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PETITIONER: S.   B. ADITYAN

       Vs.

RESPONDENT: S. KANDASWAMI AND OTHERS

DATE OF JUDGMENT: 30/04/1958

BENCH:

ACT: Election  Petition-Corrupt  Practice-Bribery-Acceptance   of gratification, if corrupt Practice of bribery-Representation of the people Act, 1951 (43 Of 1951), ss.82, 90(3) and 123.

HEADNOTE: After  the  poll the appellant was declared elected  to  the Madras  Legislative  Assembly.  Respondent No.  1  filed  an election  petition  praying  that it be  declared  that  the election of the appellant was void.  In the petition it  was alleged that two of the candidates at the election  accepted money  paid to them by the appellant and his election  agent to  induce  them to abandon the contest  and  they  actually abandoned  the contest.  These two candidates were not  made parties  to  the  petition.  The appellant  applied  to  the Election Tribunal to dismiss the petition under s. 90(3)  Of the  Representation  of  the  People  Act,  1951,  for  non- compliance  with the provisions of s. 82 of the Act  on  the ground  that  allegations of a corrupt  practice  were  made against  the two candidates and Respondent No. 1 had  failed to make them parties to the petition as required by s. 82: Held, that the acceptance of gratification is not a  corrupt practice  within  the meaning of s. 123(1) Of  the  Act  and consequently  it  could  not be  said  that  allegations  of corrupt  practice had been made against the two  candidates. There  was thus no non-compliance with the provisions of  s. 82 and the election petition was not liable to be  dismissed under s. 90(3).

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No.130 of 1958. Appeal  by  certificate  granted by the  Madras  High  Court against its judgment and order dated November 1, 1957, in W. P. Nos. 623 and 624 of 1957. 1958.   April  30.  May 1. A. V. Viswanatha  Sastri,  T.  R. Venkatarama  Iyer, K. R. Sharma and K. R. Choudhri, for  the appellant.  The petition is liable to be dismissed for  non- joinder  of  Muthu  and Meganathan who  were  candidates  as defined in s. 79(b) of the Representation of the People Act, 1951.  The allegation is that Meganathan accepted a gift  of Rs.   10,000   and  in  pursuance   thereof   withdrew   his candidature, and also that Muthu accepted a gratification of Rs. 5,000 and in pursuance thereof, he retired from 869 the contest.  On the language of s. 123(1) of the Act,  such acceptance constitutes a  corrupt practice’.  The words I by a  candidate  or his agent or by any other  person’  in  the

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section are to be read with the words offer or promise’  and not  with gift’.  In view of the provisions of the  Transfer of  Property  Act,  a  I gift’ is a  bilateral  Act  and  it includes  both the giving of the gift and the acceptance  of that gift.  Section 99 of the Act shows that a receipt of  a bribe  is a corrupt practice.  See ss. 82 (b), 98 and 99  of the Representation of the People Act, 1951.  Under s. 99 the Tribunal has to record a finding whether a corrupt  practice has been committed with the consent of any candidate.   When a  candidate accepts a gift with the object of inducing  him to  withdraw  his candidature, he consents  to  the  corrupt practice of bribery being committed and such a candidate  is liable  to be named under the section.   Alternatively,  the term  gratification in s. 123 is very wide and includes  the withdrawal  of candidature by a candidate to induce  another candidate  to  stand  at an  election.   Affording  of  such gratification  amounts to a corrupt practice within s.  123. Section  82(b)  talks  of  I  allegations  of  any   corrupt practice’  and  it, therefore, contemplates  any  allegation relating to or concerning, a corrupt practice. C.   K.  Daphtary, Solicitor-General of India, A.  N.  Sinha and  N. H. Hingorani for respondent No. 1. A  candidate  who accepts  a  gift from a returned candidate does  not  commit corrupt  practice’  within  the meaning  of  s.  123(1)  and therefore  is not necessary party to the  election  petition under s. 82(b) of the Act.  The section defines the  corrupt practice  of bribery and the words I gift, offer or  promise by a candidate or his agent or by any other person’  clearly contemplates the making of a gift.  Further, s. 123(1)  does not include the acceptance of a gift as a corrupt  practice. This is also apparent from consideration of s. 124(3) of the Act  which  was deleted by the amending Act XXVII  of  1956. Section 124(3) made receipt of gratification by candidate or intending candidate a minor corrupt practice and s. 123  (1) made bribery by a candidate or his agent, a major 870 corrupt  practice.  The amending Act has done away with  the classification  of major and minor corrupt practices.   Some of the minor corrupt practices have been retained as corrupt practices and the rest dropped altogether.  The amending Act has dropped the provision making acceptance and agreement to accept  a bribe, a corrupt practice with no material  change in s. 123(1) to bring within it these cases.  By omitting s. 124(3)  from  the Act Parliament, therefore,  intended  that acceptance  of  a  bribe was no longer to be  treated  as  a corrupt  practice.  Section 99 does not purport to define  a corrupt  practice mentioned in s. 82(b) ; s. 99 read in  the light of definition section does not support the appellant. Cur. adv. vult. 1958.  May 20.  The Judgment of the Court was delivered by SARKAR J.-In the 1957 general elections, nine persons  filed nomination  papers  for election to the  Madras  Legislative Assembly from the Sathankulam constituency all of which were found on scrutiny to be valid.  Among these persons were the appellant,  the respondent Kandaswami and two others  called M.  R.  Meganathan and G. E. Muthu.  Meganathan,  Muthu  and three  others whom it is not necessary to name as  they  are not  concerned with this appeal, did not go to the poll  and dropped  out  of  the  election earlier.   At  the  end  the election  was  actually  contested  by  the  appellant,  the respondent  Kandaswami  and two other candidates  with  whom also  this  appeal  is  not  concerned.  The  appellant  was successful  at  the poll and was on March  6,1957,  declared elected. On  April 15, 1957, the respondent Kandaswami whom  we  will

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hereafter refer to as the respondent, preferred an  election petition  under the provisions of the Representation of  the People Act, 1951, for a declaration that the election of the appellant  was  void.   The appellant  was  made  the  first respondent to the petition but Meganathan and Muthu were not made parties to it at all.  Some of the other candidates  at the election were also made parties to the petition but 871 it is unnecessary for the purpose of this appeal to refer to them. The petition was referred to an Election Tribunal for trial. The  appellant  then  made an application  to  the  Election Tribunal  which  was  marked I. A. No. 1  of  1957  for  the dismissal  of the petition under s. 90(3) of the Act.   That section  provides  that,  " The Tribunal  shall  dismiss  an election petition which does not comply with the  provisions of section 81, section 82 or section 117 ". The  appellant’s case  was  that  the  petition had  not  complied  with  the provisions of s. 82.  Section 82 states: " A petitioner shall join as respondents to his petition- (b)  any  other  candidate against whom allegations  of  any corrupt practice are made in the petition." The appellant contended that allegations of corrupt practice were  made in the petition against Meganathan and Muthu  and they  should,  therefore,  have been  made  parties  to  the petition  under  s. 82 and as that had not been  done,  that section  had not been complied with and so the petition  had to  be dismissed under s. 90(3).  It is not in dispute  that non-compliance  with  the provisions of s.  82  entails  the dismissal of an election petition.  The respondent’s  answer to  the  application  was  that  no  allegation  of  corrupt practice had been made in the petition against Meganathan or Muthu.    The  Tribunal  accepted  the  contention  of   the respondent and dismissed the application of the appellant. The  appellant  then moved the High Court at Madras  by  two applications,  one  for the issue of a  writ  of  certiorari quashing   the,  order  of’  the  Tribunal  dismissing   his application  and  the  other  for the issue  of  a  writ  of prohibition  directing the Tribunal not to proceed with  the hearing  of  the election petition.  The High Court  by  its judgment   dated  November  1,  1957,  dismissed  both   the applications,  taking the same view as the Tribunal.   Hence this appeal. 872 It  is  not  in  dispute that Meganath  an  and  Muthu  were candidates.   A candidate has been defined in s. 79  of  the Act  as  meaning among others, a person who  has  been  duly nominated as a candidate at any election and both  Meganthan and Muthu had been so nominated. The  only  question that arises in this  appeal  is  whether allegations of corrupt practice are made against them in the election  petition.  The statements in- the  petition  which are said to constitute such allegations are in these terms: " IV-A.  The returned candidate has committed the  following act,%  of  bribery-corrupt practices  according  to  section 123(1) of Act 43 of 1951 :- (2)  Sri M. R. Meganathan was candidate for Sattankulam  and Tiruchandur  Assembly Constituencies at the  election.   The first  respondent and his election Agent paid him a gift  of Rs. 10,000 to induce him to withdraw from being a  candidate at  the  election  from  Sattankulam  Constituency  and   in pursuance   thereof  Sri  M.  R.  Meganathan  withdrew   his candidature    at    the    election    from     Sattankulam Constituency,.............................................. (4)  One Sri G. E. Muthu, candidate at the election in  this

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Constituency  was paid a gratification of Rs. 5,000  by  the first  respondent and his Election Agent for the purpose  of making  him retire from contest and in pursuance thereof  he retired on the contest Putting it shortly, the allegations in the petition are that the  appellant  and his election agent paid  Meganathan  Rs. 10,000 and Muthu Rs. 5,000 to induce them to drop out of the election   and  they  accordingly  abandoned  the   election contest.   So all that is said here against  Meganathan  and Muthu  and  we are concerned only with  allegations  against them-  is  that they accepted money paid to them  to  induce them 873 to abandon the contest and actually abandoned the contest. Is an allegation then, that a candidate accepted money  paid to  him to induce him to drop out of the election  test  and actually  so dropped out, an allegation of corrupt  practice against such a candidate ?  The High Court field that it was not  and  that  only the giving of a  bribe  was  a  corrupt practice  and not an acceptance of it.  We are in  agreement with this view. T he Act contemplates various kinds of corrupt practices  and defines  them in s. 123.  We are concerned with the  corrupt practice of bribery which is the corrupt practice alleged in the  petition.  Bribery again is of several  varieties.   We are concerned with a gift to a candidate for inducing him to abandon his candidature.  This form of the corrupt  practice of bribery is thus defined in the Act: "Section  123-The  following shall be deemed to  be  corrupt practices for the purposes of this Act: (1) Bribery, that is to say, any gift, offer or promise by a candidate  or  his  agent or by any  other  person,  of  any gratification  to  any person whomsoever,  with  the  object directly or indirectly of inducing (a)  a  person to stand or not to stand as, or  to  withdraw from  being, a candidate, or to retire from contest,  at  an election; Explanation.-For  the purposes of this clause the  term  " gratification    "   is   not   restricted   to    pecuniary gratifications  or gratifications estimable in money and  it includes  all  forms  of  entertainment  and  all  forms  of employment  for reward; but it does not include the  payment of any expenses bona fide incurred at, or for he purpose of, any  election  and duly entered in the account  of  election expenses referred to in section 78." is  an acceptance of a bribe, by which word we mean  a  gift made with the intention specified, a corrupt practice within this  definition  ?  We  do not  think  it  is.   What  this definition  makes  the corrupt practice of bribery  is  a  " gift, offer or promise by a candidate or his agent or by any other  person,  of any gratification" made with  the  object mentioned.  The words " gift, 874 offer or promise by a candidate or his agent or by any other person  "  clearly  show that what is  contemplated  is  the making  of a gift.  These words are wholly inappropriate  to describe  the  acceptance of a gift.  The words "  with  the object,  directly or indirectly, of inducing" also  indicate that  only  the making of a gift is  contemplated,  for  the object is of the person making the gift, and clearly not  of the  person accepting it.  Mr. Sastri who appeared  for  the appellant  contended that the words " by a candidate or  his agent  or by any other person " are not to be read with  the word " gift " but only with the words " offer or promise  ".

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It  seems  to us that this is an impossible reading  of  the section as it is framed.  Even on this reading, the  section would  still  contemplate  a  gift " to  any  person  "  and therefore only the giving and not an acceptance, of it. That s. 123(1) does not contemplate the acceptance of a gift to   be  a  corrupt  practice  is  also  apparent   from   a consideration  of s. 124 of the Act which was deleted by  an amendment made by Act XXVII of 1956.  Under el. (3) of  that section  the  receipt of or an agreement to receive  a  gift with  substantially the same object as mentioned in  s.  123 was  a corrupt practice.  As legislative provisions are  not duplicated,  such a receipt of or an agreement to receive  a gratification  was clearly not a corrupt practice within  s. 123(1)  as it stood before the amendment.  The amending  Act has dropped the provision making acceptance and an agreement to accept a bribe, a corrupt practice but has made no change in s. 123(1) to bring within it these cases.  Section 123(1) cannot therefore be read as including within the  definition of a bribe contained in it an acceptance of it.  By omitting s.  124(3) from the Act therefore the  legislature  intended that acceptance of a bribe was no longer to be treated as  a corrupt  practice.   In  view of this  clear  indication  of intention,  it would be idle to enquire why the  legislature thought  fit to exclude the acceptance of a bribe  from  the definition   of  corrupt  practice.   If  the  omission   is accidental,  then  it  is for the legislature  to  take  the necessary action in that behalf.  We cannot allow any 875 consideration  of the reason for the omission to affect  the plain meaning of the language used in s. 123(1). Mr. Sastri then contended that in view of the provisions  of the  Transfer of Property Act, there can be no gift  without an  acceptance of it by the donee, and therefore whenever  a gift is mentioned both the giving and the acceptance of  the thing given are necessarily simultaneously contemplated.  He said  that, it followed from this that the corrupt  practice of  bribery  by a gift mentioned in s. 123(1)  included  the acceptance of the gift.  It is true that a gift contemplates both a giving and an acceptance; but these are none the less different  acts and it is open to the legislature to  attach certain consequences to one of them only.  It was  therefore open  to  the legislature in enacting s. 123(1)  to  provide that the making, that is to say, the giving of a gift  alone should be a corrupt practice.  This is what it has done:  it has  not made the receipt of a gift a corrupt practice.   It has  deliberately  omitted  the acceptance of  a  gift  from corrupt  practices  described  in the Act.   Though  a  gift cannot   be  mad(,,  without  an  acceptance  of  it,   such acceptance has not been made a corrupt practice. Mr. Sastri also contended that s. 99 of the Act showed  that the  receipt of a bribe was a corrupt practice.  Section  98 states  that at the conclusion of the trial of  an  election petition the Tribunal shall make one or other of the  orders therein  mentioned.  Then comes s. 99 which states  that  in certain  circumstances besides these orders,  certain  other orders  have also to be made by the Tribunal.  The  material portion of this section is in these terms: " S. 99-(1) At the time of making an order under section  98 the Tribunal shall also make an order- (a)  Where any charge is made in the petition of any corrupt practice having been committed at the election, recording- (i)  a  finding whether any corrupt practice has or has  not been  proved to have been committed by, or with the  consent of,  any  candidate or his agent at the  election,  and  the nature of that corrupt practice; and

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876 (ii) the names of all persons, if any, who have been  proved at the trial to have been guilty of any corrupt practice and the ture of that  practice;and. Mr.  Sastri contended that under this section  the  Tribunal has to record a finding whether a corrupt practice has  been committed  with the consent of any candidate.  He said  that when a candidate accepts a gift made to him with the  object of inducing him to withdraw his candidature, he consents  to the  corrupt practice of bribery being committed and such  a candidate is liable to be named under the section.  He added that in order that such a candidate can be Bo named a charge of  the corrupt practice has to be made against him  in  the election petition.  The result, therefore, according to  Mr. Sastri,  is that a candidate who consents to a  bribe  being paid  to  him  to withdraw his candidature is  guilty  of  a corrupt  practice  and  therefore an allegation  of  such  a corrupt  practice  can  be made in the  petition  if  it  is intended  to  have him named under s. 99 and  once  such  an allegation  is  made  in the petition,  s.  82(b)  would  be attracted  and the candidate has to be made a party  to  the petition.   He  says  such  allegations  were  made  against Meganathan and Muthu. This  contention  seems  to us  to  be  clearly  fallacious. Section  99 does not purport to define a  corrupt  practice. The definition of corrupt practice occurs in s. 123 and  the corrupt  practice  mentioned in s. 99 has to  be  a  corrupt practice  as so defined.  A corrupt practice committed  with the  consent of a candidate is not in itself a new  kind  of corrupt  practice.  When s. 99 talks of a  corrupt  practice having  been  committed with the consent of a  candidate  it means  a corrupt practice as defined in s. 123  having  been committed   and   a  candidate  having  consented   to   its commission.  The consent by a candidate to the commission of a  corrupt  practice  by some one  else  whatever  its  con- sequences  under  the Act may be, is not  itself  a  corrupt practice.  Therefore, to say that a candidate consented to a corrupt practice being committed by accepting a gift made to him to induce him to withdraw his 877 candidature,  is  not  to say that he  himself  committed  a corrupt practice.  Such a statement in an election  petition is  not  an  allegation  of  corrupt  practice  against  the consenting candidate.  Hence s. 82(b) does not require  that he should be made a party to the petition.  We wish to  make it clear that we are not to be understood as holding that  a candidate  accepting  a gift made to him to  induce  him  to withdraw  his candidature is one who consents to  a  corrupt practice  being committed.  We do not think it necessary  to say anything on that question in this case. Mr.  Sastri then said that the term gratification in s.  123 was  very  wide  and would include  the  withdrawal  of  his candidature  by a candidate to induce another  candidate  to stand  at an election.  He contended that the  affording  of such  a  gratification would amount to  a  corrupt  practice within s. 123.  He submitted that such corrupt practices had been  alleged in the petition against Meganathan  and  Muthu and  they  should therefore have been made  parties  to  the petition under s. 82(b).  We are wholly unable to agree that the  withdrawal of his candidature by a candidate to  induce another   candidate  to  stand  at  an  election  would   be gratification  within  s. 123.  But assume it is  so.   That does  not  help  the appellant at all.  Here,  there  is  no allegation  in the petition that Meganathan and Muthu  with- drew  their candidature in order to induce the appellant  to

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stand  at  the election, so there is no  allegation  in  the petition of corrupt practices having been committed by  them by  so withdrawing their candidature.  It was therefore  not necessary  to  make  Meganathan and  Muthu  parties  to  the petition under s. 82(b). Lastly,  Mr.  Sastri  contended  that  s.  82(b)  talked  of allegations  of  any  corrupt practice "  and  it  therefore contemplated  any  allegation relating to or  concerning,  a corrupt  practice.   He  said  that  the  election  petition contained allegations against Meganathan and Muthu, relating to  a  corrupt  practice inasmuch as  it  stated  that  they accepted  the gratifications paid to them to withdraw  their candidature and actually withdrew 878 such  candidature.  Hence, he said, s. 82(b)  required  that they should have been made parties to the petition.  We  are of  opinion  that  when s. 82(b)  talks  of  allegations  of corrupt  practice against a candidate it  means  allegations that   a  candidate  has  committed  a   corrupt   practice. Allegations can hardly be said to be " against " one  unless they impute some default to him.  So allegations of  corrupt practice  against a candidate must mean that  the  candidate was  guilty  of  corrupt practice.  We are  also  unable  to appreciate  how  an allegation that a candidate  accepted  a gratification paid to him to withdraw his candidature is all allegation  relating to a corrupt practice.  The  acceptance of  the  gratification  does  not  relate  to  any   corrupt practice,  for  we  have  earlier  shown  that  the  corrupt practice consists in the giving of the gift and riot in the acceptance of it. In  the  result this appeal fails and it is  dismissed  with costs. Appeal dismissed.