j 738

MOHD. YUNUS SALEEM v.

SHIV KUMAR SHAS1RI AND OTHERS.

March 25, 1974

(P. N. BHAGWATI AND P. K. ClosWAMI, 11.]

Rcvr1:sentah_"o11the, Pople1-ct (43 of 1951), Ss. 30, 116--A and 123(1) (A)(a)-Elect1on ·,_, omm1ss1oner if he can alter .date of Poll-Appreciation of evidence by Supre111e Court-Bribe for witlrdrawal after the date fixed for witltdrawal-lf corrupt practice.

A parliamentary nstituency from which election to Lok Sabha took place 1n March 1971 consisted of five assembly constituencies.

The polling at two of them was scheduled to take place on March 1, and at the other three on March 3. 1971. ISth March. 1971 was fixed as the last day for the completion of tho election. The Polling at the first two constituencies took place on Marth

I. 19_71. but. or: ¥arch 2. there was a communal riot as a result of which, the Election Comm.ISS1oner pastponed the poll at the other three constituencies from March 3 to March 9.

After the polling took place the first respondent was ded~ elected.

The appellant filed an election petition challenging the clecti0-!1 of the first respondent alleging several corrupt practices against him, one of which was that on 6th March. tho second respondent, who was one of the candidates. was induced to withdraw from the contest by the first respondent offering to reconunend him to a seat in the legislative council and by a financier offering him a large sum of money; and that tho second respondent, though he declined the offers, did. in fact, withdraw. He also contondcd that the Election ('ommissioner had no power to alter tho date of Poll at the remaining constituencies. Tho election petition was dismissed by tho High Court.

Jn appeal to this Court, tho firnt respondent raised the contention that even if tho facts relating to tho offers were established,, the first respandent would not be guilty of the corrupt practice under s. 123(1)(A)(a), because, the with drawal of the 2nd respondent was after the date fixed for withdrawal from being a candidate.

Dismissing the appeal to this Court.

HELD .(1) The Election Coi; nmissioner had power to alter the date of the poll from 3rd Maren to 9th March in the remaining constituencies. Secs. 57 & 58 could not be invoked by Election Commissioner for this purpose, because they are applicable only in the circumstances specifiod and in the manner provided, in those sections and s. 153. on which the High Court relied, is also F not applicable, because it in terms provides only for extending the timt ftN co1nplcfion of election and not for altering the date of the poH. But s. 30 of the _Repre6entation of the People Act. read with s. 21 of the General Clauses Act gives the necessary power to the Election Commissioner to a1ter the dalt" of the poll.

1.742H; 743F-H; 744C.E) .(2) The amendment of the date of the poll gets en.grafted in the original form no. 1 in pursuanc.o of the subsequent notification made in valid exercise of the power under s. 30 of the Representation of the People Act read \vilh G s. 21 of the General Clauses Act. and therefore, a fresh notification of the date under r.3 of the Conduct of Election Rules. in the requisite form, is not necessary.

[744EG)

(3) If the facts regarding the offers to the second respondent had been established it v:oold amount to corrupt practice within the meaning of s. 123(1) (A)(a) of the Representatin of the eople Act. (a1 Bribery to induce a person to withdraw from being a candidate at an election amoun!S to cor!Ul't practice within the meaning of. the sub-section. It cannot said that !lt!lCC H 1he time for withdrawal of candidature fixed for that purpose in the. appropnatc notification had .aJready expired in this case there coul~ be no. withdrawal of c:111didature after the date.

When s. 123(1)(A){a) speaks of wtthdf!'Wal fro'!' \\being a candidate it is not limited to a candidate who has been validly nom1c

nted and who hs withdraw!\ ea.lier according to law.

The expression "to withdraw from being a Candidate cnnnot be given a restricted meaning and confi!led .to the stage where law permits a cindidate to withdraw from thi.:

lection. For the prpose of the section the words are of wide amplitude to mclude subsequent \vtthdrawal even at the last stage prior to tho poll

(746B

747C] . •

. <? The omiss!on of he. words "retire from contest" from the section as

t _ong1na1ly_ stood is, not s1.gn1ficant, because the dictionary n1eaning of the "''Ord

withdraw' includes to retire from the field or battle or any contest' and it is because the words 'retire from contest' .have become unnecessary '•bat they were advisedly deleted by the legislature.

(746G~H] •

(c) Si11ce purity of elections is the most important object of the Act. a 11arrow meaning to the v.ord "withdraw'' to refer only to lesal withdrawal under

section 37 \\'otdd defeat the very aim.

We have therefore, to give n\Cllning lo the word "withdraw" keeping in mind the object and scheme of the Act with a vie\'.' to effe.ctuate the intention of the legislature to ensure purity in elections; else there will be an absurd poition where actual withdrawal after the time limit by taking bribe: will be free from the vice of corrupt pfacticC" whereas that prior 1.o it \I/ill not be so. Such an intention cannot be attributed to the legislature from deletion of the words ••retire from contest". The worJ .. withdraw'' is. :omprehensive enough to also connote "retir~ from contc:>l".

[747C-FJ

(4j On the c\'idence, however, it could not be held that any com1; it practice had been proved to have been conunitted by the first respondent under s. 123(1) to (4} of the Act. In the matter of appreciation of oral testimo11y in an election di., putc this Court, in an appeal under s. l 16A, must ha\•e COn .vincing and clinching reasons to take a contrary view from that of the High rCol, lrt. It is not enough that. another view is merely possible on the oral l:!vidence.

Strict proof of the allegations is called for and the High Court ha<> :in ihe present case rightly declined to accept the oral evidence of the appCllant's -side and rightly preferred that on the respondeI).t's side. [753A-EJ

C1v11, APPELLATE JuRrsn1cT10N : Civil Appeal No. 282 of 1\17'.!.

From the judgment and order dated the 21st December, 1971, of 1he Allahabad High Court in Election Petition No. 6 of 1.971,

A. Subba Rao and J.B. Dadacha11ji, for the appcllan(

llardyal Hardy, S. S. Khanduja and S. K. Dhingra, for respondent No. 1.

L. N. Si11Jza,, Solicitor General of India and M. N. Shroff, for the respondent no. 2.

The Judgment of the Court was delivered by

Gosw, AMI, J. This election appeal under section 116A of the Re presentation cf the People Act, 1951 (briefly the Act) by the appellant, Mohd. Yunus Saleem, the defeated Congress (R) candidate, is against the judgment of the Allahabad High Court wherein he challenges the election of the B. K.. D. candidate, Shiv Kumar Shastri .(Respondent No. 1) to the Lok Sabha from the 76 Aligarh Parliamentary constituency in the general elections he)d in fviarch 1971- .This constituency consists of five Assembly .C<Jnstituenc1es, namely, 376- Aligarh, 377-Koil, 378-Jglas, 379-Khrur and 380-Chandaus. There

were seven candidates on the run for the election from this coristi- A tuency. The poll was scheduled to take place in Aligarh and Koil on.

March 1,· 1971 and in Iglas, Khair and Chandaus o.n March 3, 1971.

The polling in Aligarh and Koil was completed peacefully on March

I, 1971 and the appellant obtained the highest number of votes as will appear from the chart giycn below ·

Sarra Shri

Amar Singh

Jagdish Gandhi

Pooran Singh

l\Ialan

~Iohd. Yunus

Saleem

Virpal Singh

Shiv Kuniar

Shastri

Saheb Singh

367 City

18,385

44,422

4,719

S58

377 Koil

.559

l,~91

4,165

25,228

1,240

16,260

3,170

378 Jglas

17,134

1,026

42,281

1,653

379 380 Khair Chandau'i Total

1,103

19,372

1,254

53,240

1,671

868'

3,995

4,937

23,583

18,030 124, l 86

1,320 5,462

43,012 180,313

3,076 6,958

On March 2, 1971 a communal riot betwen Hindus .and Muslims took place in Aligarh city and as a result of this the Election Commission ou receipt of reports of th~ local authorities at Aligarh postponed the poll in the reniainining segments from Marc!i 3, 1971 to E

Marc1" 9, 1971. As wilWippear from the abc!Ve chart, during the poll this time on March 9, 1971, the first respon'dent obtained a very high percentage of votes with the result that he was decli'red elected. The 2nd respondent, although a Samyukt Socialist Party candidate (SSP), was sponsored by the four parties alliance consisting of Jan Sangh, Swatantra, Congress led by Shri Nijalingappa, and Samyukt Socialist Party. , F

The appellant alleges several corrupt practices in his election petition before the.'Hizh Court and also raises <:ertain question of law ..

The Chief Election Commissioner has been impkaded as a respondent in this appeal. The High Court has repelled the contentions of the appellant. We are now concerned in this appeal with the following issues:-.

Issue No. 2 : "Whether the order of the Election"Commission adjourning the poll from 3rd March to 9th March wa~

without jurisdictio.n and iIIegal"' ?

Issue No. 5 : "Whether Pooran Singh Malan (respondent No. 2) withdrew from the election on 6th March and asked his supporters to vote instead for respondent No. 1. If so, was this done as a result cf inducements offered at the instance of respondent No. 1" ? ·

MOHD. YUNUS v. s. K. SHASTRI (Gosl\'ami, /.)

Issue No. 7 : "Whether voters were induced by threats oll'ered by Hukum Singh, the polling agnt of respondent No. 1, to promisa not to vote for the petitioner but to vote for respondent No. l (as detailed in paragraph 28 of the petition)"'!

Issue No. 8 : "Whether respondent No. 1 and Kalya11 Singh, M.. L.A. appealed to Hindu voters in Gordha village on 7-3-1971 not to vote for the petitioner because he was a Muslim (as detailed in para 29 of the petition): and whether similar appeals were made to voters by respondent No. 1 and Prakash Vir Shastri, Virendra Varma, Raghunath Singh and Ram Prasad Deshmukh in Khair, Chandaus and lglas bet ween 7·3-1971 and 9-3-1971 (as detailed in para 30 of the petition)"?

Issue No. 8A: "Whether respondent No. 1 and the other persons named in paragraph 30 of the petition and the sta'c ment of further particulars made speeches in Khair, Chandaus and Iglas Tehsils alleging that the petitioner was responsible for communal riots in Aligarh and other place.;, which statements were known by them to be false" ?

Issue No. 9 : "Whether Virendra Varma and Raghunath Singh appealed to Jat voters to vote for respondent No. 1 on the ground that he was the candidate of a party led by Shri Charan Singh (as detailed in para 30 of the petition)" ?

Issue No. 10 : "Whether respondent No. l's election agent Yogendra Pal Singh and Virendra Varma and Charan Singh appealed to Jat and Thakur voters at Iglas on 7-3-1971 not to vote for the petitioner as he was a Muslim and not to allow Muslim, Jatav and Brahmin voters to vote (as detailed in para 34 of the petition)" ?

Issue No. 11 : "Whether at the same mectlhg men•ioned in para 34) Yogendra Pal Singh falsely stated that the peti, tic.ner was a Razakar of Hyderabad and had instigated the Aligarh riots" ?

Issue No. 12 : "Whether respondent No. l has commi•ted corrupt practices as defined in clauses (1), (2), (3), (3A) and ( 4) of section 123 of the Representation of the People Act"?

The learned counsel for the appellant has firstly addressed us on the 2nd issue and we will, therefore, take the same first.

To appre ciate the point i.n controversy, some 'facts may be stated :

The Election Commission published a notification in the Ga7.etle of India Extraordinary dated 27th January, 1971, fixing the following dates for the purpose of the election under section 30 of the Act :

February 3, 1971-The last date for making nominations.

February 4, 1971-The date for the scrutiny of nominations.

February 6, 1971-The last date for the withdrawal of candidatures.

Various dates between March 1, 1971 and March 5, 1971-For holding the poll in different constituencies in Uttar Pradesh.

March 15, 1971-The date before which the election shall be completed.

The notification fixed March I, 1971, for the poll in the A!igarh and Koil segments and March 3, 1971 in the Iglas, Khair and Chandaus segments.

The learned counsel for the appellant submits that the Election Commission had no jurisdiction or authority to alter the dates fixed under clause (d) of section 30 in the aforesaid notification except under circumstances mentioned in sections 57 and 58 of the Act.

We may, therefore, first look at sections 57 and 58 of the Act. Section 57 in terms provides for a situation when the proceedings at any poHing station in an election are interrupted or obstructed by any riot or open violence, or if it is not possible to take the poll at any polllllg

station on account of any natural calamity, or any other sufficient cause. Section 57 empowers the presiding officer or the returning officer to adjourn the poll to ano:hcr date in any of those circumstances.

The returning officer under sub-section (2) has to report the circumstances to the appropriate authority and the returning officer next fixes appropriate dates for poll with the previous approval of the Election Commission. Under soction 57(2) when the poll has to k post-· paned after the same has commenced and voters have exercised their right to vote for some time, there is provision for fixing the hours during which the next poll shall be taken and there is a direction in this sub-section not to count the votes cast at such election until such ad- }ourncd poll has been completed. Section 57, therefore, does not deal with •he direct exercise of power by the Election Commission in altering dates of poll under the conditions specified in that section. Section

58 provides for a contingency where a ballot box used at a polling station or at a place fixed for the poll is unlawfully taken 011t of the custody of the presiding officer or the returning officer, or is accidentally or intentionally destroyed or lost or is damaged or tampered with to such an extent that the result of the poll at that polling station or place cannot be ascertained or any such error or irregularity in procedure is likely to vitiate the poll is committed. therein. In such an event the returning officer has to report the matter to the Election Commission who after. taking all material circumstances into account has to t1ke a decision to declare the poll void and appoint a day and fix the Jiours for taking a fresh poll after an appropriate notification in that behalf. The Election Commission under this section may even decide against a fresh po!I after considering •he various circumstances and direct the returning officer for the further conduct and completion of the election. It is, therefore, clear that these two sections can be invoked only in very specified circumstances and in the manner provided therein. On the other hand, our attention is drawn to two oth<r

sections, namely, section 30 and section 153 of the Act, which were

MOHD. YUNOS V, s. K. SHASTRI (Goswami,/.) 743

A relied upon by the respondents in. the High Court and the submissions were accepted there .. We may read these two sections :

·-r ' .. , •

Section 30 : "Appointment of dates for nomi, nations, etc.-

As soon as the notification calliJ.lg upon a constituency to elect a member or members is issued, the Election Commission shall; by notification in the Official pazette, appoint- ( al the last date fr maki, ng nominations, which shall be

the seventh day after the date of publication of the first-mentioned notification or, if that day is a public holiday, the 'next succeeding day which is not a public holiday; ( b) the date for the scrutiny of nominations, which shall be the day immediately following the last date for asking nominatio.ns or, if that day is a public holiday, the next succeeding day which is not a public holiday;

( c) the last date for the withdra\Val of candidatures, which shall be the second day after the date for the scrutiny of noininations or, if that day is a public holiday, the next succeeding day which is not a public holiday;

{ d) the date or dates on which a poll shall, if necessary, be take.n, which or the first of which shall be a date not earlier than the twentieth day after .the Jast date for the withdrawal of candidatures; and

( e) the date before which the election shall be completed".

Section 15 3 : "Extension of time for completion of election- It shall be competent for the Eiection Commission !or reasons which it considers sufficient, to extend the time for the completion of any election by making necessary amendments in the notification issued by it under secticln 30 or sub-section

(1) of section 39".

The High Court has held that "sectio.n 153 can be construed as declaring the competency of the Election Commission to extend time under clause (d) as well as clause (e) of section 30". We are w1ablc to ae with the High Court .that section 153 can be properly invoked in this case to the aid of the Election Commission in changing the dates of poll for the three remaining constituencies, speeified in the notification under .section 30'(d) of the Act. Secti6n 153 in terms pro vides for extending "the time for completion of any election by making necessary amendments in the notification issued by it under section 30 .....• ". Section 30 (e) deals with "the date before which the election shall be completed". It is clear in this case, as set out earlier, that the last date for completion of the election was fixed by the appropriate notification to be 15th March, 1971 and the altered date of poll .in this case from 3rd to 9th March is within. the last date for completion of the poll under section 30(e). Section 153, therefore. cannot

come to the aid of the Election Commission to alter the date of poll, A ns has been clone in this case, as the said section is inapplicable to the

facts and circumstances of this case. We may, therefore, examine whether the Election Commission bas got power to alt!'r the date of poll under section 30 of the Act read with section 21 of the General

Clauses Act which is undoubtedly applicable in interpretation of the proviS1ons of the Act. We may read section 21 of the General Clauses B Act.

Section 21 : "Where, by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye-Jaws is cunforred, then that power includes a power, exercisable in the like manner and subject to the like sanctio.n and conditions if any, to add to, amend, vary or rescind any notifications, crdcrs, rules or bye-laws so issued". .

 The Election Commission in this case exercised power under section 30 of the Act and issued the .notification appointing the various dates mentioned therein for the purposes specified. Once this power is conferred under section 30 upon the Election Commission, the power to amend the - amo,. which will include alteration of the dates of poll, can be exercised under secticn 21 of the General Clauses Act. There is, teerefore, no merit in the contention that the Election Commission had no power or jurisdiction to alter the date of poll from 3rd March to 9th March" 1971, in the remaining constituencies in this case. Issue No. 2 is, therefore, rightly decided by the High Court although we do not agree with the High Court with regard to the construction of sec tion 153 of the Act In the view we have taken, it is not necessary for us to consider whether Article 324 can be invoked in this case in aid of the power to alter the date of poll by the Election Commission.

The learned counsel for the appellant also submits that there should have been a fresh notification of the date in form No. 1 under rulc 3, read with. section 31 of the Act, of the Conduct of Elections Rules 1961. We -are, however, not impressed by this submission as the amendment of the date of poll gets engrafted in the original form in pursuance of the subsequent notification dated 2nd March, 1971. made in valid. exercise of the power under section 30 of the Act, read with section '.21 of the General Clauses Act.

We now turn to issue No. 5 relating to the corrupt practice of bribery defimod under section 123(0.(A) {'a) of the Act, The case of the appellant with regard to this. issue is as follows :-

"At about 7.00 P.M. on 6-3-1971 there was a meeting at the J\ligarh residence of K. N. Agarwal(said to be one of the financiers of the B . K. D .

Party in . the elec•ion), . which, was attended by Shiv Kumar Shastri (respondent No.)), Pooran Singh Malan (respondent No. 2), Vircndra Verma (Hom~ Minister of the then U. P. Government),

urendra Kumar (another alleged financier of the B. K. D.

Party), and a number of other persons. Oiie A•nia Deo %arma stood up and made an appeal. to Shastri and Malan

, <~ •

that only one of them should stand for election and thereupon Shastri, Malan and Surendra Kumar went into an adjommg room, where Surendra Kumar offered to pay Rs. 30,000/· to Rs. 35,000/- to Malan if he would withdraw from the co.ntest, white Shastri told Malan that he would recommend him for a seat in the Legislative Council. On this Malan said that he had no need of money and as regards the seat in the Council, that was for the future to decide, but as they were all asking him to withdraw, he would comply.

The three of them then joined the others and Malan ,, nnounced his withdrawal and requested his supporters to . transfer their allegiance to Shastri".

Before we discuss the evidence, we may deal with a question of law. addressed by Mr. Hardy, learned counsel for the contesting respondent.

According to the learned counsel, even assuming that any gratification was offered to Malan on 6th March, 1971, to induce him to refrain fron1 contesting the election, that would not amount to a corrupt practice within the meaning of section i23(l}(A)(a) of the Act.

We may, therefore, read that part of the section :

Section 123: "Corrupt practiceS-The following shall be deemed to be corrupt practices for the purposes of this Act :-

(1) 'Bribery', that is to say,-

( A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, di rec Uy or illr directly of inducing-

( a) a person to stand or not to stand as, or to. withdraw

or not •o v.ithdraw from being a candidate at a.n election, or;''

Th<! allegation in the present case is that an offer of gratification wa~, mode to Malan to induce him "to withdraw from being a candidate".

It is submitted that since. the time for withdrawal Qf candidature ha<t already expired, there can be no withdrawal of candidature after the" date fixed for that purpose in the appropriate notification to come within the mischief of section 123(l)(A)(a). It is further submitted that even though he may not have taken any part in the election after the expiry (If. the date of withdrawal, he will remain a contesting can didate •houghout the clectio.n. n is also pointed out that in fact Malan obtained vote.s in the election which was held on 9th March, 1971 itr various constituencies as will also appear from the chart given above.

The learned counsel also drew our attention to the earlier law on the" subject where a provision under section 123(0(a) stood as follows:-

"a person to stand or not to stand as or to. with-draw from being a candidate or to retire from contest, at an election;''

5';·

Mr. Hardv .submits that the words "to retire from contest" are omitted from the 'present section, which, according to him, is very -significant.

He, theretore, submits that since Malan could not in !aw withdraw from the candidature on 6th March, 1971 and there is no question of retiring from the contest under the present Jaw, _no corrupt practice has bcrn committed within the meaninz of section 123(l)(A)(a}.

JI is well settli:d that election under the Act is from the date of publication of the notification calling the election to the date of declaration of the result of the election, both days inclusive. We have, therefore, a torminus a quo and terminus ad quern under the law. The word "candidate" is defined for Part VI (Disputes regarding Elections) and !'art VII (Corrupt Practices and E1ectoral Offences) under Section 79 (b} and it mea.ns "a. person who has been or claims to have been duty nominated as a candidate at any election and any such person shall be deemed to have been a candidate as from the time when with the election in prospect; he began to hold himself out as a prospective candidate".

Section 32 provides for nomination of candidates for election. Under section 36(8), "f=ediately after all the nomination papers have been scrutinised and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his hotice board"'. Section 37 provides for withdrawal of candidature within the time. specified therein. Section 38 provides for publication of list of contesting candidates, that is to say, candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidature within the said period.

The word "contesting candidate" as such is not defined in the Act, but the word "candidate" under rule 50(a} and rule 28(a} of the Conduct of

Elections Rules 1961 means a contesting candidate. The question is whether after the time for withdrawal has expired and a JiSt of contesting candidates has been published, withdrawal thereafter from the contest on receipt of bribe will be within the mischief of section 123(1)(Al(a). -

We have already set out the material portions of section 123(1} (A} as well as the earlier section to which our attention has been drawn. It is strimuously submitted by Mr. Hardy that the omission

__ -_of the words "retire from contest" is very significant and the legislature now confines withdrawal under section: 123(l}(A}(a) to the stage as envisaged under section 37 and not thereafter. The Shorter Oxford English dictionary gives the meaning of the word "withdraw" (verb intransitive} to go away or retire fro!!! the field of battle or any contest.

Withdraw or not to withdraw, therefore, includes "retire from contest" or not to retire from contest. There is,, therefore, nothing significant etymologically in the deletion of the words "retire from contest". When, therefore, section 123(l}(A) soeaks of withdrawal from being a candidate, it is not limited to a candida•e who has been vali'dly nominated and who has withdrawn earlier according to law.

It is because of this reason that the words "retire from contest" become unnecessary and were advisedly deleted by the legislature.

Again looking frcm another angle, section 123(l)(A)(a) has got two stages; the first stage relates to the period when even before filing of nomination paper a person is contemplating to stand or not to stand as a candidate in the election [see definition of candidate under section 79(b)]. The second stage is reached after filing of the nomination paper when law gives a candidate requisite lime to withdraw from the cindidature. It is true that the words "to retire from contest" in the old provision arc now deleted and the provision is recast by adding the words "not to withdraw" in addition to the words "to withdraw" in the earlier provision.

We arc, however, unable to hold that the expressicn "to withdraw or not to withdraw" from being a candidate has only a r"strictcd meaning to be confined to the stage where law permits a candidate to withdraw from the election.

For the purpose of section 123 the words "to wihdraw or not to withdraw" from being a candidate are of wide amplitude to include a subsequent withdrawal or nonwithdrawal even al the last stage prior to the poll.

We may also consider whether deletion of the aforesaid words makes any difference under the scheme of the Act. "Since purity of elections is the mcM important object of the Act, a narrow meaning to the word

"withdraw" to refer only to legal withdrawal under section 37 would Jcfeat the very aim.

We have, therefore, to give a meaning to the word "withdraw" keeping in mind the object and scheme of the Act with a view to effectuate the intention of the legislature to ensure purity in elections; else there will be an absurd position where actual withdrawal after the time limit by taking bribe will be free from the vice of corrupt practice whereas that prior to it will not be so.

Such an intention cannot be attributed to the legislature from deletion of the words "'retire from contest".

The word "withdraw" is comprehensive enough to also connote Hretire from contest"." We are, therefore,. unable tci accept the submission that even if the facts alleged be established, there can be no corrupt practice within the meaning of seclion- 123( 1) (A) (a) of the Act.

We will, therefore, deal with the allegations to see how far they are established on the evidence.

We have already set out the allegations with regard to this issue and the first respondent has denied all the allegations. His case is that no bribe was offered nor any promise made to. Malan and in actual fact Malan did not withdraw from the contest and continued to fight the election to the end. The solitary witness who claims to have been present when the offer of gratification was made is Dcvendra Pal Singh (P.W. 20). This witness claims to have been one of the workers of the first respondent and indeed propooed Shastri's nomination.

He changed his allegiance from one party to another, namely, from the B.K.D. to the Congress (R) in September 1971. We are unable to hold that the High Court.js wrong in not placing reliance upon his evidence. The High Court has also found the corroborating evidence equally unreliable. .Since we agree with the appreciation of the evidence of the witness by the High Court with regard to this.charge, we may only briefly allude to the other evidence to demonstrate its unreliability. Radha Raman Dhwaj Prasad Singh (P.W. 21) was examined to support these allegations.

He hu.s been a B. K. D. worker since 1969 and he claimed also to be in that

748 SUPREMll. COUR'{. REPORTS tl974J 3 s.c.a.

' party on the date (12-12,1971) he gave evidence for the appellant.

He admits to have worked for the first respondent in 1971 election.

Although he did not depose to the entire episode and did not go into .the room where the discussion took place with regard to the bribe and .the promise of a seat in the Council, he stated that Malan announced .that he was withdrawing in favour of Shiv Kumar Shastri and told his workers to see that Shastri was successful.

He admits to have taken ll!llll from the Aligarh Cooperative Bank at a time when Devendra Pal

Singh (PW 20) was the Chairman of the Bank. He has not received .any recovery notice.

This witness has also changed his loyally for .reasons best known to him and cannot be considered as a reliable witness in an election matter where one may not fail to come across truth being sacrificed at the altar of political expediency.

The next witness is Shashi Bhushan (P.W. 32). He has been a Member ot Parliament since 1967. He went to Aligarh on 7th March, 1971, to 'help the appellant in his election.

He met Pooran Singh Malan on 7thMarch, 1971, in Aligarh.

He asked him why he was withdrawing from the election since he had read about this in an Agra news paper .called "Amarujwala", which, however, has not been produced . .According to his evidence, Malan told him that the atmosphere had •Changed since the communal riots and the grand alliance which had been supporting him was no longer supporting him. He further stated ''° this witness that he had be.en promised a seat by Shiv Kumar Shastri in the .Legislative Council.

He further stated that he was going to a meeting of Shastri to announce his withdrawal.

This videncc is , absolutely improbable in view of P.W. 2l's statement that Malan had .announced his withdrawal on the previous day, viz., 6th March, 197L Tt is not easy to comprehend why Malan should have at all cxpo5cd him.- self to unsavoury comments and other consequences by stating to this witness in the manner he is alleged to have done.

We cannot say lhat the High Court has wrongly rejected the testimony of P.W. 32. Another witness is Anand Pal (P, W. 10) who attended, according to. him, certain meeting at Gordha Bazar on 7th March, 1971. He deposed to rhe effect that KaJyan Singh was addressing the meeting and Kalyan Singh while addressing the meeting said, "he had got Pooran Singh Malan to withdraw'', so that all Hindus could unite to vote for a Hindu.

Shiv Kumar Shastri also repeated the same things.

He said he was a staunch Hindu and they should vote for him and he bad got Malan to stand down". It is difficult to believe that the first respondent woukl expose himself in such an open manner by stating in public that "he had got Malan to stand down".

This Was not at all necessary to state.

Such a serious charge cannot be established on mere statcmem of this kind.

Gajendra Singh (P.W. 18) is another witness to depose about the withdrawal of Malan amongst other things.

He is a member .:if s.K.D. Party and was a polling agent of Mrs. Gyatri Devi (wife of Sri Charan Singh) in 1967. In 1971 Parliamentary election k worked for'the first respondent and yet he went against him to depose against his interest. It is difficult to place any reliance upon such a witness and the High Court has rightly rejected ))is testimony.

Kishan Singh (P.W. 23) also deposed that he was present in a meeting at Iglas on /th March, 1971 and he heard Jogendra Pal Singh, election agent <>f

the first respondent, speaking in the meeting to the cf!ect, among•t -0lher things, "that Malan had bce.n made to withdraw and votes should

now go to Shastri who was of Charan Singh's party". This is llOt at all direct evidence about the allegauons which are made. by the appellant

to support the charge.

Ram Das Singh (P.W. 19) was also examined with reference to this charge.

His evidence too is not direct On the point and cannot be held to be at all helpful in establishing th" charge.

On the side of the respondents, the allegaticJts have been denied by Virendra Varma (R.W. 7) and also by Mahendra Singh (R.W. 3). In view of the nature of the evidence on the side of the appellant it is not even necessary to refer in detail to the respondent's evidence.

A grievance was made by the learned counsel for th~ appellant that a petition was made by the appellant for examination of additional witnesses and the High Court wrongly rejected the same.

We frnd from the order of the High Court that the party had been warned that "any

proposed addition to the list of witnesses would have to be justified". 'fhe High Court found that beyond saying that their names were left out "by inadvertence or oversight" no other sufficient ground was giYCn by the appellant to justify his prayer. We, therefori, do not find any Justification for the grievance on this score. Another petition was also filed by the appellant on 18th November, 1971, for examination of Pooran Singh Malan (respondent No. 2) as a witness. The High Court rejected the prayer on the ground that his name did not figure in the list of witnesses supplied on 9th November, 1971. Since Malan is a respondent, who on the proof of the averments could have been named under section 99, the appellant cannot mnke. a grievance for rejection of his prayer. It is not possible for this Court to interfQrc with the discretion exercised by the learned trial 1udge in a matter like this.

We now come to issue No. 7. This issue is with regard to the cot' rupt practice of undue. influence under section 123(2) of the Act. TI1e allegations are that on 7th March, 1971, two days before the poll, the first respondent visited the village of Sapera and after collecting a number of Hindus at the chaupal of the Sarpanch, Hukum Singh, went, along with them to the Muslim quarter of the village and by means of F 'threats forced the Muslim voters of that place to swear by the Quran that they would vote for him and not for the appellant or any other candidate. After the Muslims had. taken the oath, Shastri is alleged to have warned them that if they d1d not act in accordance with the oath, they would be in danger of divine displeasure. The witnesres examined by the appellant for establishing this charge arc Raghubir

Singh (PW 11), Rafiq (PW 14) and Shcodan Singh (PW 15). These witnesses are residents of Sapera. Both PWs 11 and 15 admit that they are supporters of the Congress and were supporting the Congress in the election but claim that on account of Shastri's visit to the villag~ on 7th March, J 97 J, they turned over to him. Even then they ha\'c come forward to give evidence against Shastri in this case. The High Court has given cogent reasons for discarding their testimony and we ore unable to take a contrary view.

P.W. 14, Rafiq, is nlso undepend-

II able.

Although he spoke about the swearing by the Quran at the mosque, he did not know the name of the Mulla.. He has no opinion nf his own and admitted that when asked by Shastri and others lie toltl that he would vote "as they directed". Finally he did not go lo \'Ole

on the day of poll. Besides, their statements are satisfactorily rebutted . A by the evidence of the first respondent, R.W. 1, Giraj Singh and R.W. 8 Harl Singh, the polling agent of the first respondent. We are satisfied that the High Court has correctly appreciated. the testimony of these witnesses with regard to this charge.

We will now deal with issues Nos. 8, SA, 9, 10 and 11.

These issues are interconnected and relate to the allegations made in paragraphs 29, 30 and 34 of the election petition. Tuey refer to a number of meetings held at various places, namely, Gordha, lglas, Jatari, Gaghana and Beswa, on 7-3-1971 and 8-3-1971, at whiclJ speeches were made either by the first respondent or by his agents and supporters.

Since we agree with the conclusions reached by the High Coun with regard to the proof of the various allegations, we do not propose to deal exhaustively with the evidence and only make a brief reference to some broad features.

Meeting at Gordha :

The allegations are that on 7th March. 1971, in village Gordha in the afternoon at weekly bazar, Kalyan.Singh, M.L.A., addressed a huge gatheriog in the following terms :-

"In Aligarh Muslims at the instance of the petitioner have chopped off the breasts of the Hindu women and have inllicted bodily injuries.

Now I ask every Hindu who is present in this gathering : Arc you so shameless to vote for a Muslim candidate?" He posed a question that you are the descendants of Shivaji and Rana Pratap and you should see that the butcher miyan (i.e. the petitioner) is defeated.

He also said that for this purpose only we got Shri Pooran Singh Malan, respondent No. 2, to withdraw his candidatwe so that Hindu votes may not be divided and a Muslim candidate may not win the election".

It is fwther stated in paragraph 20 of the. petition that "the first respondent was also present from the very beginning at the meeting and he also addressed the gathering supporting Kalyan Singh and requested them to vote for hi!ll as he was a Hindu and that they should not vote for the petitfoner who was a Muslim butcher, whose members of the community butchered the_ innocent Hindus and looted their properties in Aligarh city".

To establish the charge the appellant examined Kcsho Deo Haryana (PW 6), Khacheru Lal (PW 8), Subcdar Singh

(PW 9) and Anand Pal (PW 10); The first respondent examined himself (RW 14), Nern Singh Chauhan-(RW 5) and Jaipal Sineh

(RW 6).

P. IV. 6 (Kesho Deo.Haryana) : He is a counting agent of th~ appellant and was working for him. He is a Congress (R) worker.

He does belong to Gordha village.

He went . there for propaganda work for the appellant. Though he claims that he was present at the meeting held at Gordha on 7th March, 1971, and that offensive speeches . were made by Kalyan Singh and the first respondent at the meeting, he deposed to the following c(fect :-

.__ c.. ,

....

• <

"I. sent no written report about the speeches to the authorilies.

I made no written report to any one.

I merely reported orally to our President. .• He made a note in a file".

Such a file was not produced to corroborate his testimony.

P.IV. 8 (Khacheru Lal) : He does not belong to Gordha; his village is two miles from Gordha. He states that there is a Sunday market in Gordha and that he attended the meeting held there on 7-3-1971.

He did not attend any other meeting. He has further stated that he does not know how many candidates were contesting the election. He even does not know which party Pooran Singh Malan, respondent No. 2, was representing, though he alleges that Kalyan Singh in his speech at the said meeting inter alia, said "he had got Malan to withdraw". He could not also name the parties whose representatives had gone to his village in connection with Votes; nor could he give the name of any one who went there to carry on propaganda.

P. IV. 9 (Subedar Singh) : He states that he attended meetings at Kashipur Power House and at Nawala, but could not remember the dates of these meetings.

Although he stated that only Bir Pal Singh made a speech at the Kashipur meeting, he could not reproduce what Bir Pal Singh had said in the course of his speech. He gave the same pattern of evidence with regard to the Nawala meeting and could not give any idea about the speech that Kesho Deo Haryana made there.

He did not make any notes of the speeches at Gordha meeting and did not report to any one about it.

P. IV. 10 (Anand Pal) : He states that he made no written report . . about the Gordha meeting, nor did he make any notes about the E meeting.

He was asked by Babu Lal, former Chairman of the Municipal Board of Aligarh and an active Congress (R) worker, to give evidence. He gave him his ticket at the railway station ::nd told him that he could stay in the Congress office.

These allegations have been denied by R. W. 14 (the first respondent), R.W. 5 (Neem Singh Chauhan) and R.W. 6 (Jaipal Singh) F as will appear from their evidence which we have closely examined.

Meeting at lglas

 Thecappellant's case is that a meeting was held at Jglas at the Jawahar Inter College at 8.00 A.M. on March 7, 1971. Ho examined Gajendra Singh (P.W. 18) and Ram Das Singh (P.W. 19 J, Kishan Singh (P.W. 28) and Brij Lal Sharma (P.W. 31). P.Ws. 18 and 19 G were the active workers of the B.K.D. party yet they deposed that on hearing the allegations against Yunus Saleem and the Muslims of Aligarh . they changed their minds and worked day and night for the success of the first respondent. Even at the time of giving evidence they claimed to be in favour of the B.K.D. party, yet came forwad to give evidence against the successful B.K.D. candidate. Kishan Singh (PW 23) is a member of the Aligarh District Congress Co=ittee and claims to H have gone to the meeting organised by the rival party iµ order to find out what was being said. He, however, made no report about the unfa;; ful propaganda being carried on at this meeting to the election

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752 SUPREMI: C'..ltraT REPORTS

[197 4] 3 S.C.R.

authorities. He was conscious that this meeting held within 48. hours k of the time fixed for the closing of the poll was an illegal one, yet he made no report to the authori!ies about this. Brij Lal Sharma (P.W.

31) is also a supporter of the Congress (R). Even he aid not make any report to any one about what he had heard in the inoting. The High Court has observed tl>at "the unreliability of the petitioner's allegations regarding this alleged Jglas meeting stands further more revealed by the discrepancy between the testimony of these witnesses • and the details given in the statement of further particulars filed by the petitioner on 26·8-71". It is also, disclosed in the further particulars "that among those who addressed the meeting held in Jglas at 8.00 P.M. on 7-3-1971 was Chaudhary Charan Singh, but none of four witnesst'S deposes to Chaudhary Charan Singh's participation in the meeting and from the statement of Brij Lal Sharma it is clear that Chaudhary Charan Singh did not alt.end it". As against this, we have C the evidence of Ramesh Chandra (R.W. 10) and Virendra Varma (R.W. 7) who deposed denying the allegaticins.

Virendra Varma (R.W. 7) who was then the Home Minister of U.P. frankly admitted that he had been to Iglas on 7-3·1971 in order to meet the B.K.D. workers of those places and not hold any public meeting or to make any electioneering speeches. The High Court has accepted his testi-

..J. mony and we have no reason to disagree with the conclusions reached D by the High .Court with regard to these allegations being not established against the first respondent.

Meetings at Jatari, Gabhana and Beswa : It is also alleged in the further -particulars filed by the appellant in the High Court on 26-8-1971 that a meeting was held at Jatari at 10.00 E A, M. on 7-3-1971. The appeilant examined Bed Vir Singh (P.W. 16) ' and Govardhan Singh (P.W. 17) to establish the allegations with regard to the. speeches made by Mahendra Singh (R.W. 3), YC@Cndra

Pal Singh and Virendra Varma (R.W. 7). There was also another meeting at Gabha:ia Village at 11.00 A.M. on 8-3-1971 at , which speeches were said to have been ma.de by the first respondent and Prakuh Vir Shastri, Genenl Secretary of the B.K.D. The appellant's F witnesses with regard to this meeting are Raj Kumar Sini; h (P.W. 24), Ombir Singh (P.W. 25), 01etanyn Raj Singh (P.W. 26) am! Dev Dutta Bhardwaj (P.W. 29). To refute allegations made by these witnesses, the first respondent examined himself (R.W. 14), fodh Pal Sil!lh (R.W .. Jl) and Raghunath Prasad Sharma (R.W.

12). A meeting was also held, according to the appellant, in tbe village of Beswa <'n 8-3-1971 at 12.30 P.M. at whicb Pooran Singh Malan, Gi Y otmdra Pal Singh and Virendra Varma are said to have made

obje<.'tiooable spc.ecbcs.

Evidence was led by the appellant" with regard to this meeting by examining Radha Raman Dhwaj Prasad Sin)!h (P.W. 21) and Harcbaran Lal (i'.W. 22). Virendra Varma (R.W. 7) and Virendra Singh (R.W. 9) denied the allegations.

The first respondent also produced rebutting evidence with regard to each of these alleged meetings.

We have examined the evidence in regard to each or tlic a£0t'e8aid !l'eetings.

The High Coitrt after a correct appreciation of the evidence

A led by the appellant came to the conclusion that tl1e evidence produced by the respondent has to be preferred and beld that allegations and imputations alleged to have been made in these meetings were not established.

We have en taken through the evidence by the learned counsel for the appellant and we are unable to hold that another view with regard to the oral testimony of tlie appellant's side is even possible in this case. Although we have referred to the evidence with regard B to two meetings earlier in the judgment, we do not propose lo restate the evidence and the improbabilities again since we are in complete agreement with the conclusions with reg_ard to all these charges reached by the High Court.

In view of the natue of the evidence Jed by the appellant with regard to these meetings and its refutation by the witnesses 0! the first c respondent, we have no reason to differ from the High Court's conclusion that the allegations have not been established.

In the matter of appreciation of oral testimony lit an election dispute, this Court in an appeal under section 116A must have convincing and clinching reasons tci take a contrary view from that of the High Court.

It is not enough that another Yicw is merely possible to take on the oral evidence. Strict proof of the allegations is called for D and the High Court has, in our opinion, rightly declined to accepnhe oral evidence of the appellant's side and rightly preferred that of the respondent's side.

We do not feel at all justified in this case to take a contrary view. We, therefore, hold that Issues Nos. 8, 8A, 9, 10 and 11 are correctly decided by the High Court. We have no hesitation to hold that the election petition was rightly dismissed. As for Issue No. 12, it is a consequential issue and in the view we have takn in the E foregoing discussion it was rightly decided against the appellant. We hold that no corrupt practice has been proved to have been committed by the first respondent under section 123(1), (2), (3), (3A) and

(4) of the Act.

In the result the appeal fails and is dismissed with costs.

V.P.S.