SHRI UMED versus RAJ SINGH & ORS.

expression "to withdraw or not to withdraw from being a candidate" cannot be confined to the stage where the law permits a candidate to withdraw from the election. It was observed that the expression is of wide amplitude to include a subsequent withdrawal or non-withdrawal even at the last stage prior to the poll. It was held that the 0) A.I.R. 1974 S.C. 1218.

p. 930, margin G

word "withdraw" is comprehensive enough to also connote "retire from contest". In that case an allegation had been made that one Surendra Kumar, the alleged financier of the B.K.D. Party, had offered to pay R~. 30,000/- to Rs. 35,000/- to a candidate named Malan if the latter would withdraw from the contest and that one Shastri had similarly told Malan that if he withdrew from the contest he would recommend him for a seat in the Legislative Council. Thereupon Malan told them that he had no need of money and as regards the seat in the eouncil, that was for the future to decide, but as they were all asking him to withdraw, he would comply. it was alleged that the above offor or promise which had been made was at the instance of Shiv Kumar who had been elected to the Lok Sabha defeating the rival candidate Mohd. Yunus Saleem who was the election petitioner. Two questions arose for consideration-(i) whether there was any such offer or promise with a view to induce Malan to withdraw from the contest and (ii) whether even assuming that gratification was offered to Malan to induce him to withdraw from contesting the election, that w11mld amount to a corrupt practice in view of the fact that this offor of gratification had been made after the date of withdrawal of the candidature. On facts, the Court held that there was no such offer or promise of gratification, on which finding it was not really necessary to consider the second question. But it appears that since that point was also pressed the Court came to the conclusion that it was unable to accept the submission that even if the facts alleged be established, there can be no corrupt practice within the meaning of section 123(1) lA)(a) '>f the Act when as a result of the gratification the candidate retired from tile contest after the date of withdrawal of candidature. It appears to us that having regard to the history of legislation with regard to the expression "withdrawal of candidature" which was unfortunately not brought to the notice of the court, the law as laid down is not quite cnrtect. One of us (Bhagwati, J) has shown separatly how that view is not really sustainable. We are quite aware of the fact that even at the point need not have been decided in the former judgment it need not be decided in this judgment, because on facts · we have come to the conclusion that there was no payment to Chatru. But since the view taken in Mohd. Yunus's case is binding on the · High Courts it has become necessary for us to review that decision.

p. 931

This brings us now to the second series of alleged corrupt practices under section 123(5) of the Act. That relates to the hiring or procuring· of a vehicle by a candidate or his agent or by any other person with · the consent of the candidate or his election agent for the conveying of voters to or from any polling station free of charge. Out of the several allegations on thi~ score, the Jea:ned Judge has accept~~ as proved allegations which have given nse to Issues Nos. 13(11) (iii)(iv) and (v). The first two issues relate to two Jeeps alleged to have been used for the purpose, and the last two relate to two trucks. .The vehicles concerned are Jeep No. PNN 5021 of which P.W. 26 Rajinder Prasad was the driver. The other Jeep is RSK 668 of which Jagdish Chander, P.N. 27 is the driver. The two tFucks involved are HRH 8567 the driver of which was P.W. 24 Jagan Nath and the other truck is HRN 7101 of which P.W. 25 Simran Dass was the driver. We shall deal with the evidence with regard to these vehicles one after another.

pp. 931–932, margin F

Jeep No. PNN 5021

p. 932, margin A

The allegation was that this jeep had been procured by the appellant for his election work and that it was used for free carriage of voters to and from the polling station at Madina on the polling date. The principal evidence is that of the driver P.W. 26 Rajinder Prasad. This witness says that Jeep No. PNN 5021 had been taken on hire by the appellant, the hire agreement being that the appellant should pay Rs. 85/-per day in addition to bearingthe cost of petrol. Aceording to the witness it was hired from 12th February, 72 to 11th March, 72. He further stated that he was on duty with the appellant, himself suggesting thereby that he was attached to him throughout the period. He further stated that on March, 11 1972 i.e. the polling day, he was on duty to bring voters from their fields and houses to the polling station at Madina, though he could not remember the location of the polling station. The appellant has denied the hiring of this jeep at any time. But the Register P.W. 19/1 does show that this jeep had been used for election purposes the first entry being of 28th February, 72. We are not disposed to accept the appellant's statement in this respect but at the same time we have to see whether, as a matter of fact, this jeep, though it might have been used for the election campaign of the appellant, had been actually used for conveying the voters free of charge to the polling stations. The election petitioner has not examined any voter who came in this jeep to the polling station. Therefore, we have to rely almost wholly on the evidence of the driver Rajinder Prasad who, however, has not impressed us as sufficiently reliable. In the first place, his case is that this jeep was hired from 12th February, 72 but the register P.W. 19/1 shows that it was used for the election campaign for the first time on 28th February, 72. Secondly the jeep was not a local jeep. Rajinder Prasad is from Hissar and he is not the owner of the jeep. The owner would have been the best person to speak about the hiring especially as the jeep was supposed to have been hired out for about a month. The owner is not examined. There is no receipt for hiring or procuring of the said vehicle. Though the witness says that this jeep was attached to the appellant throughout, we find from the register Ext. P.W. 19/1 at page 9 that except on one day namely 3rd March, 72 the jeep was under the control of others. The witness further shows great enthusiasm in saying without justification that there were three other jeeps and other vehicles, the members of which he could not remember, which had been procured by the appellant for this purpose. In his cross-examination he stated that one Tara Chand, Sarpanch of village Seman had taken him to the appellant. Tara Chand examined as a witness for the appellant (R.W. 18) does not support the statement. In these circumstances, we find it difficult to hold on the bare statement of this witness that on 11th March he had brought voters to Madjna polling station. It may well be that this particular jeep had been used in the ,~lection campaign and the witness also might have been the driver of the jeep. But we are concerned with what had happened on 11th March, 72, i.e. the polling day and to determine whether this jeep had been used for conveying voters from the village and the fields free of charge. That is the important point to be decided and having regard to the general unreliability of the witness, we do not think that on the b:ire statement of this witness we can come to the conclusion that this jeep was used for the particular purpose on I Ith March, 72. Reference was made to an entry in P.W. 19/J. That entry is made by P.W. 19 Munshi Ram. It purports to say that this jeep was used from 8·00 A.M. to 7 ·00 P.M. for polling duties. That is the last entry on the page made by a person definitely hostile to the appellant. We cannot therefore, rely on it. It appears from a perusal of some of the pages of P.W. 19/J that the last few entries on successive dates appear to have been made at one time and with one pen. Particular attention may be drawn to pages 21 and 23. On both these pages it will be seen that the three entries from 9th March to I Ith March appear to have been made at one time and with one pen. All these entries are in the handwriting of Munshi Ram. If we compare the entries of 9th and 10th March made at page 10 we will find that they appear to be in a pen different from the one not only for making the entry of 11-3-72 on that page but also of the entries of 9th and 10th March on pages 21 and 23. Hence, the probability of the relevant entries being made by Munshi Ram for the purpose of this election petition cannot be eliminated. We cannot, therefore, rely on the entry dated I Ith March, 72 at page JO of the Register. In our opinion, there is no sufficient reliable evidence for holding that Jeep No. PNN 5021 had 'been procured by the appellant for conveying the voters free of charge.

pp. 932–933, margin A

We then come to the second Jeep No. RSK 668 the driver of which is one Jagdish Chander, P.W. 27. In this case as in the previous one the driver is examined and not the owner. The owner was one Lala Pushotam Das of village Ralwas, District Hissar. P.W. 27 Jagdish Chander says that the appellant had hired this jeep and that, actually, the jeep worked with the appellant from 12th February, 72 to 11th March, 72. This witness again says that on March 11, 72 he was on duty with the appellant for sometime in Maham and for the rest of the time in village Sisir. According to him he had transported voters on that day to both the polling stations namely Meham and Sisir. As in the case of the other jeep no voter is called as a witness to show that he was conveyed free of charge to the polling station by this jeep. It is admitted that the jeep had been used in the election campaign and, as a matter of fact, there is a receipt for Rs. J,500/- given by the driver when he was paid this amount. That receipt is P.W. 27/1. The receipt shows that the hire was from 22nd February, 72 till March 12, 1972 and that the driver had been paid a consolidated sum of Rs. 1,500/i.e. to say, for hiring and petrol charges. The witness admits having given this receipt but his case seems to be that the contents thereof are not true. According to him the hiring, as stated earlier, was from 12th February to 12th March, 1972 the hire being Rs. 85/- per day besides the appellant bearing the petrol charges. Thus the receipt given by the witness contradicts the witness both with regard to the total period of hire as also the terms of the hire agreement. Then again his case is that he was attached to the appellant on 11th March, 72 i.e. to say he went along with him wherever be went on that day and visited only two places namely Meham and Sisir. This would mean that the appellant was at these two polling stations only throughout the day when we should normally expect him to be moving from one polling station to another-the total number of polling booths being 73. P.W. 19/l has kept a record of this jeep from 28-2-72, its coming and going from day to day. See pages 13 and 14. The last entry with regard to the jeep is at page 14 and it says that it was used for polling for the whole of the day. That entry does no damage to the appellant, because admittedly the jeep had been hired. . But the entry on page 23 with regard to another Vehicle HRV 3709 dated 11th March, 72 shows that this vehicle was with the appellant (who is described as Professor) for the whole day thus contradicting both the two drivers Rajinder and Jagdish Chander, each of whom claims that on I Ith March, 72 they were attached on duty to the appellant. In this state of the evidence it will be difficult to describe Jagdish Chander as a reliable witness. It is his bare word that voters were transported free of charge in his jeep and we do not think that we can rely upon it.

pp. 933–934, margin D

That brings us to the two trucks by which, it is alleged, the voters of the appellant were conveyed free of charge to the polling stations on the polling day. A common feature about these vehicles is that they were intercepted by the Police for carrying passengers in breach of the provisions of the Motor Vehicles Act and the drivers thereof had been challaned on that very day. We have no doubt that the trucks were used for conveying voters to the polling booths. But the question for determination is whether the trucks were hired or procured by the appellant or his agent or by any other person with the consent of the appellant or his election agent for the free conveyance of the electors to or from any polling station. It must be noted that the mere conveyance of voters to the polling station free of charge does not amount to a corrupt practice. If, for example a sympathizer or supporter of a candidate carries voters free of charge in a 'chicle to the polling station it will not amount to a corrupt practice unless it is shown that the vehicle was procured by that sympathizer or supporter with the consent of the candidate or his election agent. If there was conveyance of electors by the truck and the electors gave evidence to the effect that they were conveyed by the truck atthe instance of the appellant, his election agent or their accredited workers, that would be a strong corroboration of the driver's evidence that the truck was hired or procured by the appellant. In the present case, both the truck drivers have given evidence to the effect that the appellant had personally hired their trucks for the purpose of conveying electors to the po!Ling booths. In a case like the present, which is riddled with suspect evidence, one has to be very careful in taking the truck drivers at their word, because a truck driver actuall} working for some other candidate or at the instance of somebody else, may with the least risk of exposure substitute a candidate's name for the other, especially, when no documentary evidence of hiring the {ruck is possible to expect in such a case. The charges of corrupt practice are quasi-criminal in nature and, therefore, the approach to t~e evidence of the truck drivers must be characterised by great c!,ut1on.

pp. 934–935, margin A

Of the two trucks one is No. HRH 8567 of which P.W. 24 Jagan Nath claims to be the owner/driver. He says that the appellant had himself hired his truck for the polling day agreeing to pay him Rs. gO/per day in addition to bearing all the expenses. According to the wit· ness, he was asked to bring voters from Indergarh to Chandi, the latter place being the polling station. He says that he performed the duty of bringing the voters from 8 ·00 A.M. till 5 ·30 P.M. The voters were brought free of charge. He admits that he was intercepted by the Police for transporting passengers which under his licence he could not do, and, in fact, he says he was challaned by the police at about I I ·00 A.M. What he means to say is that after his interception he was served with a summons to appear before the Magistrate on a stated date to answer the charges detailed in the summons. He further adds that his Log Book was inspected by the Police Sub-Inspector who say there an entry made by the witness to the effect that the truck was on election duty of "Chaudhary Urned Singh", that is to say, the appellant. The Sub-Inspector Jaswant Rai, P.W. 9 says that he had found Jagan Nath conveying passengers without a permit and, therefore, he had challaned him. He says that he had seen an entry in tho Log Book of the truck and that entry revealed that the passengers were being carried on behalf of the appellant. The Log Book itself is not produced in court and, therefore, the written entry in the Log Book cannot be proved by either the driver Jagan Nath or tho P.S.l. Jaswant Rai. Therefore, reference to the ccntents of the Log Book must be wholly excluded. Ext. P.W. 24/2 is the summons served upon Jagan Nath on ll-3-72 at II ·00 A.M. By that summons Jagan Nath was asked to attend the Court· of the Judicial Magistrate at Gohana at 10 ·00 on 4-4-72 to answer the charge under section 42/123 of the Motor Vehicles Act detailed in the summons. Ext. 21/l is the reoeipt for the fine of Rs. 200/- dated I 0-4-72 recovered from Jagan Nath. The case is that Jagan Nath was ccnvicted for the offence and had to pay a fine of Rs. 200/- for the breach of the Motor Vehicles law. As already stated, we feel no difficulty in holding that this parti· cular truck was used for the purpose of conveying the electors before 11 ·00 A.M. on the day of polling. But tho question still is whether the electors were conveyed free of charge, and more impcrtant than that, whether that was being dono at tho instance of the appellant or his election agent. No voter who is supposed to have travelled by the truck has been called to give evidence in the case. We may also infer from the facts of the case that the electors were being conveyed free of charge. But the question stLI\ remains whether we can accept the testimony of the driver that he had been engaged by the appellant for the purpose. He might have been engaged by the appellant, he might have been engaged by his opponent, or he might have been engaged by any sympathizer or supporter of either the appellant or the opponent without their knowledge. In a case like this where corrupt practice is sought to be establis)led on the testimony of the truck driver, who was functioning in defiance of the law, we should remember that there is great likelihood of evidence being purchased at small cost so as to upset the whole election. It is an admitted fact that the appellant was a young man fresh from the University and it does not appear that he had much experience of elections. Although he stood as an Independent candidate selected by the Chaubisee he had been given active support by several non-Congress Parties. The Arya Sabha seems to have practically adopted him as its unofficial candidate. Therefore, if any Arya Sabha worker had hired the truck for the purpose of conveying voters without the knowledge or consent of the appellant there is every likelihood-of the truck driver being persuaded to name the appellant for the Arya Sabha workers. The truck driver is also not shown to be very reliable in other respects. Though he was challaned at 11 ·00 A.M. he purports to say that he plied the truck till 5 ·30 p.m. We think this is very improbablo because he had already been caught by the P.S.I. and he won't be so fool-hardy as to persist in the offence after 11 ·00 A.M. Then again he admits that he had to pay a fine of Rs. 200/. But it does not appear that he made any demand from the appellant for paying him the amount of the fine because, after all, if he was plying the truck for the appellant in order to oblige him even by committing an offence under the Motor Vehicles Act, it would be normally expected that he would insist on being reimbursed by the appellant. It is not his case that he made a demand from the appellant for the money and the appellant either paid him or refused to pay him. In these circumstances, therefore, we don't think that we can rely completely on the evidence of Jagan Nath.· Reference was made to an entry at page 30 of the Registrer Ext. P. W. 19/1 suggesting that at certain places it was left to the appellant to arrange for the trucks. On that page are mentioned several vehicles which were to be used on duty at some of the polling stations. All the entries are in English but in the space against serial numbers 3, 4 and 5 there is a writing in Urdu which reads professor Urned Singh should himself reach the villages and make arrangements with trucks on the polling stations." Mur\shi Ram the writer of the book says that he had made this entry. In our opinion, tho entry is spurious. Serial No. 3 mentioned that a jeep was to be at tho polling station oflndergarh. Serial No. 4 mentions that a Soooter ~hould be in attendance at the polling station at Seman. Serial No. 5 1s of no consequence. It is not as if trucks had not been mentioned in the list. In fact the list shows that at Bahalbha and at Farmana at ~ial nos. 9 and 10 there should be a truck each. Therefore it 1s clear that this Urdu writing about trucks is an afte: thought. There was no point in making a memo that the appellant should himself go to some villages and make arrangements for trucks. If trucks were necessary, the appellant could be trusted to make arrangements on his own. It is impossible to believe that trucks could be arranged at so short notice since the same were to be made available ea:lY in. the morning at specified polling stations. In our opinion, · this particular Urdu memo cannot create confidence that it was made in tho regular course of business. In this state of the evidence, we ,cannot hold that the appellant or his election agent had procured this truck for the free conveyance of electors on the polling day.

pp. 935–937, margin B

The position is similar in the case of Truck No. HRR 7101. but with an important difference. The driver of the truck is P.W. 25 Simran Das and it is established by his evidence and the evidence of P.W. 9 Sub-Inspector Jaswant Rai and Exts. P.W. 25/1, P.W. 9/2 and P. W. 25/2 which are documents relating to the charge of carrying passengers in breach of the MotorNehicles Act that the truck was being used for the carrYing of electors from the polloing Station at Seman back to the village Bedwa. It appears that the truck was intercepted by the Sub-Inspector Jaswant Rai at 4 ·00 p.m. If that was the only evidence in the case we would have taken the same view as in the case of the other truck already discussed. But the difference lies in the fact that the election petitioner has examined in this case an elector named Mani Ram P.W. 30 whose evidence has been accepted by the \earned Judge and which we find no sufficient reason to reject. Mani Ram is a resident of Bedwa and he says that as there was no Polling Station in his village he had to cast his vote at the Polling Station at Seman alongwith other villagers of Bedwa. He further says that he and other voters of that village went to Seman in a truck provided by the appellant and that truck bore the flags and the election symbol of the appellant. They went in this truck to Seman at about 3 ·00 p.m. and returned by the same truck after casting the votes. The truck carried about 20 or 22 voters and he mentioned the names of a number of villagers who had travelled with him for casting their votes. On the return journey to Bedwa they were intercepted by the Sub-Inspector and the driver was chal!aned on the spot. Thereafter the truck proceeded to Bed wa and the villagers were dropped at that place. According to him neither he nor the other voters had paid any fare to the truck driver. The appellant had not personally asked them to get into the truck but the arrangement was made by the appellant's worker Dilbagh who put them in the truck at Bedwa. The cross-examination of this witness does not show that he was partisan wjtness. He denied that he was a Congress rnan and said that he was never a supporter of the election petitioner in any election. Asked how he came to know that the truck had been arranged by the appellant he replied that the truck had made many trips on that day and he knew that it was conveying the electors of the appellant. There was no cross-examination on the allegation that the truck bore the flags and the election symbol of the appellant. In cross-examination he further stated that Dilbagh who worked on behalf of the appellant had gone along with the truck. It is important to note here that Dilbagh was a worker of the appellant and his name appears at page 14 of P.W.19/1 as a person to whom Jeep No. RSK 668 had been allotted on the afternoon of 7th March 72. As a matter of fact D'lbagh had been cited by the appellant as his witness on this very issue in relation to this truck. He was not examined by the appellant whose turn to examine witnesses came much after witness Mani Ram was examined fur tho petifoner. No reasons were given as to why he was dropped except to say that the appellant considered it "unnecessary". It. was not stated in so many words that Dilbagh was being dropped because ho had been won over. It was contended on behalf of the appellant that this must have been the real reason because the diary which was produced by the petitioner at tho timo of his examination in-court showad that Dilbagh had been contacted by the petitioner sometime after the election petition was filed. If that were so it should have been specifically brought to the notice of the court that Dilbagh had turned hostile and therefore tho appellant was not examining him. Moroover it would appear from Mani Ram's evidence that a number of namod electors from tho village had gone with him in the truck to cast their votes and it should not have been difficult to demolish Mani Ram's evidence by calling tho named electors to say that they had not actually travelled in that truck. Instead of doing so, the appellant examined a number of witnesses like R.W. Rajmal, R.W. 18 Tara Chand, R.W. 19 Sadhu Ram etc. whoso evidence is merely negative in the sense that they say that they did not sec a truck plying between Bedwa and Seman for carrying voters. In view of the positive evidence that this truck had been used for conveying voters that kind of evidence is oflittle value. The loarned Judge has accepted the evidence of P.W. Mani Ram and we don't see sufficient reason to reject it. Wo therefore· confirm the finding of tho learned Judge that the truck No. HRR 7101 had been hired by the appellant for the conveyance of the electors to and from the polling station at Seman free of charge.

pp. 937–938, margin A

So far we have dealt with the appellant's challenge to the findings of the learned Judge which were recorded against him. We shall now deal with respondent No. l's (election petitioner's) challenge to the findings which were recorded against him. Learned counsel for respondent No. I confined his challenge to thefinding on issue No. 15 which reads as follows :

p. 938, margin D

"Whether respondent No !. (the present appellant) committed the corrupt practice of obtaining and procuring the assistance of Dhir Singh s/o Jodha Singh a member of the Armed

p. 938, margin E

Forces of the Union for the furtherance of the prospects of his . election in the manner alleged in paragraph 16 of the petition and . by distributing the hand-bill as alleged in paragraph 13 of the

p. 938, margin F

petition." The learned Judge held that no such corrupt practice as envisaged in section 123(7) was committed by the appellant. Learned counsel has confined his argument only to the allegation that the aforesaid Dhir Singh who was admittedly a member of the Armed Forces of the Union had canvassed support for the appellant in four Villages. On that question the petitioner had examined P.W. 6 Kushi Ram, P.W. 13 Desraj and P.W. 28 Captain Phool Singh. Neither party desired to examine Dhir Singh himself. So Dhir Singh was examined as a court witness. Tho learned Judge for sufficient reasons did not accept the evidence of the three aforesaid witnesses of the petitioner and it would appear from the judgment that he was not also quite impressed by the evidence of Dhir Singh. It is contended by learned counsel that though the three petitioner's witnesses may not have satisfied the learned Judge there was really no reason why he rejected the evidence of Dhir Singh who clearly admitted in his cross examination by the election petitioner that "Urned Sir.gh respondent No. 1 came to our village twice or four times during this election campaign during February and March 72. He used to come to my house. I accompanied him to the voters of mY brotherhood .within my own village. I did not go with him to any other village. !used to convince them for vote in favour of respondent No l ." It is the contention of the learned counsel that there was here a clear admission witness that he had canvassed for the appellant in his own village and since such an admission comes from a person who admittedly was the appellant's polling agent the learned Judge was in error in not noticing properly this clear admission of a corrupt practice. We have carefully gone through the evidence of this witness and we don't think that we can accept his evidence at its face value. It appears that Dhir Singh had come on leave in February 72 and was in the village till 4th April 72. The village to which he belongs is Behalba. In his examination by Court he only admitted that he had been appointed as polling agent. It is conceded that in view of the Amendments of 1966 acting as a Polling agent by a member of the Armed Forces would not amount to a corrupt practice u/s 123(7). It was in his cross-examination by the elec· · tion petitioners that the aforesaid admission was made. In his crossexamination by the appellant he stated that he had met the appellant only about 5 or 6 days before the election and it is his case that at that time the appellant had requested him to vote for him. He also says that he had nothing more to say to him. Finally he says "I did nothing more for Urned Singh (the appellant) except acting as hi~ Polling agent." Now this goes contrary to the previous statement that the appellant had come to his village about four times that he used to come to his house as if he was his friend and that he had canvassed for him in his own village dtiring February and March 72. If in fact he met him only 5 or 6 days before the polling date and had asl\ed him to give him his vote that would show that the provious statement of his coming about four times in the v.illage in February and March may not be correct. Indeed if the witness without the knowledge of cornent of the appellant spoke to other villagers in that village in support of the · candidature of the appdlant that would not amount to a corrupt prac- . tice within the meaning of section 123(7). We am not therefore inclined to differ from the finding of the learned Judge on this issue.

pp. 938–939, margin F

The appellant has succeeded in his challenge except on one count namely the hiring of the truck No. HRR 7101 for conveying electors between Bedwa and Seman free of charge. All the same the election petition filed by respondent No. 1 succeeds on that one count of corrupt practice under section 123(5) and therefore we have to confirm the order of the learned Judge setting aside the election of the appellant. Having regard to the fact that the appellant has succeeded hem except on one count we shall direct that the parties shall bear their own costs. in this appeal.

p. 939, margin G

BllAGWATI J. Since I was a party to the decision in Mohd. Yunus ·Saleem v. SMvkumar Shastri & Ors. (1) which is now being over turned ·by us, I think I must explain why we take a different view from the one ·~aken in that decision. The point decided in that case lias been elaborately discussed before us and we find on a fuller argument that the view taken by the Court in that case was erroneous and needs to be corrected. To. perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience .. In this we derive comfort and strength from the wise and inspiring words of Justice Bronson m Pierce v. Delameter (2) "a judge ought to be-wise enough to know that he is fallible and therefore ever ready to learn; grrnt and honest enough to discard all mere pride of opinion and follow truth wherever it may lead; and courageous enough to acknowledge his errors".

p. 940, margin A

The question which has given rise to this divergence of opinion is whether a candidate who offers gratification to another with the object directly or indirectly of inducing him to retire or not to retire from the contest after the last date for withdrawal of candidature under section 37 is past comes within the mischief of section 123(l)(A)(a) of the Representation of the People Act 1951. The determination of this question turns primarily on the true construction of the words "to withdraw or not to withdraw from being a candidate at an election" 1~ section J23(J)(A)(a) but in order to arrive at a proper interpretation it is necessary to look at. the scheme of the relevant provisions of the Act.

p. 940, margin C

Part V of the Act sets out the machinery for the conduct of elections. Section 30 provides that as soon as the notification calling upon a con- ~tituency to elect a member or members is issued, the Election CommisoSion shall appoint the Jast date for making nominations, the date for the scrutiny of nominations, the Jast date for the withdrawal of can- <lidatures, the date or dates on which a poll.shal!, if necessary, be taken and the date before which the election shall be completed. The first step which has to be taken after the issue of a notification appointing these dates is nomination of candidates for the election and that is dea1t with in section 32. If a' person wishes to stand for the ejection he has to be validly nominated as a candidate in the manner ptescribe<I in ·section 33 and 34. Section 35 provides for scrutiny of the nomination papers by the returning officer on the date and at the time and Place fixed for the same. The returning officer has to examine the nomination papers and decide whether they are valid. Immediately after all the nomination papers have been scrutinised and decision, accepting or rejecting the same, have been recorded, section 36 says that the returning officer shall prepare a list of validly nominated candidates, ~hat is to say, candidates whose nominations have been found valid cand affix it to his notice board. A candidate may however, withdraw "his candidature by a notice in writing provided of course such notice is subscribed by him and delivered to the returning officer before 3 O'clock in the afternoon on the date fixed for the withdrawal of candi- -dature. Vide section 37, sub-section (I). Sub-section 2 of section 37 provides that "no person who has given a notice of withdrawal of his (I) A.I.R. 1974 S.C. 1218. (2) A.M.Y. 3 at 18 (1847).

p. 940, margin D

candidature under sub-section (I) shall be allowed to cancel the notice". and sub-section (3) says that 'the returning officer shall, on being satisfied as to the genuineness of a notice of withdrawal and the identity · of the person delivering it under sub-section (1), cause the notice to be affixed in some conspicuous place in his office" .. Section 38 enjoins that immediately after the expiry of the period within which candidatures may be withdrawn under sections 36 and 37 the returning offioor shall prepare and publish a list of contesting candidates, that is to say, candidates who are included in the list of validly nominated candidates and who have not withdrawn their candidatures within the said period. The next few sections are not material for our purpose and we may straightaway go to section 52 which provides for the consequences of death of a candidate before poll. Sections 53 and 54 prescribe the procedure in contested and uncontested elections. If the number of contesting candidates is more than the number of seats to be filled, a poll is to be taken, if the number of such candidates is equal to the number of seats to be filled, the returning officer is to forthwith declare all such candidates to be duly elected to fill those seats; and if the number of such candidates is less than the number of seats to be filled, the returning officer is to forthwith declare all such candidates to be elected atld the Election Commissioner is to call upon the constituency to elect a person or persons to fill the remaining seat or seats.

p. 941, margin A

We may then refer to section 55A which was introduced in the Act by the Representation of the People (Amendment) Act 27 of 1956 This section speaks of retirement from contest at elections in parliamentary and assembly constituencies. Some of the provisions of this section are material and we may reproduce them as follows :

p. 941, margin D

Sec. 55A(2) A contesting candidate may retire from the contest by a notice in the prescribed form which shall be delivered to the returning officer between the hours of eleven o'clock in the forenoon and three o'clock in the afternoon of any day not later than ten days prior to the date or the first of the dates fixed for the poll under clause (d) of section 30 either by such candidate in peFSon or by an agent authorised in this behalf in writing by such candidate.

p. 941, margin E

(3) No person who has given a notice of retirement under sub-section (2) shall be allowed to cancel the notice.

p. 941, margin F

(4) The returning officer shall, upon receiving a notice of retirement under sub-section (2), cause a copy thereof to be affixed to his notice board and also to be published in such manner · as may be prescribed.

p. 941, margin F

(5) Any person who has given a notice of retirement un~er sub-section (2) shall thereafter be de~med not to be a contesting

p. 941, margin G

candidate for the purpose of sect10n 52. The consequences of rel irement of a candidate on the poll .are set out in sub-sections 6 and 7 of section SSA. The scheme here 1s the same as in sections 53 and 54 and we mied not reiterate it.

p. 941, margin G

Then follows Part IV which deals with disputes f!lgarding elections. It sets out an elaborate machiner)' for calling in question an elec.tion whether it be in a parliamentary or an assembly constituency. we are not concerned in this appeal with the detailed provisions in regard .to this machinw. Suffice it to state that broadly the procedure of presenting an election petition to the }ligh Court is provided by this machinery. The grounds on which an election may be declared to be void by the Jligh Court are set out in section 100 and one of those grounds as set out in clause (b) of sub-section (I) of that section is that a corrupt practice has been committed by the returned candidate -0r his election agent or by any other person with the consent of the returned candidate or his election agent. What are corrupt practices which have the effect of invalidating an election are set out in Chapter I of Part VII which consists of a solitary section, namely, section 123. Sub-section (I) of that section defines the corrupt practice of 'bribery'. When section 55A was introduced in the Act by the Representation of the People (Amendment) Act 27 of 1956, sub-section (I) of section 123 was correspondingly amended and that sub-section, as amended, was in the following terms :

p. 942, margin A

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

p. 942, margin C

(I) Bribery, that is to say, any gift, offer or promise by a candidate oi; his agent or by any other person, of any gratification to any person whomsoever, with the object, directly or indirecly inducing.

p. 942, margin D

(a) a person to stand or not to stand as, or to withdraw from being a candidate, or to retire from contest, at an

p. 942, margin D

election;_ (b) an elector to vote or refrain from voting at an election,

p. 942, margin E

or as a reward to- (i) a person for having so stood or not stood, or for having withdrawn his candidature, or for having retired

p. 942, margin E

from contest; or

p. 942, margin F

(ii) an elector for having voted or refrained from voting. Section 55A had, however, a very short life and within a couple of years it was deleted by the Representation of the People (Amendment) Act 58 of 1958. Since the provision for "retirement from COP.test" enacted in section 55A was done away with by this amendment, consequential changes were also made in clauses (a) and {i) of sub-section (l) of section 123 by deleting the words "or to retire from contest''. from clause (a) and the words "or for having retired from: contest" from clause (I). Certain other changes were also made in sub-section (1) of section 123 but they are not material. It will be seen that at this stage it was an essential ingredient of the corrupt practice of bribery that the object of offering gratification should be to induce a person to stand or not to stand, or to withdraw from being a candidate, at an election .. If gratification was offered with the object of inducing a person not to withdraw from being . candidate at an. election, it was not within the m;schief of the section. The Representation of the People (~mendment) Act 4 of 1966, therefore, added the words "or not to ;;vithdraw" ~fter ~he words "to withdraw" in clau!<e (a) and the ~ords or not havmg withdrawn" after the w<'rds "having withdrawn" m c!ause (!). Sub-section(!) (a) of section 123 thus assumed the fol- Jowmg form:

pp. 942–943, margin F

"123. Corrupt practices.-The following 'shall be deemed to be corrupt practices for the purposes of this Act :- (1) 'Bribery', that is to say,-

p. 943, margin A

(A) Any gift, offer ~r promise by a candidate or bis agent or by a_ny other person with the consent of a candidate or his el~ct10n agei;t of any gratification, to any person whomsoever with the obiect, d!fectly or indirectly of inducing- '

p. 943, margin A

(a) a person to stand or not to stand as, or to withdraw ornot to withdraw from being a candidate at an election, or

p. 943, margin C

(b) an elector to vote or refrain from voting at an election or as a reward to-

p. 943, margin C

(i) a person for having so stood or not stood or for having withdrawn or not having withdraw~ his candidature; or

p. 943, margin D

(ii) an elector for having voted or refrained

p. 943, margin D

from voting; ,. This is the form in which section 123, sub-section (I) (A) stood at the material time.

p. 943, margin D

Now, there can be no doubt that section 123 bas been enacted with the object of ensuring purity of the election process. It is essential in a democratic form of government that elections should be free and fair and every vote cast in an election should be the free an.d honest eX]!lression of the choice of the voter uninfluenced by any extraneous considerations. The political ideal of democracy is government by" the consent of the governed and government by consent postulates, ·amongst various other requirements, free elections where there is honest competition for votes. The election process must, therefore; remain pure and unsullied and it has been the endeavour of our law makers to secure this by making various provisions in the Representation of the People Act, 1951. Section 123, sub-section (I) (A) is one such provision. It must, therefore, doubtless be construed so as to suppress the mischief and advance the remedy, But that does not mean that a construction should be adopted which ignores the plain natural meaning of the words or disregards the context and the colloction in which they occur. It is a familiar rule of interpretation that the words used by the legislature must be construed according to their plain natural meaning. But it is equally well-settled-and authorities abound in support of it-that in order to ascertain the true intention of the legislature the court must not only look at the words used by the legislature, but also . have regard to the context and the setting in which they occur. The context and the col!oction of the words may induce the court to depart from their ordinary meaning, for these may show that the words were not intended to be used in the sense which they ordinarily bear. The exact colour and shape of the meaning of words in an enactment is not to be ascertained by reading them in isolation. They must be read structurally and in their context, for their signification may vary with their contextual setting. Of course, when we speak of the context, I mean it in a wide sense which requires that provisions which bear upon tbe same subject matter must be read as a whole and in their entirety, each throwing light and illumining the meaning of the other. It is in the light of these principles of interpretation that I must proceed to examine the language of subsection (1) (A) of section 123 and construe the words "to withdraw or not to withdraw from being a candidate" occurring in clause (a) of that sub-section.

pp. 943–944, margin E

Clause (a) consists of two parts. The first part refers to inducement 'to stand or not to stand as a candidate'. What is the compass of this expression? I think at this stage I ought to refer to the definition of 'candidate' given in clause (b) of secion 79, for considerable reliance was placed upon it by the learned counsel on behalf of the first respondent. Section 79 clause (b) says that in Parts VI and VII -and section 123 occurs in Part VII-'candidate' shall mean "a p~rson who has been or claims to have been duly nominated as a candidate at any election and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate". The first part of the definition requires that in order to be a candidate a person should have been duly nominated as a candidate. But it may sometimes happen that though a person claims to have been duly nominated, the validity of his nomination is in dispute; such a person would also be a candidate within the mraning of the definition. The basic postulate of the first part of the definition is that a person should be duly nominated and it is only then that he becomes a candidate at an election. The second part of the definition does not extend the meaning of the word' candidate' but merely says from what point of time a person, who /las been duly nominated as a candidate, shall be deemed to have· been a candidate. It does not dispense with the requirement of due nomination so that a person who has not been duly nominated can never be regarded as a candidate. This is in accord with the scheme of the machinery envisaged in Part V of the Act. It is only by nomination under section 32 that a person stands as a candidate. It is, therefore, obvious that when the first part of clause (a) speaks of standing or not standing as a candidate, the reference is to nomination as a candidate under section 32. That was also the view taken by this Court in Mohd. Yunis Saleem v. Shivkumar Shastri & O's. (1) and adhere to it.

p. 944, margin C

(I) ..

p. 944, margin H

That takes us to the second part of clause (a) which requires to be construed iu the present case. The question which arises for consideration is what is the true scope and meaning of the words "to witlidraw or not to withdraw from being a candidate" in this clause. It was common ground between the parties that these words cover a situation where a validly nominated candidate withdraws bis candidature under section 37 by giving a notice in writing on or before the last date fixed for the withdrawal of candidatures. But the controversy was as to whether they include something more. Do they apply to a situation where, after the last date for the withdrawal of candidatures under section 37 his past, a contesting candidate announces that he does not wish to contest the election, or in other words, retires from the contest, or to use a more colloquial expression, sits down? The appellant contended that they do not, while the first respondent asserted the contrary.

p. 945, margin A

In the first place, let us see what the words "to withdraw from being a candidate" mean according to their plain natural sense. This Court in Mohd. Yunus Sa/eem'scase(supra) retied on the dictionary meaning of the word 'withdraw', namely, "to go away or retire from the field of battle or any contest". But it must be noted that the word 'withdraw' does not stand atone. It iS part of a composite expression. The crucial words are "to withdraw-from being a candidate". They clearly indicate that what is contemplated is cesser or termination of the state of being a candidate. When a person withdraws from being. a candidate, he ceases to be a candidate; he is no more a candidate. This meaning is considerably strengthened if we look at clause (b) (i), which uses the expression "having withdrawn-his candid.ature" and clause (B) (b), which uses the expression "to withdraw--:--h1s c~n­ didature" to denote the same idea. Now, the only mode m which a candidate can withdraw his candidature and cease to be a candidate is that set out in seci;0n 37. Until the last date for withdrawal of candidatures, he has a loci.1.poenitentiae and he can withdraw from.being, a candidate by giving a notice in writing to that effect under section 37. But once that date is past, he becomes a "contesting candidat~" and then he has no choice. He is irrevocably and irretrievably 1n the contest. No subsequent change of mind can help him to get out. of the fight. It is then futile for him to announce that he does not w1Sh to contest the election or he has retired from the contest. Whether he likes it or not, whether he energises himself or not, whether he actively campaigns or not, he remains a contesting candidate a~d the voters can cast their votes for him and even elect him, despite himself. He cannot, therefore, cease to be a contesting candidate and if that be so, it must follow a fortiorari that he cannot withdraw his candidature or withdraw from being a candidate, once the last date for withdrawal of candidatures under section 37 is gone.

p. 945, margin B

We can also approach this question of construction from a slightly different angle. The words "to withdraw-from being a candidate'"

p. 945, margin H

in clause (a) cannot be read in isolation. They must be read in the 14-tnSJp.CJ,'75 context of the other provisions of the Act. As we have already pointed out, it is clear on a proper and combined reading of clauses (a) and (b) (i) of sub-section (I) (A) and clause (b) of sub-section (1) (B) that the words "to withdraw-from being a candidate" used in dame (a) of sub-section(! )(A) mean the same thing as withdrawal of candidature referred in clause (b) (i) of sub-section (1) (A) and clause (b) of subsection (I) (B). Now the concept of withdrawal of candidature to be found in sub-section(!) (A} and (l) (B) is not a new concept introduced for the first time in these sub-sections. It is a concept which is already dealt with in two earlier provisions, namely, section 30(c) and sectio"n 37. Section 30(c\ speaks of the last date for the withdrawal of candidatures and how the candidature may be withdrawn on or b,fore this last date is provided in section 37. Obviously the expression 'withdrawal of candidature' is used by the legislature in these sections in the sense of withdrawal before the last date fixed for withd-awal of cand d1ture as contemplated in section 37. Then, does it n.,t stand to reason that when the legislature has used the same expression in another part of the Act, namely, sub-eection (I) (A) and (!) (B) of section 123, it has used it in the same sense? It is a reasonable pr~mmption to make, though, I must admit, this presumption is not of much woight and can b~ displaced by the context, that the rnme moaning is implied by the use of the same expression in every part· of an Act. For example, in Mills v. Mi/ls(l) the word 'proceedings' was held to boar the same meaning in the several paragraphs of section· 2(2) of the Legal Aid and Advice Act, 1949 and in I.R.C. v. Henry Ansbacher & Co., (2) the House of Lords refused to attribute to the WJrd "security" (in Sched. I to the Stamps Act 1891) different meaning· in different parts of the same statute. It can, therefore, be safely inferred that when the legislature speaks of "withdrawal'of candidature" in sub-sections (l)(A) and (J)(B), it is obviously referring to withdrawal of candiditure dealt with earlier in sections 30(c) and 37. There is nothing in sub-sections (l)(A) and {l){B) or in any other provision of the Act to indicate that these word> are used in a different seme from that in sections 30(c) and 37. In fact, the legislative history· of seotion 123, sub-seotion (!)points in a contrary d"rection. _

pp. 945–946, margin H

I have already set out sub-section (!)of section 123 as it sto~ mediately after the introduction of section 55A. Clause (a) at that time C)ntained the words "to retire from contest" and these words were obviously add 'd in the clause, because sect'on 55A made it posfible for a contesting candidate to retire from the contest, and gift, offer or promise of gratification with the object of achieving this result was req,1ired to be interdicted in the interest of purity of elections. The addition of these words shows that the original words "to withdraw from b'ing a candidite" were not regard'd as sufficiently comprehensive or wid' enough to cover a situation where a contesting candidate retires from the contest. If they were, the legislature would not have indulged in the sup"fluity of adding new words. It is a well settled rule of interprotation that the Court should, as far as possible, construe a statute so a> to avoid tautology or sup,rfluity. To quote the words P. 329. A.C. of Viscount Simon in Hill v. William Hill (Park Lane), Ltd.(') "It is to be observed tha.t though a Parliamentary enactment (like parliamentary eloquence) capable of rnying the same thing twice over wllhout addmg anythmg to what has already been said once, this rcpot1t10n m an Act of Parliament is not to be assumed. When ·the kg.islature enacts a J)ilrticular phrase in a statute the presumption is that 1t 1s saymg somethmg which has not been sa'd immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the ccntrary, the words add something which has not been said immediately before." would not, therefore, be right to place a meaning on the words "to withdraw from being a candidate" which would have the effect of rend"in(l the succeeding words "to retire from contest" superfluous and meamngless. The Court must proceed on the basis that the words "to retire from a contest" were deliberately and advisedly intrcduced by the legislature with a definite purpose of adding something which had not been said in the immediately preceding words and were not intended merely t.o repeat what was already enacted there. The words "to withdraw from being a candidate" could not, therefore, at that stage be read as applying to an event where a contesting candidate retires from the contest. They had a clearly well-defined meaning confined to withdrawal of candidature under section 37. And if that was the meaning then, the subsequent deletion of the words "to retire from contest" could not have the effect of adding to or expanding it.

pp. 946–947, margin F

It is true that this Court took a different view in Mohd. Saleem's case, (supra) but I think that that view is erroneous. It overlooks various importart considerations which we have discussed above. It emphasises the etymological meaning of the word 'withdraw' ignor· ing its contextual setting and inter-relation with the other provisions of the Act. The explanation which this Court gave for the deletion of the words "to retire from contest" was that these words were unnecessary a.nd hence they were advisedly deleted by the legislature. But this explanation is, with great respect, fallacious. In the first place, it is based on the hypothesis that the words "to retire from contest" were superfluous and redundant-a hypothesis which erroneously assumes that the legislature indulged in a futile exercise when it add ,d these words in clause (a). Secondly, it fails to take note of the fact that these words were added in clause (a) consequent upon the introduction of section 55A and they were deleted, not because they were found s•1p'Tfl11ous or unnecessary, but 1?1'cause section 55A was repealed and with its repeal, the reason .or JUSt!fication for the!T existence disappeared. It appears that sectton 55A was not cited before this Court in that case This Court was also considerably impressed by the argument that if the words ."to withdraw-from being a candidate" were given a restncted mea1ung, ~onfined to the. s.tag~ of withdrawal of candidature under sect10n 37, an absurd pos1t10n would arise "where actual withdrawal, after the time limit, by taking A.C. bribe will be free from the vice of corrupt practice, whereas that prior to it will not be so" and that could never have been intended by the legislature. Now, there can be no doubt that primafacie this is a highly attractive argument. Indeed, every argument based on the presumed intention of the legislature is always apt to have a great appeal as 1t lures the judicial mind into a sense of belief that it is merely effectuating the intention of the legislature when what it is really doing is to give effect to what, in its opinion, ought to be the intention of the legislature. It is elementary that the intention of the legislature must be gathered from the words used by it and the court should not indulge in conjecture or speculation about it. As observed by Lord Watson in Solomon v. A Solomon & Co. Ltd., (I) "Intention of the Legislature" is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature would probably have meant, although there has been an omission to enact it. In a Court of law or equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from what it has chosen to enact, either in express words or by reasonable and necessary implication." The function of the Court is to gather the intention of the. legislature from the words used by it and it would not be right for the Court to attribute an intention to the legislature, which though not justified by the language used by it, accords with what the court conceives to be reason and good sense and then bend the language of the enactment so as to carry out such presumed intention of the legislature. For the Court, to do so would be to overstep its limits. Here, the legislature has used the words "to withdraw-from being a candidate" and in the context of the Act, for reasons which we have given above, they cannot include retirement from contest after the last date for withdrawal of candidature under section 37 is past. Even if, as observed in Mohd. Yunus Saleem's case, (supra) the word 'withdraw' were etymologically comprehensive enough to connote 'retirement from contest'. it cannot be given that meaning here, because, apart altogether from other reasons already discussed, "retirement from contest" is something impossible under the Act after the deletion of section 55A. The only way in which the argument could be attempted to be put by the learned counsel on behalf of the first respondent was that though legally the candidature cannot be withdrawn after the time limit under section 37 is p~st, it may be withdrawn factually by the candidate announcing that he does not wish to contest the election. But factual withdrawal has no legal effect. It is no withdrawal at all, because the candidate continues to be contesting candidate and he is as much in the contest as he was before the announcement. The word 'withdrawal', in the context in which it occurs, cannot be read in a loose and inexact sense to mean something which it plainly does not.

pp. 947–948, margin D

We are, therefore, of the view that the words "to withdraw or not to withdraw from being a candidate" in clause (a) of sub-section l) (I) [1897] A.C. 22 (A) of section 123 refer to the stage of withdrawal of candidature under section 37 and they do not apply to a situation where a contesting candidate announces that he does not wish to contest the election or declares his intention to sit down after the last date for withdrawal of candidatures under section 37 is past and a list of contesting candidates is published under section 38. Mohd. Yunus Saleem's case, (supra) in so far as it takes a different view, must be regarded as wrongly decided. V.P.S.

pp. 948–949, margin G