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PETITIONER: RAM SHARAN YADAV

       Vs.

RESPONDENT: THAKUR MUNESHWAR NATH SINGH AND ORS.

DATE OF JUDGMENT30/10/1984

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA MUKHARJI, SABYASACHI (J)

CITATION:  1985 AIR   24            1985 SCR  (1)1089  1984 SCC  (4) 649        1984 SCALE  (2)687  CITATOR INFO :  F          1985 SC 236  (64)  RF         1986 SC   3  (118,119,153,222)  C          1991 SC2001  (5,24)

ACT:      Representation of  the People  Act, 1951,  Section  123 (2)-Corrupt Practice  and undue  influence in  election law. standard of  proof required-Interference  by  Supreme  Court under Article  136 of  the Constitution,  in election  case, when permissible and when benefit of doubt can be given.

HEADNOTE:      Ram  Sharan   Yadav,  the  appellant  and  a  candidate sponsored by  the Communist  Party of  India,  was  declared elected on 16.6.1977, to the Bihar Legislative Assembly from 241-Goh Assembly constituency, after polling 28,783 votes as against 16,458  votes polled  by  respondent  No.  1  Thakur Muneshwar Nath  Singh. An election petition was filed by the respondent No.1  in the  High Court  for setting  aside  the election of the appellant on the ground that he had indulged in corrupt  practices as  envisaged in  sec. 123(2)  of  the Representation of  the People Act, 1951. It was alleged that the appellant  through  his  agents,  supporters  and  other people, duly  instructed by  him made  an attempt  to set at naught the  electoral  process  by  putting  the  voters  in serious fear  as they  were threatened,  assaulted and  even firing was  resorted to.  The High Court found that the said acts which  undoubtedly amount  to undue  influence had been committed not  only at  the instance  but in the presence of the appellant  and therefore  allowed the  petition and  set aside the  election of  the  people.  Hence  the  appeal  by Special Leave of the Court.      Dismissing the appeal, the Court ^      HELD: 1  :1. A  charge of  corrupt practice  has to  be proved  by   convincing   evidence   and   not   merely   by preponderance of  probabilities. As  the charge  of  corrupt practice is in the nature of a criminal charge it is for the party who sets up the plea of undue influence to prove it to the hilt  beyond reasonable  doubt and  the manner  of proof should be  the same  as for  an offence  in a criminal case. This  is   more  so   because  once  it  is  proved  to  the

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satisfaction of  a Court that a candidate has been guilty of undue influence  them he  is likely to be disqualified for a period of  6 years  or such  other period  as the  authority concerned under  section  8A  of  the  Act  may  think  fit. Therefore, as  the charge,  if proved,  entails a very heavy penalty in  the form  of disqualification  the Supreme Court has held that a very cautious approach must be made in order to prove  the charge  of undue  influence  levelled  by  the defeated candidate. [1092C-E]      1: 2. Another well settled principle is that before the allegation 1090 of undue  influence can  be proved,  it must  be shown  that undue influence  proceeds either  from the candidate himself or through  his agent or by any other person either with his consent or  with the  consent of his election agent so as to prevent or  cloud the  very exercise of any electoral right. [1092F]      1: 3. Where allegations of fraud or undue influence are made while  insisting on standard of strict proof, the Court should not  extend or stretch the doctrine to such an extent to make  it well-nigh  impossible to  prove an allegation of corrupt  practice.   Such  an   approach  would  defeat  and frustrate the very laudable and sacrosanct object of the Act in maintaining purity of the electoral process. [1093F]      1: 4.  By and  large, the  Court in  such  cases  while appreciating or analyzing the evidence must be guided by the following considerations:[1093G]      (1)  the   nature,    character,   respectability   and           credibility of the evidence; [1093H]      (2)  the    surrounding     circumstances    and    the           improbabilities appearing in the case; [1093H]      (3)  the slowness  of the  appellate court to disturb a           finding of  fact arrived at by the trial court who           had  the   initial  advantage   of  observing  the           behavior, character  and demeanor of the witnesses           appearing before it, and [1094A]      (4)  the totality  of the effect of the entire evidence           which leaves  a lasting  impression regarding  the           corrupt practices alleged. [1094]      1:5. There  is no  ritualistic formula  nor a  cut-and- dried test to lay down as to how a charge of undue influence can be  proved but  if all  the circumstances taken together lead to  the irresistible  inference that  the  voters  were pressurized, threatened  or assaulted  at  the  instance  of either the  candidate or  his supporters  or agents with his consent or with his agents consent that should be sufficient to vitiate the election of the returned candidate. The state of evidence  in the  present  case,  is  both  complete  and conclusive. All  the witnesses  who appeared  to  prove  the allegation  of   undue   influence   have   in   one   voice categorically stated  that voters were threatened, assaulted and even  a bomb  was hurled so that they may not cast their votes. The  witnesses have  also said that all this was done in the presence of the appellant. [1093D-E; 1094C-D]      1:6.  The  plea  of  alibi,  to  the  effect  that  the appellant did not go to the polling booth cannot be accepted inasmuch as  (a) such  a plea  was not  taken in the written statement and  (b) such  a self  imposed restriction  not to leave the  village and  find out  what was  happening in his constituency is  both  unnatural  and  improbable.  A  close scrutiny of  the evidence  makes it clear that the appellant was undoubtedly  present at  the Bhurkunda  Polling booth at the time  when the voters were going to cast their votes and

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his agents  or  supporters  indulged  in  acts  of  assault, hurling of bombs 1091 etc. in  his presence and he did not stop them from doing so from which a conclusive inference can be drawn that the acts of assault,  arosen, etc.  were committed  with the positive knowledge and  consent of  the party  himself or his agents. Clearly it  is not  a case  where two views were possible so that the  appellant could  be given  the benefit  of  doubt. [1096A-B, 1097A-B, 1098B]      Daulat Ram  Chauhan v. Anand Sharma [1984] 2 S C.C. 64, (p. 73  para 18); Manmohan Kalia v. Yash and Ors. [1984] 3 S C.C. 499  (p. 502 para 7); A. Younus Kunju v. R. S. Unni ond Ors.[1984] 3  S.C C. 346 (p. 349); and Samant N. Balakrishna etc. v.  George Fernandez  and Ors. [1969] 3 S.C.R. 603 (pp. 618-619); followed.      2. Normally,  the Supreme  Court  in  appeal  does  not interfere on  a finding  of this type unless there are prima facie good  grounds to  show that the High Court has gravely erred,  resulting  in  serious  prejudice  to  the  returned candidate. [1092H; 1093A]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 893 of 1980.      From the  Judgment and Order dated the 10th April, 1980 of the Patna High Court in Election Petition No. 20 of 1977.      R.K. Garg and V.J. Francis for the Appellant.      L.R. Singh and A. Sharan for the Respondent.      The Judgment of the Court was delivered by      FAZAL ALI, J. The election appeal is directed against a judgment dated  April 10,  1980  of  the  Patna  High  Court setting aside the appellant mainly on the ground that he had been found  guilty of  indulging in  corrupt practice in the election held  on 10.6.77  to the Bihar Legislative Assembly from  ’241-Goh   Assembly  constituency’.   The  result  was announced on  16.6.77 in which Ram Sharan Yadav (appellant), a candidate  sponsored by  the Communist Party of India, was declared elected  after  polling  28,783  votes  as  against 16,458 votes  polled by  Thakur Muneshwar  Nath  Singh  (the first respondent  herein). An election petition was filed by the respondent  in the  High Court  for  setting  aside  the election of the appellant on the ground that he had indulged in corrupt  practices as  envisaged in  s. 123  (2)  of  the Representation of the People Act, 1951 (hereinafter referred to as  the ’Act’). The plea of the respondent found with the High Court  which set  aside the  election of the appellant. Hence, this appeal to this Court.      Serveral decisions of this Court have laid down various tests 1092 to determine  a corrupt  practice and  the standard of proof required to  establish such  corrupt practices and it is not necessary for  us to  repeat the  dictum laid  down by  this Court and  the approach  to be  made in  detail because  the matter is  no longer res integra and is concluded by a large number of  authorities. To  quote a  few recent ones: Daulat Ram Chauhan  v. Anand  Sharma,(1) Manmohan  Kalia v.  Yash & Ors.,(2) A. Younus Kunju v. R.S. Unni and Ors.(3) as also an earlier decision of this Court in Samant N. Balakrishna etc. v. George Fernandez and Ors. etc.(4)      The sum  and substance  of these  decisions is  that  a charge of  corrupt practice  has to  be proved by convincing

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evidence and  not merely  by preponderance of probabilities. As the  charge of  a corrupt  practice is  in the  nature of criminal charge, it is for the party who sets up the plea of ’undue influence’  to prove it to the hilt beyond reasonable doubt and  the manner  of proof should be the same as for an offence in  a criminal case. This is more so because once it is proved  to the  satisfaction of  a court that a candidate has been guilty of ’undue influence’ than he is likely to be disqualified for  a period of six years or such other period as the  authority concerned under s. 8A of the Act may think fit. Therefore,  as the  charge, if  proved, entails  a very heavy penalty  in the  form of  disqualification, this Court has held that a very cautious approach must be made in order to prove  the charge  of undue  influence  levelled  by  the defeated candidate.      Another well  settled  principle  is  that  before  the allegation of  ’undue influence’  can be  proved, it must be shown  that  ’undue  influence’  proceeds  either  from  the candidate himself  or through  his agent  or  by  any  other person either  with his  consent or  with the consent of his election agent  so as  to prevent or cloud the very exercise of any electoral right.      We have  heard counsel  for the parties at great length and have also gone through the very well-considered judgment of the  High Court which has dwelt on various aspects of the matter  and  has  held  that  the  charge  levelled  by  the respondent has  been fully  proved. Normally,  this Court in appeal does not interfere on a finding of 1093 this type  unless there are prima facie good grounds to show that the  High Court has gravely erred, resulting in serious prejudice to the returned candidate.      The facts  of the case lie within a very narrow compass and have  been fully  narrated in  the judgment  of the High Court and  it is not necessary for us to repeat the same all over again.  Even so,  we would like to point out just a few clinching facts  which fully  fortify the conclusions of the High Court.      The main  allegation against  the appellant  is that he had through  his agents,  supporters and  other people, duly instructed by  him, made  an attempt  to set  at naught  the electoral process  by putting  the voters in serious fear as they were threatened, assaulted and even firing was resorted to. On  the finding  of the High Court, it is further proved that the  acts mentioned  above, which undoubtedly amount to ’undue influence’,  had  been  committed  not  only  at  the instance but  in the  presence of the appellant. There is no ritualistic formula  nor a cut-and-dried test to lay down as to how  a charge of undue influence can be proved but if all the circumstances  taken together  lead to  the irresistible inference that  the voters  were pressurised,  threatened or assaulted at  the instance  of either  the candidate  or his supporters or  agents with  his consent  or with his agents’ consent that should be sufficient to vitiate the election of the returned candidate.      We would,  however, like  to  add  a  word  of  caution regarding the  nature of  approach to be made in cases where allegations of  fraud or  undue influence  are  made.  While insisting on  standard of strict proof, the Court should not extend or stretch this doctrine to such an extreme extent as to make  it well-nigh  impossible to  prove an allegation on corrupt  practice.   Such  an   approach  would  defeat  and frustrate the very laudable and sacrosanct object of the Act in maintaining purity of the electoral process.      By  and   large,  the   Court  in   such  cases   while

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appreciating or analysing the evidence must be guided by the following considerations:      (1)  the   nature,    character,   respectability   and           credibility of the evidence,      (2)  the    surrounding     circumstances    and    the           improbabilities appearing in the case, 1094      (3)  the slowness  of the  appellate court to disturb a           finding of  fact arrived at by the trial court who           had  the   initial  advantage   of  observing  the           behaviour, character and demeanor of the witnesses           appearing before it, and      (4)  the totality  of the effect of the entire evidence           which leaves  a lasting  impression regarding  the           corrupt practices alleged.      More than  this we  would not  like to  say anything at this stage.  We have  already pointed  out that  the learned High Court  Judge has very carefully marshalled the evidence and in  doing  so  has  faithfully  followed  the  aforesaid principles enunciated by us.      The state of evidence in the present case appears to be both complete and conclusive. All the witnesses who appeared to proved  the allegation  of undue  influence have  in  one voice categorically  state that  the voters were threatened, assaulted and  even a  bomb was  hurled so that they may not cast their votes. The witnesses have also said that all this was done  in the presence of the appellant. In rebuttal, the appellant has  produced himself and two witnesses to support his case that he did not indulge in any corrupt practice. In other words,  his evidence  is just  a bare  denial  of  the allegations made  against  him.  The  High  Court  has  very thoroughly scanned  and weighed the evidence and pointed out that the  respondent has  produced independent  witnesses to show that  undue influence  was practised  with  the  direct connivance of the appellant.      Without, therefore, going into further details we would just indicate  the dominant  features of the findings of the High Court with which we entirely agree. The evidence led by the respondent  consists mainly of PWs 1, 27, 32, 35, 39 and 41. Out  of these  witnesses, PWs  27, 32, 35, 39 and 41 are independent  voters,  not  belonging  to  any  party.  Their evidence stands corroborated by the FIR lodged in the police station soon  after the  occurrence as a result of which the police reached  the spot  of occurrence and found that there was a lot of trouble in the Bhurkunda booth where the voters were pressurised  and intimidated. As a sample, PW-39 (Kamta Prasad Singh),  who was  a voter  in the aforesaid election, has stated  that he had gone to cast his vote at about 11.30 a.m. and  was standing  in the  queue alongwith  20-25 other voters. He  further testifies  that he saw the respondent at the booth  and that  he also  knew the appellant (Ram Sharan Yadav). He  goes on  to narrate  that he  saw one Ram Prasad Yadav of Ibrahimpur at the booth; the 1095 appellant appeared  on the  scene and asked Ram Prasad Yadav as to how the polling was going on, to which he was informed that the  polling did  not appear  to be  favourable to him. Thereupon, the appellant ordered Ram Prasad Yadav to capture the booth  and after  giving this  instruction he  left  the place. It  is clear  from the  evidence of  this independent witness that  the threatening  and obstructing of the voters was done  at the orders of the appellant himself which amply proves the  allegation of  undue influence. The witness goes on to  state that  after the  appellant had  left the place, about 300-400  men of the appellant surrounded the booth and

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removed the  voters, including  the witness,  from the queue and therefore  they could  not cast  their votes.  Among the persons who  had  acted  in  such  a  fashion,  the  witness identified, Babu Chand, Ram Chandra Mahto, Bisheshwar Yadav, Ram Prasad  Yadav and  Surajdeo Yadav. In cross-examination, the witness  clarified that he made an oral complaint to the Presiding Officer that he was not allowed to cast vote and a written complaint  was given by the sarpanch of the village. He could  not inform  the respondent  because he was himself surrounded by the mob.      After perusing  his evidence, it seems that the witness (PW 39)  has given  a very  straightforward  evidence  which bears a  ring of  truth and  does not  appear to  have  been shaken in  cross-examination on any vital point. The witness being an  independent voter  had no axe to grind against the appellant and  there is  no reason  why he  should have come forward to  depose falsely.  Similar is  the evidence of PWs 27, 32 and 35 which has been fully scanned and considered by the High Court. Another independent witness, PW 41, has also fully  corroborated   the  evidence   of  other  independent witnesses  indicated  above.  To  the  same  effect  is  the evidence of PW 62, Ramdeo Singh, who has also stated that he was informed  that men of Ram Sharan Yadav had snatched away the ballot  papers and  torn them  and created  all sorts of disturbance. He further stated that Mukhlal Singh, Advocate, who was  the polling  agent of Ram Sharan Yadav, had led the mob of  miscreants at  the booth. Similar is the evidence of other witnesses  who have  not been  in any  way  broken  of shattered in  cross-examination. The  High Court has rightly pointed out  that the  FIR clearly  gives the details of the incidents soon after they had happened.      As against  the overwhelming  evidence adduced  by  the respondent, the  evidence of  Ram Sharan  Yadav  (appellant) himself is one of a plea of alibi who stated that he did not go to Bhurkunda polling booth at all and that on the date of poll he was at his village 1096 Haspura in  his party’s  election office. It is difficult to believe that  being a candidate himself why did he choose to impose a  self-made restriction not to leave the village and find out  what was  happening in  his constituency.  Such  a conduct is  both unnatural and improbable and speaks volumes against the  defence of  the appellant. It is interesting to note that  this plea  of alibi,  viz., that he did not go to the polling booth was not taken in his written statement. He seems to  have given a very lame explanation for his absence from the  polling booths  and the  High  Court  has  rightly pointed  out   that  this   is  an   afterthought.  In  this connection, the High Court observed thus:           "I  am,   therefore,  of  the  opinion,  that  the      aforesaid alibi  has been  invented by respondent No. 6      for the first time when he came in the witness box with      a view  to controvert the evidence adduced on behalf of      the petitioner  that on the date of poll he had gone to      Bhurkunda Booth  at about  11.30 a.m..   In  his cross-      examination he has pleaded ignorance if his workers had      surrounded the  petitioner  on  the  date  of  poll  at      Bhurkunda Booth,  and he  has further pleaded ignorance      if any  criminal case  concerning the  incident at  the      Bhurkunda Booth  was instituted  by Shri Ramesh Chandra      Raman, the  Magistrate-in-charge of the striking force,      or if any weapon like lathi, garasa, etc. was recovered      from the arrested persons at Bhurkunda Booth."      Having regard to his evidence, the High Court concludes as follows:

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         "In view  of the  overwhelming evidence adduced on      behalf  of   the  petitioner,   which  I  have  already      discussed above,  I am  also not  prepared to place any      reliance  on   the  aforesaid   feigned  ignorance   of      respondent No. 6."      As regards  the evidence  of Kailash  Yadav (RW 12), he has merely  stated that  when he reached the Bhurkunda booth at 11.30  a.m. he found the poll to be peaceful. In order to explain away  the exact  happenings at  the  said  booth  he stated that  after casting  his vote, he left his village at about 3.00 p.m. and remained out for about a month.      After a  close scrutiny  of the  evidence we  are fully satisfied that  the appellant was undoubtedly present at the Bhurkunda polling 1097 booth at  the time  when the voters were going to cast their votes and  his agents  or supporters  indulged  in  acts  of assault, hurling  of bombs, etc., in his presence and he did not  stop  them  from  doing  so  from  which  a  conclusive inference can be drawn that the acts of assault, arson, etc. were committed  with the  positive knowledge  and consent of the appellant  himself or  his agents. As the High Court has very carefully  considered the  evidence of each witness, it is not  necessary for  us to  tread the some ground all over again. The final finding arrived at by the High Court may be extrated thus:           "Thus I have examined and discussed above the oral      and documentary  evidence adduced  by the  parties with      regard to  79-Bhurkunda booth,  from which  it is clear      that there  is abundance  of reliable  evidence on  the      record to  prove the petitioner’s case that on the date      of poll  at about  11.30. a.m.  Respondent  No.  6  Ram      Sharan Yadav,  had arrived  at Bhurkunda  Booth in  his      jeep and  enquired about the trend of the poll from his      man, Ram  Prasad Yadav  of village Ibrahimpur, who told      him that  the poll  at the booth was poor in his favour      and thereupon  Respondent  No.  6,  Ram  Sharan  Yadav,      ordered his  men and  supporters, who  were standing at      the polling  booth, to capture the booth by caring away      the voters  and also  to  surround  the  both  and  the      petitioner, and,  after giving  the said order, he left      both  and,   thereafter  his   workers  and  supporters      surrounded the  booth and  scared away  the voters  and      prevented them from exercising their right of franchise      and also  surrounded the  petitioner and  held  him  up      there, and the same is nowhere shaken by the merger and      unbelievable evidence  adduced on  behalf of Respondent      No. 6  in this  regard.  Therefore,  it  is  held  that      respondent No.  6 and  his workers,  with consent,  did      commit that  corrupt practice  of  undue  influence  at      Bhurkunda booth  by interfering  with the free exercise      of the  electoral rights  of the  voters to  cast their      votes according to their choice."      We might  mention here that the High Court has rejected all the allegations regarding other grounds and his confined its attention  only to  Bhurkunda booth which, if proved, is by itself  sufficient to prove that the appellant was guilty of indulging in the corrupt practice of ’undue influence’.      Mr. Garg,  appearing for  the appellant, submitted that the allegation  of attacking  or  harassing  the  voters  or driving them out 1098 is a  make-believe story but he has not been able to show as to why  the allegation deposed to by the witnesses should be disbelieved  particularly  when  the  independent  witnesses

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examined  by  the  respondent  have  positively  proved  the presence of the appellant.      After a  careful perusal and discussion of the evidence we entirely  agree with  the conclusions  arrived at  by the High Court  and hold  that there  is no  reason to interfere with the  judgment of  the  High  Court  so  as  to  take  a different view.  In our  opinion, it is not a case where two views were  possible so  that the  appellant could  be given benefit of doubt.      For the  reasons given  above, the judgment of the High Court is  upheld and  the appeal  is dismissed  but  in  the circumstances without any order as to costs. S.R                                        Appeal dismissed. 1099