17 October 1958
Supreme Court
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DR. Y. S. PARMAR Vs SHHIRA SINGH PAUL AND ANOTHER

Case number: Appeal (civil) 410 of 1958


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PETITIONER: DR. Y. S. PARMAR

       Vs.

RESPONDENT: SHHIRA SINGH PAUL AND ANOTHER

DATE OF JUDGMENT: 17/10/1958

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. AIYYAR, T.L. VENKATARAMA GAJENDRAGADKAR, P.B.

CITATION:  1959 AIR  244            1959 SCR  Supl. (1) 213  CITATOR INFO :  D          1975 SC2299  (412)

ACT:        Election-Coyrupt Practice-Procuring assistance of Government        servant-Candidate  appointing person as Polling  agent,  not        knowing him to be Government servant-Mens rea, if  ncccssary        ingredient-Representation  of the People Act (43  of  1951),        ss. 46 and 123(7).

HEADNOTE: The  appellant, who was a candidate for election to  Parlia- ment,  signed  a very large number of blank  forms  for  the appointment  of  polling agents and made them  over  to  one Kalyan Singh.  Kalyan Singh passed on three of the forms  to Kashmira  Singh  after  inserting  therein  the  name  of  a particular  polling station.  Kashmira Singh filled  in  the name  of  Amar Singh as the polling agent in  one  of  these three forms and gave it to Amar Singh, who, duly signed  the form,  filed it before the presiding officer of the  polling station  and acted as the appellant’s polling  agent.   Amar Singh was a member of the armed forces but this fact was not known to the appellant or to Kashmira Singh or Kalyan Singh. After the poll the appellant was declared elected but on  an election petition being filed his election was set aside  on the  ground  that he had committed the corrupt  practice  of procuring  the assistance of a person in the service of  the Government.  The appellant contended that Amar Singh had not been  duly  appointed as the appellant’s  polling  agent  as neither  the appellant nor his election agent had  made  the appointment, and that the appellant could not be held guilty of the corrupt practice for he did not know that Amar  Singh was  in the service of the Government and  consequently  did not have the necessary mens Yea. 214 Held,  that  the  appellant did appoint Amar  Singh  as  his polling  agent by personally signing the  appointment  form. The  fact that the name of the polling agent was written  in the form by another person after the appellant had signed it does not make it an appointment by the other person. Held, further, that the appellant was guilty of the  corrupt practice inasmuch as he appointed Amar Singh as his  polling

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agent and Amar Singh by acting as the polling agent assisted in  the  furtherance  of the prospects  of  the  appellant’s election.  A presumption arises under s. 123(7) Explanation (2) that  the appellant  by so doing procured Amar Singh’s  assistance  in furtherance  of the prospects of his election,  irrespective of  whether he intended to procure such assistance  or  not. The  knowledge  of the appellant whether  the  person  whose assistance  he procured was a person in the service  of  the Government  or  not  was irrelevant.  Mens  rea  was  not  a necessary ingredient of the corrupt practice.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 410 of 1958. Appeal  by special leave from the judgment and  order  dated July  31,  1958,  of  the  Judicial  Commissioner’s   Court, Himachal Pradesh at Simla in Civil Misc.  First Appeal No. 2 of 1958. K.L.  Misra, Advocate-General for the State of U. P. and  S. S. Shukla, for the appellant. Achhru Ram and Ganpat Rai for respodent No. 1. 1958.  October 17.  The Judgment of the Court was  delivered by SARKAR,  J.-This appeal arises out of an  election  petition filed  by  the respondent No. 1, Hira Singh  Paul,  whom  we shall  hereinafter  refer to as the respondent.   The  other respondent to this appeal is the Election Commission, but it has not appeared presumably because it is not interested  in the result of the appeal which involves no claim against it. The only question that it involves is whether the  appellant was guilty of a corrupt practice, the details of which  will be  set  out later, within the meaning of S. 123(7)  of  the Representation of the People Act, 1951. In  the 1957 General Elections, ten candidates  filed  their nomination  papers to contest the election from  the  Mahasu double member constituency in Himachal Pradesh.  One of  the two seats for this constituency 215 was  reserved for a scheduled caste candidate.  Two  of  the candidates withdrew from the contest and the remaining eight went  to the poll.  These eight included the appellant,  the respondent and one Nek Ram.  Nek Ram was declared elected to the  reserved  seat and the appellant to the  general  seat. The  respondent polled the next largest number of  votes  to the appellant. After the results had been declared the respondent filed the election  petition  on  August  3,  1957,  challenging   the validity of the election of the appellant on the ground that he  had committed various corrupt practices.   The  Election Tribunal framed 18 issues in respect of the various  corrupt practices  alleged  in  the petition but  answered  all  the issues excepting issues Nos. 8(1), 8(ii) and 11 against  the respondent.  Issue No. 8(1) raised the question whether  one Amar  Singh, said to be a member of the armed forces of  the Union  of  India, worked and canvassed  for  the  appellant. Issue  No.  8(ii) was whether Amar Singh was  appointed  his polling  agent  by the appellant.  Issue No. 11 was  in  the following terms: In  case  one  or more of Issues Nos. (8) to 10  is  or  are decided  in  the affirmative, whether the respondent  No.  1 obtained,  procured  or  abetted  or  attempted  to  obtain, procure by himself, by his agents and by his supporters  the assistance of the Government servants as specified under the

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said  issues  for the furtherance of the  prospects  of  his election ? The  Tribunal  found against the appellant  on  Issues  Nos. 8(1), 8(ii) and 11 and thereupon declared his election void. The  appellant  then  went  up in  appeal  to  the  judicial Commissioner,  Himachal Pradesh, who by his  judgment  dated July  31,  1958, set aside the finding of  the  Tribunal  on Issue No. 8(1) but maintained its findings on the other  two issues  and confirmed the declaration that  the  appellant’s election was void.  The appellant has come up to this  Court by  special leave in appeal against that judgment.  As  will have  been seen from what has been earlier stated  the  only questions 216 that survive are those raised by Issues Nos. 8(ii) and 1 1. The  facts  are  not now in dispute and  may  be  stated  as follows:  The  constituency  was divided  into  606  polling stations  and for each polling station three polling  agents could  be  appointed.  The appellant was  thus  entitled  to appoint 1818 polling agents.  On April 28, 1957, he signed a very  large  number  of the forms prescribed  by  the  rules framed under the Act for appointing polling agents, in blank and  without  ’setting out therein the name of  any  polling agent,  as he had not then been able to make up his mind  in view of the large number of polling stations as to who would be  his polling agents at the various polling stations.   He made  over these forms to Kalyan Singh, who passed on  three of them to Kashmira Singh having inserted therein the  words "  polling station No. 13, Sheopur ". Kashmira Singh  filled in  the  name of Amar Singh as the polling agent in  one  of these forms on May 25, 1957, the day of polling, and made it over  to the latter to enable him to act as the  appellant’s polling  agent  at polling station No.  13,  Sheopur.   Amar Singh then duly signed the form as required by the rules and filed  it with the presiding officer at polling station  No. 13, Sheopur, and on the strength of it, acted as the polling agent  of the appellant at that station for about two  hours when  objection having been taken to him on the ground  that he  was a member of the armed forces, he withdrew  and  left the  polling station.  Amar Singh was on the polling day  in fact a member of the armed forces, though this was not  then known  to  the appellant.  Kalyan Singh and  Kashmira  Singh acted  in  all  that they did, under the  authority  of  the appellant.    These  facts  may  be  taken  to   have   been established on the evidence adduced. The  learned Advocate-General of Uttar Pradesh who  appeared for  the appellant, first sought to contend that Amar  Singh had not really been appointed the appellant’s polling agent. He  said that under s. 46 of the Act a polling agent can  be appointed  only by the candidate himself or by his  election agent  and  Amar  Singh could not on the  facts  found,  for reasons to 217 be  stated  presently,  be said to -have  been  appointed  a polling agent either by the appellant or his election agent. Therefore,  according  to  him,  Amar  Singh  had  not  been appointed the appellant’s polling agent at all and hence the charge  of  corrupt  practice  against  him  for  having  so appointed Amar Singh must fail. First, it seems to us that this argument is not open to  the learned  Advocate-General.   He  himself  appeared  for  the appellant before the learned Judicial Commissioner and there conceded that the factum or the validity of the  appointment of Amar Singh as the appellant’s polling agent could not  be questioned  by him.  We do not think that we  should  permit

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the appellant to withdraw a concession expressly made by his counsel  in the Court below in a matter of this kind.   This is all the more so as the present argument does not seem  to have  been raised when the matter was before  the  Tribunal, either.   Secondly,  it seems to us that the  contention  is without   substance.   We  will  assume  that  the   learned Advocate-General  is right in his contention that under  the Act  a polling agent can be appointed only by the  candidate himself  or by his election agent and not by  the  candidate acting  through  any  other agent.   The  learned  Advocate- General’s  contention is that on the facts found,  the  only possible  conclusion  is  that  Amar  Singh  had  not   been appointed polling agent by the appellant himself but by  one or  other  of his agents, namely, Kalyan Singh  or  Kashmira Singh  and  as  none of them was  his  election  agent,  the appointment was invalid.  It is not in dispute that  neither Kalyan Singh nor Kashmira Singh was his election agent.   In fact it appears that the appellant had no election agent  at all.   In  our view, however, this does not  matter  as  the present  is not the case of an appointment by any agent  but by the appellant himself.  We have come to this view because here,  the appointment was made by the document signed  per- sonally  by  the appellant.  The fact that the name  of  the polling agent was written in the document by another  person after  the  appellant  had  signed it,  does  not  make  the appointment of the polling agent under 28 218 that document an appointment by some other person acting  as the  agent  of  the  appellant.   On  the  language  of  the document-and the appointment was not purported to have  been made  in  any  other. way than by  the  document-it  was  an appointment made by the appellant himself.  The other person only  wrote the name in the document which he had  authority to  do.  He did not purport to make any appointment at  all. It  is impossible to read the document as the making of  the appointment  by  an agent of the appellant acting  for  him. The  true view of the matter plainly is that  the  appellant himself  appointed by the document as his polling  agent,  a person  whose name had been written therein by another  with his authority.  We, therefore, hold that Amar Singh had been appointed  his polling agent by the appellant  himself.   It was thus even on the learned Advocate-General’s construction of s. 46, a proper appointment. We  then  come  to this that the  appellant  appointed  Amar Singh,  a member of the armed forces, his polling agent  and the latter acted as such.  The question is, Did this  amount to  a corrupt practice by the appellant ?  The  respondent’s contention  which has been accepted by the Courts below,  is that  it is a corrupt practice within s. 123(7) of the  Act. That provision so far as is relevant and the explanation  to it, are in these terms. Section  123.  The following shall be deemed to  be  corrupt practices for the purposes of this Act :- (7)  The obtaining or procuring or abetting or attempting to obtain  or  procure by a candidate or his agent or,  by  any other person, any assistance (other than the giving of vote) for  the  furtherance of the prospects of  that  candidate’s election,  from any person in the service of the  Government and belonging to any of the following classes, namely :- (c) members of the armed forces of the Union;  Explanation.- (1) (2) For the purposes of clause (7), a person shall be 219 deemed  to assist in the furtherance of the prospects  of  a

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candidate’s  election if he acts as an election agent, or  a polling agent or a counting agent of that candidate." The learned Advocate-General contends that the procuring  or obtaining   by  a  candidate  of  any  assistance  for   the furtherance  of the prospects of his election from a  person in  the service of the Government as a member of  the  armed forces,  would not amount to a corrupt practice unless  that candidate  knew  that  the person  was  in  such  Government service.   He  says that the words  ’procuring  orobtaining’ import  such  knowledge  and that this view  of  the  matter receives great strength from the word I for’ in the phrase " for  the  furtherance of the prospects of  that  candidate’s election  ".  According to him, without such  knowledge  the candidate  cannot be said to have procured or  obtained  any assistance, for no one can obtain or procure a thing  unless he knows that he is doing so.  He then points out that there is evidence that neither the appellant nor Kalyan Singh  nor even Kashmira Singh knew that Amar Singh was a member of the armed forces.  He, therefore, says that the appellant cannot in the absence of such knowledge be said to have procured or obtained the assistance of a member of the armed forces  for furthering the prospects of his election. ,It is true that neither the appellant nor Kalyan Singh, nor even  Kashmira Singh knew at the date of the appointment  of Amar Singh that he was a member of the armed forces but  the point now raised by the learned Advocate-General is, in  our view,  none  the  less  unsustainable.   It  overlooks   the provisions of the second explanation to the section which we have  already set out.  Under that explanation if  a  person acts  as  the polling agent of a candidate it must  be  held without  more,  that,  he assisted  in  furtherance  of  the prospects of that candidate’s election.  In the present case therefore it has to be held that Amar Singh who acted as the appellant’s   polling   agent,  thereby  assisted   in   the furtherance  of the prospect.-, of his election.  Now  under the  provisions  of the Act, no one can act as  the  polling agent  of a candidate unless he has been appointed  as  such and we have already held that the appellant 220 himself  had appointed Amar Singh as his polling agent.   It follows  in  view  of the  explanation  that  the  appellant procured  and obtained the assistance of Amar Singh for  the furtherance  of  the  prospects of his  election.   All  the requirements  of  the  section are thus  satisfied  and  the appellant  must  therefore  be held to  have  committed  the corrupt  practice thereby constituted. All that the  section requires is that assistance shall be procured for furthering the  election.  Where the explanation applies as it does  in the  present case, if a candidate has appointed a person  to act  as his polling agent and he accordingly does so act,  a statutory  presumption  arises that  the  candidate  thereby procured  that  person’s assistance in  furtherance  of  the prospects of his election, and this irrespective of  whether he  intended to procure such assistance or not.  Indeed,  as Mr. Achhru Ram appearing for the respondent pointed out, the explanation clearly shows that the candidate’s intention  is irrelevant,  for,  such  presumption  arises  even  when   a candidate has procured another person to act as his counting agent  and  it  is  very  difficult  to  imagine  that   the appointment of a counting agent can further the prospects of any election, for the counting agent acts after the  polling is over and only when the votes already polled, are counted. Therefore it seems to us that in the case of the appointment of a polling agent which comes within the explanation as the present  case  does,  the  intention  of  the  candidate  in

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procuring  the assistance is irrelevant.  If that is so,  it is  clear  that the knowledge of the candidate  whether  the person, whose service as his polling agent he has  procured, is  a  member  of  the armed forces  or  any  of  the  other specified  class of Government servants or not,  is  equally irrelevant.   We think therefore that the learned  Advocate- General’s contention must fail. What  we  have  said just now also  disposes  of  the  other argument  of  the learned Advocate-General, namely,  that  a corrupt  practice  is in the nature of a  criminal  act  and cannot therefore be established unless mens rea, or criminal intention, is established, and that the appellant cannot  be said to have committed 221 a corrupt practice for he had no mens rea in appointing Amar Singh  his  polling agent since he did not  know  that  Amar Singh  was a member of the armed forces.  On this  point  we were referred to certain passages from English text-books on election law of which it will be enough to refer to one, for all  state  the  law in substantially the  same  terms.   In Schofield’s  Parliamentary Elections, 2nd Edn. which is  one of the text-books to which we were referred, it is stated at p. 402: There is an elementary distinction between a corrupt and  an illegal  practice.  To establish the former it is  essential to  show  that a corrupt intention is  present.   A  corrupt practice  is  a thing the mind goes along with,  whereas  an illegal practice is a thing the legislature is determined to prevent, whether it is done honestly or dishonestly. The  view thus formulated is founded on the English  law  of election and is clearly of no assistance to us.  It is based on  particular  English statutes and the  language  employed therein.  We have already shown that our statute in the case at least of a corrupt practice of the kind in hand does  not concern  itself with any question of intention.  Mr.  Achhru Ram with his usual industry made available to us the English statutes on which the statement of law set out in the  text- books  referred  to by counsel for the  appellant  had  been based  and  pointed out that under these statutes  the  acts therein made corrupt practices had to be done corruptly  and that corrupt practices were always made offences  punishable as  crimes.   It may be of use here to point  out  that  the relevant provisions in our statute were amended in 1956  and that has done away with the distinction between illegal  and corrupt  practices.   In  fact, we  have  now  only  corrupt practices  and no illegal practices.  The present  case,  it may be pointed out, is governed by the amended statute.   No question  of  mens  rea or intention  or  knowledge  of  the candidate arises in this case. We, therefore, come to the conclusion that the appellant was guilty  of  a corrupt practice by appointing Amar  Singh,  a member of the armed forces, his polling 222 agent whereby the latter was enabled to and did act as such. The  appellant’s  election was consequently in  our  opinion rightly declared void. The appeal is therefore dismissed with costs. Appeal    dismissed,.."