VATAL NAGARAJ versus R. DAYANAND SAGAR

VATAL NAGARAJ

R. DAYANAND SAGAR

October 11, 1974

[H: R. KHANNA, M. H. Bro AND V. R. KRISHNA IYER, JJ.]

Representation of the People Act (43of1951), ss. 77, 101 and 123(6)--Dif/emice "-twiien f11cts constituting corrupt practice and illustration of corrupt practice-Approach of trim Coiut to poll 1•erdic1-Approach of appellate Court to evidence-Declaration in favour of rival candi.1ate, when permissible-Reform of election law 1i1 relation to expenditiue, suggested.

The appellant was declared elected to the State I..egfalative Assembly and the first J:e!'pondent, who get the next highest number of votes, challenged his election on various gro1111ds and also prayed that he should be declared elected in the appe-llant's place. One of the grounds alleged against the appellant was that by hiring JO cars for campaigning, and spending money for printing election materials, he ~pent by way of election expenses, money beyond the legal limit, and thus coca-mitted the corrupt practice under s. 123( 6) of the Representation of the People Act. 1951. The High Court held this ground proved and also that some of the printed hafldbills contained libellous matter, and set aside the election and declared the first respondent elected.

In appeal to this Court,

HELD : The setting aside of the appellant's election by the High Court should be confirmed, but the declaration in favour of the first respondent shOuld be set a5ide. (399 B-C]

(I) The numbers of the some of the cars hired as set out in the petition were different from those given in evidence. But the infipnity would not have any effect on the first respondent's case since no prejudice has been sustained by the appellant by the change and no integral element in the ground of corrupt practice, namely excessive expenditure for the election, has been kept back. In the Jaw of election. facts constitutive of corrupt practice must be averred in the petition itself or brought in by amendment by leave of court within the limitation period. But particulars illusttative of cOrruPt practices alleged st!llld on different footing. Proof at minor variance with alleged particulars may be allowed by the court provided the opposite party has not sustained any prejudice and is given an opportunity for adducing re-butting evidence. [388 G-389E)

Bhagwan Datt Shastri v. R. R. Gupta, 11 E.L.R. 448, 456 followed.

(2) Where the trial coun has watched the delivery or testimony by the wit-nesses its opinion on their credibility is entitled to much cr•:dit by the appellate i:OUrt. (389G-H]

(3) An election tribunal mu~t know that there exists an initial presumption in favour of the! poll verdict; apd that the whole constituency is Invisibly party to the Jir. The voice of the voters will be interfered with only if the vote< in favour of the elected candidate were illegally procured. In the present case, the High Court has weighed the evidence fairly and correctly. The approach of the court to the evidence is ilnpeccable. There may have been adulteration of evidence; but, after full consideration of the entire material, the finding of the High Court that the appe. Dant had committed the Corrupt practice under a. 123(6) must be confirmed. [390 C-D, B--F; 39'4H-39SA)

(4) But usll1Dil14 that some or the allqations in the hand bill5 had undoub. tedly amounted to clwacter ·IW&Sination of' the first respondent and injured his poll prospects, and aroup. disaffection or threat, as stipulated in s. 123, could be read into them the Anctlty or the poll verdict will stand violated, if the tribunal without the atrict comp~on of statutoi:y provisions, au. bstitutes for an elected rePiaeat&tJw Ii coarr picked '3Ddidate. The erqulrements UDder a. 101 before the

cow't can declare rival candidate as the returaod candidate, ar ~. (a) the returned Clllli:idBte must have obtained votes by operation of corrupt practices, (b) such tainted vote5 must be quantified with judicial assurance, and (r.) after deduction of such void votes the petitioner or some other candidate must be shown to have secured majority of the valid votes. Therefore, in the present case the decisive factor would be satisfactory proof of the number of votes1 if any, attracted by the appe. Dant into his ballot box by the corrupt means provea against him. But there is no evidence to show how-many votes were definitely obtained by the appellant by the use of corrupt practices. There is uo link between the polluted Practice and the voters affected. Further, there is nothing to show why those voters would-fiavc preferred the fimt respondent and not any other candidate, there being as many as

10 contesting candidates. (396 B-C, H-397E; 398B-DJ

T. Nagappa v. T. C. Basappa, A.I.R. 1955 S.C. 756 and Jamuna Prasad v. Lachhi and, AIR 1954 S.C. 686, 689: [1955] S.C.R. 608, referred to.

(5) Money power casts sinister shadow on our elections Further there is built-in iniquity in the scheme, because, an independent candidate who exceeds the ceiling J'lrescribed under the law commits corrupt practice, but his rivals set up by political parties with considerable potential for fund-raising and using, may lay out hundred ti!lles more in each constituency on their candidates and yet escape the penalty under s. 77 on the ground that the excessive expenditure was not spent by the candidate but by the party for its campaign. This evasion of the law by using big money through political parties is source of pollution of the Indian political process. It may therefore be proper to infuse into the election law the cleansing spirit suggested by this Court in Kanwar/al , Gupta v. Amar Nath Chawla (1975] 2 S. C.R. 259 and by the Select Committee on the Indian Election Offence~ and Enquiries Act, 1920. Elections. consti-. tuency wise. are the corner stone of our parliamentary system and if the law is to reflect and ensure the· democratic norms set by the nation in this strategic area, serious political consensus. not sanctimonious platitudes, on reducing the heavy expenditure on election by parties and candidates, must emerge. It is only. to limited extent that courts can respond to the fulfilment of this constitutional 'aspi-r:ition by benignant interpretation of the legal limits on election expenditure set ':uown in s. 77. (399 D-H; 400 A-DJ

C1v1L APPELLATE JuR;srncnoN: Civil Appeal No. 1738 of 1973.

Appeal from the Judgment and Order dated the 6t.h November 1973 of the Karnataka High Court in Election Petition No. 4/72.

v. S. Desai, B. K. Ramr.cflandra Rao, S. B. Chandrasekhar and R. B. Datar, for the appellant.

A.. K. Sen, V. K. Govindraju!u, V. G. VasantT1 Kumar and M; Veer-appa, for respondent No. 1 ·

Dew(til Balak Ram,, for respondent No. 2

The Judgment of tho Court was delivered by

KlusHNA lYmt., J.-The· locale of this election litigation, now at the appellate stage, lies in Bangalbre, an industrial city inhabited by blend of multireligious poly-lingual conununitios. But, when . pathological power-scramble is on, the politics of stoop-to-conquer shows up in forms of unscrupulous opportunism and investment in · Foup hatrcid and the Chamarajpet con5tituency in Bangalore City 1s alleged to have been injected by this virus by tho appellant at about .B tho time tho State Assombly elections in March, 1972 were held. If multi-form corruptiQn corrodes tho oloctoral procoss-and tllat is tho imputation hero tho gutter can come to power to adopt phraso usedin difforent context by great writer. Judging by the general trend of vice and violation organised as election strategy,, only glimpses of which Judgt:s get in election cases, we wonder whi:ther parties and individuals who practise these oblique techniques, fully realise the moral of the Frarikenstain's momter episode. These dark forebodings, however., do not deter us from applying the sound tests laid down by long line of cases in interpr{)ting the provisions and evaluating the evidence in election cases. Out task has, however, become more uneasy because both sides have liberally contributed dubious testimony in bid to win their respective cases.

brief diary of events will bring into focus the issues over which the forensic controversy has raged. Sixteen persons filed nomination papers from the Chamaraj1>i;t constituency, six discr~etly withdrew and . the surviving ten went into battle on March 5, 1972 the date set for the poll. The voting strength of this constituency wa:i 97,379 · but the actual votes polled was only 52,720. While die D. M./K• and the Muslim League made relatively good showing securing over 7,000 vates each, the real bout· was between the appellant, an lndepen4enf glamourised as heroic agitator for Kannada, the language of the vast majority of the people of the then Mysore State and the Ist respondent, Congress Party candidate enjoying consequential advantages. The appellant won, polling 15,486 but the 1st respondent was close behind with 14,412. It is an uneasy feature that in our electoral system. even · witll hot contest as here, sow.times only \lalf the voters turn up to exercise their franchise and he who gets 15 % of the total votes of constituency acquires the right to spca~ and act as its plenary prox'; in thO Legislature. We do not regard this aspect as falling within our province since this vexed question is Parliament's concern. Anyway, the infirmity of the poll victor}' agitated before us is that even this 15 % was the product of illegal tactics sufficient to invalidate the election of the appellant and, what is more bathetic, the furthe~ relief sought is that the onP. who got only 14 % ;.e. the 1st respondent, shbuld be de-clared the authentic elected member of Chamarajpet.

The charges made by the Ist respondent to dem1>lish the dec!ara.. tion of tb.e appellant madu by the Returning Officer<>n March 11, 1972 relate to certain malpractices between February 11, 1972 and March . S, 1972. It is melancholy reflection on the 1st respondent's motho-do!o&Y of winning his election petition that he has adduc.ed. evidence some of which bears traces of forgery and tricky photography backed by perjury. This finding by the trial Coqrt has not been shaken in argument before us. One should have expected legislative aspirant roprosonting national party, an ex-Deputy Minister_ and barristctr . to be cle,aner in the Court while charging his opponent with corrupt practicos at the polls; ·

The young appellant had· personali$ed himself as the · spear-head beconio tho President of the J{.annadiga movement and Its .. Cha-hid Ieondra Mandali. TM. popUlar id«intification .of tho candid-. ~-~rv:~tal.Nagaraj, tho. ·appellant, with this·~inowhat paasiona,tt orgal\1Sat1on 1s gteanod from the fact that his Chief' Etectic:irt Agont in . ,

Chickpet, Sampangi P. W. 8, was the Secretary of the Mandali and on · his resignation in May or June, 1972 Prabhakara Reddy, the Chief Election Agent of the ·appellant in Chamarajpet, took over the Secre-taryship (The appellant was candidate in both the constituencies, which were contiguous). It serves our understanding of the forces at work better if we also remember that there are sizable Tamil and Muslim groups· in Bangalore. Some of the corrupt practicc:s alJeged are linked up with Tamil presence in the City. While economic grie-vances and social backwardness are the basic causes of what, on the surface, shows up as language or parochial chauvinism, the fact re-. mains that the mas~es are easily inflamed by economic-linguistic appeels peppered by provincialism. · We may now now Proceed to set out briefly the charges leve!Jed leve!Jed against the appeilant, highlighting only those which have found favour with

We may now now Proceed to set out briefly the charges leve!Jed leve!Jed against the appeilant, highlighting only those which have found favour with the trial Judge. However, the structure of s. 123 of the Representa-tion of the People _Act, 1951 (hereinafter called the Act, for short) is such that where candidate is guilty of one or many of the enu-merated corrupt practices, his election must be set aside and he should be visited, under s. 77 of the Act, with six-year period of disqualifica-tion. In that view, it may well be that if we arc satisfied about one of the several charges, the appellant must lose. However, we shall .leal with the allegations and evidence concisely, so that the conspectus of the case may not appear distorted, although primarily we pr9pcse to deal with the excess expenditure beyond the legal limit held by the trial judge to. have bc:en incurred by the appeUant .

. While close-up of the few counts on which the appellant has been held guilty is necessary, quick look at the fasciculus of charges, many of which have been negatived, may unfold the characters of the play, their integrity and the foul measures apparently fair persons resort to, sacrificing means to ·ends. Purity in elections is social process of public concem and national consensus, not just legislative package or judicial verdict.

The publication of many copies of offending leaflets at some cost, . the hiring of ten cars at over Rs. 10,000/- and the payment of Rs. 500/- to Kannada organisation hopefuily to enlist their poll support are the lethal vices, inter alia, levelled against appe11ant Nagaraj t~ · undo his election. In the unhappy national context, of unprintable flood of leaflets, movement of fleets of automobiles, ·slanderous speeches and huge sui:ns big Parties and rich candidates regard as tile natural resources to be exploited in aid of the politics of power-grab through adult franchise, this election petition projects mountain molehill contrast. But the Court can only correct what comes before it and perhaps. sound warning bells about the enormity of the envi- . roil.mental pollution during elections, for statesmanship to act, if law in this area is not to be robbed of pervasive potency.

The Catalogue of corrupt practices begins with an election-cvct gift of Rs. 500/- by this Kannada fighter and President of the Kannada Chaluvali Kendra Mandali, to the Karnataka Yuvaka Pourara Sangha.

Bangalore City, motivated by an appealing for voting support from its members. Wo are relieved from investigating the legal import of such financial support to an organisation wedded to the programme which is also the passion of the candidate since the story has been rightly rejected by the High Court and we agree with it. Certain photographs (Exs. P-7 and P-15) alleged to have been taken by P. W. 3 (an enemy of the appellant) at the Mandali Office and the maidan in Azad Nagar, respectively, on February 20, 1972 were relied on by the Congress candidate in this connection and the Court, after detailed study, dis-covered that there were really taken on April 14, 1972 long after the election at school where he (the app~llant) was lured,'taking advantage of the 1st resrondent's ag<: and vanity' and were cleverly fobbed off on the Court in hopeful proof of the offending February gift of Rs. SOC.I/-, The agent used for this purpose was P. W. 30 and the learned Judge assessed him thus:

"P. W. 30 Raghunath Singh is creature of the petitioner,

who acted as spy in the opposite camp"

-a fifth column tactic hardly fair, if it is true. si1spicious Februa.ry edition of newspaper caUed Karmlka Vani (Ex. P. 10) carrying two photos taken in April have also been introduced by the 1st respondent Dayananda Sagar. He. has also placed make-believe letter Exhibit P. 26, signed by the appellant as evidence of car hire payment although the trial Judge has seen through the 1st respondent's sharp practice. Vatal Naga(aj, invited to school function, gave his post-election .autograph to children in an exercise note book which page was later perverted to appear as letter forwarding part of the car hire charges. This shady s.pecies of conduct in election litigation by seemingly im-portant persons make us wonder whether character assassination cannot be self inflicted.

We will now move on the crucial issue of over spending by th() .appell.ant. He is alleged to have hired, for campaigning, ten ~ars from the Bangalore City Cooperative Transport Society, the hire charges being Rs. 12,600/-. Likewise, sum of Rs. 7,500/-, it is stated, was paid by the appellant to Nirmala Printing Press which was run by P. W. 2 Devraj, for printing-election materials. ·

An initial objection was raised by Shri Desai, arguing for the ap-

pellant, that there was substantial variation between pleading and proof in this regard, that the numbers of the cars hired, as mentioned in the petition, were different (regarding 6 out of 10) from what had been put forward in the evidence and this divergence had the triple crippling effects of causing prejudice, casting suspicion and disallowing the plea. PACtually; Shri Desai is right but, legally, his objection is bereft <•f lon:e. .

The law of elections is clear on this branch of pleading and proof and sense of brevity forbids citation of string of rulings where the rule of law is indubitable. Litigation is no hide and seek game but search for truth and parties must place their cards on the table. And procedure is the handmaid, not the mistress, of justice and cannot be permitted to thwart the fact-finding course. In election jurisprudence tracking down corrupt practices is of paramount importance. In doing this the rules of the game must be fairly observed. Facts constitutive of corrupt practices must be averred in the petition itself or ~rought in by amendment by leave of court; within the limitation period. The opposite party is thus put on his guard as to what charges .he has to meet. Particulars, illustrative of the corrupt practices alleg-ed, stand on different footing. Even if there have been initial omis-c sions in pleading, they can be made up, by Court's leave, at any time. What is more to the point here-or it is common case that errors in particulars of car numbers have at no stage been rectified in the pre-sent case-proof, at minor variance with alleged particulars, may be· allowed, the course open to the opposite party being to satisfy the trial !udge of prejudice sustained and of opportunity for adducing rebutt· mg evidence. To shut out cogent and clear evidence of particulars 0 of corrupt practice (the ground itself being in the pleadings) on pro· cessual technicalities is to orphan the real, though absent, party viz., the silent constituency. This Court, in Bhagwan Datt Shastri v. R. R. ·Gupta(') set out the true rule :

"The question in such case would not be one of absence of jurisdiction but as to whether there has been any material· prejudice occasioned by the absence of particulars. It is in that light that the validity of the objection raised by the ap-pellant in this behalf before us had to be judged. It is, therefore, necessary to scrutinise the nature of the evidence on which this finding has ·been arrived at and to see whether the appellant had fair opportunity of meeting it." Having heard Shri Desai at length, we are not persuaded that the infirmities he complains of have validity in the case on hand. No. prejudice has been sustained by the change in the numbers of the taxi cars and no integral element in the ground of corrupt practice viz., excessive expenditure for the election has been kept back. Indeed, even most of the particulars have been correctly set out.

Before proceeding to examine the evidence, we must make fur-ther cautionary observation. When the trial Court (here Judge of the High Court) has had an overall view of the case through the very process of oral and documentary unfolding, that panoramic percep-tion cannot be equated with the studious perusal of the printed record by higher Court. Where the tribunal has watched the delivery of testimony by the witnesses, some with equivocating unveracity, others with nervous truthfulness or confident glibness, its opinion on credi~ bility is entitled to much credit at the appellate st~. Of cours:,.

(I) 11 E. L. R. 488, 456.

even among the judiciary subjective factor in judging men and matters may creep in and so complete dependence on the assessment of human candour and cunning by trial Judges can degenerate into legal superstition.

It is apt to remember the words of Judge Jerome N. Frank(!) as warning:

"We do know, from occasional candid remarks by trial Judges, that some of them utilise absurd rules of thumb ~uch as th(:se: witness unquestionably lies who, while testifying, throws back his head or wipes his hands or shifts his gaze ra· pidly; or blushes, or bites his lips or taps steadily on his arm· chair".

Having carefully considered the matter, we are convinced that the High Court has weighed the evidence fairly, tested the character carats of witnesses correctly and reached results rightly.

The trial Court has adopted legally impeccable apprc ach in assessing the evidence, as was pointed out by Shri A. K. Sen, co.unsel for the 1st respondent. Corrupt practices have to be viewed. as quasi· criminal in character and the strict standard of pr0;of applicable in . such cases, in tune with 11ic decisions of this Court, has been used a:s touchstone by the trial Judge. The question is whether the few cor- · rupt practices, upheld by the High Court, have been proved beyond reasonable doubt or whether the appellant has been able to make any big dent in the case founcl.. We will now discuss th.e heads of char1[~e, ]item wise. The printed election literature has dualroll in this case (a) to boost the cost beyond the legal ceilling and (b) to prove character assasination. Both are corrupt practices. threat to Tamils i.e .. undue influence; is also alleged to be involved in the handbills in question, Ex. P. 4 and F.x. P. S. Indeed, an election1tribunal m1~st know that there exists an initial presumption in favour of the poll verdict ~nd ~he whole C?nstitue~cy is. invisibly part>.'. to the /is, their voice berng mterfered with only 1f their votes were illegally procured. As earlier indicated, this leaflet imputation may, in order of probative importa.nce, be consi~ere.d at lat~r,stage sill:" we a~ satisfie~ that .its impact 1s somewhat mcl.i~~t .and 1~s proof shade mconclus1ve, nc>t-withstanding the use to which Shri A. K. Sen has sought to put it in supporting the declara~on, under issue no. 11, that his client obtained as the returned candida.te.

The crit(cal issue which~ i.n our view, is. fatal to th~ appellant's election, is the layout on luring cars. By itself, that item exceeds Rs. 10,000/· and i.ftrue, the election must be set aside, without more. Issue 9 (b) relates to this subject and paragraph 14(b) of the petition sets out this ground. As sta!ed earlier, "'.bile the numbers of the ten cars are enumerated therem, the last six do not tally with the documents produced or the Bangalore City Cooperative Transport

(i)·~ fact findin1 and psycholoay, 14 Ohio State Law 1outnal 183 1S6 (Spring 19S3)-quoted in P:lychology and the Law by Dwiaht G. MC&;jf. Prentice·Hafl, Inc., En11lewood Clifts, N.1., USA (1967 4th Prlntina).

Society which was the bailer. The case is that the above Transport, Society had fallen on evil days and so had authorised its President, one Swaminath, P. W. 7, to ply its vehicles on no profit no Joss basis. Swaminath, who had thus taken over the transport operation with effect from August 1, 1971 and had, in turn, run transport service in the name of Coop. TOUR COMBINED BOOKING Centre is stated to have agreed to make available 10 cars on hire to the candidate Nagaraj. Rs. 60/- per day per car, exclu-sive of driver and fuel, from February 14, 1972 to March 5, 1972 were the terms. alleged. It is further averred that the candidate had authorised Sampangi, P. w. 8, to arrange for the hire of these 10 cars on or about February 10, 1972. The latter had made an initial payment of Rs. 3,000/- on February 12, 1972 through P. W. 30, Raghunath Singh, already referred to. The case runs on to the effect that sum of Rs. 9,600/- was outstanding as payable to P. W. 7 on April 10, 1972 when the appellant lodged his account of elec-tion el!penses, as required by statute. It is common ground that he did not enter the sums paid or payable by way of hire charges to P. W. 7 in his account submitted to the Election Commission. The petition sets out the payment, on April 14, 1972 of sum of Rs. 1,000/- to P. w. 7's Society towards car hire and this sum is stated to have been sent through P. w. 30, Raghunath Singh. Of course, the appellant, in his written statement, has denied this story of hiring and piece-meal payments, knowing fully how. noxious its effect would be on his victory, in the light of s. 77 of the Act.

the light of s. 77 of

.We may straightway state that the learned Judge who tried the case has referred to P. Ws. 8, 30 and 7 as the principal witnesses to prove the hiring in of the cars. However, he has already described. P. W. 30 as spy of the Congress candidate who had slyly operated among the flock of Nagaraj, and has discredited him as an unscru-pulous person. The learned Judge has also discarded the testimony of P. W. 8, Sampangi, for reasons which are self-evident, even if one casually peruses his deposition. He is self-condemned per-jurer and has hardly any claim to jv.dicial credence, particularly in case of proof of corrupt practices in an election petition. Without expanding on these unscrupulous souls any further, we concur with the trial Court in proceeding to reject that part of the case of the petitioner which lives solely on the lips of P. Ws. 8 and 30. But the fact that these two dubious be~ngs have been frequently friendly with falsehood does not destroy the acceptability of their testimony to the extent it· accords with other authentic documentary material and reliable verbal testimony. Indeed the trial Judge has discerningly observed:

"I am placing dependence mainly on the documentary evidence under this issue, supported by the testimony of P. w. 7, Swaminath." ·

This, we think, is flawless approach. We are constrained to re· mark that experience proves the wisdom of scepticism in assessing oral evidence in Court. In the words of Osborn(l):

"The astonishing amount of perjury in courts of law is sad commentary on human veracity. In spite of the oath, more untruths are probably uttered in court than anywhere else. This deviation from veracity ranges from mere exaggeration all the way to vicious perjury. Much of this untrue testimony grows directly out of human nature under unusual stress and is not an accurate measure of truth speak-ing in general. In order to shield friend, or help one to win in what is thought to be just cause, or because of sympathy for one in trouble, many members of the frail human family. are inclined to violate the truth in court of law as they will not do elsewhere."The High Court's discussion is exhaustive. The arguments before us have not suffered from inadequacy and since we are affirming t.he principal conclusion of fact of the trial Judge we content ourselves with stating only the essential reasons.

The version of the petitioner rngarding the vohiclcs (although with different registration numbers has been substantially spoken to by Swaminath, P. w. 7. Most of the details deposed to by him fit in with 'the original averments and trivial discrepancies cannot disturb factual apPreciation of the core.

P. W. 7, the President of the Society, has not been shown to be either interested in the petitioner or animated against the appellant. If, as he swears, he did run the business of transport during the re-levant period, there is no reason to- be sceptical about acting on his word on oath. Exhibit P-22, the proceedings book of the Board of Management of the Society, contains entries,· d.ated July 2, 1971 (P-22A) evidencing the authorisation in his favour by the Board of Management. The marginal doubt, generated by the fact of tbe resolution, Exhibit P-22A, put him in charge of the Business only until January 31, 1972 while the period of the hiring was beyond .that date, is insuffl_cient to shake his testimony in the light of all the other circumstances. For, until April 17, 1972 the Board of Management had not made over its transport business to anyone else. On the other hand, Ex. P. 22B, the proceedings of the Board at its meeting held on April 17, 1972 (item No. 4) reinforces the case spoken to by P. W. 7. The criticism that these proceedings could have been manipulated into life subsequently stands crushed by the endorse-~ent Exhibit P-22A(l) made on the proceedings book by the As-sistant Registrar of Cooperative Societies, Shri Bhatia, on April S, ~972. Even otherwise, P. w. 7's story suffers form no inherent improbability and there is no presentable alternative put forward by the appellan~ as to how he ran the automobile part of his election campa1gn. He swoni, moro incredibly, that he covered tho 25 square milos1 of his constituoaey on foot, during tho hectic period

(1) 'The Problem of Proof' ·Albert S. Osborn, pp, 22.23 New York, Methew Bender & Co. 1!126-quoted In (2) ibid, p, 226.

of this bitter election campaign. May be, he had many volunteeri> of the Chaluvali Kendra Mandali to support him and they might ~ell ~ave c~vered the. ar~a on ,bicycles. May be, being militantly 1dent1fied with an ag1tat1onal issue (Kannada for Kannadigas, ro capsule the movement in slogan) his monetary inputs might have been puny compared to his .more prosperous Congress rival. Even so, the Padayatra programme, eschewing automobile journeys altogether, is too unrealistic and mendacious to be taken seriously. Mor~over, there is other documentary evidence in proof of payment of h~re. charges. Exhibits P-23, P-24 and P-25 deserve probative credit, m this context, P. W. 8, Sampangi, is seen to have signed them and even if we disbelieve the integdty of P. W. 30 who is alleg· e~ to have carried Exhibit P-23 or of P. w. 8, who, admittedly, has s1~ned that letter, thero is no gainsaying tho fact that documentary e~1~ence of advance payment of Rs. 3,000/· is. forthcoming. Ex-h1b1t P-24, dated February 12, 1972 is letter written by Swaminath to Nagar~j and Exhibit P. 2'4A is the office copy. Exhibit P-25 further cbnches the matter since it acknowledges the delivery of the cars and bears the signature of P. W. 8, Sampangi, appended on behalf of his principal, Nagaraj. Not p. w. 8 nor P. w. 30, but tho documentary testimony and the credibility of P. w. 7 influence our conclusion.Two major criticisms were levelled against this branch of the case by Shri Dosai. Certain minor weaknesses wore also pointed out which, for general considerations already indicated, do not need lengthy scrutiny. He contended that P. W. 8, Sampangi, was not his election agent in Chamarajpet Constituency and was an obvious betrayer who had boon bought up by the more powerful ,petitioner so much ·so his words or signatures could not command judicial confidence. Secondly, he ·urged that the evidence ·Of P. w. 7 and the documents stood shaken in view of the reference therein to Exhibit P-26 which had been found by the trial Court to be forgery. We may examine the force, if any, of these submissions.

P. W. 8 is consummate artist in terminological inexactitudes who owns up in cross-examination, with melodramatic audacity both perjury and fabrication. Even so, his political bond with Nagaraj during the election is undeniable. They were President and Secretary of the Chaluvali Kendra Mandali until May or June 1972 when the latter resigned. P. W. 8 was Chief Election Agent of Nagaraj in the adjoining Chickpet Constituency and could not have confined his busy campaigniO.g,-activated by the larger Kannada cause, to the territorial limits of Chickpet. In June he ran for the Legislative Council scat from the Teachers' constituency and Nagaraj appealed for electoral support through newspapor column catry-ing his photograph. Haullted though we are by hunches about the distanoo betwcon honost processes of proof and the potitionor's modus operandi in Court, unhesitatingly we held that Sampangi P. W. 8, was 1111 activist lioutenant of tho appellant durina the er~ tical months of February, Match and April.

Exhibit P-26, if we may recapitulate, is that pernicious paper on which Nagaraj scribbled his then sought-after autograph at school function, hardly suspecting its potential transmigration, into letter forwarding a'part of the car hire. Without trivialising the trickery played upon the appellant for which vicarious guilt must belong to the 1st respondent, we find no difficulty in delinking this documentary effort at over-kill, through Ex. P. 26, from the other dependable evidence of hiring 10 cars. Some holes of perjured evidence somewhere can-not sink the whole case which can safely float on other tested testi-mony. All cobwebs of suspicion are brushed away by Ex. P. 28 and P. 29. · Finding large sum outstanding from Nagaraj by way of car hire, P. W. 7 Swaminath, n financially weak person, wrote to the trea-surer of' the Mandali pleading that since the appellant, the President, had owed substantial amount in connection with the election where the Mandali had backed him the treasurer Lakshmipathi had better make good the money and a.djust with the President later. Pat came the reply Ex. P.-29 from Lakshmipathi disowning liability from the Mandali. Again, Swaminath (P. W. 7) pursued his claim by writing for balance payment to th<t appellant with copy to P. W. 8 (vide Ex. P. 30). What followed (it rings true) may Pe rendered in the words of P. W. 7:. . ·

"I re~.eived the reply Ex. P. 31 from Sampangi. •It is dated 22-4-1972, Through 'tho reply Ex. P. 31 Sa. Kru. Sampangi asked me to accept Rs. 8,000/· from 1st rcspondont Vatat Nagaraj in full settloment. I went and collected Rs. 8,0QO/· from Sa. K.ru. Sampll.ngi on behalf of tho lstrospondent VatalNagaraj on 24-4-1972, issued temporary roceipt. Tho office copy of that rocwpt is Ex. P. 32. On 25-4-1972 I wrote to tho !st ros-pondent Vata(Nagaraj, with copy to Sa. Kru. Sampangi and · sent that letter by post. The office copy of that letter is Ex. P. 33." .

We have the corroborative evidence of the receipt book kept by P. W. 7 Ex. P. 34 in his own words;

"Exs. P. 34(a), P. 34(b), P. 34(c), P. 34(d), P. 34(e), P. ' 34(f), P. 34(g) P. 34(h) are the respec:tive receipts regarding cars Nos. MYA 3981, MYD 9030, MYD 7575, MYD 6756, MYA 4044, MYA 4114, MYD 9779 and MYA 3633. The receipt Ex. P. 34(1) refers to the Society Car MYD 7222 and the receipt Ex. P. 34(1) refors to the Society Car MYD 8600".

These receipts relate to cars of others taken by P. W. 7 to make up the ten cars agreed to be supplied, his Society itself being only in posses-sion of two cars. · This wealth of documentary material is convinc-ing enough, in the background of the trial Court's remark : P. W. '7. Swaminath ha,s stood the test of cross-examination well and· his an-swers seemed to be forthright." Shri Desai did exploit the diver-gence in car registration numbers and the unsatisfactory explanation offered by the tst respondent in that ·b::half. So also the spurious Ex. P. 26. Adulteration of evidence perhaps there is, but, after full con-

side~ation .of the total material we are satisfied with the affirmative finding on issue 9(b) given by the High Court.

S~ri Desai.feebl¥ suggested that'P. W. 6 was not his agentin Cha-mara.JP.et but m Ch1ckpet, and P. w. 30 was not his men at a.IJ. · We ~ave d1.spo~d. of the fact~al part of this ~lea but the law of agency the m election corrupt. Jurisprudence, act n!)ed ~o~ ~e 1t may done be by noted, the candidate 1s more elastic. or his chief In election. sense, agent. It is e.n?ugh 1f 1t 1s authorised by either, as we will. later show and here the hmng was done as authorised by the candidate.

The anxious 1st respondent has rn:ade many other charges of cor-rupt practice which h~ve been repelled by the trial court and we ~ncur. But two invalidating imputations have been. repelled by tho tnal Court and we concur. But two invalidating imputations have ~een upheld by the learne4 Judge, both turning on. the printed elec-t1!>n material, its cost and libellous toxicity. We are not disposed to d1sse~t the evidence in detail on these twin charges since single fat!lf stab is as good as multiple mortal wounds if death is the goal. But the 1st respondent's ambition is not merely to destroy the declaration of t~e ~~pellant but to instal himself as the Chamarajpet MLA through the 3ud1c1al process. "Th1m1's the rub". Of course, if the law allows it he must get it. ·Exhibits P-4 and P. S aro two handbills in Kannada and Tamil, respectively and exhibit p.9 is the olection manifesto of the appellant says the 1st rospondont. Of course, the appellant has denied respon-E sibility for this offending literature and has gone to the extent of con-tending that the alleged printer P. w, 2 was vegetablo vendor inject-ed into the scene by the 1st respondent as an evenescant losseo of press who, ostensibly, appeared on tho scene about the time of the election, engaged himself solely in printing the appellant's election matter and vanish~d from the printing scene ·back to his vegetable vendors job after the election; May be the story, prima fade, is suspect, but, on closer scrutiny especially with Ex. R. 6 in mind, the finding of the trial.court must pass muster.· There is also some.evidence of these leaflets being distributed by the workers of Nagaraj. Considerable debate there was at the bar as to whether Exhibit P-4, even if true, amounted to character assassination, or other corrupt practice but at least portion of it relating to payment of money to voters undoubtly injures the petitioner's good morals although many other statements may hover around the border line pr cannot'· constitute corrupt pra-ctice. IAccepiing Ex. P. 4 as passionate plea for Kannada and criticism of the rival as one who argues for English, it is not 'Character assassination', nor is militant demand for larget areas for Karnataka Stat~ corrupt practice. Even notions on nude dances and or econo-mic exploitation of people cannot be judged by mid Victorian prudery . when interpreting s. 123 of the Act. We have to be' aware of. realities informed by tho ·curtent ethos of the community and remember.. the usual ~~gin of e~e~or.al exagscratio~, while ~o~struing such spe«::J:ies and wntmgs. It 1s 1nd1sputa"ble that 1f the pnntmg had been do!W' by tho appellant or his election agent and tho cost thereof was as pleaded

in the petition, the ceiling on election expenses set by the statute would be further exyeeded.

We aro not inclined to upset the holding of tho High Court that "there can be no reasonable doubt that regarding the handbills Exhi· bits P-4, P·S and P·9 the petitioner's version is true" but do not eni-bark on any long discussion as it is uncalled for. But the almost 'astrological' consequence claimed to be flowing therefrom that the !st respond.ent would havo obtained majority of valid votes demands fuller examination. For purposes of argument, let us assume that Exhibits P-4, P-5 and p.9 were printed and distributed prior to the ele1:-tion and that P. w. 2 had been paid Rs. 7,500/· as printing charges. We may similarly assume that personal aspersions and implicit group disaffection or threat as stipulated in s. 123 of the Act could be read into these leaflets, as claimed in the petition. ·Even ~o. What?

This takes us to issue No. 11 which, perhaps, is the second most contested question in the whole case. Having exceeded, on our own .finding, the financial ceiling set by s. 77 of the Act, corrupt practice has been committed by the appellant and his election has been rightly set aside by the High Court. Inevitably, under s. SA of the Act, tb.e appellant has to be visited with the punitive six-year disqualification. So the High c:ourt's finding on issue No. 12 also must stand.

The only bitter bone of contention boween the ·parties which survives is covered by issui:i no. 11. The sanctity of tho poll verdiut will stand violated if the tribunal, without the strictest compulsion ~f statutory provisions, substitutes for an elected representative Court picked candidate. The relevant part of s. 101 may well be set ou.t at this stage:

"101. Grounds for which candidate other than the re· turned candidate may be declared to have been elected:-

If any person who has lodged petition has, in addition to cal!ing in question the1 election of the returned candidate, claimed declaration that he himself or any other candidate has been duly elected and the High Court is l)f opinion .

(b") That but for the votes obtained by the returned candi-date by corrupt practices the petitioner or such other candidate would have obtained majority of the valid votes,

the High Court shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may bo, to have bocn duly elected.

The !nsistent requirements of the section arc that first!) the returned candidate must have obtailltd 1ott.r by tht operation of corrupt practices; secondly, such obtained votes must bo quantified with judicial assurance and thirdly, After deduction Of such Void votds, the petitioner·

or other candidate must be shown to have secured majority of th~ valid votes. In the present casr, the decisive factor is the satisfactory· proof of the nUPlber of votes, if any, attracted by the appellant into his ballot box by the corrupt means. How many voters were lured for certPin by the expenditure of several thousand rupees more than is sanctioned by the law ? Did the campaigning in those hired cars snatcn votes at all? Did deleterious leaflets draw into Nagaraj's net specific set of voters : To eapsule the enquiry, how lllllny votes were definitely obtained by the use of each corrupt practice ? This hinges not on mystic maybes and vague imponderables and prejudice to prospects but on tangible testimony that number of persons, arith-metically assessed, swang towards and probably actually for the re-turned candidate, directly magnetised by the corrupt practicr, so that one could positively predicate those votes as having been obtaineif by corrupt practices. This clear nexus is of critical importance. Happy speculation, hypothetical possibility and clairvoyant surmise, however imaginathely and objectively made, cannot displace this. drastic requirement. Where, for instance, certain number of per-sons, in \oiolation of the legal ban, have been transported by the can-didate and they have been shoV1n, with fair assurance, to have cast their vot~s in his favour or whrre specific cases of false personation or double voting at the instance of the candidate or his agents have occurred and the margin of difference between the victor and the nearest vanquished is narrow and the gap is more than made up by the illrgally procured votes, the case for the application of s. 101 "'.ill surely arise. Courts (10 not elect candidates or sign into parlia-mentary seats those l'rhom the constituency has not yet favoured. The normal democratic process cannot be by-passed conveniently on the score of corrupt prPctices by the rival except in those excep-tional cases where s. 101 stands fulfilled. You must win not only an election petition but an election itself. The decisions cited before us by Shri A. K. Sen do not take us fur-ther.. Indeed there is paucity of precedents in this area, for reasons which are not difficult to guess. In T. Nagappa v. T. C. Basappa([1]) this Court had to deal with case where the lead of the winner was only 34 votes, there was cogent proof of about 60 voters having been transported by the offending candidates to the Polling booth of whom 47 voted for him so. that, if their votes were struck out, the margin. of difference would disappear and the loser would have secured t.he larger number of valid votes. There the learned Judges were at pams to point out that the petitioner got only 34 votes less than the res-G pondent and that the tribunal (by majorit)) had found that the bus procured by resPondent No. 1 did carry to the Polling booths 8b~ut fiO voters, leading to the legitimate presumption that the majority of them did vote for respondent No. 1. Under those circumstancrs~ the Court did not care to interfere with the Tribunal's factual view that if the votes attributable to the corrupt practice were left out of account. the petitioner woul<l have gained an undisputed majority. In that very case 1rhile pointins out that the Hip Court should not have

C1) A. L ll. lMS 11. 756.

upset finding of fact of the Tribunal, this Court cautiously added that "'it may be tjiat the vie\'.\> taken by the dissenting mem~r of the Tri-bunal was the more proper." Apparently, the dissenting member was not inclined to upset the poll verdict even on this evidence. Where there ~re number of serious candidates contesting from constitu-·ency, the situation, becomes complex and unpredictable. It is con-'l'enient assumption, not reasoned probability, to guess for whom, if at all, the vo~rs of the winner who used corrupt practices \'/Ould have alternatively cast their franchise. Sheer disenchantment with the vicious techniqurs "might well have turned awa)' many sensitive souls from the polling station. In the appeal before us the lead is over thousand votes, no link between the polluted practice and the voters affected is forged ten candidates were :in the field and some of them had polled well. The observations of this Court in Jamuna Prasad's Case([1]) that "there is nothing to show why the majority of the first · respondent's voters would have preferred· the 6th respondent and · ignored the 3rd and 4th respondents" under scores the hazard in such prnltiple-contest situations. Shri A. K. Sen's persuasive invitation. to compute on imperfect date is to ask us to crystalgaze. We declme the essay in \)ccult.

In the present case the reasoning of the trial Court dealing with this branch is not brief but blank. All that the Court has said is that the difference is only 1044 votes between the appellant and the respondent and that reasonable judicial guess is not taboo: "There· fore it can be reasonably concluded as per cl. (b) of s. 101 of the R. P. Act that but for the votes obtained by the returned candidate (1st resp?n~ent) by corrupt practices, the petitioner would have obtain-ed ma1or1t} of the valid votes". We are sorry the sequitur is too .obscure for us to see. There were ten candidates in the field and the .curious plea bearing on this relief in the election petition appears to be that the petitioner hl's done social service and deserved victory and so there was jlo need to send him back to the constituenC)' to srek re-election-strange compliance with s. IOI of the Act. Indeed, the petitioner, himself barrister and former Deputy Minister, con-versant with the requirements of election Jaw knows that where claim for declaration in his favour is put forward at least formal aver-ments tacking the corrupt practice onto obtaining the definite votes was necessary; On the other hand, all that he states is that as re-sult of the hate campaign against the Muslims and the Tamils, alleged to have been carried on by the appellant and his agents, "the Tamil speaking people thought that it would be to their advantage to sup-port the D. M. K. candidate and the Muslim population thought that they would bt protected only if the Muslim Lrngue candidate \'.\>ll.S returned to the Election." Therefore \It hat? After adding that these· two candidate's had. secured large number of votes from the Tamils -and the Muslims, the· petition makes puzzling statement: "These votes would have been polled by the petitioner and the Congress party but for the corrupt practie1~s under section 123 committed by the 1st respondent, his election .agent and the agents of the 1st respondent .... " !he abstruse lpgic, the bare assertion and the total absence of tie-up

.(I) A. I. R. 19S4'S. C. 686, 689 (Jamuna Prasad v. Lachhl Ram) [19SS] S.C.R. 608.

between specific corrupt practices and the number of votes obtained thereby lead us to an outright rejection of the relief, not merely for want of proper averments but also for total void in proof. Absent visible welding of the electoral vice established into the numerical measure of the victory, the votes at the polls alone, not the Mit of the Court, can seat him in the legislature. We heve no hesitation in re-versing the finding on issue No. 11.

The conclusion therefore is that tne appellants' election is set aside· and the constituency has to choose its representative by fresh poll. It must be noted that half the term has already run out since the elec-tion which we now set aside. Having regard to the demccratic pro-cess and the duty not to keep Chamarajpet orphaned in the legislature, we expect the Chief Election Commissioner. to proceed expeditiously to hold fresh election.

The fate of this case has been the direct result, among other grounds, of the cost of campaigns, beyond the legal ceiling; incurred by the appellant who contested as an Independent. To give all candidates fair chance, an operationally fairer, perhaps even radical plan to finance our elections, particularly the campaigning process, may have to be devised. Money power casts sinister shadow on our elections and the political payoff cf undue expenditure in the various constitu-·encies is too alluring for parties to resist temptation. Moreover, there is built-in iniquity in the scheme beca.use an indepmdent can-didate who exceil.ds.the ceiling prescribed under the law legally commits corrupt practice. His rival, set up by political parties with consi-derable potential for ,fund raising and using, may lay out hundred times more in each constituency on their candidates and yet hope to escape the· penalty under s. 77. The convenient-not necessarily cor-rect-plea would be that the candidate spent for his election but the party for its campaign .. This likely evasion of the law by using big money through political parties is source of pollution of the Indian political . process. To channel funds into the campaign for specific candidates getting ~round the req"!ire~ents. of the law by establishing. party co~­F mittees 1s all too falillliar m this and some other countnes. Jn this: context it may be apt to draw attention to recent ruling of this Court in Kanwar/al Gupta v. A.mar Nath Chawla (I) on election expenses. It may be proper to infuse into the election law the cleansing spirit which was emphasized way back in 1920 by the Select Committee on the Indian Election Offence and Enquiries Act (XXXIV of 1920). Half century ago it was observed there :

· "We feel that there are distinct advantages at the present time when election is to play so important part in ·the new public life of India that the public conscience should be markedly drawn in relation to the franchise whether that fran-chise relates to legislative or other bodies."

· Elections, constituency-wise, are the cornerstone of our parlia-H mentary culture and if the law is to reflect and ensure the democratic

(1) (1975] 2 S. CR. 259.

norms set by the nation in this strategic area, serious political con-sensus (not $anctimonious platitudes) on heavy cut-back on poll out-.lay by Parties and candidates and basic morality in the electioneering methodology must_emerg(:-a consummation devoutly to be wished. If campaigns run berserk and expenses unlimited become the rule general elections become national nightmares and the fabric of our freedom shakes. Courts come in only when specific cases are filed and cannot arrest this cultural contamination. We can only express the wish, with sense of social awareness, that campaign finances :re-form, imposing, realistic limitations on spending on behalf of candi-.dates directly or vicariously seem necessary if inequality of influence ,jg nonooperateuponthe.electoralprocess and later upon go,ernm(:nt decisions. To limited extent Courts can respond to the fulfilment of this constitutional aspiration by benignant interpretation of the legal 1imits on election expenditure s. 77 clamps down. This election case is also caveat on election methodology. True, large monetary in-puts are necessary evils of modern elections, but "once we assuage our conscience by calling something 'necessary evil', it begins to look more and more necessary and less and less evil" (I). The manumis--sion of the electoral process from money power is the dharma of our 'Republic.

In the hope that rresh election for Chamarajpet would be held early and in the expectation that the candidates, independents and Party-nominees alike, would keep wit.bin the pecuniary limits set by th'1 law as laid down by this Court, we allow the appeal in part, as ab:>ve indicated. Parties will bear their own costs throughout.

Appeal partly Allowed.

(I) Sydney · Barria-quoted by Hidayatullah J. (as he then was) in "Democr.acy in India and the Judicial Process"--Lajpatrai Memorial Lectures! 1965-Asia Publi1:ing Housc-P-60.