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PETITIONER: RAJENDRA PRASAD JAIN

       Vs.

RESPONDENT: SHEEL BHADRA YAJEE & ORS.

DATE OF JUDGMENT: 28/02/1967

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA WANCHOO, K.N. BACHAWAT, R.S.

CITATION:  1967 AIR 1445            1967 SCR  (3)  19

ACT: Election Petition-Bribery and offer of bribery alleged-Facts which  court  can take into  consideration--offer  of  bribe whether must be of specific amount to be corrupt practice. Letters Patent-Difference among Judges constituting Division Bench-Reference  whether  can  be made to  a  single  Judge- ’Bench’ whether includes single Judge.

HEADNOTE: Respondent No. 1 challenged the election of the appellant to the  Rajya Sabha on the alleged ground of  corrupt  practice consisting  of  bribery as well as offer  of  bribery.   The Tribunal held that both the above mentioned types of corrupt practices were proved against the appellant.  The High Court upheld the order of the Tribunal holding only that offer  of bribe  in two cases was proved.  The appellant came to  this Court  with  certificate.  It was urged that  (i)  when  the Division  Bench  which  originally  heard  the  appeal,,  on difference  arising among the Judges constituting it,  asked for  a reference to another bench, the Chief Justice had  no power  under  Art.  28 of the Letters Patent  to  refer  the matter to a single Judge, (ii) this Court should examine the evidence as to offer of bribe to certain persons for itself, as the High Court had misread the evidence and bad relied on certain  irrelevant  pieces  of evidence,  (iii)  the  facts proved  did not justify a finding that bribe was offered  by the appellant.  HELD  :  (i)  Under  Art. 28  of  the  Letters  Patent  the reference of the case to a single Judge was competent.   The word ’Bench’ in the Article includes a single Judge. [21 H]  (ii)     In considering the allegations of bribery  against the   appellant  the  court  was  entitled  to   take   into consideration the fact that the appellant was a man of means and  that he had no political background in Bihar  where  he did  not have a permanent residential house.  There  was  no misreading of the evidence by the High Court and no case had been  made Out for a re-appraisal of the findings. [23  B-C, H] (iii)     The  proposition cannot be accepted that an  offer of  bribery  cannot  be held to be such  unless  a  specific amount is mentioned in the offer. [27 D]

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Emperor v. Amiruddin Salebhoy Tyabjee, A.I.R.1923  Bom. 44,Emperor v. Choube Dinkar Rao & Ors. A.I.R. 1933 All. 513. In  the  matter  of  Balls  v.  The  Metropolitan  Board  of Works,(1865-66) 1 Q.B. Cases 337.  Mohan Singh v. Bhanwarlal JUDGMENT: Goel, A.I.R. 1964 S.C. 364, distinguished.  Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram &  Ors. [1954] S.C.R. 817, Case No. XII of Borough of  Staleybridge, (1869)  1 O’Malley and Hardcastle p. 66 and Case No.  XV  of Borough of Coventry, (1869) 1 O’Malley and Hardcastle p. 97. relied on. 20

& CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1454  of 1966. Appeal  from the judgment and order dated March 3,  1966  of the Patna High Court in Election Appeal No. 3 of 1965. Veda  Vyasa, K. K. Jain and R. Gopalakrishnan, for  the  ap- pellant. K. P. Varma and D. Goburdhun, for respondent No. 1. The Judgment of the Court was delivered by. Bhargava,  J.  In 1964, there were eight  vacancies  in  the Rajya  Sabha  for which members had to be elected  from  the constituency  of  the Legislative Assembly  of  Bihar.   The election was to be held on 26th March, 1964. it appears that the  Congress Party put up 6 candidates out of the total  of 13 candidates who were nominated for these eight  vacancies. Two of the candidates withdrew after scrutiny of  nomination papers and, consequently, for the actual election there were 6 Congress candidates and 5 others.  Amongst these 5  others was  the appellant Rajendra Prasad Jain who was standing  as an  Independent candidate.  One of the  Congress  candidates was  respondent  Sheel  Bhadra  Yajee.   At  the   election, Rajendra  Prasad  Jain was declared as one  of  the  elected candidates,   while  respondent  Sheel  Bhadra   Yajee   was unsuccessful.   Respondent No. 1, Sheel Bhadra  Yajee,  then filed  an election petition challenging the election of  the appellant to the Rajya Sabha.  The main ground for challenge was  that the, appellant had committed the corrupt  practice of  bribery  or  offer of bribery in  order  to  secure  his election.   In  the election petition as  originally  filed, Schedule  I contained the names of five persons to whom,  it was alleged, bribe had actually been paid by the  appellant. Schedule  II  contained the names of five  persons  to  whom bribe  had been offered by the appellant.  By  a  subsequent amendment,  three fresh names were added in Schedule  I  and five  in Schedule 11.  The amendment having been allowed  by the  Election  Tribunal, the petition, at the stage  of  the trial,  contained allegations of payment of bribe  to  eight persons and of offer of bribe to ten persons.  In the actual trial, however, evidence was not tendered in respect of some of  these  allegations.  The Election Tribunal,  after  full trial  of  the  petition, held that  respondent  No.  1  had succeeded in proving that the appellant had given bribes  to three  of  the  persons mentioned in  Schedule  II  and  had offered bribe to four persons mentioned in Schedule II.  The appellant appealed to the High Court at Patna.  In the  High Court,  when the appeal was heard by a Division  Bench,  one member  Mahapatra, J., held that none of the allegations  of payment  of bribe or of offer of bribe had been  proved  and was  of the view that the appeal should be allowed  and  the election  petition  dismissed.  The other  member,  Ramratna

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Singh, J., agreed with 21 Mahapatra,  J. with regard to the three instances of  giving bribe to the three persons mentioned in Schedule I and  also with  regard  to the offer of bribe to two  of  the  persons mentioned  in Schedule II. With regard to two  instances  of offer of bribe in Schedule 11, he disagreed with  Mahapatra, J.  and upheld the decision of the Election  Tribunal.   The two  persons  in  whose cases the offer of  bribe  was  held proved by Ramratna Singh, J. were Shah Mustaq Ahmad and  Ram Narain  Choudhary  who  were  both  members  of  the   Bihar Legislative  Assembly  and belonged to the  Congress  Party. Owing to this difference of opinion, the two learned  Judges directed that the case may be placed before the Hon’ble  the Chief  Justice for reference of the point of  difference  to another  Bench under Art. 28 of the Letters  Patent.   Under the  directions  of the Chief Justice, the  appeal  came  up before U. N. Sinha, J., who, in both cases, agreed with  the view  taken  by  Ramratna Singh, J.  and,  consequently,  in accordance  with  the  view  of  the  majority,  the   Court ultimately  dismissed the appeal holding that the  offer  of bribe  by the appellant to Shah Mustaq Ahmad and Ram  Narain Choudhary had been proved.  The appellant has now come up in appeal to this Court under certificate granted by ,the  High Court at Patna against this judgment of that Court. In  his  appeal, three points were urged by Mr.  Veda  Vyas, learned  counsel for the appellant.  The first  question  of law  raised  was that the Division Bench of the  Patna  High Court,  which first heard the appeal, made a direction  that the  case  is  to be placed before  the  Chief  Justice  for reference  of  the point of difference  to  another  "Bench" under  Art. 28 of the Letters Patent and, consequently,  the reference made subsequently by the Chief Justice to a single Judge  was not competent.  It was urged that the use of  the expression "another Bench" in the referring order meant that the case had to be laid by the Chief Justice before a  Bench of two or more Judges and not before a -single Judge.  There are two reasons why, in our opinion, this submission has  no force.   The  first  is that the word "Bench"  used  in  the referring   order  cannot  be  interpreted  as   necessarily indicating  that  the case must be laid before two  or  more Judges.  In this connection, the language of Rule I (xi) and r.  3 of Chapter 11 of the Rules of the High Court at  Patna is  significant.   Under r. 1(xi), a case under  the  Indian Companies  Act  is to be heard by a single Judge; and  r.  3 indicates  the  nature  of one of the orders  which  can  be passed  by a Bench hearing the case under r. 1 (xi).   Thus, in  r.  3 of the Rules of the High Court at Patna  itself  a single  Judge  is referred to as a Bench.  In  fact,  it  is well-known that, when referring to Judges of the High  Court sitting  to decide a case, the expressions  frequently  used are Single Bench and Division Bench.  The word "Bench"  used in  the referring order, even in its  ordinary  connotation, would, therefore, include a single Judge.  The second aspect is that the order of reference mentions that the case 22 is  to be placed for reference under Art. 28 of the  Letters Patent.  Article 28 of the Letters Patent lays down that, in such  circumstances,  the case is to be referred to  one  or more of the other Judges of the High Court.  This  reference to  Art. 28 of the Letters Patent also thus  clarifies  that under  the  order of reference made by  the  Division  Bench which  first heard the appeal, the case was intended  to  be placed before the Chief Justice for reference to one or more of the other Judges of the Court.  Further, under the  Rules

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of  the.   High Court at Patna, the Chief  Justice  had  the discretion to decide whether a case placed before him  under Art.  28 of the Letters Patent should be heard by one  Judge or more Judges than one, and this power of the Chief Justice was actually -exercised when, in this case, he directed that the case be laid before U. N. Sinha, J. The reference to  U. N.   Sinha,  J.  and  his  decision  were,  therefore,   not incompetent. The second point urged by learned counsel was that the find- ing  recorded  by  the  High Court of  Patna  that  the  two instances of offer of bribe by the appellant to Shah  Mustaq Ahmad a.-id Ram Narain Choudhary were proved was  incorrect. lie urged that we should go into the merits of this  finding on  the ground that at leas’ one of the Judges who  recorded that finding, viz., Ramratna Singh, J., had misread evidence and  had  taken into consideration irrelevant  matters.   He pointed  out to us that Ramratna Singh, J., had held  at  p. 454  of the Paper-book that "it is true that P.W. 2 did  not disclose  the  names  of  P.Ws. 9 and  14  to  Yajee  before September  or October, 1964, but the non-dis.closure of  the names  of persons to whom he had spoken about  the  incident when the first talk with Yajee took place is not  material." P.W.  2 was Ram Narain Choudhary who was one of the  persons to  whom  bribe  was alleged to have  been  offered  by  the appellant,  and P.Ws. 9 and 14 were two persons examined  to corroborate  him.   Respondent Yajee, in the  trial  of  the election petition, did not disclose the names of P.Ws. 9 and 14 to the Court when he gave the first list of his witnesses in October, 1964, and it was from this circumstance that the learned Judge drew the inference that the names of these two persons had not been disclosed by P.W. 2 to respondent Yajee before September or October, 1964.  Learned counsel  pointed out  that  Yajee had admitted that the names  of  these  two witnesses had been disclosed to him in September, 1964.  It, however,  appears  that it cannot be held that  the  learned Judge committed an error of misreading evidence if he  chose not  to  rely on this admission of Yajee and  preferred  the evidence which showed that the names of these two  witnesses had  not been disclosed to him before September or  October, 1964.  This may be at best a question as to the weight to be attached to different pieces of evidence and cannot be  held to be art instance of misreading of evidence. 23 As  regards  the  second aspect of  reliance  on  irrelevant evidence  by  Ramratna Singh, J., it was urged that  in  his judgment  at  p. 444 of the Paper-book lie referred  to  the fact that the appellant is a man of means and that he had no political  background  in  Bihar where he  did  not  have  a permanent residential house.  It was urged that these  facts were totally irrelevant to the charge of giving or  offering of  bribe in order to secure his election.  We fail  to  see how  it can be held that the fact that the appellant had  no political  background  in Bihar and was a man  of  means  is irrelevant.    These  considerations  could   certainly   be relevant  for  holding  whether it  was  probable  that  the appellant  would offer bribes or give bribes to  secure  his election.  Obviously, a person who had no means at all could not possibly offer bribes or give bribes inducing voters  to vote  for  him,  and  the fact  that  he  had  no  political background  could  easily be the reason  why  the  appellant might  have resorted to this corrupt practice  for  securing votes.  Reference was also made to a part of the judgment at p. 451 of the Paper-book where the learned Judge held that a candidate  who wanted to bribe a voter would at  first  send some feeler before making the offer; but there was not  much

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time   left,  as  the  allotments  to   different   Congress candidates were made by the leader of the party only on  the 24th  or  25th March and election was to take place  on  the 26th  March.  It was urged on behalf of the  appellant  that this  reference  to  the  allotment  to  different  Congress candidates was irrelevant.  We are unable to find any  force in this submission.  It appears that the system was that the members  of  the  Congress Party in  the  Bihar  Legislative Assembly  were  divided into six groups and each  group  was asked  to  vote for a particular candidate.   This  was  the allotment   referred   to  by  the  learned   Judge.    This circumstance  is quite relevant, because it is obvious  that another  candidate seeking to bribe a voter of the  Congress Party  would  only  approach that voter who  may  have  been allotted  for voting to a candidate whom he did not like  or whom,  for  some  other  reason, he would  not  be  keen  to support,  while it would be futile to approach a  voter  who had  been asked to vote for a candidate with whom he was  on friendly  terms or whom he was himself keen to support.   It cannot  be said in these circumstances that  any  irrelevant material was taken into account by the learned Judge at this stage.   We cannot, therefore, hold that there was any  such misreading  of evidence or admission of irrelevant  evidence which  would  justify our reopening findings of  fact  which have been concurrently recorded by the Election Tribunal  at the  stage  of trial and by the High Court at the  stage  of appeal.   Consequently, we reject the suggestion of  learned counsel that we should for ourselves go through the evidence and  re-examine  on  merits, after  weighing  evidence,  the concurrent finding of fact that the appellant was proved  to have  offered  bribes to Shah Mustaq Ahmad  and  Ram  Narain Choudhary. 24 The  last and the third point urged by learned  counsel  was that,  even on findings of fact recorded by the High  Court, we must hold as a question of law that there was in fact  no offer of bribe by the appellant.  This argument was urged on the  basis that the finding recorded did not show  that  any specific  amount was offered as bribe to either Shah  Mustaq Ahmad  or Ram Narain Choudhary.  In the case of Shah  Mustaq Ahmad,  the finding is that the appellant had said to him  : "In  your election a lot of money is spent  and,  therefore, take some money from me and cast your first preference  vote in  my favour." In the other case of Ram  Narain  Choudhary, -the significance of the offer is very clear when the actual words  in Hindi used by the appellant are considered.   They were as follows :-               "Is  Par  Jain Saheb Ne Kaha Ki  Apko  Bhi  To               Election Men Kharch Burch Hua Hoga. Isliye Ham               Upko Kuchh Seva Karna Chahete Hain.  Ap Hamare               Madad Kijiye." It is true that in these words there was no direct offer  of giving  money, but the language used clearly indicated  that the  appellant  was  offering his services in  the  form  of contribution  towards  the  expenditure  which  Ram   Narain Choudhary  had  incurred in his own election  to  the  Bihar Legislative Assembly.  In both cases, therefore, it is clear that an offer of payment of money was made by the  appellant to these voters to induce them to cast votes for him in  the election to the Rajya Sabha. Learned counsel, however, urged that as long as no  specific amount was offered by the appellant, there was, in fact,  no offer  of bribery.  According to him, it was still  a  stage when an intention of offering bribery was expressed, but  no offer of bribery was actually made.  An offer, it was urged,

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must  be  held  to  be made only  when  a  specific  sum  is mentioned as the amount of bribe to be given and there is to be  no  negotiation about the amount.  In  this  connection, learned  counsel drew our attention to the meaning given  to the word "offer" as explained in Halsbury’s Laws of England, 3rd Edn., Vol. 8, at p. 69.  Halsbury, at that stage,  deals with  the meaning of the word "offer" as used in  connection with the law of contract; and we do not think any assistance can be taken from the principle laid down therein.  He  also made  a  reference  to some Indian cases  dealing  with  the meaning of the word "offer" in connection with the offer  of bribery under the Criminal Law.  The case mainly relied upon was  Emperor  v. Aminuddin Salebhoy  Tyabjee(1),  where  the accused  was  alleged to have used the words  :  "my  cousin wishes  to give you Rs. 5,000" to a government servant.   It was  held  that these words did not constitute an  offer  of bribery.  We do not think that that case is (1)  A.I.R. 1923 Bom. 44. 25 at all parallel with the case before us.  In that case,  the accused himself did not offer any bribe and all that he  did was  to indicate to the government servant that  his  cousin wanted  to  give to the government servant the  sum  of  Rs. 5,000.   There was, thus, no direct offer by the accused  of bribery to the government servant. In  Emperor v. Choube Dinkar Rao and Others(1),  Dinkar  Rao accused  admitted that he went to a Judge and told him  that the plaintiff would pay Rs. 10,000 if the suit were decreed, but denied. that he had gone on behalf of the plaintiff Once again,  that was a case where there was no offer of  payment of  any motley by the accused to the Judge.  In the  instant case, the words used by the appellant clearly amounted to an offer to give money himself to the two voters. Similarly, we do not think that any assistance can be  taken from the decision of Blackburn, J. in In the Matter of Balls v. The Metropolitan Board of Works(2), where it was held  in connection  with  compensation for land that "the  offer  of compensation is to be an offer which the claimant can either accept  or reject; if it is of one sum for compensation  and costs,  the claimant cannot know how much he is to have  for the  injury  to his land and how much for  his  costs.   ’He might, therefore, be misled by it,-.", That was again a case where -the point which came up for consideration before  the learned  Judge  related to offer of  compensation  for  land which would be in the nature of an offer in connection  with a contract and not an offer of bribe under the election law. Reliance was also placed on the view expressed by this Court in  Mohan  Singh  v. Bhanwarlal  and  Others(8),  in  which, dealing  with gratification under the Election Law,  it  was held  :  "Gratification in its  ordinary  connotation  means satisfaction.   In  the context in which the  expression  is used, and its delimitation by the Explanation, it must  mean something valuable which is calculated to satisfy a person’s aim,  object  or  desire,  whether  or  not  that  thing  is estimable  in  terms of money; but a mere offer to  help  in securing  employment  to a person with a  named  or  unnamed employer  would not amount to such gratification." We  again fail  to see how that decision affects the point before  Rs. In  that case,. all that was held was that a mere  offer  of help  in  securing employment with another person  does  not amount  to gratification., In the case before us, the  offer was  clearly in respect of money and, if accepted, it  would naturally satisfy the voter’s desire to acquiremoney. (1)  A.I.R.  1933 All. 513.     (2) (1865-66) 1  Q.B.  Cases 337.

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(3) A.I.R. 1964 S.C. 1366. L4SupGI/67-3 26 Reference  was  also made to the decision of this  Court  in Union of India v. H. C. Goel(1), where it was held that  the respondent  had  taken  out a hundred rupee  note  from  his wallet  in the presence of a government servant whom he  had approached  in connection with his work, and the  government servant  showed  his  stem  disapproval  of  this   conduct, whereupon  the respondent said ’No" and put the wallet  with the  note in his pocket.  The facts in that case  were  also clearly  different, because all that was held by this  Court was that the mere taking out of the note from the wallet did not  amount to an offer, while, in the case before  us,  the finding was that there was a clear offer to give money. In  this  connection, we may refer to the decision  of  this Court in Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram and  Others where the Court had to consider existence  of  a contract  _for supply of goods in connection  with  deciding the  disqualification of a candidate as set out in S. 7  (d) of  the Representation of the People Act, 1951.  The  Court, in  dealing  with  this  aspect,  distinguished  between   a contract for purposes of the Contract Act and a contract for purposes  of  the  Election  Law.   In  our  opinion,   when considering  the scope of the words "offer ,of  bribery"  in the Election Law, we should not place a narrow  construction on  that expression.  In fact, the scope of that  expression should  be extended in order to ensure, that  elections  are held in an atmosphere of absolute purity, and a wide meaning should be given to the expression "offer of bribery". In Case No. XII of Borough of Staleybridge(3), Blackburn, J. had to deal with the question of interpreting the giving  of bribery  under the election law then prevalent  in  England. At  that  time,  the  offer of a bribe  was  not  a  corrupt practice under the law there, and yet Justice Blackburn said that:  "There  can be no doubt that a promise  or  offer  to cause a workman or other person to be no loser by his coming to  vote comes within the meaning of the Act, and is an  act of  bribery and corruption.Thornley and  Vaughan  distinctly offered and promised two voters that they should have  their day’s  wages  paid them if they would come and  vote.   That amounted  to  an  act of bribery on the part  of  those  who accepted it, and on the part of those who offered it." In Case No. XV of Borough of Coventry(4), it was said  "With respect  to bribery, as well as with respect to treating,  I shall  ever  hold  it to be a wise and  beneficial  rule  of constitutional  law, quite apart from the 17 & 18  Viet.  c. 102, that for the purpose of securing purity and freedom  of election,  candidates should be answerable for the  acts  of their agents, as well as for their own (1)  A.I.R. 1964 S.C. 364. (3)  (1869) I O’ Malley and Hardcastle p. 66. (4) (1869) 1 O’Malley & Hardcastle p. 97. (2) [1954] S.C.R. 817. 27 acts", and proceeding further, with regard to mere offers of bribe, it was said : "Although these cases have been classed below  those  of  bribery by both the  learned  counsel,  it cannot  be supposed that an offer to bribe is not as bad  as the  actual  payment  of  money.  It  is  a  legal  offence, although  these  cases  have  been spoken  of  as  being  an inferior class by reason of the difficulty of proof from the possibility  of people being mistaken in their  accounts  of conversations  in which offers were made; whereas there  can be  no  mistake  as  to the actual  payment  of  money."  In

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England,  thus,  the  law relating to  corrupt  practice  of giving  bribery was extended to include offers  of  bribery, though  it was held that stricter proof of offer of  bribery should  be  insisted  upon on the ground that  there  was  a possibility of misunderstanding.  In the case before us, the offer  was  in  such  clear terms that  there  could  be  no misunderstanding.   In both cases, and particularly  in  the case of Shah Mustaq Ahmad, the offer was of money to be paid in  order to secure the votes.  We are unable to accept  the proposition  suggested by learned counsel that an  offer  of bribery  cannot be held to be such unless a specific  amount is mentioned in the offer.  No such requirement is laid down by law, and if we were to accept this proposition, it  would lay  the  field open for corruption in such a manner  as  to make  the provision totally ineffective.A candidate  wanting to secure a vote by bribery can always go    and  first  ask the voter whether he is prepared to accept money as a  bribe and need offer a specific sum only after the voter has sign- ified  his  assent.   Once the voter  actually  accepts  the offer,  it is not likely that evidence of that  instance  of bribery  will be available.  The mere fact that a  candidate goes  and  offers some money is enough to show that  he  has already  made his offer to corrupt the voter and secure  his vote,  though  there  may still be a  possibility  that,  if subsequently the negotiations as to the precise amount to be paid  as  bribe  fail, he may not actually  succeed  in  his objective.   The  offer of bribery in the manner  proved  in this   case,   in  our  opinion,   clearly   satisfies   the requirements  of  section 123 of the Representation  of  the People  Act.  The decision of the High Court upholding  that of  the Election Tribunal setting aside the election of  the appellant to the Rajya Sabha was, therefore, right and  must be upheld.  The appeal fails and is dismissed with costs. G. C.                              Appeal disimissed. 28