Appeal No 1621 of 1967
CI69 15 526 Appeal under section 116 A of the Representation of the People Act 1951 from the judgment and order dated August 4 7 8 1967 of the Mysore High Court in Election Petition No 2 of 1967
B section Patel section Paramila and R B Datar for the appellants
A K Sen section section Javali and M Yeerappa for respondent No 1 Shyamala Pappu and section P Nayar for respondent No 2
The Judgment of the Court was delivered by Bhargava J
This appeal under section 116A of the Representation ofthe People s Act 1951 hereinafter referred to as the Act has been filed by two appellants whose election petition for setting aside the election of respondent No 1 has been dismissed by the High Court of Mysore
Appellant No 1 was one of the candidates who filed his nomination for election to the Mysore Legislative Assembly from Shiggaon Constituency in the District of Dharwar
Appellant No 2 was a voter in that constituency
The notification fixing the time schedule for the elections was issued on the 13th January 1967 fixing 20th January 1967 as the last date for filing nominations 21st January 1967 as the date of scrutiny and 23rd January 1967 as the last date for withdrawal of candidature
According to the appellants only eight candidates filed their nominations within time up to 20th January 1967
One of them was appellant No  1
Respondent No 1 was not included amongst the seven other candidates and his nomination paper was subsequently introduced amongst the records of the Returning Officer on behalf of respondent No 1 with the aid of the Returning Officer
The Returning Officer is respondent No 2 in the appeal having been impleaded as respondent No 2 in the election petition also
It was further pleaded that even if any nomination paper was filed by respondent No 1 it was not accompanied by the relevant portion of the electoral roll in which the name of respondent No 1 appeared as a voter which was necessary because respondent No 1 was not a voter in this constituency but in a different constituency
No deposit as required by section 34 of the Act was made in time and further still respondent No 1 was not qualified to be chosen to fill the seat in the Legislature because he had not made and subscribed before the person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule to the Constitution as required by Article 173 a
It was alleged that despite all these defects
respondent No 1 was declared elected unopposed on the date of scrutiny on the incorrect ground that all other candidates had withdrawn their candidature
The appellants accepted the 527 genuineness and validity of the withdrawals by the seven other candidates leaving appellant No 1 as the sole contesting candidate
The further case was that in order to have respondent No 1 returned unopposed corrupt practices were committed to obtain a withdrawal form signed by appellant No 1 and it was filed illegally before the Returning Officer
The version relating to the commission of corrupt practices and to the filing of the withdrawal forms of appellant No 1 may now be stated
The appellants allege that the whole manoeuvring was done by one Patil Puttappa Member of Parliament who was a staunch supporter of respondent No 1 and by Mahalinga Shetty the son in law of respondent No 1
These two persons caught hold of two other persons Hotti Peerasabnavar Chamensab Ghudusab hereinafter referred to as P W 3 and Nadaf Mohamad Jafar Saheb hereinafter referred to as P W 4 and through them attempted to induce appellant No 1 to withdraw his nomination by promising to get him a long awaited huller licence and also to get him better patronage for his book selling business and for receiving other aid and support for his material prosperity
The appellants allege that this inducement was offered without disclosing that respondent No 1 s candidature was spurious
For this purpose on 20th January 1967 at about 830 pm while appellant No 1 was sitting at the shop of one Joshi a car arrived from which PW 4 got down came to appellant No 1 and told him that Patil Puttappa was calling him and requesting him to go with him
Appellant No 1 went with P W 4 towards the car in which Patil Puttappa was sitting
The latter asked appellant No 1 why he should further trouble himself with election matters when he had enough work in connection with the shop flour mill and his garden lands
He added that it will be to the advantage of appellant No 1 to withdraw his nomination promising that he would assist him in his trade assist him an agency for paper and would help him to secure a licence for his huller which he said he had heard he was trying to obtain without success
Appellant No 1 replied that he had filed his nomination with a view to contest the elections as his candidature had been sponsored by many people and he was not willing to withdraw his nomination
In spite of requests having been made two or three times appellant No 1 refused
At a later stage when he asked why be should withdraw his nomination Patil Puttappa told him that they desired uncontested return of respondent No 1 and that was the reason why they were making that request
Appellant No 1 then objected saying that respondent No 1 bad not filed his nomination whereupon Patil Puttappa stated that every necessary arrangement would be made to secure the uncontested return of respondent No 1
At the time of this talk Mahalinga Shetty was a so sitting in the car
When appellant No 1 continued to be hesitant Patil Puttappa asked him to go with him in the car and in this 52 8 suggestion P Ws 3 and 4 Supported him
Appellant No 1 first declined to do so because he was not prepared to accede to the request for Withdrawing his nomination but on Patil Puttappa s persistence he agreed to go along provided appellant No 2 also accompanied him
Appellant No 1 then went to the shop of appellant No 2 and thereafter both of them got into the car and were taken to the house of one Hanumanthagouda Ayyangouda Patil hereinafter referred to as R W 3
Patil Puttappa Mahalinga Shetty and the two appellants all went inside the house of R W 3 and sat there when Patil Puttappa once again made a request to appellant No 1 to withdraw his nomination
Appellant No 
1 refused while appellant No 2 also supported him by stating that appellant No 1 had full support of the Muslims of the locality and that there was every chance of his success so that there was no point in his withdrawing the nomination
Thereafter Patil Puttappa changed his tactics and told appellant No 1 that it would neither be good nor safe for him to continue to refuse his request and threatened him by asking whether he would like to go on with the election or prefer to live in safety
He added that he was a Member of Parliament and therefore he could do anything to appellant No 1He also produced a blank printed form and two blank sheets ofwhite paper and asked appellant No 1 to sign them giving thethreat that he will not be allowed to go unless he affixed his signatures to them
When appellant No 1 looked for support to appellant No 2 the latter was also similarly threatened whereupon he said that there was no escape and consequently appellant No 1 should sign the papers as desired by Patil Puttappa
Against his will and submitting to the pressure of Puttappa appellant No 1 signed the papers which were taken away by Puttappa who left asking R W 3 not to permit the two appellants to go away unless Puttappa himself told him  to let them go
The two appellants according to them were kept confined in the house of R W 3 throughout the night of 20th January and again throughout the day and night of 21st January 1967
They were only allowed to leave the house at about 4 30 am on 22nd January 1967 when a servant of R W 3 woke them up and told them that they could go away
The charge put forward on the basis of these facts was that an attempt was made to bribe appellant No 1 to withdraw his nomination by offering him help in obtaining the licence for the huller and in getting him agency for paper with the further charge that signatures on the withdrawal form were obtained by undue influence
It was further pleaded that that withdrawal form was filed before the Returning Officer by some one other than appellant No 1 or his election agent
The case put forward in the election petition thus was that the withdrawal from candidature of appellant No 1 was attempted to be obtained by offering inducements and by subjecting him to threats and by exercise of undue influence in 529 which assistance of the Returning Officer was procured
In the Commission of these corrupt practices there was consent of respondent No 1 so that the election of respondent No 1 was void
In order to prove the consent of respondent No 1 to the commission of the corrupt practices the case put forward was that subsequent to the alleged withdrawal of candidature by all the other candidates including appellant No 1 leaving respondent No 1 as the sole candidate respondent No 1 met P Ws 3 and 4 and gave them an assurance that the promises which had already been made to assist appellant No 1 will be honoured
The further version put forward on behalf of the appellants subsequent to their release from the house of R W 3 is that when they came out of the house towards the  Poona Bangalore Road they felt ashamed to show their faces in their own town of Shiggaon and consequently decided to go to Hubli for a few days
A truck happened to pass there
carrying some goods and since they had some money they took a lift in the truck and went to Hubli
They went to a canteen for refreshments and on the table they found an issue of a newspaper Samyukta Karnataka  in which appeared a news item stating that respondent No 1 had been returned uncontested at Shiggaon
Appellant No 1 felt surprised because be had not withdrawn his nomination He consulted appellant No 2 and the two of them after thinking over realised that advantage must have been taken against them of the papers which appellant No 1 had been made to sign at the house of R W 3
They therefore decided to see a lawyer and selected Sadashiv Shankarappa Settar hereinafter referred to as P W 2 because besides being a lawyer he was also a candidate in the election
They went to his house twice at about 9 am and again at about 12 30 or 100 pm but he was not at home
They waited on the second occasion until about 2 30 pm when he returned and after taking his meals he ultimately talked to them at 3 pm
As a result of the consultation P W 2 drafted a telegram which was despatched by the appellants at about 4 35 pm to the Returning Officer
In the telegram it was mentioned by appellant No 1 that he had read in a newspaper that he had withdrawn which was false as he had not withdrawn and the withdrawal form was not presented by him
He added that he did not know who had filled in the contents of the withdrawal form and who had presented it and consequently wanted the Returning Officer to treat it as invalid adding that he was still contesting the election from the Shiggaon constituency
The Returning Officer received it on the same evening ie on 22nd January 1967 but noted on it that since it was a telegram it could not be acted upon or considered
Thereafter appellant No 1 addressed a meeting late at night in a locality called Durgada Bailu  in Hubli where election propaganda was going on
After taking further steps next day the appellants continued to stay in 530 Hubli for 2 or 3 days and they ultimately returned to Shiggaon on the 25th January 1967
On these pleadings the case put forward was that appellant No 1 had never with drawn his candidature and that since respondent No 1 had never filed his nomination paper and all other candidates had withdrawn appellant No 1 was entitled to be declared elected unopposed
In the election petition therefore in addition to the relief for declaration of the election of respondent No 1 as void appellant No 1 also claimed a declaration that he was the duly elected candidate from the Shiggaon constituency
The point that was put in the fore front by Mr B section Patil learned counsel for the appellants and was argued first
relates to the challenge of the validity of the election of respondent No 1 on the ground that he was disqualified for failure to make or subscribe an oath or affirmation in accordance with the provisions of article 173 a of the Constitution
In the election petition it was pleaded that the oath or affirmation should have preceded the filing of the nomination paper so that even if any oath or affirmation was made subsequent to the filing of the nomination paper it would be invalid and would not avoid the disqualification
On behalf of respondent No 1 the reply in the written statement was that respondent No 1 did in fact make an affirmation before the Returning Officer of this very constituency of Shiggaon on the date of the scrutiny viz 21st January 1967 before the Returning Officer scrutinised the nomination paper of respondent No 1
Evidence was also led to show that on 21st January 1967 respondent No 1 did arrive at the office of the Returning Officer just before the scrutiny of his nomination paper was being taken up and he immediately proceeded to make the affirmation
Prior to his arrival his nomination paper for another constituency Kundagaol was rejected by the Returning Officer on the ground that no affirmation had been made and respondent No 1 was disqualified under article 173 a
It may be mentioned that this Returning Officer was functioning as such for three different constituencies Shiggaon Kundagol andShirahatti though his Headquarters were temporarily located atShiggaon
Since the affirmation was made before the ReturningOfficer by respondent No 1 prior to the scrutiny of his nomination paper for Shiggaon Constituency the Retuning Officer held that respondent No 1 was not disqualified under article 173a and declared his nomination as valid
These facts were accepted by the High Court in this case and the High Court upheld the view of the Returning Officer that the affirmation made prior to the scrutiny of his own nomination paper by respondent No 1 was full compliance with the requirements of Article 173a
The High Court repelled the argument advanced on behalf of the appellants that the affirmation should have been made before the 531 filing of the nomination paper
In the course of arguments on this point before us however neither party stuck to the position that was taken up by it before the High Court
On behalf of the appellants the alternative legal position relied upon was that in any case the affirmation should have been made before the date of scrutiny so that in the present case it should have been latest by the midnight between 20th and 21st January 1967
This plea for challenging the validity of the election of respondent No 1 was not taken either in the pleadings or even at any later stage in the High Court
In fact it was taken here for the first time on the basis of a decision of this Court in Pashupati Nath Singh vs Harihar Prasad Singh1 In that case this Court has clearly held that the effect of the provision contained in section 3 6 2 a of the Act is that the oath or affirmation must be before the date fixed for scrutiny so that the candidate possesses the qualification under article 173a of the Constitution on the whole of the day on which the scrutiny of nomination has to take place
Even though this ground was not raised in the High Court we consider that we cannotnow ignore it and we have to hold that the High Court was incorrect in rejecting the plea of the appellants on the ground that a valid affirmation had been made by respondent No 1 on 21st January 1967 just before the scrutiny of his nomination paper
In view of this position taken up on behalf of the appellants Mr A K Sen learned counsel for respondent No 1 put forward the alternative plea that respondent No 1 was not disqualified under article 173a of the Constitution because he had validly made affirmations at two other places on the 19th and 20th January 1967
For this purpose reliance was placed on the statements made by respondent No 1 when he was cross examined on behalf of the appellants
Respondent No 1 at one stage stated that he filed his nomination at Bagalkot on the 19th January 1967 between 2 and 3 00 pm in the afternoon
On further cross examination came his statement that at Bagalkot he subscribed to the affirmation on the very day on which he presented his nomination paper and he also confirmed that he was in a position to affirm on personal knowledge that he had filed his nomination at Bagalkot on the 19th January 1967
Similarly he also stated that he filed his nomination for the Hoovinahadagali Constituency at Hospet and though he could not give the exact date on which he filed the nomination paper he remembered that he subscribed to the affirmation there on the night of 20th January 1967
It was urged by Mr Sen that having made affirmation once either at Bagalkot or at Hospet in accordance with the requirements of law respondent No 1 became qualified under article 173 a of the Constitution to be a candidate for the Legisla 1AIR 532 tive Assembly and therefore it was immaterial that he did not again make an affirmation in time before the Returning Officer of Shiggaon Constituency
This claim was resisted by
Mr Patil on two grounds
The first point urged was that this was a new case being set up on behalf of respondent No 1 for the first time in this Court and it should not therefore be taken into account
The second was that in any case
the affirmation at Bagalkot or Hospet could not enure to the benefit of respondent No 1 for holding him to be qualified under article 173 a of the Constitution to stand as a candidate from Shiggaon Constituency
On the first Point we consider that in view of the position noticed by us earlier respondent No 1 is fully justified on relying on this alternative case in this Court even though it was not put forward during the trial in the High Court
While the case was being tried in the High Court the plea put forward by the appellants themselves was different from the plea on the basis of which the affirmation made by respondent No 1 at Shiggaon on 21st January 1967 is being held to be insufficient for compliance with the requirements of article 173a
In the High Court that affirmation was challenged solely on the ground that it should have been made prior to the filing of the nomination paper and that ground of course had no force because the form of affirmation given in the Third Schedule to the Constitution itself makes it manifest that the affirmation must be made after the nomination paper has been filed
Now that we have permitted the appellants to raise a new ground and rely on the decision given by this Court in Pashupati Nath Singh s case1 there is no justification for debarring respondent No 1 from putting forward the alternative case on the basis of the affirmations made at Bagalkot and Hospet
The fact of affirmations having been made by respondent No 1 at those two places before the Returning Officers of those Constituencies was elicited by the counsel for the appellants themselves in the cross examination
The facts having come on record cannot be ignored so that reliance has rightly been placed on those facts on behalf of respondent No 1
On the second point the argument has proceeded primarily on the language of the notification issued by the Election Commission in pursuance of clause a of article 173 of the Constitution
Article 173a is as follows 173
A person shall not be qualified to be chosen to fill a seat
in the Legislature of a State unless he ais a citizen of India and makes and sub cribes before some person authorized in that behalf by the Election Commission an oath or affirmation accord 1  533 ing to the form set out for the purpose in the Third Schedule
 The notification issued by the Election Commission which is No 3130652 dated 2nd January 1965 is to the following effect  In pursuance of clause a of Article 173 of the Constitution and in supersession of its notification No 313063 2 dated the 15th November 1963 the Election Commission hereby directs a that candidate for election to the Legislature of a State by an assembly I constituency or a council constituency shall make and subscribe the oath or affirmation according to the form set out for the purpose in the Third Schedule to the Constitution before the Returning Officer or an Assistant Returning Officer for that constituency and bthat a candidate for election to fill a seat or seats in the Legislative Council of a State by the members of the Legislative Assembly of the State shall make and subscribe the said oath or affirmation before the Returning Officer or the Assistant Returning Officer for that election Provided that if any such candidate is at the time confined in a prison or under preventive detention he may make and subscribe the said oath or affirmation before the Superintendent of the prison or Commandant of them detention camp in which he is so confined or under such detention
 The controversy between the parties has arisen because of the language used by the Election Commission in this notification
The notification requires that a candidate for election to a Legislature of a State by an Assembly Constituency or a Council Constituency must make and subscribe the oath or affirmation before the Returning Officer or an Assistant Returning Officer for that Constituency
Mr Sen urged that this notification can be interpreted in two ways
The first interpretation sought to be put on it was that according to this notification if a person is a candidate for election to the Legislature of a State by an Assembly Constituency all that it requires is that the affirmation must be made before the Returning Officer of an Assembly Constituency while if he is seeking election to a Council Constituency then the affirmation must be made before the Returning Officer of a Council Constituency
In putting this interpretation learned counsel wants us to hold that the expression Returning Officer for that Constituency refers to any Returning Officer of a Legislative Assembly or a Legislative Council as the 1 case may be
We do not think that this interpretation can be accepted by us
534 In using the expression that Constituency it is clear that the intention of the Election Commission was that the affirmation must be made before the Returning Officer of that particular constituency from which the candidate is seeking election to the Legislature of the State whether it be an Assembly Constituency or a Council Constituency
This was the second interpretation which Mr Sen himself accepted as a possible one
This is also the interpretation which was sought to be put on this notification by Mr B section Patil on behalf of the appellants
We think that this interpretation is correct so that in order to get over the disqualification laid down in article 173 a a candidate must make an affirmation before the Returning Officer or an Assistant Returning Officer of that particular constituency from which he is a candidate
Mr Sen s case is that even on this interpretation respondent NO 1 had qualified to be a candidate because when he made the affirmation before the Returning Officer at Bagalkot he was already a candidate nominated for election from that constituency
Similarly when he made the affirmation before the Returning Officer at Hospet he had already been nominated as a candidate for the Hoovinahadagali Constituency
The argument was that once respondent No 1 had made an affirmation as required by article 173a of the Constitution before one of the persons authorised by the Election Commission he had fully complied with the requirements of article 173a and thereupon he became qualified to be a candidate for election to the Mysore Legislative Assembly
There was no requirement that that qualification  must be acquired separately in respect of each constituency from which respondent No 1 was seeking election
We are of the view that this submis sion must be accepted
The purpose of article 173a is to ensure that any person who wants to be a member of a Legislature of a State must bear true faith and allegiance to the Constitution of India as by law established and undertake to uphold the sovereignty and integrity of India and to ensure this he must make an oath or affirmation
Once such an oath or affirmation is made before a competent authority in respect of one constituency he becomes bound by that oath or affirmation even if he gets elected to the Legislature from a different constituency so that there is no necessity that he must make oath or affirmation repeatedly on his being nominated from more than one con stituency
The language of article 173a also makes this very clear because all that it requires is one oath or affirmation in accordance with the form set out in the Third Schedule to the Constitution so as to remove the disqualification from being a candidate for election to the Legislature of the State
The Article does not mention that the making of oath or affirmation is to be preliminary to the validity
of candidature in each constituency and 535 recognises the fact that once the necessary qualification is obtained that qualification removes the bar laid down by that Article
In these circumstances this ground of disqualification
for challenging the validity of the election of respondent No 1 fails and must be rejected
We may next take up the question of the charges of corrupt practices alleged to have been committed with the consent of respondent No 1 relating to bribery undue influence and obtaining of assistance from a Government servant viz the Returning Officer
In support of these charges only six witnesses were examined on behalf of the appellants
Two of them P W 5 and P W 6 are appellant No 2 and appellant No 1 respectively
Two other witnesses are Chaman Sab P W 3 and Mohammad Jaffar Saheb P W 4 and the fifth witness is Sadashiv Shankarappa Settar P W 2
We have already referred to all these witnesses when giving the version put forward on behalf of the appellants
The only other witness who remains to be mentioned is Hanumanthasa Pawar P W 1 a photographer who came forward to state that he took a photograph in the office of the Returning Officer at about 5 pm on the 21st January 1967 when respondent No 1 and the Returning Officer were sitting close to each other after the scrutiny of the nomination papers
He was examined primarily to show the close connection between respondent No 1 and the Returning Officer respondent No 2
As against these witnesses examined on behalf of the appellants respondent No 1 examined five witnesses
R W 1 is respondent No 1 himself and R W 5 is Hanumanthappa Shivabasappa Hosamani respondent No 2 who was the Returning Officer
A third witness for the respondents is Gadigeppagouda Channaba sanagouda Patil R W 2 who wag first put forward as the official candidate by the Congress from this Shiggaon Constituency but who himself took active part in persuading respondent No 1 to PO be a candidate on behalf of the Congress from this Constituency
The next witness examined is Hanumanthagouda Ayyangouda Patil R W 3 who was the proposer of respondent No 1 in the nomination paper filed in this Constituency and in whose house the appellants alleged they were kept confined from the night of 20th January up to the early hours of the morning of 22nd January 1967
The fifth witness is Gurupadappa Basappa Mahalinga Shetty R W 4 the son in law of respondent No 1
The High Court in assessing the value of the evidence given on behalf of the two parties has expressed the opinion that all the witnesses examined by either side are persons interested in the two rival candidates except the Returning Officer R W 5 in whose case the High Court has not accepted the charge of partiality brought by the appellants in the election petition
The High Court therefore preferred to rely on the evidence of RW 5 and 536 attached very little value to the evidence
of the other witnesses examined by the two sides
We are inclined to agree with the High Court with regard to the assessment of the value of the evidence of the witnesses examined by both sides and even with regard to the evidence of the Returning Officer R W 5 we have the feeling that his evidence must also be accepted with great caution because it cannot be said that he was totally disinterested and independent
So far as the witnesses examined on behalf of the appellants are concerned the two appellants themselves are the election petitioners and very clearly their testimony has only the value that can be attached to evidence of contesting parties themselves who are bound to speak in support of their case
Mr Patil particularly relied on the evidence of P Ws 3 and 4 who according to the part played by them envisaged in the version put forward on behalf of the appellants were in a position to state to facts showing that there was offer of bribery to appellant No 1 and undue influence was also exercised against them
These witnesses are also admittedly highly interested
Appellant No 1 in his statement has come forward with the plea that P W 4 Mohammad Jaffar was one of the persons who was sponsoring his candidature for this election so that there was a close bond between them
In fact the appellants  further case itself was that appellant No 1 was approached by Patil Puttappa through P W 4 because of the close relations between them
P W 3 also according to appellant No 1 was brought in by Patil Puttappa because he was a great friend of P W 4 and was expected to influence him in his attempts to persuade appellant No 1 to withdraw
Thus in putting forward their own case the appellants have shown that PWs 3 and 4 are not independent persons
P W 2 was the lawyer engaged by the appellants for the purpose of putting forward their case that the withdrawal of his candidature by appellant No 1 was not genuine and had been manoeuvred by persons acting on behalf of respondent No 1
Being their lawyerhe cannot be held to be beyond the influence of the appellants
So far as PW 1 the Photographer is concerned the High Court has found that there is material in his own evidence indicating that he is not a very reliable person and we find no reason at all to differ from the view taken by the High Court on this point
Similarly amongst the witnesses examined on behalf of respondent No 1 R W I is respondent No 1 himself and consequently
the view we have expressed with regard to appellants 1 and 2 will equally apply to him
R W 2 was the official Congress candidate
He withdrew his candidature and took an active part in persuading respondent No 1 to be a candidate in his place
He was therefore clearly a person interested in the candidature of respondent No 1
R W 3 was the proposer 53 7 who nominated respondent No 1 as the candidate in this Shiggaon Constituency and this manifests his interest in the candidature of respondent No 1
RW 4 is the son in law of respondent No 1 who also took active part in arranging that the official candidate RW 2 withdrew from candidature and respondent No 1 was made the candidate on behalf of the Congress in this Constituency in his place
None of these four witnesses can
therefore be said to be independent
So far as the Returning Officer R W 5 is concerned he was a Government servant and was acting in his official capacity as Returning Officer in this Constituency
In assessing the value of his evidence however one fact prominently brought out is
that he was in the service of the Government of the State of Mysore while respondent No 1 was the Chief Minister of the State
R W  5 himself admitted that earlier when he was posted at Bagalkot as Assistant Commissioner in July 1963 he had collected gold for the National Defence Fund and on the occasion of a visit Smt
Indira Gandhi and the Chief Minister respondent No 1 were weighed against gold collected for the purpose of National Defence Fund
The weighment of the Chief Minister against gold indicates the attempt made by this witness to please the Chief Minister
Then there seems to be Some force the suggestion made that on the day of scrutiny them Returning Officer delayed the scrutiny of the nomination paper of respondent No 1 for the Shiggaon Constituency probably at the suggestion of the workers of respondent No 1 in order to give as much time as possible to respondent No 1 to come and make an affirmation as required by article 173a under the impression that such an affirmation made even on that day would  be valid and would remove the disqualification under that Article
On that day scrutiny of nomination papers of all the three Con stituencies for which R W 5 was the Returning Officer was top take place
The scrutiny was begun not at the time fixed for it but at a later hour and even in that scrutiny the nomination papers for Shiggaon Constituency were taken up last of all
It is true that he rejected the nomination paper of respondent No 1 for the Kundago Constituency because respondent No 1 did not arrive be fore the scrutiny of his nomination paper for that Constituency in Order to make the affirmation but even that does not show that the Returning Officer was not trying to assist respondent No 1 as far as possible
Then there is the circumstance that respondent No 1 and this witness were photographed  together by P W 1
of course the photographs produced by P W I are not of a very reliable character because the negatives or the original sized Photographs have not been Produced by the Photographer
The suggestion by Mr Sen on behalf of respondent No 1 was that the photographs were actually taken of a numb of people who happened to be in the office of the Return 538 ing Officer by this photographer but for the purpose of urging the argument of close contact between R W 5 and respondent No 1 only a small part of that photograph was enlarged and has been put forward as Exhibit in this case
The part of the photograph brought before the Court is confined to that in which respondent No 1 and the Returning Officer appeared while others on both sides of them were excluded
The photographer in order to justify his evidence that his photographs included only these two persons had per force to give an explanation for non production  of the negatives and the original sized positives which might have been prepared by him because the negatives and those prints would have clearly shown other persons also in the photographs
Despite these facts we still think that the photographs do givesome indication that the Returning Officer was showing special consideration to respondent No 1 because he was the Chief Minister and at least gave him a seat close to himself inside his office
In all these circumstances it is not possible to hold that the Returning Officer is a totally independent witness but in our opinion these few circumstances not justify our rejecting the evidence of this witness in toto
The evide nce will have to be scrutinised carefully and must be accepted at least to the extent to which it may be supported by circumstantial evidence
In connection with the examination of witnesses great emphasis was laid by Mr Patil on the fact that Patil Puttappa who according to the appellants was the chief architect in manoeuvring the unopposed return of respondent No 1 from the Shiggaon Constituency was not examined as a witness
It appears that the appellants themselves first summoned Patil Puttappa to produce certain documents for the purpose of show  ing that he was under great obligation to respondent No 1 making it likely that he might have resorted to all kinds of practices in order to ensure uncontested return of respondent No 1 to the Legislature
Patil Puttappa produced a statement showing the income that he received from advertisements given on behalf of the State Government during the period from 1962 63 to 1966 67
Patil Puttappa was running two papers Viswavani  and Prapancha  during this period
For the newspaper Viswavani  the total advertisement charges paid to him by the Government in the first year 1962 63 were in the region of Rs 27000
The amount progressively increased in the next four years and in the last year 1966 67 it rose to about Rs 8 1000
It was urged that this shows that he  had been receiving patronage from the Government of Mysore of which during this period respondent  No 1 was the Chief Minister
Further  he was elected as a Member of the Rajya Sabha and was an active worker of the Congress
The argument was that 539 in these circumstances when the charge in the
election petition was that Patil Puttappa was the main instrument in the commission of corrupt practices he should have been examined as a witness
The appellants themselves no doubt summoned him to produce the statement of accounts as mentioned above but they could not examine him as a witness because he would have
been clearly hostile and by examining him as their witness the appellants would have conceded to the counsel for respondent No 1 the advantage of being legally entitled to cross examine him
Respondent No 1 also cited Patil Puttappa as one of the witnesses in the list of witnesses filed but later gave him up and did not examine him as a witness
After this failure on the part of respondent No 1 to examine him the appellants moved an application to the Court to take his evidence under 016 r 14 of the Code of Civil Procedure as a Court witness
This application was not accepted by the High Court and after a long discussion as to the motives which had impelled the appellants to move this application the High Court rejected it
Mr Patil in this connection relied on a decision of the Assam High Court in Nani Gopal Swami vs Abdul Hamid Choudhury and Another1 to urge that though the burden of proof in the present case in respect of the corrupt practices was initially on the appellants respondent No 1 was not altogether absolved from his responsibility to assist the Court by producing the best evidence available after the appellants had tendered their own evidence
It was urged that on the failure of respondent No 1 to examine Patil Puttappa an adverse inference should be drawn against him
Reference was also made to a recent decision of this Court in Dr M Chenna Reddy vs V Ramachandra Rao and Another2 where the non examination of the best person who could have come and given evidence in favour of the candidate who was charged with corrupt practice was taken as one of the circumstances justifying the belief of witnesses examined to prove the corrupt practice on behalf of the opposite party
This inference was however drawn by this Court on the basis that the Court first found the testimony of witnesses examined against the successful candidate as acceptable so that the  initial burden which lay on the election petitioner was discharged to the satisfaction of the Court
The third case to which reference was made is also a recent decision of this Court in R M Seshadri vs G Vasantha Pai3 where this Court dealt with the question of the exercise of power by the Court trying the election petition to examine a witness as court witness
It was held that the Court has the power to summon a court witness if it thinks that the ends of justice require or that the case before it needs that kind of evidence
It was explained that the policy of election law 1 AIR 1959 Assam 200
3 2 1969 SCR 540 to be that for the establishment of purity of elections all allegations of malpractice including corrupt practices at elections should be thoroughlyinvestigated
On these principles the Court held that the trial Judge of the High Court had Properly exercised the power of summoning and examining some persons as court witnesses
On the basis of these cases it was argued that it was the duty of respondent No 1 to examine Patil Puttappa in this case because he was in the best Position to deny the allegations which had been made in respect of the corrupt practices by the appellants and that in any case the Court should have summoned him as a witness when an application was presented in that behalf by the appellants invoking the power of the Court under O16 r 44 CPC
It appears that in this case respondent No 1 considered it unnecessary to produce Patil Puttappa as a witness because of the view that the evidence which had been given on behalf of the appellants to prove the corrupt practices was of a very unsatisfactory nature and that even circumstantial evidence  was available to show that the version put forward could not be true
The High Court also considered it unnecessary to summon Patil Puttappa as a court witness for similar reasons
In this connection we may cite further remarks made by this Court in the case of R M Seshadri1 to the following effect Although we would say that the trial should be at arms length and the Court should not really enter into the dispute as a third party but it is not to be understood that the Court never has the power to summon a witness or to call for a document which would throw light upon the matter particularly of corrupt practice which is alleged and is being sought to be proved
If the Court was satisfied that a corrupt practice had in fact been perpetrated may be by
one side or the other it was absolutely necessary to find out who was the author of that corrupt practice
 It was on this principle that this Court upheld the course adopted by the High Court by summoning court witnesses in order to satisfy itself that the corrupt practice had in fact been committed
In the present case as we shall presently show there was plenty of circumstantial evidence indicating that the version put forward on behalf of the appellants could not be true and the High Court could justifiably take the view that it had not been proved to its satisfaction so that there was no compelling reason for the High Court to examine Patil Puttappa as a court 1  541 witness or even to draw any inference against respondent No 1 for his failure to examine Patil Puttappa as a witness
We proceed to indicate our reasons for the view that the version relating to the commission of corrupt practices has been rightly rejected by the High Court
The story that has been put forward on behalf of die
appellants has already been described by us in detail when giving the facts of the case
The appellants alleged that they were taken to the house of RW 3 in the early hours of the night of 20th January 1967 and were kept in confinement till the morning of 22nd January 1967
According to the appellants though they were kept at the house of R W 3 and were told that they would not be allowed to leave there was actually no use of force at all against them
In fact the version given by the two appellants of their confinement in the house of R W 3 is that they remained there throughout the night of 20th January and throughout the day hours of 21st January 1967 without making any attempt to leave the house of R W 3
They expect the Court to believe that no such  attempt was made by them simply because at one stage Patil Puttappa had said  that appellant No 1 had the option of either remaining a candidate for election or of continuing to live
Apart from this verbal threat there is no suggestion that any act was committed by any one there which could put the appellants in fear of their life or of being hurt if they tried to leave the house of R W 3
According to their version they quietly stayed in the house without even making a presence of leaving it simple because Patil Puttappa when going away had told R W 3 not to let them go until he gave permission
The first attempt according to them was made some time late in the night of 21 st January and that attempt was foiled because of the barking of a dog
Even when relating this part of their story
 the appellants did not say that the dog was ferocious or tried to bite them or that any of the servants woke up and came to stop them from going away
In fact the initial story that like simpletons these two persons one of whom was a candidate for membership of a legislature entered the car of Patil Puttappa and quietly went with him to the residence of RW 3 appears to be highly improbable
Their conduct after their release from the alleged confinement also seems to be highly improbable
According to them they did not go back to their village because they were feeling ashamed
Why there should have been any feeling of shame is incomprehensible
If they were kept in confinement under threats of injury there would have been no shame in going home and disclosing this circumstance
In fact according to appellant No 1 his candidature had been sponsored by quite a large number of influential persons of Shiggaon and consequently it would have been quite natural for him to go to Shiggaon as soon as he was 8SupCI69 16 542 released from confinement and seek their assistance against whatever course might have been adopted in order to defeat his candidature
Having been absent from their houses from the night of 20th January until the early hours of 22nd January it would have been natural for them to go back to their homes and relieve the anxiety of the members of their families who must have been wondering where they had gone away
According to the appellants they did not return to their village until the 24th of January and sent no message to their houses that they were safe And were in Hubli
The whole conduct appears to be very improbable
Apart from this there are admissions made by the witnesses of the appellants themselves and some documentary evidence which show that the appellants could not have been in confinement in the house of R W 3 from the night of 20th January up to the morning of 22nd January 1967
P W 3 in his examination in chief itself when relating the incident of 21st January 1967 stated that on that day respondent No 1 sent for him and P W 4 and told them that whatever promises had been made by Patil Puttappa would be fulfilled and they could give that information to appellant No 1
Thereafter they went to the house of appellant No 1 and passed on this information to him
Thus P W 3 admitted that appellant No 1 was at  his house on the evening of 21st January which completely negatives the case that he and appellant to 2 were both in confinement at the house of R W 3
When this statement was made by this witness counsel for the appellants intervened and put a question whether appellant No 1 was at home and what happened after they went to his house
When answering these questions the witness realised that he had given a statement negativing the appellants  case and therefore he changed his statement and said that the mother of appellant No 1 told him that appellant No 1 was not in the house
We are inclined to agree with the High Court that this witness in fact gave away the truth inadvertently disproving the appellants  case when he stated that he and P W 4 had gone to the house of appellant No 1 on the 21st January 1967 and informed him of what respondent No 1 had told them
In this connection there is the circumstance that another witness examined by the appellants themselves also supports the version that appellant No 1 must have been at his house on the evening of 21st January
That witness is P W 1 the photographer
He was asked in his cross examination as to when appellant No 1 had taken the photos from him and his answer was that it was on the same day when the photograph was taken
He had earlier stated that the photograph was taken in the office of the Returning Officer at about 5 pm on 21st January 1967
543 This answer given by this witness also belied the case put forward on behalf of the appellants about their confinement in the house of R W 3
At the stage of this answer given by the witness the counsel for the appellants had also intervened and suggested that the witness had been pointing to the Returning Officer who was sitting in Court and not to appellant No1
The Court thereupon repeated the question to the witness and the note by the Court shows that the witness was quite clear that the copies which were retained by him in his Studio were taken by appellant No 1 whom he identified by sight in Court
It appears that he also got a hint at this stage and therefore added that he was not sure of the exact date on which appellant No 1 took the copies from him
This attempt of the witness to get out of the admission made by him contradicting the case put forward by the appellants has rightly been disregarded by the High Court and the conclusion follows that P W 1 has also given evidence which shows the falsity of the story of confinement put forward by the appellants
Another circumstance that points in the same direction is that the appellants if they were in fact kept in illegal confinement made no attempt at all to file any complaints either with the Police or before a Magistrate so as to seek redress against this criminal offence committed against them
Even on 22nd January 1967 when appellant No 1 addressed the meeting at Durgada Bailu  in Hubli he did not tell the people about his illegal confinement and the corrupt practice committed by the workers of respondent No 1 in order to obtain his withdrawal
The most telling circumstance however which leaves no room for doubt that the version of the appellants about their confinement in the house of R W 3 until the early hours of 22nd January 1967 is false is that an item appeared in the newspaper Vishal Karnataka  in the morning issue of 22nd January 1967 saying that one only out of the five candidates who had withdrawn their candidature had been made to withdraw his nomination paper by use of force and great threat and it was learnt that as against this a notice had been caused to be given through a Pleader
Appellant No 1 himself admitted
that this newspaper is a daily morning paper so that this particular issue came out on the morning of 22nd January 1967
According to the version given by appellants 1 and 2 they were kept in confinement at the residence of R W 3 until released at about 4 30 am on 22nd January whereafter they proceeded to Hubli and for the first time gave their version of confinement to their lawyer P W 2 at about 3 pm
According to them they did not mention their confinement and use of force or of threats against them to anyone else until they were able to consult P W 2 At about 3 pm
If this evidence was true it is 544 incomprehensible how the news of obtaining withdrawal of a nomination paper by use of force and great threat could appear in the morning issue of 22nd January 1967 which came out several hours earlier
Mr Patil learned counsel for the appellants tried to explain away this news by comparing it with another item of news appearing in an issue of the newspaper Prajavani  published from Bangalore on the morning of 22nd January 1967
The news item in it purports to be dated 20th January 1967 and is to the effect that the Chief Minister is about to bring about the first and the most important success to the Mysore Pradesh Congress by his uncontested election from the Shiggaon Assembly Constituency
It mentions that as the other contestants had withdrawn their candidature only the candidature of respondent No 1 was remaining in Shiggaon Constituency and he was going to be declared elected uncontested on the 23rd January 1967 which was the last date fixed for withdrawal of candidature
From the fact that this news item was published as an item of 20th January it was argued that there must have been a pre arranged plan to manoeuvre the withdrawal of all candidates from the Shiggaon Constituency for the purpose of achieving uncontested return of respondent No 1 because there could not be and there were no withdrawals on 20th January which was the date for filing nominations and the evidence also proves clearly that the withdrawals in fact took place on 21st January 1967 which was the date of scrutiny
It however appears to us that in this newspaper the date January 20 as the date of the news item is incorrect
If in Bangalore this news item had been received by the newspaper on 20th January it would surely have been published in the issue of 21st January
The very fact that it was published in the issue of 22nd January shows that this news must have been received by the newspaper on 21st January and the date January 20 printed in it is an error in printing
No newspaper would unnecessarily delay such a news item by full 24 hours
On the 21st January according to the evidence given by the Returning Officer and other witnesses examined on behalf of respondent No 1 all the withdrawals had taken place by about 3 to 4 pm of course thereafter this news about withdrawals could have been flashed to Bangalore and received there later in the evening of 21st January so that it could be published in the morning issue of Prajavani  of 22nd January 1967
The publication of this news is therefore not at all comparable with the publication in Vishal Karnataka to which we referred earlier
It is significant that the newspaper Vishal Karnataka which is published at Hubli was interested in appellant No 1
This is clear from the circumstance that after printing this news item about use of force and great threat to induce a candidate to withdraw his nomination this very newspaper published a number of 54 5 appeals to raise funds in order to support the case of appellant No 1 for challenging the uncontested election of respondent No 1
The publication of these appeals in subsequent issues of Vishal Karnataka has been admitted by appellant No 1
The subscriptions were to be sent to Vishal Karnataka Office
In these circumstances an inference clearly follows that in fact appellants No 1 and 2 were not kept in confinement at the residence of R W 3 and they deliberately made out this story to challenge the uncontested election of respondent No 1 some time on the evening of 21st January 1967
Having decided that the election should be challenged on such a ground they gave out this news item to Vishal Karnataka but they did not realise that the publication of this news item would itself betray them and make it clear that they could not have been kept in confinement up to the early hours of 22nd January 1967 which was the version they decided to put forward against respondent No 1
Mr Patil learned counsel for the appellants also tried to suggest that this news item might refer to the withdrawal of candidature of some candidate other than appellant No 1 but we can see no basis for such a suggestion
No witness has made any statement indicating that any candidate other than appellant No 1 had the grievance that the withdrawal of his nomination had been obtained by use of force or threats
None of the witnesses of the appellants including PW 2 SS Sattar their legal adviser have stated that any other candidate was made to withdraw in that manner
On the other hand in the election petition itself the appellants have come forward with the case that the withdrawals of all other candidates except his own were voluntary and valid
This plea was put forward in order to claim the seat for appellant No 1 himself on the election of respondent No 1 being declared void but this pleading clearly negatives any possible suggestion that there was some other candidate who was also subjected to threats and use of force to induce him to withdraw his candidature
Obviously this news item could refer to no one else except appellant No 1 and it could only appear in the morning issue of 22nd January because the appellants were not under confinement on die 21st January 1967
This piece of evidence thus leaves no room for doubt that the entire story of use of inducements threats and illegal confinement has been concocted by the appellant so that the witnesses examined in support of it cannot be at all relied upon
In these circumstances we hold as we have indicated earlier that the High Court was justified in not insisting on the production of Patil Puttappa as a witness on behalf of respondent No 1 or in not examining him as a court witness
The version put forward by the appellants was I controverted in his evidence by R W 4 Mahalinga Shetty who according to the appellants was in the company of Patil Puttappa at both stages 546 when bribe was offered to appellant No 1 and later when he was induced by threats and illegal confinement to withdraw his candidature
Further R W 3 was examined to controvert the version of the incident alleged to have taken place at his residence during the illegal confinement of the appellants
Such evidence being available and the version put forward on behalf of the appellants having been shown to be false by various circumstances indicated by us above there could be no need for the Court to take the step of examining Patil Puttappa as a court witness
The High Court was fully justified in holding that the charges of corrupt practices of undue influence and bribery had not been proved against respondent No 1
The additional charge of obtaining assistance from a Govern ment servant viz the Returning Officer respondent No 2 is also linked up with the same version of the appellants which we have above held to be false
Respondent No 2 was said to have assisted in illegally obtaining the withdrawal of the candidature of appellant No 1 by being a party to a faked withdrawal form being accepted by him
The case was that the withdrawal form of appellant No 1 was not presented either by appellant No 1 himself or by his election agent having been obtained in the circumstances indicated by the appellants in their version
Respondent No 2 has however clearly stated that this withdrawal form of appellant No 1 was presented by appellant No 1 himself and we find no reason to disbelieve his evidence in view of our finding about the falsity of the version of the appellant
It is also significant that no witness was
sought to be examined on behalf of the appellants to prove who in fact presented the withdrawal form on his behalf if appellant No 1 did not do so
In view of the circumstantial evidence being in favour of the version put forward by the respondents we consider that the High Court was right in accepting the evidence of respondent No 2 on this point and rejecting the plea of the appellants that the withdrawal form of appellant No 1 had been wrongly manoeuvred and had not been presented by him
Lastly we may take notice of the three further allegations that the nomination paper of respondent No 1 was in fact not presented on 20th January 1967 secondly that if at all it was presented it was not accompanied by a copy of the electoral roll showing that respondent No 1 was entered as an elector in another constituency and thirdly that it was not accompanied by a receipt showing the deposit of the security money as required by law
On all these points there is the clear evidence of the Returning Officer as well as that of RW 3 who proposed the name of respondent No 1 and who presented the nomination paper to the Returning Officer
There is no reason at all to disbelieve their evidence on these points particularly when their 547 evidence is also supported by the documents maintained in the office of the Returning Officer as well as in the Sub TreAsury
There is further the fact that no direct evidence has been led on behalf of the appellants to show that the nomination paper of respondent No 1 was presented at some other time after the expiry of the date fixed for nomination and that when so presented at the later stage it was not accompanied by the two necessary documents
These pleas taken for challenging the validity of the election of respondent No 1 have also therefore I been rightly rejected by the High Court
The appeal fails and is dismissed with costs
There will be one set of costs for hearing
VPS Appeal dismissed


Summary:
The first respondent who was the Chief Minister of the State and the first appellant were candidates for election to the Mysore Legislative Assembly from Shiggaon constituency
The notification fixing the time schedule for the elections fixed 20th January 1967 as the last date for filing nominations 21st as the date of scrutiny and 23rd as the last date for withdrawal of candidature
The first respondent had also filed his nomination at two other places Bagalkot and Hospet and validly made the affirmations required by article 173 a of the Constitution at those places on the 19th and 20th January
He also made the affirmation before the Returning Officer of the Shiggaon constituency on the date of scrutiny that is 21st January
The first respondent was declared elected unopposed on the date of scrutiny on the ground that all other candidates including the first appellant had withdrawn their candidature
The first appellant challenged the first respondent s election on the grounds that the first respo ndent was disqualified for failure to make the affirmation under article 173a before filing the nomination paper in Shiggaon constituency that the withdrawal from candidature of the first appellant was attempted to be obtained by inducement threats and undue in and was in fact procured with the connivance of the Returning Officer and that the first respondent committed other irregularities in the filing of his nomination
It was alleged that one P was responsible for the corrupt practices with the consent of the first respondent
P was not examined as a witness by the respondents
The first appellant filed an application to examine P as a court witness on the ground that the appellant could not examine him as his own witness since he would be hostile to the appellant
The High Court rejected the application
The High Court after rightly repelling the contention that the affirmation should have been made prior to the filing of the nomination held that the affirmation made prior to scrutiny was sufficient compliance with the requirements of article 173a and that the charges of corrupt practice of undue influence and bribery against the first respondent and the connivance of the Returning Officer in relation to the corrupt practices and irregularities were not proved
In appeal to this Court it was contended that  1 This Court in Pashupati Nath Singh vs Harihar Prasad Singh   held that the affirmation should be made before the date of scrutiny so that in the present case it should have been made at the latest by the mid 525 night between 20th and 21st January and 2 On the failure of the first respondent to examine P an adverse inference should have been drawn against the first respondent and that the High Court erred in not summoning P as a court witness
HELD1 a Since the first appellant was permitted to raise the new ground based upon the decision in Pashupati Math Singh s case the first respondent should not be debarred from putting forward his alternative plea that article 173a was satisfied on the basis of the affirmations made at Bagalkot and Hospet
532 E F bThe notification issued by the Election Commission in pursuance of article 173a stated that the affirmation should be made before the Returning Officer or Assistant Returning Officer for that constituency
In using the expression that constituency  the intention of the Election Com mission was that the affirmation must be made before the Returning Officer or Assistant Returning Officer of that particular constituency from which the candidate was seeking election to the Legislature of the State whether it be an Assembly Constituency or a Council Constituency
534 A B cWhen the first respondent made his affirmations on the 19th and 20th before the Returning Officer at Bagalkot and Hospet respectively he was a candidate nominated for election from those constituencies
Once he made such an affirmation before one of the persons authorised by the Election Commission he had fully complied with the requirements of article 173a and thereupon became qualified to be a candidate for election to the Mysore Legislative Assembly
534 C E
The purpose of article 173a is to ensure that any person who wants to be a member of a Legislature of a State must bear true faith and allegiance to the Constitution as by law established and undertake to uphold the sovereignty and integrity of India and to ensure this he must make an oath or affirmation
The Article requires one oath or affirmation in accordance with the form set out in the Third Schedule to the Constitution so as to remove the disqualification from being a candidate for election to the Legislature of the State
The Article does not mention that the making of oath or affirmation is to be preliminary to the validity of candidature in each constituency and the Article does not require that the qualification must be acquired separately in respect of each constituency from which a candidate was seeking election
Once the oath or affirmation is made before a competent authority in respect of one constituency the candidate becomes bound by that oath or affirmation even if he gets elected to the Legislature from a different constituency 534 E H 535 A B 2In the present case the circumstantial evidence indicated that the version put forward on behalf of the appellants could not be true
therefore the High Court was justified in holding that the appellants  case was shown to be false by other evidence so that there was no compelling reason for the High Court to examine P as a court witness or to draw an adverse inference against first respondent for his failure to examine P as a witness
540 G H 541 A Dr M Chenna Reddy vs V Ramachandra Rao CA No 144968 dt
17 12 1968 R M Seshadri vs G Vasantha Pai  and Nani Gopal Swami vs Abdul Hamid Chowdhury AIR 1959 Assam 200 referred to