Case: Janak Sinha Vs. Mahant Ram Kishore Das

2. In themidterm electionsheld in Bihar in February, 1969, for the Minapur Assembly Constituency No. 65 in the District of Muzaffarpur, eight candidates including the appellant and the respondent had filed their nomination papers and contested the election on behalf of various parties. The appellant was a candidate of the Congress party having a symbol of "a pair of bullocks with yoke" and the respondent was a candidate on behalf of the Soshit Dal, the symbol of which was "Fish". Though there were eight candidates in the field, the main contest was between the appellant and the respondent. The appellant was a Rajput by caste and the respondent a Bhumihar Brahmin. The date of poll was February 9, 1969, but in respect of two polling booths Nos. 57 and 99, there was a repoll on February 12, 1969. The counting of votes took place on February 13, 1969 and the results of the election were declared the same day. The apellant got 33, 903 votes as against the respondent who got 32, 978 votes and there was a difference of 925 votes between the appellant and the respondent. In consequence the appellant was declared elected3. The respondent filed, under SectionsA and 81 of the Act, Election Petition No. 11 of 1969 in the High Court, challenging the election of the appellant on various grounds. According to the respondent the appellant, his agents, workers and supporters, with his consent had committed corrupt practices on a very large scale unders (2) and (3) of Section 123 of the Act4. The first allegation was that the appellant, his agents, workers and supporters, with his consent, had made propagand and canvassed for votes for the appellant orally and through a pamphlet in the name of Rajput caste in different villages from about 10 days before the date of the poll. This canvassing on the basis of caste brought about tension andg between the Rajputs, to which sect the appellant belonged and the Bhumihars, to which sect the respondent belonged. The allegations concerning the caste appeal have been made in paragraphs 17 and 18 of the election petition and particulars regarding this allegation have been given in Schedule II of the election petition. In the first column the names of the persons who committed corrupt practice under S. 123 (3) were mentioned; in column No. 2, the period during which the said practice was committed has been indicated and in column No. 3, the names of places where such corrupt practice was committed, were referred to5. The appellant on the other hand in paragraphs 16 and 17 of his written statement denied these allegaetions and in turn mades against the respondent. He further pleaded that the respondent was also guilty of appealing to voters to vote on the basis of caste. Particulars of such acts of the respondent were given in great detail in the written statement. In particular the appellant pleaded that no. such pamphlet referred to in the election petition has been printed or circulated by him or on his behalf with his consent. As the pamphlet has not been produced, it must be a got up document for the purpose of boosting up the case of the respondent. Regarding the allegations contained in Schedule II of the election petition, the appellant pleaded that the respondents allegations were false and that he has purposely included in the list persons who are hostile or inimical to the appellant6. The second allegation was that the appellant, his agents, workers and supporters, with his consent, committed corrupt practice of undue influence on a large scale under S. 123 (2) of the Act at several places and polling booths. The substance of this allegation was that the appellant, his agents, workers and supporters assaulted, threatened and terrorised the voters of the constituency as well as the respondent, his agents, workers and supporters at several places inclusing the polling booths on the day of the poll and prior to that and thus interfered with the free exercise of their electoral right. As a result of these acts, many voters could not exercise their franchise. In several places ballot papers were snatched away from the voters and many voters were prevented from exercising their votes. Even the respondent was assaulted and was forced to leave the polling station and thus was prevented from remaining in the polling station or near the same, which as a candidate he had a right to do. Particulars of undue influence were given in Schedule I of the election petition. In column No. 1, the names of persons who committed corrupt practice were given; column No. 2, referred to the dates when such corrupt practice was committed; in Column No. 3 places where such corrupt practice was committed were enumerated; and column No. 4 gave the names of persons, on whom undue influence was practised7. All these allegations were again denied by the appellant. According to the appellant, the allegations made in the election petition were very fanciful and had been made in a spirit of revenge in view of the fact that the appellant was consecutively successful in the elections held in 1952, 1957 and 1962. He further stated that in the elections held in 1967, the respondent by adopting various illegal means managed to get elected by a very narrow margin. In consequence, the appellant had filed an election petition No. 4 of 1967, in the High Court, but the same was dismissed on technical grounds. The appellant had taken the matter in appeal to the Supreme Court; but in the meanwhile the Bihar Assembly was dissolved and asmidterm electionswere ordered, the appeal in the Supreme Court became infructuous. The respondent was very unpopular in his constituency and was himself guilty of various corrupt practices committed by him, his agents, workers and supporters and that he has secured bogus votes in the ellection. The appellant in turn made allegations that the respondent, his agents, workers and supporters, with his consent prevented his polling agents from discharging their duty and terrorised the voters. He denied as false the various allegations made by the respondent in his election petition8. While the respondent prayed for setting aside the election of the appellant as void and illegal on the grounds of corrupt practices committed by the appellant, his agents, workers and supporters with his consent, the appellant on the other hand, after denying all the allegations made against him in the election petition as false and frivolous, prayed for dismissal of the election petition with his costs.

Reasoning:
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.