KALYA SINGH versus GENDA LAL AND OTHERS

KALYA SINGH

GENDA LAL AND OTHERS

Fehmary 28, 1975

[A. ALAGIRJSWAMJ AND N. L. UNTWALIA, JJ.]

Represc111a1io11 of the People Ac!, I 95 I, S. I 23(1) (A) (b )-Pa\"/11e111 of money lo person lo rerire from co'i11es1-WhC1/1er a111011n1., lo cor1:11p1 prar:-flce.

Section ·123(1)(A)(b) of the Representation of the People Act. 1951-define> .bribery as 'any .gift. offer or promise by c-andidate or his· ;1gent or by any other person with the consent of "' candidate or his election agent ?f any gr;1ti1!cation, to any person. whomsoever. with the ·Jbject. directly~ or md1rectly of mducmg an elector to vote .or refrain from voting at an election·. Respondent No. 1 hied an election petition challenging the election of the appellant that he had committed corrupt practice under s. 123 (I) (A) ( b) of the Act. The High Court declared the election void on the ground that the appellant. by p~ying big sum in cash and promising paym~nt of similar sum by execution of promissory note, made Respondent No. 3 to retire from the contest and publish pamphlet that the electors should vote for the appel-lant and not for himself.

Allowing the appeal to this Court.

HELD: I (a) It is not possible to ''"lain the judgment of the High Court holding the appellant guiltv of corrupt pract'ces within the meaning of s. I 23 (I) (A) (b) of the Act. [790B]

(b) Mere payment of any gratification to third person for securing or procuring some votes in favour of particular candidate. without the es\ablish-ment of any nexus b-ctween the money and the inducement to the Yoter, will not be sufficient to prove !hat the voter is indirectlv induc~d on account oi the payment of gratification to the third person. The ·gratification must have some connection or reflection, dii·ect or indirect. in persuading the. voter to vote or refrain from voting at an election. If th.e inducement to the voter is not caused by the payment of the gratification to third person but by the per-suasion or influence or such third person it will not be possible to say that ·,he gratification had any indirect inducement to the vster. :n7F-l 1 J

(c) Payment of any gratification to any person to work or canvass at an elc.:tion is vutside the ambit of the definition. [787H]

(d) If the inducement to the voter is fr~e from the shade or colour of the gratification paid to the third person it will not be bribery. lf. howner, tbe inducement in given case is coloured or shaded by the payment of the gratification to third person it would be an indirect inducement to the voter himself within the frame of the definition. In othl'>r words it is the fact of ,payment to the third person that must induce the voter. It is not enough that the third person induces the voter. The frame of any d7~nition more often than not is capable of being made flexible. But the prec1SIO!J and cer-tainty in Jaw requires that it should not be made loose and kept fight as far as possible. [788A-B]

G/w,fii Ram v. Dal Singh and others [1968] 3 S.C.R. 102 and Om Pmbha ]<1in , .. Abnash Chand & anr. [1968] 3 S.C.R. 111, folfowed.

Abdul H11.1.·:ain Mir v. Sha111s11/ Huda & Anr. [1975] 3 &.C.R. 106 referred to.

Jn the instant case money was not paid to the respondent as consideration for votes promised or as bargain for getting votes but it was money paid tv him to retire from the contest and to do propaganda ·and persuade the voters to vote fer the appellant. In spite of the propaganda and the appeal of the respondent no. 3 'ihc voters were left free not to respond to his persuatio:J. J790A] CIVIL APPELLAH JuR1so1cnoN : Civil Appeal No .. 16(NCE) of 1973.

From the Judgment a·.1d order dated the 11th December, 1972 of the Madhya Pradesh High Court in Election Petition No. 22 of 1972.

G. L Sangh! and D. N. Misra, for the appellant.

S. S. Khanduja, for Respondent No. 1.

S. f(. Gambhir, for Respondent No. 2.

The Judgment of the Col!rt was delivered by

UNTWALIA, J. There were three candidates to contest the election to the Legislative Assembly of Madhya Pradesh from the Bhainsdeshr Assembly (Reserved) Constitumcy in the last general elections. The appellant in this appeal under section ll 6A of the Representation of the People Act; ·1951-hcrcinafter referred to as the Act, was declared elected to the seat defeating the other two ca'°didates who are respon-dents 2 and 3. Respondent No. 1 filed an Election Petition in the Madhya Pradesh High Court challenging the election of the appellant on serveral grounds. The election of the appellant has been declared · void by learned single Judge of the High Court m one ground only. It has been held that he . indulged in ~ corrupt practice within the meariing of Section 123 ( 1 J (A) (b) of the Act. We shall confine the statement of facts in this case to the only ground on which the appell-· ant's election has beea set aside.

Respondent No. 1 stated in paragraph 6 of his election petition

"(iv) That after the date of withdrawal the respondent no.l himself and through his aforesaid agents and workers with his consent was vehemently trying to induce the respondent no.3 to support the candidature of the respondent no. 1, and declare that the electors, should not vote for the respondent no.3, but should vote for the respondent [1]110.1.

(v) That the respondent no.I, and his aforesaid agents and workers having failed in their attempt in induc-ing the respondent no.3 from either standing with-drawing or declaring to support the candidature of the respondent no.1, and the respondent no. 3, hav-ing started his election campaign in full swing. The respondent no.1 apprehended that if respondent no.3, remains in contest then, he had no chance of success. Therefore he made determined efforts, to see that the respondent no.3 makes an appeal to the electors of the constituency to the effect that the electors should

vote for the respondent no.1 and should refntln from voting in favour of the respondent No. 3, and with-draws frpm the contest ......... .

(vii) That on 22.2.1972 at Paratwara respondent no.1 himself in the company of his agents and workers Shri N. K. P. Salve, Shive Bux Singh and Baboolal n Pathak induced the respondent no.3 to support the candidature of the respondent no.1 and offered to pay compensation to respondent no.3 The. respon-dent no.3 agreed to support the candidature of the respondent no.l, and to publish pamphlet to the effect that the electors should vote for the respondent no.1 and should refrain from voting the respondent no.3. ·The respondent no.1 offered sum of Rs. 8000/- to the respondent no.3 as compensation, which he had incurred in his election campaign.

On appreciation of evidence adduced before the High Court, on the relevant issues it recorded the following findings :

"ISSUE N0.1 (a)

The respondent no.1 (Kalya Singh) asked respondent no.3 (Patiram) on the night intervening 22nd and 23rd February 1972 at Paratw'dra to withdraw from the contest and to support respondent no.1. Responde~t no.1 also offer-ed to pay Rs. S,0001- as compensation to respondent no. 3 for the election expeQSes till then incurred by him.

ISSUE N0.1 {b)

The respondent no.3 agreed to support respondent no. I and to issue pamphlet requesting the voters to vote for res-pondent no.1.

ISSUE NO. 1 (c)

sum of Rs. 4,000/- was paid in c'8Sh on 23rd February, 1972 by respondent no.1 to respondent no.3. pronote for Rs. 4,000/- (Ex. P-3) executed by respondent No. 1 in favour of Shiv Darshan Singh was also handed over by respondent no. 1 to respondent no. 3. It was also agreed that in case the balance amount of Rs. 4,000/- was not paid by respondent no. 1, respondent no. 3 will hand over the pronote to Shiv Darshan Singh who will recover the amount from Respondent no. 1 and pay to respondent no. 3.

ISSUE NO.l(d)

In the meeting held at Bhainsdeshi on 23rd February, 1972 it was announced by respondent no. 3 that he now supports the Congress. The said meeting was also addressed by respondent no.I, Shivbux Singh and Kawadkar. They also announced the withdrawal from the contest of respon-dent no.3, and asked the electors to vote for respondent no.1 ISSUE N0.1 (e) '

ISSUE N0.1 (e)

The pamphlet (Ex. P-11) was distributed in the meeting of 23rd February, 1972.''

Mr. G. L. Sanghi, learned counsel for the appellant in the firsi:

instance submitted that on the face of the peladings in the Election Petition as also on the findings of fact recorded by the High Court it has gone wrong in law in holding that the appellant was guilty of having indulged in corrupt practice within the meaning of section 123( l) (a) (b) of the Act. He reserved his right to assail the findings by taking us through the evidence in case his contention in law were not found to be sound. Mr. S. S. Khanduja combated the argument put for-ward on behalf of the appellant <rad reEcd upon decision of this Court in Abdul Hussain Mir v. Shamsul Huda & Anr.([1]) decided on 20th December 1974 to which one of us (A. Alagiriswami, J) was party. Mr. S. K. Ghambir appearing for respondent no.3 asked us, in the event of the appellant's success in the appeal to exonerate the said res-pondent of the charge of having indulged in corrupt practice within the meaning of section J 23 (1 )(B )(b) of the Act as found by the High Court. Since the point of law urged on behalf of the appellant was found to be sound, we did not proceed to examine the evidence in the case.

We may state in condensed form the findings recorded by the High Court against the appellant in the b-ackground of what was pleaded in the Election Petition. The appellant by paying sum of Rs. 4,000/-in cash and promising payment of another sum of Rs. 4,000/-by execution of promissory note made respondent no. 3 to retire from the contest, support the candidature of the appellant 11nd publish pamphlet to the effect that the electors should vote for him and not for respondent no.3 Accordingly pamphlet to that effect was published and distributed in meeting held on 23rd February, 1972 at Bhains-deshi in which meeting the withdrawal from contest of respondent no. 3 was announced and the voters were asked to vote for respondent no. 1. The: question for consideration is whether the findings aforesaid fit in the frame of definition of "Bribery" in section 123 ( 1) (A) (b) of the Act. The High Court has rightlv pointed out that the case was not covered by sub-clause (a) of Clause (A) as respondent no. 3 was not made to withdraw from being candidate at the election.

This view of the High Court is now squarely supported by the decision of this 0)urt in Shri Urned v. Raj Singh and others([2]) which had over-turned contrary view taken in the case of Mohd. Yunus Salum v. Shit'kumar Shastri and others([8]). We now proceed to read in full section 123 ( 1) (A) of the Act.

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

( A) any gift, offer or promise by candidate or his agent or by any other person with the consent of 11 candidate or his elec.tion agent of any gratification, to any person whomso-ever, with the object, directly or indirectly of inducing-

(!) [1975] 3 S.C.R. 106.

(2) A.T.R. 1975 S.C. 43.

(3) A.T.R. 1975 S.C. 1218.

(a) person to stand or not to stand as, or to withdraw or not to withdraw from being candidate at an election, or (b) an elector to vote or refrain from voting at an elec-tion or us reward to-

( i) person for having so· stood or not stood, or for having withdrawn or not having withdrawn his rnad~daturc; or

<ii) an elector for having voted or refrain~d from voting:"

We shall discuss the relevant law shorn o!' the addenda and the qualitying words in the above extract. Payment of any gratification by candidate lo any person net necessariiy person mcnti0;1cd in sub-clause (a) or an ckctor mentioned in sub-clause (b) with the object of directly or indirectly ir.ducing the person 0r an elector mentioned in those sub-clauses will make it bcib~ry within the meaning of the said word. ltis significant to note from sub-.;:lauscs (i) ;rncl (ii) of clause (A) that post-facto payment of any gratification as reward will be bribery only if it is paid to the person or the elector mentioned in the&e sub-clauses. But does it lead to the conclusion that payment of any gratification to any person other than an elector in al! circum-stances would be deemed to be with the object of indir~ctly inducing an elector to vote or refrain from voting at an election ? If money is paid to an elector to vote for particular candidate undoubtedly it is direct inducement to him to vote at an election. If money is paid to third person in which payment of money an elector has got any direct or indirect interest and which induces 'him to vote at an election in favour of particular candidate then also the inducement is brought about as result of the payment of the gratifi-cation. But the point of difficulty may W"ise where any gratification is paid by or on behalf of candidate to third person for procuring. some votes of some electors who may be under his (third person's) influence. Whether in such case the payment has got any indirect inducement to an elector to vote at an election ? We are incline<l to think that mere payment of any gratification to third person for secur-ing or procuring some votes i'n favour of particular candiaate without the establishment of any nexus between the money and the inducement to the voter will not be sufficient to prove that the voter is indirectly induced on account of the payment of gratificati0'.1 to the third person. The dictionary meaning of the word "induce" is to "prevail on, per-suade." The gratification must have some connection or reflection, direct or indirect, in persuading the voter to vote or refrain from voting at an elei:tio•a. If the inducement to the voter is nGt caused by the pavment of the gratification to third person but by the persuasion or influence (not undue influence) of such third person it will not be possible to say that the gratification had any indirect inducement to the voter. Payment of a•ay gratification to any person to work or can-vass at an election is outside the ambit of the d~finitbn. It will make little differcn<'c if the worker or the canvassor on payment of gratifi-cation promises or indulges in tall-talk of securing or procuring somevotes for particular candidate. If the inducement to the voter 1s free from the shade or colour of the gratification paid to· the third person, then it will not be bribery. If, however, the inducement in given case is coloured or shaded by the payment of the gratificatkm. t<J third person then it would be an indirect mducement to the voter himself within the frame of the definition. In o4hi!r words it i>: the fact of payment to the third person that must indu·:e the voter. It is not cncugh that the third person induces the voter. The frame of arty definition, more often than not, is capable of being made flexible. But the precision and certainty in law requires that it should not be made lno'.;c. and kept tight a~ far as possible.

On the facts found in this case respondent no. 3 after having retired from the contest merti} canvassed to the voter:> some of wlwm may be his so callt:d voters, to \0t.e for the appeltJnJ Di):!riburi.nn of the pamphlet and announcement in the meeting held on the 23rd February, 1972 to that and did not transgress the limit and made the act an indirect inducement to the voters to cast vote for the appellant on ac-count of payme:nt of tlie gratification by him to the third respondent.

In Ghasi Reim v. Dal Stngh 1.uul others(!) followed in Om Pmbha .Tain v. Abnash Chand & Anr.([2])-another decision in the same volume at page 111, it was pointed out by Hidayatullah J., as he then was, at page 110 "The money was not distributed among the voters directly but was given to Panchayats and the public at large. It was to be used for the good of those for and those against the candidate. No doubt they had the effect of pushing forward his claims but that was inevitable 'even if no money was spent, but good administration changed the people's condition. We cannot, therefore, hold that there was any corrupt practice. If there was good evidence that the Minis-ter bargained directly or indirectly for votes, the result might have been different but there was no such evidence.'' It would thus be noticed that there must be bargain for votes eith~r directly with the voters or indirectly through some-one else. The voter may not be direct party in the bargain but must be shown to have an indirect interest, in it.

In Abdul Hussain Mir v. Shamsul Huda &: Anr.([3 ]) Krishna Iyer J. in his judgment delivered on his and on behalf of Sarkatia J. did not find the fact proved in that case to bring it within the ambit of section 123(1)(A)(b). The third learned Judge (A. Alagiris~ami J.) did not record any finding to the contrary. Even so while inter-preting the scope and ambit of section 123 (1) of the Act certain observations were made in the majority judgment which were pres~e<l into service by respondent No. 1 while the others were relied on by the appellant. Accepting the argument of Mr. Garg (vide page 1995 of the cyclostyled copy issued by the Supreme Court Bar Association) it was said "what the: law aims at is blow on the purchase of the franchise by direct or indirect methods. You may buy influence of important persons which is bad in morality but not yet in law." Another passage (vide page 1996 of the cyclostyled copy) which (I) [1968] (3) S.C.R. 102. (2) [1968}(3) S.C.R. 111.

(3) [ 1975] :> S.C.R. 106.

occurs in that judgment runs thus : "The crucial point is the . nexus between the gratification and the voters, one being the consideration for the other, direct or indirect." The two passages extracted above squarely supported the contention of the appellant. While few others which are being quoted below were pressed into service by The said passages at page 8 [.. ][learned counsel for respondent ][No. ][1. ]1995 are: "If the candidate pays mtmey to V.l.P. of the locality to use his good offices and canvass votes for him, it is borderline case, but if the money is paid as consideration for votes promised to be secured by him using bis sway, it is bribery even though indirectly exerci~ed. If the Mulla had been paid the money striking bargain for getting the votes-in bis ambit of influence, it is electoral corruption. On the other hand, if it is money received_ for the purpose of organising effec~ tively the election campaign by hiring workers, going round the places In car, meeting people and persuading them to vote for the candidate, it is proper election expense. In between these two extremes Ji~ the case of man who just receives large sum of money, pockets it him-self and promises to use his good offices to secure votes. This is gray area. We are not called upon to pronounce on it in this case .................. The touchstone in all these C'aSes of payment of gratification is to find out whether the money is paid in reasonable measure for work to be done or services to be rendered. Secondly, whether the services as offered amount to bargain for getting votes or merely to do propaganda or to persuade voters to vote for the can-didate, it being left to the voters not to respond to the suasion. It is plain case if voter is p·aid for his vote. It i.~ direct. It is equally plain if the payment is made to close relation as inducement for the vote. The same is the case if it is paid to local chief on the under·· standing that he will get plead the votes in his pocket borough, in con-sideration for the payment." The third learned Judge in his separate note did not join in the views expressed in the passages just extracted above from the majority decision and ,aid "I consider it, therefore, un-necessary to discuss whether if money is paid or offered as considera-G. . tion for votes promised to be secured by person using his intluenc~ it is bribery or not. It .is good policy not to discuss in Judgment questions which do nut arise out of the facts of the case." The obser· vations of Krishna Iyer J.. which were relied on behalf of respondent No. 1 may occasid.tl debate or dispute if in given c~e the facts so warrant. But it will be futile exercise to do so in this case as the findings recorded against the appellant by the High Court iare clearly outside the observations relied on by respondent No. 1. It was not case where money was paid to respondent No. 3 as consideration for

votes promised or as bargain for getting votes. It was . mot1ey paid to him to retire from the contest and to do propaganda and p1er-suade the voters to vote for the appellant. In spite of the propagaaida and the appeal <>f respondent No. 3 the voters. were left free not to respond to bis persuasion. In no view of the matter, therefore, it is possible to sustain the judgment of the High Court holding the appel-lant guilty of corrupt practice within the meaning of section 123 (1) (A) (b) of the Act. That being so, it is plain that respondent No. 3 also must be exonerated of the charge levelled and found against him of bribery within the meaning of section 123 ( 1 )(B )(b) .

. In the result the appeal is allowed with costs payable by respon-dent No. 1 and the judgment and order of the High Court are set aside.

Appeal allowed.