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PETITIONER: KALYA SINGH

       Vs.

RESPONDENT: GENDA LAL AND OTHERS

DATE OF JUDGMENT28/02/1975

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. ALAGIRISWAMI, A.

CITATION:  1975 AIR 1634            1975 SCR  (3) 783  1976 SCC  (1) 304  CITATOR INFO :  RF         1976 SC  27  (12)  APR        1976 SC 271  (6)  RF         1978 SC1162  (5)  R          1979 SC 734  (25)

ACT: Representation    of    the    People    Act,    1951,    S. 123(1)(A)(b)--Payment  of money to a person to  retire  from contest--Whether amounts to corrupt practice.

HEADNOTE: Section  123(1)(A)(b)  of the Representation of  the  People Act, 1951 defines bribery as ’any gift, offer or promise  by a  candidate  or his agent or by any other person  with  the consent  of  a  candidate  or  his  election  agent  of  any gratification,  to any person, whomsoever. with the  object, directly  or  indirectly of inducing an elector to  vote  or refrain  from,  voting at an election’.   Respondent  No.  1 filed  an election petition challenging the election of  the appellant  that he had committed corrupt practice  under  s. 123(1)(A)(b)  of  the Act.  The.  High  Court  declared  the election void on the ground that the appellant, by paying  a big  sum in cash and promising payment of a similar  sum  by execution  of  a promissory note, made Respondent No.  3  to retire  from  the contest and publish a  pamphlet  that  the electors should vote for the appellant and not for himself. Allowing the appeal to this Court, HELD:  1 (a) It is not possible to sustain the  judgment  of the  High  Court  holding the appellant  guilty  of  corrupt practices  within the meaning of. 123(1)(A)(b) of  the  Act. [790B] (b) Mere payment of any gratification to a third person  for securing  or procuring some votes in favour of a  particular candidate,  without the establishment of any  nexus  between the  money  and  the inducement to the  voter,  will  of  be sufficient to prove that the voter is indirectly induced  on account of the payment of gratification to the third person. The  gratification must have some connection or  reflection, direct  or  indirect, in persuading the, voter  to  vote  or refrain from voting atan election.  If the inducement  to the voter is not caused by the paymentof the gratification to a third person but by the persuasion or influence ofsuch

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third  person  it  will  not be possible  to  say  that  the gratification  had  any indirect inducement  to  the  voter. [787F-11] (c)  Payment of any gratification to any person to  work  or canvass  at  an  election  is  outside  the  ambit  of   the definition. [787H] (d) If the inducement to the voter is free from the shade or colour of he gratification paid to the third person it  will not be bribery.  If, however, he inducement in a given  case is Coloured or shaded by the payment of the ,ratification to a  third  person it would be an indirect inducement  to  the voter himself within the frame of the definition.  In  other words  it  is the fact of payment to the third  person  that must  induce  the voter.  It is not enough  that  the  third person induces the voter.  The frame of any definition  more often  than not is capable of being made flexible.  But  the precision  and certainty in law requires that it should  not be made loose and kept tight as far s possible. [788A-B] Ghashi  Ram v. Dal Singh and others [1968] 3 S.C.R. 102  and Om  Prabha  in v. Abnash Chand & anr. [1968] 3  S.C.R.  111, followed. Abdull  Hussain mir v. Shamsul Huda & Anr. [1975]  3  S.C.R. 106 referred 784 in the instant case money was not paid to the respondent  as consideration for votes promised or as a bargain for getting votes  but  it  was money paid to him  to  retire  from  the contest and to do propaganda and persuade the voters to vote for  the  appellant.   In spite of the  propaganda  and  the appeal of the respondent no. 3 the voters were left free not to respond to his persuation. [790A]

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeal No. 16(NCE)  of 1973. From the Judgment and order dated the 11th December, 1972 of the Madhya Pradesh High Court in Election Petition No. 22 of 1972. G. L. Sanghi and D. N. Misra, for the appellant. S. S. Khanduja, for Respondent No. 1. S. K. Gambhir, for Respondent No. 2. The Judgment of the Court was delivered by UNTWALIA,  J.  There were three candidates  to  contest  the election to the Legislative Assembly of Madhya Pradesh  from the Bhainsdeshi Assembly (Reserved) Constituency in the last general  elections.   The  appellant in  this  appeal  under section  116A of the Representation of the People Act,  1951 hereinafter referred to as the Act, was declared elected  to the seat defeating the other two candidates who are  respon- dents  2 and 3. Respondent No. 1 filed an Election  Petition in  tile Madhya Pradesh High Court challenging the  election of  the appellant on serveral grounds.  The election of  the appellant  has been declared void by a learned single  Judge of the High Court on one ground only.  It has been held that he  indulged  in a corrupt practice within  the  meaning  of Section  123 (1) (A) (b) of the Act.  We shall  confine  the statement of facts in this case to the only ground on  which the appellant’s election has been set aside. Respondent  No.  1  stated in paragraph 6  of  his  election petition               "(iv)  That after the date of  withdrawal  the               respondent   no.1  himself  and  through   his               aforesaid agents and workers with his  consent

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             was vehemently trying to induce the respondent               no.3   to  support  the  candidature  of   the               respondent   no.  1,  and  declare  that   the               electors,  should not vote for the  respondent               no.3, but should vote for the respondent no.l.               (v)   That  the  respondent  no.1,   and   his               aforesaid agents and workers having failed  in               their attempt in inducing the respondent  no.3               from either standing withdrawing or  declaring               to  support the candidature of the  respondent               no.1, and the respondent no. 3, having started               his  election  campaign in  full  swing.   The               respondent no.1 apprehended that if respondent               no.3,  remains  in  contest then,  he  had  no                             chance   of   success.    Therefore he   made               determined efforts, to see that the respondent               no.3  makes an appeal to the electors  of  the               constituency  to the effect that the  electors               should 785               vote for the respondent no. 1 and should from:               voting in favour of the respondent No. 3,  and               withdraws from the contest.........."               (vii)   That   on   22-2-1972   at   Paratwara               respondent no.1 himself in the company of  his               agents and workers Shri N. K. P. Salve,  Shive               Bux  Singh  and Baboolal  Pathak  induced  the               respondent no.3 to support the candidature  of               the   respondent  no.1  and  offered  to   pay               compensation to respondent no.3 The respondent               no.3 agreed to support the candidature of  the               respondent no.1, and to publish a pamphlet  to               the  effect that the electors should vote  for               the  respondent no.1 and should  refrain  from               voting  the  respondent no.3.  The  respondent               no.1  offered  a  sum of Rs.  8,000/-  to  the               respondent ao.3 as compensation, which he  had               incurred in his election campaign. On  appreciation of evidence adduced before the High  Court, on the relevant issues it recorded the following findings "ISSUE NO.1 (a) The  respondent  no.1 (Kalya Singh)  asked  respondent  no.3 (Patiram)  on the night intervening 22nd and  23rd  February 1972  at  Paratwara  to withdraw from  the  contest  and  to support respondent no.l. Respondent no.1 also offered to pay Rs.  8,000/-  as compensation to respondent no.  3  for  the election experoes fill then incurred by him. ISSUE NO. 1 (b) The respondent no.3 agreed to support respondent no.1 and to issue  a  pamphlet requesting the voters to  vote  for  res- pondent no. 1. ISSUE NO. 1 (c) A sum of Rs. 4,000/- was paid in cash on 23rd February, 1972 by  respondent  no.1 to respondent no.3. A pronote  for  Rs. 4,000/- (Ex.  P-3) executed by respondent No. 1 in favour of Shiv  Darshan Singh wits also handed over by respondent  no. I  to respondent no. 3. It was also agreed that in case  the balance amount of Rs. 4,000/- was not paid by respondent no. 1,  respondent  no.  3 will hand over the  pronote  to  Shiv Darshan  Singh who will recover the amount  from  Respondent no.  I and pay to respondent no. 3. ISSUE NO. 1 (d) In the meeting held at Bhainsdeshi on 23rd February, 1972 it was  announced by respondent no. 3 that he now supports  the

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Congress.  The said meeting was also addressed by respondent no.1,  Shivbux Singh and Kawadkar.  They also announced  the withdrawal  from the contest of respondent no.3,  and  asked the electors to vote for respondent no.1 ISSUE NO. 1 (e) 706 The  pamphlet (Ex.  P-11) was distributed in the meeting  of 23rd February, 1972." Mr.  G. L. Sanghi, learned counsel for the appellant in  the first  instance submitted that on the face of the  peladings in  the  Election Petition as also on the findings  of  fact recorded  by  the  High Court it has gone wrong  in  law  in holding that the appellant was guilty of having indulged  in corrupt practice within the meaning of section 123 ( I)  (a) (b)  of  the  Act.   He reserved his  right  to  assail  the findings  by  taking  us through the evidence  in  case  his contention  in  law were not found to be sound.  Mr.  S.  S. Khanduja combated the argument put forward on behalf of  the appellant and relied upon a decision of this Court in  Abdul Husain  Mir  v.  Shamsul  Huda &  Anr.(1)  decided  on  20th December  1974 to which one of us (A.  Alagiriswami, J)  was party.   Mr.  S. K. Ghambir appearing  for  respondent  no.3 asked  us,  in the event of the appellant’s success  in  the appeal  to  exonerate the said respondent of the  charge  of having indulged in a corrupt practice within the meaning  of section 123(1)(B)(b) of the Act as found by the High  Court. Since the point of law urged on behalf of the appellant  was found  to  be  sound,  we did not  proceed  to  examine  the evidence in the case. We may state in condensed form the findings recorded by  the High  Court against the appellant in the background of  what was  pleaded  in the Election Petition.   The  appellant  by paying  a sum of Rs. 4,000/in cash and promising payment  of another sum of Rs. 4,000/- by execution of a promissory note made  respondent no. 3 to retire from the contest,  support, the candidature of the appellant find publish a pamphlet  to the effect that the electors should vote for him and not for respondent  no.3 Accordingly a pamphlet to that  effect  was published  and  distributed  in  a  meeting  held  on   23rd February,   1972  at  Bhainsdeshi  in  which   meeting   the withdrawal  from contest of respondent no. 3  was  announced and the voters were asked to vote for respondent no. 1.  The question for consideration is whether the findings aforesaid fit  in the frame of definition of "Bribery" in section  123 (1) (A) (b) of the Act.  The High Court has rightly  pointed out  that  the  case was not covered by  sub-clause  (a)  of Clause (A) as respondent no. 3 was not made to withdraw from being a candidate at the election. This view of the High Court is now squarely supported by the decision  of  this  Court  in Shri Umed  v.  Rai  Singh  and others(2) which had over-turned a contrary view taken in the case  of  Mohd.   Yunus saleem v.  Shiv  kumar  Shastri  and others(3).   We now proceed to read in full section 123  (1) (A) of the Act. (1) Bribery’, that is to say- (A)  any gift, offer or promise by a candidate or his  agent or  by any other person with the consent of a  candidate  or his  election  agent  of any gratification,  to  any  person whomsoever,  with  the  object, directly  or  indirectly  of inducing- (1) [1975] 3 S.C.R. 106.      (2) A.I.R. 1975 S.C. 43. (3) A.I.R. 1975 S.C. 1218. 787 (a) a person to stand or not to stand as, or to withdraw  or not to withdraw from being a candidate at an election, or (b)an  elector to vote or refrain from voting at an  elec-

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tion or as a reward to (i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature; or (ii) an elector for having voted or refrained from voting;" We  shall discuss the relevant law shorn of the addenda  and the  qualifying words in the above extract.  Payment of  any gratification by a candidate to any person not necessarily a person  mentioned in sub-clause (a) or an elector  mentioned in sub-clause (b) with the object of directly or  indirectly inducing  the person or an elector mentioned in  those  sub- clauses  will  make it a bribery within the meaning  of  the said  word.  It is significant to note from sub-clauses  (i) and  (ii)  of  clause (A)  that  post-facto  payment-of  any gratification as a reward will be bribery only if it is paid to the person or the elector mentioned in these sub-clauses. But  does  it  lead to the conclusion that  payment  of  any gratification  to  any person other than an elector  in  all circumstances  would  be  deemed to be with  the  object  of indirectly  inducing  an  elector to vote  or  refrain  from voting  at an election ? If money is paid to an  elector  to vote  for a particular candidate undoubtedly it is a  direct inducement to him to vote at an election.  If money is  paid to  a third person in which payment of money an elector  has got any direct or indirect interest and which induces him to vote at an election in favour of a particular candidate then also  the  inducement is brought about as a  result  of  the payment  of the gratification.  But the point of  difficulty may arise where any gratification is paid by or on behalf of a  candidate to a third person for procuring some  votes  of some  electors  who  may  be  under  his  (third   person’s) influence.   Whether in such a case the payment has got  any indirect  inducement to an elector to vote at an election  ? We   are  inclined  to  think  that  mere  payment  of   any gratification  to a third person for securing  or  procuring some  votes in favour of a particular candidate without  the establishment  of  any  nexus between  the  money  arid  the inducement to the voter will not be sufficient to prove that the voter is indirectly induced on account of the payment of gratification  to the third person.  The dictionary  meaning of  the  word  "induce"is to  "prevail  on,  persuade."  The gratification  must  have  some  connection  or  reflection, direct  or  indirect,  in persuading the voter  to  vote  or refrain  from voting at an election.  If the  inducement  to the voter is not caused by the payment of the  gratification to  a third person but by the persuasion or  influence  (not undue  influence)  of  such  third person  it  will  not  be possible  to  say that the gratification  had  any  indirect inducement  to the voter.  Payment of any  gratification  to any person to work or canvass at an election is outside  the ambit of the definition.  It will make little difference  if the  worker  or the canvasser on  payment  of  gratification promises  or indulges in tall-talk of securing or  procuring some 788 votes for a particular candidate.  If the inducement to  the voter is free from the shade or colour of the  gratification paid to the third person, then it will not be bribery.   If, however,  the  inducement  in a given case  is  coloured  or shaded by the payment of the gratification to a third person then it would be an indirect inducement to the voter himself within  the frame of the definition.  In other words  it  is the fact of payment to the third person that must induce the voter.   It is not enough that the third person induces  the voter.  The frame of any definition, more often than not, is capable  of  being  made flexible.  But  the  precision  and

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certainty  in law requires that it should not be made  louse and kept tight as far as possible. On  the  facts  found in this case respondent  no.  3  after having  retired  from the contest merely  canvassed  to  the voters some of whom may be his so called voters, to vote for the   appellant  Distribution  ’on  of  the   pamphlet   and announcement in the meeting held on the 23rd February,  1972 to that and did not transgress the limit and made the act an indirect  inducement  to  the voters to cast  vote  for  the appellant on account of payment of the gratification by  him to the third respondent. In  Ghasi  Ram  v. Dal Singh and others(1)  followed  in  Om Prabha  Jain v. Abnash Chand & Anr. (2) another decision  in the  same  volume  at  page  III,  it  was  pointed  out  by Hidayatullah J., as he then was, at page 110 "The money  was not  distributed among the voters directly but was given  to Panchayats  and the public at large.  It was to be used  for the  good of those for and those against the candidate.   No doubt they had the effect of pushing forward his claims  but that  was  inevitable even if no money was spent,  but  good administration  changed the people’s condition.  We  cannot, therefore,  hold  that there was any corrupt  practice.   If there was good evidence that the Minister bargained directly or  indirectly  for  votes,  the  result  might  have   been different but there was no such evidence." It would thus  be noticed  that  there  must be a  bargain  for  votes  either directly  with  the voters or  indirectly  through  some-one else.,  The voter may not be a direct party in  the  bargain but must be shown to have an indirect interest, in it. In Abdul Hussain Mir v. Shamsul Huda & Anr.(3) Krishna  lyer J.  in  his  judgment  delivered on his  and  on  behalf  of Sarkaria  J.  did not find the fact proved in that  case  to bring  it within the ambit of section 123(1) (A)  (b).   The third learned Judge (A.  Alagiriswami J.) did not record any finding  to  the contrary. Even so  while  interpreting  the scope  and  ambit  of  section 123(1)  of  the  Act  certain observations  were made in the majority judgment which  were pressed  into service by respondent No. 1 while  the  others were relied on by the appellant.  Accepting the argument  of Mr.  Garg (vide page 1995 of the cyclostyled copy issued  by the Supreme Court Bar Association) it was said "what the law aims at is a blow on the purchase of the franchise by direct or  indirect  methods.  You may buy influence  of  important persons  which  is  bad in morality but  not  yet  in  law." Another  passage  (vide page 1996 of the  cyclostyled  copy) which (1) [1968] (3) S.C.R. 102. (3)  [1975] 3 S.C.R. 106. (2)  [1968] (3) S.C.R. 111. 789 occurs  in that judgment runs thus : "The crucial  point  is the  nexus  between the gratification and  the  voters,  one being the consideration for the other, direct or  indirect.’ The  two  passages extracted above  squarely  supported  the contention  of the appellant.  While a few others which  are being  quoted  below were pressed into  service  by  learned counsel for respondent No. 1. The said passages at page 1995 are "If the candidate pays money to a V.I.P. of the locality  to use,  his  good offices and canvass votes for him, it  is  a borderline  case, but if the money is paid as  consideration for  votes promised to be secured by him using his sway,  it is  bribery even though indirectly exercised.  If the  Mulla had  been paid the money striking a bargain for getting  the votes-in his ambit of influence, it is electoral corruption.

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On  the other hand, if it is money received for the  purpose of  organising effectively the election campaign  by  hiring workers,  going round the places in car, meeting people  and persuading  them  to vote for the candidate,  it  is  proper election  expense.  In between these two extremes  lies  the case  of  a  man who just receives a  large  sum  of  money, pockets  it himself and promises to use his good offices  to secure votes.  This is a gray area.  We are not called  upon to  pronounce  on  it in this  case  ..................  The touchstone in all these cases of payment of gratification is to find out whether the money is paid in reasonable  measure for  work to be done or services to be rendered.   Secondly, whether  the  services as offered amount to  a  bargain  for getting  votes  or merely to do propaganda  or  to  persuade voters  to  vote  for the candidate, it being  left  to  the voters not to respond to the suasion.  It is a plain case if a voter is paid for his vote.  It is; direct.  It is equally plain  if  the  payment  is made  to  a  close  relation  as inducement for the vote.  The same is the case if it is paid to local chief on the under.standing that be will get  plead the  votes in his pocket borough, in consideration  for  the payment."  The third learned Judge in his separate note  did not  join  in  the  views expressed  in  the  passages  just extracted  above  from  the majority decision  and  said  "I consider  it, therefore, unnecessary to discuss  whether  if money is paid or offered as consideration for votes promised to be secured by a person using his influence it is  bribery or  not.  It is a good policy not to discuss in  a  judgment questions which do not arise out of the facts of the  case." The  observations of Krishna Iyer J., which were  relied  on behalf of respondent No. I may occasion a debate or  dispute if  in a given case the facts so warrant.  But it will be  a futile  exercise  to  do so in this  case  as  the  findings recorded against the appellant by the High Court are clearly outside  the observations relied on by respondent No. 1.  It was  not a case where money was paid to respondent No. 3  as consideration for 790 votes promised or as a bargain for getting votes.  It was  a money  paid  to  him to retire from the contest  and  to  do propaganda   and  persuade  the  voters  to  vote  for   the appellant.   In  spite of the propaganda and the  appeal  of respondent No. 3 the voters were left free not to respond to his persuasion.  In no view of the matter, therefore, it  is possible  to sustain the judgment of the High Court  holding the appellant guilty of corrupt practice within the  meaning of section 123 (1) (A) (b) of the Act.  That being so, it is plain  that respondent No. 3 also must be exonerated of  the charge levelled and found against him of bribery within  the meaning of section 123 (1) (B) (b). In  the result the appeal is allowed with costs  payable  by respondent  No.  1 and the judgment. and order of  the  High Court are set aside. P.B.R.                           Appeal allowed. 791