TaxTMI 
TaxTMI 
1974 (8) TMI 134
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....when he was elected to the Haryana Legislative Assembly last from the same constituency in 1967, at the following general election in May 1968 to the same Assembly (before its term the Assembly was dissolved and the non-Congress Government went out of office) the first respondent was elected and he became a Member of the Cabinet formed by the Congress party. The next election fell in 1972 where both figured as combatants from Nuh and we are concerned with the validity of the result declared in favour of the appellant by the returning officer in the present appeal, the High Court having set aside the election. 2. It is apparent that the competitive politics of the Nuh constituency has expressed itself through the appellant and the first respondent for quite a long time now and as the voting figures of the latest poll shows, the context has been contentious and close. In such battles of the ballot where personal feuds foul the air, the decencies and norms set by the law may often be the first casualty. Anyway, the disappointed first respondent hastened to challenge the appellant's election on various grounds of " corrupt practices". The High Court has upheld a few of them and ....
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....s to do so. An appeal is a re-hearing but the trial Court's finding will be upturned not when it is short of right but only when it is wrong. We will view the case from this angle. 5. In a loose sense, Nuh is a Muslim constituency by which we mean that the voting strength of the Muslims is preponderant. Both the candidates are Muslims and, indeed, to some extent the Islamic "dosage" of each candidate has itself been highlighted in the Election Petition as a bone of contention in the poll confrontation, as will be presently discussed. Had parties professing secular politics and revolutionary ideologies never "stooped to conquer" by sub rosa appeal to the religion and caste of blocks of voters by exciting their sympathy for the candidate via this sense of "tribal" identity, our elections would long ago have lived down this injurious political irrelevance. On the contrary, the unerring instinct with which political parties frequently choose candidates whose religion or caste tallies with that of the bulk of the constituents appetites , if not excites, covertly, if not overtly, the caste consciousness and religious separatism otherwise asleep in the bosoms of the common peopl....
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....rough speeches delivered by the returned candidate and his supporters and by distribution of handbill Exhibit P.W. 4/3, in the following villages of the Nuh Assembly constituency: Notki Gohana, Khedli Nuh, Mewli, Malab, Nagina, Karherrha, Piangwan, Bhadas and Ghagas. It is conceded before me that the appeal just above found by me to have been made by the returned candidate was an appeal to vote for the returned candidate and to refrain from voting for the petitioner on the ground of their religion, for the furtherance of the prospects of the election of the returned candidate and for prejudicially affecting the election of the petitioner so that it falls within the ambit of the corrupt practice detailed in Section 123(3) of the Act, which corrupt practice the returned candidate must be held to have committed. The issue is accordingly found in favour of the petitioner. * * * * From the evidence accepted by me as trustworthy under that issue it is further made out that practically all those statements with slight variations were made the subject-matter of speeches by the returned candidate and, with his consent, by Shri Tayy....
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....on petition is the distribution of libellous handbills and making of slanderous speeches by the candidate and his companions which overflowed mere personal invective into many areas of corrupt practice. The Court was also satisfied with part of the charge of bribery which it expressed thus : As a result of the above discussion I. find it proved that on the 14th of February 1972, the returned candidate placed at the disposal of respondent No. 3 Car No. DLF 675 with a promise that these expense incurred in hiring the car and running it in connection with the election campaign of respondent No. 3 would be met by the returned candidate. Thus it is seen that while the embittered petitioner has black-brushed his rival with many brands of corrupt practices, he has failed to convince the Court on several of them. His counsel gave up many of the charges after evidence had been led. Even the residue has not fully found favour with the High Court and the only substantial grounds which have survived the screening process are two, viz : (a) the 'automobile' bribe; and (b) the dissemination of prejudicial and prohibited appeals. The limited controversy before us centers....
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....n election which has already been held unless clear and cogent testimony compelling the Court to uphold the corrupt practice alleged against the returned candidate is adduced. Indeed election petitions where corrupt practices are imputed must be regarded as proceedings of a quasi-criminal nature wherein strict proof is necessary. The burden is therefore heavy on him who assails an election which has been concluded. 12. There are many who are cynical about the enforcement of the election law, which is too moral for the pragmatic skills of the politicians when locked in pitched battles. They regard these vices as inevitable and therefore remain indifferent to their prevalence. Sydney. Harris' statement in this context is apposite: Once we assuage our conscience by calling something a 'necessary evil', it begins to look more and more necessary and less and less evil. For this very reason the Court has to be stern so as to induce in the candidates, the parties and workers that temper and truthfulness so appropriate to the process and not bewail, as the Report of the Fifth General Election in India (1971-72, issued by the Election Commission) does (at p.....
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....nd law, Newton D. Baker-observes about the U.S. situation while considering the harm of a switch-over to proportional representation : We have groups of all sorts and kinds formed around religious, racial, language, social and other contentious distinctions. Proportional representation invites these groups to seek to harden and intensify their differences by bringing them into political action where they are irrelevant, if not disturbing. A wise election system would invite them to forget these distracting prejudices. 15. The 1st respondent's case is that the appellant persuaded a financially incompetent Sohanlal--respondent No. 3--to stand as candidate over-ruling his reluctance by offer of Rs. 125 and promise of footing his campaign bill, in a bid to skin away the Harijan pro-Congress votes. This was on February 9, 1972. Since the lower Court has rejected this episode, we too ignore it. But the official date for withdrawal, February 14, found the hesitant Sohanlal hovering around retirement from an expensive context. The 1st respondent's story is that the appellant gave a shot in the arm by proffer of Rs. 1,000 and a car for use till the election was ove....
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.... be stamped on the campaigning process. This may be attempted in many ways by adapting to Indian conditions experiences elsewhere. But the present methodology of fixing up candidates at the last minute as a product of many pressures makes for more inputs than consultation with the community in the concerned area, a sort of informal "primary" and announcement of the choice will ahead for the constituency to know and understand the candidate likewise if Party cadres work constructively and continuously for solution of peoples' grievances instead of going into election-eve campaigning with all the sound and fury of hectic pre-poll duel to win votes, the project will cost less and vote-catching stratagems will yield poor pay off. Large pecuniary lay-out in the business of power politics must be arrested if the system is not to sink. Today, the average Harijan, like Sohanlal, has as much chance of winning an election as a camel has of passing through the eye of a needle. Naturally he looks around for help. Money is of key importance if enormous sums must be spent to reach the vast electorate to break down public inertia and secure substantial polling. In such a background Rahim Khan....
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....39;s finding and we hold that, suspicions apart, the charge of bribing Sohanlal into fighting a futile battle has not been brought home as required by Section 123(1) of the Act. At the last stages of the argument before us Shri Sharma made a virtue of necessity and did not press the case of bribery. 19. The decisive and deadly chapter of the petition relates to the multi-pointed propaganda violating, the canons of election law set out in Section 123(2), (3) and (4). Question of law about the correct construction of the relevant provisions arise but the primary issue is one of fact. Were public meetings held on 9th and 10th of March maligning orally and through handbills the Congress candidate for lack of personal morals, for heathen and bohemian ways and for being a potential danger to good mussalmans ? Were pamphlets like Ex. P-3 made and distributed on or about March 9 and 10 by the returned candidate and his agents, describing his Congress rival as a pork-eater and taker of virginities, as a coercive agent getting muslim graves dug up and forcing true muslims eat roast pig ? 20. A few phenomena appear in this case which deserve judicial notice for the purpose of appreciati....
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....ot prepared to discredit outright all the evidence about gatherings in the villages, where the appellant spoke to people, solely on the ground of the order under Section 144 Cr. P.C. What we see from the evidence is that there were no regular meetings prearranged and public. It was more a case of the appellant running around from place to place, meeting persons who gathered when he went to a place, his sitting on a cot and talking impromptu to the men who turned up within a short time and leaving the place after a little while. It is difficult to describe these tiny groups spontaneously assembling and melting away after quarter of an hour or so, as public meetings. Technically they may or may not be breaches of the ban order but such minor liberties are not infrequently taken by both sides and winked at by the police, lest genuine house-to-house propaganda by the candidates and their supporters on the very last day should be interfered with and tension mount up on the ground that the authorities thwarted a non-Congress candidate's canvassing. Certainly we have to bear in mind the circumstances mentioned earlier in evaluating the evidence of witnesses, giving the benefit of reas....
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....lness of oral evidence sans common-sense, are but misleading dogmas. The golden rule is, as George Bernard Shaw tells us, that there are no golden rules. For this reason we are not referring to the many rulings cited before us. But we certainly inform ourselves with the general touchstones of reliability. The fact that we are not ready to act on the testimony of a person does not mean that he is a perjurer. It merely means that on such testimony it is not safe to conclude in a quasi-criminal proceeding that the 'corrupt practice' has been proved beyond reasonable doubt. The whole constituency is silently present before us it must be remembered (See observations of Dua I, J. in I.L.R. 1969 I Punj 625.) 24. We must emphasize the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents. It must be remembered that corrupt practices may perhaps be proved by hiring half-a dozen witnesses apparently respectable and dis-interested, to speak to short of simple episodes such as that a small village meeting took place where the candidates accused his rival of personal vices. There is no x-ray whereby ....
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....It is naivete to pin faith on such probative circus and it is necessary to discourage such defection in the interests of the purity of the Court process. Except in special circumstances which are not present in the present case we decline to dismantle an electoral result by the technique of turn coat testimony. Here we may clear the ground by removing Sohanlal's near-confessional evidence from the area of reliable testimony. Whatever his role before the election, his written statement and evidence smack of the 1st respondent's vocabulary and either he is a fool or a knave or too truthful to be credible. For he admits receiving a car and expenses from the appellant, pleads to a mood of withdrawal and in evidence lends lip service to distribution of the objectionable handbills and to a last-minute withdrawal from the election at the instance of the appellant. All that we need say is that his word does not have the ring of reliability and we leave it at that. 27. Yet another aspect of the case may be dealt with here, to clear the deck for a consideration of the serious issues that survive. Running right through the war and woof of the petitioner's averments and evidence....
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....eld in street corners, common on election eve everywhere, we feel it unsafe to stake a verdict of corrupt practice on such dubious material. By passing these oral adventures in vilification, we proceed to turn the spotlight on the handbills, their authorship, existence, implications and circulation. We may straightway state that once we grant this pamphlet publicity, it will depress the victim's chances and may amount to an appeal to religion. Both the candidates are Muslims but one is less muslim than the other almost a kafir because he eats pork. The other imputations in the handbill relate to character assassination and undue influence which we will refer to presently. 29. We may as well set out here Ex. P.W. 4/3, the offending handbill: INTRODUCTION OF CH. KHURSHID AHMED AND SOME QUESTIONS TO HIM. 1. You being a Muslim got dug a grave of a Mohammadan and got the dead body out due to your personal enmity, which is against Islam and its Shariat. Do you still claim yourself to be a Muslim ? 2. Since you have become a Minister you have taken bribery from the public for each work of the public. Do you call this public service ? ....
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....71 K.L.T. 68-Imbchi Koya Thangal v. Ahamed Koya) that the credal core to identify a Muslim as Muslim is not food and dress but the triune items of One God, Universal Brotherhood and the Great Prophet Mahomet, being the last of the Prophets (although on this last limb there is some dispute). No charge on these three aspects has been made in the handbills. Thus apostasy has not been alleged. Nevertheless, having regard to the ruling in Kultar Singh v. Mukhtiar Singh [1964]7SCR790 and the popular sentiment tied up rightly or wrongly with Muslim religion, we do not disagree with the view of the High Court and the stand of both counsel. The secular texture of the law is primarily the legislator's responsibility although Caesar and God should not get mixed up in areas of food, clothing and housing and other temporal matters not inherently interlinked with man's communion with the Supreme. What is appeal to religion depends on time and circumstance, the ethos of a community, the bearing of the deviation on the cardinal tenets and other variables. To confound communal passion and crude bigotry with religion is to sanctify in law what is irreligion in fact. It is good to remind ours....
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....ism is the real enemy. Let that be identified by law. A second look at this labyrinth of law is in keeping with changing times. The 'voice in the wilderness' words of this Court in Ambika Saran Singh's Case(Supra) at p. 181 bear repetition : Indian leadership has long condemned electoral campaigns on the lines of caste and community as being destructive of the country's integration and the concept of secular democracy which is the basis of our Constitution. It is this condemnation which is reflected in Section 123(3) of the Act. In spite of the repeated condemnation, experience has shown that where there is such a constituency it has been unfortunately too tempting for a candidate to resist appealing to sectional elements to cast their votes on caste basis. Every Party silently says "He who has not sinned, let him cast the first stone !" For the purpose of this case, suffice it to say both sides agree that Ex. P.W. 4/3 appeals to religion. 32. Of course, if Ex. P.W. 4/3 had been circulated it did contain personal vilification like "womanizing" which in most countries and among the current generation is a vicious personal imputation under Section....
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....cross-examination. A close look at Ex. P. 19 and Ex. P.W. 2/2 dispels doubts and the entries corroborate P.W. 2's testimony as well as the fact of the leaflets having been in existence on the 10th of March. Let us probe the likelihood of a later fake. The petitioner had no reason to be desperate about a defeat. In fact the lead of the appellant was narrow. Only after the result was declared on 12th could he have thought of creating evidence to undo the election. Both Ex. P. 18 and Ex. P. 19 became inexplicable on that basis unless many public documents and public servants have tampered with truth in a chain conspiracy too nefarious to be credible. Some officers may oblige but it is unfair to impute such gross misconduct to responsible men and flimsy fancies. Other minor attempts to cavil at the evidence on this part of the case merit little serious study. We broadly agree with the High Court that the arguments of the appellant for rejection of Ex. P. 18 and P. 19 and connected documents cannot be contemplated without importing criminal conspiracy for which there is no foundation and they must be repelled. However we will advert to them briefly. 34. We have earlier indicated ....
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....he written statement was filed and yet he pleaded there in ignorance of its existence. We have examined this case from every angle possible and are satisfied that Exhibits R1/A is of little service in debunking Exhibit P. 18 and the leaflets accompanying it. 36. Repeated criticism was made by Shri Bindra that the Deputy Commissioner was the Deputy Secretary in the Department of which the 1st respondent was the Minister and that therefore he was prone to help the latter. Counsel contended vehemently that officers are liable to be pressurised and when a whole election turns on documents in the custody or writing of officials, free and fair elections and their survival through election petitions become precarious. He drew our attention to the observations of Grover, J. in P.R. Belagali v. B.D. Jatti [1971]2SCR611 which make a vain echo in the present case. The learned Judge there observed : Free and fair elections are the very foundation of democratic institutions and just as it is said that justice must not only be done but must also seem to be done, similarly elections should not only be fairly and properly held but should also seem to be so conducted as to inspire....
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.... nor even rule 94A and Form 25 require this drastic attitude. Rule 12, framed by the High Court for the trial of election petitions, it is true, does require the source of information to be mentioned at the earliest stage and it is a wholesome rule, to prevent after-thoughts. But every witness need not be mentioned as a source and every source informant need not be examined necessarily. Whether the omission to do so in a given case reflects on the credibility of the evidence depends on the facts and circumstances of the case. It depends on the overall circumstances and the fairness of the trial. The observations in Ambika Saran Singh's Case(Supra) at. P. 190 are apposite : The question as to the extent of particulars which the Court would demand depends on the circumstances of each case, the nature of the charge alleged and the quality and reliability of evidence before it. 39. While the Court must be careful to insist that the means of knowledge are mentioned right in the beginning to avoid convenient embellishments and irresponsible charges, it should not stifle good and reliable testimony or thwart proof of corrupt practices by the technicalities of procedu....
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.... for ordinary people to contest democratic elections. The point is that when suspiciously small sums are returned as election expenses, no machinery to investigate and take action is found with the result that return of election expenses becomes an idle ritual and not an effective check. If parties pour funds for campaigning the law is silent and helpless. This is certainly a matter for the Election Law to consider. It must make provision deterrent enough--so as to enable the small man to negotiate with elective opportunities. 42. Even at this stage we may notice that the handbill in question does not contain the name of the printer and publisher although the election law so requires. Unfortunately when such printed material is circulated there is no agency of the law which takes prompt action after due investigation, with the result that no printer or candidate or other propagandist during elections bothers about the law and he is able successfully to spread scandal without a trace of the source, knowing that nothing will happen until long after the election, when in a burdensome litigation this question is raised. Timely enforcement is as important to the rule of the law as th....
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....ely on materials which perhaps may be true but bear the stamp of shadiness on their face. For instance, we have Exhibit P. 5 a note written by P.W. 21 Din Mohammad on the reverse of Exhibit P. 6, a copy of the offending handbill, Exhibit P.W. 4/3. P.W. 21 is a polling agent of the returned candidate but swears in support of the defeated candidate in a plausible way. He states on oath that Exhibit P. 6 reached his hands on March 11, when it was being distributed in his village. While in the polling station he made a note on the reverse of Exhibit P. 6 which runs: Shri Samad Khanji, Very few voters are coming from your village. The time left is short. Have the voters sent quickly. Nangal Shahpur. Din Mohd. Dated, the 11-3-1972 He wants us to believe that finding that the voters of Nangal Shahpur had not turned out he sent this note to Samad Khan, a worker of the returned candidate. But how did this P. 5 get back into the hands of Din. Mohd. while it should normally have been with Samad Khan ? To fill up this gap P.W. 75, Sharif Khan is pressed into service. He has a story that one Subhan Khan delivered it to him and he, in turn, gave it....
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....bit P. 2 note thereon, addressed to the appellant. It reads : Ch. Rahim Khanji, I have received the handbills through Raj Khan. I shall distribute them properly. You have not sent me the polling agent forms although you had told me you would. Arrange to have them sent at once. Mohd. Khan 9-3-1972 Surprisingly enough Raj Khan does not deliver the letter to the addressee Rahim Khan but shows it to Sharif Khan P.W. 75. The letter asks for it but Raj Khan seemingly faithful refuses to give it. Nevertheless this Raj Khan leaves it outside and goes inside to get a cup of tea for P.W. 75. When his back is turned, the man with little scruples, P.W. 75, abstracts this letter and Raj Khan never bothers about the loss. The tortuous course of Exhibit P. 3 is too true to be credible. There is some more oral evidence of this devalued class. We do not think we can base our conclusions safely on salvaged bits of testimony of this contaminated sort. 46. There is also oral evidence identifying the signature of the returned candidate on Exhibits P. 3 and P.W. 11/1, particularly in the deposition of Habib, P.W. 23. He has not spoken to ....
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....evidence on this fact. For instance, take village Akerrha. P.Ws. 45, 46, 47 and 48 have concurrently testified that the returned candidate and R3W9 had visited the villages, talked to voters and circulated handbills. The learned Judge discredits P.W. 46 because he was an agent of the 1st respondent. Quite right. But the other witnesses are not discussed at all. So we have read them to ascertain their credibility, particularly since the contrary witnesses of the appellant have been disbelieved. Negative evidence is ordinarily no good to disprove the factum of meetings. But to disbelieve a witness because he came, without summons, as the trial Court has done, is altogether wrong. Even so, the evidence of R1W13, R1W14 and R1W15 was rightly rejected by the trial Judge as useless. However, we are satisfied that no ground exists to disbelieve P.W. 45, an apparently disinterested person. The non-mention of every name in the affidavit in support of Election Petition is no ground to reject witnesses. P.Ws. 45 and 47 sound natural and disinterested and no reason exists to discard their evidence regarding the nocturnal circulation of printed handbills like, P.W. 4/3. No formal meeting w....
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.... judicial determination. Neither undue influence nor divine displeasure looms large in this case. 51. In the ultimate analysis we hold that the appellant did get the handbills, Exhibits P.W. 4/3 printed and distributed among his constituents. Thereby he made statements which were untrue and which he did not believe to be true and knew to be false, about the rival candidate with a view to diminish the latter's prospects in the election. We further hold that Exhibit P.W. 4/3 constitutes an appeal to religion for the purpose of voting for and against. Thus, under these two heads, a contravention under Section 123 of the Act has been committed and for these two corrupt practices the unseating of the appellant becomes inevitable. 52. We may mention here that while meticulous criticism has been made by both sides of the numerous witnesses examined in the case, not the many ripples but the major waves shape the course of the stream in our view, so that we have paid more attention to the broad sweep of the evidence rather than the little details picked up here and there and magnified before us. Therefore, while not endorsing the entire findings of the High Court, we uphold two of....
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....lection case the Court has to inform and extend an opportunity to the collaborators in corrupt practice and in the light of the totality of evidence on record decide the election petition and the issue of naming those guilty of corrupt practices. This is not a facultative power of the Court but a bounden duty cast on it. The high purpose of ensuring purity of elections is the paramount policy inspiring this provision. The Court must strongly deter those who seek to achieve election ends by corrupt means. It is unfortunate that Courts and counsel are somewhat indifferent to this requirement of the statute. If only at the end of an election case where verdicts on corrupt practices are rendered, Courts would name all those involved in the pollution of the electoral process, there would be some hesitation on the part of citizens in executing these improper projects. 55. Counsel for the 1st respondent in this case suggested to us that the distributors of pamphlets or, for that matter, even the authors thereof may easily escape punishment of 'naming' by proving that since responsible candidates had made such speeches, they did not believe the statements to be false or even bel....