Case: Janak Sinha Vs. Mahant Ram Kishore Das

mentioned earlier, the High Court has considered and discussed the various incidents which took place at booth No. 57 at Dharampur. We do not think it necessary to go into the aspects raised by Dr. Singhvi because the evidence clearly discloses that there has been one instance of a voter being prevented from exercising his vote and even on the basis of the contention of Dr. Singhvi, the matter will come squarely under S. 123 (2) read with S. 79 (d) of the Act. We have in mind the evidence of P. W. 44 Makhan Singh. He was a resident of Dharampur and he was a voter in the mid-term election and he had to cast his vote at the Dharampur polling booth. On the date when the voting was scheduled to take place i.e. February 9, 1969, the witness went and exercised his vote but later in the day as there was serious disturbance, voting was stopped. On February 12, 1969, the date of repoll at that booth, the witness went to the booth at about 10 A. M. He saw the appellant already near the booth and he also saw the respondent coming to the booth at about 10 A. M. accompanied by three or four of his workers and supporters. He speaks to the assault made on the respondent by the appellant, but it is not necessary for us to refer to that part of his evidence. The witness further proceeds to state that he was having the symbol of Fish in his hand, which is the symbol of the Soshit Dal. On seeing this the workers of the appellant turned him out and prevented him from going into the polling booth to exercise his franchise. In consequence the witness states that he could not cast his vote on that day. He further refers to the appellant being present at the booth at that time when he was being so prevented by his workers from exercising his franchise. 65. In cross-examination, many questions had been put to the witness regarding the assault said to have been committed by the appellant on the respondent at about that time. But so far as his evidence regarding his being prevented from exercising his vote is concerned, he has stated that he went to cast his vote and as he was prevented he had to go away. He has further stated that there were several people near the polling booth and that he did not file any petition anywhere that he was not allowed to vote. The evidence of this witness has been believed by the learned Judge. it will also be seen that in Schedule I to the election petition, regarding Dharampur, booth No. 57, the respondent has clearly stated in column No. 4 that P. W. 44 Makhan Singh of village Dharapur was one of the persons against whom corrupt practice of undue influence was committed. In column No. 1 he included the names of the appellant as well as his various supporters and workers, who have figured as witnesses on the side of the appellant as the persons who committed undue influence. That the appellant and the respondent were in the polling booth No. 57 at Dharampur at about 10 A. M. on February 12, 1969 is borne out by the evidence on the side of the appellant himself. Therefore, it is not necessary for us to refer to the evidence adduced by the respondent in this behalf. 66. D. W. 20 Ramchandra Jha the Inspector of Police, was deputed to be on duty at Dharmpur polling booth on February 12, 1969. He was present at the booth from 8.30 A. M. and remained there till about 4 or 5 P. M. He has spoken to the fact that the respondent came to the booth at about 10 A. M. and that he had to escort him from the booth to his car which was outside the booth area as the respondent was complaining that his life was in danger. Here again this witness speaks to various other matters with which we are not concerned. We are only referring to the evidence of this witness for the limited purpose of finding corroboration to the evidence of P. W. 44 that when he went to the polling booth at about 10 a. m. on Feb. 12, 1969 he found both the appellant and the respondent and that there was an incident. In answer to the question put by the Court D. W. 20 has stated that at 10.30 or 10.45 A.M. he found both the appellant and the respondent having a very heated discussion and they were about to come to blows and this incident took place just within the polling booth where ballot boxes had been kept. This incident again corroborates the version of P. W. 44 that when he was in the polling booth at about 10 A. M. he must have witnessed some incident that took place between the appellant and the respondent. 67. There is no. attempt to discredit the evidence of P. W. 44 regarding his categorical statement that he was prevented from exercising his vote by the workers of the appellant and that prevention took place in the presence of the appellant. When a voter is prevented from exercising his vote by the supporters of the appellant and in his presence and without any attempt made by the latter to stop his supporters from so doing, the only inference is that P. W. 44 was prevented from voting by the supporters of the appellant with the latters consent. If that is so, it follows that there has been a direct interference with the free exercise by P. W. 44 of his electoral right. As this one instance clearly establishes that the appellant has committed the corrupt practice of undue influence under S. 123 (2), it follows that it must be held that his election has to be set aside on this ground also.

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

Explanation:
0[ds]29. A reading of the evidence of D. Ws. 27, 48 and 52 clearly shows that they have absolutely no. personal knowledge about the working of the Janhit Press and that they are only giving evidence about the financial interest of the respondent in the said press to support the appellant. Their evidence is worthless to establish any connection of the respondent with the Janhit Press. In our opinion, their evidence has been quite rightly rejected by the learned JudgeDr. Singhvi no. doubt attempted to explain away this circumstance by saying that polling agent Naulakh Prasad may be a person different from Naulakh Prasad spoken to by P. Ws. 39 and 67. We cannot accept this contention of the learned counsel. The attempt of the appellant to establish that the respondent was financier of the Janhit Press has miserably failed. The finding of the learned Judge that Naulakh Prasad, who was the polling agent of the appellant got the pamphlet printed at the Janhit Press is perfectly correct. But, in our opinion, the further finding of the learned Judge that there is no. sufficient evidence to hold that the pamphlet was got printed at the instance or with the consent of the appellant is not very satisfactory. That finding, in our opinion, is a very halting one. On the other hand, the evidence discussed by us earlier and to be discussed later in connection with the distribution of the pamphlet, will clearly show that the pamphlet has been got printed by Naulakh Prasad at the instance or with the consent and knowledge of the appellant. That pamphlet admittedly contains an appeal to vote for the appellant on the basis of caste. Therefore, it follows that the pamphlet has been got printed for being used in the election campaign of the appellantThis discrepancy, in our opinion, is of a very minor character, because when there are 6 or 7 persons in a group canvassing for vote, it is very likely that the witnesses may make slight mistake regarding the actual person from that group who gave the pamphlet. They have given a common version that the appellant made an oral appeal in the name of caste to vote in his favour as he was a Rajput. Whatever discrepancy there may be regarding the distribution of the pamphlet by the appellant himself or by D. W. 5, both the witnesses P. Ws. 20 and 21 have categorically stated that the appellant was present when D. W. 5 distributed the pamphlet containing the caste appeal42. Therefore, from the evidence of P. Ws. 11, 20 and 21 it is clear that the distribution of the pamphlet appealing for votes in the name of caste was made in the presence of the appellant and the letter had, apart from distributing the pamphlet, also made an oral appeal to vote for him on the basis of caste, he being a Rajput. Therefore, the making of appeal on the basis of caste by means of the pamphlet and orally by the appellant and by his agent or supporter D.W. 5, with his consent, is clearly established43. We are not inclined to accept the contention of Dr. Singhvi that the presence of P. Ws. 20 and 21 in the village of Uphraolia at the time when the appellant and others visited the same for election purposes has not been properly explained. In this connection it is significant to note that Dr. Chandeshwar Prasad Singh, whom P. W. 21 had gone to meet had been summoned by the appellant, but was not examined44. The evidence of witnesses, who have given evidence on the side of the appellant stating that they never visited the village either by themselves or in the company of the appellant and that they never distributed the pamphlet or made any oral appeal to vote on the basis of caste has been rightly disbelieved by the learned Judge and we agree with the reasons given by him in that regard45. Before we close the discussion on this aspect it is necessary to refer to a slight mistake committed by the learned Judge while discussing the evidence of D. W. 59, Jaldhari Sahni. The learned Judge has understood the evidence of this witness to the effect that he has admitted that Naulakh Prasad was issuing the pamphlet in themidterm electionand that such distribution must have been made on behalf of the appellant. It may be that the learned Judge was not prepared to accept the evidence given by the said witness when he speaks to Naulakh Prasad being the polling agent not of the appellant but of the respondent. Actually, the evidence of the said witness is to the effect that he belongs to Mauza Kharar and that Naulakh prasad was the polling agent of the respondent and that Kailash Prasad was the polling agent of the appellant. He claims to know Naulakh Prasad as both of them reside in the same village. He further states that Naulakh Prasad was not the polling agent of the appellant. Inn he has stated that Naulakh Prasad gave him the pamphlet in his house and that he was not working as the polling agent of the appellant. A reading of the evidence of this witness clearly shows that this evidence is absolutely false. Even the appellant does not claim that there was no. person by name Naulakh Prasad, who acted as his polling agent. On the other hand, we have already referred to Ex. 1/H, under which the appellant has appointed Naulakh Prasad as his polling agent. We have already referred to the evidence of P. W. 67 to the effect that while he was the polling agent at the polling booth at Kharar on the behalf of the respondent, Naulakh Prasad at the same booth was the polling agent of the appellant. The evidence of D.W. 59 is only an attempt to make out a case that the pamphlet was distributed by the agent of the respondent himself. That evidence of D. W. 59 has to be read only to be rejected. the mistake made by the learned Judge regarding the nature of the evidence given by D. W. 59 does not in any manner vitiate the finding recorded by the learned Judge, which has been referred to above and accepted by us50. A reading of their evidence clearly shows that they are all active workers of the appellant and as such are interested in denying the allegations made against the appellant and his workers, which include those witnesses. We have already referred to the fact that P. W. 22 speaks to D. W. 65 Jamuna Sahi also having gone to the village Harka along with the appellant and was present when the appellant made a request for vote on the basis of caste. There is nothing elicited in then of D. W. 65 that he did not visit P. W. 22 along with the appellant, nor has any answer been elicited from him inn that he was not present when the appellant requested P. W. 22 to accompany him to go and persuade P. W. 15 to support the appellant as he is a Rajput. We are only referring to the total absence of any suggestion in then of D. W. 65 that what P. W. 22 has sated is false58. From the above discussion it follows that the election petitioner, the respondent herein, has adduced reliable oral and documentary evidence to show that the pamphlet, copies of which are Exs. 2E and 2F, containing an appeal to vote on the basis of caste, were got printed by the appellant through his polling agent Naulakh Prasad at the Janhit Press. The said evidence further establishes that the pamphlets were distributed to the voters in the three villages, namely, Uphraolia, Harka and Gorigama, not only by the appellant but also by some of his workers with the consent of the appellant. The evidence further establishes that in the said three villages oral appeal to vote on the basis of caste was also made not only by the appellant but also by other persons, referred to above, in the presence and with the consent of the appellant. Therefore, it follows that the appellant has committed the corrupt practice under Section 123 (3) of the Act59. The second ground on which the election of the appellant was sought to be set aside was that the appellant has committed the corrupt practice of undue influence under Section 123 (2) of the Act, in that, on the date of poll, the appellant, his agents and other persons with his consent or the consent of his election agent interfered with the free exercise of electoral right. In view of our finding that the appellant is guilty of the corrupt practice under Section 123 (3), which by itself is enough to declare the election of the appellant void under Section 100 (1) (b) of the Act, it may not be really necessary for us to elaborately consider the allegation of undue influence made in the election petitionThis finding of the learned Judge is on the basis that so far as these villages are concerned, oral evidence adduced on behalf of the respondent is fully corroborated by contemporaneous documentary evidence. Here again the attack made by Dr. Singhvi against the finding recorded by the learned Judge is that there is no. finding by the learned Judge that the corrupt practice of undue influence has been committed by the candidate or his agent and that there is no. further finding that the persons who are found to have committed this corrupt practice did so with the consent of the appellant or his election agent. Mr. Goburdhun, learned counsel for the respondent has accepted the position that excepting Dharampur he will not be able to satisfy this Court that corrupt practice of undue influence has been committed with the consent of the appellant or his election agent. Therefore, it is absolutely unnecessary for us to consider the discussion of the learned Judge regarding, maksudpur, Sitalpatti, Uhraolia and Ali Neora. Mr. Goburdhun further urged that the findings of the learned Judge in respect of the village Dharampur are fully supported by the evidence on record67. There is no. attempt to discredit the evidence of P. W. 44 regarding his categorical statement that he was prevented from exercising his vote by the workers of the appellant and that prevention took place in the presence of the appellant. When a voter is prevented from exercising his vote by the supporters of the appellant and in his presence and without any attempt made by the latter to stop his supporters from so doing, the only inference is that P. W. 44 was prevented from voting by the supporters of the appellant with the latters consent. If that is so, it follows that there has been a direct interference with the free exercise by P. W. 44 of his electoral right. As this one instance clearly establishes that the appellant has committed the corrupt practice of undue influence under S. 123 (2), it follows that it must be held that his election has to be set aside on this ground also.