-439

BACHAN SINGH

PRITHVI SINGH & ORS.

February 5, 1975 [A. ALAGffiISWAMI AND R. s. SARKARIA JJ.]

Represntatlon of tlie Pf!op/e 1ct !951-S.123(2) and (7)-Publicativn of po.iters with pictures of Prime Minister and Chiefs of Staff-Whether amounts ta undue influence.

The appellant in his petition challenging the electioa of the. responJcnt leged (1) <hat the respondent had ?een guilty of committing a corrupt prachce oder s.123\7) of the Representat10n of the People Act, 1951 in that he had obtmned the ~1~1tance of a member of the. armed forces in his election and ( 2) that he had d1stnbuted posters with the pictures of th~ Prime Minister and other

important ministers together with the three chiefs and four Generals of the Armed. Forces berii:g the capti_on 'Pillars of Victory' and thereby exercised undue influence within the meaning of s.123(2) of the Act. The High Court dismissed the petition.

Dismissing the appeal to this Court.

HELD : ( 1) Since the deletion of the words 'or a polling agent or a counting agent' from Explanation (2) of s.123(7) by the Amending Act 47 of 19Ci6, a member of the armed forces, merely by acting as a polling agent, is not deemed to assist in the furtherance of the prospects of a candidate's election within the contemplation of s.123(7) of the Act.

Secondly, the Lanc_e Naik had cate- · gorically asserted that he did the canvassing on his own and not in the company or the respondent. [ 441 G]

. I

(2) (a) The publication of the poster was an act of imP, ropriety but not one of corrupt practice falling within the mischief of s.123.

Members of the armed forces spoken of in this clause mean persons in flesh and blood and not their inanimate photographs. (443 BJ

(b) In one sense even election propaganda carried on vigorously, blaringly and systematically through charisma! 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, dos meddle with aml mould the indepen_dent volition of electors, having poor reason and little educa tion in the exercise of their franchise. That such a wide construction would. not be in consonance with the interidment of th.e legislature is discrenible from the proviso to this clause.

The proviso illustrates that ordinarily interference with the free exercise of electoral right involves violence or threat of injury of any kind to any candidate or an elector or inducement or attempt to mduce a candidate or elector to believe that he will become an object of divine displeasure or spiritual censure. The orefix 'undue' indicates that there must be some abuse

or inlluence. 'Undue influence' is used in contra-distinction to 'proper inllu• ence'.

Construed in the light of the proviso cl. 2 of s.123 does not bar or penalise legitimate canvassing or appeals to Teason .qnd judgment of the voters or other lawful means of persuading voters to vote or not to vote for a candidate.

Such proper and peaceful persuasion is the motive force of our democratic prOC%ss (442 E-G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 186 of 1973 ' From the Judgment & Orrler dated the 27th November, 1972 of the Punjab & Haryana High Court in Election Petition No. 15 of 1972.

Kapil-Sibal, N. D. Bhargava and S. K. Gambhir, for tl.e appellants. s. N. Marwah, Lalita Kohli, K. C. Dua and Naunit Lal, for the Respondent No. 1

The Judgment of the Court was delivered by

[1975) 3 S.C.R.

SARIWUA, J.

Prithvi Singh Azad (hereinafter referred to as the returned candidate), Bachan Singh, Naurang Singh and Lachchman Singh contested the ck:ction to Pu~1jab Vidhan Sabha from the Kh•anna

(Reserved) A%cmbly constituency.

Azad wa.s the nominee of the Congress Puty and Bachan Singh of the Akali Dal.

 The poll was held on March 11, 1972. On March 12, 1972°, Azad was declared elected. He secured 25,984 votes, whereas :Bachan Singh appellant No. l polled 24,865 votes.

The other two forfeited their securities.

O..i 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 eJ.ection of the returned candidate on, scrveral grounds.

In the event of Azad's clectim being set aside, Bachan Singh claimed a further declaration under s.101 of the Act of his own election.

The petition was dismissed by the High Court.

Hence this appeal by the petitioners.

Before us, only two grounds have been pressed into argument by 'Mr. Kapil Sibal, learned Counsel for the appellants.

Firstly, it is eont•ended that the returned candid•.:ite had obtained I e a.>sistm1cc of one Lance Naik Gurdcv Singh, a member of the rmed Forces of tht: Union, in his election and was thus guiity of . ''mmitting the corrupt practice defined in s.123 (7).

In this connection, the petitioner tried to establish two facts .: (a) that Lance Naik Gurdev Singh was appointed as his polling agent by the returned candidate and the former acted as such at the polling ;, tation, Rabon Majra; (b) that the Lance Naik oactually canvassed for votes in the company of the returned candidate.

In regard to the first fact, the petitioners relied upon the statement of L/N Gurdev Singh, who was examined as C.W.I., and the certified copy Ex.P.W.

30/4, of the Polling Agents' Form.

Regarding the seoo,1d fact, they CX'amincd P.W.6 Subedar Bachan Singh, P.W.7 Dant Singh P.W.8

Bhagat Singh P.W.9 Rulda Singh, P.W.10 Sadhu Singh, P.W.11 Bachan Singh P.W. 12 Arjan Singh, P.W. 13 }iaracharan Singh.

They also >ought support from the statement of C.W. 1. ·

On both tl1ese poi:1ts, the learned Judge of the High Court found against the petitioners. In his opinion,· the person who had 'been appointed as his polling agent by the returned candidate was anothei

Gurdev Singh (RW2) and not L/N Gurdev Singh (C.W. 1).

He further held that the oral evidence adduced by the petitia,1ers to-<mbstantiate the allegation of canvassing by the Lance Naik in associllltion with the returned candidate, was of a partisan character, and in the absence of coriroboration from any independent source, could not be accepted.

BACHAN SINGH v. PR!THVI SINGH (Sarkaria, J.) 441

Mr. Sibal contends that the High Court grievously erred in holding: that it was R.W.2 and not C.W.1 who had been appointed as his polling agent by the Respondent.

According to the Coll'ilsel, there are clinching circumstances in this case which show that it was Lance Naik Gurdev Singh who had been appointed and iicted as the polling agent of the Respondent; that the certified copy, Ex.P.W. 30/1 obtained by the petitiaaer was a true copy of the original Form. R.W.2, it is submitted, is an imposter and the Polling Agents' Form P.W. 30/4, was \l false and fabricated document.

Once it is held, proceeds the argument, that LfN Gurdev Singh (C.W.1) had acted as the Polling Agent of the Respondent, that would lend assurance toand probabi- Jise the account given by P.Ws. 9 to 14.

The contci,1tion cannot be accepted.

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 rnid to be palpably wrong necessitating a reappraisal of the evidence by this Court.

Scrondly, even on the assumpti<Yn that L/N Gurdev Singh C.W.1, was the person who had been appointed as the po!Iing agent, the evidence on the record was not sufficiently clinchinl!

to bring home the charge to the Respondent.

L/N Gurdev Si'.1gh (C.W.1) himseli had knocked the bottom out of the petitioner's 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 rcsoondent.

The Lance Naik was examined as a court witness.

The appellants had a right to cross-examine hin1.

But they did not a>ail of this right.

They did not put any question to the witness to challenge his account. L/N Gurdcv Singh's 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 .Ws. on all the material facts constituting the charge, must Iead to the collapse of whole arch.

Moreover, since the deletion of the words "or a polling agent or a counting agent" from Explanation(Z) of s. 123(7) by the Amending Act 47 of 1966, a member of the Armed Forces merely by acting as a polling agent. is not deemed to assist in the furtherance of the pros-· pccts. of a candid>ate's clectioa. within the contemplation of s.123 (7) ,

We would therefore reject the first contention and affirm the finding of the court below on this Jssue. ·

The next charge which has been agitated before us relates to the poster, &h.PW15/1 which. was published bv the Pradesh COU2fess Committee. It bore the photographs of the Prime Minister Smt. H l11dira Gandhi, Shri Jagjiwan Ram, Defence Minister and Shri Swaran Singh, Foreign Minister in the first row. Beneath the first row were

the photograp:1s. of three Chiefs a!ud four Generals of ilie Armed Forces. It bore the caption '.'Pillars of Victory": It is aUeged that

. below these photographs was printed the Congress symbol of Cow A and Calf.

On a complaint being made, the Election Commission of India moved in the matter and directions were issueq to the Punjab Pradesh Congress Committee to withdraw the poster, which, in consequence, was withdrawn.

b his written statement, the returned candidate pleaded that he was unaware of any such poster. In cross-examination, however, be B (as R.W.6) admitted that the letter Ex.R.W.6/1 bad been issued by S. P. Mittal to all the Presidents of the Di.strict Congress Committm in Punjab directing them to withdraw this poster.

R.W.6 admitted that this poster bore the photographs of Service Chiefs alon~~ with those of the Prime Minister and two other Ministers-nil of whom were described as Pillars of Victory. He, however, disclaim1::d th'at he had anything to do with the distribution of this poster.

Mr. Sibal contc,1ds that the publication of this poster not only amounted to the exercise of "undue influence" within the contemplation of s.123 ( 2) but also constituted an attempt to obtain or procurn assistance from the members of the Armed Forces of the Union for fur- .thcrance of the prospects of the retumed candidate's election within the purview of :; J 23 (7).

The contc'.1tion is ingenious but unsusruinablc.

Doubtless the definition of 'undue influence' in sub-s. (2) of s. 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 fn:e exercise of electoral right. In one sens1~ even election propaga:ada carried on vigorously, blaringly and system21tically

through charisma! leaders of through various media in favour of '.! candidate by recounting the glories and achievements of that candidate or bis political party in adminisrrative or political field., does meddle with and mould the independent volition of electors, !raving poe:r reason and little education, i.i the exercise of their franchise.

That such a wide construction would not be in consonance with the intendment of the legislature is discernible from the proviso to this .clause.

The proviso jllustrates that ordinarily interference wit:h the free exercise of electoral right involves either violence or threat or r.:ijury of any kind to any candidate or un 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. undu.: influence' is used in contra-distinction to 'proper influences'. Construed in the light of the proviso, clause (2') of s. 123 does not bar or penalise legitimate canvassing or appeals to reason and judgment of th:.: voters or o$er lawful means of persuading voters to vote or not to vote for

a candidate. Ieed such proper and peaceful persuasion is the motivt: force of our democratic process. ,

~ We are unable to 1apprecia~ how the. publicatio'.1 of this poster mtcrfered or was cakulatcd to 10terlere with the free exercise of the .electoral right of any person. There was nothing in it which amounted

BACHAN SINGH v. PRllllVI SINGH (Sarkaria, J.)

to a threat of injury or undue inducement of the kind inhibited by s.123(2).

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.

In short, the publication of the poster was an act of impropriety hut not one of corrupt practice falling within the mischief of s.123.

No other point has been argued before us.

The appeal fails and is dismissed with costs.

P.B.R.

Appeal dismiscd.