Case: Bachan Singh Vs. Prithvi Singh &amp; Ors

1. Prithvi Singh Azad (thereinafter referred to as the returned candidate), Bachan Singh, Naurang Singh and Lachchman Singh contested the election to Punjab Vidhan Sabha from the Khanna (Reserved) Assembly constituency. Azad was the nominee of the Congress Party and Bachan Singh of the Akali Dal.2. The poll was held on March 11, 1972. On March 12, 1972, Azad was declared elected. He secured 25984 votes, whereas Bachan Singh appellant No. 1 polled 24,865 votes. The other two forfeited their securities.3. On April 26, 1972, Bachan Singh, the unsuccessful candidate and one elector, Harcharan Singh, jointly filed an election petition under the Representation of the People Act, 1951 challenging the election of the returned candidate on several grounds. In the event of Azads election being set aside, Bachan Singh claimed a further declaration under Section 101 of the Act of his own election.4. The petition was dismissed by the High Court. Hence this appeal by the petitioners.

Reasoning:
10. The contention cannot be accepted.11. Firstly, we do not think that the finding of the High Court that R. W. 2-and not C.W. 1 - was the Polling Agent of the Respondent, can be said to be palpably wrong necessitating a reappraisal of the evidence by this Court Secondly, even on the assumption that L/N Gurdev Singh C.W. 1, was the person who had been appointed as the polling agent, the evidence on the record was not sufficiently clinching to bring home the charge to the Respondent.12. L/N Gurdev Singh (C.W. 1) himself had knocked the bottom out of the petitioners case. The Lance Naik while admitting that he had canvassed for votes for the returned candidate, categorically asserted that he did such canvassing on his own and not in the company of the respondent. The Lance Naik was examined as a court witness. The appellants had a right to cross-examine him. But they did not avail of this right. They did not put any question to the witness to challenge his account. L/N Gurdev Singhs statement therefore, that he had never canvassed with or at the instance of the returned candidate, would be deemed to have been accepted by them. C.W. 1 was the keystone of the arch which the petitioners tried to build to sustain this charge. Failure of C.W. 1 therefore, to support the partisan P. W.s. on all the material facts constituting the charge, must lead to the collapse of whole arch.13. Moreover, since the deletion of the words "or a polling agent or a counting agent" from Explanation (2) of Section 123 (7) by the amending Act 47 of 1966, a member of the Armed Force merely by acting as a polling agent, is not deemed to assist in the furtherance of the prospects of a candidates election within the contemplation of S. 123 (7).14. We would therefore reject the first contention and affirm the finding of the court below on thisin the light of the Proviso, Clause (2) of S. 123 does not bar or penalise legitimate canvassing or appeals to reason and judgment of the voters or other lawful means of persuading voters to vote or not to vote for a candidate. Indeed such proper and peaceful persuasion is the motive force of our democratic process.20. We are unable to appreciate how the publication of this poster interfered or was calculated to interfere with the free exercise of the electoral right of any person. There was nothing in it which amounted to a threat of injury or undue inducement of the kind inhibited by Section 123 (2).21. Nor could the publication of this poster fall within the ambit of S. 123 (7). The members of the Armed Forces spoken of in this Clause mean persons in flesh and blood and not their inanimate photographs.22. In short the publication of the poster was an act of impropriety but not one of corrupt practice falling within the mischief of S. 123.23. No other point has been argued before us.The contention is ingenuous but unsustainable.19. Doubtless the definition of undue influence in(2) of Section 123 is couched in very wide terms, and on first flush seems to cover every conceivable act which directly or indirectly interferes or attempts to interfere with the free exercise of electoral right. In one sense even election propaganda carried on vigorously, blaringly and systematically through chrismal leaders or through various media in favour of a candidate by recounting the glories and achievements of that candidate or his political party in administrative or political field, does meddle with and mould the independent volition of electors, having poor reason and little education, in the exercise of their franchise. That such a wide construction would not be in consonance with the intendment of the legislature is discernible from Proviso to this Clause. The Proviso illustrates that ordinarily interference with the free exercise of electoral right involves either violence or threat of injury of any kind to any candidate or an elector or inducement or attempt to induce a candidate or elector to believe that he will become an object of divine displeasure or spiritual censure. The prefix undue indicates that there must be some abuse of influence. Undue influence is used in contra distinction to proper influence. Construedin the light of the Proviso, Clause (2) of S. 123 does not bar or penalise legitimate canvassing or appeals to reason and judgment of the voters or other lawful means of persuading voters to vote or not to vote for a candidate. Indeed such proper and peaceful persuasion is the motive force of our democratic process.