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

2. On April 15, 1957, the respondent Kandaswami whom we will hereafter refer to as the respondent, preferred an election petition under the provisions of the Representation of the People Act, 1951, for a declaration that the election of the appellant was void. The appellant was made the first respondent to the petition but Meganathan and Muthu were not made parties to it at all. Some of the other candidates at the election were also made parties to the petition but it is unnecessary for the purpose of this appeal to refer to them3. The petition was referred to an Election Tribunal for trial. The appellant then made an application to the Election Tribunal which was marked I. A. No. 1 of 1957 for the dismissal of the petition under S. 90 (3) of the Act. That Section provides that, The Tribunal shall dismiss an election petition which does not comply with the provisions of S. 81, S. 82 or S. 117. The appellants case was that the petition had not complied with the provisions of S. 82 Section 82 states:(b) any other candidate against whom allegations of any corrupt practice are made in the petition4. The appellant then moved the High Court at Madras by two applications, one for the issue of a writ of certiorari quashing the order of the Tribunal dismissing his application and the other for the issue of a writ of prohibition directing the Tribunal not to proceed with the hearing of the election petition. The High Court by its judgment dated November 1, 1957,*dismissed both the applications, taking the same view as the Tribunal. Hence this appeal.

Court's reasoning:
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.