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PETITIONER: SHRI UMED

       Vs.

RESPONDENT: RAJ SINGH & ORS.

DATE OF JUDGMENT28/08/1974

BENCH: PALEKAR, D.G. BENCH: PALEKAR, D.G. BHAGWATI, P.N. SARKARIA, RANJIT SINGH

CITATION:  1975 AIR   43            1975 SCR  (1) 918  1975 SCC  (1)  76  CITATOR INFO :  F          1976 SC1187  (29)  F          1977 SC1634  (5,9)  R          1982 SC 149  (229)  E          1991 SC 101  (227)

ACT: Representation   of  the  People  Act  (43  of   1951),   s. 123(i)(A)(a)--"Withdraw from being a candidate." if includes "retire  from  contest  after last  date  of  withdrawal  of candidature under s. 37."

HEADNOTE: With  respect  to  the election  to  the  State  Legislative Assembly  the last date for filing nominations was fixed  on 11th  February,  1972, and the last date for  withdrawal  of candidature was fixed on 14th February, 1972.  The poll  was held  on 11th March, 1972 and the appellant, who polled  the highest number of votes, was declared elected on 12th March. The  respondent filed an election petition  challenging  the appellant’s election alleging that he was guilty of  several corrupt  practices.   The  High Court found  that,  (1)  the appellant  committed  a  corrupt  practice  by  hiring   and procuring  two jeeps and two trucks for the free  conveyance of  electors to and from the polling stations, and (2)  that the appellant committed bribery within the meaning of s. 123 (1)(A)(a)  in  so  far as he, on March,  10,  1972,  made  a payment  of Rs. 1000/- to one of the contesting  candidates, with  the object of inducing him to continue to stand  as  a candidate  at the election and not to withdraw from  it,  in order to wean away votes of Harijans and members of backward classes  from the respondent; and set aside the  appellant’s election. in appeal to this Court, HELD  :  (1)  On the evidence, there was  proof  of  corrupt practice  by  the appellant only in relation to  one  truck. There  was no acceptable evidence regarding the  two  jeeps, and, with respect to the other truck, though it was used for the  purpose of conveying electors it could not be held,  on the  evidence that the appellant or his election  agent  had procured it for the conveyance of electors.  But on that one single  ground of corrupt practice found, the order  of  the

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High Court setting aside the election of the appellant  must be confirmed. [933 E; 934D; 937 A-B; 939 G] (2)  The  High  Court erred in holding that  there  was  any bribery by the appellant within    the   meaning    of    s. 123(1)(A)(a) of the Representation of the People  Act, 1951, with respect to one of the contesting candidates as  alleged by  the  respondent.  It must also be held on  the  evidence that  even  if  any  amount  was  paid  to  that  contesting candidate it was not with the object of inducing him not to withdraw from the contest. [929 F] (3)  Further, s. 123(1)(A)(a) is inapplicable to a situation where a candidates  retires from the contest after the  date fixed for the withdrawal of his candidature., The words  "to withdraw  or not to withdraw from being a candidate’ in  the clause refer to the stage of withdrawal of candidature under s. 37, and they do not   apply   to  a  situation  where   a contesting candidate announces that he does rot   wish    to contest  the election or declares his intention to sit  down after the last date for the withdrawal of candidature  under s.  37  is  past  and a list  of  contesting  candidates  is published under s. 38. [940 H-941 C; 946 C-F] (a)  The  democratic  form of Government requires  that  the election process must remain pure and unsullied.  To  secure this various provisions have been made in the Representation of  the People Act, 1951, one of which is s. 123  (1)(A)(a). It  must,  therefore,  be construed so as  to  suppress  the mischief  and  advance the remedy.  But that does  not  mean that  a  construction should be adopted  which  ignores  the plain natural meaning of the words or disregards the context and the collocation in which they occur.  The words used  by the  legislature must be construed according to their  plain natural  meaning,  and,  in order  to  ascertain  that  true intention of the legislature the court must not only look at the  words used by the legislature but also have  regard  to the  context and the setting in which they occur.  The  word "context" is used in a vide sense which 919 requires that all the provisions of the Act which bear  upon the same subject matter must be read as a whole and in their entirety, each throwing light and illumining the meaning  of the other. [943 F-944 C] (b)  Section  55-A relating to retirement from contest,  was introduced  in the 1951-Act by the Amending Act 27 of  1956. The  Amending Act amended s. 123(1)(a) also, by  adding  the words  "or  to retire from contest and  the  amended  clause provided   that,  bribery  with  the  object,  directly   or indirectly, of inducing a person to stand or not to stand as or  to  withdraw from being a candidate or  to  retire  from contest  at  an election, shall be deemed to  be  a  corrupt practice.    Section  55A,  however,  was  deleted  by   the Amendment  Act,  58  of  1958.   Since  the  provision   for retirement  from  contest  was  thus  deleted  consequential changes  were  also made in, s. 123(1) (a) by  deleting  the words "or to retire from the contest," from it. 1946 F-G] (c)  The  addition of the words "to retire from the  contest in s. 123(1)(a) after the introduction of s. 55A in the  Act shows  that  the original words "to withdraw  from  being  a candidate were not regarded as sufficiently comprehensive or wide  enough  to  cover  a  situation  where  a   contesting candidate  retires from the contest.  The court  should,  as far as possible, construe a statute so as to avoid tautology or superfluity.  It would not, therefore, be right to  place a meaning on the words "to withdraw from being a  candidate" which  would have effect of rendering the  succeeding  words "to  retire from contest" superfluous and meaningless.   The

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Court  must proceed on the basis that the words  "to  retire from the contest" were deliberately and advisedly introduced by  the  legislature  with the definite  purpose  of  adding something  which  had  not  been  said  in  the  immediately preceding words and were not intended merely to repeat  what was  already  enacted there.  The words  "to  withdraw  from being  a candidate" could not therefore. at that  stage,  be read  as applying to an event where a  contesting  candidate retires  from the contest.  And if that was the  meaning  of those  words then, the subsequent deletion of the words  "to retire from the contest" could not have the effect of adding to or expanding that meaning. [946 F-947 E] (d)  The  words "to withdraw from being a candidate"  cannot be  read  in  isolation.   The  concept  of  withdrawal   of candidature is already dealt with in two earlier provisions, namely, ss. 30(c) and 37.  Section 30(c) speaks of the  last date for withdrawal of candidature, and how the  candidature may  be with,drawn on or before the last date,  is  provided for  in  s.  37.  It is reasonable to  presume,  though  the presumption  is not of much weight and can be  displaced  by the context, that the expression "withdrawal of candidature" is used by the legislature in all these sections in the same sense.  Therefore, in s. 123 also, the expression must  mean withdrawal  before  the last date fixed  for  withdrawal  of candidature as contemplated in s. 37. [946 A-F] Mills   v.  Mills  (1963)  p.  329  and  I.R.C.  v.   Henry. Anisbacher &- Co., [1963] A.C. 191. referred to. (e)  Further,  the  word "withdraw" in the clause  does  not stand  alone.   It is part of a  composite  expression,  "to withdraw  from being a candidate." When a  person  withdraws from, being a candidate, he ceases to be candidate, that is, he  is  no  more  a candidate.   Clause  (b)  (i)  uses  the expression  "having withdrawn his candidature" and  Cl.  (B) (b)  uses the expression "to withdraw his  candidature  they denote the same idea.  The only mode in which the  candidate can withdraw his candidature and cease to be a candidate  is that  set out in s. 37.  Until the last date for  withdrawal of  candidature  he  has a locus  poenitentiae  and  be  can withdraw  from  being  a candidate by  giving  a  notice  in writing  to that effect under s. 37; but once that  date  is past,  he  becomes  a contesting candidate  and  he  has  no choice.   No subsequent change of mind can help him  to  get out of the fight; and whether he likes it or not, whether he energizes  himself or not, whether he actively campaigns  or not,  he remains a contesting candidate and the  voters  can cast  their  votes  for  him and  even  elect  him,  despite himself.   He  cannot, therefore, cease to be  a  contesting candidate,  and if that be so, it must follow  a  fortiorari that  he  cannot withdraw his candidature or  withdraw  from being  a  candidate, once the last date  for  withdrawal  of candidature under s. 37 is past [945 C-H] 920 (f)  The different view taken in Mohd.  Yunus Saleem’s  case (A.I.R. 1974] S.C. 1218) is erroneous and must be overruled. That  case placed emphasis upon the etymological meaning  of the  word  "withdraw" ignoring its contextual,  setting  and interrelation  with  the other provisions of  the  Act,  and without  considering  the  effect of  the  introduction  and deletion of s. 55A.  Even if "withdraw" were  etymologically comprehensive  enough to connote" retirement  from  contest, "retirement from contest" is impossible under the Act  after the deletion of s. 55A.  The Court was also impressed by the fact that if the words "to withdraw from being a  candidate" were  given  a restricted meaning confined to the  stage  of withdrawal  of candidature under s. 37, an  absurd  position

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would  arise " 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." But  the function  of  the court is to gather the  intention  of  the legislature  from the words used by it and it would  not  be right  for  the  court  to attribute  an  intention  to  the legislature, which though not justified by the language used by  it, accords with what the court conceives  to  be-reason and  good sense and then bend the language of the  enactment so as carry out such presumed intention of the  legislature. For  the  Court to do so would be to  overstep  its  limits. Factual withdrawal under the Act has no legal effect.  It is no withdrawal at all, because, the candidate continues to be a  contesting candidate and he is as much in the contest  as he  was before the announcement.  The word "withdrawal",  in the context in which it occurs cannot be read in a loose and in exact sense to mean something which it plainly does  not. [947 H-948 H]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 936 of 1973. Appeal from the Judgment & Order dated the 1st May, 1973  of the  Punjab & Haryana High Court in Election Petition No.  9 of 1972. Kapil Sibal, S.K. Mehta, M. Qamaruddin and Vinod Dhawan  for the appellant. E.C. Agarawala and Anand Swarup, for respondent.  No.  1. The  Judgment of D. G. Palekar and R. S. Sarkaria,  JJ,  was delivered by Palekar, J., P.N. Bhagwati, J. gave a  separate opinion. PALEKAR J.-This is an appeal filed by one Umed Singh who was unseated  by an Order passed by Narula, J. of the  Punjab  & Haryana High Court in Election Petition No. 9 of 1972.   The election  was to the Haryana Legislative Assembly  from  the Meham Assembly Constituency in Rohtak District in the  State of  Haryana.  Four candidates contested the  election.   One Raj  Singh  was set up by the Ruling Congress Party  and  he polled 19,042 votes.  Chatru was set up by the Kisan Mazdoor Party and he polled 4,546 votes.  The present appellant Umed Singh  stood as an Independent candidate and  polled  19,654 votes.   Another  candidate Tale Ram who also  stood  as  an Independent candidate polle 493 votes.  Since the  appellant Umed Singh who was respondent No. 1 in the Election Petition polled the highest number of votes he was declared  elected. He  was  declared  elected on  12-3-1972  and  the  Election Petition  was filed by Raj Singh, the Congress candidate  on 26-4-1972. The  last date for filing nominations was 11-2-1972 and  the last  date for withdrawal was 14-2-1972.  The poll was  held on  11-3-1972 and as already stated the result was  declared on 12-3-1972. 921 The  Election  Petition  was filed on the  ground  that  the appellant   Umed  Singh  was  guilty  of   several   corrupt practices.   The  learned Judge held that  all  the  alleged corrupt  practices  had  not  been  proved  but  some  were. Accordingly, the appellant’s election was set aside. The corrupt practices of which the appellant was held guilty are as follows               (1)   That  the  appellant  committed  bribery               within the Meaning of section 123(1)(A) (a) of               the Representation of the People Act, 1951  in               so far as be, on March 10, 1972 made a payment

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             of   Rs.   1,000/-  to   Chatru-one   of   the               candidates-with the object of inducing him  to               continue  to  stand  as  a  candidate  at  the               election and not to withdraw from the same.               (2)   That the appellant committed the corrupt               practice  within the contemplation of  section               123(5) of the Act by hiring and procuring  the               following vehicles for the free conveyance  of               electors  to and from the polling stations  on               March 11, 1972 between 8.00 A.M. to 5.00 P.M.               (a)   Jeep No. PNR 5021 for free conveyance of               the voters to and from the polling Station  at               Madina  from the interior of the  village  and               from the fields outside the village.               (b)   Jeep No. RRK 668 to and from the polling               Station  at  Sizar from the  interior  of  the               village  and  from  the  fields  outside   the               village.               (c)   Truck  No.  RRN  8567 to  and  from  the               polling   station  at  Chandi   from   village               Indergarh where there was no polling  station;               and               (d)   Truck  No.  HRR  7101 to  and  from  the               polling  station at Seman from  village  Bedwa               where there was no polling station. In  the  present appeal the appellant has  challenged  these findings both on facts and law. Raj  Singh,  the defeated candidate, who  is  the  principal contestant  before  us,  has not only  supported  the  above findings of the learned Judge but has also claimed a finding in  his favour that the election was liable to be set  aside on  the ground that the appellant had committed the  corrupt practice  within  the  contemplation of  section  123(7)  by obtaining  and procuring the assistance of one  Dhir  Singh, s/o Jodla Singh, a member of the Armed Forces of the Union.. for  the  furtherance of the prospects of  his  election  by actually  canvassing support for him in village Bedwa.   The learned  Judge recorded a finding against Raj Singh, but  it is  contended  on his behalf hat the finding  is  manifestly against the evidence. As already stated the learned Judge had to deal with several allegation  of corrupt practices.  A large majority of  them have been dis- 922 counted  by him and in his view only 5 of them as  mentioned above had been satisfactorily established.  Undoubtedly  the learned judge had to deal with a case in which the  evidence was,  for the most part, suspect and in this respect we  can do no better than quote the learned Judge on the point. "It appears to be not only appropriate but necessary to give a  brier account of the peculiar background of this case  in the light of which the entire evidence led by the parties on the various issues has to be appraised.  There exists a some what fluctuating non-official and nonpolitical  Organisation in  Meham  Constituency  which is  known  as  the  Chaubisee Panchayat  or  the  Chaubisee.   Originally  there  were  24 villages  and  the  residents of  those  villages  or  their representatives  used  to  get together  and  whatever  they decided  was called the decision of the Chaubisee.  P.W.  17 Swami  Indervesh has told the Court that now those  villages have  been split up into more than 24, but still  the  joint decision of the representatives of those villages is  called the decision of the Chaubisee.  The Moham constituency falls within  the  area of the Chiaubisee with  the  exception  of possibly  some  villages which do not strictly  fall  within

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that  area.   It appears that this  traditional  nonofficial panchayat  has  stilt  a  good deal  of  following  and  its decision  in political matters carries some weight.   It  is the  common  case of both sides that though  the  respondent (the  present appellant) had stood up to fight the  election in question as an Independent candidate, he had been adopted as the candidate of the Chaubisee and was fully and actively supported  by the Jan Sangh, the Congress (0) and  the  Arya Sabha.   Though  the  Arya Sabha had put  up  some  official candidates  in other Constituencies for the election to  the Haryana  Assembly  held  in  March,  1972  and  though   the respondent (the appellant) was not their official candidate, the  Arya  Sabha had somehow taken it for granted  that  the respondent (the appellant), if successful, would be as  good as  being their candidate as he was an active and  important member of the Arya Sabha.  Out of the official candidates of the Arya Sabha only one succeeded in the election.  The Arya Sabha, however, counted the respondent (the appellant)  also as  their successful candidate and hoped that he would  also join  the  Arya  Sabha as he had  been  elected  with  their support and efforts.  The respondent (the appellant),  after having been elected, frustrated the hopes of the Arya  Sabha and  the  other  opposition parties.  When  the  Arya  Sabha staged a dharna outside the Haryana Assembly on its  opening day,  the respondent (the appellant) did not join  the  same though  he  was  expected to do so.   When  the  Arya  Sabha convened  a  meeting  to  felicitate  the  respondent   (the appellant) on his success and made all arrangements for  the same  and proclaimed to the public that the respondent  (the appellant) would be honoured in the meeting, the  respondent (the appellant) refused to even join and attend the meeting. Not  only  did the resPondent (the appellant) let  down  the parties  which  had combined to make him successful  in  the election, but he applied for joining the Congress (R).  This conduct of the respondent (the appellant) broke the  camel’s back  and some workers of all the three opposition  parties, that is the Arya Sabha, the Jan Sangh and the Congress  (0), combined 923 to  take  a revenge by undoing the wrong which  appeared  to have  been;  done  to them, by  helping  the  petitioner  in getting the respondent (the appellant) unseated if  possible by making available to the petitioner ail available material of which those members of the opposition parties happened to be  in  possession  on  account of  their  having  been  the erstwhile supporters of the respondent (the appellant.)  The seal with which some of the active workers of the respondent (the  appellants  had assisted him in the election  was  now diverted  against the respondent (the appellant) as soon  as those  workers  were  cut  to the  quick  by  the  political somersault  taken  by the respondent (the  appellant).   All those workers of the respondence (the appellant), therefore. focussed their fangs on the respondent (the appellant) It is in these circumstances that there is visible throughout this case  a  regularly  organised attempt on  the  part  of  the respondent’s (appellant’s) erstwhile workers to deprive  the respondent  (the appellant) of the fruits of the  labour  of those workers." One  has  to keep these observations of  the  learned  Judge steadily  before one’s mind while appreciating the  evidence in  this  case.  We shall proceed now to deal with  the  six findings challenged before us in the order mentioned above. The case with regard to the bribery of candidate Chatru  was that  Chatru  was  set  up as a  candidate  by  the  present appellant  in Order to wean away the votes of  the  Harijans

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and  members  of  the backward classes from  Raj  Singh  the Congress candidate.  There were about 8,000 to 10,000 voters in  the Constituency belonging to that category and  Chatru, being a member of the backward class, was expected to obtain the  votes  of those classes which, it is alleged,  used  to vote  solidly in favour of the Congress candidate in  former elections.   Indeed.   Chatru  was  formally  set  up  as  a candidate  of  the Kisan Mazdoor Party which had  come  into existence in recent years.  But since it was impossible  for a member of the backward class to fight an election for want of  funds the appellant, it is alleged, agreed to put him in possession    sufficient  funds  to  carry  on  his  election campaign. in pursuance of’ the agreement, it is alleged,  he was  paid  in all Rs. 6,500/- on  four  different  dates-Rs. 2,000/-  on  February 11, 1972 Rs. 3,000/- on  February  14, 1972,  Rs. 5001- on March 6. 1972 and Rs. 1,000/- on  March, 10,  1972.  The appellant denied having set up Chatru  as  a candidate or having paid him any amount at any time and  for and   purpose.  The  learned  Judge  did  not   accept   the allegations  with  regard to corrupt    practice  except  in respect  of  Rs. 1,000/- alleged to have been  paid  on  the afternoon  of March 10, 1972 which was the day  previous  to the  date  of  polling.   With respect to  the  sum  of  Rs. 1,0000/- he recorded’ the finding that Subedar Bharat  Singh who  was  the Election Agent of the appellant had  sent  Rs. 1,000/-  in  cash on March 10, 1972 to  Chatru  through  one Balbir  Singh, P. W. 5 and that the said amount was in  fact paid to Chatru at Meham with the object of inducing   Chatru "not to withdraw from the contest." It  is  contended on behalf of the appellant  firstly.  that there was no truth in the allegation that the appellant  had through his election, 924 agent paid any amount to Chatru on March 10,1972, much  less with the object of inducing Chatru not to- withdraw from the contest.  Secondly, even assuming that the amount was  paid, the evidence-which the appellant described as false-fell far short of proving that the amount was paid with the object of inducing  Chatru  not to withdraw from the contest.  it  was contended  that  the learned Judge fell into  the  error  of treating  the expression "withdraw from being  a  candidate" found   in   section  123(1)  (A)(a)  as   synonymous   with "withdrawing  from the contest" when the evidence, taken  at its  worst, disclosed no more than that Chatru was a  little lethargic, for want of funds, in the pursuit of his campaign on March 10, 1972 and the payment had been made with a  view to  activist  him in his campaign.  It  was  contended  that appellant was entitled to a finding in his favour on the two above questions.  In any event, it was further contended  on behalf  of  the appellant that there could be,  in  law,  no withdrawal  from  being  a  candidate  after  the  date  for withdrawal was long past on 14-2-1972. While approaching the question of payment of Rs. 1,000/-  on 10-3-1972  we cannot ignore the fact that the case was  that Chatru was paid in all Rs. 6,500/- by the appellant for  his election  purpose and the learned Judge has disbelieved  or, at  any  rate,  not accepted the story with  regard  to  the payment  of  Rs. 5,500/-.Chatru in his  return  of  expenses submitted  to the Election Commissioner had stated that  the total  expenditure  incurred by him was Rs.  900/-.  it  was argued  that it is well-known that candidates do not make  a truthful  report  about the expenses  and,  therefore,  much significance may not be attached to the statement  submitted to  the Election Commissioner.  Be that as it may,  we  must further  note that Chatru had been set up as a candidate  by

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the Kisan Mazdoor Party which had set up 15 or 16 candidates in other constituencies, also.  Top officials of that  Party land  other sympathizers had campaigned for the  success  of their  candidates  and  it is admitted by  Chatru  that  the campaign was also made in his behalf in his constituency  by his  Party.  Chatru has given evidence on behalf of  himself as  R2W1 but his evidence is completely biased  against  the appellant  who is supposed to have helped him with funds  in his election campaign.  If one goes through his evidence one finds  that he has come into the witness box only  to  prove the  case of the Congress candidate Raj Singh.  On the  face of  it, therefore, his evidence is very suspect  because  on his  own showing he was wholly hostile to the  appellant  in the witness box in spite of his case that the appellant  had helped  him  in  the election campaign by  making  over  Rs. 6,500/to him.  But if one has to take him at his word, it is clear that he must  have spent more than Rs. 6,000/- for his electioneering  and on the finding of the learned  Judge  no more  than Rs. 1,000/- should have been given to him by  the appellant.   In that case it is difficult to see where  from Chatru  got  the  balance  of the amount  to  spend  on  his campaign.   Evidently a sum of Rs. 1,000/- supplied  by  the appellant on the eve of the election could not have possibly sustained  his  electioneering, which had started  from  the second week of February, 72.  There-  fore, the story  about the payment of Rs. 1,000/- on 10-3-1972 has to be approached with a good deal of circumspection. 925 It is obvious that the learned Judge would have rejected the evidence of Chatru with regard to the payment of Rs. 1,000/- also.  but  the  fact  that he found  that  there  was  some documentary  evidence  which supported  Chatru’s  statement. The  case is that on the morning of 10-31972  the  appellant and  his  election agent Bharat Singh met him  and  enquired from him why he had "turned so lethargic".  Chatru says that he told them that he had exhausted his funds, whereupon they promised  to  send him the money.  In the afternoon P  W.  5 Balbir Singh came and delivered a sum of Rs. 1,000/- to  him and obtained his signature on a piece of paper.  It is  this piece  of paper and the writing thereon which has very  much impressed the learned Judge and that appears to be the chief reason why he came to the conclusion that this amount of Rs. 1,000/- must have been paid on that day.  The piece of paper is Ext.  PW. 5/1.  There is a writing thereon admittedly  in the hand of Subedar Bharat Singh which reads as follows:               "Bhai  Chatru, main ap ke pass ek hazar  rupia               bhej raha hoon, so aap chunao men mazbooti  se               datte rahen." which  means  that the writer had sent Chatru a sum  of  Rs. 1,000/- so that he may stand "steadfastly in the  election". Subedar  Bharat  Singh  who was examined on  behalf  of  the appellant as R1W27 admits that this was his writing.  But he explains  that the writing was a fabrication designed to  be used for the purpose of toppling the appellant who after his election  with the help of the Arya Sabha and other  Parties had  turned disloyal to his supporters.  It appears that  in the first week of April, 72 i.e. the very week in which  the new Assembly was to meet, the appellant decided to join  the ruling Congress.  Bharat Singh has explained that he was  so annoyed  by the turn-coat activity of the appellant that  he became  a party to a conspiracy to create evidence  for  the purpose of helping the election petition which was  expected to be filed by Raj Singh.  He said that he had not sent  any amount  with any body for payment to Chatru on that day  and the whole thing was a concoction.  The learned judge was  no

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doubt justified in his severe criticism of this witness, but we  feel  that  he lost sight of the caution  which  he  had himself administered with regard to the appreciation of  the evidence  in this case.  The fact is  well-established  that the  former supporters of the appellant had been  very  much put  out  by  the  disloyal activity  of  the  appellant  in deciding to join the ruling Congress Party and the witnesses who  appeared  in support of the election petition  made  no secret  of  the fact that they were after the blood  of  the appellant.   Therefore,  it  is not  beyond  the  bounds  of probability  that  in the first wave  of  indignation  which swept  over the appellant’s former supporters, Bharat  Singh who  was  the elect-on agent of the appellant and  had  done considerable  work  on behalf of the appellant  should  have agreed to write something which would be detrimental to  the interests  of the appellant in the election  petition.   The Writing on the very face of its looks extremely  artificial. Chatru  had stated that the appellant and Bharat  Singh  had seen  him earlier that day and promised to send  him  money. So  all  that Bharat Singh need have done was  to  send  the money  to  Chatru  with the messenger  or  taken  the  Money himself  to Chatru who was at the time in the  same  village Meham. 926 it  was not necessary for him to write at all, much less  to say  that he was sending Rs. 1,000/- "so that he  may  stand steadfastly  in the election", an expression  which  clearly echoes  the supposed requirements of  section  123(1)(A)(a). Moreover’ it requires considerable credulity to believe that Bharat Singh would send a message of this nature in  writing to  Chatru  placing in his hands an  instrument  capable  of being  used to blackmail the appellant should he succeed  in the  election.   A piece of writing of this  nature  in  the hands of a man of the type of Chatru, as we know him,  would have been incredible folly.  Subedar Bharat Singh must  have been   selected  as  an  election  agent  because   of   his experience,  and we know that the gentleman had on a  former occasion, stood as a candidate to the Lok Sabha election. It appears  to  us  that the learned appears  to  us  that  the learned  Judge  has not given sufficient attention  to  this aspect  of the case.  He merely went by the Writing and  the evidence  of  Balbir Singh, P.W. 5. according to  whom  this writing had been handed over alongwith a sum of Rs.  1,000/- by  Bharat  Singh to him to be delivered to  Chatru,  Balbir Singh  who is about 30 years old is admittedly a  member  of the Arya Sabha.  He claims to have worked in the election of the  appellant.   He says that Bharat Singh  gave  him  Ext. P.W.  511 and also a sum of Rs. 1,000/- to be  delivered  to Chatru  and his case is that he went to Chatru and gave  him the  money.  He took his signature on the back of the  chit. It is rather interesting to know that Chatru is  illiterate. He doesn’t know how to read and write.  He can merely  sign. It  is neither the case of Chatru nor of Balbir  Singh  that the message contained in the writing was read out to Chatru. Nor  was his signature taken formally below the  writing  to the effect that Chatru had received Rs. 1,000/-. Now  if  this story of Balbir Singh were to be  believed  we should  expect  that  this document with  the  signature  of Chatru on the reverse should have gone back to Bharat Singh. But  he  did not get it back.  Balbir says that he  kept  it with himself.  According to him some 8 or 10 days after  the election  on 11-3-72 he told about this payment to  one  Beg Raj,  P.W. 14 who was also a member of the Arya  Sabha.   He further says that Beg Raj reminded him that they had done  a good deal of work for the appellant in the election and  now

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he  had  given  up the Arya Sabha and  joined  the  Congress Party.  He, therefore, requested Balbir to accompany him  to the defeated Congress candidate Raj Singh to enquire if this information  would  be of any use to him.  So both  of  them went  to Raj Singh at Rohtak and showed him this  chit  Ext. P.W. 511.  Raj Singh asked for the chit but Balbir told  him that he will not part with it now, but that he will  produce the  chit in court and thus when Balbir was examined as  Raj Singh’s witness he produced this document in court.  One can see the hostility with which this witness as also the  other witness  Beg  Raj, P.W. 14 pursued the appellant.   Both  of them  belong to the Arya Sabha which had  solidly  supported the  appellant  in the election and it is easy to  see  that they  were inclined to leave no stone unturned to  see  that the  appellant who had succeeded in the election  should  be defeated in court.  That the story given by Balbir Singh  is patently  false is clear from the fact that he says that  he had  gone  with  this chit alongwith Beg Raj  to  Raj  Singh within 8 or 10 days after the election.  As a matter of fact 927 this  was not at all possible, because at the relevant  time the  appellant  had not shown his inclination  to  join  the Congress  Party.  He was waiting for a  proper  opportunity. The  new Assembly session was to meet in the first  week  of April and it is only thereafter that the appellant made  his intentions known.  In our opinion, neither Chatru nor Balbir nor Be.- Raj could be trusted as reliable witnesses in  view of  their open hostility to the appellant, and since  it  is extremely unlikely that the Subedar Bharat Singh would place a  chit  like P.W. 5/1 in the hand of Chatru  prior  to  the election, we cannot accept the finding of the learned  Judge that the writing was a genuine document sent by Bharat Singh on the 10th March, 1972.  It is also absurd to believe  that Chatru  would become "lethargic" in his campaign on the  eve of the election. it is not the case that he did not actively campaign  for himself’ alongwith his supporters and  members of  his Party earlier.  One does not quite see how a sum  of Rs. 1,000/- placed in his hands in the afternoon of  10-3-72 would give a sudden fillip to his dropping spirits.  He  was a member of a Party which had set up 15 or 16 candidates  in the  field in other constituencies and it is  impossible  to believe  that Chatru’s spirits suddenly dropped on the  10th March, 1972 for want of funds. A  crude attempt was further made by another sympathizer  of the  Arya Sabha to give added credence to the  writing  Ext. P.W.  511.  That is P.W. 10 Munshi Ram.  He claims  to  have run the election office of the appellant during the election campaign  and in the course of his duties he kept,  what  is called,  a  Register  Which  is  P.W.  19/1.   The  Register describes itself as a "Register of Vehicle arrivals and  de- parture from 28-2-1972 to 15-3-1972".  It is true that  some entries  have been made with regard to vehicles therein  but alongwith  them  other  memos are also to be  seen  in  some places and there are entries for some payments also.  It was an  unpaged  book-before it was produced in court.   It  was paged by order of the learned Judge.  Pages 39 to 42  relate to  entries  showing the distribution of  voters  lists  and other  materials  to  the workers  of  the  appellant.   The appellant  has accepted these entries as genuine but so  far as the other entries are concerned they are not accepted  by the  appellant.  In fact the appellant put forward the  case that all the other entries were fabrications made by  Munshi Ram after the election.  We do not think the, the  appellant is  telling the truth in that respect.  Many entries may  be quite  true but the book cannot be described as a book  kept

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in  the regular course of business.  It is kept in a  shoddy manner  and  most irregularly.  Many odd entries  have  been made  at odd places.  Some entries and memo, important  from our   point  of  view,  have  the  distinct  appearance   of interpolations.   The book is not kept continuously.   After making some entries on some pages many pages are left  blank and  then further entries are made.  Then again  long  notes and memos in Urdu are entered in a queer fashion not  merely in  the  reverse order as Urdu books are  written  but  also after  turning the book topsy-turvy.  We cannot,  therefore, allow this memorandum book the dignity of a book written  in the  regular  course  of business.  No memo  or  entry  made therein  can  be accepted as reliable unless  the  court  is satisfied about the time at which or the 928 circumstances  in which it was made or the contest in  which it  appears.  We have no doubt at all, though it was  denied by  witness Munshi Ram, that he made this book available  to the petitioner who produced it alongwith the petition.  Some of  the entries were deliberately introduced with a view  to help the election petitioner. Having  thus seen that the so-called register P.W.  19/1  is not reliable in itself we have now to refer to a long  entry made  therein  in  Urdu which  seems  to  have  considerably impressed  the learned Judge on this subject of  payment  of Rs.  1,000/-.  This entry is nearly at the other end of  the book at page 94 and when translated in as follows :               "10/3  at about 3.00 p.m. (though)  supporters               of Raj Singh started a false propaganda to the               effect   that   Chatar  Singh   (Chatru)   has               withdrawn  from the contest and supporters  of               Chatar Singh should therefore cast their votes               carefully  (yet) it does not appeal to  reason               that Chatar Singh might have thought of taking               such a step even in a dream.  It is  necessary               to contact Chatar Singh immediately and it  is               necessary  to  have a  contradiction  of  this               false  rumor  being  proclaimed  as  soon   as               possible  from Chatar Singh himself  and  from               his supporters." The learned Judge has fallen into the error of thinking that this  entry  in the book went a long way in  supporting  the case   of  the  petitioner  that  Chatru  must   have   been contemplating withdrawing from the contest on the  afternoon of  10-3-1972.   One does not see why it was  necessary  for Munshi  Ram  to  make such an entry.   Munshi  Ram  was  not directing   the   election  campaign  nor  was   he   giving instructions  as to what was to be done from hour  to  hour. In  fact  it was the case of the  election  petitioner  that Chatru  was  contacted earlier by the appellant  and  Bharat Singh the learned Judge says that this was in the morning of 10th March, 72, and Chatru had been informed by them that he will  receive the necessary funds so that he may.  put  more vigour in his election campaign.  It is also stated that  in the.  afternoon the amount of Rs. 1,000/- was  delivered  to Chatru through Balbir Singh If that story is true, one  does not see the propriety of Munshi Ram writing such a memo at 3 00  p.m.  when he himself did not believe  the  rumour  that Chatru  was  wanting to withdraw from the  contest  and  was convinced   that  that  rumour  had  been  started  by   the supporters of Raj Singh falsely.  It appears to us that this entry  is  a  suspicious entry made by Munshi  Ram,  in  all probability,  after  it was decided to make this  note  book available  to the election petitioner.  In our opinion,  the learned  Judge was not justified in relying upon  this  memo

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made  in  an  odd place in the book  in  a  very  artificial manner. Reference was also made to some other evidence on record  to show that since the appellant was very much interested  that the  backward class and Harijans votes should not go to  Raj Singh, the Congress candidate, there was considerable  force in the allegation made by Chatru that he had been set up  by the  appellant  with a promise of financial  help.   In  the first place, it must be remembered that Chatru was set up as a candidate by tne Kisan Mazdoor Party.  It may be that  the appellant would be very happy if a certain block of votes 929 is  denied to an opposing candidate.  The principal  contest was between the Congress candidate and the appellant.  It is not  the  case that Chatru would have been  able  to  defeat either  of them in the election.  At the same time there  is no  clear evidence that members of the Scheduled castes  and backward classes would have voted for the Congress candidate if there was no backward class candidate.  Then again it was difficult  to  assert that if no Harijan or  backward  class candidate  was in the field the Harijans and backward  class votes would not have gone to the appellant.  For the  matter of  that,  P.W. 30 Mani Ram who is the resident  of  village Bedwa  has  stated that there was greater  support  for  the appellant  in  his  village  than for  Raj  Singh  and  that actually  voters  of all classes in  the  village  including Jats, Harijans and members of the backward classes supported his  candidature.   Indeed it is one thing to say  that  the appellant Might have been happy if votes which were  usually cast  in  favour  of the Congress  candidate  were  cast  in Chatru’s favour and quite anothersay  that with a view  to wean      away the votes from the Congress candidate he  had put up a backward  class candidate like Chatru with  promise of  financial support.  The learned Judge has negatived  the payment  of Rs. 5,500/- to Chatru and we have negatived  the payment  of  Rs.  1,000/- to him, in  which  case  the  only conclusion is that there was no financial support to  Chatru from  the appellant.  When we take this fact  alongwith  the fact that Chatru had been set up by his own party which  had put  up 15 or 16 more candidates in other constituencies  it will  be impossible to hold that Chatru had been set  up  by the  appellant.  They may know each other very well and  the appellant may be also glad that Chatru had polled more  than 4,000  votes  which,  if distributed  unevenly  between  the appellant and the Congress candidate, might have made a  lot of  difference to the narrow margin by which  the  appellant won over Raj Singh.  The appellant may have also taken  very kindly  to  Chatru  after his victory  and  both  were  also photographed  with garlands in the victory procession.   But that is far from saying that the appellant inspired Chatru’s candidature and helped him with financial support.  We  are, therefore, not inclined to agree with the learned Judge that there  was any bribery by the appellant within  the  meaning section of 123(1)(A)(a) of the Act. That brings us to the second question raised by the  learned counsel for the appellant.  It was contended that even if it was assumed that the appellant had paid Chatru a sum of  Rs. 1,000/-  on 10-3-1972 the payment was not shown to  be  with the object of inducing Chatru " not to withdraw from being a candidate" at the election.  The expression postulates  that Chatru  should want to withdraw from being a  candidate  but the  appellant  paid  him  the amount  with  the  object  of inducing him "not to withdraw".  The learned Judge seems  to have  understood  the  expression  "withdraw  from  being  a candidate" as synonymous with "Withdraw from the contest" or

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"retirement   from  the  contest"  and  the  withdrawal   or retirement from the contest )nay   take place, in his  view, at any time before the actual polling.  We shall  hereafter, show  while  dealing with the third question raised  by  the learned  counsel  for  the  appellant  that  the  expression "withdraw  from being a candidate" has no application  to  a situation wherein. 13--M192Sup.CI/75 930 the  withdrawal or retirement from the contest  takes  place after  the last date of withdrawal of candidature  fixed  by the Election programme.  Assuming, however, that  expression extends  also  to a withdrawal or  retirement  from  contest after  the date of withdrawal, we have to see whether  there was evidence in this case to show whether Chatru had decided on  10th March, 72 to withdraw or retire from  the  contest, and  with a view to persuade him not to do so the  aforesaid amount of Rs. 1,000/- had been paid to him.  In our  opinion the evidence falls far short of it.  Chatru who should  know best his own mind does not say anywhere in his evidence that he was contemplating withdrawal from the contest on the 10th March, 72 or at any time.  His case is that he was not  able to  put  as much vigour in his campaign on  10-3-72  as  was necessary  for him to do for want of funds.   While  telling the court under what circumstances Rs. 1,000/- were paid  to him, he says in his examination-in-chief "on March 10,  1972 Chaudhary  Bharat Singh and respondent No.  1 again  met  me and  enquired why I had turned so lethargic.  I told that  I had  exhausted  my  funds.  They promised  to  send  me  the money".   Then Balbir Singh came and delivered a sum of  Rs. 1,000/-  to  him and obtained his signature on  a  piece  of paper.   He  then says that "he was taken round  in  a  Jeep fitted  with  a  loudspeaker which  announced  that  he  was seriously   contesting   for  the  election  and   had   not withdrawn." His statement does not show that he had  decided to  withdraw from the contest for want of funds.   All  that could  be gathered is that though he wanted to  contest  the election vigorously he could not do so for want of funds and that had rendered his campaign lethargic.  On receiving  the amount  he  got fresh impetus to campaign with  energy.   In other words, the money had been received by him for boosting his campaign and not because he had decided to withdraw from the  context.  We are unable to held that slackening of  the pace  of  a  campaign  for  any  reason  is  equivalent   to retirement  from  contest.  The latter takes  place  when  a candidate  finally decides not to have anything to  do  with the election and makes it fairly known that he is no  longer interested  in his own election.  We, therefore, accept  the contention of the learned counsel of the appellant that even if any amount was paid to Chatru it was not with the  object of inducing him not to withdraw from the contest. The  third  question raised by Mr. Sibal on  behalf  of  the appellant  is  that the provision  of  section  123(1)(A)(a) which  speaks of "withdrawal from being a candidate" at  the election  is inapplicable to a situation where  a  candidate retires  from  the  contest after the  date  fixed  for  the withdrawal of his candidature.  In making this submission he admits that he is flying in the face of a recent decision of this  Court  in Mohd Yunus Saleem v. Shivkumar  Shastri  and others (1) a decision to which one of us (Bhagwati, J) was a party.  The judgment of the Court was delivered by  Goswami, J. It was held in that case that the expression "to withdraw or  not  to  withdraw  from being  a  candidate"  cannot  be confined  to the stage where the law permits a candidate  to withdraw  from  the  election.  It  was  observed  that  the

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expression  is  of wide amplitude to  include  a  subsequent withdrawal or non-withdrawal even at the last stage prior to the poll.  It was held that the (1)  AJ.R. 1974 S.C. 1218. 931 word  "withdraw"  is comprehensive enough  to  also  connote "retire from contest".  In that case an allegation had  been made  that one Surendra Kumar, the alleged financier of  the B.K.D.  Party,  had  offered  to pay  Rs.  30,000/-  to  Rs. 35,0001-  to  a candidate named Malan if  the  latter  would withdraw from the contest and that one Shastri had similarly told  Malan  that if he withdrew from the contest  he  would recommend  him  for  a  seat  in  the  Legislative  Council. Thereupon  Malan told them 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.   It  was alleged that  the  above  offer  or promise  which  had been made was at the  instance  of  Shiv Kumar  who had been elected to the Lok Sabha  defeating  the rival  candidate  Mohd.  Yunus Saleem who was  the  election petitioner.   Two  questions  arose  for   consideration-(i) whether  there was any such offer or promise with a view  to induce  Malan to withdraw from the contest and (ii)  whether even  assuming  that gratification was offered to  Malan  to induce  him to withdraw from contesting the  election,  that would amount to a corrupt practice in-view of the fact  that this offer of gratification had been made after the date  of withdrawal  of  the candidature.  On facts, the  Court  held that there was no such offer or promise of gratification, on which  finding it was not really necessary to  consider  the second  question.  But it appears that since that point  was also  pressed the Court came to the conclusion that  it  was 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  when as a result of the gratification the candidate retired  from the contest after the date of withdrawal of candidature.  It appears  to  us  that  having  regard  to  the  history   of legislation  with  regard to the expression  "withdrawal  of candidature"  which  was unfortunately not  brought  to  the notice  of  the  court, the law as laid down  is  not  quite correct.   One of us (Bhagwati, J) has shown separately  how that view is not really sustainable.  We are quite aware  of the  fact that even at the point need not have been  decided in  the  former  judgment it need not  be  decided  in  this judgment,  because on facts we have come to  the  conclusion that  there  was no payment to Chatru.  But since  the  view taken  in Mohd.  Yunus’s case is binding on the High  courts it has become necessary for us to review that decision. This  brings us now to the second series of alleged  corrupt practices under section 123(5) of the Act.  That relates  to the  hiring or procuring of a vehicle by a candidate or  his agent  or  by  any  other person with  the  consent  of  the candidate or his election agent for the conveying of  voters to  or from any polling station free of charge.  Out of  the several  allegations  on this score, the learned  Judge  has accepted  as  proved allegations which have  given  rise  to Issues Nos. 13(ii) (iii)(iv) and (v).  The first two  issues relate  to  two  Jeeps alleged to have  been  used  for  the purpose,  and  the  last  two relate  to  two  trucks.   The vehicles  concerned are Jeep No. PNN 5021 of which  P.W.  26 Rajinder  Prasad was the driver.  The other Jeep is RSK  669 of  which  Jagdish Chander, P. N. 27 is the  driver.The  two trucks involved are HRH 8567 the driver of which was P.W. 24 Jagan Nath and the other truck

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932 is HRN 7101 of which P.W. 25 Simran Dass was the driver.  We shall  deal with the evidence with regard to these  vehicles one after another. Jeep No. PNN 5021 The  allegation was that this jeep had been procured by  the appellant  for  his election work and that it was  used  for free  carriage of voters to and from the polling station  at Madina on the polling date.  The principal evidence is  that of  the driver P.W. 26 Rajinder Prasad.  This  witness  says that  Jeep  No.  PNN  5021 had been taken  on  hire  by  the appellant,  the  hire  agreement being  that  the  appellant should  pay Rs.85/- per day in addition to bearing the  cost of petrol.  According to the witness it was hired from  12th February,  72 to 11th March, 72.  He further stated that  he was  on duty with the appellant, himself suggesting  thereby that  he  was  attached to him throughout  the  period.   He further stated that on March, 11 1972 i.e. the polling  day, he was on duty to bring voters from their fields and  houses to  the  polling  station at Madina,  though  he  could  not remember the location of the polling station.  The appellant has  denied  the hiring of this jeep at any time.   But  the Register  P.W. 19/1 does show that this jeep, had been  used for  election purposes the first entry being of 28th  Febru- ary,  72.   We are not disposed to  accept  the  appertain’s statement  in this respect but at the same time we  have  to see whether, as a matter of fact, this jeep, though it might have  been used for the election campaign of the  appellant, had  been  actually used for conveying the  voters  free  of charge to the polling stations.  The election petitioner has not examined any voter who came in this jeep to the  polling station.   Therefore, we have to rely almost wholly  on  the evidence of the driver Rajinder Prasad who, however, has not impressed us as sufficiently reliable.  In the first  place, his case is that this jeep was hired from 12th February,  72 but  the register P.W. 19/1 shows that it was used  for  the election  campaign for the first time on 29th February,  72. Secondly the jeep was not a local jeep.  Rajinder Prasad  is from Hissar and he is not the owner of the jeep.  The  owner would  have been the best person to speak about  the  hiring especially  as the jeep was supposed to have been hired  out for about a month.  The owner is not examined.  There is  no receipt for hiring or procuring of the said vehicle.  Though the  witness  says  that  this  jeep  was  attached  to  the appellant  throughout, we find from the register Ext.   P.W. 19/1  at page 9 that except on one day namely 3rd March,  72 the  jeep  was  under the control of  others.   The  witness further   shows   great   enthusiasm   in   saying   without justification  that there were three other jeeps  and  other vehicles, the members of which he could not remember,  which had been procured by the appellant for this purpose.  In his cross-examination he stated that one Tara Chand, Sarpanch of village  Seman had taken him to the appellant.   Tara  Chand examined  as a witness for the appellant (R.W. 18) does  not support  the statement.  In these circumstances, we find  it difficult to hold on the bare statement of this witness that on  11th  March  he had brought  voters  to  Madina  polling station.  It may well be that this particular jeep had  been used  in  the election campaign and the witness  also  might have been the driver 933 of the jeep.  But we are concerned with what had happened on 11th  March,  72,  i.e. the polling  day  and  to  determine whether  this jeep had been used for conveying  voters  from the  village  and the fields free of charge.   That  is  the

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important  point  to  be decided and having  regard  to  the general  unreliability of the witness, we do not think  that on  the  bare statement of this witness we can come  to  the conclusion  that  this  jeep was  used  for  the  particular purpose  on 11th March, 72.  Reference was made to an  entry in P.W. 19/1.  That entry is made by P.W. 19 Munshi Ram.  it purports  to say that this jeep was used from 8.00  A.M.  to 7.00 P.M. for polling duties.  That is the last entry on the page  made by a person definitely hostile to the  appellant. We cannot therefore, rely on it.  It appears from a  perusal of some of the pages of P.W. 19/1 that the last few  entries on successive dates appear to have been made at one time and with one pen.  Particular attention may be drawn to pages 21 and 23.  On both these pages it will be seen that the  three entries  from  9th March to 11th March appear to  have  been made at one time and with one pen.  All these entries are in the handwriting of Munshi Ram.  If we compare the entries of 9th  and 10th March made at page 10 we will find  that  they appear  to be in a pen different from the one not  only  for making  the  entry of 11-3-72 on that page but also  of  the entries  of 9th and 10th March on pages 21 and  23.   Hence, the  probability of the relevant. to entries being  made  by Munshi Ram for the purpose of this election petition  cannot be  eliminated.   We cannot, therefore, rely  on  the  entry dated  11th  March,72 at page 10 of the  Register.   In  our opinion,  there  is  no  sufficient  reliable  evidence  for holding  that  Jeep No. PNN 5021 had been  procured  by  the appellant for conveying the voters free of charge. We  then come to the second Jeep No. RSK 668 the  driver  of which  is one Jagdish Chander, P.W. 27.  In this case as  in the  previous one the driver is examined and not the  owner. The  owner  was  one Lala Pushotam Das  of  village  Ralwas, District  Hissar.   P.W. 27 Jagdish Chander  says  that  the appellant  had hired this jeep and that, actually, the  jeep worked  with  the appellant from 12th February, 72  to  11th March, 72.  This witness again says that on March 11, 72  he was on duty with the appellant for sometime in Maham and for the rest of the time in village Sisir.  According to him  he had  transported  voters  on that day to  both  the  polling stations  namely  Maham and Sisir.  As in the  case  of  the other  jeep no voter is called as a witness to show that  he was  conveyed free of charge to the polling station by  this jeep.   It  is admitted that the jeep had been used  in  the election  campaign  and,  as a matter of fact,  there  is  a receipt for Rs. 1,500/- given by the driver when he was paid this  amount.  That receipt is P.W.27/1. The  receipt  shows that the hire was from 22nd February, 72 till March 12, 1972 and that the driver had been paid a consolidated sum of  Rs. 1,5001  i.e.  to say, for hiring and  petrol  charges.   The witness admits having given this receipt but his case  seems to be that the contents thereof are not true.  According  to him the hiring, as stated earlier, was from 12th February to 12th March. 1972 the hire being Rs. 85/- per day besides the appellant bearing the petrol charges.  Thus the receipt 934 given  by  the  witness contradicts the  witness  both  with regard to the total period of hire as also the terms of  the hire agreement.  Then again his case is that he was attached to the appellant on 11th March, 72 i.e. to say he went along with  him wherever be went on that day and visited only  two places  namely  00  and Sisir.  This  would  mean  that  the appellant was at these two polling stations only  throughout the day when we should normally expect him to be moving from one  polling station to another-the total number of  polling booths  being 73. P.W. 19/1 has kept a record of  this  jeep

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from-  28-2-72, its coming and going from day to  day.   See pages 13 and 14.  The last entry with regard to the jeep  is at page 14 and it says that it was used for polling for  the whole  of  the  day.   That entry  does  no  damage  to  the appellant, because admittedly the jeep had been hired.   But the entry on page 23 with regard to another Vehicle HRV 3709 dated  11th March, 72 shows that this vehicle was  with  the appellant (who is described as Professor) for the whole  day thus contradicting both the two drivers Rajinder and Jagdish Chander,  each  of whom claims that on 11th March,  72  they were  attached on duty to the appellant.  In this  state  of the  evidence  it  will be  difficult  to  describe  Jagdish Chander  as  a reliable witness.  It is his bare  word  that voters were transported free of charge in his jeep and we do not think that we can rely upon it. That  brings us to the two trucks by which, it  is  alleged, the voters of the appellant were conveyed free of charge  to the  polling stations on the polling day.  A common  feature about  these vehicles is that they were intercepted  by  the Police  for carrying passengers in breach of the  provisions of  the Motor Vehicles Act and the drivers thereof had  been challenge  on  that  very day.  We have no  doubt  that  the trucks were used for conveying voters to the polling booths. But  the  question for determination is whether  the  trucks were  hired or procured by the appellant or his agent or  by any  other person with the consent of the appellant  or  his election agent for the free conveyance of the electors to or from  any polling station.  It must be noted that  the  mere conveyance  of voters to the polling station free of  charge does  not amount to a corrupt practice.  If, for  example  a sympathizer or supporter of a candidate carries voters  free of  charge in a vehicle to the polling station it  will  not amount  to  a corrupt practice unless it is shown  that  the vehicle  was procured by that sympathizer or supporter  with the  consent  of the candidate or his  election  agent.   If there  was  conveyance  of electors by  the  truck  and  the electors gave evidence to the effect that they were conveyed by the truck at the instance of the appellant, his  election agent  or their accredited workers, that would be  a  strong corroboration  of the driver’s evidence that the  truck  was hired  or  procured by the appellant. in the  present  case, both  the  truck drivers have given evidence to  the  effect that the appellant had personally hired their trucks for the purpose  of conveying electors to the polling booths.  in  a case  like  the  present,  which  is  riddled  with  suspect evidence,  one  has to be very careful in taking  the  truck drivers  at  their  word, because a  truck  driver  actually working  for  some  other candidate or at  the  instance  of somebody   else,  may  with  the  least  risk  of   exposure substitute a candidate’s name for the 935 other,  especially, when no documentary evidence  of  hiring the truck is possible to expect in such a case.  The charges of  corrupt  practice  are  quasi-criminal  in  nature  and, therefore, the approach to the evidence of the truck drivers must be characterised by great caution. Of the two trucks one is No. HRH 8567 of which P.W. 24 Jagan Nath  claims  to  be the owner/driver.   He  says  that  the appellant  had himself hired his truck for the  polling  day agreeing  to pay him Rs. 80/per day in addition  to  bearing all the expenses.  According to the witness, he was asked to bring  voters  from Indergarh to Chandi,  the  latter  place being  the polling station.  He says that he  performed  the duty  of bringing the voters from 8.00 A.M. till  5.30  P.M. The  voters were brought free of charge.  He admits that  he

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was  intercepted by the Police for  transporting  passengers which  under his licence he could not do, and, in  fact,  he says he was challenge by the police at about 11.00 A.M. What he means to say is that after his interception he was served with  a summons to appear before the Magistrate on a  stated date  to  answer the charges detailed in  the  summons.   He further  adds that his Log Book was inspected by the  Police Sub-Inspector who say there an entry made by the witness  to the effect that the truck was on election duty of "Chaudhary Umed  Singh",  that  is to say,  the  appellant.   The  Sub- Inspector  Jaswant Rai, P.W. 9 says that he had found  Jagan Nath  conveying passengers without a permit and,  therefore, he had challenge him.  He says that he had seen an entry  in the  Log Book of the truck and that entry revealed that  the passengers  were being carried on behalf of  the  appellant. The Log Book itself is not produced in court and, therefore, the written entry in the Log Book cannot be proved by either the driver Jagan Nath or the P.S.I. Jaswant Rai.  Therefore, reference  to  the contents of the Log Book must  be  wholly excluded.  Ext.  P.W. 24/2 is the summons served upon  jagan Nath on 11-3-72 at 11.00 A.M. By that summons Jagan Nath was asked  to  attend the Court of the  Judicial  Magistrate  at Gohana at 10 00 on 4-4-72 to answer the charge under section 421123  of the Motor Vehicles Act detailed in  the  summons. Ext. 21/1 is the receipt for the fine of Rs. 200/- dated 10- 4-72 recovered from Jagan Nath.  The case is that Jagan Nath was  convicted for the offence and had to pay a fine of  Rs. 2001- for the breach of the Motor Vehicles law.  As  already stated,  we feel no difficulty in holding that  this  parti- cular  truck  was  used for the  purpose  of  conveying  the electors  before 11.00 A.M. on the day of polling.  But  the question still is whether the electors were conveyed free of charge, and more important than that, whether that was being done at the instance of the appellant or his election agent. No voter who is supposed to have travelled by the truck  has been called to give evidence in the case.  We may also infer from the facts of the case that the electors were being con- veyed  free  of  charge.  But  the  question  still  remains whether  we can accept the testimony of the driver  that  he had been engaged by the appellant for the purpose.  He might have  bean  engaged  by the appellant, he  might  have  been engaged  by his opponent, or he might have been  engaged  by any sympathizer or supporter of either the appellant or 936 the  opponent without their knowledge.  In a case like  this where  corrupt practice is sought to be established  on  the testimony  of  the  truck driver,  who  was  functioning  in defiance of the law, we should remember that there is  great likelihood  of evidence being purchased at small cost so  as to  upset the whole election.  It is an admitted  fact  that the appellant was a young man fresh from the University  and it does not appear that he had much experience of elections. Although  he stood as an Independent candidate  selected  by the  Chaubisee he had been given active support  by  several non-Congress  Parties.   The  Arya  Sabha   seems  to   have practically   adopted  him  as  its  unofficial   candidate. Therefore, if any Arya Sabha worker had hired the truck  for the  purpose  of conveying voters without the  knowledge  or consent  of the appellant there is every likelihood  of  the truck  driver being persuaded to name the appellant for  the Arya  Sabha workers.  The truck driver is also not shown  to be very reliable in other respects.  Though he was challenge at  11.00  A.M. he purports to say that he plied  the  truck till  5.30 p.m. We think this is very improbable because  he had  already  been caught by the P.S.I. and he won’t  be  so

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fool-hardy  as  to persist in the offence after  11.00  A.M. Then again he admits that he had to pay a fine of Rs.  200/- But  it  does not appear that he made any  demand  from  the appellant  for  paying him the amount of the  fine  because, after all, if he was plying the truck for the appellant  ill order to oblige him even by committing an offence under  the Motor  Vehicles Act, it would be normally expected  that  he would  insist on being reimbursed by the appellant.   It  is not  his case that he made a demand from the  appellant  for the  money and the appellant either paid him or  refused  to pay  him. in these circumstances, therefore, we don’t  think that  we can rely completely on the evidence of Jagan  Nath. Reference was made to an entry at page 30 of the  Registerer Ext.   P.W.  19/1 suggesting that at certain places  it  was left  to the appellant to arrange for the trucks.   On  that page are mentioned several vehicles which were to be used on duty  at some of the polling stations.  All the entries  are in English but in the space against serial numbers 3, 4  and 5  there  is a writing in Urdu which  reads  professor  Umed Singh  should himself reach the villages and  make  arrange- ments  with trucks on the polling stations." Munshi Ram  the writer of the book says that he had made this entry.  In our opinion, the entry is spurious.  Serial No. 3 mentioned that a  jeep  was  to be at the  polling  station  of  Indergarh. Serial No. 4 mentions that a Scooter should be in attendance at  the  polling station at Seman.  Serial No. 5  is  of  no consequence.  It is not as if trucks had not been  mentioned in the list.  In fact the list shows that at Bahalbha and at Farmana  at  serial nos. 9 and 10 there should  be  a  truck each.   Therefore, it is clear that this Urdu writing  about trucks is an after thought.  There was no point in making  a memo  that the appellant should himself go to some  villages and make arrangements for trucks.  If trucks were necessary, the  appellant could be trusted to make arrangements on  his own.   It  is  impossible to believe that  trucks  could  be arranged  at so short notice since the same were to be  made available   early  in  the  morning  at  specified   polling stations.  In our opinion, this particular Urdu memo  cannot create confidence that it was made in the regular course  of business.  In this state of the evidence, we 937 cannot  hold  that the appellant or his election  agent  had procured  this truck for the free conveyance of electors  on the polling day. The  position is similar in the case of Truck No. HRR  7101, but  with an important difference.  The driver of the  truck is P.W. 25 Simran Das and it is established by his  evidence and.  the evidence of P.W. 9 Sub-Inspector Jaswant  Rai  and Exts.  P.W. 25/1, P.W. 9/2 and P.W. 25/2 which are documents relating  to the charge of carrying passengers in breach  of the Motor/Vehicles Act that the truck was being used for the carrying of electors from the polling Station at Seman  back to  the  village  Bedwa.   It appears  that  the  truck  was intercepted by the Sub-Inspector Jaswant Rai at 4.00 p.m. If that  was the only evidence in the case we would have  taken the  same  view as in the case of the  other  truck  already discussed.   But  the difference lies in the fact  that  the election  petitioner  has examined in this came  an  elector named  Mani Ram P.W. 30 whose evidence has been accepted  by the learned Judge and which we find no sufficient reason  to reject.  Mani Ram is a resident of Bedwa and he says that as there  was no Polling Station in his village he had to  cast his  vote  at the Polling Station at Seman  alongwith  other villagers  of  Bedwa.   He further says that  he  and  other voters of that village went to Seman in a truck provided  by

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the appellant and that truck bore the flags and the election symbol  of the appellant.  They went in this truck to  Seman at  about  3.00 p.m. and returned by the  same  truck  after casting the votes.  The truck carried about 20 or 22  voters and he mentioned the names of a number of villagers who  had travelled  with him for casting their votes.  On the  return journey to Bedwa they were intercepted by the  Sub-Inspector and  the driver was challenge on the spot.   Thereafter  the truck  proceeded to Bedwa and the villagers were dropped  at that  place.   According  to him neither he  nor  the  other voters had paid any fare to the truck driver.  The appellant had not personally asked them to get into the truck but  the arrangement  was made by the appellant’s worker Dilbagh  who put  them in the truck at Bedwa.  The  cross-examination  of this witness does not show that he was partisan witness.  He denied that he was a Congress man and said that he was never a  supporter  of the election petitioner  in  any  election. Asked  how he came to know that the truck had been  arranged by  the  appellant he replied that the truck had  made  many trips  on  that day and he knew that it  was  conveying  the electors  of the appellant.  There was no  cross-examination on  the  allegation that the truck bore the  flags  and  the election  symbol of the appellant.  In cross-examination  he further  stated  that Dilbagh who worked on  behalf  of  the appellant had gone along with the truck.  It is important to note here that Dilbagh was a worker of the appellant and his name  appears  at page 14 of P.W. 1911 as a person  to  whom Jeep  No. RSK 668 had been allotted on the afternoon of  7th March 72.  As a matter of fact Dilbagh had been cited by the appellant  as his witness on this very issue in relation  to this truck.  He was not examined by the appellant whose turn to  examine witnesses came much after witness Mani  Ram  was examined  for the petitioner.  No reasons were given  as  to why  he  was  dropped  except  to  say  that  the  appellant considered it "unnecessary".  It was not 938 stated  in  so  many words that Dilbagh  was  being  dropped because he had been won over.  It was contended on behalf of the  appellant  that  this must have been  the  real  reason because  the diary which was produced by the  petitioner  at the time of his examination in-court showed that Dilbagh had been contacted by the petitioner sometime after the election petition  was  filed.  If that were so it should  have  been specifically brought to the notice of the court that Dilbagh had  turned  hostile  and therefore the  appellant  was  not examining  him.   Moreover it would appear from  Mani  Ram’s evidence  that a number of named electors from  the  village had  gone with him in the truck to cast their votes  and  it should  not  have  been difficult  to  demolish  Mani  Ram’s evidence by calling the named electors to say that they  had not actually travelled in that truck.  Instead of doing  so, the  appellant  examined  a number of  witnesses  like  R.W. Rajmal,  R.W.  18 Tara Chand, R.W. 19 Sadhu Ram  etc.  whose evidence is merely negative in the sense that they say  that they did not see a truck plying between Bedwa and Seman  for carrying voters.  In view of the positive evidence that this truck  had  be-en  used for conveying voters  that  kind  of evidence is of little value.  The learned Judge has accepted the  evidence of P.W. Mani Ram and we don’t  see  sufficient reason  to reject it. We therefore- confirm the  finding  of the learned Judge that the truck No. HRR 7101 had been hired by  the appellant for the conveyance of the electors to  and from the polling station at Seman free of charge. So  far we have dealt with the appellant’s challenge to  the findings  of the learned Judge which were  recorded  against

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him.   We  shall now deal with respondent  No.  1  (election petitioner’s) challenge to the findings which were  recorded against him.  Learned counsel for respondent No. 1  confined his challenge to the finding on issue No. 15 which reads  as follows :               "Whether   respondent  No  1.   (the   present               appellant)  committed the corrupt practice  of               obtaining and procuring the assistance of Dhir               Singh  s/o Jodha Singh a member of  the  Armed               Forces of the Union for the furtherance of the               prospects  of  his  election  in  the   manner               alleged in paragraph 16 of the petition and by               distributing  the  hand-bill  as  alleged   in               paragraph 13 of the petition." The  learned  Judge held that no such  corrupt  practice  as envisaged in section 123(7) was committed by the  appellant. Learned  counsel  has  confined his  argument  only  to  the allegation that the aforesaid Dhir Singh who was  admittedly a  member  of the Armed Forces of the  Union  had  canvassed support  for  the  appellant  in  four  villages.   On  that question the petitioner had examined P.W. 6 Kushi Ram,  P.W. 13  Desraj  and  P.W.  28  Captain  Phool  Singh.    Neither party desired to examine Dhir Singh himself.  So Dhir  Singh was  examined  as a court witness.  The  learned  Judge  for sufficient reasons did not accept the evidence of the  three aforesaid  witnesses of the petitioner and it  would  appear from  the judgment that he was not also quite  impressed  by the evidence of Dhir Singh.  It is contended 939 by  learned  counsel  that  though  the  three  petitioner’s witnesses may not have satisfied the learned Judge there was really no reason why he rejected the evidence of Dhir  Singh who  clearly  admitted  in  his  cross  examination  by  the election  petitioner that "Umed Singh respondent No. 1  came to our village twice or four times during this election cam- paign  during February and March 72.  He used to come to  my house accompanied him to the voters of my brotherhood within my own village’I  did  not  go with him  to  any  other village.  I used to convince them forvote  in  favour  of respondent  No  1."  It is the  contention  of  the  learned counsel  that there was here a clear admission witness  that he  had canvassed for the appellant in his own  village  and since  such an admission comes from a person who  admittedly was  the appellant’s Polling agent the learned Judge was  in error  in  not noticing properly this clear admission  of  a corrupt  practice.   We  have carefully  gone,  through  the evidence  of  this witness and we don’t think  that  we  can accept his evidence at its face value.  It appears that Dhir Singh  had  come  on leave in February 72  and  was  in  the village till 4th April 72.  The village to which he  belongs is  Behalba.  In his examination by Court he  only  admitted that he had been appointed as polling agent.  It is conceded that  in view of the Amendments of 1966 acting as a  Polling agent by a member of the Armed Forces would not amount to  a corrupt   practice  u/s  123(7).   It  was  in  his   cross- examination  by the election Petitioners that the  aforesaid admission  was  made.   In  his  cross-examination  by   the appellant he stated that he had met the appellant only about 5  or 6 days before the election and it is his case that  at that. time the appellant had requested him to vote for  him. He  also  says  that  he had nothing more  to  say  to  him. Finally  he  says "I did nothing more for  Umed  Singh  (the appellant)  except  acting as his Polling agent."  Now  this goes  contrary to the previous statement that the  appellant had  come  to his village about four times that he  used  to

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come  to his house as if he was his friend and that  he  had canvassed  for  him in his own village during  February  and March 72.  If in fact he met him only 5 or 6 days before the polling  date  and had asked him to give him his  vote  that would  show that the previous statement of his coming  about four  times in the village in February and March may not  be correct.   Indeed  if the witness without the  knowledge  of consent  of the appellant spoke to other villagers  in  that village in support of the candidature of the appellant  that would not amount to a corrupt practice within the meaning of section  123(7).  We are not therefore, inclined  to  differ from the finding of the learned Judge on this issue- The  appellant has succeeded in his challenge except on  one count  namely  the  hiring of the truck  No.  HRR  7101  for conveying  electors between Bedwa and Seman free of  charge. All the same the election petition filed by respondent No. 1 succeeds on that one count of corrupt practice under section 123(5)  and  therefore we have to confirm the order  of  the learned  Judge setting aside the election of the  appellant. Having  regard to the fact that the appellant has  succeeded here  except on one count we shall direct that  the  parties shall bear their own costs in this appeal. 940 BHAGWATI  J.  Since I was a party to the decision  in  Mohd. Yunus  Saleem V. Shivkumar Shastri & Ors. (1) which  is  now being over turned by us, I think I must explain why we  take a  different view from the one taken in that decision.   The point  decided in that case has been  elaborately  discussed before  us  and we find on a fuller argument that  the  view taken  by the Court in that case was erroneous and needs  to be  corrected.   To perpetuate an error is no  heroism.   To rectify  it  is the compulsion of judicial  conscience.   In this  we  derive  comfort and strength  from  the  wise  and inspiring  words of Justice Bronson in Pierce  v.  Delameter (2)  "a  judge ought to be wise enough to know  that  he  is fallible and therefore ever ready to learn; great and honest enough to discard all mere pride of opinion and follow truth wherever  it may lead; and courageous enough to  acknowledge his errors". The  question  which has given rise to  this  divergence  of opinion  is whether a candidate who offers gratification  to another  with the object directly or indirectly of  inducing him  to retire or not to retire from the contest  after  the last date for withdrawal of candidature under section 37  is past  comes within the mischief of section  123(1)(A)(a)  of the   Representation   of   the  People   Act   1951.    The determination  of this question turns primarily on the  true construction  of the words "to withdraw or not  to  withdraw from   being  a  candidate  at  an  election"   in   section 123(1)(A)(a) but in order to arrive at a proper  interpreta- tion  it is necessary to look at the scheme of the  relevant provisions of the Act. Part V of the Act sets out the machinery for the conduct  of elections.   Section  30  provides  that  as  soon  as   the notification  calling upon a constituency to elect a  member or members is issued, the Election CommisSion shall  appoint the  last  date  for making nominations, the  date  for  the scrutiny of nominations, the last date for the withdrawal of candidatures,  the date or dates on which a poll  shall,  if necessary, be taken arid the date before which the  election shall  be completed.  The first step which has to  be  taken after the issue of a notification appointing these dates  is nomination of candidates for the election and that is  dealt with  in  section 32.  If a person wishes to stand  for  the election  he has to be validly nominated as a  candidate  in

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the  manner  prescribed in section 33 and  34.   Section  35 provides  for  scrutiny  of the  nomination  Papers  by  the returning  officer  on the date and at the  time  and  place fixed  for the same.  The returning officer has  to  examine the  nomination  papers and decide whether they  are  valid. immediately  after  all  the  nomination  papers  have  been scrutinised  and decision, accepting or rejecting the  same, have  been  recorded,  section 36 says  that  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 board.   A candidate may however, withdraw his candidature by a  notice in  writing provided of course such notice is subscribed  by him and delivered to the returning officer before 3  O’clock in  the  afternoon on the date fixed for the  withdrawal  of candidature.  Vide section 37, sub-section (1).  Sub-section 2  of  section 37 provides that "no person who has  given  a notice of withdrawal of his (1) A.I.R. 1974 S.C. 1218. (2) A.M.Y. 3 at 18 (1847). 941 candidature under sub-section (1) shall be allowed to cancel the  notice"  and sub-section (3) says  that  the  returning officer shall, on being satisfied as to the genuineness of a notice  of  withdrawal  and  the  identity  of  the   person delivering it under sub-section (1), cause the notice to  be affixed  in some conspicuous place in his office".   Section 38 enjoins, that immediately after the expiry of the  period within which candidatures may be withdrawn under sections 36 and  37 the returning officer, shall prepare and  publish  a list  of contesting candidates, that is to say,,  candidates who are included in the list of validly nominated candidates and  who  have not withdrawn their candidatures  within  the said period,, The next few sections are not material for our purpose  and  we  may straightaway go to  section  52  which provides for the consequences of death of a candidate before poll.   Sections  53  and  54  prescribe  the  procedure  in contested  and  uncontested  elections.  If  the  number  of contesting candidates is more than the number of seats to be filled,,  a  poll  is to be takes., if the  number  of  such candidates is equal to the number of seats to be filled, the returning   officer  is  to  forthwith  declare   all   such candidates  to be duly elected to fill those seats,  and  if the  number  of such candidates is less than the  number  of seats  to be filled, the returning officer is  to  forthwith declare  all such candidates to be elected and the  Election Commissioner  is to call upon. the constituency to  elect  a person or persons to fill the remaining seat or seats. We may then refer to section 55A which was introduced in the Act  by the Representation of the People (Amendment) Act  27 of 1956.  This sections speaks of retirement from contest at elections  in  parliamentary  And  assembly  constituencies. Some  of the provisions of this section are material and  we may reproduce them as follows               Sec. 55A(2) A contesting candidate may  retire               from the contest by a notice in the prescribed               form which shall be delivered to the returning               officer between the hours of eleven o’clock in               the   forenoon  and  three  o’clock   in   the               afternoon of any day not later than. ten  days               prior  to the date or the first of  the  dates               fixed for the poll under clause (d) of section               30 either by such candidate in person or by an               agent authorised in this behalf in writing  by               such candidate.

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             (3)No  person  who has given  a  notice  of               retirement  under  sub-section  (2)  shall  be               allowed to cancel the notice.               (4)The   returning  officer   shall,   upon               receiving  a notice of retirement  under  sub-               section(2) cause a copy thereof to be  affixed               to  his notice board and also to be  published               in. such manner as may be prescribed.               (5)Any  person  who has given a  notice  of               retirement   under   sub-section   (2)   shall               thereafter  be deemed not to be  a  contesting               candidate for the purpose of section 52. The  consequences of retirement of a candidate or, the  poll are  set  out in sub-sections 6 and 7 of section  55A.   The scheme here is the same as in sections 53 and 54 and we need not reiterate it. 942 Then  follows  Part IV which deals with  disputes  regarding elections.   It sets out an elaborate machinery for  calling in, question an election whether it be in a parliamentary or an  assembly  constituency.  We are not  concerned  in  this appeal  with  the  detailed provisions  in  regard  to  this machinery.   Suffice it to state that broadly the  procedure of  presenting  an election petition to the  High  Court  is provided  by  this  machinery.   The  grounds  on  which  an election  may be declared to be void by the High  Court  are set  out in section 100 and one of those grounds as set  out in  clause (b) of sub-section (1) of that section is that  a corrupt   practice  has  been  committed  by  the   returned candidate or his election agent or by any other person  with the consent of the returned candidate or his election agent. What  are  corrupt  practices  which  have  the  effect   of invalidating  an election are set out in Chapter I  of  Part VII  which consists of a solitary section,  namely,  section 123.   Sub-section (1) of that section defines  the  corrupt practice  of bribery’.  When section 55A was  introduced  in the Act by the Representation of the People (Amendment)  Act 27   of   1956,   sub-section  (1)  of   section   123   was correspondingly  amended and that sub-section,  as  amended, was in the following terms               "123.  Corrupt practices.-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 inducing.               (a)   a person to stand or Pot to stand as, or               to  withdraw  from being a  candidate,  or  to               retire from contest, at an election;.               (b)   an  elector  to  vote  or  refrain  from               voting at an election, or as a reward to-               (i)   a  person  for having so  stood  or  not               stood,    or   for   having   withdrawn    his               candidature,   or  for  having  retired   from               contest; or               (ii)an elector for having voted or refrained               from voting. Section  55A  had, however, a very short life and  within  a couple of years it was deleted by the Representation of  the People (Amendment) Act 58 of 1958.  Since the provision  for "retirement  from contest" enacted in section 55A  was  done away with by this amendment, consequential changes were also made  in clauses (a) and (i) of sub-section (1)  of  section

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123  by deleting the words "or to retire from contest"  from clause  (a)  and  the  words "or  for  having  retired  from contest"  from clause (1).  Certain other changes were  also made  in  sub-section (1) of section 123 but  they  are  not material.   It  will be seen that at this stage  it  was  an essential ingredient of the corrupt practice of bribery that the  object of offering gratification should be to induce  a person to stand or’ not to stand, or to withdraw from  being a  candidate, at an election.  If gratification was  offered with  the object of inducing a person not to  withdraw  from being candidate at an election, it 943 was   not   within  the  mischief  of  the   section.    The Representation  of  the People (Amendment) Act  4  of  1966, therefore,  added the words "or not to withdraw"  after  the words  "to  withdraw" in clause (a) and the  words  "or  not having  withdrawn"  after  the  words  "having  withdrawn"in clause (1).  Sub-section (1) (a) of section 123 thus assumed the following form :               "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  candidates  or  his               election  agent 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 with-               draw ornot   to  withdraw  from  being   a               candidate at an               election,or               (b)   an  elector  to  vote  or  refrain  from               voting at an election or as a reward to-               (i)a  person  for having so  stood  or  not               stood,  or for having withdrawn or not  having               withdrawn his candidature; or               (ii)an elector for having voted or refrained               from voting; This  is the form in which section 123, sub-section (1)  (A) stood at the material time. Now, there can be no doubt that section 123 has been enacted with the object of ensuring in a democratic form of fair and every  vote  cast  expression of the choice  purity  of  the election process.  It is essential government the  elections should  be  free and in an election should be the  free  and honest   of  the  voter  uninfluenced  by   any   extraneous considerations.    The  political  ideal  of  democracy   is government by the consent of the governed and government  by consent postulates, amongst various other requirements  free elections where there is honest competition for votes.   The election process must, therefore, remain pure and  unsullied and  it has been the endeavour of our law makers  to  secure this  by making various provisions in the Representation  of the  People Act, 1951.  Section 123, sub-section (1) (A)  is one  such  provision.  it  must,  therefore,  doubtless   be construed  so  as to suppress the mischief and  advance  the remedy.   But that does not mean that a construction  should be  adopted which ignores the plain natural meaning  of  the words or disregards the context and the collection in  which they occur. it is a familiar rule of interpretation that the words used by the legislature must be construed according to their   plain   natural   meaning.   But   it   is   equally

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well-settled-and authorities abound in support of it-that in order to ascertain the 944 true  intention of the legislature the court must  not  only look  at  the words used by the legislature, but  also  have regard  to the context and the setting in which they  occur. The  context and the collection of the words may induce  the court  to depart from their ordinary meaning, for these  may show  that  the words were not intended to be  used  in  the sense  which  they ordinarily bear.  The  exact  colour  and shape  of the meaning of words in an enactment is not to  be ascertained by reading them in isolation.  They must be read structurally  and in their context, for their  signification may vary with their contextual setting.  Of course, when  we speak  of  the  context, I mean it in  a  wide  sense  which requires  that provisions which bear upon the  same  subject matter  must be read as a whole and in their entirety,  each throwing  light and illumining the meaning of the other.  It is in the light of these principles of interpretation that I must  proceed to examine the language of subsection (1)  (A) of section 123 and construe the words "to withdraw or not to withdraw from being a candidate" occurring in clause (a)  of that sub-section. Clause (a) consists of two parts.  The first part refers  to inducement  to stand or not to stand as a candidate’.   What is the compass of this expression?  I think at this stage  I ought  to  refer to the definition of  candidate’  given  in clause  (b)  of section 79, for  considerable  reliance  was placed upon it by the learned counsel on behalf of the first respondent.  Section 79 clause (b) says that in Parts VI and VII  and section 123 occurs in Part  VII-’candidate’’  shall mean  "a  person who has been or claims to  have  been  duly 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".  The first part  of the  definition requires that in order to be a  candidate  a person should have been duly nominated as a candidate.   But it may sometimes happen that though a person claims to  have been  duly nominated, the validity of his nomination  is  in dispute; such a person would also be a candidate within  the meaning of the definition.  The basic postulate of the first part  of  the  definition is that a person  should  be  duly nominated and it is only then that he becomes a candidate at an  election.   The second part of the definition  does  not extend  the meaning of the word’ candidate’ but merely  says from  what  point  of  time a  person,  who  has  been  duly nominated  as  a candidate, shall be deemed to have  been  a candidate.  It does not dispense with the requirement of due nomination so that a person who has not been duly  nominated can  never  be regarded as a candidate.  This is  in  accord with the scheme of the machinery envisaged in Part V of  the Act. it is only by nomination under section 32 that a person stands as a candidate.  It is, therefore, obvious that  when the  first  part  of clause (a) speaks of  standing  or  not standing as a candidate, the reference is to nomination as a candidate under section 32.  That was also the view taken by this  Court  in Mohd.  Yunis Saleem v. Shivkumar  Shastri  & Ors. (1) and adhere to it. (1) A.I.R. 1974 S.C. 1218 945 That  takes  us  to  the second part  of  clause  (a)  which requires to be construed in the present case.  The  question which arises for consideration is what is the true scope and meaning  of the words "to withdraw or not to  withdraw  from

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being  a  candidate" in this clause.  It was  common  ground between the parties that these words cover a situation where a  validly  nominated candidate  withdraws  his  candidature under section 37 by giving a notice in writing on or  before the last date fixed for the withdrawal of candidatures.  But the  controversy  was as to whether they  include  something more.   Do they apply to a situation where, after  the  last date for the withdrawal of candidatures under section 37 his past, a contesting candidate announces that he does not wish to contest the election, or in other words, retires from the contest, or to use a more colloquial expression, sits  down? The  appellant contended that they do not, while  the  first respondent asserted the contrary. In  the first place, let us see what the words "to  withdraw from  being  a  candidate" mean  according  to  their  plain natural  sense.   This Court in mohd.  Yunus  Saleem’s  case (supra)  relied  on  the  dictionary  meaning  of  the  word withdraw’, namely.  "to go away or retire from the field  of battle or any contest".  But it must be noted that the  word withdraw’  does not stand alone.  It is part of a  composite expression  The crucial words are "to withdraw-from being  a candidate".  They clearly indicate that what is contemplated is cesser or termination of the state of being a  candidate. When a person withdraws from being a candidate, he ceases to be a candidate; he is no more a candidate.  This meaning  is considerably  strengthened  if we look at  clause  (b)  (i), which uses the expression "having withdrawn-his candidature" and clause (B) (b), which uses the expression "to  withdraw- his  candidature"  to denote the same idea.  Now,  the  only mode  in which a candidate can withdraw his candidature  and cease  to  be  a candidate is that set out  in  section  37. Until the last date for withdrawal of candidatures, he has a locus  poenitentiae  and  he  can  withdraw  from  being   a candidate by giving a notice in writing to that effect under section  37.   But  once that date is  past,  he  becomes  a "contesting  candidate"  and then he has no choice.   He  is irrevocably and irretrievably in the contest.  No subsequent change of mind can help him to get out of the fight.  It  is then  futile  for him to announce that he does not  wish  to contest  the  election or he has retired from  the  contest. Whether  he likes it or not, whether he energies himself  or not,  whether  he actively campaigns or not,  he  remains  a contesting candidate and the voters can cast their votes for him  and  even  elect  him,  despite  himself.   He  cannot, therefore, cease to be a contesting candidate and if that be so, it must follow a fortiorari that he cannot withdraw  his candidature  or  withdraw from being a candidate,  once  the last  date for withdrawal of candidatures tinder section  37 is gone. We  can also approach this question of construction  from  a slightly different angle.  The words "to withdraw-from being a  candidate"  in clause (a) cannot be  read  in  isolation. They must be read in the 14--192Sup.CI/75 946 context  of  the other provisions of the Act.   As  we  have already  pointed out, it is clear on a proper  and  combined reading  of clauses (a) and (b) (1) of sub-section  (1)  (A) and  clause  (b) of sub-section (1) (B) that the  words  "to withdraw-from being a candidate" used in clause (a) of  sub- section(1)(A)   mean  the  same  thing  as   withdrawal   of candidature  referred in clause (b) (1) of  sub-section  (1) (A)  and clause (b) of subsection (1) (B).  Now the  concept of withdrawal of candidature to be found in sub-section  (1) (A)  and  (1) (B) is not a new concept  introduced  for  the

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first time in these sub-sections.  It is a concept which  is already  dealt  with  in  two  earlier  provisions,  namely, section  30(c) and section 37.  Section 30(c) speaks of  the last  date  for the withdrawal of candidatures and  how  the candidature may be withdrawn on or before this last date  is provided in section 37.  Obviously the expression withdrawal of candidature’ is used by the legislature in these sections in  the sense of withdrawal before the last date  fixed  for withdrawal  of  candidature as contemplated in  section  37. Then, does it not stand to reason that when the  legislature has  used  the same expression in another part of  the  Act, namely,  sub-section (1) (A) and (1) (B) of section 123,  it has  used  it  in  the  same sense  ?  It  is  a  reasonable presumption to make, though, I must admit, this  presumption is  not of much weight and can be displaced by the  context, that  the  same meaning is implied by the use  of  the  same expression  in every part of an Act.  For example, in  Mills v. Mills(1) the word proceedings’ was held to bear the  same meaning  in  the several paragraphs of section 2(2)  of  the Legal  Aid  and  Advice  Act, 1949 and  in  LR.C.  v.  Henry Ansbacher & Co., (2) the House of Lords refused to attribute to the word "security" (in Sched.  I to the Stamps Act 1891) different  meaning in different parts of the  same  statute. It  can,  therefore,  be  safely  inferred  that  when   the legislature   speaks  of  "withdrawal  of  candidature"   in subsections (1)(A) and (1)(B), it is obviously referring  to withdrawal  of  candidature dealt with earlier  in  sections 30(c)  and 37.  There is nothing in sub-sections (1)(A)  and (1)(B) or in any other provision of the Act to indicate that these  words  are  used in a different sense  from  that  in sections 30(c) and 37.  In fact, the legislative history  of section 123, sub-section (1) points in a contrary direction. I have already set out sub-section (1) of section 123 as  it stood  immediately  after the introduction of  section  55A. Clause (a) at that time contained the words "to retire  from contest" and these words were obviously added in the clause, because  section  55A  made it  possible  for  a  contesting candidate  to  retire from the contest, and gift,  offer  or promise  of gratification with the object of achieving  this result  was  required to be interdicted in the  interest  of purity of elections.  The addition of these words shows that the original words "to withdraw from being a candidate" were not regarded as sufficiently comprehensive or wide enough to cover a situation where a contesting candidate retires  from the  contest.  If they were, the legislature would not  have indulged  in the superfluity of adding new words.  It  is  a well  settled rule of interpretation that the Court  should, as  far  as  possible, construe a statute  so  as  to  avoid tautology or superfluity.  To quote the words (1) [1963] P, 329. (2) [1963] A.C. 191. 947 of   Viscount   Simon  in  Hill  v.   William   Hill   (Park Lane),  Ltd.(1)  "It  is  to  be  observed  that  though   a Parliamentary  enactment (like parliamentary  eloquence)  is capable  of saying the same thing twice over without  adding anything to what has already been said once, this repetition in  an  Act of Parliament is not to be  assumed.   When  the legislature  enacts  a particular phrase in  a  statute  the presumption  is  that it is saying something which  has  not been  said  immediately  before.  The rule  that  a  meaning should,  if possible, be given to every word in the  statute implies  that, unless there is good reason to the  contrary, the words add something which has not been said  immediately before."  It  would  not, therefore, be  right  to  place  a

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meaning  on the words "to withdraw from being  a  candidate" which  would  have the effect of  rendering  the  succeeding words "to retire from contest" superfluous and  meaningless. The  Court  must  proceed on the basis that  the  Words  "to retire  from  a  contest" were  deliberately  and  advisedly introduced  by  the legislature with a definite  purpose  of adding something which had not been said in the  immediately preceding words and were not intended merely to repeat  what was  already  enacted there.  The words  "to  withdraw  from being  a candidate" could not, therefore, at that  stage  be read  as applying to an event where a  contesting  candidate retires  from the contest.  They had a clearly  well-defined meaning confined to withdrawal of candidature under  section 37.   And  if  that was the  meaning  then,  the  subsequent deletion  of  the word; "to retire from contest"  could  not have the effect of adding to or expanding it. It  is true that this Court took a different view  in  Mohd. Yunus  Saleem’s  case,  (supra) but I  think  that  view  is erroneous.   It overlooks various  important  considerations which   we   have  discussed  above.   It   emphasises   the etymological  meaning  of the word  withdraw’  ignoring  its contextual   setting  and  inter-relation  with  the   other provisions  of  the Act.  The explanation which  this  Court gave for the deletion of the words "to retire from  contest" was  that these words were unnecessary and hence  they  were advisedly deleted by the legislature.  But this  explanation is, with great respect, fallacious.  In the first place,  it is  based on the hypothesis that the words "to  retire  from contest"  were superfluous and redundant a hypothesis  which erroneously  assumes  that  the legislature  indulged  in  a futile  exercise  when it added these words in  clause  (a). Secondly, it fails to take note of the fact that these words were added in clause (a) consequent upon the introduction of section  55A  and they were deleted, not because  they  were found  superfluous or unnecessary, but because  section  55A was   repealed   and  with  its  repeal,   the   reason   or justification  for their existence disappeared.  It  appears that  section  55A was not cited before this Court  in  that case  This  Court  was also considerably  impressed  by  the argument  that  if  the  words  "to  withdraw-from  being  a candidate" were given a restricted meaning, confined to  the stage  of  withdrawal of candidature under section  37,  "an absurd position" would arise "where actual withdrawal, after the time limit, by taking (1)  [1949] A.C. 530, 546. 948 bribe  will  be  free from the  vice  of  corrupt  practice, whereas  that  prior to it will not be so"  and  that  could never have been intended by the legislature.  Now, there can be  no  doubt that prima facie this is a  highly  attractive argument.   Indeed,  every argument based  on  the  presumed intention  of the legislature is always apt to have a  great appeal as it lures the judicial mind into a sense of  belief that  it  is  merely  effectuating  the  intention  of   the legislature  when what it is really doing is to give  effect to  what, in its opinion, ought to be the intention  of  the legislature.   It  is elementary that the intention  of  the legislature  must be gathered from the words used by it  and the  court should not indulge in conjecture  or  speculation about  it.   As  observed by, Lord Watson in  Solomon  v.  A Solomon & Co. Ltd., (1) "Intention of the Legislature" is  a common  but  very slippery phrase, which,  popularly  under- stood,  may  signify  anything from  intention  embodied  in positive  enactment  to speculative opinion as to  what  the Legislature  would probably have meant, although  there  has

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been an omission to enact it.  In a Court of law or  equity, what  the Legislature intended to be done or not to be  done can only be legitimately ascertained from what it has chosen to  enact,  either  in express words or  by  reasonable  and necessary  implication."  The function of the  Court  is  to gather the intention of the legislature from the words  used by  it and it would not be right for the Court to  attribute an intention to the legislature, which though not  justified by  the  language used by it, accords with  what  the  court conceives  to  be reason and good sense and  then  bend  the language  of the enactment so as to carry out such  presumed intention of to legislature.  For the Court, to do so  would be  to overstep its limits.  Here, the legislature has  used the  words "to withdraw-from being a candidate" and  in  the context  of the Act, for reasons which we have given  above, they  cannot include retirement from contest after the  last date for withdrawal of candidature under section 37 is past. Even if, as observed in Mohd.  Yunus Saleem’s case,  (supra) the word withdraw’ were etymological comprehensive enough to connote  retirement from contest’. it cannot be  given  that meaning  here, because, apart altogether from other  reasons already  discussed, "retirement from contest"  is  something impossible under the Act after the deletion of section  55A. The only way in which the argument could be attempted to  be put by the learned counsel on behalf of the first respondent was that though legally the candidature cannot be  withdrawn after  the  time limit under section 37 is past, it  may  be withdrawn factually by the candidate announcing that he does not  wish to contest the election.  But  factual  withdrawal has  no legal effect.  It is no withdrawal at  all,  because the candidate continues to be contesting candidate and be is as  much in the contest as he was before  the  announcement. The  word  withdrawal’, in the context in which  it  occurs, cannot  be  read  in  a loose  and  inexact  sense  to  mean something which it plainly does not. We  are, therefore, of the view that the words "to  withdraw or not to withdraw from being a candidate" in clause (a)  of sub-section (1) (1) [1897] A.C. 22 949 (A)  of  section  123 refer to the stage  of  withdrawal  of candidature  under  section 37 and they do not  apply  to  a situation  where a contesting candidate announces  that  lie does  not  wish  to contest the  election  or  declares  his intention to sit down after the last date for withdrawal  of candidatures  under  section  37  is  past  and  a  list  of contesting candidates is Published under section 38.   Mohd. Yunus  Saleem’s  case,  (supra)  in so far  as  it  takes  a different view, must be regarded as wrongly decided. V.P.S. 950