Case: S.B. Adityan Vs. S. Kandaswami and Ors

Then comes S. 99 which states that in certain circumstances besides these orders, certain other orders have also to be made by the Tribunal. The material portion of the Section is in these terms: S. 99 - (1) At the time of making an order under S. 98 the Tribunal shall also make an order - (a) Where any charge is made in the petition of any corrupt practice having been committed at the election, recording - (i) a finding whether any corrupt practice has or has not been proved to have been committed by, or with the consent of, any candidate or his agent at the election, and the nature of that corrupt practice; and (ii) the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that pratice; and ................................................................ 14. Mr. Sastri contended that under this Section the Tribunal has to record a finding whether a corrupt practice has been committed with the consent of any candidate. He said that when a candidate accepts a gift made to him with the object of inducing him to withdraw his candidature, he consents to the corrupt practice of bribery being committed and such a candidate is liable to be named under the Section. He added that in order that such a candidate can be so named a charge of the corrupt practice has to be made against him in the election petition. The result, therefore, according to Mr. Sastri, is that a candidate who consents to a bribe being paid to him to withdrawn his candidature is guilty of a corrupt practice and therefore an allegation of such a corrupt practice can be made in the petition if it is intended to have him named under S. 99 and once such an allegation is made in the petition, S. 82 (b) would be attracted and the candidate has to be made a party to the petition. He says such allegations were made against Meganathan and Muthu.15. This contention seems to us to be clearly fallacious. Section 99 does not purport to define a corrupt practice.The definition of corrupt practice occurs in S. 123 and the corrupt practice mentioned in S. 99 has to be a corrupt practice as so defined. A corrupt practice committed with the consent of a candidate is not in itself a new kind of corrupt practice. When S. 99 talks of a corrupt practice having been committed with the consent of a candidate it means a corrupt practice as defined in S. 123 having been committed, and a candidate having consented to its commission.The consent by a candidate to the commission of a corrupt practice by some one else whatever its consequences under the Act may be, is not itself a corrupt practice.Therefore, to say that a candidate consented to a corrupt practice being committed by accepting a gift made to him to induce him to withdraw his candidature, is not to say that he himself committed a corrupt practice. Such a statement in an election petition is not an allegation of corrupt practice against the consenting candidate. Hence S. 82 (b) does not require that he should be made a party to the petition. We wish to make it clear that we are not to be understood as holding that a candidate accepting a gift made to him to induce him to withdraw his candidature is one who consents to a corrupt practice being committed.We do not think it necessary to say anything on that question in this case. 16. Mr. Sastri then said that the term gratification in S. 123 was very wide and would include the withdrawal of his candidature by a candidate to induce another candidate to stand at an election. He contended that the affording of such a gratification would amount to a corrupt practice within S. 123. He submitted that such corrupt practices had been alleged in the petition against Meganathan and Muthu and they should therefore have been made parties to the petition under S. 82 (b).We are wholly unable to agree that the withdrawal of his candidature by a candidate to induce another candidate to stand at an election would be gratification within S. 123. But assume it is so. That does not help the appellant at all.Here, there is no allegation in the petition that Meganathan and Muthu withdrew their candidature in order to induce the appellant to stand at the election, so there is no allegation in the petition of corrupt practices having been committed by them by so withdrawing their candidature. It was therefore not necessary to make Meganathan and Muthu parties to the petition under S. 82 (b). 17. Lastly, Mr. Sastri contended that S. 82 (b) talked of allegations of any corrupt practice and it therefore contemplated any allegation relating to or concerning, a corrupt practice. He said that the election petition contained allegations against Meganathan and Muthu, relating to a corrupt practice inasmuch as it stated that they accepted the gratifications paid to them to withdraw their candidature and actually withdrew such candidature. Hence, he said, S. 82 (b) required that they should have been made parties to the petition.We are of opinion that when S. 82 (b) talks of allegations of corrupt practice against a candidate it means allegations that a candidate has committed a corrupt practice. Allegations can hardly be said to be against one unless they impute some default to him. So allegations of corrupt practice against a candidate must mean that the candidate was guilty of corrupt practice.We are also unable to appreciate how an allegation that a candidate accepted a gratification paid to him to withdraw his candidature is an allegation relating to a corrupt practice. The acceptance of the gratification does not relate to any corrupt practice, for we have earlier shown that the corrupt practice consists in the giving of the gift and not in the acceptance of it.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]That S. 123 (1) does not contemplate the acceptance of a gift to be a corrupt practice is also apparent from a consideration of S. 124 of the Act which was deleted by an amendment made by Act XXVII of 1956. Under Cl. (3) of that section the receipt of or an agreement to receive a gift with substantially the same object as mentioned in S. 123 was a corrupt practice. As legislative provisions are not duplicated, such a receipt of or an agreement to receive a gratification was clearly not a corrupt practice within S. 123 (1) as it stood before the amendment. The amending Act has dropped the provision making acceptance and an agreement to accept a bribe, a corrupt practice but has made no change in S. 123 (1) to bring within it these cases. Section 123 (1) cannot therefore be read as including within the definition of a bribe contained in it an acceptance of it. By omitting S. 124(3) from the Act therefore the legislature intended that acceptance of a bribe was no longer to be treated as a corrupt practice. In view of this clear indication of intention it would be idle to enquire why the legislature thought fit to exclude the acceptance of a bribe from the definition of corrupt practice. If the omission is accidental, then it is for the legislature to take the necessary action in that behalf. We cannot allow any consideration of the reason for the omission to affect the plain meaning of the language used in S. 123(1)15. This contention seems to us to be clearly fallacious. Section 99 does not purport to define a corrupt practice.The definition of corrupt practice occurs in S. 123 and the corrupt practice mentioned in S. 99 has to be a corrupt practice as so defined. A corrupt practice committed with the consent of a candidate is not in itself a new kind of corrupt practice. When S. 99 talks of a corrupt practice having been committed with the consent of a candidate it means a corrupt practice as defined in S. 123 having been committed, and a candidate having consented to its commission.The consent by a candidate to the commission of a corrupt practice by some one else whatever its consequences under the Act may be, is not itself a corrupt practice.Therefore, to say that a candidate consented to a corrupt practice being committed by accepting a gift made to him to induce him to withdraw his candidature, is not to say that he himself committed a corrupt practice. Such a statement in an election petition is not an allegation of corrupt practice against the consenting candidate. Hence S. 82 (b) does not require that he should be made a party to the petition. We wish to make it clear that we are not to be understood as holding that a candidate accepting a gift made to him to induce him to withdraw his candidature is one who consents to a corrupt practice being committed.We do not think it necessary to say anything on that question in this caseWe are of opinion that when S. 82 (b) talks of allegations of corrupt practice against a candidate it means allegations that a candidate has committed a corrupt practice. Allegations can hardly be said to be against one unless they impute some default to him. So allegations of corrupt practice against a candidate must mean that the candidate was guilty of corrupt practice.We are also unable to appreciate how an allegation that a candidate accepted a gratification paid to him to withdraw his candidature is an allegation relating to a corrupt practice. The acceptance of the gratification does not relate to any corrupt practice, for we have earlier shown that the corrupt practice consists in the giving of the gift and not in the acceptance of it.