the appeal, this Court,
^
HELD: 1. The requirement of the law in regard to
corrupt practice under section 123 (5) of the Representation
of the People Act 1951 is that in addition to proving the
hiring or procuring of any vehicle or vessel for the
carriage of voters to and from any polling station it should
also be proved that the electors used the vehicle or vessel
free of cost to themselves. [17A-B]
2. Section 123 (5) requires three things, (1) hiring or
procuring of a vehicle; (2) by a candidate or his agent etc.
and (3) for the free conveyance of an elector. [16H]
Joshibhai Chunibhai Patel v. Anwar Beg Mirza, [1969] 2
SCR 97, Razik Ram v. Jaswant Singh Chouhan, [1975] 4 SCC 769
at 775 and Dadasahib Dattatraya Pawar v. Pandurang Raoji
Jagtap, [1978] 2 SCR 524 at 528, refereed to.
3. The appellant has proved satisfactorily all the
three requirements of clause (5) of section 123 of the Act.
The respondent has therefore to be held guilty of corrupt
practice falling under this clause which is ordinarily
difficult to prove. [27F]
In the instant case, the evidence of P.Ws. 6, 16 and 43
reveal that the respondent had procured the jeep USJ 5226
from his close friend, Kabir Ahmed for the free conveyance
of his electors and that the jeep was, thereafter, used for
that purpose on the day of poll, and seized by the
officials, P. W 69 District Magistrate, P.W. 73-
Superintendent of Police and P.W. 81-Station House Officer
where it was being used for the conveyance of the electors
P.Ws. 10, 11, 42 and others including P.W. 67 free of cost
to themselves. The appellant s case that the respondent
committed corrupt practice is clearly established. [27D-E]
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4. Corrupt practice such as in the instant case is very
largely resorted to in the elections and could be avoided by
either locating polling booths within walking distance of
the electors or by having mobile polling stations. [27G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3011 of
1979.
From the Judgment and Order dated the 7th September,
1979 of the Patna High Court in Election Petition No. 4 of
1977.
Shanti Bhushan and M.P. Jha for the Appellant.
S.K. Sinha for the Respondent.
The Judgment of the Court was delivered by
VARADARAJAN, J. This election appeal is directed
against the judgment of the Patna High Court dismissing
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Election Petition No. 4 of 1977 with costs of Rs. 1000/-.
The appellant Dharmesh Prasad Verma, who is stated to have
contested the election as a Janata candidate, had pleaded
four items of corrupt practice in his election petition
filed against the respondent Faiyazal Azam who is stated to
have contested the election as a Congress-I candidate. The
poll in this case was held on 12.6.1977 for the election of
a member of the Bihar Legislative Assembly from No. 5 Sikta
Constituency in West Champaran district. The appellant
secured 1795 votes while the respondent secured 28324 votes
and was declared elected on 15.6.1977. The election petition
was filed on 18.7.1977. The Legislative Assembly was
dissolved in 1980 and fresh election had been held in that
year and the respondent is stated to have contested as a
non-Congress-I candidate and to have been elected from the
same constituency. The appellant is, however, interested in
pursuing this election petition relating to the election of
the year 1977 in order to prove corrupt practice on the part
of the respondent.
Mr. Shanti Bhushan, Senior Counsel, appearing for the
appellant, restricted his arguments to the first charge
alone and that too regarding the use of the jeep USJ 5226
which is alleged to have belonged to one Kabir Ahmed. That
charge is that respondent committed the corrupt practice
falling under s. 123(5) of the Representation of the People
Act, 1951 (hereinafter
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referred to as the "Act") by procuring and using the jeep
for the free conveyance of voters to the polling station on
the date of poll. The respondent denied the charge in his
written statement and contended that the appellant had not
complied with the mandatory provisions of ss. 81, 82 and 83
read with order VI, Rule 15 of the Code of Civil Procedure
and s. 117 of the Act and that the election petition is,
therefore, liable to be dismissed.
The learned Single Judge who tried the election
petition, after observing that it is common knowledge that
every politician realises the importance of vehicles during
general elections, noticed this Court’s observations in
Rahim Khan v. Khurseed Ahmed that proceedings arising out of
election petitions are quasi-criminal in nature and that the
evidence relating to corrupt practices should be scrutinized
with scrupulous care and merciless severity, and then
proceeded to consider the evidence adduced by the parties.
On the evidence the learned Judge found that the jeep
bearing No. USJ 5226 while carrying five ladies was seized
by the District Magistrate and the Superintendent of Police
of the district from a road near a canal situate about 1.5
or 2 miles away from the Sarkiatola booth on the date of the
poll and that the five ladies including Murati @ Deokalia
(P.W. 19), Mehrunnissa (P.W. 11) and Rasulia (P.W. 42) were
voters who were being carried free of cost for casting votes
on behalf of the respondent. The learned Judge found that at
the time of the seizure of the jeep it was driven by Kabir
Ahmed’s nephew Tabrez Ahmed and that Kabir Ahmed was a great
friend of the respondent and he and his father worked for
the respondent in the election and were present in the booth
on the date of the poll and that the respondent’s polling
agent Manager Prasad stood surety for the release of the
jeep. However, the learned Judge held that these facts are
not sufficient by themselves to hold that the respondent
himself procured the jeep from Kabir Ahmed. The learned
Judge further found that since the jeep with the voters was
caught not at the polling station but at some distance away
from it, in any event, it was only a case of an attempt at
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corrupt practice and not corrupt practice itself as per s.
123(5) of the Act. Thus the learned Judge rejected the
appellant’s case in regard to this instance of corrupt
practice as also the other instances and dismissed the
election petition.
15
Section 123(5) of the Act read thus:
"S. 123. The following shall be deemed to be
corrupt practice for the purpose of this Act:
(1) ... ... ... ... ... ... ...
(2) ... ... ... ... ... ... ...
(3) ... ... ... ... ... ... ...
(4) ... ... ... ... ... ... ...
(5) The hiring or procuring, whether on payment or
other wise, of any vehicle or vessel by a candidate or
his agent or by any other person with the consent of a
candidate or his election agent, or the use of such
vehicle or vessel for the free conveyance of any
elector other than the candidate himself, the members
of his family or his agent, to or from any polling
station provided under section 25 or a place fixed
under sub-section(1) of section 29 for the poll:
Provided that the hiring of a vehicle or vessel by
an elector or by several electors at their joint costs
for the purpose of conveying him or them to and from
any such polling station or place fixed for the poll
shall not be deemed to be a corrupt practice under this
clause if the vehicle or vessel so hired is a vehicle
or vessel not propelled by mechanical power:
Provided further that the use of any public
transport vehicle or vessel or any tram-car or railway
carriage by any elector at his own cost for the purpose
of going to or coming from any such polling station or
place fixed for the poll shall not be deemed to be a
corrupt practice under this clause.
Explanation:-
In this clause, the expression ’vehicle’ means any
vehicle used or capable of being used for the purpose of
road transport whether propelled by mechanical power or
otherwise and whether used for drawing other vehicles or
otherwise."
16
In clauses (5) of s. 123 the word "or" is used in
several places and the word "and" is used in two places in
the first proviso and the explanation. Prima facie,
Parliament must be deemed to have used the word "or" and
"and" for different purposes or objects. If the matter is
res integra it could be said that the main clause (5)
consists of two separate parts, namely (1) the hiring or
procuring, whether on payment or otherwise, of any vehicle
or vessel by a candidate or his agent or by any other
person, with the consent of a candidate or his election
agent for the free conveyance of any elector to or from any
polling station, or (2) the use of any vehicle or vessel by
any candidate or his agent or by any other person with the
consent of a candidate or his election agent for the purpose
of free conveyance of any elector to or from any polling
station. It is true that in the latter part of clause (5)
the word "such" issued before the words "vehicle or vessel
for the free conveyance of any elector to or from any
polling station". But the matter is no longer res integra.
In Joshibhai Chunibhai Patel v. Anwar Beg Mirza
Hidayattullah, C.J. speaking for himself and G.K. Mitter, J.
has observed:
"This brings us to the examination of s. 123(5)
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with a view to finding out what are its requirements.
We have already indicated that in our opinion the
election petitioner must prove in addition to the other
ingredients of the section that the vehicle was used
for free conveyance of voters which ingredient we have
stated was not attempted to be established in the
case... ... ... ... ... This section defined one of the
corrupt practices and it consists of hiring and
procuring whether on payment or otherwise of any
vehicle. This hiring and procuring must be by any other
person with the consent of the candidate or his
election agent and the hiring according to the section
must be for the free conveyance of any elector other
than the candidate himself or members of his family or
his agent to and from any polling station. It will,
therefore, appear that the section requires three
things, (1) hiring or procuring of a vehicle; (2) by a
candidate or his agent etc. and (3) for the free
conveyance of an elector. It will be noticed that the
section also speaks of the use but it speaks of the use
of such vehicle which
17
connects the two parts, namely, hiring or procuring of
vehicle and the use. The requirement of the law
therefore is that in addition to proving the hiring or
procuring and the carriage of electors to and from any
polling station, it should also be proved that the
electors used the vehicle free of cost to themselves."
In Razik Ram v. Jaswant Singh Chouhan, Sarkaria, J.
speaking for himself and Alagiriswami, J. has observed:
"On analysis, clause (5) of Section 123 falls into
two parts. The requirements of the first part are; (i)
The hiring or procuring, whether on payment or
otherwise, of any vehicle or vessel for the free
conveyance of voters (ii) Such hiring or procuring must
be by a candidate or his election agent or by any other
person with the consent of a candidate or of his
election agent. The second part envisages the "use of
such vehicle or vessel for the free conveyance of any
elector (other than the candidate himself, the members
of his family, or his election agent) to or from any
polling station". The two parts are connected by the
conjunction "or" which is capable of two constructions.
In one sense, it is a particle coordinating the two
parts of the clause and creating an alternative between
them. In the other sense which is akin to the sense of
"and" it can be construed as conjoining and combining
the first part of the clause with the second. The
latter construction appears to comport better with the
aim and object of the amendment of 1966. In this
connection, it is not worthy that even before the
amendment, this Court in Balwan Singh v. Lakshmi Narain
[1960] 3 S.C.R 91, held that in considering whether a
corrupt practice described in Section 123(5) is
committed conveying of electors cannot be dissociated
from the hiring of a vehicle.
Even if the word "or" is understood as a
coordinating conjunction introducing alternatives then
also a petitioner in order to succeed on the ground of
a corrupt
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practice under the second part of the clause, must
prove, in addition to the use of the vehicle or vessel
for the free conveyance of any elector to or from any
polling station, the hiring or procuring of that
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vehicle or vessel. This is so because the word "such"
in the phrase introduced by the 1966 amendment,
expressly imports these elements of the first into the
second part of the clause.
In the view we take we are fortified by the dictum
of this Court in Joshibhai Patel v. Anwar Beg Mirza
[1969] 2 SCR 97, wherein Hidayatullah, C.J., speaking
for the Court analysed the requirements of the clause,
thus:
It will be noticed that this section also speaks
of the use of such vehicle which connects the two
parts, namely, hiring or procuring of vehicle and its
use. The requirement of the law therefore is that in
addition to proving the hiring or procuring and the
carriage of electors to and from any polling station,
it should also be proved that the electors used the
vehicle free of cost to themselves."
In Dadasahib Dattatraya Pawar v. Pandurang Raoji,
Jagtap, Jaswant Singh, J. speaking for the Court has
observed:
In regard to section 123(5) of the Representation
of People Act, 1951 which before its amendment by Act
47 of 1966 was identical in terms with section 144-1(3)
of the Act, it was held by this Court in Shri Balwant
Singh v. Shri Lakshmi Narain that in considering
whether a corrupt practice described in section 123(5)
is committed conveying of electors cannot be
dissociated from the hiring of a vehicle.
It has also been held by this Court in Ch. Razik
Ram v. J.S. Chouhan and Ors. [1975] 4 S.C.C. 769] that
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to establish the corrupt practice under section 123(5)
of the Representation of the People Act, 1951, it is
necessary for an election petitioner to prove (i) that
any vehicle or vessel was hired or was procured,
whether on payment or otherwise by the returned
candidate or by his election agent or by any other
person with the consent of the candidate or of his
election agent; (ii) that it was used for conveyance of
the electors to or from any polling station and (iii)
that such conveyance was free of cost to the electors.
Failure to substantiate any one of these ingredients
leads to the collapse of the whole charge."
We shall now proceed to consider the evidence adduced
by the parties alleged by the appellant. On the day of poll,
12.6.1977 J.K. Dutta, P.W. 69, the then District Magistrate,
West Champaran was proceeding to Sikta in a jeep accompanied
by the Superintendent of Police in the course of his duties
in relation to the election. Finding a jeep carrying some
ladies, P.W. 69 instructed the Superintendent of Police to
make the necessary enquiry. After the necessary enquiry was
made by the police the jeep with the occupants and the
driver was taken to the police station by the Station House
Officer, Sikta Police Station, who found the jeep having
been detained by the District Magistrate and the
Superintendent of Police on the road near a canal situate
about 1.5 or 2 miles away from the Sarakiatola booth when he
was proceeding towards Parsa village with some policemen.
Subsequently, the ladies who were in the jeep were taken
from the police station by a government jeep to the place
from where the private jeep with the occupants and the
driver was taken by the officials to the Sikta Police
Station. Anil Kumar, P.W. 73. the then Superintendent of
Police, Bettiah who accompanied P.W. 69, has given a little
more detailed evidence regarding what happened when he was
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accompanying P.W. 69 to Sikta. He has deposed that since
they suspected that the four or five rustic ladies who were
being carried by the jeep could not be its owners, he seized
the jeep, evidently under the impression that the ladies
were being carried free of charge to the booth, near a canal
situate about 1.5 or 2 miles from the booth and took it
alongwith the driver and its occupants to the police
station. After the statements of the ladies and the driver
were recorded by the Station House Officer at the Sikta
Police Station, they were taken back
20
by a government jeep to the place from which the private
jeep in which they were travelling earlier was seized so
that they could go and cast their votes. P.Ws. 69 and 73 do
not remember the number of the jeep and P.W. 69 does not
know to whom the jeep belonged. Amal Ranjan Sarkar, P.W. 81,
is the Station House Officer who took the jeep with its
occupants and the driver to the police station after he
found the jeep having been detained by P.Ws. 69 and 73.
Kabir Ahmad’s nephew Tabrez Ahmad was driving the jeep. P.W.
81 obtained the statement, Ex. 13, written and signed by
Tabrez Ahmad as also the statements of five ladies who were
found travelling in the jeep. The jeep USJ 5226 which was
taken into custody was later released to Kabir Ahmad on
17.6.1977 under Ex. (c) after one Managar Prasad, who is
proved to have been the polling agent of the respondent,
furnished security under Ex. 14 (b). There is evidence of
Sheikh Ejazul, P.W. 8 that the jeep USJ 5226 which was used
in the election belonged to Kabir Ahmad and that it was
driven by Tabrez Ahmad. There is evidence to show that Kabir
Ahmad’s brother Nazir Ahmad was another polling agent to the
respondent like Managar Prasad. The learned Trial Judge has
found that Managar Parasad was the respondent’s polling
agent. This fact, to which our attention was drawn by Mr.
Shanti Bhushan was not disputed by the respondent’s learned
counsel. The respondent, R.W. 45 has admitted that Kabir
Ahmad’s brother Nazir Ahmad was his polling agent and that
Tabrez Ahmad is the nephew of Kabir Ahmad and Nazir Ahmad.
But he has stated that the does not know if Managar Prasad
whom he knows was his polling agent or whether he had
furnished security for the release of the jeep by the Police
to Kabir Ahmad. D.N. Pandey, P.W. 75 the then Anchal
Adhikari of Sikta who had been deputed to work as the Sub-
Zonal officer during the election in 1977 has also deposed
about the seizure of Kabir Ahmad’s jeep driven by Tabrez
Ahmad. He was present at the Sikta Police Station when the
jeep with some women sitting in it was brought to the police
station. He has stated that Kabir Ahmad, who was very
friendly with respondent, came to the police station to get
the women and the jeep released from the custody of the
police. The evidence of Muratiwa @ Deokha, P.W. 10,
Mehrunoissa, P.W. 11 and Rasulia, P.W. 42 who travelled in
the jeep alongwith two other ladies including Queresha P.W.
67
21
is that Kabir Ahmad got them released from the police
station on the day of the poll after they and the two other
ladies who were travelling with them by the jeep had been
taken to the police station. The aforesaid evidence of P.Ws.
69, 73, 81, 75, 10, 11 and 42 which has not been seriously
challenged in the cross-examination establishes
satisfactorily that the jeep USJ 5226 belonging to Kabir
Ahmad was seen being driven by Kabir Ahmad’s nephew Tabraz
Ahmad with five women electors including P.Ws. 10, 11, 42
and 67 on the road near a canal situate about 1 or two miles
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away from the Sarakiatola booth on the day of the poll, that
the jeep with the ladies and the driver was seized on
suspicion that it was being used for carrying electors to
the booth free of cost, that the statements of the five
ladies and the driver Tabrez Ahmad were recorded at the
Sikta Police Station by the Station House officer, P.W. 81,
in the presence of P.Ws. 69, 73 and 75, that Kabir Ahmad got
the ladies released from police custody on the same day and
they were thereafter brought by a government jeep from the
police station to the place from where they had been
previously taken to the police station in Kabir Ahmad’s
jeep, that the jeep was released to Kabir Ahmad on 17.6.1977
under Ex. 14(c) and that the respondent’s polling agent
Manager Prasad furnished security under Ex. 14(b) for the
release of the jeep to Kabir Ahmad. The appellant’s
contention is that the respondent procured the jeep USJ 5226
from Kabir Ahmad and it was used for the conveyance of
electors free of cost to themselves for the purpose of
casting votes in favour of the respondent and that the
respondent is thus guilty of corrupt practice under s.
123(5) of the Act. The evidence referred to above
establishes the requirement of clause (5) of s 123 that the
vehicle USJ 5226 which is proved to belong to the
respondents close friend Kabir Ahmad was used for the
conveyance of electors who were proceeding to cast votes in
favour of the respondent on the day of the poll. It is not
possible to agree with the learned Trial Judge that what
this evidence establishes is only an attempt to convey
electors to the polling booth and not actual conveyance of
the electors merely because the jeep with the electors who
were being carried in it was intercepted at a distance of 1
or 2 miles away from the booth and taken to the police
station by the official who had suspected that an election
22
offence had been committed. The jeep was seized when it was
being used for carrying electors who were proceeding to vote
for the respondent, no doubt at a distance of 1 or 2 miles
away from the polling booth. Even the learned counsel for
the respondent did not contend before us that what has. been
established is only an attempt at conveying electors by the
jeep of Kabir Ahmad to the polling booth and not actual
conveyance.
There is overwhelming evidence on record including that
of the Anchal Adhikari, P.W. 75 who had worked as the
Secretary of a Cement Committee of which the respondent was
the President, to show that the respondent is a good friend
of Kabir Ahmad, whose brother Nazir Ahmad was admittedly the
respondent’s polling agent. The respondent had used to him
for the purchase of a motor cycle for the benefit of Nazir
Ahmad who admittedly advanced the money required for its
purchase and was using the vehicle which stood nominally
registered in the name of the respondent. The respondent has
professed ignorance in his evidence whether Kabir Ahmad
owned the jeep USJ 5226 at all and he has denied that the
jeep was used for carrying electors for casting votes in his
favour on the day of poll. A reading of the evidence of R.W.
45 shows that his evidence is totally unreliable. We may
state at this stage that the respondent’s learned counsel
Mr. S.K. Sinha found it practically impossible to deny any
aspect of the appellant’s case in regard to this item of
corrupt practice except the part relating to the procurement
of the jeep USJ 5226 by the respondent from its owner Kabir
Ahmad. We find that this part of the appellants case
relating to this item of corrupt practice is clearly
established by the evidence referred to above.
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The next point for consideration is whether the
electors were carried free of cost to themselves by the jeep
USJ 5226 on the day of poll. On this aspect of the
appellants case there is direct evidence of the electors
P.Ws. 10, 11 and 42 besides that of some other evidence. The
appellant’s polling agent Jang Bahadur Mian, P.W.6, has
stated in his evidence that the jeep
23
USJ 5226 was being used for carrying electors to cast votes
in favour of the respondent, that the respondent met the
expenses of electors and that the jeep was seized by the
District Magistrate and the police on the day of poll. He
has denied the suggestion that the jeep USJ 5226 was not
used for carrying electors at all. In view of the other
evidence referred to above we are of the opinion that there
is no substance at all in this suggestion made P.W. 9 who
was an elector from Parsa village in the election held in
1977 has stated in his evidence that electors were carried
by Kabir Ahmad’s jeep on behalf of the respondent. The
suggestion made to him and denied by him is that he has
given false evidence. The electors P.Ws. 10, 11 and 42
belong to same Parsa Village. P.W. 10 has stated that Kabir
Ahmad has asked her to vote for the candidate whose symbol
consisted of cow and calf, i.e. the respondent, that she and
four other women electors were being carried in Kabir
Ahmad’s jeep driven by Kabir Ahmad’s nephew when the jeep
was seized and taken to the police station and that they did
not pay anything to the owner or the driver of the jeep for
their conveyance. To the same effect is the evidence of
P.Ws. 11 and 42 who also have stated clearly in their
evidence that they did not pay anything for their conveyance
to the owner or the owner or the driver of the jeep and that
they and the other women were carried in the jeep free of
cost to themselves. What has been elicited from P.W. 10 in
the cross-examination is that she does not know the names of
the other ladies who travelled with her in the jeep. P.W. 11
has denied the suggestion that she has been tutored to give
false evidence. P.W. 42 has denied the suggestion that she
was not an elector at all and that she has given false
evidence. P.W. 10 is a Hindu while PWs. 11, 42 and 67 are
Muslims. Yaqub Mian, PW 43, the husband of P.W. 42 also has
stated in his evidence that the electors were carried by the
jeep free of cost and that after learning that the jeep had
been taken to the police station he went to the police
station and found that Kabir Ahmad had already obtained the
release of the electors from the police. He too has denied
the suggestion that he has been tutored to give false
evidence and that he had worked for the appellant in that
election. We are of the opinion that there is no reason for
disbelieving the evidence of P.Ws. 10, 11, 42 and 43 that
the electors who travelled by the jeep which was intercepted
by the officials and taken to the police
24
station were being carried to the polling booth free of cost
to themselves for casting their votes in favour of the
respondent. This part of the appellant’s case is clearly
proved by the evidence of these four witnesses. We may state
that the respondent’s learned counsel has not disputed that
the evidence of these four witnesses proves that the
electors were being carried to the booth by the jeep USJ
5226 for casting their votes in favour of the respondent
free of cost to themselves. We find that the evidence
referred to above proves the second requirement of clause
(5) of s. 123 of the Act.
The third point which alone is seriously disputed by
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the learned counsel for the respondent is the question of
procuring Kabir Ahmed’s jeep USJ 5226 by the respondent for
carrying electors to vote for him. Since it has been found
that the jeep USJ 5226 belonging to the respondent’s close
friend Kabir Ahmed was actually used for the conveyance of
voters who were proceeding to cast votes in favour of the
respondent free of cost to themselves, the jeep could have
been put in use for the purpose either by Kabir Ahmed
himself or some other person without reference to the
respondent or his agent or it could have been procured by
the respondent. It could not have become available for
carrying electors who were proceeding to vote for the
respondent in any other manner. It is not the respondent’s
case that Kabir Ahmed or any other person put the jeep to
use for carrying electors to vote for him free of cost to
themselves without any reference whatsoever to him. The
details relating to the jeep USJ 5226 had been given in the
election petition. The respondent could have made necessary
enquiries from Kabir Ahmed, the owner of the jeep and
pleaded that the jeep was used for carrying electors for his
benefit without any reference to him voluntarily by its
owner Kabir Ahmed or by any other person if that were so.
The respondent has not come forward with any such plea.
Therefore, it is not possible to accept the submission of
the respondent’s learned counsel Mr. S.K. Sinha that in view
of the fact that it is the appellant’s case that Kabir Ahmed
is a very close friend of the respondent, Kabir Ahmed
himself could have put his jeep to use for carrying electors
for the benefit of the respondent without any request for
the use or the jeep on the part of
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the respondent. Therefore, the only other possibility is
that the respondent or someone else acting as his agent had
procured the jeep from Kabir Ahmed for the purpose of using
it for the benefit of the respondent in connection with the
election, namely, to carry electors for voting in his favour
free of cost to themselves. Having regard to this
probability we are of the opinion that even slight evidence
in this regard would be sufficient for proving this aspect
of the appellant’s case.
Regarding this aspect of the appellant’s, case on the
side of the respondent there is the interested evidence of
the respondent alone and he has stated that he had not asked
for any jeep or any other help from Kabir Ahmed in
connection with the election held in 1977 and that Kabir
Ahmed did not help him in any way in that election. The
evidence of the respondent is absolutely unreliable as
stated earlier having regard to the fact that it is clearly
established by the evidence that the jeep USJ 5226 belonging
to Kabir Ahmed was actually used for carrying electors who
were proceeding to vote in favour of the respondent free of
cost to themselves and that it was seized by the officials
when it was being driven by Kabir Ahmed’s nephew Tabrez
Ahmed, white the electors seated in the jeep. The evidence
on record clearly proves and it is not challenged by the
respondent’s learned counsel but is on the other hand
conceded by him that Kabir Ahmed had helped the respondent
by allowing his jeep USJ 5226 driven by his own nephew
Tabrez Ahmed for the free conveyance of electors who were
proceeding to the booth for voting in favour of the
respondent. The appellant’s polling agent P.W. 6 has stated
in his evidence that the respondent had borrowed Kabir
Ahmed’s jeep for the conveyance of electors from their
respective places to the booth had for their return to their
places from the booth. He has also stated that one of the
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two jeeps used for carrying electors to vote for the
respondent is USJ 5226. He has denied the suggestion that
the jeep USJ 5226 was not used at all for carrying electors
on the day of poll. Sahib Mian, P.W. 16 is a muslim barber
belonging to Haripur, which is also known as Sikta. He was
an elector who had cast his vote in the election held in
1977. He knows the respondent as well as Kabir Ahmed who
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owns a jeep and a mill at Parsa. He has deposed that when he
was given a share to Kabir Ahmed at his mill in Parsa, three
persons including the respondent went there and that the
respondent asked, Kabir Ahmed agreed to give it to him. He
has denied the suggestion that he has given false evidence.
P.W. 43 has stated in his evidence that the respondent and
Kabir Ahmed went to his village on day prior to the day of
the poll and asked him to vote for the respondent and told
him that a jeep had been borrowed from Kabir Ahmed to carry
voters and that accordingly a jeep driven by Tabrej Ahmed
came on the next day and carried female electors. No doubt,
P.W. 43 and his wife P.W. 42 are casual laborers P.W. 43 has
denied the suggestion that he had worked for the appellant
in that election and that he has been tutored to give false
evidence. There is no satisfactory reason for disbelieving
the evidence of these three witnesses P.Ws. 6, 16 and 43 of
whom P.W. 6 was no doubt the appellant’s polling agent. It
is not possible to reject the evidence of P.W. 6 merely
because he was admittedly the appellant’s polling agent,
especially having regard to the fact that his evidence is in
a way corroborated by the evidence of P.Ws. 16 and 43. The
respondent R.W. 43 has admitted in his evidence that Kabir
Ahmed and others own a mill and that Kabir Ahmed is a
partner in that mill business. As stated earlier, he has
admitted that Kabir Ahmed’s brother Nazir Ahmed was his
polling agent and that Tabrez Ahmed is the nephew of Kabir
Ahmed and Nazir Ahmed. The evidence of P.W. 75 shows that
Tabrej Ahmed did not even hold driving licence when the was
found to be driving the jeep USJ 5226 carrying electors to
the booth on the day of poll and that he was prosecuted
separately for that offence under the Motors Vehicles Act.
There is evidence of Daroga Mahato, P.W. 56, to show that
the respondent and Kabir Ahmed were good friends and that
Kabir Ahmad’s father Sharif Ahmad was sitting about 100
yards away from the booth on the day of poll. The learned
Trial Judge has found that Kabir Ahmad is a good friend of
the respondent and that he and his father had worked for the
respondent in the election held in 1977. Inspite of all
these facts the respondent has not called Kabir Ahmad as his
witness to deny that he had procured the jeep USJ 5116 from
Kabir Ahmed for the conveyance of his electors. He has not
examined even Tabrez Ahmad though he had been admittedly
named as one of his witnesses in
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the list of witnesses submitted on his behalf. He would say
that to the best of his knowledge Kabir Ahmad did not
possess any jeep and that he submitted the list of witnesses
by merely looking into the voters list without applying his
mind because he was pressurized by his lawyer to file a
tentative list of witnesses as soon as possible and was
informed by his lawyer that if he did not file his list of
witnesses he would lose his case on that ground alone. It is
not possible to accept this evidence of the respondent as
well having regard to the fact that it is stated without any
denial that he himself is a lawyer, it is improbable that he
would have been pressurize by his lawyer and that he filed
the list of witnesses merely by booking into the voters’
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list without applying his mind as to who should be cited as
his witness. In these circumstances, we are of the opinion
that it is not possible to place any reliance on the
interested evidence of the respondent R.W. 45 on the
question of procuring the jeep USJ 5226 from its owner Kabir
Ahmad. The evidence of P.W. 16 is most natural and reliable.
There is absolutely no reason whatsoever for rejecting his
evidence which could not be outrode evidence. We accept the
evidence of P.Ws. 6, 16 and 43 on this aspect of the
appellant’s case and find that the respondent had procured
the jeep USJ 5226 from his close friend Kabir Ahmad for the
free conveyance of his electors and that the jeep was,
thereafter used for that purpose on the day of poll and
seized by the officials P.Ws. 69, 73 and 81 when it was
being used for the conveyance of the electors P.Ws. 10,11,
42 and others including P.W. 67 free of cost to themselves.
The appellant has thus proved satisfactorily all the
three requirements of clause (5) of s. 123 of the Act. The
respondent has therefore, to be held guilty of corrupt
practice falling under that clause which is ordinarily
difficult to prove. We think that such corrupt practice
which is very largely resorted to in the elections could be
avoided by either locating polling booths within walking
distance of the electors or by having mobile polling
stations. We accordingly allow this appeal in regard to this
item of corrupt practical one with costs qualified Rs. 5,000
and hold that the res-
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pondent was guilty of corrupt practice under s. 123(5) of
the Act in regard to his election in 1977 as a member of the
Bihar Legislative Assembly from No. 5 Sikta Constituency in
West Champaran district.
N.V.K. Appeal allowed.
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