Civil Appeal No 90 of 1973
From the Judgment and Order dated the 24th and 25th July 1972 of the Gujarat High Court in Election Petition No 2 of 1971
section N Andley K J John and Shri Narain Mathur for the appellant
F section Nariman P H Parekh Mrs section Bhandare and Manju Jaitley for respondent No 1
The Judgment of the Court was delivered by ALAGIRISWAMI J
This appeal arises out of an election petition questioning the election of 1st respondent in the election held in March 1971 to the Lok Sabha from the Banaskantha constituency in Gujarat
In that election the 1st respondent a nominee of the Ruling Congress was declared elected securing 116632 votes as against 92945 votes secured by the 2nd respondent a nominee of the Organisation Congress
The appellant a voter in the constituency also belonging to the Organisation Congress filed a petition challenging the validity of the election on various grounds out of which only those covered by issue No 10 hereinafter set out survive for consi deration 10 Whether respondent No 1 or his agents or other persons with his consent made a gift or promise of gratification to the petitioner with the object directly or indirectly of inducing the petitioner to vote for respondent No 1 or to refrain from voting for respondent No 2  The allegation relating to this charge in the election petition is that the 1st respondent and his agent Maulvi Abdur Rehman and the 1st respondent s son Bipin Popatlal Joshi with the consent of the 1st respondent had made a gift and a promise of gratification to the appellant for voting in 1st respondent s favour
The appellant as well as one Madhusudansinhji who has been examined as PW 10 seem to have been at that time prominent members of the Organisation Congress and also leaders of the Kshatriya community which formed 900 about 20 to 25 per cent of the votes in the Banaskantha constituency
It was alleged that on February 9 1971 the 1st respondent and Maulvi Abdur Rehman came to the appellant s residence and persuaded him to leave Congress O and join Congress R offering 1 to secure a party ticket for the appellant for the election to the Gujarat Legislative Assembly in 1972 2 to meet all his expenses for that election and to pay him Rs 10000 in cash towards the said expenses and 3 to construct a hostel for the Kshatriya students of the Banaskantha district
A specific allegation was made that the 1st respondent wanted the appellant to vote for him
It was also alleged that the 1st respondent asked the appellant to convey to Madhusudansinhji an offer of a party ticket for the Legislative Assembly election in 1972 and to pay him also a sum of Rs 10000 
The Prime Minister was addressing a meeting at Palanpur on that day
The appellant his wife and Madhusudansinhji were taken to the helipad Palanpur when the Prime Minister landed there and also to the dais from which the Prime Minister was addressing a public meeting
One Akbarbhai Chavda convener of the District Congress Committee announced that the appellant and Madhusudansinhji had joined Congress R and asked the appellant to say a few words
The appellant went to the microphone took out the bundle of notes of Rs 10000 given to him and flung it in the air and told the gathering that he and his colleagues could not be purchased and that they would remain loyal to the Organisation Congress
During the trial of the election petition Madhusudansinhji who had by that time joined the Ruling Congress and Maulvi Abdur Rehman were examined as witnesses on behalf of the appellant
The learned Judge of the High Court after considering the evidence before him held that Bipin Popatlal Joshi son of the 1st responident handed over Rs 10000 to the appellant as a bribe to bring about the appellant s defection from the Organisation Congress
But he took the view that the object of the gift was to bring about the appellant s defection from the Organisation Congress and not induce directly or indirectly any voters to cast their votes for the Ruling Congress candidate or to refrain from voting in favour of the 2nd respondent
As regards the offer to build the hostel for Kshatriya students he held that the fact that a person who defects from another party to the Ruling Congress would be expected to work for that party and would be expected to use his personal influence in support of the candidate of that party does not mean that the object of bringing about the defection was to indirectly induce the Kshatriya voters to cast their votes for the 1st respondent
He therefore held that payment of such money and holding out such inducement does not amount to any offence under the Election Law and it was with regret that he had to decide the case in favour of the 1st respondent
We are in entire agreement with the finding of the learned Judge as regards the payment of Rs 10000 to the appellant and also the offer to build hostel for Kshatriya students and do not consider it 901 necessary to go into the evidence in support of that finding
That finding is supported not only by the evidence of Madnusudansinhji and Maulvi Abdur Rehman but also the letter exhibit T passed by the latter to the appellant and Madhusudansinhji
The question is whether that finding is enough to establish the charge of bribery against the 1st respondent
There is still another finding necessary in regard to the allegations made in the petition in respect of which the learned Judge has given no finding and that is with regard to what happened of the 9th of February 1971
We are at one with the view of the learned Judge that the payment of Rs 10000 to the appellant was with a view to induce him to defect from organisation Congress to the Ruling Congress
It may carry with it the implication that he was expected to use his influence with the voters to vote for the candidate set up by the Ruling Congress
It has been held by this Court in Kalia Singh vs Genda Lal  ors1 to which two of us Untwalia  Alagiriswami JJ are party that a payment made to a person in order to induce him to canvass votes on behalf of the bribe giver would not be bribery within the definition of that word in section 1231 of the Representation of the People Act
It was held that it is only in a case where the payment to a third person by itself induces the voter to vote for the bribe giver that it would fall under section 1231
Mr Andley appearing on behalf of the appellant tried to persuade us that that decision requires reconsideration
After having considered his arguments we are still of the opinion that the view taken in that decision is correct
The object of providing that a payment should not be made to a person in order that that payment should induce some other person to vote for the bribe giver is obvious
It is apparently intended to cover situations where payment to a husband wife son or father is intended to induce the wife husband father or son to vote for the bribe giver
That would be indirect inducement
otherwise it would be easy for the bribe giver to say that he did not bribe the voter himself and therefore it is not bribery
That this provision was not intended to cover a case where money is paid to a certain person in order to make him induce another person to vote for the person who paid him the money would be obvious by looking at the converse case
Under section 1231Bb the receipt of or agreement to receive any gratification whether as a motive or a reward by any person whomsoever for himself or any other person for voting or refraining from voting or inducing or attempting to induce any elector to vote or refrain from voting or any candidate to with draw or not to withdraw his candidature is bribery
Under this clause any person who receives or agrees to receive any gratification as a reward for inducing or attempting to induce any elector to vote etc would be receiving a bribe
The law therefore contemplates that where a person makes any payment to another person in order to make him use his influence to induce a third person to vote for him that is not bribery by the person who pays but the receipt of money by the second person for inducing or attempting to induce another elector to vote is bribery
It is also bribery for the voter himself to receive 902 the money
We therefore reiterate the view that when a candidate or anybody on his behalf pays any gratification to a person in order that the payment made to him may induce the voter to vote for the bribe giver it is bribery
But where the gratification is paid to a person in order that he may induce the other persons to vote for the bribe giver it is not bribery on the part of the bribe giver
It is however as we have explained above bribery on the part of the bribe taker even when he takes it in order to induce an elector to vote for the bribe giver
In this case it is obvious that the primary object of the payment made to the appellant was to induce him to defect from the Organisation Congress to the Ruling Congress
That is not a corrupt practice under the Representation of the People Act
Even if the payment was received with the promise that he would induce the voters to vote for the bribe giver it will not be bribery on the part of the bribe giver but only bribery on the part the bribe taker
The defection of the appellant to the Ruling Congress if it took place might mean that he was expected to work for the Ruling Congress
Equally it may not
A person who changes his party allegiance at the time of the election probably might not command much respect among electors if the 1 electors knew that he had done so after receiving some money
Otherwise the fact that two important persons the appellant and Madhusudansinhji a younger brother of the ex ruler of Danta Stata had joined the Ruling Congress might be expected to influence the voters to vote for the candidate set up by the Ruling Congress
But that would be not because of the payment made to the appellant and Madhusudansinhji
Nor would such payment be bribery
To reiterate it is the payment to the appellant that must induce the voters to vote for the candidate set up by the Ruling Congress in order that it might amount to bribery
It is not enough that his defection from organisation Congress to the Ruling Congress induces voters to vote for the Ruling Congress candidate
As we said earlier if the payment to the appellant came to be known as the cause for his changing allegiance it may have a boomerang effect
It is therefore clear that the payment made to the appellant would not have induced the voters to vote for the Ruling Congress candidate
While after his defection therefore the appellant might have been expected to work for the Ruling Congress candidate or equally might not have been it is perhaps implicit that he would also vote for the Ruling Congress candidate
Is this enough to make the payment made to the appellant bribery  The payment was made not for the purpose of inducing him to vote but to make him defect to the Ruling Congress
That was the purpose for which the payment was made
That incidentally he might vote for the Ruling Congress candidate does mean that the payment was made to him in order to make him vote for the Ruling Congress candidate
The bargain was not for his vote the bargain was for his defection
Therefore on this point we agree with the learned Judge of the High Court
But if there was a specific request by the 1st respondent to the appellant that he should vote for him then the position would be different
In that case it would be bribery and even bribery to one 903 person is enough to make an election void
A specific allegation to that effect has been made in the election petition and that has not been considered by the learned Judge of the High Court
We shall now proceed to do so
The appellant gave evidence to the effect that the 1st respondent asked him on 9th February to vote for him and made the three promises earlier referred to
He was not cross examined on that point but the 1st respondent in his turn deniesd this when he gave evidence
Maulvi Abdul Rehman speaks to his having met the appellant on February 9 1971 but he says that the 1st respondent was not with him at that time
Madhusudansinhji says that he had met the appellant before the 14th and that at that time the appellant told him that the Maulvi and the 1st respondent were insisting that the appellant and he Madhusudansinh should join Congress R
He also denied a suggestion put to him in cross examination that it was not true that the appellant had told him before the 14th of February anything about the Maulvi or the 1st respondent telling the appellant that the appellant and he Madhusudansinh should join the Congress R on certain terms
This is the evidence relied on to show that on the 9th the 1st respondent also had met the appellant
If the appellant and Madhusudansinhji had met at Palanpur before the 14th and the appellant then told him that Maulvi and the 1st respondent were insisting that they should join the Ruling Congress the meeting should have been on the 13th or earlier and the request to him on the 12th or earlier
Naturally having chosen to examine Madhusudansinhji who had by that time joined the Ruling Congress as his witness the appellant would not have risked putting questions about the exact date on which Maulvi and the 1st respondent had met him
Quite possibly there was no such meeting on the 9th of February and that was why that question was not specifically put to him
When that question was put to Maulvi Abdul Rehman who was examined as PW 8 a little earlier he denied that the 1st respondent was with him on the 9th February
Coming to the conversation which the appellant and Madhusudansinhji had before the 14th if the Maulvi and the 1st respondent were insisting either on the 13th or earlier that the appellant should join the Ruling Congress there should have been a meeting between them a little earlier than the 13th and it should have been on the 9th is the argument on behalf of the appellant
But there are many imponderables in this argument
If the Maulvi and the 1st respondent were insisting that the appellant and Madhusudansinhji should join the Ruling Congress it does not mean that they both did so at the same time
They could have been doing it on different occasions separately
Nor does it follow that the Maulvi and the 1st respondent met him on the 9th
Nor does it follow that on that date the 1st respondent asked the appellant to vote for him
The statement of Madhusudansinh is too slender a foundation on which this argument could be built
It is thus a case of the appellant s oath against 1st respondent s oath and in a case of a serious charge like bribery we would not be satisfied merely on the basis of an oath against oath to hold that it has been satisfactorily established that the 904 1st respondent asked the appellant on 9th February to vote for him
He may also mention that with regard to the alleged visit of the Maulvi and the 1st respondent to the appellant three other possible witnesses including the appellant s wife Pushpaben who could have been examined to establish that the 1st respondent accompanied the Maulvi to the appellant had not been examined
A further fact which improbabilises this story is that in the election petition it is stated that the 1st respondent told the appellant that he would arrange for a ticket for Madhusudansinh in the 1972 elecations and pay him Rs 10000 if Madhusudansinh left organisation Congress and joined the Ruling Congress and voted and worked for him 1st respondent and asked him to convey the offer to Madhusudansinh
No evidence was let in about the voting and what is more Madhusudansinh was not a voter in the Banaskantha Constituency
This shows that the allegation regarding the request to appellant to vote for 1st respondent is of the character as the request to Madhusudansinh and put in merely for the purposes of the election petition and not a fact
On broader considerations also it is very unlikely that when the talk was about the appellant and Madhusudansinh defecting to the Ruling Congress from the organisation Congress there would have been any talk about the voting itself
All parties would have proceeded on the understanding that when they defected to the Ruling Congress they would both work and vote for the Ruling Congress
The distinction between a gift or offer combined with the request to vote and the gift or offer to a person asking him to work for him with the incidental result that person might vote for him should always be kept in mind
In such a case there is no specific bargain for the vote
Were it not so it would be impossible for persons standing for election to get any person to work for them who is not also a voter in the constituency
This was brought out by this Court in the decision in onkar Singh vs Ghasiram Majhi1
We would therefore hold that the case that 1st respondent bargained for the appellant s vote has not been satisfactorily made out
On behalf of the 1st respondent it was urged that the actions of the appellant and Madhusudansinhji immediately after the payment of Rs 10000 and the dramatic developments at the meeting addressed by the Prime Minister show that there would not have been any bargaining for the appellant s vote
The points relied upon were 1 that it was not said by the appellant when he threw the money into the crowd on the 18th that he was asked to vote for the 1st respondent 2 that it was not mentioned in the statement exhibit 5 made by the appellant and Madhusudansinhji on 18 2 1971 3 that was not mentioned in the interview given to the newspaper reporters found in exhibit 7 or in the newspaper report exhibit 8
We do not consider that these things are of much importance
At that time the most important factor was the attempt to persuade the appellant and Madhusudansinhji to defect to the Ruling Congress and any request to the appellant to vote for the 1st respondent would have been insignificant 905 even as we have held that when requesting the appellant and Madhusudansinhji to defect to the Ruling Congress it is not likely that they would have been asked to vote for the 1st respondent
The reference to the piece of evidence just mentioned cannot be said to establish that there was no request made to the appellant to vote for the 1st respondent
That would have to be decided on other factors and other evidence and on the basis of that evidence we have already held that it is not established that the 1st respondent requested the appellant to vote for him
Now remains the question of the offer to build a hostel for Kshatriya boys
Strictly speaking this does not arise on issue 10
This is probabilised by the evidence of Madhusudansinhji Maulvi Abdul Rehman and the appellant as well as exhibit T
Whether it was to be in Danta or Banaskantha does not make much difference as long as it was for the Kshatriya boys
The two places are near to each other though in different Parliamentary constituencies and in whichever place it was situate it will benefit Kshatriya boys and there is No doubt that if the hostel were constructed by respondent No 1 or the Ruling Congress party at his instance that would induce the voters to vote for the Ruling Congress candidate
But before that happens the matter should come to the knowledge of the voters
Only if the voters knew that the promise had been made to the appellant and Madhusudansinhji that promise would induce the voters to vote for 1st respondent
But the knowledge of the prormise remained confined to the appellant and PW 10 in addition of course to Maulvi Abdul Rehman and the 1st respondent s son
If the payment or the promise was to induce the voters it cannot induce the voters unless they come to know about the payment or the promise
There is no evidence her that the voters knew about the promise to build the hostel
The bargain in such cases as we have mentioned in the judgement delivered by us today in section Iqbal Singh vs Gurdas Singh  Ors is really an offer on the part of the bribe giver that he would do such a thing if the voters would vote for him
It is not necessary that the voters should have accepted it
But the voters should have a knowledge about the offer
Then only it would be a bargain
An offer contemplated and retained in the mind of the offerer and not articulated and made known to the offeree will not be a bargain
It therefore follows that in this case the offer to build a hostel does not also amount to bribery
In the result we upheld the judgment of the High Court and dismise this appeal
We make no order as to costs
PHP Appeal dismissed


Summary:
The first respondent a candidate of the ruling Congress was elected to the Lok Sabha from Banaskantha constituency in Gujarat defeating his rival candidate of Organisation Congress
The appellant a voter in the constituency belonging to the Organisation Congress filed an election petition challenging the validity of election of respondent No 1 on various grounds
The only ground surviving now is the allegation that respondent No 1 or his agents or other persons with his consent made a gift or promise of gratification to the petitioner with the object of directly or indirectly inducing the petitioner to vote for respondent No 1 or to refrain from voting for respondent No 2
The allegation is that the first respondent s agent Maulvi and the respondent s son Bipin with the consent of the first respondent made a gift of Rs 10000 and promised to secure a party ticket for the appellant and to construct a hostel for the Kshatriya students of the Bansaskantha district
A specific allegation was made that the first respondent wanted the appellant to vote for him
It was also alleged that the first respondent asked the appellant to convey to Madhusudan Sinhji another voter an offer of a party ticket for the Legislative Assembly election and to pay to him also a sum of Rs 10000 The High Court after considering the evidence held that Bipin handed over Rs 10000 to the appellant to bring about the appellant s defection from the Organisation Congress
The High Court took the view that the object of the gift was to bring about the appellant s defection from the Organisation Congress and not to induce directly or indirectly any voters to cast their votes for the ruling Congress candidate or to refrain from voting in favour of the second respondent
The High Court held that the payment of Rs 10000 and holding out inducement to build the hostel for Kshatriya students does not amount to any offence under the election law
On an appeal the appellant contended i that the first respondent or his agent or his son with his consent induced the appellant and Madhusudan Sinhji to vote for respondent No 1 and to refrain from voting for respondent No 2
ii that the whole purpose of the defection was that the appellant and Madhusudan Sinhji should canvass votes for respondent No 1
particularly from the Kshatriya voters on the inducement of building hostel for the Kshatriya students
iii that the decision of this Court in the case of Kalia Singh vs Gendalal requires to be reconsidered
iv that there was a specific request by respondent No 1 to the appellant to vote for him in exchange for the gift and inducement
Dismissing the appeal  HELD 1 We are in entire agreement with the finding of the High Court as regards the payment of Rs 10000 to the appellant and also the offer to build hostel for Kshatriya students
900 H 898 2 The payment of Rs 10000 to the appellant was with a view to induce him to defect from Organisation Congress to the ruling Congress
It may carry with it the implication that he was expected to use his influence with the voters to vote for the candidate set up by the ruling Congress
901 B C 3 The decision of this Court in the case of Kalia Singh vs Genda Lal approved
The said decision does not require any re consideration
The expression directly or indirectly is intended to cover situations where payment to a husband wife son or father is intended to induce the wife husband father or son to vote for the bribe giver that would be indirect inducement
Otherwise it would be easy for the bribe given to say that he did not bribe the voter himself
This provision was not intended to cover a case where money is paid to a certain person in order to make him induce another person to vote for the person who paid him the money would be obvious by looking at the converse case
When a candidate or anybody on his behalf pays any gratification to a person in order that the payment made to him may induce the voter to vote for the bribe giver it is bribery
But where the gratification is paid to a person in order that he may induce the other person to vote for the bribe giver it is not bribery on the part of the bribe giver
901 C H 902 A 4 In this case it is obvious that the primary object of the payment made to the appellant was to induce him to defect from the Organisation Congress to the ruling Congress
The bargain was not for his vote
The bargain was for defection
That is not a corrupt parctice under the Representations of the People Act
Even if the payment was received with the promise that he would induce the voters to vote for the bribe giver it will not be bribery on the part of the bribe giver but only bribery on the part of the bribe taker
The defection of the appellant to the ruling Congress if it took place might mean that he was expected to work for the ruling Congress
Equally it may not
The fact of the appellant and Madhusudan Sinhji s joining the ruling Congress might be expected to influence the voters to vote for the candidate set up by the ruling Congress
But that would not be because of the payment made to the appellant and Madhusudan Sinhji nor would such payment be bribery
It is the payment to the appellant that must induce the voters to vote for the candidate set up by the ruling Congress in order that it might amount to bribery
It is not enough that his defection from Organisation Congress to the ruling Congress induces voters to vote for the ruling Congress candidate
902 B E 5 As far as the promise to build a hostel for the Kshatriya students is concerned before it can be termed a bribery the matter should come to the knowledge of the voters
Only if the voters know that the promise has been made to the appellant and Madhusudan Sinhji can that promise would induce the voters to vote for the first respondent
In the present case the knowledge of the promise remained confined to the appellant
If the payment or the promise was to induce the voters it cannot induce the voters unless they come to know about the payment or the promise
It is not necessary that the voters should have accepted the bribe but the voters must have a knowledge about the offer
Then only it would be a bargain
Therefore in the present case the offer to build a hostel does not amount to bribery
904 D F 6 But if there was a specific request by the first respondent to the appellant that he should vote for him in exchange for the gift and the inducement in that case it would be bribery and even bribery to one voter is enough to make a election void
A specific allegation to that effect was made in the election petition and that has not been considered by the High Court
This Court therefore went through the evidence and came to the conclusion that no such request for vote was made to the appellant for the following reasons
902H 903A i Madhusudan Sinhji was not put a question about the exact date on which Maulvi and the first respondent met him
Quite possibly there was no such meeting on the 9th February and that is why the question was not put to him
903 E 899 ii The statement of Madhusudan Sinhji is too slander a foundation on which the argument could be built
It is thus a case of the appellant s oath against the first respondent s oath and in a case of serious charge like bribery we would not be satisfied merely on the basis of an oath against an oath
903 H iii Three other possible witnesses including the appellant s wife Pushpa who could have been examined to establish that the first respondent accompanied the Maulvi to the appellant had not been examined
904 A iv No evidence was led about the first respondent s having asked the appellant to vote
The allegation regarding the request to appellant to vote for first respondent is put in merely for the purpose of election petition and not a fact
904 C v All parties would have proceeded on the understanding that when the appellant defected to the ruling Congress he would both work and vote for the ruling Congress
There could not have been a specific bargain for the vote
904 D