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PETITIONER: MOHD.  YUNUS SALEEM

       Vs.

RESPONDENT: SHIV KUMAR SHASTRI AND OTHERS

DATE OF JUDGMENT25/03/1974

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. BHAGWATI, P.N.

CITATION:  1974 AIR 1218            1974 SCR  (3) 738  1974 SCC  (4) 854  CITATOR INFO :  O          1975 SC  43  (18,27,33,35,38,39)  O          1975 SC1634  (5)  R          1984 SC1406  (9)  R          1989 SC1283  (5,15,18)  RF         1991 SC 101  (227)

ACT: Representation  of the People Act (43 of 1951),Ss.  30,116-A and  123(1)  (A)(a)--Election Commissioner if he  can  alter date   of   poll--Appreciation  of   evidence   by   Supreme Court--Bribe  for  withdrawal  after  the  date  fixed   for withdrawal--if corrupt practice.

HEADNOTE: A  parliamentary  constituency from which  election  to  Lok Sabha  took place in March 1971 consisted of  five  assembly constituencies.  The polling at two of them was scheduled to take  place on March 1, and at the other three on  March  3. 1971.  15th  March. 1971 was fixed as the last day  for  the completion  of the election.  The polling at the  first  two constituencies took place on March 1. 1971. but. on March 2, there was a communal riot as a result of which, the Election Commissioner   postponed  the  poll  at  the   other   three constituencies  from March 3 to March 9. After  the  polling took  place the first respondent was declared elected.   The appellant   filed  an  election  petition  challenging   the election  of the first respondent alleging  several  corrupt practices  against him, one of which was that on 6th  March. the  second respondent, who was one of the  candidates,  was induced to withdraw from the contest by the first respondent offering  to  recommend  him to a seat  in  the  legislative council  and  by  a financier offering him a  large  sum  of money;  and that the second respondent, though  he  declined the offers, did, in fact, withdraw.  He also contended  that the Election  Commissioner had no power to alter the date of poll at the remaining constituencies.  The election petition was dismissed by the High Court. in  appeal  to this Court, the first respondent  raised  the contention  that  even if the facts relating to  the  offers were  established, the first respondent would not be  guilty of the corrupt practice under s. 123(1)(A)(a), because,  the withdrawal  of the 2nd respondent was after the  date  fixed

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for withdrawal from being a candidate. Dismissing the appeal to this Court, HELD.(1)  The Election Commissioner had power to  alter  the date  of  the  poll  from 3rd March  to  9th  March  in  the remaining  constituencies.   Secs.  57 &  58  could  not  be invoked  by Election Commissioner for this purpose,  because they are applicable only in the circumstances specified  and in  the  manner provided, in those sections and s.  153.  on which  the  High  Court relied,  is  also   not  applicable, because it in terms provides only for extending the time for completion of election and not for altering the date of  the poll.   But s. 30 of the Representation of the  People  Act. read  with  s.  21  of the General  Clauses  Act  gives  the necessary  power to the Election Commissioner to  alter  the date of the poll. [742H; 743F-H; 744C-E-] (2) The amendment of the date of the Poll gets engrafted  in the  original  form  no. 1 in pursuance  of  the  subsequent notification made in valid exercise of the power under s. 30 of  the Representation of the People Act read with s. 21  of the General Clauses Act, and therefore, a fresh notification of  the date under r.3 of the Conduct of Election Rules.  in the requisite form, is not necessary. [744E-G] (3)  If  the  facts  regarding  the  offers  to  the  second respondent  had been established it would amount to  corrupt practice  within  the  meaning of s. 123(1)  (A)(a)  of  the Representation  of the People Act. (a) Bribery to  induce  a person  to  withdraw from being a candidate at  an  election amounts  to corrupt practice within the meaning of the  sub- section.   It  cannot  be  said  that  since  the  time  for withdrawal  of  candidature fixed for that  purpose  in  the appropriate  notification had already expired in  this  case there could be no withdrawal of  candidature after the date. When   s.123 (1) (A)(a)  speaks of withdrawal from  being  a candidate  it  is not limited to a condidate  who  has  been validly nomi- 739 nated  and who has withdrawn earlier according to law.   The expression  "to withdraw from being a Candidate"  cannot  be given  a restricted meaning and confined to the stage  where law permits a’ candidate to withdraw from the election.  For the  purpose of the section the words are of wide  amplitude to  include  subsequent withdrawal even at  the  last  stage prior to the poll. [746B-747C] (b)The omission of the words "retire from contest" from  the section  as it originally stood is not significant,  because the  dictionary meaning of the word withdraw’  includes  ’to retire  from the field or battle or any contest’, and it  is because   the  words  ’retire  from  contest’  have   become unnecessary   that  they  were  advisedly  deleted  by   the legislature. [746G-H] (c)  Since purity of elections is the most important  object of the Act, a narrow meaning to the word "withdraw" to refer only  to legal withdrawal under section 37 would defeat  the very  aim.  We have therefore, to give meaning to  the  word "withdraw" keeping in mind the object and scheme of the  Act with  a view to effectuate the intention of the  legislature to ensure purity in ,elections; else there will be an absurd position  where  actual withdrawal after the time  limit  by taking bribe will be free from the vice of corrupt  practice ,whereas that prior to it will not be so.  Such an intention cannot be attributed to the legislature from deletion of the words  "retire  from  contest".   The  word  "Withdraw"   is Comprehensive enough to also connote "retire from  contest". [747C-F] (4) On the evidence, however, it could not be held that  any

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corrupt  practice had been proved to have been committed  by the first respondent under s. 123(1) to (4) of the Act.   In the matter of appreciation of oral testimony in an  election dispute  this Court, in an appeal under s. 116-A, must  have convincing  and  clinching reasons to take a  contrary  view from that of the High Court.  It is not enough that  another view is merely possible on the oral evidence.  Strict  proof of  the allegations is Called for and the High Court has  in the  present  case  rightly  declined  to  accept  the  oral evidence  of  the appellant’s ,,side and  rightly  preferred that on the respondent’s side. [753A-E]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 282 of 1972. From  the judgment and order dated the 21st December,  1971, of  the Allahabad High Court in Election Petition No.  6  of 1971. A. Subba Rao and J. B. Dadachanji for the appellant. Hardyal  Hardy,  S.  S.  Khanduja and  S.  K.  Dhingra,  for respondent No. 1. L.  N. Sinha. Solicitor General of India and M.  N.  Shroff, for the respondent no. 2. The Judgment of the Court was delivered by GOSWAMI,  J. This election appeal under section 116A of  the Representation of the People Act, 1951 (briefly the Act)  by the   appellant,   Mohd.    Yunus   Saleem,   the   defeated Congress(R)candidate,   is  against  the  judgment  of   the Allahabad  High Court wherein he challenges the election  of the  B.K.D. candidate, Shiv Kumar Shastri (Respondent  No.1) to  the,  Lok  Sabha  from  the  76  Aligarh   Parliamentary constituency  in the general elections held in  March  1971. This  constituency consists of five Assembly  constituencies namely, 376-Aligarh, 377-Koil, 378-Iglas, 379-Khair and 380- Chandaus.  ’Mere 740 were seven candidates on the-run for the election from  this constituency.   The  poll was scheduled. to  take  place  in Aligarh  and Koil on March 1, 1971. and in Iglas, Khair  and Chandaus on March 3, 1971.  The polling. in Aligarh and Koil was completed peacefully on March 1, 1971 and the  appellant obtained the highest number of votes as will appear from the chart given below              367     377      378      379    380             City    Koil     Iglas  Khair  Chandaus Total ------------------------------------------------------------      Sarva Shri Amar Singh    205      559     603    760   868     3,995 Jagdish Gandhi 500   1,291   1,114   1,103  927  4,937 Pooran Singh    Malan     18,385  4,165     310     337  386    23,583 Mohd. Yunus  Saleem      44,422  25,228  17,134  19,372 18,030 124,186 Virpal Singh    622   1,240   1,026   1,254  1,320   5,462 Shiv Kumar  Shastri      4,719  16,260   42,281  53,240 43,012 180,313 Saheb Singh     558   3,170    1,653   1,671  3,076   6,958 On March 2, 1971 a communal riot between Hindus and  Muslims took  place  in  Aligarh city and as a result  of  this  the Election  Commission  on  receipt of reports  of  the  local authorities  at Aligarh postponed the poll in the  remaining segments  from  March  3, 1971 to March 9,  1971.   As  will appear  from the above chart, during the poll this  time  on March  9,  1971, the first respondent obtained a  very  high

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percentage  of  votes with the result that he  was  declared elected.   The 2nd respondent, although a Samyukt  Socialist Party  candidate  (SSP), was sponsored by the  four  parties alliance consisting of Jan Sangh, Swatantra, Congress led by Shri Nijalingappa, and Samyukt Socialist Party. The  appellant  alleges  several corrupt  practices  in  his election  petition  before the High Court  and  also  raises certain  question of law.  The Chief  Election  Commissioner has been impleaded as a respondent in this appeal.  The High Court  has repelled the contentions of the appellant We  are now concerned in this appeal with the following issues :--               Issue  No.  2  : "Whether  the  order  of  the               Election  Commission adjourning the poll  from               3rd   March   to   9th   March   was   without               jurisdiction and illegal" ?               Issue  No.  5 : "Whether  Pooran  Singh  Malan               (respondent No. 2) withdrew from the  election               on 6th March and asked ’his supporters to vote               instead for respondent No. 1. If so, was  this               done as a result of inducements offered at the               instance of respondent No. 1" ? 741               Issue No. 7 : "Whether voters were induced  by               threats  offered by Hukum Singh,  the  polling               agent  of respondent No. 1, to promise not  to               vote  for  the  petitioner  but  to  vote  for               respondent No. 1 (as detailed in paragraph  28               of the petition) " ?               Issue  No. 8 : "Whether respondent No.  1  and               Kalyan Singh, M. L.A. appealed to Hindu voters               in Gordha village on 7-3-1971 not to vote  for               the  petitioner  because he was a  Muslim  (as               detailed  in  para 29 of  the  petition);  and               whether similar appeals were made to voters by               respondent  No.  1 and  Prakash  Vir  Shastri,               Virendra Varma, Raghunath Singh and Ram Prasad               Deshmukh in Khair, Chandaus and Iglas  between               7-3-1971 and 9-3-1971 (as detailed in para  30               of the petition)" ?               Issue  No. 8A: "Whether respondent No.  1  and               the other persons named in paragraph 30 of the               petition   and   the  statement   of   further               particulars  made speeches in Khair,  Chandaus               and Iglas Tehsils alleging that the petitioner               was responsible for communal riots in  Aligarh               and other placer,, which statements were known               by them to be false" ?               Issue  No.  9 : "Whether  Virendra  Varma  and               Raghunath Singh appealed to Jat voters to vote               for respondent No. 1 on the ground that he was               the  candidate of a party led by  Shri  Charan               Singh   (as  detailed  in  para  30   of   the               petition)" ?               Issue  No.  10 : "Whether respondent  No.  1’s               election agent Yogendra Pal Singh and Virendra               Varma  and  Charan Singh appealed to  Jat  and               Thakur voters at Iglas on 7-3-1971 not to vote               for the petitioner as he was a Muslim and  not               to  allow Muslim, Jatav and Brahmin voters  to               vote (as detailed in para 34 of the petition)"               ?               Issue  No. 11 : "Whether at the  same  meeting               mentioned  in  para  34)  Yogendra  Pal  Singh               falsely  stated  that  the  petitioner  was  a               Razakar  of Hyderabad and had  instigated  the

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                           Aligarh riots" ?               Issue  No. 12 : "Whether respondent No. 1  has               committed  corrupt  practices  as  defined  in               clauses (1), (2), (3), (3A) and (4) of section               123 of the Representation of the People Act" ? The learned counsel for the appellant has firstly  addressed us  on the 2nd issue and we will, therefore, take  the  same first.   To appreciate the point in controversy, some  facts may be stated : The  Election  Commission published a  notification  in  the Gazette  of  India Extraordinary dated 27th  January,  1971, fixing  the following dates for the purpose of the  election under section. 30 of the Act February 3, 1971-The last date for making nominations. 742 February 4, 1971-The date for the scrutiny of nominations. February  6,  1971-The  last  date  for  the  withdrawal  of candidatures. Various  dates between March 1, 1971 and March  5,  1971-For holding  the  poll  in  different  constituencies  in  Uttar Pradesh. March 15, 1971-The date before, which the election shall  be completed. The  ;notification fixed March 1, 1971, for the poll in  the Aligarh  and Koil segments and March 3, 1971 in  the  Iglas, Khair  and Chandaus segments.  The learned counsel  for  the appellant  submits  that  the  Election  Commission  had  no jurisdiction  or  authority to alter the dates  fixed  under clause  (d) of section 30 in the aforesaid notification  ex- cept under circumstances mentioned in sections 57 and 58  of the  Act.  We may, therefore, first look at sections 57  and 58 of the Act.  Section 57 in terms provides for a situation when  the proceedings at any polling station in an  election are interrupted or obstructed by any riot or open  violence, or  if it is not possible to take the poll at  any  polling- station  on  account of any natural calamity, or  any  other sufficient cause.  Section 57 empowers the presiding officer or the returning officer to adjourn the poll to another date in  any  of  those  circumstances.   The  returning  officer under,sub-section (2) has to report the circumstances to the appropriate  authority and the returning officer next  fixes appropriate dates for poll with the previous approval of the Election Commission.  Under section 57(2) when the poll  has to be postponed after the same has commenced and voters have exercised  their  right  to vote for  some  time,  there  is provision  for fixing the hours during which the  next  poll shall be taken and there is a direction in this  sub-section not to count the votes cast at such election until such  ad- journed  poll  has been completed.  Section  57,  therefore, does  not  deal  with the direct exercise of  power  by  the Election  Commission  in altering dates of  poll  under  the conditions  specified in that section.  Section 58  provides for  a  contingency  where a ballot box used  at  a  polling station or at a place fixed for the poll is unlawfully taken out of the custody of the presiding officer or the returning officer,  or is accidentally or intentionally  destroyed  or lost  or is damaged or tampered with to such an extent  that the  result  of the poll at that polling  station  or  place cannot  be ascertained or any such error or irregularity  in procedure  is  likely  to  vitiate  the  poll  is  committed therein.  in  such  an event the returning  officer  has  to report  the  matter to the Election,  Commission  who  after taking all material circumstances into account has to take a decision to declare the poll void and appoint a day and  fix the  hours  for  taking a fresh poll  after  an  appropriate

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notification in that behalf.  The Election Commission  under this  section  may even decide against a  fresh  poll  after considering   the  various  circumstances  and  direct   the returning officer for the further conduct and completion  of the  election.   It  is, therefore,  clear  that  these  two sections can be invoked only in very specified circumstances and in the manner provided therein.  On the other hand,  our attention is drawn to two other sections, namely, section 30 and section 153 of the Act, which were 743 relied  upon  by the respondents in the High Court  and  the submissions  were  accepted there.  We may  read  these  two sections Section 30 : "Appointment of dates for nominations, etc.- As  soon as the notification calling upon a constituency  to elect a member or members is issued, the Election Commission shall, by notification in the Official Gazette, appoint-               (a)  the  last date  for  making  nominations,               which shall be the seventh day after the  date               of   publication   of   the    first-mentioned               notification  or,  if  that day  is  a  public               holiday, the next succeeding day which is  not               a public holiday;               (b)   the    date   for   the   scrutiny    of               nominations,   which   shall.   be   the   day               immediately following the last date for asking               nominations  or,  if  that  day  is  a  public               holiday, the next succeeding day which is  not               a public holiday;               (c)  the  last  date for  the-  withdrawal  of               candidatures,  which shall be the  second  day               after the date for the scrutiny of nominations               or, if that day is a public holiday, the  next               succeeding day which is not a public holiday;               (d)  the date or dates on which a poll  shall,               if necessary, be taken, which or the first  of               which  shall  be a date not earlier  than  the               twentieth  day  after the last  date  for  the               withdrawal of candidatures; and               (e)  the date before which the election  shall               be completed".               Section   153   :  "Extension  of   time   for               completion of election-               It   shall  be  competent  for  the   Election               Commission  for  reasons  which  it  considers               sufficient,   to  extend  the  time  for   the               completion of any election by making necessary               amendments  in the notification issued  by  it               under section 30 or sub-section (1) of section               39". The  High Court has held that "section 153 can be  construed as  declaring the competency of the Election  Commission  to extend  time  under  clause (d) as well  as  clause  (e)  of section  30".   We are unable to agree with the  High  Court that section 153 can be properly invoked in this case to the aid of the Election Commission in changing the dates of poll for  the  three remaining constituencies, specified  in  the notification under section 30(d) of the Act.  Section 153 in terms provides for extending "the time for completion of any election by making necessaryamendments in the notification issued by it under section 30.........Section 30 (e) deals with   "the  date  before  which  the  election   shall   be completed".   It is clear in this case, as set out  earlier, that the last date for completion of the election was  fixed by  the appropriate notification to be 15th March, 1971  and

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the altered date of poll in this case from 3rd to 9th  March is  within  the last date for completion of the  poll  under section 30(e).  Section 153, therefore. cannot 744 come,to the aid of the Election Commission to alter the date of poll, ’Is has been done in this case, as the said section is inapplicable to the facts and circumstances of this case. We  may, therefore, examine whether the Election  Commission has got power to alter the date of poll under section 30  of the  Act  read with section 21 of the  General  Clauses  Act which  is undoubtedly applicable in interpretation  of  the, provisions  of  the  Act.  We may read  section  21  of  the General Clauses Act               Section  21  : "Where, by any Central  Act  or               Regulation,  a power to  issue  notifications,               orders, rules, or bye-laws is conferred,  then               that  power includes a power,  exercisable  in               the  like  manner  and  subject  to  the  like               sanction  and  conditions if any, to  add  to,               amend,  vary  or  rescind  any  notifications,               orders, rules or bye-laws so issued". The  Election Commission in this case exercised power  under section 30 of the Act and issued the notification appointing the  various  dates  mentioned  therein  for  the   purposes specified.   Once this power is conferred under  section  30 upon  the Election Commission, the power to amend the  same, which  will include alteration of the dates of poll, can  be exercised  under  section  21 of the  General  Clauses  Act. There  is,  therefore, no merit in the contention  that  the Election  Commission had no power or jurisdiction  to  alter the  date of poll from 3rd March to 9th March, 1971, in  the remaining  constituencies  in this case.  Issue  No.  2  is, therefore, rightly decided by the High Court although we  do not   agree  with  the  High  Court  with  regard   to   the construction of section 153 of the Act.  In the view we have taken,  it  is  not necessary for  us  to  consider  whether Article,  324  can, be invoked in this case in aid  ox’  the power to alter the date of poll by the Election Commission. The  learned  counsel for the appellant  also  submits  that there  should have been a fresh notification of the date  in form No. 1 under rule 3, read with section 31 of the Act, of the  Conduct of Elections Rules 1961.  We are, however,  not impressed  by this submission as tile amendment of the  date of poll gets engrafted in the original form in pursuance  of the  subsequent notification dated 2nd March, 1971, made  in valid  exercise  of the power under section 30 of  the  Act, read with section 21 of the General Clauses Act. We now turn to issue No. 5 relating to the corrupt  practice of  bribery defined under section 123(1)(A)(a ) of the  Act, The  case of the appellant with regard to this issue  is  as follows :-               "At  about 7.00 P.M. on 6-3-1971 there  was  a               meeting  at  the Aligarh residence  of  K.  N.               Agarwal  (said to be one of the financiers  of               the  B.K.D. Party in the election), which  was               attended by Shiv Kumar Shastri (respondent No.               1),  Pooran  Singh Malan (respondent  No.  2),               Virendra Verma (Home Minister of the then  U.P               Government).  Surendra Kumar (another  alleged               financier  of the B.K.D. Party), and a  number               of  other persons.  One Atma Deo Sharma  stood               up and made an appeal to Shastri and Malan 745 that  only one of them should stand for election and  there- upon  Shastri,  Malan  and  Surendra  Kumar  went  into   an

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adjoining   room,  where  Surendra  Kumar  offered  to   pay Rs.30,000/- to Rs. 35,000/- to Malan if he ’ would  withdraw from  the  contest, while Shastri told Malan that  he  would recommend him for a seat in the Legislative Council. On this Malan  said that he had no need of money and as regards  the seat in the Council, that was for the future to decide,  but as  they were all asking him to withdraw, he  would  comply. The three of them then joined the others and Malan announced his  withdrawal  and requested his  supporters  to  transfer their allegiance to Shastri". Before we discuss the evidence, we may deal with a  question of  law  addressed  by Mr. Hardy, learned  counsel  for  the contesting  respondent.  According to the  learned  counsel, even assuming that any gratification was offered to Malan on 6th  March, 1971, to induce him to refrain front  contesting the  election, that would not amount to a, corrupt  practice within  the meaning of section 123(1)(A)(a) of the  Act.  We may, therefore, read that part of the section :               Section 123 : "Corrupt practices-The following               shall  be deemed to be corrupt  practices  for               the purposes of this 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  in-               directly of inducing-               (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;" The  allegation  in  the present case is that  an  offer  of gratification  was made to Malan to induce him "to  withdraw from  being  a candidate".  It is submitted that  since  the time  for  withdrawal of candidature had’  already  expired, there  can  be no withdrawal of candidature after  the  date fixed  for that purpose in the appropriate  notification  to come, within the mischief of section 123 (1) (A) a).  It  is further submitted’that even though he may not have taken any part  in  the  election  after the expiry  of  the  date  of withdrawal, he will remain a contesting candidate  thoughout the  election.   It is also pointed out that in  fact  Malan obtained votes in the election which was held on 9th  March, 1971 in various constituencies as will also appear from  the chart  given  above.   The learned  counsel  also  drew  our attention  to  the  earlier  law  on  the  subject  where  a provision under section 123(1) (a) stood as follows               "a  person to stand or not to stand as  or  to               with-draw from being a candidate or to  retire               from contest, at an election;" 746 Mr.  Hardy submits that the words "to retire  from  contest" are  omitted from the present section, which,  according  to him, is very significant.  He, therefore, submits that since Malan could not in law withdraw from the candidature on  6th March,  1971 and there is no question of retiring  from  the contest under the present law, no corrupt practice has  been committed within the meaning of section 123 (1 ) (A) (a). It  is well settled that election under the Act is from  the date of publication of the notification calling the election to  the date of declaration of the result of  the  election, both  days inclusive.  We have, therefore, a terminus a  quo and terminus ad quem under the law.  The word "candidate" is defined for Part VI (Disputes regarding Elections) and  Part

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VII (Corrupt Practices and Electoral Offences) under Section 79(b) and it means "a person who has been or claims to  have been  duty nominated as a candidate at any election and  any such person shall be deemed to have been a candidate as from the  time  when with the election in prospect, he  began  to hold  himself out as a prospective candidate".   Section  32 provides  for nomination of candidates for election.   Under section-36(8), "Immediately after all the nomination  papers have  been scrutinised and decisions accepting or  rejecting the  same  have been recorded, the returning  officer  shall prepare  a list of validly nominated candidates, that is  to say, candidates whose nominations have been found valid, and affix  it  to his notice boar&’.  Section  37  provides  for withdrawal of candidature within the time specified therein. Section  38 provides for publication of list  of  contesting candidates,, that is to say, candidates who were included in the  list of validly nominated candidates and who  have  not withdrawn  their candidature within the, said  period.   The word  "contesting candidate" as such is not defined  in  the Act,  but  the word "candidate" under rule  50(a)  and  rule 28(a)  of  the  Conduct  of Elections  Rules  1961  means  a contesting  candidate.   The question is whether  after  the time  for  withdrawal has expired and a list  of  contesting candidates  has been published, withdrawal  thereafter  from the contest on receipt of bribe will be within the  mischief of section 123(1) (A)(a). We have already set out the material portions of section 123 (1)  (A)  as  well  as the  earlier  section  to  which  our attention  has been drawn.  It is strenuously  submitted  by Mr.  Hardy  that  the omission of  the  words  "retire  from contest"  is  very  significant  and  the  legislature   now confines withdrawal under section 123(1)(A)(a) to the  stage as  envisaged  under  section 37 and  not  thereafter.   The Shorter  Oxford English dictionary gives the meaning of  the word  "withdraw"  (verb intransitive) to go away  or  retire from the field of battle or any contest.  Withdraw or not to withdraw,  therefore, includes "retire from contest" or  not to  retire  from  contest.   There  is,  therefore,  nothing -significant  etymologically  in the deletion of  the  words "retire  from contest".  When, therefore, section  123(1)(A) speaks  of  withdrawal  from being a candidate,  it  is  not limited  to a candidate who has been validly  nominated  and who  has withdrawn earlier according to law.  It is  because of  this reason that the words "retire from contest"  become unnecessary and were advisedly deleted by the legislature. 747 Again  looking from another angle, section 123 (1)  (A)  (a) has  got two stages; the first stage relates to  the  period when  even  before filing of nomination paper  a  person  is contemplating to stand or not to stand as a candidate in the election [see definition of candidate under section. 79(b)]. The  second stage is reached after filing of the  nomination paper when law gives a candidate requisite time to  withdraw from the candidature.  It is true that the words "to  retire from contest" in the   old provision are now deleted and the provision is recast by adding the words "not to withdraw" in addition  to-  the  words  "to  withdraw"  in  the   earlier provision.   We  are,  however,  unable  to  hold  that  the expression  "to  withdraw or not to withdraw" from  being  a candidate  has only a. restricted meaning to be confined  to the stage where law permits a candidate to withdraw from the election.   For  the purpose of section 123  the  words  "to withdraw  or not to withdraw" from being a candidate are  of wide  amplitude to include a subsequent withdrawal  or  non- withdrawal even at the last stage prior to the poll.

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We may also consider whether deletion of the aforesaid words makes  any difference under the scheme of the  Act.   "Since purity of elections is the most important object of the Act, a  narrow  meaning to the word "withdraw" to refer  only  to legal  withdrawal under section 37 would   defeat  the  very aim.   We  have, therefore, to give a meaning  to  the  word "withdraw" keeping in mind the object and scheme of the  Act with  a view to effectuate the intention of the  legislature to ensure purity in elections; else there will be an  absurd position  where  actual withdrawal after the time  limit  by taking bribe will be free from the vice of corrupt  practice whereas that prior to it will not be so.  Such an  intention cannot be attributed to the legislature from deletion of the words  "retire  from  contest".   The  word  "withdraw"   is comprehensive enough to also connote "retire from contest"." We  are,  therefore,. unable to accept the  submission  that even  if the facts alleged be established, there can  be  no corrupt  practice within the meaning of section 123 (1)  (A) (a) of the Act. We will, therefore, deal with the allegations to see how far they are. established on the evidence.  We have already  set out the allegations with regard to this issue and the  first respondent has denied all the allegations.  His case is that no  bribe was offered nor any promise. made to Malan and  in actual  fact  Malan did not withdraw from the.  contest  and continued  to fight the election to the end.   The  solitary witness  who claims to have been present when the  offer  of gratification  was  made is Devendra Pal  Singh  (P.W.  20). This  witness claims to have been one of the workers of  the first  respondent and indeed proposed Shastri’s  nomination. He,  changed  his  allegiance, from one  party  to  another, namely,  from  the B.K.D. to the Congress (R)  in  September 1971.   We are unable to hold that the High Court is  ’wrong in  not placing reliance upon his evidence.  The High  Court has   also   found  the   corroborating   evidence   equally unreliable.   Since we agree. with the appreciation  of  the evidence  of  the witness by the High Court with  regard  to this  charge, we may only briefly allude to the  other  evi- dence  to demonstrate its unreliability.  Radha Raman  Dhwaj Prasad  Singh  (P.W.  21)  was  examined  to  support  these allegations. He has been a B. K. D. worker since 1969 and he claimed also to be in that 748 party  on  the date (12-12-1971) he, gave evidence  for  the appellant.    He  admits  to  have  worked  for  the   first respondent in 1971 election.  Although he did not depose  to the  entire episode and did not go into the  room-where  the discussion  took  place  with regard to the  bribe  and  the promise  of  a  seat in the Council, he  stated  that  Malan announced  that he was withdrawing in favour, of Shiv  Kumar Shastri  and  told  his  workers to  see  that  Shastri  was successful.   He admits to have taken Joan from the  Aligarh Cooperative  Bank at a time when Devendra Pal Singh (PW  20) was  the  Chairman  of the Bank.  He has  not  received  any recovery notice.  This witness has also changed his loyalty, for reasons best known to him and cannot be considered as  a reliable  witness  in an election matter where one  may  not fail  to come across truth being sacrificed at the altar  of political  expediency.  Tile next witness is Shashi  Bhushan (P.W.  32).  He has been a Member of Parliament since  1967. He went to Aligarh on 7th March, 1971, to help the appellant in  his election.  He met Pooran Singh Malan on  7th  March, 1971, in Aligarh.  He asked him why he was withdrawing  from the  election  since  he  had read about  this  in  an  Agra newspaper called "Amarujwala", which, however, has not  been

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produced.   According to his evidence, Malan told  him  that the atmosphere had changed since the communal riots and  the grand  alliance which had been supporting him was no  longer supporting  him.  He further stated to this witness that  he had  been  promised  a seat by Shiv  Kumar  Shastri  in  the Legislative Council.  He further stated that he was going to a  meeting  of  Shastri to announce  his  withdrawal.   This evidence  is  absolutely  improbable in view  of  P.W.  21’s statement  that  Malan had announced his withdrawal  on  the previous  day,  viz., 6th March, 1971.  It is  not  easy  to comprehend  why Malan should have at all exposed himself  to unsavoury comments and other consequences by stating to this witness in the manner he is alleged to have done.  We cannot say  that the High Court has wrongly rejected the  testimony of  P.W.  32.  Another witness is Anand Pal  (P.W.  10)  who attended, according to him, certain meeting at Gordha  Bazar on  7th March, 1971.  He deposed to the effect  that  Kalyan Singh  was  addressing the meeting and  Kalyan  Singh  while addressing the meeting said, "he had got Pooran Singh  Malan to  withdraw", so that all Hindus could unite to vote for  a Hindu.   Shiv Kumar Shastri also repeated the  same  things. He said he was a staunch Hindu and they should vote for  him and  he  had got Malan to stand down".  It is  difficult  to believe  that the first respondent would expose  himself  in such  an open manner by stating in public that "he ’had  got Malan  to  stand down".  This was not ;it all  necessary  to state.  Such a serious charge cannot be established on  mere statement of this kind.  Gajendra Singh (P.W. 18) is another witness  to  depose about the withdrawal  of  Malan  amongst other  things.   He is a member of B.K.D. Party  and  was  a polling agent of Mrs. Gyatri Devi (wife of Sri Charan Singh) in  1967.  In 1971 Parliamentary election he worked for  the first  respondent  and  yet he went against  him  to  depose against his interest.. It is difficult to place any reliance upon such a witness land the High Court has rightly rejected his testimony.  Kishan Singh (P.W. 23) also deposed that  be was present in a meeting at Iglas on 7th March, 1971 and  be heard  Jogendra  Pal  Singh, election  agent  of  the  first respondent,  speaking in the meeting to the effect,  amongst other  things,  "that Malan had been made  to  withdraw  and votes should 749 now go to Shastri who was if Charman Singh’s party", This is not  at all direct evidence about the allegations which  are made by the appellant to support the charge.  Ram Das  Singh (P.W.  19) was also examined with reference to this  charge. His  evidence too is not direct on the point and  cannot  be held  to be at all helpful in establishing the  charge.   On the  side  of  the respondents, the  allegations  have  been denied by Virendra Varma (R.W. 7) and also by Mahendra Singh (R.W. 3).  In view of the nature of the evidence on the side of the appellant it is not even necessary to refer in detail to the respondent’s evidence. A  grievance  was  made  by  the  learned  counsel  for  the appellant  that  a petition was made by  the  appellant  for examination  of  additional  witnesses and  the  High  Court wrongly  rejected the same.  We find from the order  of  the High Court that the party had been warned that "any proposed addition  to  the  list  of  witnesses  would  have  to   be justified".   The High Court found that beyond  saying  that their names were left out "by inadvertence or oversight"  no other  sufficient  ground  was given  by  the  appellant  to justify  his  prayer.   We,  therefore,  do  not  find   any justification  for  the grievance on  this  score.   Another petition  was also filed by the appellant on 18th  November,

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1971, for examination of Pooran Singh Malan (respondent  No. 2) as a witness.  The High Court rejected the prayer on  the ground that his name did not figure in the list of witnesses supplied   on  9th  November,  1971.   Since  Malan   is   a respondent,  who  on the proof of the averments  could  have been  named  under section 99, the appellant cannot  make  a grievance  for rejection of his prayer.  It is not  possible for this Court to interfere with the discretion exercised by the learned trial Judge in a matter like this. We now come to issue No. 7. This issue is with regard to the corrupt practice of undue influence under section 123 (2) of the Act.  Tile allegations are that on 7th March, 1971,  two days  before  the  poll, the first  respondent  visited  the village of Sapera and after collecting a number of Hindus at the  chaupal of the Sarpanch, Hukum Singh, went, along  with them  to the Muslim quarter of the village and by  means  of threats  forced the Muslim voters of that place to swear  by the  Quran  that  they would vote for him and  not  for  the appellant  or  any other candidate.  After the  Muslims  had taken the oath, Shastri is alleged to have warned them  that if they did not act in accordance with the oath, they  would be in danger of divine displeasure.  The witnesses  examined by  the appellant for establishing this charge are  Raghubir Singh  (PW  II), Rafiq (PW 14) and Sheodan  Singh  (PW  15). These witnesses are residents of Sapera.  Both PWs 11 and 15 admit  that  they are supporters of the  Congress  and  were supporting  the Congress in the election but claim  that  on account  of  Shastri’s visit to the village  on  7th  March, 1971,  they  turned over to him.  Even then they  have  come forward to give evidence against Shastri in this case.   The High  Court  has given cogent reasons for  discarding  their testimony  and we are unable to take a contrary view.   P.W. 14,  Rafiq, is also undependable.  Although he  spoke  about the  swearing by the Quran at tile mosque, he did  not  know the  name  of the Mulla.  He has no opinion of his  own  and admitted that when asked by Shastri and others lie told that he would vote "as they directed".  Finally be did not go  to vote 750 on   the  day  of  poll.   Besides,  their  statements   are satisfactorily  rebutted  by  the  evidence  of  the   first respondent,  R.W. 1, Giraj Singh and R.W. 8 Hari Singh,  the polling  agent  of the first respondent.  We  are  satisfied that the High Court has correctly appreciated the  testimony of these witnessess with regard to this charge. We will now deal with issues Nos. 8, 8A, 9, 10 and 11. These   issues   are  interconnected  and  relate   to   the allegations made in paragraphs 29, 30 and 34 of the election petition.   They  refer  to a number  of  meetings  held  at various  places, namely, Gordha, Iglas, Jatari, Gaghana  and Beswa, on 7-3-1971 and 8-3-1971, at which speeches were made either  by  the  first  respondent  or  by  his  agents  and supporters.  Since we agree with the conclusions reached  by the  High  Court  with regard to the proof  of  the  various allegations, we do not propose to deal exhaustively with the evidence  and  only  make a brief reference  to  some  broad features. Meeting at Gordha : The  allegations  are that on 7th March,  1971,  in  village Gordha  in  the  afternoon at weekly  bazar,  Kalyan  Singh, M.L.A., addressed a huge Gathering in the following terms :-               "In  Aligarh  Muslims at the instance  of  the                             petitioner have chopped off the breast s of  the               Hindu   women   and  have   inflicted   bodily

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             injuries.   Now  I  ask  every  Hindu  who  is               present  in  this  gathering  :  Are  you   so               shameless to vote for a Muslim candidate ?" He               posed a question that you are the  descendants               of Shivaji and Rana Pratap and you should  see               that  the butcher miyan (i.e. the  petitioner)               is  defeated.   He  also said  that  for  this               purpose  only we got Shri Pooran Singh  Malan,               respondent No. 2, to withdraw his  candidature               so  that Hindu votes may not be divided and  a               Muslim candidate may not win the election". It  is further stated in paragraph 20 of the  petition  that "the  first  respondent  was  also  present  from  the  very beginning at the meeting and he also addressed the gathering supporting  Kalyan Singh and requested them to vote for  him as  he  was a Hindu and that they should not  vote  for  the petitioner  who was a Muslim butcher, whose members  of  the community  butchered  the innocent Hindus and  looted  their properties  in Aligarh city".  To establish the  charge  the appellant  examined Kesho Deo Haryana (PW 6),  Khacheru  Lal (PW  8),  Subedar Singh (PW 9) and Anand Pal (PW  10).   The first respondent examined himself (RW 14), Nem Singh Chauhan (RW 5) and Jaipal Singh (P.W 6).P. W. 6 (Kesho Deo Haryana) : He is a counting agent of the appellant and was working for him.  He is a  Congress (R)  worker.   He does belong to Gordha  village.   He  went there  for  propaganda work for the  appellant.   Though  he claims that he was present at the meeting held at Gordha  on 7th  March, 1971, and that offensive speeches were  made  by Kalyan  Singh  and the first respondent at the  meeting,  he deposed to the following effect 751               "I  sent no written report about the  speeches               to the authorities.  I made no written  report               to  any one.  I merely reported orally to  our               President... He made a note in a file". Such a file was not produced to corroborate his testimony.               P. W. 8 (Khacheru Lal) : He does not belong to               Gordha; his village is two miles from  Gordha.               He  states  that there is a Sunday  market  in               Gordha  and that he attended the meeting  held               there  on  7-3-1971.  He did  not  attend  any               other meeting.  He has further stated that  he               does   not  know  how  many  candidates   were               contesting  the  election.  He even  does  not               know   which   party   Pooran   Singh   Malan,               respondent No. 2, was representing, though  he               alleges that Kalyan Singh in his speech at the               said  meeting  inter alia, said  "he  had  got               Malan  to withdraw".  He could not  also  name               the parties whose representatives had gone  to               his  village  in connection  with  votes;  nor               could  he  give the name of any one  who  went               there to carry on propaganda. P.  W.  9  (Subedar  Singh) : He  states  that  he  attended meetings  at Kashipur Power House and at Nawala,  but  could not  remember  the  dates of these  meetings.   Although  he stated that only Bir Pal Singh made a speech at the Kashipur meeting, he could not reproduce what Bir Pal Singh had  said in  the course of his speech.  He gave the same  pattern  of evidence  with  regard to the Nawala meeting and  could  not give  any idea about the speech that Kesho Deo Haryana  made there.  He did not make any notes of the speeches at  Gordha meeting and did not report to any one about it. P.  W.  10 (Aand Pal) : He states that he  made  no  written

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report meeting. He   was  asked  by  Babu  Lal,   former Chairman  of  the Municipal Board of Aligarh and  an  active Congress (R) worker, to give evidence. He   gave  him   his ticket  at  the railway station and told him that  he  could stay in the Congress office. These  allegations have been denied by R. W. 14  (the  first respondent), R.W. 5 (Neem Singh Chauhan) and R.W. 6  (Jaipal Singh)  as  will appear from their evidence  which  we  have closely examined. Meeting   at Iglas The appellant’s case is that a meeting was held at Iglas  at the Jawahar Inter College at 8.00 A.M. on March 7, 1971.  He examined  Gajendra Singh (P.W. 18) and Ram Das  Singh  (P.W. 19),  Kishan Singh (P.W. 28) and Brij Lal Sharma (P.W.  31). P.Ws. 18 and 19 were the active workers of the B.K.D.  party yet  they  deposed that on hearing the  allegations  against Yunus  Saleem and the Muslims of Aligarh they changed  their minds and worked day and, night for the success of the first respondent.   Even  at  the time  of  giving  evidence  they claimed to be in favour of the B.K.D. party, yet came forwad to  give evidence against the successful  B.K.D.  candidate. Kishan  Singh  (PW 23) is a member of the  Aligarh  District Congress  Committee and claims to have gone to  the  meeting organised  by the rival party in order to find out what  was being said.  He, however, made no report about the  unlawful propaganda being carried on at this meeting to the election 752 authorities.  He was conscious that this meeting held within 48  hours of the time fixed for the closing of the poll  was an  illegal  one, yet he made no report to  the  authorities about  this.  Brij Lal Sharma (P.W. 31) is also a  supporter of the Congress (R).  Even he did not make any report to any one about what he had heard in the meeting.  The High  Court has  observed  that "the unreliability of  the  petitioner’s allegations  regarding  this alleged  Iglas  meeting  stands further  more  revealed  by  the  discrepancy  between   the testimony  of these witnesses and the details given  in  the statement of further particulars filed by the petitioner  on 26-8-71". It   is   also  disclosed  in   the   further particulars "that among those whoaddressed   the   meeting held in Igias at 8.00 P.M. on 7-3-1971 was Chaudhary  Charan Singh,  but  none  of four witnesses  deposes  to  Chaudhary Charan  Singh’s  participation in the meeting and  from  the statement  of  Brij Lal Sharma it is  clear  that  Chaudhary Charan  Singh did not attend it".  As against this, we  have the evidence of Ramesh Chandra (R.W. 10) and Virendra  Varma (R.W.  7)  who deposed denying  the  allegations.   Virendra Varma  (R.W.  7)  who was then the  Home  Minister  of  U.P. frankly  admitted that he had been to Iglas on  7-3-1971  in order  to meet the B. K. D. workers of those places and  not hold  any  public  meeting or  to  make  any  electioneering speeches.  The High Court has accepted his testimony and  we have  no reason to disagree with the conclusions reached  by the  High Court with regard to these allegations  being  not established against the first respondent. Meetings at Jatari, Gabhana and Beswa: It  is also alleged in the further particulars filed by  the appellant in the High Court on 26-8-1971 that a meeting  was held  at  Jatari at 10.00 A.M. on 7-3-1971.   The  appellant examined  Bed Vir Singh (P.W. 16) and Govardhan Singh  (P.W. 17) to establish the allegations with regard to the speeches made  by  Mahendra Singh (R.W. 3), Yogendra  Pal  Singh  and Virendra Varma (R.W. 7).  There was also another meeting  at Gabhana Village at 11.00 A.M. on 8-3-1971 at which  speeches were  said  to have been made by the  first  respondent  and

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Prakash  Vir  Shastri, General Secretary of the  B.K.D.  The appellant’s  witnesses with regard to this meeting  are  Raj Kumar  Singh (P.W. 24), Ombir Singh (P.W. 25), Chetanya  Raj Singh (P.W. 26) and Dev Dutta Bhardwaj (P.W. 29).  To refute allegations  made by these witnesses, the, first  respondent examined  himself  (R.W. 14), Jodh Pal Singh (R.W.  11)  and Raghunath Prasad Sharma (R.W. 12).  A meeting was also held, according to the appellant, in the village of Beswa on  8-3- 1971 at 12.30 P.M. at which Pooran Singh Malan, Yogendra Pal Singh and Virendra Varma are said to have made objectionable speeches.  Evidence was led by the appellant with regard  to this  meeting  by examining Radha Raman Dhwaj  Prasad  Singh (P.W. 21) and Harcharan Lal (P.W. 22).  Virendra Varma (R.W. 7) and Virendra Singh (R.W. 9) denied the allegations.   The first  respondent  also  produced  rebutting  evidence  with regard to each of these alleged meetings. We  have  examined  the evidence in regard to  each  of  the aforesaid   meetings.   The  High  Court  after  a   correct appreciation of the evidence 753 led  by  the  appellant  came to  the  conclusion  that  the evidence produced by the respondent has to be preferred  and held  that allegations and imputations alleged to have  been made  in these meetings were not established.  We have  been taken  through the evidence by the learned counsel  for  the appellant  and we are unable to hold that another view  with regard to the oral testimony of the appellant’s side is even possible  in  this case.  Although we have referred  to  the evidence  with  regard  to  two  meetings  earlier  in   the judgment, we do not propose to restate the evidence and  the improbabilities  again  since we are in  complete  agreement with  the  conclusions  with regard  to  all  these  charges reached by the High Court. In  view of the nature of the evidence led by the  appellant with  regard  to these meetings and its  refutation  by  the witnesses  of  the first respondent, we have  no  reason  to differ from the High Court’s conclusion that the allegations have not been established In  the  matter  of appreciation of  oral  testimony  in  an election dispute, this Court in an appeal under section 116A must  have  convincing  and clinching  reasons  to’  take  a contrary view from that of the High Court.  It is not enough that  another  view is merely possible to take on  the  oral evidence.  Strict proof of the allegations is called for and the  High  Court has, in our opinion,  rightly  declined  to accept the oral evidence of the appellant’s side and rightly preferred that of the respondent’s side.  We do not feel  at all  justified  in this case to take a contrary  view.   We, therefore,  hold that Issues Nos. 8, 8A, 9, 10 and 1  1  are correctly decided by the High Court.  We have no  hesitation to  bold that the election petition was  rightly  dismissed. As for Issue No. 12, it is a consequential issue and in  the view  we  have  taken in the  foregoing  discussion  it  was rightly  decided  against the appellant.  We  hold  that  no corrupt  practice has been proved to have been committed  by the  first respondent under section 123(1), (2),  (3),  (3A) and (45 of the Act. In the result the appeal fails and is dismissed with costs. V.P.S.                                Appeal dismissed. 754