Civil Appeal No 3955 NCE of 1987
From the Judgment and Order dated 16111987 of the Patna High Court in Election Petition No 4 of 1985
924 RK Garg and DK Garg for the Appellant
SN Singh HL Srivastava BM Sharma and TN Singh for the Respondent
The Judgment of the Court was delivered by SAIKIA J
This election appeal under S116A of the Representation of the People Act 1951 hereinafter referred to as the Act  is from the Judgment of the Patna High Court Ranchi Bench in the respondent s Election Petition No 4 of 1985 allowing the petition and declaring the elec tion of the appellant to the Bihar Legislative Assembly from the 286 Chandan Kyari SC Constituency to be void
Pursuant to the Notification of Election to the Bihar Legislative Assembly the Returning Officer of the 286 Chandan Kyari SC Assembly Constituency announced the following programme A
Last date for filing nomination paper 621985 B Date of the Scrutiny of the nomination paper 721985 C
Last date of withdrawal of candidature 921985 D Date of Poll 531985 E Date of counting 631985 The appellant the respondent and 17 others filed their nomination papers and the Returning Officer accepted the nomination papers found valid at the scrutiny
Three of them withdrew their candidature leaving 16 contesting candidates in the field
The Returning Officer prepared and published the following list of contesting candidates with the allot ted symbols section No Name Party Symbol 1
Ayodhya Rajak Independent Boat 2
Uma Bawri  Horse 3
Kokil Rajwar  Cultivator cutting crops 4
Kiriti Bhusan Das  Fish 5
Tilakdhari Bawri  Two leaves 6
Dulal Das Independent Spade  Stroker 925 7
Nakul Chandra Rajak Independent Rising Sun 8
Panchanan Rajak  Ladder 9
Padam Lochan Rajwar BJP Lotus 10
Mahindri Rajwar Independent Bicycle 11
Murura Dasi Jharkhand A Woman carrying a Mukti Morcha basket on her head
Yogendra Bawri Indian Scale Congress J 13
Ramdas Ram Independent Camel 14
Lata Devi Mali Indian Hand National CongressI 15
Shankar Bawri Independent Swastik within the circle 16
Haru Rajwar Marxist Bow and arrow coordination The poll was held according to schedule on 531985 and after counting the following result was announced on 631985 by the Returning Officer section No Name Party Votes secured 1
Ayodhya Rajak Independent 187 2
Uma Bawri  590 3
Kokil Rajwar  4564 4
Kiriti Bhusan Das  477 5
Tilakdhari Bawri  1458 6
Dulal Das  550 7
Nakul chandra Rajak  387 8
Panchanan Raj ak  434 9
Padam Lochan Rajwar BJP 8231 10
Mahandri Rajwar Independent 2500 926 11
Marura Dasi Jharkhand 2228 Mukti Morcha 12
Yogendra Bawri Indian Congress J 1163 13
Ramdas Ram Independent 195 14
Lata Devi Mali Indian National 8659 Congress I 15
Shankar Bawri Independent 486 16
Haru Rajwar Independent 8229 The appellant Lata Devi Mali was declared elected
The respondent Haru Rajwar filed an election petition in the Patna High Court Ranchi Bench calling in question the election of the appellant to the Bihar Legislative Assembly on the ground inter alia that on 1421985 he received a notice of the intention of the Returning Officer to change his allotted election symbol and though through counsel he objected on 1521985 the Returning Officer re allotted the respondent s bow and arrow  symbol to Murura Dasi and instead allotted the symbol of ladder  to him
It was urged in the petition that he contested and won the earlier elec tion from the same constituency with the same bow and arrow  symbol the sudden change of his symbol left him with less than 20 days time for campaign and it resulted in confusion amongst his supporters as a result of which his election was materially affected by the change that the election was liable to be declared void on the ground of violation of section 30d of the Representation of the People Act which according to him prescribed atleast 20 days time for election campaign which he did not have after change of the symbol and that the election was void also for viola tion of Rule 105 of the Conduct of Election Rules 1961 under which according to him the election symbol could not be changed without permission of the Election Commission
It is the appellant s case that she did not receive any notice of the election petition against her
The trial proceeded ex parte
The respondent election petitioner examined himself at the trail
The High Court by its impugned order dated 16111987 allowed the petition and declared the appellant s election to be void holding that the result of the election in so far as it concerned the returned candidate was materially af fected by violation of Rule 105 of the Conduct of Election Rules 1961
Hence this appeal
927 Mr RK Garg the learned counsel for the appellant submits inter alia what even assuming what was stated by the respondent election petitioner to be true there was no breach of section 30d of the Representation of the People Act inasmuch as the minimum 20 days time was available after the date of withdrawal of nomination paper to the date of poll that there was no violation of Rule 105 of the Conduct of Election Rules and that even assuming that there was violation of this rule the election petitioner dismally failed to prove by evidence that the result of the election was materially affected thereby inasmuch as no sufficient evidence was adduced in proof of his claims and he himself could not have proved his averments
Mr SN Singh the learned counsel for the respondent relying on AH Party Hill Leaders  Conference Shillong vs Captain WA Sangama AIR 1977 SC 2 155 and Roop Lal Sathi vs Nachhattar Singh Gill   strenuously argues that the violation of Rule 105 is itself sufficient to have materially affected the result of the election particularly in view of the fact that in the instant con stituency of backward voters the symbol was very important and change thereof had disastrous consequences to the re spondent candidate
The material facts relevant to this appeal are not in dispute
The list of contesting candidates with respective symbols was published on 921985 the election petitioner s symbol bow and arrow  was reallotted to candidate Murura Dasi and the symbol of ladder in place of bow and arrow  was re allotted to the respondent the poll took place on 531985 and the result was announced on 631985
The respondent election petitioner in the High Court examined himself as PW 1 and deposed to the following effect   
I was given the symbol of bow and arrow 
I canvassed for my votes with the symbol of bow and arrow  till Febru ary 15 1985
The Returning Officer changed my symbol and allotted to me the symbol of Sirhi  ladder
The symbol of bow and arrow  was given to Murura Dasi the another candidate
I was the sitting MLA and my symbol in the last election was also bow and arrow 
I lost the election this time by a margin of 430 votes
In the election held in the year 1980 I won the election by a margin of 9611 votes
This time the main reason of my defeat in the election is the change of my symbol
Due to change of my symbol the voters were misled and they 928 could not be apprised of this change
I could not canvass for my votes with the symbol of ladder  in that constituency and in that area
I was known largely and properly in the areas as the MLA with the symbol of bow and arrow 
The candidate of Congress party was declared elected in this election
The elec tion of my constituency was held in March 5 1985
I did not get 20 days time as provided in law after the change of my symbol
 When recalled he added that the symbol was a free symbol which had been allotted to him earlier ie the symbol of bow and arrow 
The last date of withdrawal of the nomination paper was February 9 1985
By the change of symbol bow and arrow  I was materially affected and it affected the course of election and the voters were misled and they wrongly voted for Murura Dasi
 Evidence of no other witness appears on record
The question before us is whether on the basis of the above evidence on record the High Court was justified in holding that the result of the election was materially affected and in declaring the appel lant s election to be void on that ground
Section 100 of the Representation of the People Act 195 1 states the grounds for declaring an election to be void
Sub section 1div says 1 subject to the provisions of sub sectiOn 2 if the High Court is of opinion d that the result of the election in so far as it concerns a returned candidate has been materially affected iv by any noncom pliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act the High Court shall declare the election of the returned candidate to be void Sub section 2 is not relevant for the purpose of this case
Was there in this case
any violation of section 30d Under section 30 of the Representation of the People Act 1951 as soon as the notification calling upon a constituen cy to elect the member or members is issued the Election Commission shall by notification in the Official Gazette appoint amongst others under clause d the date or dates on which a poll shall if necessary be taken which or the first of which shall be a date not earlier than the twenti eth day after the last date for the withdrawal of candida ture
In the instant case the last date for the withdrawal of nomination was 921985 and the date of poll was 531985
There was therefore clear compliance with the requirement of S30d
The respondent himself stated that on 14121985 he received notice of intention of the Return ing Officer to change his election symbol and the symbol was actually changed on 1521985
We agree with the High Court that only the spirit of S30d was not complied with
In terms this provision was 929 clearly complied with
The submission that it was violated has therefore to be rejected
Rule 10 of the Conduct of Election Rules 1961 deals with preparation of list of contesting candidates
Sub rule 4 thereof requires that at an election in an assembly constituency where a poll becomes necessary the Returning Officer shall consider the choice of symbols expressed by the contesting candidates in their nomination papers and shall subject to any general or special direction issued in this behalf by the Election Commission a allot a different symbol to each contesting candidate in conformity as far as practicable with his choice and b if more contesting candidates than one have indicated their preference for the same symbol decide by lot to which of such candidates the symbol will be allotted
Under sub rule 5 the allotment by the Returning Officer of any symbol to a candidate shall be final except where it is inconsistent with any directions issued by the Election Commission in this behalf in which case the Election Commission may revise the allotment in such manner as it thinks fit
The change of symbol has not been proved to be violative of Rule 105
Even assuming violation as Mr Garg submits was there enough evidence to show that the result of the election in so far as it concerned the returned candidate was materially affected The election petitioner before the High Court deposed that he lost the election by a margin of 430 votes
From the result sheet it appears that the appel lant secured 8659 votes and the respondent secured 8229 votes
The difference is therefore of 430 votes
Murura Dasi despite the bow and arrow  symbol secured 2228 votes
The election petitioner has not stated and proved that more than 430 voters would have voted for him had the symbol of bow and arrow  not been changed and that they voted for Murura Dasi only for her having the symbol of bow and arrow 
How could that be proved would
of course depend on the facts and circumstances of the case
The result of election in so far as it concerns a returned candidate may be affected in various ways by various factors stated under section 1001d
So far as the burden and measure of proof of such material effect is concerned the law has been enunciated by several decisions of this Court
What is required to be demonstrated by evi dence will vary according to the way in which the result of the election in so far as it concerns the returned candidate is alleged to have been materially affected
It is to be noted that in an election petition what is called in ques tion is the election and what is claimed is that the elec tion 930 of all or any of the returned candidates is void with or without a further declaration that the election petitioner himself or any other candidate has been duly elected
De claring the election of the returned candidate void does not by itself entitle the election petitioner or any other candidate to be declared elected
Vashit Narain Sharma vs Der Chandra and Ors   was a case of improper acceptance or rejection of nomination paper and the manner of proving that the result of the election had been materially affected was slightly different from that of the instant case as that involved the question of possible distribution of wasted votes
However this Court has stated that the result of the election being materially affected is a matter which has to be proved and the onus of proving it lies upon the petitioner
Their Lordships observed It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidates
The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates
While it must be recognised that the petitioner in such a case is confronted with a difficult situation it is not possible to relieve him of the duty imposed upon him by Section 1001c and hold without evidence that the duty has been discharged
Should the petitioner fail to adduce satisfactory evi dence to enable the court to find in his favour on this point the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand
 In Inayatullah Khan vs Diwanchand Mahajan  Ors 19 where a nominated candidate was found to have been disqualified under section 7d of the Act the question arose as to what had happened to the election as a result
It was contended that the margin of votes was small and that the result of the election must be taken to have been materially affected because Nandial a disqualified candidate got 8000 odd votes which in the event of his not contesting would have gone to Mahajan
Evidence was led to show how the votes which went to Nandial would have been divided and both sides claimed that if Nandial had not contested the elec tion the votes would have gone to them
The Madhya Pradesh High Court observed that the evidence on this part of the case was exceedingly general and apart from the statement by the witnesses who came forward as to their opinion there was 931 nothing definite about it
All the evidence which had been brought to Court s notice was not decisive of the matter under section 100 of the Act in view of the test laid down in Vashit Narain Sharma s case supra
It can therefore be taken as settled that the party who wishes herein to get an election declared void has to establish by satisfactory evidence that the result of the poll had in fact been mate rially affected by the violation of Rule 105 of the Rules
For doing this it has to be demonstrated that the votes would have been diverted in such a way that the returned candidate would have been unsuccessful
In the instant case there was no evidence to demonstrate the returned candidate having derived any benefit from the change of symbol of the election petitioner
Murura Dasi to whom the bow and arrow  symbol was later allotted was not the successful candidate
The election petitioner was required to show that such number of votes had gone in favour of the successful candidate instead of in favour of the petitioner simply because of the change of symbol as would without that number of votes make the successful candidates unsuccess ful
The petitioner besides making bare statement had not produced any other satisfactory evidence in support of such a proposition
In SN Balakrishna vs Fernandes    which was a case under section 1001dii and section 1234 corrupt practice charged against an agent other than election agent on the question of the result of the election in so far it concerned the returned candidate being materially affected Hidayatullah CJ observed at para 58 In our opinion the matter cannot be consid ered on possibility
Vashit Narain s case insists on proof
If the margin of votes were small something might be made of the points mentioned by Mr Jethmalani
But the margin is large and the number of votes earned by the remaining candidates also sufficiently huge
There is no room therefore for a reasonable judicial guess
The law requires proof
How far that proof should go or what it should contain is not provided by the legislature
In Vashit s case   and in Inayatullah vs Diwanchand Mahajan 1958 15 Ele LR 219 at pp 235 246 MP the provision was held to prescribe an impossible burden
The law has however remained as be fore
We arc bound by the rulings of this Court and must say that the burden has not been successfully discharged
We cannot over look the rulings of this Court and follow the English rulings cited to us
 932 In Chhedi Ram vs Jhilmit Ram and Ors which was also a case of improper acceptance of nomination paper Chinnappa Reddy J observed that the answer to the question whether the result of the election could be said to have been materially affected must depend on the facts circumstances and reasonable probabilities of the case
Under the Indian Evidence Act a fact is said to be proved when after considering the matters before it the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists
If having regard to the facts and circumstances of the case a reasonable probability is all one way the Court must not lay down an impossible standard of proof and hold a fact as not proved
As was reiterated in Shiv Charan Singh vs Chandra Bhan Singh   in the absence of any proof the result of an election can not be held to be materially affected and it is not permissible in law to set aside the election of the returned candidate on mere surmises and conjectures
A decision in election petition can be given only on positive and affirmative evidence and not on mere speculation and suspicious however strong they are
Indeed in the instant case there is no such positive and affirma tive evidence
Mere assertions by the election petitioner were not enough
Nothing was alleged and proved against the successful candidate
There could be no proposition or contention that a candidate with a particular symbol would always be successful at the hustings or that a particular voter or a number of voters would always vote for a symbol irrespective of the candidate to whom it is allotted
Mr SN Singh relies on paragraph 29 of the Judgment in All Party Hill Leaders  Conference Shillong vs Captain WA Sangma supra wherein Goswami J observed For the purpose of holding elections allot ment of symbol will find a prime place in a country where illiteracy is still very high
It has been found from experience that symbol as a device for casting votes in favour of a candidate of one s choice has proved an inval uable aid
Apart from this just as people develop a sense of honour glory and patriotic pride for a flag of one s country similarly great fervour and emotions are generated for a symbol representing a political party
This is particularly so in a parliamentary democracy which is conducted on party 933 lines
People after a time identify themselves with the symbol and the flag
These are great unifying insignia which cannot all of a sudden be effaced
 There is no dispute about the importance of the symbol in a backward constituency
This will however not absolve the election petitioner of his burden of proving that the result of the election has been materially affected
In Roop Lal Sathi vs Nachhattar Singh Gill supra in the facts of that case this Court observed that The symbols order was issued by the Election Commission under Article 324 of the Constitu tion in exercise of its undoubted powers of superintendence direction and control of the conduct of all elections to Parliament and Legislature of every State
It is also relata ble to Rules 5 and 10 of the Conduct of Elec tions Rules framed by the Central Government in exercise of their powers under section 169 of the Act
Rule 4 of the Conduct of Elections Rules provides that every nomination paper presented under section 33 of the Act shall be in Forms 2 A to 2 E as may be appropriate
Forms 2 A and 2 B require the candidate to choose symbol
Under Rule 51 the Election Commis sion by notification may specify the symbols that may be chosen by candidates at elections to Parliamentary and Assembly constituencies
Under Rule 104 the Returning Officer shall consider the choice of symbols expressed by contesting candidates and subject to any general or special direction issued by the Election Commission allot different symbols to different candidates
The allotment of symbols by the Returning Officer is final under sub rule 5 of Rule 10 except where it is inconsistent with any directions issued by the Election Commission in that behalf in which case the Election Commission may revise the allotment in such manner as it thinks fit Mr Singh s submission is as if the violation of sub rule 5 of Rule 10 would ipso facto make an election void
That however is not the legal position as would be clear from the provision itself
Section 1001div of the Act clearly says that subject to the provisions of sub section 2 if the High Court is of opinion that the result of the election in so far as it concerns a returned candidate has been materially affected iv by any non compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this 934 Act the High Court shall declare the election of the re turned candidate to be void
The violation of sub rule 5 of Rule loper se will not invalidate the election
The election petitioner has also to prove that the result of the election in so far as it concerns the returned candidate was materially affected
From the evidence on record considered in light of the law enunciated above we have no doubt that the election petitioner dismally failed to discharge the burden of prov ing that the result of the election in so far it concerned the appellant who has been the returned candidate was materially affected
The High Court was in error in holding without sufficient evidence that it was materially affect ed
In the result the impugned Judgment of the High Court is set aside and this appeal is allowed with costs which we quantify at Rs3000 Rupees three thousand
Let steps be taken under Section 116C2 of the Act
RSS Appeal allowed


Summary:
The short supply of levy rice to the State Government by licensed millers is a contravention of the Haryana Rice Procurement Levy Order 1979 made under section 3 of the Essen tial Commodities Act 1955
The said contravention is pun ishable under section 7 of the Act
Under section 101 of the Act a person is deemed to be guilty of contravention of such an order if he was in charge of and was responsible to the company for the conduct of its business
Under the proviso thereto a person is however not liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention
Under explanation a to the section the term company includes a firm or other association of individuals
The appellants partners of a firm running a rice mill were convicted for contravention of the provisions of the procurement order read with section 7 of the Act and sentenced to rigorous imprisonment and fine
The High Court confirmed the conviction and sentence
In this appeal by special leave it was contended for the appellants that there was no evidence adduced by the prosecution that they were in charge of the business of the firm when the offence was committed and in the absence of any such evidence the conviction could not be sustained
Partly allowing the appeal 887 HELD 1
There is no vicarious liability in criminal law unless the statute takes that also within its fold
Section 10 of the does not provide for such liability
It does not make all the partners liable for the offence whether they do business or not
890C 21 The obligation for the accused to prove under the proviso to section 101 that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution establishes that the requisite condition mentioned in sub section 1 that the partner was responsible for carrying on the business and was during the relevant time in charge of the business is satisfied
890E 22 In the instant case PW 1 had deposed that the state ment regarding purchase of paddy and supply of levy rice was signed by appellant No 3 as partner on behalf of the firm
There is no other evidence on record to indicate that other partners were also conducting the business of the firm when the offence was committed
890G 891A The conviction and sentence of appellant No 3 are therefore maintained
The conviction and sentence of appel lant Nos 1 2 and 4 are set aside
They are acquitted from all the charges
891C