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PETITIONER: DHARMESH PRASAD VERMA

       Vs.

RESPONDENT: FAIYAZAL AZAM

DATE OF JUDGMENT17/07/1984

BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, A. (J) FAZALALI, SYED MURTAZA MISRA RANGNATH

CITATION:  1984 AIR 1516            1985 SCR  (1)  11  1984 SCC  (4)   3        1984 SCALE  (2)21  CITATOR INFO :  F          1987 SC1577  (26)

ACT:      The Representation  of the People Act 1951, Section 123 (5).      Corrupt  practice-Procuring   of   vehicle   for   free conveyance of voters- Evidence and proof.      Jeep  belonging  to  friend  of  candidate-Carrying  of voters in jeep-Whether corrupt practice.

HEADNOTE:      The  respondent   was  elected   to  a  State  Assembly Constituency. The  appellant who  had contested the election pleaded four  items of  corrupt  practice  in  his  Election Petition filed against the respondent.      The Legislative  Assembly to  which the  respondent was elected has  been dissolved  and a  fresh election  has been held. Notwithstanding,  the  fresh  election  the  appellant pursued his  election petition  in order  to  prove  corrupt practice on the part of the respondent.      In his  election petition,  the appellant  pleaded that the respondent  committed a  corrupt practice  falling under section 123  (5) of  the Representation  of the  People Act, 1951 by  procuring and  using a jeep for the free conveyance of voters  to the  polling station  on the date of poll. The respondent  denied   the  charge   and  contended  that  the appellant had  not complied with the mandatory provisions of sections 81,  82 and  83 of the Act read with Order VI, Rule 15 of the Code of Civil Procedure and section 117 of the Act and  the  election  petition  was  therefore  liable  to  be dismissed.      The Judge who tried the petition, followed this Court’s ruling in Rahim Khan v. Khurshid Ahmed [1975] 1 SCR 653 that Proceedings arising out of 12 election petitions  are quasi-criminal  in nature  and  that evidence relating to corrupt practices should be scrutinized with scrupulous  care and merciless severity; considered the evidence adduced  by the  parties, and  found that  the jeep bearing No.  USJ 5226  while carrying  five ladies including P.Ws. 10,  11, 42 who were voters, free of cost, for casting

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votes on behalf of the respondent was seized by the District Magistrate and  the Superintendent of Police about 1.5 miles from the  polling booth and that at the time of the seizure, the jeep  was driven by a close friend of the respondent and that this  friend had  worked  for  the  respondent  in  the election and  was present  in the  booth on  the date of the polling and that the respondent’s polling agent stood surety for the release of the jeep. The Judge held that these facts were not sufficient to hold that the respondent procured the jeep, and that since the jeep with the voters was caught not at the  polling station but at some distance way from it, it was only  a case  of an  attempt at corrupt practice and not corrupt practice  itself under  section 123  (5) of the Act, and dismissed the election petition.      Allowing the appeal, this Court, ^      HELD: 1.  The requirement  of  the  law  in  regard  to corrupt practice under section 123 (5) of the Representation of the  People Act  1951 is  that in addition to proving the hiring or  procuring  of  any  vehicle  or  vessel  for  the carriage of voters to and from any polling station it should also be  proved that the electors used the vehicle or vessel free of cost to themselves. [17A-B]      2. Section 123 (5) requires three things, (1) hiring or procuring of a vehicle; (2) by a candidate or his agent etc. and (3) for the free conveyance of an elector. [16H]      Joshibhai Chunibhai  Patel v. Anwar Beg Mirza, [1969] 2 SCR 97, Razik Ram v. Jaswant Singh Chouhan, [1975] 4 SCC 769 at 775  and Dadasahib  Dattatraya Pawar  v. Pandurang  Raoji Jagtap, [1978] 2 SCR 524 at 528, refereed to.      3. The  appellant has  proved  satisfactorily  all  the three requirements  of clause (5) of section 123 of the Act. The respondent  has therefore  to be  held guilty of corrupt practice falling  under  this  clause  which  is  ordinarily difficult to prove. [27F]      In the instant case, the evidence of P.Ws. 6, 16 and 43 reveal that  the respondent  had procured  the jeep USJ 5226 from his  close friend,  Kabir Ahmed for the free conveyance of his  electors and that the jeep was, thereafter, used for that  purpose  on  the  day  of  poll,  and  seized  by  the officials,  P.   W  69   District   Magistrate,   P.W.   73- Superintendent of  Police and  P.W. 81-Station House Officer where it  was being  used for the conveyance of the electors P.Ws. 10,  11, 42  and others including P.W. 67 free of cost to themselves.  The appellant  s case  that  the  respondent committed corrupt practice is clearly established. [27D-E] 13      4. Corrupt practice such as in the instant case is very largely resorted to in the elections and could be avoided by either locating  polling booths  within walking  distance of the electors or by having mobile polling stations. [27G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 3011 of 1979.      From the  Judgment and  Order dated  the 7th September, 1979 of  the Patna  High Court in Election Petition No. 4 of 1977.      Shanti Bhushan and M.P. Jha for the Appellant.      S.K. Sinha for the Respondent.      The Judgment of the Court was delivered by      VARADARAJAN,  J.   This  election  appeal  is  directed against the  judgment of  the Patna  High  Court  dismissing

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Election Petition  No. 4  of 1977  with costs of Rs. 1000/-. The appellant  Dharmesh Prasad  Verma, who is stated to have contested the  election as  a Janata  candidate, had pleaded four items  of corrupt  practice in  his  election  petition filed against  the respondent Faiyazal Azam who is stated to have contested  the election  as a Congress-I candidate. The poll in  this case was held on 12.6.1977 for the election of a member  of the Bihar Legislative Assembly from No. 5 Sikta Constituency  in  West  Champaran  district.  The  appellant secured 1795  votes while the respondent secured 28324 votes and was declared elected on 15.6.1977. The election petition was  filed   on  18.7.1977.  The  Legislative  Assembly  was dissolved in  1980 and  fresh election had been held in that year and  the respondent  is stated  to have  contested as a non-Congress-I candidate  and to  have been elected from the same constituency.  The appellant is, however, interested in pursuing this  election petition relating to the election of the year 1977 in order to prove corrupt practice on the part of the respondent.      Mr. Shanti  Bhushan, Senior  Counsel, appearing for the appellant, restricted  his arguments  to  the  first  charge alone and  that too  regarding the  use of the jeep USJ 5226 which is  alleged to  have belonged to one Kabir Ahmed. That charge is  that respondent  committed the  corrupt  practice falling under  s. 123(5) of the Representation of the People Act, 1951 (hereinafter 14 referred to  as the  "Act") by  procuring and using the jeep for the  free conveyance of voters to the polling station on the date  of poll.  The respondent  denied the charge in his written statement  and contended  that the appellant had not complied with  the mandatory provisions of ss. 81, 82 and 83 read with  order VI,  Rule 15 of the Code of Civil Procedure and s.  117 of  the Act  and that  the election petition is, therefore, liable to be dismissed.      The  learned   Single  Judge  who  tried  the  election petition, after  observing that  it is common knowledge that every politician  realises the importance of vehicles during general elections,  noticed  this  Court’s  observations  in Rahim Khan v. Khurseed Ahmed that proceedings arising out of election petitions are quasi-criminal in nature and that the evidence relating to corrupt practices should be scrutinized with  scrupulous  care  and  merciless  severity,  and  then proceeded to  consider the  evidence adduced by the parties. On the  evidence the  learned  Judge  found  that  the  jeep bearing No.  USJ 5226  while carrying five ladies was seized by the  District Magistrate and the Superintendent of Police of the  district from  a road near a canal situate about 1.5 or 2 miles away from the Sarkiatola booth on the date of the poll and  that the  five ladies  including Murati @ Deokalia (P.W. 19),  Mehrunnissa (P.W. 11) and Rasulia (P.W. 42) were voters who were being carried free of cost for casting votes on behalf of the respondent. The learned Judge found that at the time  of the  seizure of the jeep it was driven by Kabir Ahmed’s nephew Tabrez Ahmed and that Kabir Ahmed was a great friend of  the respondent  and he  and his father worked for the respondent in the election and were present in the booth on the  date of  the poll  and that the respondent’s polling agent Manager  Prasad stood  surety for  the release  of the jeep. However,  the learned  Judge held that these facts are not sufficient  by themselves  to hold  that the  respondent himself procured  the jeep  from Kabir  Ahmed.  The  learned Judge further  found that since the jeep with the voters was caught not  at the polling station but at some distance away from it,  in any  event, it was only a case of an attempt at

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corrupt practice  and not  corrupt practice itself as per s. 123(5) of  the Act.  Thus the  learned  Judge  rejected  the appellant’s case  in regard  to  this  instance  of  corrupt practice as  also the  other  instances  and  dismissed  the election petition. 15      Section 123(5) of the Act read thus:           "S. 123.  The following  shall  be  deemed  to  be      corrupt practice for the purpose of this Act:      (1) ...    ...    ...    ...    ...    ...    ...      (2) ...    ...    ...    ...    ...    ...    ...      (3) ...    ...    ...    ...    ...    ...    ...      (4) ...    ...    ...    ...    ...    ...    ...      (5) The  hiring or  procuring, whether  on  payment  or      other wise,  of any vehicle or vessel by a candidate or      his agent  or by any other person with the consent of a      candidate or  his election  agent, or  the use  of such      vehicle or  vessel  for  the  free  conveyance  of  any      elector other  than the  candidate himself, the members      of his  family or  his agent,  to or  from any  polling      station provided  under section  25 or  a  place  fixed      under sub-section(1) of section 29 for the poll:           Provided that the hiring of a vehicle or vessel by      an elector  or by several electors at their joint costs      for the  purpose of  conveying him  or them to and from      any such  polling station  or place  fixed for the poll      shall not be deemed to be a corrupt practice under this      clause if  the vehicle  or vessel so hired is a vehicle      or vessel not propelled by mechanical power:           Provided  further  that  the  use  of  any  public      transport vehicle  or vessel or any tram-car or railway      carriage by any elector at his own cost for the purpose      of going  to or coming from any such polling station or      place fixed  for the  poll shall  not be deemed to be a      corrupt practice under this clause.      Explanation:-      In this  clause, the  expression  ’vehicle’  means  any vehicle used  or capable  of being  used for  the purpose of road transport  whether propelled  by  mechanical  power  or otherwise and  whether used  for drawing  other vehicles  or otherwise." 16      In clauses  (5) of  s. 123  the word  "or" is  used  in several places  and the  word "and" is used in two places in the  first   proviso  and   the  explanation.  Prima  facie, Parliament must  be deemed  to have  used the  word "or" and "and" for  different purposes  or objects.  If the matter is res integra  it could  be said  that  the  main  clause  (5) consists of  two separate  parts, namely  (1) the  hiring or procuring, whether  on payment  or otherwise, of any vehicle or vessel  by a  candidate or  his agent  or  by  any  other person, with  the consent  of a  candidate or  his  election agent for  the free conveyance of any elector to or from any polling station,  or (2) the use of any vehicle or vessel by any candidate  or his  agent or by any other person with the consent of a candidate or his election agent for the purpose of free  conveyance of  any elector  to or  from any polling station. It  is true  that in  the latter part of clause (5) the word  "such" issued  before the words "vehicle or vessel for the  free conveyance  of any  elector  to  or  from  any polling station".  But the  matter is no longer res integra. In  Joshibhai   Chunibhai   Patel   v.   Anwar   Beg   Mirza Hidayattullah, C.J. speaking for himself and G.K. Mitter, J. has observed:           "This brings  us to  the examination  of s. 123(5)

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    with a  view to  finding out what are its requirements.      We have  already indicated  that  in  our  opinion  the      election petitioner must prove in addition to the other      ingredients of  the section  that the  vehicle was used      for free  conveyance of voters which ingredient we have      stated was  not attempted  to  be  established  in  the      case... ... ... ... ... This section defined one of the      corrupt  practices   and  it  consists  of  hiring  and      procuring  whether  on  payment  or  otherwise  of  any      vehicle. This hiring and procuring must be by any other      person  with  the  consent  of  the  candidate  or  his      election agent  and the hiring according to the section      must be  for the  free conveyance  of any elector other      than the  candidate himself or members of his family or      his agent  to and  from any  polling station.  It will,      therefore,  appear  that  the  section  requires  three      things, (1)  hiring or procuring of a vehicle; (2) by a      candidate or  his agent  etc.  and  (3)  for  the  free      conveyance of  an elector.  It will be noticed that the      section also speaks of the use but it speaks of the use      of such vehicle which 17      connects the  two parts, namely, hiring or procuring of      vehicle  and  the  use.  The  requirement  of  the  law      therefore is  that in addition to proving the hiring or      procuring and  the carriage of electors to and from any      polling station,  it should  also be  proved  that  the      electors used the vehicle free of cost to themselves."      In Razik  Ram v.  Jaswant Singh  Chouhan, Sarkaria,  J. speaking for himself and Alagiriswami, J. has observed:           "On analysis, clause (5) of Section 123 falls into      two parts.  The requirements of the first part are; (i)      The  hiring   or  procuring,   whether  on  payment  or      otherwise, of  any  vehicle  or  vessel  for  the  free      conveyance of voters (ii) Such hiring or procuring must      be by a candidate or his election agent or by any other      person with  the consent  of  a  candidate  or  of  his      election agent.  The second  part envisages the "use of      such vehicle  or vessel  for the free conveyance of any      elector (other  than the candidate himself, the members      of his  family, or  his election  agent) to or from any      polling station".  The two  parts are  connected by the      conjunction "or" which is capable of two constructions.      In one  sense, it  is a  particle coordinating  the two      parts of the clause and creating an alternative between      them. In  the other sense which is akin to the sense of      "and" it  can be  construed as conjoining and combining      the first  part of  the clause  with  the  second.  The      latter construction  appears to comport better with the      aim and  object of  the  amendment  of  1966.  In  this      connection, it  is not  worthy  that  even  before  the      amendment, this Court in Balwan Singh v. Lakshmi Narain      [1960] 3  S.C.R 91,  held that in considering whether a      corrupt  practice   described  in   Section  123(5)  is      committed conveying  of electors  cannot be dissociated      from the hiring of a vehicle.           Even  if   the  word   "or"  is  understood  as  a      coordinating conjunction  introducing alternatives then      also a  petitioner in order to succeed on the ground of      a corrupt 18      practice under  the second  part of  the  clause,  must      prove, in  addition to the use of the vehicle or vessel      for the  free conveyance  of any elector to or from any      polling  station,  the  hiring  or  procuring  of  that

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    vehicle or  vessel. This  is so because the word "such"      in  the   phrase  introduced  by  the  1966  amendment,      expressly imports  these elements of the first into the      second part of the clause.           In the view we take we are fortified by the dictum      of this  Court in  Joshibhai Patel  v. Anwar  Beg Mirza      [1969] 2  SCR 97,  wherein Hidayatullah, C.J., speaking      for the  Court analysed the requirements of the clause,      thus:           It will  be noticed  that this section also speaks      of the  use of  such vehicle  which  connects  the  two      parts, namely,  hiring or  procuring of vehicle and its      use. The  requirement of  the law  therefore is that in      addition to  proving the  hiring or  procuring and  the      carriage of  electors to  and from any polling station,      it should  also be  proved that  the electors  used the      vehicle free of cost to themselves."      In  Dadasahib  Dattatraya  Pawar  v.  Pandurang  Raoji, Jagtap,  Jaswant  Singh,  J.  speaking  for  the  Court  has observed:           In regard  to section 123(5) of the Representation      of People  Act, 1951  which before its amendment by Act      47 of 1966 was identical in terms with section 144-1(3)      of the  Act, it  was held by this Court in Shri Balwant      Singh  v.  Shri  Lakshmi  Narain  that  in  considering      whether a  corrupt practice described in section 123(5)      is  committed   conveying   of   electors   cannot   be      dissociated from the hiring of a vehicle.           It has  also been  held by this Court in Ch. Razik      Ram v. J.S. Chouhan and Ors. [1975] 4 S.C.C. 769] that 19      to establish  the corrupt practice under section 123(5)      of the  Representation of  the People  Act, 1951, it is      necessary for  an election petitioner to prove (i) that      any vehicle  or  vessel  was  hired  or  was  procured,      whether  on   payment  or  otherwise  by  the  returned      candidate or  by his  election agent  or by  any  other      person with  the consent  of the  candidate or  of  his      election agent; (ii) that it was used for conveyance of      the electors  to or  from any polling station and (iii)      that such  conveyance was free of cost to the electors.      Failure to  substantiate any  one of  these ingredients      leads to the collapse of the whole charge."      We shall  now proceed  to consider the evidence adduced by the parties alleged by the appellant. On the day of poll, 12.6.1977 J.K. Dutta, P.W. 69, the then District Magistrate, West Champaran was proceeding to Sikta in a jeep accompanied by the  Superintendent of Police in the course of his duties in relation  to the  election. Finding  a jeep carrying some ladies, P.W.  69 instructed  the Superintendent of Police to make the  necessary enquiry. After the necessary enquiry was made by  the police  the jeep  with the  occupants  and  the driver was  taken to the police station by the Station House Officer, Sikta  Police Station,  who found  the jeep  having been  detained   by  the   District   Magistrate   and   the Superintendent of  Police on  the road  near a canal situate about 1.5 or 2 miles away from the Sarakiatola booth when he was proceeding  towards Parsa  village with  some policemen. Subsequently, the  ladies who  were in  the jeep  were taken from the  police station  by a  government jeep to the place from where  the private  jeep with  the  occupants  and  the driver was  taken by  the  officials  to  the  Sikta  Police Station. Anil  Kumar, P.W.  73. the  then Superintendent  of Police, Bettiah  who accompanied P.W. 69, has given a little more detailed  evidence regarding  what happened when he was

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accompanying P.W.  69 to  Sikta. He  has deposed  that since they suspected  that the four or five rustic ladies who were being carried by the jeep could not be its owners, he seized the jeep,  evidently under  the impression  that the  ladies were being carried free of charge to the booth, near a canal situate about  1.5 or  2 miles  from the  booth and  took it alongwith  the  driver  and  its  occupants  to  the  police station. After  the statements  of the ladies and the driver were recorded  by the  Station House  Officer at  the  Sikta Police Station, they were taken back 20 by a  government jeep  to the  place from  which the private jeep in  which they  were travelling  earlier was  seized so that they  could go and cast their votes. P.Ws. 69 and 73 do not remember  the number  of the  jeep and  P.W. 69 does not know to whom the jeep belonged. Amal Ranjan Sarkar, P.W. 81, is the  Station House  Officer who  took the  jeep with  its occupants and  the driver  to the  police station  after  he found the  jeep having  been detained  by P.Ws.  69 and  73. Kabir Ahmad’s nephew Tabrez Ahmad was driving the jeep. P.W. 81 obtained  the statement,  Ex. 13,  written and  signed by Tabrez Ahmad  as also the statements of five ladies who were found travelling  in the  jeep. The  jeep USJ 5226 which was taken into  custody was  later released  to Kabir  Ahmad  on 17.6.1977 under  Ex. (c)  after one  Managar Prasad,  who is proved to  have been  the polling  agent of  the respondent, furnished security  under Ex.  14 (b).  There is evidence of Sheikh Ejazul,  P.W. 8 that the jeep USJ 5226 which was used in the  election belonged  to Kabir  Ahmad and  that it  was driven by Tabrez Ahmad. There is evidence to show that Kabir Ahmad’s brother Nazir Ahmad was another polling agent to the respondent like  Managar Prasad. The learned Trial Judge has found that  Managar Parasad  was  the  respondent’s  polling agent. This  fact, to  which our  attention was drawn by Mr. Shanti Bhushan  was not disputed by the respondent’s learned counsel. The  respondent, R.W.  45 has  admitted that  Kabir Ahmad’s brother  Nazir Ahmad  was his polling agent and that Tabrez Ahmad  is the  nephew of Kabir Ahmad and Nazir Ahmad. But he  has stated  that the does not know if Managar Prasad whom he  knows was  his polling  agent  or  whether  he  had furnished security for the release of the jeep by the Police to Kabir  Ahmad.  D.N.  Pandey,  P.W.  75  the  then  Anchal Adhikari of  Sikta who  had been deputed to work as the Sub- Zonal officer  during the  election in 1977 has also deposed about the  seizure of  Kabir Ahmad’s  jeep driven  by Tabrez Ahmad. He  was present  at the Sikta Police Station when the jeep with some women sitting in it was brought to the police station. He  has stated  that  Kabir  Ahmad,  who  was  very friendly with  respondent, came to the police station to get the women  and the  jeep released  from the  custody of  the police.  The   evidence  of  Muratiwa  @  Deokha,  P.W.  10, Mehrunoissa, P.W.  11 and  Rasulia, P.W. 42 who travelled in the jeep  alongwith two other ladies including Queresha P.W. 67 21 is that  Kabir Ahmad  got  them  released  from  the  police station on  the day of the poll after they and the two other ladies who  were travelling  with them  by the jeep had been taken to the police station. The aforesaid evidence of P.Ws. 69, 73,  81, 75,  10, 11 and 42 which has not been seriously challenged    in     the    cross-examination    establishes satisfactorily that  the jeep  USJ 5226  belonging to  Kabir Ahmad was  seen being  driven by Kabir Ahmad’s nephew Tabraz Ahmad with  five women  electors including  P.Ws. 10, 11, 42 and 67 on the road near a canal situate about 1 or two miles

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away from the Sarakiatola booth on the day of the poll, that the jeep  with the  ladies and  the  driver  was  seized  on suspicion that  it was  being used  for carrying electors to the booth  free of  cost, that  the statements  of the  five ladies and  the driver  Tabrez Ahmad  were recorded  at  the Sikta Police  Station by the Station House officer, P.W. 81, in the presence of P.Ws. 69, 73 and 75, that Kabir Ahmad got the ladies  released from police custody on the same day and they were  thereafter brought  by a government jeep from the police station  to  the  place  from  where  they  had  been previously taken  to the  police station  in  Kabir  Ahmad’s jeep, that the jeep was released to Kabir Ahmad on 17.6.1977 under Ex.  14(c) and  that the  respondent’s  polling  agent Manager Prasad   furnished  security under Ex. 14(b) for the release  of   the  jeep  to  Kabir  Ahmad.  The  appellant’s contention is that the respondent procured the jeep USJ 5226 from Kabir  Ahmad and  it was  used for  the  conveyance  of electors free  of cost  to themselves  for  the  purpose  of casting votes  in favour  of the  respondent  and  that  the respondent is  thus guilty  of  corrupt  practice  under  s. 123(5)  of   the  Act.   The  evidence   referred  to  above establishes the  requirement of clause (5) of s 123 that the vehicle  USJ   5226  which   is  proved  to  belong  to  the respondents close  friend  Kabir  Ahmad  was  used  for  the conveyance of  electors who were proceeding to cast votes in favour of  the respondent  on the day of the poll. It is not possible to  agree with  the learned  Trial Judge  that what this evidence  establishes is  only  an  attempt  to  convey electors to  the polling  booth and not actual conveyance of the electors  merely because  the jeep with the electors who were being  carried in it was intercepted at a distance of 1 or 2  miles away  from the  booth and  taken to  the  police station by the official who had suspected that an election 22 offence had  been committed. The jeep was seized when it was being used for carrying electors who were proceeding to vote for the  respondent, no  doubt at a distance of 1 or 2 miles away from  the polling  booth. Even  the learned counsel for the respondent did not contend before us that what has. been established is  only an attempt at conveying electors by the jeep of  Kabir Ahmad  to the  polling booth  and not  actual conveyance.      There is overwhelming evidence on record including that of the  Anchal Adhikari,  P.W. 75  who  had  worked  as  the Secretary of  a Cement Committee of which the respondent was the President,  to show that the respondent is a good friend of Kabir Ahmad, whose brother Nazir Ahmad was admittedly the respondent’s polling  agent. The  respondent had used to him for the  purchase of  a motor cycle for the benefit of Nazir Ahmad who  admittedly advanced  the money  required for  its purchase and  was using  the vehicle  which stood  nominally registered in the name of the respondent. The respondent has professed ignorance  in his  evidence  whether  Kabir  Ahmad owned the  jeep USJ  5226 at  all and he has denied that the jeep was used for carrying electors for casting votes in his favour on the day of poll. A reading of the evidence of R.W. 45 shows  that his  evidence is  totally unreliable.  We may state at  this stage  that the  respondent’s learned counsel Mr. S.K.  Sinha found  it practically impossible to deny any aspect of  the appellant’s  case in  regard to  this item of corrupt practice except the part relating to the procurement of the  jeep USJ 5226 by the respondent from its owner Kabir Ahmad. We  find  that  this  part  of  the  appellants  case relating  to  this  item  of  corrupt  practice  is  clearly established by the evidence referred to above.

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    The  next   point  for  consideration  is  whether  the electors were carried free of cost to themselves by the jeep USJ 5226  on  the  day  of  poll.  On  this  aspect  of  the appellants case  there is  direct evidence  of the  electors P.Ws. 10, 11 and 42 besides that of some other evidence. The appellant’s polling  agent Jang  Bahadur  Mian,  P.W.6,  has stated in his evidence that the jeep 23 USJ 5226  was being used for carrying electors to cast votes in favour  of the  respondent, that  the respondent  met the expenses of  electors and  that the  jeep was  seized by the District Magistrate  and the  police on  the day of poll. He has denied  the suggestion  that the  jeep USJ  5226 was not used for  carrying electors  at all.  In view  of the  other evidence referred  to above we are of the opinion that there is no  substance at  all in  this suggestion made P.W. 9 who was an  elector from  Parsa village  in the election held in 1977 has  stated in  his evidence that electors were carried by Kabir  Ahmad’s jeep  on behalf  of  the  respondent.  The suggestion made  to him  and denied  by him  is that  he has given false  evidence. The  electors P.Ws.  10,  11  and  42 belong to  same Parsa Village. P.W. 10 has stated that Kabir Ahmad has  asked her  to vote for the candidate whose symbol consisted of cow and calf, i.e. the respondent, that she and four other  women  electors  were  being  carried  in  Kabir Ahmad’s jeep  driven by  Kabir Ahmad’s  nephew when the jeep was seized and taken to the police station and that they did not pay  anything to the owner or the driver of the jeep for their conveyance.  To the  same effect  is the  evidence  of P.Ws. 11  and 42  who also  have  stated  clearly  in  their evidence that they did not pay anything for their conveyance to the owner or the owner or the driver of the jeep and that they and  the other  women were  carried in the jeep free of cost to  themselves. What  has been elicited from P.W. 10 in the cross-examination is that she does not know the names of the other ladies who travelled with her in the jeep. P.W. 11 has denied  the suggestion that she has been tutored to give false evidence.  P.W. 42  has denied the suggestion that she was not  an elector  at all  and that  she has  given  false evidence. P.W.  10 is  a Hindu  while PWs. 11, 42 and 67 are Muslims. Yaqub  Mian, PW 43, the husband of P.W. 42 also has stated in his evidence that the electors were carried by the jeep free  of cost and that after learning that the jeep had been taken  to the  police station  he went  to  the  police station and  found that Kabir Ahmad had already obtained the release of  the electors  from the police. He too has denied the suggestion  that he  has  been  tutored  to  give  false evidence and  that he  had worked  for the appellant in that election. We  are of the opinion that there is no reason for disbelieving the  evidence of  P.Ws. 10,  11, 42 and 43 that the electors who travelled by the jeep which was intercepted by the officials and taken to the police 24 station were being carried to the polling booth free of cost to themselves  for casting  their votes  in  favour  of  the respondent. This  part of  the appellant’s  case is  clearly proved by the evidence of these four witnesses. We may state that the  respondent’s learned counsel has not disputed that the  evidence  of  these  four  witnesses  proves  that  the electors were  being carried  to the  booth by  the jeep USJ 5226 for  casting their  votes in  favour of  the respondent free of  cost to  themselves.  We  find  that  the  evidence referred to  above proves  the second  requirement of clause (5) of s. 123 of the Act.      The third  point which  alone is  seriously disputed by

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the learned  counsel for  the respondent  is the question of procuring Kabir  Ahmed’s jeep USJ 5226 by the respondent for carrying electors  to vote  for him. Since it has been found that the  jeep USJ  5226 belonging to the respondent’s close friend Kabir  Ahmed was  actually used for the conveyance of voters who  were proceeding  to cast  votes in favour of the respondent free  of cost  to themselves, the jeep could have been put  in use  for the  purpose  either  by  Kabir  Ahmed himself or  some  other  person  without  reference  to  the respondent or  his agent  or it  could have been procured by the respondent.  It could  not  have  become  available  for carrying electors  who  were  proceeding  to  vote  for  the respondent in  any other  manner. It is not the respondent’s case that  Kabir Ahmed  or any  other person put the jeep to use for  carrying electors  to vote  for him free of cost to themselves without  any reference  whatsoever  to  him.  The details relating  to the jeep USJ 5226 had been given in the election petition.  The respondent could have made necessary enquiries from  Kabir Ahmed,  the  owner  of  the  jeep  and pleaded that the jeep was used for carrying electors for his benefit without  any reference  to him  voluntarily  by  its owner Kabir  Ahmed or  by any  other person if that were so. The respondent  has not  come forward  with any  such  plea. Therefore, it  is not  possible to  accept the submission of the respondent’s learned counsel Mr. S.K. Sinha that in view of the fact that it is the appellant’s case that Kabir Ahmed is a  very close  friend  of  the  respondent,  Kabir  Ahmed himself could have put his jeep to use for carrying electors for the  benefit of  the respondent  without any request for the use or the jeep on the part of 25 the respondent.  Therefore, the  only other  possibility  is that the  respondent or someone else acting as his agent had procured the  jeep from Kabir Ahmed for the purpose of using it for  the benefit of the respondent in connection with the election, namely, to carry electors for voting in his favour free  of   cost  to   themselves.  Having   regard  to  this probability we  are of the opinion that even slight evidence in this  regard would  be sufficient for proving this aspect of the appellant’s case.      Regarding this  aspect of  the appellant’s, case on the side of  the respondent  there is the interested evidence of the respondent alone and he has stated that he had not asked for  any  jeep  or  any  other  help  from  Kabir  Ahmed  in connection with  the election  held in  1977 and  that Kabir Ahmed did  not help  him in  any way  in that  election. The evidence of  the  respondent  is  absolutely  unreliable  as stated earlier  having regard to the fact that it is clearly established by the evidence that the jeep USJ 5226 belonging to Kabir  Ahmed was  actually used for carrying electors who were proceeding  to vote in favour of the respondent free of cost to  themselves and  that it was seized by the officials when it  was being  driven by  Kabir Ahmed’s  nephew  Tabrez Ahmed, white  the electors  seated in the jeep. The evidence on record  clearly proves  and it  is not  challenged by the respondent’s learned  counsel  but  is  on  the  other  hand conceded by  him that  Kabir Ahmed had helped the respondent by allowing  his jeep  USJ 5226  driven by  his  own  nephew Tabrez Ahmed  for the  free conveyance  of electors who were proceeding  to  the  booth  for  voting  in  favour  of  the respondent. The  appellant’s polling agent P.W. 6 has stated in his  evidence that  the  respondent  had  borrowed  Kabir Ahmed’s jeep  for the  conveyance  of  electors  from  their respective places to the booth had for their return to their places from  the booth.  He has  also stated that one of the

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two jeeps  used  for  carrying  electors  to  vote  for  the respondent is  USJ 5226.  He has  denied the suggestion that the jeep  USJ 5226 was not used at all for carrying electors on the  day of  poll. Sahib Mian, P.W. 16 is a muslim barber belonging to  Haripur, which  is also known as Sikta. He was an elector  who had  cast his  vote in  the election held in 1977. He knows the respondent as well as Kabir Ahmed who 26 owns a jeep and a mill at Parsa. He has deposed that when he was given a share to Kabir Ahmed at his mill in Parsa, three persons including  the respondent  went there  and that  the respondent asked,  Kabir Ahmed  agreed to give it to him. He has denied  the suggestion that he has given false evidence. P.W. 43  has stated  in his evidence that the respondent and Kabir Ahmed  went to  his village on day prior to the day of the poll  and asked  him to vote for the respondent and told him that  a jeep had been borrowed from Kabir Ahmed to carry voters and  that accordingly  a jeep  driven by Tabrej Ahmed came on  the next day and carried female electors. No doubt, P.W. 43 and his wife P.W. 42 are casual laborers P.W. 43 has denied the  suggestion that  he had worked for the appellant in that  election and that he has been tutored to give false evidence. There  is no  satisfactory reason for disbelieving the evidence  of these three witnesses P.Ws. 6, 16 and 43 of whom P.W.  6 was  no doubt the appellant’s polling agent. It is not  possible to  reject the  evidence of  P.W. 6  merely because he  was admittedly  the appellant’s  polling  agent, especially having regard to the fact that his evidence is in a way  corroborated by  the evidence of P.Ws. 16 and 43. The respondent R.W.  43 has  admitted in his evidence that Kabir Ahmed and  others own  a mill  and that  Kabir  Ahmed  is  a partner in  that mill  business. As  stated earlier,  he has admitted that  Kabir Ahmed’s  brother Nazir  Ahmed  was  his polling agent  and that  Tabrez Ahmed is the nephew of Kabir Ahmed and  Nazir Ahmed.  The evidence  of P.W. 75 shows that Tabrej Ahmed  did not even hold driving licence when the was found to  be driving  the jeep USJ 5226 carrying electors to the booth  on the  day of  poll and  that he  was prosecuted separately for  that offence  under the Motors Vehicles Act. There is  evidence of  Daroga Mahato,  P.W. 56, to show that the respondent  and Kabir  Ahmed were  good friends and that Kabir Ahmad’s  father Sharif  Ahmad was  sitting  about  100 yards away  from the  booth on  the day of poll. The learned Trial Judge  has found  that Kabir Ahmad is a good friend of the respondent and that he and his father had worked for the respondent in  the election  held in  1977. Inspite  of  all these facts the respondent has not called Kabir Ahmad as his witness to  deny that he had procured the jeep USJ 5116 from Kabir Ahmed  for the  conveyance of his electors. He has not examined even  Tabrez Ahmad  though he  had been  admittedly named as one of his witnesses in 27 the list  of witnesses submitted on his behalf. He would say that to  the best  of his  knowledge  Kabir  Ahmad  did  not possess any jeep and that he submitted the list of witnesses by merely  looking into the voters list without applying his mind because  he was  pressurized by  his lawyer  to file  a tentative list  of witnesses  as soon  as possible  and  was informed by  his lawyer  that if he did not file his list of witnesses he would lose his case on that ground alone. It is not possible  to accept  this evidence  of the respondent as well having regard to the fact that it is stated without any denial that he himself is a lawyer, it is improbable that he would have  been pressurize  by his lawyer and that he filed the list  of witnesses  merely by  booking into  the voters’

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list without  applying his mind as to who should be cited as his witness.  In these  circumstances, we are of the opinion that it  is not  possible  to  place  any  reliance  on  the interested  evidence  of  the  respondent  R.W.  45  on  the question of procuring the jeep USJ 5226 from its owner Kabir Ahmad. The evidence of P.W. 16 is most natural and reliable. There is  absolutely no  reason whatsoever for rejecting his evidence which  could not be outrode evidence. We accept the evidence of  P.Ws. 6,  16 and  43  on  this  aspect  of  the appellant’s case  and find  that the respondent had procured the jeep  USJ 5226 from his close friend Kabir Ahmad for the free conveyance  of his  electors and  that  the  jeep  was, thereafter used  for that  purpose on  the day  of poll  and seized by  the officials  P.Ws. 69,  73 and  81 when  it was being used  for the  conveyance of the electors P.Ws. 10,11, 42 and others including P.W. 67 free of cost to themselves.      The appellant  has thus  proved satisfactorily  all the three requirements  of clause  (5) of s. 123 of the Act. The respondent has  therefore, to  be  held  guilty  of  corrupt practice falling  under  that  clause  which  is  ordinarily difficult to  prove. We  think that  such  corrupt  practice which is  very largely resorted to in the elections could be avoided by  either locating  polling booths  within  walking distance  of  the  electors  or  by  having  mobile  polling stations. We accordingly allow this appeal in regard to this item of corrupt practical one with costs qualified Rs. 5,000 and hold that the res- 28 pondent was  guilty of  corrupt practice  under s. 123(5) of the Act in regard to his election in 1977 as a member of the Bihar Legislative  Assembly from No. 5 Sikta Constituency in West Champaran district. N.V.K.                                      Appeal allowed. 29