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PETITIONER: BACHAN SINGH

       Vs.

RESPONDENT: PRITHVI SINGH & ORS.

DATE OF JUDGMENT05/02/1975

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH ALAGIRISWAMI, A.

CITATION:  1975 AIR  926            1975 SCR  (3) 439  1975 SCC  (1) 368

ACT: Representation   of  the  People  Act   1951--S.123(2)   and (7)--Publication of posters with pictures of Prime  Minister and Chiefs of Staff--Whether amounts to undue influence.

HEADNOTE: The  appellant in his petition challenging the  election  of the  respondent  alleged (1) that the  respondent  had  been guilty  of committing a corrupt practice under s. 123(7)  of the  Representation of the People Act, 1951 in that  he  had obtained  the assistance of a member of the armed forces  in his  election and (2) that he had distributed  posters  with the  pictures  of  the Prime Minister  and  other  important ministers  together with the three chiefs and four  Generals of the Armed Forces bearing the caption ’Pillars of  Victory and thereby ’exercised undue influence within the meaning of s.123(2) of the Act.  The High Court dismissed the petition. Dismissing the appeal to this Court. HELD  :  (1) Since the deletion of the words  or  a  polling agent or a counting agent’ from Explanation (2) of  s.123(7) by  the  Amending  Act 47 of 1966, a  member  of  the  armed forces,  merely by acting as a polling agent, is not  deemed to  assist  in  the  furtherance  of  the  prospects  of   a candidate’s election within the contemplation of s.123(7) of the  Act.   Secondly,  the  Lance  Naik  bad   categorically asserted  that he did the canvassing on his own and  not  in the company of the respondent. [441 G] (2)  (a)  The  publication  of the, poster  was  an  act  of impropriety  but not one of corrupt practice falling  within the mischief of s.123. Members of the armed forces spoken of in this clause mean persons in flesh and blood and not their inanimate photographs. [443 B] (b)  In  one  sense  even  election  propaganda  carried  on vigorously,  blaringly and systematically through  charismal leaders or through various media in favour of a candidate by recounting the glories and achievements of that candidate or his  political party in administrative or  political  field, does  meddle  with  and mould the  independent  volition  of electors,  having  poor reason and little education  in  the exercise of their franchise.  That such a wide  construction would  not  be  in consonance with  the  intendment  of  the legislature  is  discernible  from the to  proviso  to  this

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clause.     The   proviso   illustrates   that    ordinarily interference  with  the  free exercise  of  electoral  right involves  violence  or threat of injury of any kind  to  any candidate or an elector or inducement or attempt to induce a candidate  or  elector  to believe that he  will  become  an object  of  divine displeasure or  spiritual  censure.   The prefix  "undue’ indicates that there must be some  abuse  of influence.   ’Undue influence is used in  contra-distinction to  ’proper  influence.   Construed in  the’  light  of  the proviso cl. 2 of s. 123 does not bar or penalize  legitimate canvassing  or appeals to reason and judgment of the  voters or other lawful means of persuading voters to vote or not to vote  for a candidate.  Such proper and peaceful  persuasion is the motive force of our democratic process [442 E-G]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 186 of 1973 From  the judgment & Order dated the 27th November, 1972  of the Punjab & Haryana High Court in Election Petition No.  15 of 1972. Kapil  Sibal,  N.  D. Bhargava and S. K.  Gambhir,  for  the appellants. S. N.Marwah, Lalita Kohli, K. C. Dua and Naunit Lal, for the Respondent No. 1 440 The Judgment of the, Court was delivered by SARKARIA, J. Prithvi Singh Azad (hereinafter referred to  as the  returned  candidate), Bachan Singh, Naurang  Singh  and Lachchman  Singh  contested the election  to  Punjab  Vidhan Sabha  from  the Khanna  (Reserved)  Assembly  constituency. Azad was the nominee of the Congress Party and Bachan  Singh of the Akali Dal. The poll was held on March 11, 1972. on March 12, 1972, Azad was  declared  elected.  He secured  25,984  votes,  whereas Bachan Singh appellant No. 1 polled 24,865 votes.  The other two forfeited their securities. On April 26, 1972, Bachan Singh, the unsuccessful  candidate and ,one elector, Harcharan Singh, jointly filed an election petition  under the Representation of the People  Act,  1951 challenging  the,  election  of the  returned  candidate  on several grounds.  In the event of Azad’s election being  set aside,  Bachan  Singh claimed a  further  declaration  under s.101 of the Act of his own election. The  petition was dismissed by the High Court.   Hence  this appeal by the petitioners. Before us, only two grounds have been pressed into  argument by Mr. Kapil Sibal, learned Counsel for the appellants. Firstly,  it  is contended that the returned  candidate  had obtained  the assistance of one Lance Naik Gurdev  Singh,  a member of the Armed Forces of the Union, in his election and was thus guilty of ,committing the corrupt practice  defined in s.123 (7). In  this connection, the petitioner tried to  establish  two facts  : (a) that Lance Naik Gurdev Singh was  appointed  as his  polling agent by the returned candidate and the  former acted as such at the polling station, Rahon Majra; (b)  that the  Lance Naik actually canvassed for votes in the  company of the returned candidate.  In regard to the first fact, the petitioners  relied upon the statement of L/N Gurdev  Singh, who was examined as C.W.1., and the certified copy  Ex.P.W.. 30/4,  of  the Polling Agents’ Form.  Regarding  the  second fact,  they examined P.W.6 Subedar Bachan Singh, P.W.7  Bant Singh  P.W.8 Bhagat Singh P.W.9 Rulda Singh, P.W.  10  Sadhu

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Singh,  P.W.  11 Bachan Singh P.W. 12 Arjan Singh,  P.W.  13 Haracharan  Singh.   They  also  sought  support  from   the statement of C.W. 1. On  both these points, the learned Judge of the  High  Court found  against the petitioners.  In his opinion, the  person who had been appointed as his polling agent by the  returned candidate was another Gurdev Singh (RW2) and not L/N  Gurdev Singh  (C.W.  1).  He further held that  the  oral  evidence adduced by the petitioners to substantiate the allegation of canvassing  by  the  Lance  Naik  in  association  with  the returned candidate, was of a partisan character, and in  the absence of corroboration from any independent source,  could not be accepted. 441 Mr.  Sibal contends that the High Court grievously erred  in holding  that  it  was  R.W.2 and not  C.W.1  who  had  been appointed   as  his,  polling  agent  by   the   Respondent. According to the Counsel, there are clinching  circumstances in this case which show that it was Lance Naik Gurdev  Singh who had been appointed and acted as the polling agent of the Respondent;  that the certified copy, Ex.P.W. 30/1  obtained by  the  petitioner was a true copy of  the  original  Form. R.W.2,  it  is  submitted, is an imposter  and  the  Polling Agents’ Form P.W. 30/4, was a false and fabricated document. Once  it  is held, proceeds the argument,  that  L/N  Gurdev Singh  (C.W.1)  had  acted  as  the  Polling  Agent  of  the Respondent, that would lend assurance to and probabilise the account given by P.Ws. 9 to 14. The contention cannot be accepted. Firstly, we do not think that the finding of the High  Court that  R.W.2-and  not  C.W.1-was the  Polling  Agent  of  the Respondent,, an be said to be palpably wrong necessitating a reappraisal of the evidence by this Court-.  Secondly,  even on  the  assumption  that L/N Gurdev Singh  C.W.1,  was  the person  who  had been appointed as the  polling  agent,  the evidence  on  the record was not sufficiently  clinching  to bring home the charge to the Respondent. L/N Gurdev Singh (C.W.1) himself had knocked the bottom  out of  the petitioner’s case.  The Lance Naik  while  admitting that he had canvassed for votes for the returned  candidate, categorically  asserted that the did such canvassing on  his own  and  not in the company of the respondent.   The  Lance Naik was examined as a court witness.  The appellants had  a right to cross-examine him.  But they did not avail of  this right.   They  did not put any question to  the  witness  to challenge   his  account.   L/N  Gurdev   Singhs   statement therefore,  that  he  had never canvassed  with  or  at  the instance of the returned candidate, would be deemed to  have been  accepted  by them.  C.W. I was ’the, keystone  of  the arch  which the petitioners tried to build to  sustain  this charge.   Failure  of  C.W.I,  therefore,  to  support   the partisan  P.Ws. on all the material facts  constituting  the charge, must lead to the collapse of whole arch. Moreover,  since  the deletion of the words  "or  a  polling agent or a counting agent" from Explanation(2) of s.  123(7) by  the Amending Act 47 of 1966, a member of the Armed  For= merely by acting as a polling agent is not deemed to  assist in  the  furtherance  of  the  prospects  of  a  candidate’s election within the contemplation of s.123(7). We  would therefore reject the first contention  and  affirm the finding of the court below on this Issue. The next charge which has been agitated before us relates to the  poster, Esh.PW15/1 which was published by  the  Pradesh Congress  Committee.  It bore the photographs of  the  Prime Minister  Smt.   Indira Gandhi, Shri Jagjiwan  Ram,  Defence

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Minister  and  Shri Swaran Singh, Foreign  Minister  in  the first  row.  Beneath the first row were the  photographs  of three  Chiefs  and four Generals of the  Armed  Forces.   It bore.  the caption "Pillars of.  Victory".  It  is  alleged: that 442 below  these photographs was printed the Congress symbol  of Cow  and  Calf.   On a complaint being  made,  the  Election Commission of India moved in the matter and directions  were issued to the Punjab Pradesh Congress Committee to  withdraw the poster, which, in consequence, was withdrawn. In  his  written statement, the returned  candidate  pleaded that  he  ’was  unaware  of  any  such  poster.   In  cross- examination, however, he (as R.W.6) admitted that the letter Ex.R.W.6/1  had  been  issued by S. P.  Mittal  to  all  the Presidents  of  the District Congress  Committee  in  Punjab directing them to withdraw this poster.  R.W.6 admitted that this  poster  bore the photographs of Service  Chiefs  along with those of the Prime Minister and two other Ministers-all of whom were described as Pillars of Victory.  He,  however, disclaimed that he had anything to do with the  distribution of this poster. Mr.  Sibal contends that the publication of this poster  not only  ,amounted to the exercise of "undue influence"  within the  contemplation  of  s.123(2)_ but  also  constituted  an attempt to obtain or procure assistance from the members  of the  Armed  Forces  of the Union for  fur  therance  of  the prospects  of the returned candidate’s election  within  the purview of s.123(7). The contention is ingenious but unsustainable. Doubtless the definition of ’undue influence’ in sub-s.  (2) of s. 123 is couched in very wide terms, and on first  flush seems  to  cover  every conceivable act  which  directly  or indirectly interferes or attempts to interfere with the free exercise  of  electoral right.  In one sense  even  election propaganda    carried   on   vigorously,    blaringly    and systematically through charismal leaders of through  various media in favour of a candidate by recounting the glories and achievements  of  that candidate or his political  party  in administrative  or  political field, does  meddle  with  and mould  the  independent volition of  electors,  having  poor reason  and  little  education, in  the  exercise  of  their franchise.   That such a wide construction would not  be  in consonance  with  the  intendment  of  the  legislature   is discernible  from the proviso to this ,clause.  Ile  proviso illustrates  that  ordinarily  interference  with  the  free exercise  of  electoral right involves  either  violence  or threat of injury of any kind to any candidate or an  elector or inducement or attempt to induce a candidate or elector to believe that he will become an object of divine  displeasure or  spiritual  censure.  The prefix ’undue’  indicates  that there must be some abuse of influence.  Undue influence’  is used   in   contra-distinction   to   ’proper   influences’. Construed in the light of the proviso, clause (2) of S.  123 does not bar or penalize legitimate canvassing or appeals to reason  and judgment of the voters or other lawful means  of persuading  voters to vote or not to vote for  a  Candidates indeed  such  proper and peaceful persuasion is  the  motive force of our democratic process. We  are  unable to appreciate bow the  publication  of  this poster  Interfered, or was calculated to interfere with  the free  exercise of the electoral right of any person.   There was nothing  in. it which amounted 443 to  a  threat  of injury or undue  inducement  of  the  kind

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inhibited by s. 123 (2). Nor  could  the publication of this poster fall  within  the ambit of s.123(7). The ’members’ of the Armed Forces  spoken of  in this Clause mean persons in flesh and blood  and  not their inanimate photographs. In  short,  the  publication of the poster  was  an  act  of impropriety  but not one of corrupt practice falling  within the mischief of s. 123. No other point has been argued before us. The appeal fails and is dismissed with costs.                                Appeal dismissed. P.B.R. 444