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 MP Jha for the Appellant
SK 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 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 1261977 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 1561977
The election petition was filed on 1871977
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 section 1235 of the Representation of the People Act 1951 hereinafter 14 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 sections 81 82 and 83 read with order VI Rule 15 of the Code of Civil Procedure and section 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 vs 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 15 or 2 miles away from the Sarkiatola booth on the date of the poll and that the five ladies including Murati  Deokalia PW 19 Mehrunnissa PW 11 and Rasulia PW 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 corrupt practice and not corrupt practice itself as per section 1235 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 1235 of the Act read thus section 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 section1 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 section 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 vs Anwar Beg Mirza Hidayattullah CJ speaking for himself and GK Mitter J has observed This brings us to the examination of section 1235 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 vs 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 vs Lakshmi Narain   held that in considering whether a corrupt practice described in Section 1235 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 18 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 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 vs Anwar Beg Mirza   wherein Hidayatullah CJ 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 vs Pandurang Raoji Jagtap Jaswant Singh J speaking for the Court has observed In regard to section 1235 of the Representation of People Act 1951 which before its amendment by Act 47 of 1966 was identical in terms with section 144 13 of the Act it was held by this Court in Shri Balwant Singh vs Shri Lakshmi Narain that in considering whether a corrupt practice described in section 1235 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 vs JS Chouhan and Ors
that 19 to establish the corrupt practice under section 1235 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 1261977 JK Dutta PW 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 PW 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 15 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 PW 73
the then Superintendent of Police Bettiah who accompanied PW 69 has given a little more detailed evidence regarding what happened when he was accompanying PW 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 15 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
PWs 69 and 73 do not remember the number of the jeep and PW 69 does not know to whom the jeep belonged
Amal Ranjan Sarkar PW 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 PWs 69 and 73
Kabir Ahmad s nephew Tabrez Ahmad was driving the jeep
PW 81 obtained the statement exhibit 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 1761977 under exhibit c after one Managar Prasad who is proved to have been the polling agent of the respondent furnished security under exhibit 14 b
There is evidence of Sheikh Ejazul PW 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 RW 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
DN Pandey PW 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 PW 10 Mehrunoissa PW 11 and Rasulia PW 42 who travelled in the jeep alongwith two other ladies including Queresha PW 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 PWs 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 PWs 10 11 42 and 67 on the road near a canal situate about 1 or two miles 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 PW 81 in the presence of PWs 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 1761977 under exhibit 14c and that the respondent s polling agent Manager Prasad furnished security under exhibit 14b 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 section 1235 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 PW 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 RW 45 shows that his evidence is totally unreliable
We may state at this stage that the respondent s learned counsel Mr SK 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
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 PWs 10 11 and 42 besides that of some other evidence
The appellant s polling agent Jang Bahadur Mian PW6 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 PW 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 PWs 10 11 and 42 belong to same Parsa Village
PW 10 has stated that Kabir Ahmad has asked her to vote for the candidate whose symbol consisted of cow and calf ie 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 PWs 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 PW 10 in the cross examination is that she does not know the names of the other ladies who travelled with her in the jeep
PW 11 has denied the suggestion that she has been tutored to give false evidence
PW 42 has denied the suggestion that she was not an elector at all and that she has given false evidence
PW 10 is a Hindu while PWs
11 42 and 67 are Muslims
Yaqub Mian PW 43 the husband of PW 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 PWs 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 section 123 of the Act
The third point which alone is seriously disputed by 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 SK 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 25 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 PW 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 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 PW 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 26 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
PW 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 PW 43 and his wife PW 42 are casual laborers PW 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 PWs 6 16 and 43 of whom PW 6 was no doubt the appellant s polling agent
It is not possible to reject the evidence of PW 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 PWs 16 and 43
The respondent RW 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 PW 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 PW 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 27 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  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 RW 45 on the question of procuring the jeep USJ 5226 from its owner Kabir Ahmad
The evidence of PW 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 PWs 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 PWs 69 73 and 81 when it was being used for the conveyance of the electors PWs 1011 42 and others including PW 67 free of cost to themselves
The appellant has thus 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 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 5000 and hold that the res 28 pondent was guilty of corrupt practice under section 1235 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
NVK Appeal allowed


Summary:
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 vs Khurshid Ahmed that Proceedings arising out of 12 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 PWs 10 11 42 who were voters free of cost for casting votes on behalf of the respondent was seized by the District Magistrate and the Superintendent of Police about 15 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 vs Anwar Beg Mirza   Razik Ram vs Jaswant Singh Chouhan at 775 and Dadasahib Dattatraya Pawar vs Pandurang Raoji Jagtap  at 528 refereed to
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 PWs 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 PW 73 Superintendent of Police and PW 81 Station House Officer where it was being used for the conveyance of the electors PWs 10 11 42 and others including PW 67 free of cost to themselves
The appellant s case that the respondent committed corrupt practice is clearly established
27D E 13 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