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PETITIONER: SURINDER SINGH

       Vs.

RESPONDENT: HARDIAL SINGH AND ORS.

DATE OF JUDGMENT29/10/1984

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH BHAGWATI, P.N. ERADI, V. BALAKRISHNA (J)

CITATION:  1985 AIR   89            1985 SCR  (1)1059  1985 SCC  (1)  91        1984 SCALE  (2)659  CITATOR INFO :  RF         1986 SC1253  (20)  D          1986 SC1534  (11)  R          1990 SC1731  (3)

ACT:      Constitution of India-Art. 136-Supreme Court-When would interfere  with  findings  of  the  High  Court  reached  on assessment of evidence.      Representation of the Peoples Act, 1951

HEADNOTE:      i-Section 123-Allegation of Corrupt Practice made in an election petition-How should be established-Whether on basis of preponderance  of probabilities as in civil litigation or "proof beyond reasonable doubt" as in Criminal trials.      ii-Section 116A(1)-Election  appeal-Nature of  findings of facts-If could be interfered with by Supreme Court.      iii-See. 123 (2)-Corrupt Practice of "Undue influence"- Nature and  proof of-Whether  disturbing election  meeting a corrupt practice  u/s. 123  (2)-Whether appointment  by  the returned candidate  of a  person charged  for murder  as his polling agent amounts to exercise of "undue influence".      iv-Sec. 123 (1) (A)-Corrupt Practice of "Bribe"-Whether ameliorating grievances  of the  public while canvassing for votes amounts to corrupt practice.      The appellant  was declared  elected on May 31, 1980 to the Punjab Legislative Assembly from a constituency known as Non-shehra-Pamuan Assembly  Constituency. Respondent  Nos. 1 and  2,  two  voters  of  the  Constituency  challenged  his election before  the High  Court on two grounds, namely, (1) that the  appellant’s supporters  disturbed a meeting of the Akali Party  by using fire arms and fatally injuring one and otherwise inflicting  injuries on  many others  and thus  he committed a  corrupt practice  of "undue influence" u/s. 123 (2) of  the Representation  of the Peoples Act 1951; and (2) that the  appellant in order to get the votes of one Bagicha Singh Chakiwala  and his  family  members  as  also  of  his brotherhood, promised  to Bagicha Singh to get the uncovered electric wires,  which were  dangerously  passing  over  his house, removed  after paying  its expenses  etc. and  so  he approached the Punjab State

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1060 Electricity Board  employees, put  pressure on  them and got the amount  of expenses  deposited and  the wires removed on 30th May  1980 i.e.  One day  before  the  poll.  Thus,  the appellant had committed a corrupt practice of ’Bribery’ u/s. 123 (1) (A) of the Act. The High Court declared the election of  the   appellant  void  holding  that  both  the  corrupt practices had  been committed  by the  appellant himself  or through others  with his  consent and were covered by ss 123 (1) (A), (B) and (2) of the Act. Hence this appeal,      The respondent-petitioners  in addition  to the  above- mentioned two  grounds of  challenge contended  (i) that the charges  of   corrupt  practice  should  be  allowed  to  be established on  the basis  of preponderance of probabilities as in  civil litigation  and not  by asking for proof of the allegation beyond  reason able  doubt as in a criminal case; (ii) that  it was  the practice  of  the  Supreme  Court  in election  appeals  not  to  enter  into  re-appreciation  of evidence and  disturb findings  of fact  reached by the High Court and  therefore the  Supreme Court should not attempt a re-appreciation of  the evidence  while  dealing  with  this appeal; and  (iii) that the appointment of Gurdial Singh who had disturbed  the Akali  Meeting and  had also been charged for murder,  by the  appellant as  his polling  agent in the Gandiwind Polling  Booth  amounted  to  exercise  of  "undue influence" within the meaning of the Act. Allowing the appeal, ^      HELD: (1)  Section 116-C  makes it clear that an appeal to the  Supreme Court  under the  Act is  to be treated as a Civil appeal  and the  jurisdiction to  be exercised  is  as extensive as in the case of an appeal from a matter disposed of in  exercise of  original civil  jurisdiction of the High Court Section  116-A (I)  of the  Act clearly indicates that the appeal to this Court has to be disposed of by exercising the same  jurisdiction as  is exercised in an appeal against the original  judgment of the High Court In this view of the matter there  can really  be no  rule, whether  statutory or evolved by  this Court  by long  usage as  alleged, that the Court would  not interfere with the findings of fact reached at  the   trial  stage.  Ordinarily  a  finding  reached  on assessment of  the evidence  particularly when  it  is  oral would  not  be  interfered  with  but  where  the  Court  is satisfied that  on account  of a wrong approach to a matter, injustice has  been done to one of the parties before it, it would not  only be  within the  powers of  the Court  but it would be  its obligation  to  rectify  the  mistake  and  do justice to the party.[1066E-G,1070G-H ]      Ramabhai Ashabhai  Patel v.  Dabhi Ajitkumar Fulsinji & Ors. [1965]  I S.C.R.  712, Bhanu Kumar Shastri v. Mohan Lal Sukhadia & Ors. [1971] 3 S.C.R. 522. Mohd. Yasin Shah v. Ali Akbar Khan  [1977] 2  S.C.C. 23.  Laxminarayan v.  Returning Officer [1974]  I S.C.R.  822 & Sh. Raghbir Singh Gill V. S. Gurcharan Singh Tohra & Ors. [1980] Suppl. S.C.C. 53, relied upon.      Sarju Prasad  v. Raja Jwaleshwari Pratap Narain Singh & Ors. [1950]  S.C.R 781.  Wart v. Thomas 1947 A. 484. Narmada Prasad v.  Chagan Lal  [1966] 1  S R.  499. Prabodh Chand v. Mohinder Singh AIR 1971 SC 257. Sumitra Devi v; Sheo Shankar Prasad Yadav [1973] 2 S.C.R. 920, Chand Singh v. Shiv Ram 1061 AIR 1975  SC 403, Vital Nagaraj v. R. Dayanand Sagar, [1975] 2 S.C.R.  384 and  Laxmi Narain  v. Chander  Singh [1977]  2 S.C.R. 412 referred to.      2. By a catena of decisions of this Court it has by now

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been very  well settled that allegations of corrupt practice are quasi-criminal  charges and  the  proof  that  would  be required in  support of  such allegations  would be  as in a criminal charge.  Therefore, charges of corrupt practice are to be  equated with criminal charges and proof thereof would be not preponderance of probabilities as in civil action but proof beyond reasonable doubt as in criminal trials.                                           [1071A-B; 1075D-C]      Dr. M.  Chenna Reddy  v. V.  Ramchandra Rao  & Onr.  40 E.L.R. 390.  Magraj Patodia  v. R.K.  Birla &  Ors. [1971] 2 S.C.R. 118,  Mohan Singh  v. Bhanwar  Lal &  Ors.  [1964]  5 S.C.R. 12.  Guruji Shrihar  Baliram Jivatode  v. Vithalrao & Ors. [1969]  2 S.C.R.  766. Mehant  Shreo Nath  v.  Choudhry Ranbir Singh  [1970] 3  S.C.C. 647,  Abdul  Hussain  Mir  v. Shamsul Huda  & Onr.  [1975] 4  S.C.C. 533, Ch. Razik Ram v. Ch. Jaswant  Singh Chouhan & Ors. [1975] 4 S.C.C. 769, Surya Kant Roy  v. Imamul Hak Khan [1973] 1 S.C.C. 531, Nizamuddin Ahmed v.  Narbada Prasad  & Ors.  [1976]  1  S.C.C.  1.,  D. Venkata Reddy  v. R.  Sultan & Ors. [1976] 2 S.C.C. 455. Bir Chandra Barman  v. Anil Sarkar & Ors. [1976] 3 SCC 88, Ramji Prasad Singh  v. Ram  Bilas Jha  & Ors. [1977] 1 S.C.C. 260, Lakshmi Raman  Acharya v.  Chandan Singh  &  Ors.  [1977]  2 S.C.R. 412,  Amolak Chand  Chhazed v. Bhagwandas Arya & Ors. [1977] 3  S.C.C. 566,  Ramanbhai Nagjibhai  Patel v. Jasvant Singh Udesingh  & Ors.  [1979] 3  SCC 142, Haji C.H Mohammad Koya v.  I. K  .S. M. A. Muthukoya [1979] 2 SCC 8, A. Younus Kunju v.  R.S. Unni & Ors. [1984] 3 SCC 346 & Manmohan Kalia v. Yash & Ors. [1984] 3 SCC 499; followed.      3. Election  disputes are  not cases  at common  law or equity but are strict statutory proceedings and result of an election is  not available  to be  interfered with  lightly, [1076B]      Jagannath v.  Jaswant Singh  & Ors. [1954] 5 SCR 892 D. Venkata Reddy  v.  R.  Sultan  &  Ors.  [1976]  2  SCC  455; followed.      4.  Section   123  (2)   of  the   Act  defines  ’undue influence’. Any  direct or  Indirect interference or attempt to interfere  with free exercise of the electoral right by a candidate, his  agent or  any person with his consent or the candidate’s election  agent has been made a corrupt practice u/s 123  (2) of  the Act.  Chapter II  of the Act deals with agents and refers to appointments of election agent, polling agent and  counting agent. Section 79 (d) defines "Electoral Right" to  mean’ the  right of  a person  to stand or not to stand or  to withdraw  or  not  to  withdraw  from  being  a candidate or to vote or refrain from voting at any election. [1080G-H; 1079D]      (5) The  fact that  firearms were  freely used first by Gurdial Singh  and his  party and then by way of retaliation by Akali workers and gun shots resulted in the death of Daya Singh and  thus a  grave situation  arose is really not very material unless  that would  amount to  a  corrupt  practice within the meaning of 1062 s. 123  (2) of  the Act. Undoubtedly, disturbing the meeting as alleged  is ont covered under sub-s. (2) of s. 123 of the Act and is clearly an electoral offence dealt with by s. 127 of the Act. [1079H; 1080A]      (6) The  High Court  clearly overlooked  the fact  that disturbing the election meeting by itself did not constitute undue influence.  For  establishing  the  link  between  the disturbance of  the meeting  and the  returned candidate the evidence  is   wholly  oral  in  character  and  has  to  be scrutinised with greater rigour. Merely on the statements of some of  the witnesses  who  were  essentially  Akali  Party

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workers or supporters a charge of corrupt practice could not have been taken as proved. The approach of the learned trial judge to  the matter  is  contrary  to  law  as  settled  by decisions of  this Court  relating to  corrupt practice  and proof thereof. [1084B-C]      (7) It  is the admitted position that neither the Akali candidate S.  Ranjit Singh nor the appellant who was another contesting candidate  came to  the place  of the  meeting so held on  20.5.80. There  is evidence  that  the  meeting  so convened was  disturbed. The  disturbance to  the meeting is said to  have been caused by a group of people consisting of Gurdial Singh,  Hardial Singh, Rachhpal Singh, Kulwant Singh and Gurnam  Singh. There is no specific plea that these five persons were agents of the appellant. Admittedly, by May 20, 1980, none  of these  persons was  an agent  of any of these classes of the returned candidate. The only other aspects by which the  appellant would be liable for the action of these five people  would be if their act of disturbing the meeting was with  his consent.  Consent is  the life line to link up the candidate  with the action of the other person which may amount to  corrupt practice  and unless  it is  specifically pleaded and  clearly proved  in view  of the  fact that  all ingredients have  to be  proved beyond  reasonable doubt the appellant cannot  be charged for the action of Gurdial Singh and his group. [1078B-D; 1083B]      (8) In  the instant  case, though  there is  some  oral evidence to  implicate the appellant, even for what followed the disturbance to the meeting, this Court does not think in the absence of the plea such evidence can be entertained for any effective  purpose. The  fact that  protection had  been extended by the appellant to his supporter Gurdial Singh and members of his family even by raising quarrel with the local police inspector would not lead to a backward presumption of consent for the acts of Gurdial Singh. [1081F; 1083A-B]      (9) It  is difficult  to accept  the submission  of the respondent that by appointing a person charged for murder as polling agent  the appellant  had exercised undue influence. There is  clear evidence also that voting was free and quite a  large  percentage  of  the  voters  had  exercised  their electoral  right.  These  are  circumstances  which  clearly militate against  the allegation of the election petitioners that voters  had been  threatened and their free exercise of electoral right  had been affected. Moreover, in the absence of requisite pleading, want of any contemporaneous complaint in writing  or otherwise  to the  public officers within the polling booth  and the  nebulous nature of the oral evidence placed from  the side of the election petitioners, it cannot be said  that any  objection could  really be  taken to  the election on account of Gurdial Singh having acted 1063 as polling  agent in the particular electoral booth. [1083E- G;      (10) A  candidate is entitled to canvass for votes. One who is  in the  field to  be an  electoral representative is also entitled  to nourish  his constituency. Amelioration of grievances  of   the  public  is  innocuous  and  cannot  be construed  against   a  candidate.   We  agree   that  while nourishing is  a legitimate  activity, it  is  of  paramount importance that  nourishing should  not transgress the limit so as  to corrupt  the electoral  process. The appellant was already in  the field as a candidate for the legislature and was entitled  to help  the people  in his  constituency in a legitimate way. [1087E-G]      (11) There  was no  clear plea in the election petition that the money had been deposited by the appellant though in

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paragraph 8  it was  stated that  on 28.5.1980 appellant had told Bagicha Singh that he (Bagicha Singh) should not bother about the  expenses involved. There is no oral evidence even to suggest  that the  appellant  caused  the  amount  to  be deposited. There  is a  presumption that the person in whose name the  receipt has  been drawn  up was  the payer  of the amount and  burden lay on him who wanted to contend that the facts were  otherwise. In  these circumstances, it cannot be accepted that  the appellant  had got  the estimated  demand deposited with  the  authorities  of  the  Board.  Once  the allegation that  the appellant  had deposited  the amount of Rs. 944  is discarded, his taking up of the cause of Bagicha Singh for  early shifting of the electric wires over-hanging the first floor of his house would not amount to ’bribe’. At any rate,  the evidence  on record  is only  of PW.12.  That evidence even if accepted as a whole would not be sufficient to establish  the charge  of corrupt practice on this score. Oral evidence,  particularly, coming  from a  tainted source cannot form  the sole  basis of  proof of  corrupt practice. Therefore, the High Court was wrong in accepting the case of the election  petitioners that  the appellant  had committed corrupt practice  for procuring  the votes of Bagicha Singh, members of  his family  and his friends by getting the over- hanging electric  wires removed.  After all, if there be any scope for  doubt, it must resolve in favour of the appellant who was  facing  a  quasi-criminal  charge.  [1087B-D;  G-H; 1088E-F]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 463 of 1982      From the  Judgment and  Order dated  the 21st  January, 1982 of  the Punjab  and  Haryana  High  Court  in  Election Petition No. 4 of 1980.      H.L. Sibbal,  D.N.  Mishra  and  K.K.  Lahiri  for  the Appellant.      Shanti Bhushan,  Jitendra Sharma,  Manjit Singh  Khaira and Ms. Deepa Bhushan for the Respondent.      The Judgment of the Court was delivered by 1064      RANGANATH MISRA,  J. This appeal under section 116-A of the Representation  of  the  People  Act,  1951  (’Act’  for short), is  directed against  the judgment  of the  Punjab & Haryana  High  Court  setting  aside  the  election  of  the appellant  to   the   Punjab   Legislative   Assembly   from Constituency No.  25  known  as  Naushehra-Pannuan  Assembly Constituency. Election  was held  on May  31, 1980,  and the result  was   declared  the  following  day.  Appellant  was declared elected  with 26980 votes while respondent 3 Ranjit Singh lost with 26739 votes.      The election  petition was  filed by  two voters of the constituency (respondents 1 and 2). Respondent 1 (PW. 5) was admittedly the  counting agent of respondent 3. The election of the  appellant  was  challenged  on  two  allegations  of corrupt practice  in the  main, namely, disturbing a meeting of the  Akali Party  at a place called Hadur-Shah in Village Gandiwind on  May 20, 1980, where the appellant’s supporters allegedly  used   fire-arms  and  fatally  injured  one  and otherwise inflicted  injuries on  many others.  The relevant allegations in  support of  this plea  are to  be  found  in paragraph 5  of the  election petition.  The  other  was  an allegation of  corrupt practice of bribery with reference to Bagicha Singh  Chakiwala. Appellant  with his  supporters in

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the course  of canvassing  is said to have contacted Bagicha Singh on  May 28, 1980, at his village Chola-Sahib and asked for votes  of his  and members  of his family. Bagicha Singh was alleged  to  have  told  the  appellant  that  uncovered electric wires  were dangerously  passing over his house and despite his best of efforts he has not been able to get them removed and  the sum  being demanded  for their  removal was beyond his  means. Bagicha Singh is alleged to have told the appellant that  if he  got the same removed he would get the votes of  himself, members  of the  family as  also  of  his brotherhood. Appellant  promised to get the needful done and approached the  Punjab State Electricity Board employees and on putting  pressure, got the same done on May 30, 1980, one day  before  the  poll.  The  relevant  particulars  of  the allegation are  contained in  paragraphs  8  and  9  of  the election petition.      Several other  allegations were made in paragraphs 6, 7 and 10  of the  election petition  relating  to  threats  to electors of Gandiwind on May 20, 1980, after the meeting was disturbed, improper  reception of  votes, reception  of void votes, terrorisation  of the  voters at the booth on the day of polling, etc. but the same do not seem to be 1065 relevant as the High Court has not relied on the same nor in the course  of hearing of this appeal have those allegations been pressed  into service.  It is relevant to indicate here that  neither   the  defeated  candidate  nor  the  election petitioners had  any personal knowledge of the two incidents referred to  above. Verification  of the  election  petition indicated that the allegation in paragraph 5 was true to the information received  from Gurmukh  Singh, PW. 10 and Milkha Singh, PW,  11 while  information relating  to  the  Bagicha Singh episode was obtained from Darshan Singh, PW. 12.      At the  trial, Hardial Singh, election petitioner I was examined as PW.5. Respondent 3 was, however, not examined as a witness.  The evidence  in regard  to both  the incidents- Gandiwind meeting and Bagicha Singh episode-mainly consisted of oral statements of witnesses.      Some documents,  such as  the FIR, injury reports, etc. and the  deposit receipt  in regard to Bagicha Singh episode do not  throw any conclusive light inasmuch as they lack the material  aspect  of  correlating  the  appellant  with  the events. The  appellant had  in his  written statement denied the allegations  in so  far as  they implicated him with the incidents. He  examined himself  and led  other evidence  to support his  stand. The learned single Judge before whom the election petition came up for trial accepted the evidence of the election  petitioners and  held that  both  the  corrupt practices had  been committed  by the  appellant himself  or through others  with his consent and were covered by ss. 123 (1) (a),  (b) and  (2) of the Act. The election was declared void.      Mr. H.L.  Sibal appeared  in support  of the appeal and Mr. Shanti Bhushan represented the election petitioners. The appeal  has   been  heard   at  great  length  and  detailed submissions have  been advanced  by both  sides. Mr.  Shanti Bhushan emphatically  contended that  it was the practice of this Court  in  election  appeals  not  to  enter  into  re- appreciation  of  evidence  and  disturb  findings  of  fact reached by  the High Court. Therefore, we should not attempt a re-appreciation  of the  evidence while  dealing with  the appeal.  He  next  contended  that  election  disputes  were essentially civil  in nature.  To require the allegations of corrupt practice  to be  proved as  in a criminal charge was not the  proper approach.  With a  view  to  preserving  the

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purity  of   the  electoral  process  and  sanctity  of  the democratic system to which our country is wedded, it is meet and 1066 proper that charges of corrupt practice should be allowed to be  established   on   the   basis   of   preponderance   of probabilities as  in civil  litigation and not by asking for proof of  the allegation  beyond reasonable  doubt as  in  a criminal case. We are of the view that these two contentions should be  first dealt  with in order that a proper approach to the  matter can  be indicated  and once  that is done the materials available  on  record  can  be  assessed  for  the Purpose of disposal of the appeal.      Section 116-C  of the  Act lays  down the  procedure in appeal. It provides:           "(1). Subject to the provisions of this Act and of      the rules,  if any, made thereunder, every appeal shall      be heard  and determined by the Supreme Court as nearly      as may  be in  accordance with the procedure applicable      to the  hearing and determination of an appeal from any      final order  passed by  a High Court in the exercise of      its original civil jurisdiction: and all the provisions      of the  Code of  Civil Procedure, 1908 and the Rules of      the Court (including provisions as to the furnishing of      security and  the execution of any order of the Court),      shall, so  far as  may be,  apply in  relation to  such      appeal..."      This provision makes it abundantly clear that an appeal to this  Court under  the Act  is to  be treated  as a civil appeal and  the jurisdiction to be exercised is as extensive as in  the case  of an  appeal from  a matter disposed of in exercise of  original civil  jurisdiction of the High Court. Mr. Shanti Bhushan placed a series of decisions before us in support  of   his  proposition   regarding  the   extent  of interference available  in an  appeal. The  first  of  these cases is  Sarju Prasad  v. Raja  Jwaleshwari  Pratap  Narain Singh and Ors. This was a regular civil appeal and not under the Act. This Court quoted with approval the observations of Viscount Simon in Watt v. Thomas. Viscount Simon had stated, inter alia:           "But if  the evidence as a whole can reasonably be      regarded as  justifying the  conclusion arrived  at the      trial, and  especially  if  that  conclusion  has  been      arrived at on 1067      conflicting testimony  by tribunal  which saw and heard      the witnesses,  the appellate  court will  bear in mind      that it  has not  enjoyed this opportunity and that the      view of the trial Judge as to where credibility lies is      entitled to great wight." Viscount Simon proceeded further to indicate:           "This is  not to  say  that  the  Judge  of  first      instance can  be treated  as infallible  in determining      which side  is telling  the truth or is refraining from      exaggeration. Like  other tribunals, he may go wrong on      a question  of fact,  but it  is a  cogent circumstance      that a  Judge of  first instance,  when estimating  the      value of  verbal testimony, has the advantage (which is      denied to  Courts of  appeal) of  having the  witnesses      before him  and observing  the manner  in  which  their      evidence is given." There cannot  be much  dispute that  ordinarily this rule is applicable to all appellate forums.      Mr. Shanti  Bhushan  then  referred  to  the  cases  of Narmada Prasad  v. Chagan  Lal  Prabodh  Chand  v.  Mohinder

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Singh; Sumitra Devi v. Sheo Shankar Prasad Yadav Chand Singh v. Shiv  Ram; Vital  Nagaraj v. R. Dayanand Sagar; and Laxmi Narain v.  Chander Singh.  In each of these cases, depending on the facts thereof, the Court has made an observation that the trial  judge’s assessment  was entitled  to great weight and  respect   and  was,  therefore  not  to  be  ordinarily interfered with.  None of  these cases,  however,  indicated that this  Court would  not go  into the matter if the facts and circumstances  warranted a  detailed  examination  or  a fresh assessment.      We shall  presently refer  to some  of the decisions of the Court where this aspect has also been examined. To start with is  the  case  of  Ramabhai  Ashabhai  Patel  v.  Dabhi Ajitkumar Fulsinji and Ors. 1068 disposed of  by a  five Bench.  That was  a  case  prior  to amendment of  the Act.  Under  the  scheme  then  prevalent, election disputes were tried by a tribunal and an appeal lay to the  High Court  and the  matter was before this Court by way of  appeal by special leave. Dealing with this aspect of the matter, the Court held:           "For, as soon as special leave is granted there is      an appeal before this Court and while dealing with such      an appeal  this Court exercises its civil jurisdiction.      It is  true that  the rules  framed by  this  Court  in      exercise of  its rule  making powers do not contain any      provision analogous  to O.  XLI, r.  22 of  the Code of      Civil Procedure  which permits  a party  to support the      judgment appealed  against upon a ground which has been      found against  him  in  that  judgment.  The  provision      nearest to it is the one contained in O. XVIII, r. 3 of      the Rules  of this Court which requires parties to file      statement of  cases. Sub-rule (1) of that rule provides      that Part I of the statement of the case shall also set      out the  contentions of  the parties  and the points of      law and fact arising in the appeal. It further provides      that in  Part II a party shall set out the propositions      of law to be urged in support of the contentions of the      party lodging  the case  and the authorities in support      thereof. There  is no  reason to limit the provision of      this rule only to those contentions which deal with the      points found  in favour  of that  party in the judgment      appealed from.  Apart from  that we  think  that  while      dealing with  the appeal  before it  this Court has the      power  to  decide  all  the  points  arising  from  the      judgment appealed against and even in the absence of an      express provision  like O.  XLI, r.  22 of  the Code of      Civil Procedure it can devise the appropriate procedure      to be  adopted at the hearing. There could be no better      way of  supplying the  deficiency then  by drawing upon      the provisions  of a general law like the Code of Civil      Procedure and  adopting such of those provisions as are      suitable.  We  cannot  lose  sight  of  the  fact  that      normally a  party in whose favour the judgment appealed      from has  been given  will not be granted special leave      to  appeal   from  it.   Considerations   of   justice,      therefore,  require   that   this   Court   should   in      appropriate cases  permit a  party  placed  in  such  a      position to support the judgment in his favour even 1069      upon grounds which were negatived in that judgment". The ratio  of this decision makes the position clear that an appeal laid  before  this  Court  whether  under  a  statute conferring a  right of  appeal or  as a  result of  grant of leave under  Article 136  of the  Constitution opens  up the

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normal civil  appellate jurisdiction  of  the  Court  to  be exercised.      In Bhanu  Kumar Shastri v. Mohan Lal Sukhadia and Ors., Ray, J. (as he then was), indicated:           "If the  High Court  has overlooked  important and      crucial documents  or oral evidence, such evidence will      justify this  Court to  support the  contentions of the      respondent that  the findings of fact arrived at by the      High Court are against clear and cogent proof of facts.      This Court  will, therefore,  be justified in recording      the correct  findings on  ample and  abundant materials      which have  been overlooked  and ignored  by  the  High      Court. In  the present  case, we  have had  occasion to      deal with  these aspects  on the  rival contentions and      recorded our findings."      In Sumitra  Devi’s case  (supra), a decision of a three Judge Bench  on which  Mr. Shanti  Bhushan also  relied, the Court observed:           "It has been the consistent practice of this Court      not to  interfere with  findings on  questions of  fact      unless there  is some  grave or  palpable error  in the      appreciation of  the evidence on the basis of which the      findings were arrived at."      In Mohd.  Yasin Shah  v. Ali  Akbar Khan, a three Judge Bench referred with approval to the ratio in Laxminarayan v. Returning Officer and said:           "The propositions  enunciated by  this  Court  are      well established  and there  can be no dispute with the      propositions mentioned  above.  In  the  instant  case,      however, we find that the approach of the learned Judge      was not 1070      correct. We  have  already  pointed  out  a  number  of      salient features  appearing in  the evidence which have      rendered  the   case  of   the  petitioner   inherently      improbable.  The   learned  Judge   appears   to   have      overlooked  these   essential  features.  Further,  the      learned Judge  himself had  observed  that  issue  No.1      which he had framed was wide enough to include the plea      of  the  appellant,  and  even  if  the  order  of  the      Returning Officer  in rejecting the nomination paper on      the ground  of the  absence of  the  candidate  or  his      proposer was  wrong, it could still be supported on the      ground that  the signature  of  the  proposer  was  not      genuine. The  learned Judge  has  not  determined  this      aspect  of   the  matter.   In   these   circumstances,      therefore, we  feel that the judgment of the High Court      is erroneous  both on  fact and in law and although the      appellate Court  is extremely  slow in  disturbing  the      findings of fact, in the instant case, we are satisfied      that the  judgment of  the High  Court is  against  the      weight of  the evidence  on record and preponderance of      probabilities."      In S.  Raghbir Singh  Gill v.  S. Gurcharan Singh Tohra and Ors.,  it was  again pointed  out that  if something  is radically wrong  with the  approach  of  the  learned  Judge trying the  election petition  it would be for this Court to rectify the error.      The jurisdiction  to exercise  in an  appeal under  the Act, therefore,  appears to be as wide as in any other civil appeal. Section  116-A (1) of the Act clearly indicates that the appeal to this Court has to be disposed of by exercising the same  jurisdiction as  is exercised in an appeal against the original judgment of the High Court. In this view of the matter there  can really  be no  rule, whether  statutory or

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evolved by  this Court  by long  usage as  alleged, that the Court would  not interfere with the findings of fact reached at  the   trial  stage.  Ordinarily  a  finding  reached  on assessment of  the evidence  particularly when  it  is  oral would  not  be  interfered  with  but  where  the  Court  is satisfied that  on account  of a wrong approach to a matter, injustice has  been done to one of the parties before it, it would not  only be  within the  powers of  the Court  but it would be  its obligation  to  rectify  the  mistake  and  do justice to the party. 1071      We shall now turn to the other submission of Mr. Shanti Bhushan. By  a catena  of decisions  of this Court it has by now been  very well  settled  that  allegations  of  corrupt practice are quasi-criminal charges and the proof that would be required  in support of such allegations would be as in a criminal charge.  Mr. Shanti  Bhushan has canvassed that the standard of proof required in such a case would be dependent upon the gravity of the charge and there is no justification to adopt  the rule  that in  every  case  of  allegation  of corrupt practice the standard applicable to a criminal trial involving a  grave charge  like murder should be adopted. He has drawn  support from the observation of this Court in Dr. M. Chenna  Reddy v.  V. Ramchandra  Rao &  Ors.  It  may  be pointed out here that the ratio in Chhenna Reddy’s case runs counter to  the current of judicial thought on the point. In fact, quite close in point of time after Chenna Reddy’s case came the  case of Magraj Patodia v. R.K. Birla & Ors. Hegde, J. indicated:           "It is  true that  as observed  in Dr.  M.  Chenna      Reddy v.  V. Ramachadra  Rao &  Anr., that  a charge of      corrupt practice cannot be equated to a criminal charge      in all  respects. While  the accused in a criminal case      can refuse  to plead  and decline to adduce evidence on      his behalf  and yet  ask the  prosecution to  prove its      case beyond  reasonable doubt  such is not the position      in an  election petition.  But the  fact  remains  that      burden  of   proving  the  commission  of  the  corrupt      practice pleaded  is on  the petitioner  and he  has to      discharge that  burden satisfactorily.  In doing  so he      cannot depend on preponderance of probabilities. Courts      do not  set at  naught the  verdict of  the  electorate      except on good grounds."      Charges of  corrupt practice  have been  dealt with  by this Court  for over  20 years now in election appeals under the Act.  The first  important case  which came  before this Court was  disposed of  by a five judge bench in the case of Mohan Singh v. Bhanwar Lal & Ors. Shah, J. (as he then was), spoke for the Court thus:           "The onus  of establishing  a corrupt  practice is      undoubtedly on  the person who sets it up, and the onus      is not 1072      discharged  on   proof   of   mere   preponderance   of      probability, as  in the  trial of  a  civil  suit;  the      corrupt practice  must be established beyond reasonable      doubt by evidence which is clear and unambiguous."      Hegde,  J.   in  Guruji  Shrihar  Baliram  Jivatode  v. Vithalrao & Ors., reiterated the proposition by saying:           "It is  trite to  say that  the burden  of proving      everyone of  the ingredients  of the  corrupt  practice      alleged is  on him  who alleges  it.  If  he  fails  to      establish any  one of  them to  the satisfaction of the      Court he must fail."      In Mahant  Shreo Nath  v. Choudhry Ranbir Singh, it was

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again observed:           "A plea  in an  election petition that a candidate      or his  election agent  or any  person with his consent      has committed a corrupt practice raises a grave charge,      proof of  which results in disqualification from taking      part in elections for six years. The charge in its very      nature must be established by clear and cogent evidence      by those  who seek to prove it. The Court does not hold      such  a   charge  proved  merely  on  preponderance  of      probability:  the   Court  requires  that  the  conduct      attributed to  the offender is proved by evidence which      establishes it beyond reasonable doubt."      In Abdul  Hussain Mir  v. Shamsul  Huda & Anr., Krishna Iyer, J. indicated:           "Charges, such  as have  been  imputed  here,  are      viewed as  quasi-criminal carrying other penalties than      losing a  seat,  and  strong  testimony  is  needed  to      subvert  a  Returning  Officer’s  declaration....  When      elections are  challenged on  grounds with  a  criminal      taint, the  benefit of  doubt  in  testimonial  matters      belongs  to   the  returned   candidate  Oral  evidence      ordinarily  is   inadequate  especially  if  it  is  of      indifferent quality or orally procurable. 1073      In Ch.  Razik Ram  v. Ch.  Jaswant Singh Chouhan & Ors. Sarkaria, J. spoke for this Court in the following terms:           "Before considering  as to  whether the charges of      corrupt practice  were established,  it is important to      remember the  standard of proof required in such cases.      It is well settled that a charge of corrupt practice is      substantially akin to a criminal charge. The commission      of   a   corrupt   practice   entails   serious   penal      consequences. It  not only vitiates the election of the      candidate concerned  but  also  disqualifies  him  from      taking part  in elections for a considerably long time.      Thus, the  trial of  an election  petition being in the      nature of an accusation, bearing the indelible stamp of      quasi-criminal action,  the standard  of proof  is  the      same as  in a  criminal trial.  Just as  in a  criminal      case,  so  in  an  election  petition,  the  respondent      against  whom   the  charge   of  corrupt  practice  is      levelled, is  presumed to  be  innocent  unless  proved      guilty. A  grave and  heavy onus therefore rests on the      accuser to  establish each  and every ingredient of the      charge by clear, unequivocal and unimpeachable evidence      beyond reasonable  doubt. It  is true  that there is no      difference between  the general  rules of  evidence  in      civil  and   criminal  cases,  and  the  definition  of      "proved" in section 3 of the Evidence Act does not draw      a distinction  between civil  and criminal  cases.  Nor      does this  definition insist  on perfect  proof because      absolute certainty amounting to demonstration is rarely      to be  had in  the affairs  of life,  Nevertheless. the      standard  of   measuring  proof   prescribed   by   the      definition,  is  that  of  a  person  of  prudence  and      practical good  sense. ’Proof’  means the effect of the      evidence adduced in the case. Judged by the standard of      prudent man, in the light of the nature of onus cast by      law, the  probative effective  of evidence in civil and      criminal proceedings  is markedly  different. The  same      evidence which  may be  sufficient to  regard a fact as      proved in  a civil suit, may be considered insufficient      for a  conviction in  a criminal  action. While  in the      former  a   mere  preponderance   of  probability   may      constitute an adequate basis of decision, in the latter

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1074      a  far   higher  degreed   of  assurance  and  judicial      certitude is  requisite for  a conviction.  The same is      largely  true  about  proof  of  a  charge  of  corrupt      practice, which  cannot be  established by mere balance      of   probabilities,    and,   if   after   giving   due      consideration  and   effect  to  the  totality  of  the      evidence and circumstances of the case, the mind of the      Court is  left rocking  with reasonable doubt-not being      the doubt  of a timid, fickle or vacillating mind-as to      the veracity  of the  charge, it  must hold the same as      not proved."      To the  same effect are the following decisions of this Court in  Surya Kant Roy v. Imamul Hak Khan Nizamuddin Ahmed v. Narbada  Prasad &  Ors; Venkata Reddy v. R. Sultan & Ors; Bir Chandra  Borman v. Anil Sarkar & Ors. Romji Prasad Singh v. Ram  Bilas Jha  & Ors;  Lakshmi Raman  Acharya v. Chandan Singh &  Ors Amolak  Chand Chhazed v. Bhagwandas Arya & Ors. Ramanbhai Nagjibhai  Patel v. Jashvant Singh Udesingh & Ors. Haji C.H. Mohammad Koya v. I.K.S.M.A. Muthukoya.      We may  now  refer  to  two  decisions  of  this  Court rendered this  year where  the same  question had arisen for consideration. In A. Younus Kunju v. R.S. Unni & Ors. one of us observed:           "There is total consensus of judicial opinion that      a charge  of corrupt  practice under  the Act has to be      proved beyond  reasonable doubt  and  the  standard  of      proof is the same as in a criminal case...      In Manmohan  Kalia v.  Yash &  Ors. a three Judge Bench reiterated; 1075           "It is  now well settled by several authorities of      this Court  that an allegation of corrupt practice must      be proved  as strictly  as a  criminal charge  and  the      principle of  preponderance of  probabilities would not      apply to corrupt practices envisaged by the Act because      if this  test is  not applied  a very serious prejudice      would be  caused to  the elected  candidate who  may be      disqualified for  a period  of six  years from fighting      any election, which will adversely affect the electoral      process."      It is  thus clear  beyond any  doubt that  for over  20 years the  position has been uniformly accepted that charges of corrupt  practice are to be equated with criminal charges and  proof   thereof   would   be   not   preponderance   of probabilities as in civil action but proof beyond reasonable doubt as in criminal trials. We are bound by the decision of the larger  Bench in  Mohan Singh’s  case (supra) as also by decisions of  coordinate benches and do not feel inclined to take a  different view.  We also  find no  warrant  for  the contention of  Mr. Shanti  Bhushan  that  a  fresh  look  is necessary in  the matter.  On the other hand we feel advised to follow the dictum of Lord Devlin when he observed:           "Precedents keep  the law  predictable and so more      or less ascertainable."      Lord Chancellor  Hailsham very  appropriately summed up the English practice when he said in Broom v. Cassell & Co.           "Their Lordships regard the use of precedent as an      indispensable foundation  upon which  to decide what is      the law  and its  application to  individual cases.  It      provides a  least some  degree of  certainty upon which      individuals can  rely in  the conduct of their affairs,      as well  as a  basis for  orderly development  of legal      rules."      A judge-made  change in  the law  rarely comes out of a

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blue sky. Rumblings from Olympus in the form of obiter dicta will give warning of unsettled weather. Unsettled weather is itself,  of   course,  bound   to  cause   uncertainty,  but inevitably it  precedes the  acceptance of  a change. Such a situation has not arisen yet and, therefore, a 1076 rethinking  as  suggested  by  Mr.  Shanti  Bhushan  is  not warranted.      One more  aspect should  be referred  to here before we proceed to examine the facts of the case. A five judge Bench of this Court in Jagannath v. Jaswant Singh & Ors. indicated that election disputes are not cases at common law or equity but are  strict  statutory  proceedings  and  result  of  an election is  not available to be interfered with lightly. It was said:           "It is  also well  settled  that  it  is  a  sound      principle of  natural justice  that the  success  of  a      candidate who  has won  at an  election should  not  be      lightly interfered  with and  any petition seeking such      interference must  strictly conform to the requirements      of the law.      This view  has been reiterated by this Court in Venkata Reddy’s case (supra).      We have  already taken  note of  the position  that the election has been set aside in the present case on a finding of commission  of two corrupt practices, one relating to the election meeting  in Village  Gandiwind on May 20, 1980, and the other  relating to  the allegation  of  bribery  in  the matter of  Bagicha Singh.  We shall now proceed to deal with these two aspects separately.      The  corrupt  practices  as  alleged  in  the  election petition have  been found  by the  High Court to come within the ambit  of sub-sections (1) and (2) of s. 123 of the Act. The legal  position is  well settled,  and it  has not  been disputed before  us, that  the Act  is a  complete  Code  by itself on  the subject of elections to Parliament as also to the State  Legislatures and an election can be declared void only if  one or the other of the stated grounds in s. 100 of the Act  is attracted.  Section 100 (1) (b) provides that if corrupt practice is committed by a returned candidate or his election agent  or by  any other  person with the consent of the returned  candidate or  his election agent, the election of the returned candidate shall be declared void.      The relevant provisions in s. 123 may now be extracted:           "123. Corrupt  practices-The  following  shall  be      deemed to be corrupt practices for the purposes of this      Act:- 1077      (1)  ’Bribery’, that is to say,-      (A)  any gift,  offer or  promise by a candidate or his           agent or by any other person with the consent of a           candidate   or   his   election   agent   of   any           gratification, to  any person whomsoever, with the           object, directly or indirectly, of inducing-      (a)      x      x      x      x      x      (b)  an elector  to vote  or refrain  from voting at an           election, or as a reward to-      (i)      x      x      x      x      x      (ii) by any  person whomsoever for himself or any other           person for voting.... or inducing or attempting to           induce any elector to vote............           Explanation-For the  purposes of  this clause  the      term ’gratification’  is not  restricted  to  pecuniary      gratifications or gratifications estimable in money and      it includes  all forms  of employment for reward but it

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    does not  include the payment of any expenses bona fide      incurred at,  or for  the purpose  of, any election and      duly  entered  in  the  account  of  election  expenses      referred to in section 78.           (2) Undue  influence, that is to say any direct or      indirect interference  or attempt  to interfere  on the      part of  the candidate  or his  agent, or  of any other      person  with  the  consent  of  the  candidate  or  his      election agent, with the free exercise of any electoral      right:      Provided that-      (a)  without  prejudice   to  the   generality  of  the           provisions of  this clause  any such  person as is           referred to therein who-      (i)  threatens any  candidate or  any elector,  or  any           person in  whom  a  candidate  or  an  elector  is           interested, with  injury  of  any  kind  including           social ostracism  and excommunication or expulsion           from any caste or community; or 1078      (ii) ........shall be deemed to interfere with the free           exercise of  the electoral right of such candidate           or elector within the meaning of this clause."      We shall  first deal with the Gandiwind incident of may 20,  1980.  The  election  petition  in  paragraph  5  makes allegations with reference to this incident. For convenience the contents of the entire paragraph are extracted:           "5. That  the respondent  No. 1 along with Gurdial      Singh, Hardial  Singh,  Rachhpal  Singh  sons  of  Tara      Singh, Kulwant  Singh son  of Sewa  Singh, Gurnam Singh      son of  Jinda Singh  hatched a  conspiracy not to allow      the akali candidate respondent No. 2 and his supporters      to hold  any meeting  or do  any canvassing  at Village      Gandiwind on 20.5.1980. They had collected at the house      of Gurdial  Singh at  about 1. 30 P.M. where the above-      mentioned decision  was taken.  At about  the same time      the villagers  were collecting  for a  meeting  at  the      place known  as Hadur-Shah  and that  meeting was to be      addressed by  S. Lehna  Singh Tur,  M.P. and respondent      No. 2. At about 2 P.M. the aforesaid persons armed with      fire arms except respondent No. 1 came out of the house      of Gurdial  Singh. Then  the respondent No. 1 told them      not to  allow the  meeting to  proceed at  any cost and      himself stayed  behind. On  reaching the meeting place,      they stood  by at one side of the Jalsa. At about 2. 30      P.M. when  S. Lehna  Singh Tur  reached at the meeting,      these  persons   started   shouting   slogans   against      respondent No.  2 and  S. Lehna  Singh and in favour of      Respondent  No.   1  and   caused  obstruction  in  the      proceedings of  the Jalsa  and did  not allow  S. Lehna      Singh Tur  to speak.  When Piara  Singh  son  of  Inder      Singh, Daya Singh son of Ishar Singh requested them not      to do  it and  tried to stop them, they got into a rage      and started  hurling abuses  at respondent  No.  2,  S.      Lehna Singh Tur and others and suddenly started firing.      On this  the people  started running  for shelter and a      shot fired by Gurdial Singh hit Daya Singh son of Isher      Singh on his forehead who fell down and the shots fired      by the others hit Piara Singh son of Inder Singh, Kehar      Sing son 1079      of Gujjar  Singh and  Kewal Singh  son of Surain Singh.      All the  aforesaid persons  kept on  firing shots which      were returned by some people."      The Akali  Party had organised a meeting in the village

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to make  election propaganda  for respondent No. 3 and PW. 4 was the  organiser. S.  Lehna Singh, PW. 7 who was a sitting Member of  the Lok  Sabha was to address that meeting. It is the admitted  position that  the Akali  candidate S.  Ranjit Singh was  not to,  and did  not, come to the meeting. It is also the  common case of both the parties that the appellant who was  another contesting  candidate also  did not come to the place  of the  meeting. There is evidence, and Mr. Sibal for the  appellant did  not dispute  the position,  that the meeting so  convened was  disturbed. The  disturbance to the meeting is  said to  have been  caused by  a group of people consisting of  Gurdial Singh, Hardial Singh, Rachhpal Singh, Kulwant Singh  and Gurnam  Singh. There  is no specific plea that these  five  persons  were  agents  of  the  appellant. Chapter II  of the  Act deals  with  agents  and  refers  to appointment of  election agent,  polling agent  and counting agent. Admittedly,  by may  20, 1980,  none of these persons was an  agent of  any  of  these  classes  of  the  returned candidate. The  only other  aspect by  which  the  appellant would be liable for the action of these five people would be if their act of disturbing the meeting was with his consent.      There is  evidence which  the High  Court has  accepted that when  PW. 7 arrived at the meeting place and slogans in favour of the candidate and PW. 7 were raised, Gurdial Singh and his  group raised counter slogans. Soon disorder spread. When PW.  4 and  Daya Singh  wanted to  pacify the situation with a  view to  making the holding of the meeting possible, Gurdial Singh  opened fire  from his  rifle which  hit  Daya Singh on  the forehead.  Others who  were armed with 12 bore guns also  fired their  arms and  with pellets  coming  from their firearms  many were  injured. Though  Mr. Sibal made a serious attempt  to combat  the finding  of the  High  Court regarding the disturbance to the meeting, we are inclined to agree with  the High  Court that the meeting convened by the Akali Party  in Village Gandiwind on may 20, 1980, where PW. 7 was to address the electors was disturbed by Gurdial Singh and others. The fact that firearms were freely used first by Gurdial Singh  and his  party and then by way of retaliation by Akali  workers and  gun shots  resulted the death of Daya Singh 1080 and thus a grave situation arose is really not very material unless that  would amount  to a  corrupt practice within the meaning of  s. 123  (2) of  the Act. According to Mr. Sibal, disturbing an  election meeting  is not  undue influence and for the  matter of  that a  corrupt practice,  but has  been separately provided  for in  s. 127  of the  Act and  is  an electoral offence. Section 127 provides:           "127. Disturbances at the election meeting-           (1) Any  person who  at a  public meeting to which      this section  applies acts, or incits others to act, in      a disorderly  manner for  the purpose of preventing the      transaction of  the business  for which the meeting was      called together,  shall be  punishable with  fine which      may extend to two hundred and fifty rupees.           (2) This  section applies to any public meeting of      a political  character held in any constituency between      the date  of the issue of a notification under this Act      calling upon  the constituency  to elect  a  member  or      members  and   the  date  on  which  such  election  is      held...."      Undoubtedly the meeting in question is squarely covered by sub-s.  (2) of  s. 127  and the  role assigned to Gurdial Singh and  his group  would certainly bring it within sub-s. (1) of  that section.  It is  not open to doubt that Gurdial

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Singh and  his supporters  in the  event of  the allegations being accepted had committed an electoral offence within the meaning of s. 127 of the Act.      The question  that has next to be considered is whether disturbing  such  a  meeting  would  also  amount  to  undue influence under  s. 123  (2) of  the Act. Direct or indirect interference or  attempt to  interfere with free exercise of the electoral  right by a candidate, his agent or any person with his  consent or the candidate’s election agent has been made a  corrupt practice. "Electoral Right" has been defined in s.  79 (d)  of the  Act to  mean the right of a person to stand or  not to  stand as or to withdraw or not to withdraw from being  a candidate or to vote or refrain from voting at any election.’ In paragraph 5 of the election petition there is no  allegation of  any threat. It is proper at this stage to refer  to the  pleadings in  paragraph 6  of the election petition where it has been pleaded: 1081           "That later  on the  same day aforesaid assailants      threatened that  any body  who will support or vote for      respondent No.  2 shall  meet the  same  fate  as  Daya      Singh. Gurdial  Singh son  of  Tara  Singh  along  with      others created  such  a  terror  in  the  Village  that      subsequently it  became very  difficult and  risky  for      anyone  to   canvass  for  respondent  No.  2  in  this      village".      Disturbing the meeting as alleged in paragraph 5 of the election petition  in our  view is  not covered under sub-s. (2) of s. 123 of the Act and is clearly an electoral offence dealt with  by s.  127 of the Act. The allegations contained in paragraph  6 of  the election petition would perhaps come within s.  123 (2) (a) (i) of the Act. In paragraph 5 of the election petition the following fact had been pleaded:           "Then the  respondent No. 1 told them not to allow      the meeting  to proceed  at any cost and himself stayed      behind".      If this  statement of  fact is  accepted consent of the appellant for disturbing the meeting can be found but in the absence  of  any  specific  plea  that  it  was  appellant’s instruction that  the electors  should  be  threatened,  the facts alleged in paragraph 6 of the election petition cannot be accepted  to have been with the consent of the appellant. Mr. Shanti  Bhushan, learned counsel for respondents 1 and 2 has  not   disputed,  and   in  our  opinion  rightly,  that allegations of  corrupt practice have to be strictly pleaded with material  particulars and  evidence beyond the ambit of plea would  not be permitted to be led. Though there is some oral evidence  to implicate  the appellant,  even  for  what followed the  disturbance to the meeting, we do not think in the absence  of the  requisite plea  such  evidence  can  be entertained for any effective purpose.      Though in paragraph 5 of the election petition the link between the  appellant and  Gurdial Singh  and his group was pleaded in the manner extracted above, oral evidence was led particularly  by  PWs.  10  and  11  about  the  details  of instructions given by the appellant to create disturbance at the meeting. The learned trial judge applied his mind to the evidence and came to held:           "Whether that  omission from the election petition      was due to the fact that they had not given these facts      to the 1082      petitioner, whom, as per their testimony they had met a      few days after the announcement of the election result;      or had  given the  version, and  the petitioner did not

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    retain in  his memory the version that was given to him      when instructing the counsel, who drafted the petition.      Be that  as it  may, the  fact remains that the version      remains omitted from the petition. I am, therefore, out      of abundant  caution, not  prepared to go to the extent      of accepting  the version  of these  two witnesses that      they had  heard respondent  No. 1 telling Gurdial Singh      and his  co-accused to  disturb  the  meeting  and  the      latter having  assured  him  that  they  would  do  the      needful".      We agree  with the said conclusion of the learned trial Judge in the facts and circumstances of the case.      Mr. Shanti  Bhushan next  contended that  even  if  the conversation between the appellant and Gurdial Singh and his group is  discarded, the fact that the appellant had come to the house  of Gurdial  Singh in  Village Gandiwind cannot be disbelieved. Learned  counsel for both sides have placed the entire evidence  of the  witnesses twice over before us. Mr. Sibal has  asked us to discard the evidence of PW, 10 and 11 in support  of the  visit of  the appellant  to the house of Gurdial Singh  while Mr.  Shanti Bhushan  has contended that the defects  highlighted  by  Mr.  Sibal  do  not  make  the evidence liable  to rejection. In our opinion, it is totally unnecessary to  go into this aspect of the matter as we have already found  that even  if the  appellant had consented to disturbing  the   meeting  it   did  not  amount  to  "undue influence" so as to be a corrupt practice within the meaning of the Act.      Evidence was  led again  without any  material pleading that the appellant had used his influence to protect Gurdial Singh from  police harassment  as also to ensure that he was not arrested.  It is  not disputed that Gurdial Singh was an Akali supporter  at previous  elections  and  continued  his allegiance to  the Akali Party until a few months before the election of  1980. On account of personal disputes with some of the  Akali members  he switched  over his  support to the opposite faction.  It  is  not  in  dispute,  however,  that Gurdial Singh  was a supporter of the appellant and had even worked as  his polling  agent in  the  Gandiwind  booth.  To extend protection  to a supporter, particularly, a fresh but powerful supporter, is normal 1083 human conduct. The fact that protection had been extended by the appellant  to Gurdial  Singh and  members of  his family even by  raising quarrel  with the  local  police  inspector would not  lead to a backward presumption of consent for the acts of  Gurdial Singh.  Consent is the life line to link up the candidate  with the action of the other person which may amount to  corrupt practice  and unless  it is  specifically pleaded and  clearly proved-in  view of  the fact  that  all ingredients have  to be  proved beyond  reasonable doubt-the appellant cannot  be charged for the action of Gurdial Singh and his group.      In paragraph  7 of the election petition allegation was made of  exercise of  undue influence on the date of polling by appointing  Gurdial Singh as appellant’s polling agent in the Gandiwind polling booth. Some oral evidence has been led in support  of that  plea. The  field of  operation  of  the polling agent  is within  the polling booth itself where the polling  agents   of  the  contesting  candidates  would  be present, the  Presiding Officer  of the  polling  booth  and other  public   functionaries  would  also  be  present.  No complaint in  writing had  been given  against  the  illegal activity  of   Gurdial  Singh   within  the  polling  booth. Contemporaneous attention  of the  Presiding  Officer  could

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have been  drawn to  such nefarious act, if any. There is no evidence that  the Presiding Officer or the polling officers had been  notified of  any such  complaint. There  is  clear evidence also  that  voting  was  free  and  quite  a  large percentage of  the  voters  had  exercised  their  electoral right.  These   are  circumstances  which  clearly  militate against the  allegation of  the  election  petitioners  that voters had  been  threatened  and  their  free  exercise  of electoral right had been affected. It is difficult for us to accept  the   submission  of  Mr.  Shanti  Bhushan  that  by appointing a  person charged for murder as polling agent the appellant had  exercised undue  influence.  It  is  not  his contention  that   Gurdial  Singh   has  not  the  requisite qualification for being appointed as a polling agent and his appointment was  bad in  law. Mr.  Sibal has  indicated that until then  there was  only a charge of murder and he made a statement from the Bar that Gurdial Singh has been acquitted of the  charge in due course, with that we are of course not concerned. In the absence of requisite pleading, want of any contemporaneous compliant  in writing  or otherwise  to  the public officers  within the  polling booth  and the nebulous nature of  the oral  evidence placed  from the  side of  the election petitioners,  we are not inclined to agree with Mr. Shanti Bhushan  that any  objection could really be taken to the election on 1084 account of  Gurdial Singh  having acted  as polling agent in the particular electoral booth.      The  High   Court  clearly  overlooked  the  fact  that disturbing the election meeting by itself did not constitute undue influence.  For  establishing  the  link  between  the disturbance of  the meeting  and the  returned candidate the evidence  is   wholly  oral  in  character  and  has  to  be scrutinised with  greater rigour. Merely on the statement of some of  the witnesses  who  were  essentially  Akali  Party workers or supporters a charge of corrupt practice could not have been taken as proved. The approach of the learned trial judge to  the matter  is  contrary  to  law  as  settled  by decisions of  this Court  relating to  corrupt practice  and proof thereof.      Even if  the charge  of this corrupt practice fails, if the other  is accepted the decision of the High Court cannot be interfered  with because  one corrupt  practice would  be sufficient to  have the election declared as void. We shall, therefore,  now   proceed  to   examine  the  material  with reference to the Bagicha Singh episode.      The requisite  pleading for this part of the allegation is available in paragraphs 8 and 9 of the election petition. It is appropriate that we extract the same for convenience:           "8. That  on 28.  5. 1980  the  respondent  No.  1      visited villaged Chola-Sahib and there while requesting      for votes, he went to the house of Mistri Bagicha Singh      Chakiwala and asked him for his vote and votes of other      family members  and friends.  During this  some  others      belonging to the village had also collected around him.      Shari  Bagicha   Singh  told  him  that  the  uncovered      electric wires were dangerously passing above his house      and despite  his best  efforts he  has not been able to      get them  removed and  the sum being demanded for their      removal was  beyond his means. He further told him that      whosoever gets  this job  done will  get  his  family’s      votes and  he would  help him  get  the  votes  of  his      brotherhood also.  On this  the respondent  No. 1  said      that he  would get the needful done and they should not      bother  about   the  expenses  involved  in  case  they

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    promised him  the votes  of his  brotherhood.  On  this      Bagicha Singh  said that  respondent No 2 had also come      to him  and we  had put  our problem to him also but he      had said 1085      that he would help them get the wires shifted after the      election. On  this the  respondent No.  1 said  that he      would get  the needful done before the election and pay      the expenses also. On this Bagicha Singh agreed to poll      all the  votes of  his family  and also assured that he      would help respondent No. 1 in getting the votes of his      brotherhood as well".           "9. That  the  respondent  No.  1  approached  the      Punjab State  Electricity Board Employees concerned and      put pressure  on them and also get the amount deposited      and  the  wires  were  removed  on  30.  5.  1980.  The      respondent No.  1 is  guilty of  having  committed  the      corrupt practice  of bribery  as defined  under section      123, sub-sections  A & B of the Act and his election is      liable to be declared void under section 100 of the Act      on the  ground  of  this  commission  of  this  corrupt      practice of  bribery. The respondent No. 1 has received      more than 200 votes by committing this corrupt practice      and  the   election  of   respondent  No.  1  has  been      materially affected  and but  for the votes obtained by      respondent No.  1 by  the commission  of  this  corrupt      practice, the  respondent No.  2 would  have obtained a      majority of  valid votes  and he  has  a  right  to  be      declared as elected".      Commission of  corrupt practice per se makes the result of election  void when  the corrupt practice is committed by the returned  candidate. The  allegation here  is  that  the appellant, the  returned candidate, had personally committed the corrupt  practice. The evidence shows that Bagicha Singh is a  resident of Chola-Sahib. On September 13, 1978, notice was given  to him  by the  Electricity Board  that he should demolish his  construction on  the first floor as it was too close to the over-hanging electric wire. A second notice was given to  the same  effect on  July 13, 1979. Within a week, i.e. on  July 20,  1979,  Bagicha  Singh  made  the  initial deposit of  Rs. 100  with a  view to  shifting of  the over- hanging electric  wires as  such  shifting  would  save  the construction from  being  required  to  be  demolished.  The estimate had  not been  prepared notwithstanding the deposit of Rs.  100. When the matter stood at such stage, on May 28, 1980, appellant  is alleged to have approached Bagicha Singh at his house in the course of election propaganda.      The requisite  pleadings in  paragraphs 8  and 9 of the election petition  were on  the basis  of disclosure made by PW. 12. That witness stated in his evidence: 1086           ’S. Surinder  Singh Kairon  and  others  including      myself while canvassing for votes, reached the house of      Bagicha Singh. Makian Singh was present in the house of      Bagicha Singh.  When S. Surinder Singh Kairon asked for      his votes  and for getting the votes of his Biradri, he      replied that  he had  a bit  of problem  of getting the      over-hanging electric  wire removed  from his house. He      went on  to say  that although he had deposited Rs. 100      about two  years back  yet the department had not taken      any action  and they  were asking for a further deposit      of Rs.  1000 which amount he did not have and that when      S. Ranjit  Singh visited  him, he had told him also the      same thing.  S. Ranjit  Singh is  said to have told him      that he  would get it done after the election was over.

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    Bagicha Singh  made it  clear that  anybody  who  would      solve his  problem would  get his own and family votes.      Thereupon S.  Surinder Singh said that he would get the      needful done before the polling date and that he should      not worry. They canvassed two more house and thereafter      I left them".      The evidence  of PW. 12 does not mention anything about the  financial  aspect  involved  in  the  deal  though  the election petition  refers to  that  part  of  it.  From  the documentary evidence  it appears  that on  May 29, 1980, the estimate was  prepared  and  Rs.  944  was  required  to  be deposited. The  S.D.O. of  the State  Electricity  Board  at Sarhalli sent  his estimate  to the Executive Engineer whose office was  located at  Patti, some  distance from Sarhalli. The estimate  was drawn  in the  name of  Bagicha Singh. The deposit appears  to have  been made  on May 30, 1980, in the name of  Bagicha Singh  also and the removal was done on the same day.  P.W.6 is  the S.D.O. who has produced some of the papers and  has spoken  about events  with reference  to the record. He  was not  there at  the  relevant  time  and  has candidly admitted  that  he  was  not  personally  aware  of anything. That  an old  pending matter  where no  action was being taken  has been done too quickly is not open to doubt. We are  prepared to  assume on the basis of submissions made by Mr.  Shanti Bhushan that in the facts of the case, Sardar Surinder Singh  was likely  to have  taken some  interest in ameliorating the  difficulties of  Bagicha Singh;  otherwise where there  was no  movement for  about a  year  since  the deposit of  Rs. 100  everything could  not  have  been  done overnight. 1087      The demand  of Rs.944  as per  the  estimate  had  been raised, P.W.6  has said  that the demand was against Bagicha Singh and  the deposit  has been made and the receipt in the name of  Bagicha Singh has been prepared. It was bound to be so. The  material aspect  for consideration  is  as  to  who deposited the amount. Was it Bagicha Singh or was the source the unseen  hands  of  the  appellant  ?  On  this  material particular there  is  practically  no  evidence.  We  cannot accept the  submission of  Mr. Shanti  Bhushan that  in  the facts of the case learned trial judge was right in accepting the case  of the  election petitioners  that Surinder  Singh deposited the  money. We have already taken note of the fact that there  was no  clear plea in the election petition that the money  had been  deposited by  Surinder Singh  though in paragraph 8  it was  stated that  on 28.5.1980 appellant had told Bagicha Singh that he (Bagicha Singh) should not bother about the  expenses involved. There is no oral evidence even to suggest  that Surinder  Singh caused  the  amount  to  be deposited. There  is a  presumption that the person is whose name the  receipt been  drawn up was the payer of the amount and burden  lay on  him who wanted to contend that the facts were otherwise. We cannot therefore, in these circumstances, accept the  conclusion of  the learned  trial judge which is vehemently supported  by Mr.  Shanti Bhushan  that  Surinder Singh had  got  the  estimated  demand  deposited  with  the authorities of the Board.      A candidate  is entitled  to canvass for votes. One who is in  the filed  to be  an electoral representative is also entitlen to nourish his constituency. As pointed out by this Court  in   Bhanu  Kumar  Shastri’s  case,  amelioration  of grievances  of   the  Public  is  innocuous  and  cannot  be construed  against   a  candidate.   We  agree   that  while nourishing is  a legitimate  activity, it  is  of  paramount importances that  nourishing should not transgress the limit

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so as  to corrupt  the electoral  process. The appellant was already in  the field as a candidate for the legislature and was entitled  to help  the people  in his  constituency in a legitimate way.  Once the  allegation that  he had deposited the amount  of Rs.  944 is  discarded, his  taking up of the cause of  Bagicha Singh  for early  shifting of the electric wires overhanging  the first  floor of  his house  would not amount to  ’bribe’. At  any rate,  the evidence on record is only of  PW. 12.  We do  not think  that  evidence  even  if accepted as  a whole  would be  sufficient to  establish the charge of  corrupt practice  on this  score. This  Court has rightly indicated  that oral  evidence, particularly, coming from a tainted source cannot form the sole basis of proof 1088 of corrupt  practice. In  Younus Kunju’s case,(supra) it has been stated:      "Admittedly all these witnesses were the workers of the      appellant.  There   is  overwhelming  material  on  the      record, and  even counsel  fairly  admitted,  that  the      election was  fought on party basis and there was sharp      division of  the electorate  on the  basis of political      parties.  That   being  the  position  workers  at  the      election with  party  alignment  would  necessarily  be      political supporters  of the  respective candidates and      when called  as  witnesses  they  would  support  their      stand. Instances  are not uncommon where such witnesses      support their  respective candidates  and  their  cases      though  the   same  be   far  from   truth.   In   such      circumstances we  do not think on the oral testimony of      these four  witnesses  the  charge  of  publication  of      objectionable  materials  can  be  said  to  have  been      established."      PW.12 was  a supporter  of the Akali Party as stated by him though  he also  indicated that  he had  accompanied the appellant in  the course  of canvassing for votes to Bagicha Singh’s house.  A sum  total view  of the  evidence, in  our opinion, falls  short of  the legal  requirement for finding corrupt practice.  Here again,  we are  of the view that the High Court  went wrong in accepting the case of the election petitioners  that   the  appellant   had  committed  corrupt practice for  procuring the  votes of Bagicha Singh, members of his  family and  his friends  by getting the over-hanging electric wires removed. After all, if there be any scope for doubt, it  must resolve  in favour  of the appellant who was facing a quasi-criminal charge.      The appeal  has to  succeed. We accordingly reverse the decision of  the High  Court and  uphold the election of the appellant. The  finding of the High Court that he was guilty of corrupt practice under ss. 123(1) and (2) stands vacated. Parties are directed to bear their own costs throughout. M.L.A.                                      Appeals allowed. 1089