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PETITIONER: JAGIR SINGH & ANR.

       Vs.

RESPONDENT: JASDEV SINGH & ORS.

DATE OF JUDGMENT28/02/1975

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. BEG, M. HAMEEDULLAH UNTWALIA, N.L.

CITATION:  1975 AIR 1627            1975 SCR  (3) 791  1975 SCC  (4) 380

ACT: Representation of the People Act (43 of 1951) Section 123(3) and (3A)--Corrupt practice--proof of.

HEADNOTE: The  appellants,  who were the voters of  the  constituency, challenged  the election of the first respondent who  was  a nominee of the Akali Dal, to the State Legislative Assembly, on  the ground that he was guilty of corrupt practice  under v. 123(3) and (3A) of the Representation of the People  Act, 1951.   The  second  respondent, who was a  nominee  of  the Congress  and the third respondent, who was  an  independent candidate, were unsuccessful in the election.  The charge of corrupt  practice against the first respondent was based  on the publication of a poster.  The High Court hold, (i)  that the  poster  was  printed from a document  produced  by  the appellant’s  witness;  (ii)  that  the  signature  on   that document  was  that  of  the  first  respondent;  (iii)  the document produced by the court witness as the one from which the poster was printed was manufactured for the. purpose  of election  petition, and that its production as well as.  the production  of a tape-recorded conversation between  the  Is respondent and the husband of the 2nd respondent, showed  an anxiety  on the part of the first respondent to steer  clear of his signature on the document produced by the appellant’s witness; and (iv) that such anxiety of the first  respondent could  only  arise  because  he had,  in  fact,  signed  the document produced by the appellant’s witness, as it was  not his  case  that he ever signed any blank  paper.   The  High Court,  however, dismissed the petition holding that it  was not sure of the existence of the offending poster before the Poll. Allowing the appeal to this Court, HELD : (1) The conclusion of the High Court that the  poster was not printed before the poll is completely  non-sequitur, in  view of the other findings of the High Court  which  are home   out  by  the  evidence  on  record.    The   evidence establishes  that the printing of the poster was before  the poll  and  that  it  was the first  respondent  who  got  it printed. [793C-D; 795A] (a) The absence of a complaint by the second respondent does

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not  lead to the conclusion that the poster was not  printed before the appeal. [793-D] (b)  The tape-recorded conversation is absolutely  unhelpful to  the  first resPondent’s case and it does  not  establish that  the first respondent was surprised and  bewildered  at the  fact  that  the document produced  by  the  appellant’s witness bore his signature. [795D-E] (2)  The  evidence  also established  that  the  poster  was distributed in various villages at the instance of the first respondent.   The  reason  given  by  the  High  Court   for disbelieving  the  oral testimony of one  of  the  witnesses regarding  the distribution, namely, ’that he was  an  Akali and that his testimony could not be accepted and he would be the  last person to support the congress candidate’  is  the very  reason that the evidence of that witness  should  have been accepted against the first respondent. [796A-D]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 737 of 1973. From  the judgment and order dated February 16, 1973 of  the Punjab  & Haryana High Court in Election Petition No. 38  of 1972. G. B. Pai S. K. Bagga, 1. K. Mehta, S. Bagga and Yash Bagga, for the appellant. 792 Kapil  Sibal Jasdev Singh and Hardev Singh,  for  respondent no. 1. Bhagwant  Singh,  D.  D.  Sharma, M.  P.  Varma  and  S.  R. Srivastava, for respondent no. 2. The Judgment of the Court was delivered by ALAGIRISWAMI, J. The appellants are two voters of the Dakala constituency   who  challenged  the  election  of  the   1st respondent  to  the  Punjab  Legislative  Assembly  on  many grounds  out  of which only the charge of  corrupt  practice under  section 123(3) and 123(3A) of the  Representation  of the People Act now survives for consideration.   Respondents 2 and 3 are the unsuccessful candidates.  The charge of cor- rupt  practice  is based on the publication of  a  pamphlet, about  the  nature  of which there is  no  dispute  and  the contents  of which are therefore unnecessary to be set  out. It  is  admitted  that if the publication  of  the  pamphlet either by the successful candidate or his election agent  or anyone else at the instance of either of them is proved  the election has to be set aside. The publication was sought to be proved by the evidence,  of C.W.1,  the  proprietor of the printing press where  it  was printed,  C.W. 2 in whose name it was printed as well as  of P.W. I. The evidence of R.W. 5 was relied upon to prove that the  pamphlet was sent to the Sub-Divisional  Magistrate  as required  under  section 127A of the Representation  of  the People  Act  and received by her on the  12th  March.   Ext. P.W.1/4 was put forward by the appellants as the  manuscript which was used for printing the pamphlet.  This is purported to be signed by the successful candidate as well as C.W.  2, Jathedar Ram Singh, in whose name the pamphlet is  published and  P.W.1,  Bedi  Raghbir Singh.  On  the  other  hand  the printer, C.W. I produced another manuscript Ext.  C.W.1/1 as the one from which the pamphlet was printed.  There is  also a tape-recorded conversation between the 1st respondent  and Bhagwant  Singh, the husband of the 2nd respondent, who  was also  her counsel in the election petition, from  which  the 1st respondent tried to make out that he was wholly  unaware of and surprised at his signature in Ext.  P.W.1/4. his main

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argument before this court was that the whole thing has been brought about by collusion between the 2nd respondent,  Bedi Raghbir Singh P.-W. 1, Nichhatar ,Singh C.W. I and  Jathedar Ram Singh C .W. 2. The learned Judge held : (1) that he, bad no doubt that the pamphlet was printed from Ext.  P.W.1/4; (2)  that  Ext.   C.W.  1/1 bad been  manufactured  for  the purpose of this petition; (3)  that the figures "20 x 30--5000" on Ext.  P.W. 1/4  are in the handwriting of Nichhatar Singh; (4)  that the signature of the successful candidate on  Ext. P.W. 1/4 appears to be his; 793 (5)that the production of Ext.  C.W.1/1 by Nichhatar singh and the tape-recorded conversation show an anxiety oil  the  part  of I st respondent to  steer  clear  of  his signature on Ext.  P.W.114; (6) that this anxiety could be because he had in fact signed such a poster as it was not his case that he ever signed any blank paper; and (7)  that he was not, however, sure of the existence of  the poster. We  are of opinion that conclusions I to 6 of  the  learned- Judge set out above are borne out by the evidence on  record and  do  not therefore consider it necessary to set  out  at length   the   evidence  to   support   those   conclusions. Conclusion  No. 7 is rather curious in view of  his  earlier conclusions and his observation that from what he had stated earlier e. conclusion I to 6, he was clear in his mind  that the poster was not printed before the Poll is completely non sequitur.   The  learned  Judge  goes on  to  say  that  the strongest  reason for this conclusion is the absence of  any complaint by respondent No. 2. and that the evidence  to the distribution of the poster is oral and untrustworthy.   That is   he  has disposed of the whole  question  regarding  the printing  of  the  poster.  We are:  unable  to  agree  that absence  of complaint by respondent No. 2 necessarily  leads to  that  conclusion.   We are of  opinion   the  conclusion arrived  at  by the learned Judge  is  wholly  unsustainable especially  in  view of his  categorical  findings  recorded earlier. The 1st respondent’s case was one of complete denial of  the allegations  in the petition regarding the printing  of  the poster.   He did not ead that the manuscript which was  used for printing the poster, Ext. .W.1/4, was manufactured on  a blank paper bearing his signature. e did not even plead that the  pamphlet  must  or  might  have  been  ,...ought   into existence by the petitioners or the 2nd respondent after the ate  of  the poll for the purpose of the  election  petition There  is very satisfactory evidence that the poster  should have  been printed on the t of March, 1972.  Ext.   C.W.1/1, which, as the learned Judge himseIf holds, has been  brought into  existence for the purpose of this petition bears  that date.   After carefully going through the evidence  of  W.I. Nichhatar Singh we are satisfied that he is a witness who is anxious  to  help the 1st respondent and  has  brought  Ext. C.W.1/1  into  istence  for  the  purpose  of  helping  him. Answers  favourable to the petitioners had to  be  extracted out  of his unwilling mouth by cross examination.   Even  he has  put  the date on Ext.  C.W. 1/1 as 1st of March  d  his evidence  is that it was printed on the 1st of March  though he pentions only the name of C.W.2, Ram Singh.  He also says that  he  d  sent  a letter,  Ext.   R.W.5/1,  to  the  Sub- Divisional  Magistrate. nether that letter was sent  on  the 1st  of March, as is spoken to by  or cm the 5th  of  March,

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the  date which it bears, does not affect substance  of  the question.  This letter has been received by the  Divisional, Magistrate,  Miss  Deol  on 12th March.   The  learned  adge himself finds that it was received an 12th March.  We-  have care- 794 fully  scrutinized  it and are satisfied that  it  has  been signed  by  the  Sub-Divisional Magistrate on  the  12th  of March.   That  has been entered in the office diary  on  the 16th of March.  Though it is true that the date 6th has been struck  out and 16th has been put in, the 6th seems to  have been  put in due to a mistake.  Looking into the entries  in the diary on the previous pages as well as subsequent  pages we  have  no doubt that the 16th is the correct  date.   The entries on this date contain a number of documents  received from  various  Government offices which bear  the  date  6th March.  We have no reason at all to doubt the genuineness of the  entries in this diary.  If Ext.  R.W.5/1 was signed  by the Sub-Divisional Magistrate on the 12th and entered in the diary  on  the  16th they probabilise the  receipt  of  that document  at least some days before the 12th.  At no  stage, except  during  the arguments before this  Court,  were  the entries in this diary sought to be impugned.  Indeed  before the High Court it seems to have been urged on behalf of  the 1st  respondent that it was a diary maintained in the  usual course of business.  Taking therefore even Ext.  C.W.1/1  as well  as  the  evidence  of  C.W.1,  Nichhatar  Singh,  into consideration  we  are satisfied that this  pamphlet  should have come into existence on the 1st of March.  We have  also compared the signature of the 1st respondent in Ext, P.W.1/4 with  many of his admitted signatures and are satisfied  the that  signature is his and that is confirmed by  the  expert evidence   o,  Mr.  Puri.   There  being   no   satisfactory explanation on the part of the 1st respondent regarding  the presence  of  his  signature on Ext.  P.W.1/2 it  is  to  be concluded  on the evidence of Nichhatar Singh  and  Jatheda, Ram Singh taken together that the 1st respondent had come to C.W.1’   press   and  given-Ext.   P.W.1/4   for   printing. Conclusion  No.  3 of the learned Judge also  supports  this finding.   We are not quite sure about the presence of  Bedi Raghbir  Singh  at that point of time.  But we  cal  see  no cogent reason for disbelieving the evidence of C.W. 1  whose de  position clearly shows that he was anxious to  help  the 1st  respondent But in order to deny that Ext.  P.W.1/4  was the  manuscript  which was used for printing the  poster  he also  had  to manufacture Ext.  C.W.l/l That  evidence  even taken at its face value establishes that the printing of the pamphlet  was on the 1st of March.  If so it could have  bee done only at the instance of the 1st respondent.  It was not even  pi to C.W.1 that it was done after the poll.  Why  Ram Singh  should  ha,  printed it if not  at  the  instance  of respondent No. 1 was never sough to be explained.  Nor could respondent No. 2 have printed it. We  have bestowed our anxious consideration on how  the  1st respondent  came to sign.  Ext.  P.W. 1/4.  Though  Jathedar Ram Singh tried to say that he did not know Nichhatar  Singh C.W.  I  and  therefore  Nichhatar  Singh  wanted  the   1st respondent to undertake the responsibility of paying for the printing  of the poster, it is clear that Nichhat Singh  had known  Jathedar  Ram  Singh  for some  time  and  there  was particular  reason why even if the 1st respondent  undertook to  pay the printing he should sign it.  It is said that  it was  because  the  1 respondent  asked  Nichhatar  Singh  to produce  that  paper in his official and  get  the  payment. This  reason does not seem to be a good enough one  for  the

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1st respondent signing Ext.  P.W.1/4. Be that as it 795 we  have no doubt that Ext.  P.W.1/4 bears 1st  respondent’s signature  and the whole evidence establishes  beyond  doubt that  the  1st  respondent got  the  pamphlet  printed.   He probably did not expect that the manuscript would reach  the hands of the 2nd respondent. It  is in this connection that it is necessary to  refer  to the  tape-recorded  conversation.  The  1st  respondent  had stated  before  the High Court that the  transcript  of  the tape-recorded conversation can be taken as correct in so far as  what  he  had spoken was concerned.   The  other  person concerned  in  the tape-recorded conversation  was  Bhagwant Singh,  the husband of the 2nd respondent, who was also  her advocate before the High Court.  Though he admitted his part in  the conversation it would not be admissible in  evidence because  he  was  not examined as a witness.   What  he  has stated  there cannot be taken as an admission on  behalf  of the 2nd respondent.  Such admission can only relate to  mat- ters  in issue before the Court, admissions  prejudicial  tO the  case  of the 2nd respondent.   Leaving  such  questions aside for the moment one thing that is obvious is that  Ext. P.W.1/4  had reached the hands of the 2nd respondent  during the  course  of the trial and the evidence of  Bedi  Raghbir Singh that Nichbatar Singh gave it to him to be produced  in the Court is not true.  This conversation was relied upon by the  learned  advocate  appearing  on  behalf  of  the   1st respondent  as  establishing  that the  1st  respondent  was surprised and bewildered at the fact that Ext.  P.W.1/4 bore his signature.  We can see no such indication.  It is to  be remembered  that  when  this conversation  was  being  tape- recorded  Bhagwant Singh was not aware of it  and  therefore was  talking  freely what was in his mind  whereas  the  1st respondent was quite conscious of what was going on and that he was merely laying a trap in order to trap Bhagwant  Singh into  saying  something  in his  (1st  respondent’s)  favour without  being aware of it.  The tape-recorded  conversation is absolutely unhelpful to the 1st respondent’s case. Though  there are certain suspicious features in  this  case which  the learned advocate for the 1st respondent tried  to magnify  and blow out of all promotion so as to obscure  the real picture, we are satisfied that the central point in the case  as  to  the responsibility of the  1st  respondent  in getting  the offending poster printed has  been  established beyond all reasonable doubt.  Once that is done the question of distribution falls into its proper place. According to the petitioners the posters were distributed in the   villages  Lalauchhi,  Bakshiwala,   Jhill,   Dhanauri, Kutabanpur,  Bhima  Kheri, Saidipur,  Rajla,  Khuda  Dadpur, Bathoi Kalan and Chhitera.  The distribution in Lalauchhi is spoken  to by P.W. 2, an advocate, Mr. Balwant  Singh.   His evidence  is  attacked on behalf of the  1st  respondent  by saying  that  be was the junior under the  2nd  respondent’s husband  but it is seen that that was some time ago  and  he had even appeared against the husband of the 2nd  respondent in  a personal case.  So his evidence cannot be attacked  on this  basis.  The 1st respondent examined two  advocates  to prove  that on the particular day when he was said  to  have distributed  the  poster  in Lalauchhi he  was  in  Patiala. Their  evidence has been rightly disbelieved by the  learned Judge’  The  learned  Judge  has  stated  that  both   these advocates have merely lent 796 themselves  to  prove  a  false plea  of  alibi.   The  only criticism  which the learned Judge has made of the  evidence

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of  Mr.  Balwant  Singh  is that he  is  an  Akali  and  his testimony cannot be accepted at its face value ,as be  would be  the last person to support the Congress  candidate.   We are of opinion that this is the very reason why Mr.  Balwant Singh’s  evidence should be accepted and not  the  contrary. We  are therefore satisfied on evidence that the  conclusion of the learned Judge on this point could not be accepted and the  distribution in village Lalauchhi must be held to  have been proved. As  regards  the distribution in village Bakshiwala,  it  is spoken to by P.W. 3, an employee of the C.I.D. Punjab.   His father  owns  land  in that  village.   The  1st  respondent produced  R.W. 19 to show that Sucha Singh, P.W. 3, did  not come to him and in support of this he produced his register. Ext.   R.  W.  19/1.  The learned Judge’s  comment  on  this register is "The less said about this register the  better". R.W.  19  also  admitted that there was  a  scuffle  in  the village and Sucha Singh was injured.  The learned Judge  has held  that  R.W. 19’s evidence is such  that  much  reliance cannot  be  placed on him.  R.W. 21 also  admits  about  the injury  to  Sucha  Singh.  In this  state  of  evidence  the learned  Judge  has  not  recorded  any  finding  about  the distribution of the poster in village Bakshiwala.  We are of opinion  that  the  distribution  has  been   satisfactorily established.  We do not therefore feel it necessary to  deal with the question of distribution in the other villages. The  2nd  respondent  is  a Hindu lady  married  to  a  Sikh gentleman.   Such  marriages between Hindus and  Sikhs  have been very common.  Indeed it appears that till recent  times the  first  son of most Hindu families in  Punjab  became  a Sikh.   Still politics has driven a wedge between  brothers. It  has led to unfortunate situations like the one  in  this case where because the 2nd respondent happens to be a  Hindu lady  it  was  sought to be taken advantage of  by  the  1st respondent for his election purposes, even though he and the 2nd  respondent’s  husband  would seem  to  have  been  good friends. The appeal is allowed and the election of the 1st respondent is held void.  The appellants will get their costs from  the 1st respondent. V.P.S.                          Appeal allowed. 797