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Attorney(S)
  • B.R.Mandlekar
  • R.K.Thankha
  • N.C.Chatterji
  • P.R.Naolekar
  • Y.S.Dharmadhikari
  • R.S.Dabir
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  • M. Hidayatullah, C.J
  • G.P Bhutt, J.
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Attorney(S)
  • B.R.Mandlekar
  • R.K.Thankha
  • N.C.Chatterji
  • P.R.Naolekar
  • Y.S.Dharmadhikari
  • R.S.Dabir
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  • M. Hidayatullah, C.J
  • G.P Bhutt, J.
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Smart Summary

Case Summary: Appeal under Section 116A of the Representation of People Act, 1951

Factual and Procedural Background

This appeal arises under Section 116A of the Representation of People Act, 1951, against an order of the Election Tribunal, Jabalpur, which had declared the appellant's election to the House of the People to be void under Section 98 read with Section 100(1)(b) of the Act.

In the 1957 general election for the Hoshangabad Parliamentary Constituency, Maganlal Bagdi (appellant) stood as the Congress candidate and H. V. Kamath (respondent) stood as the Praja Socialist Party candidate. Polling took place on 25 February and 4 March 1957, and votes were counted in mid-March 1957. The appellant was declared elected on 17 March 1957 with 84,532 votes against the respondent's 59,374 votes.

The respondent challenged the appellant's election by petition under Section 81 of the Act. The Election Tribunal found against the appellant on several factual matters, namely:

  • The distribution and public reading by the appellant (through his agents and personally) of a pamphlet titled "Chetawani" (Ex. P-1) which the Tribunal held contained false statements about the respondent and thus constituted a corrupt practice under Section 123(4).
  • An alleged statement by the appellant at a public meeting in Narsimhapur on 19 February 1957 that the respondent was receiving large sums ("lacs of dollars") from America to discredit Pandit Nehru, held by the Tribunal to be a corrupt practice under Section 123(4).
  • The appellant's and a co-candidate's (Shrimati Sarla Devi Pathak) involvement on 19 February 1957 at mouza Singhpur in selecting a site on private land, performing a digging ceremony and promising to construct a well for Harijans — the Tribunal found this constituted a corrupt practice under Section 123(1).

On those findings the Tribunal declared the appellant's election void. The appellant appealed; this opinion is the appellate court's decision on that appeal.

Legal Issues Presented

  1. Whether the respondent ought to have proved that S. N. Mushran, Kishorilal Palliwal and Shrimati Sarla Devi Pathak distributed copies of the pamphlet "Savdhan" with the consent of the appellant or his election agent (Section 100(1)(b)).
  2. Whether the contents of the pamphlet "Savdhan" amount to any statement of fact in relation to the candidature of the respondent within the meaning of Section 123(4) of the Act.
  3. Whether the threat given by the appellant to the respondent and Niranjansingh at Gadarwara on 3 March 1957, if used figuratively, did not amount to undue influence within the meaning of Section 123(2) of the Act.

Arguments of the Parties

Respondent's Allegations (as pleaded in the election petition)

  • The appellant caused a Hindi pamphlet headed "Savdhan" (Ex. P-2) to be widely circulated among voters by his agents and workers, containing false statements about the respondent's candidature which the appellant believed to be false or did not believe to be true.
  • The appellant and S. N. Mushran visited mauza Imalia on 20 February 1957 and asked the Patwari Chhidami Lal to work for Congress candidates under threat of dismissal.
  • The appellant threatened at a public meeting at mouza Bankhedi on 23 February 1957 to shoot the respondent and Niranjansingh if they came before him.
  • The appellant made a publicly threatening statement at Gadarwara on 3 March 1957 that he would see the respondent and Niranjansingh "buried deep in the valley of Narmada river" and would go only after performing the 13th day Shraddha ceremony.
  • The appellant and co-candidates selected a site and performed a well-digging ceremony at mouza Singhpur and promised construction of a well as an inducement to Harijans to vote for the Congress candidates.
  • The pamphlet "Chetawani" (Ex. P-1) contained false statements as to the respondent's personal character or conduct (e.g., imputing to the respondent an unconditional denunciation of Pandit Nehru) and was circulated through the appellant's agents.

Appellant's Arguments and Defenses (as reflected in the opinion)

  • The appellant (and others) denied authorship of or responsibility for certain pamphlets (for example, Shrimati Sucheta Kriplani denied signing "Chetawani") and contended the pamphlet was a forgery.
  • On the question of agency and joint campaigning, the appellant contended that Congress propaganda for Assembly candidates and for the House of the People was generally distinct (though this contention was at variance with admissions in his formal return).
  • The appellant challenged the Tribunal's acceptance of certain testimony (arguing witnesses were unreliable, could not name recipients of pamphlets, or were not cross-examined because counsel were absent), and sought recall of witnesses for cross-examination.
  • The appellant argued that some alleged threats were figurative in language and not literal, and thus did not amount to undue influence under Section 123(2).
  • The appellant contested that some pamphlets (such as "Savdhan") constituted statements in relation to the candidature of the respondent within Section 123(4).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Harish Chandra v. Triloki Singh (AIR 1957 SC 444 at p. 456) Charges of corrupt practices are quasi-criminal and allegations must be clear and precise; appellate court should not lightly interfere with trial tribunal's findings. The court applied the principle of deference to tribunal fact-finding and required clear pleading/evidence for corrupt practice allegations; also cited to support refusal to disturb tribunal's decision on witnesses and procedure.
Jagan Nath v. Jaswant Singh & Others (9 Ele LR 231; AIR 1954 SC 210) Need to safeguard purity of the election process and prevent election by corrupt practices. The court invoked this principle to emphasize the importance of preventing corrupt practices even while not lightly disturbing a winning candidate's success.
Sarju Pershad v. Jwaleshwari (AIR 1951 SC 120) Tribunal that saw and heard witnesses has advantage in assessing credibility; appellate court should be cautious in interfering with such findings. The court relied on this to justify deference to the Tribunal's appreciation of oral evidence and witness demeanor.
S. Khader v. Munnuswami (AIR 1955 SC 775) Donations or gifts made on the eve of an election may be treated as intended to induce electors and may affect election expenses; such acts may be open to charge as inducing votes. The court used this decision to support the view that promises or charitable acts at election time (like the well-digging promise) could constitute corrupt practice under Section 123(1).
Wigon (4 O'M & H 13) Observation that charity at election time is often party-driven and not pure charity; "charity at the election time ought to be kept by the politicians in the background." The court cited the passage to reinforce the proposition that apparent charitable acts near elections are suspect and may be interpreted as inducements to vote.
Cockermouth (1852) 2 P R and D 166; North Louth (6 O'M & H 129) Authorities dealing with the distinction between personal character/conduct of a candidate and his political character/conduct under English law. The court observed that these English authorities may not be fully helpful in construing Section 123(4) of the Act, which uses the term "candidature" and may cover a wider variety of cases.
Krishnaji Bhimrao v. Shanker Shanta Ram More (7 ELR 100) Illustrates a limited interpretation of "candidature" as relating to right/qualification/factum of candidature. The court referred to this authority to show that "candidature" may in some contexts be given a limited meaning, though it may have wider import depending on circumstances.

Court's Reasoning and Analysis

The court proceeded from established principles: allegations of corrupt practice are quasi-criminal and require clear pleading and proof; yet tribunals' findings deserve deference because they see and hear witnesses. Applying those principles, the court examined each of the Tribunal's adverse findings against the appellant and the supporting evidence.

On the pamphlet "Chetawani" (Ex. P-1) and "Savdhan" (Ex. P-2):

  • The court accepted the Tribunal's finding that "Chetawani" was a forgery and that Shrimati Sucheta Kriplani did not sign or issue it; but the relevant legal question was whether the appellant's agents distributed it or whether the appellant adopted it.
  • The Tribunal's reliance on testimony (Onkarprasad P.W.8 and Arjun Singh P.W.35) that pamphlets were handed out by persons who, by admission in the appellant's return, were his agents (S. N. Mushran; Kishorilal Palliwal) led the court to hold that those persons must be deemed agents within the meaning of Section 123(4) (citing Explanation (1) of Section 123).
  • The court rejected the appellant's contentions attacking those witnesses' memory of recipient names and dates as insufficient to discredit them, and confirmed the Tribunal's finding that distribution occurred on 2 and 3 March 1957.
  • Because the pamphlet contained a false statement — e.g., falsely asserting Sucheta Kriplani advised voters not to vote for the respondent — and because distribution was by appellant's agents and the appellant himself read the pamphlet at a public meeting, the court concluded the act fell within the mischief of Section 123(4).
  • The court also noted it was unnecessary to determine the original authorship of the pamphlet: adoption by reading it publicly and agency-based distribution sufficed to fix responsibility.

On the "dollars" allegation (statement at Narsimhapur):

  • The court found that the alleged assertion that the respondent was receiving "lacs of dollars" from America was not factually true. If made by the appellant, it would reflect on the respondent's personal character or conduct within Section 123(4) because it implied receiving foreign money for an oblique purpose.
  • The Tribunal had relied on testimony (Devicharan P.W.9 and Manakchand P.W.47) that the appellant made such a statement; the appellate court confirmed the finding about the statement at Narsimhapur, distinguishing it from another meeting where the Tribunal did not find the statement fell within Section 123(4) for lack of evidence of oblique purpose.

On the "Singhpur well" incident (promise and digging ceremony):

  • The court reviewed the pleadings and evidence and accepted the Tribunal's conclusion that the appellant was present, participated in selection of a site on Vishwanathsingh's land, performed the digging ceremony with Shrimati Sarla Devi Pathak, and promised construction of a well to secure Harijan votes.
  • The Tribunal had examined witnesses who could not be cross-examined because counsel for the appellant were absent; the appellant later sought recall. The court held that the Tribunal was justified in refusing recall where no reasonable cause for counsel's absence was shown and where statutory time constraints applied; the evidence remained admissible and could be weighed.
  • Relying on S. Khader v. Munnuswami and related authority, the court held that charitable acts or promises made on the eve of election may be intended to induce votes and thus fall within the mischief of Section 123(1) — the court concluded the well incident constituted a promise of reward for votes and hence a corrupt practice under Section 123(1).

On alleged threats (mouza Bankhedi and Gadarwara):

  • The Tribunal found the Bankhedi statement was conditional and directed at partisans, not amounting to an offence under Section 123(2); the appellate court accepted that finding.
  • The Tribunal found the Gadarwara statement to be figurative (political burial) rather than a literal threat; the appellate court agreed, holding that no literal threat of physical harm was intended and therefore Section 123(2) was not attracted on that point.

On the Section 100(1)(b) / consent-of-candidate issue:

  • The court noted the legal structure of Section 100, observed the different classes of persons mentioned by Section 100, and indicated that sub-section (2) affects the burden in sub-section (1). The court treated the precise allocation of burden as an important question but considered it academic in this appeal because it had already affirmed other findings that independently supported voiding the election.

Overall, applying the legal principles, the court confirmed the Tribunal's key adverse findings (pamphlet distribution and reading; the "dollars" remark at Narsimhapur; the well promise at Singhpur) and concluded these amounted to corrupt practices under Sections 123(4) and 123(1), thereby justifying the Tribunal's declaration of the election as void.

Holding and Implications

Final Disposition: The appeal is DISMISSED with costs.

Consequential orders (as explicitly stated):

  • Costs: Hearing fee of Rs. 250 to be paid out of the security amount.
  • The balance of the deposit (security) shall be returned to the appellant.

Direct consequence for the parties (as follows from the opinion): the Tribunal's findings adverse to the appellant were confirmed by the appellate court — in particular the findings that (a) copies of the pamphlet were distributed by persons deemed to be the appellant's agents and that the appellant had read the pamphlet publicly, and (b) the promise and ceremony relating to construction of a well were intended to induce votes — and these findings were sufficient to support the Tribunal's declaration that the appellant's election was void under Section 98 read with Section 100(1)(b) of the Act. The opinion does not purport to establish any novel legal doctrine beyond the application of established principles to the facts; the decision confirms the Tribunal's order and the direct effect on the parties as described above.

Show full summary ...

    Maganlal Radhakishan Bagdi v. Hari Vishnu Kamath .

    1. This is an appeal under Section 116A of the Representation of People Act, 1951 (hereinafter galled the Act), against the order of the Election Tribunal, Jabalpur, declaring the appellant's election to the House of the People to be void under Section 98, read with Section 100(1)(b), of the Act.

    2. The appellant, Maganlal Bagdi, and the respondent, H. V. Kamath, were candidates for election to the House of the People from the Hoshan-gabad Parliamentary Constituency in Madhya Pradesh in the last general election. The appellant was a candidate on behalf of the Congress Party and the respondent, on behalf of the Praia Socialist Party. Polling was held on the 25th February and the 4th March, 1957, and Votes were counted on the 14th and 17th March, 1957. Since the appellant secured 84532 votes as against 59374 votes secured by the respondent, the former was declared to be duly elected on the 17th March 1957.

    3. The respondent challenged the appellant's election on various grounds by a petition under Section 81 of the Act, from which this appeal arises. The facts found by the Tribunal against the appellant are the following:

    (1) That he got a pamphlet in Hindi under the heading 'Chetawani' (Ex. P-1) widely distributed among the voters in various villages through his agents and also read it in a public meeting of the voters held at Gadarwara on the 3rd March 1957.

    The Tribunal has found that the pamphlet contained false statement of fact in relation to the personal character or conduct of the respondent, which the appellant believed to be false or did not believe to be true, and accordingly its publication constituted a corrupt practice within the meaning of Section 123(4) of the Act.

    (2) That he addressed a public meeting of voters held at Narsimhapur on the 19th February 1957, in which he made a false statement of fact in relation to the personal character or conduct of the respondent, namely, that he was receiving lacs of dollars from America to discredit Pandit Nehru and his Government, a statement which he believed to be false or did not believe to be true, and accordingly he was guilty of a corrupt practice within the meaning of Section 123(4) of the Act; and (3) That he addressed at public meeting along with Shrimati Sarla Devi Pathak at mouza Singhpur on the 19th February 1957 were, in consideration of the Harijans voting for the Congress candidates, they promised to construct a well for them and performed the digging ceremony on a site belonging to Vishwanathsingh (P. W. 11) and accordingly he was guilty of a corrupt practice within the meaning of Section 123(1) of the Act. On these findings the Tribunal declared the appellant's election to be void under Section 98, read with Section 100(1)(b), of the Act.

    4. The respondent had, inter alia, made the following averments in his petition against the appellant, namely,

    1. That he got a pamphlet in Hindi under the heading 'Savdhan' (Ex. P-2) widely circulated among the voters in different villages through his agents and workers, containing false statements Of fact in relation to the candidature of the respondent, which he believed to be false or did not believe to be true.

    The Tribunal has found that the pamphlet did not contain a statement of fact in relation to the candidature of the respondent and as such it did not fall under Section 123(4) of the Act and as it was not circulated with the consent of the appellant, it could not constitute a ground for declaring his election to be void under Section 100(1)(b) ibid.

    2. That he and S. N. Mushran (Congress candidate to the State Assembly from Gotegaon Constituency and at present a Deputy Minister) went to mauza Imalia on the 20th February 1957 and asked the Patwari of the village, Chhidami Lal (P. W. 3), to work for the Congress candidates in the area on pain of being dismissed.

    The Tribunal has not accepted the testimony of Chhidami Lal for want of corroboration.

    3. That he addressed a public meeting of voters at mouza Bankhedi on the 23rd February 1957, where he gave a threat to the respondent and Niranjansingh that he would shoot them if they came before him.

    The Tribunal has found that the threat was directed against the partisans of the respondent and Niranjansingh and was conditional on their creating any disturbance, and accordingly it was not covered by Section 123(2) of the Act.

    4. That he addressed a public meeting of voters at Gadarwara on the 3rd March 1957, where he gave a threat to the effect that whether he won or lost, he should see that the respondent and Niranjansingh (P. S. P. candidate for the State Assembly from Gadarwara General Constituency) were buried deep in the valley of Narmada river and he would go only after performing the 13th day Shradha ceremony.

    The Tribunal has held that the language used was only figurative and was not intended to be taken literally as a threat, and accordingly it did not fall within the mischief of Section 123(2) of the Act. The findings of the Tribunal on these points were challenged before us by the learned counsel for the respondent in support of the order under appeal.

    5. The principles which should govern the decision of election disputes are now well settled. The charges of corrupt practices are quasi-criminal in character and allegations relating thereto must be sufficiently clear and precise to bring home the charges to the candidates: Harish Chandra v. Triloki Singh, (S) AIR 1957 SC 444 at p. 456. It is also well settled that the success of a candidate who has won at an election should not be lightly interfered with. However, one of the essentials of the law is also to safe-guard the purity of the election process and to see that people do not get elected by corrupt practices: Jagan Nath v. Jaswant Singh & Others, 9 Ele LR 231 at p. 234: (AIR 1954 SC 210 at p. 212)).

    The learned member of the Tribunal was alive to those principles and has apparently decided the matters in controversy keeping those principles in mind. It is for that reason that he has found in favour of the appellant on many issues. His appreciation of evidence should not, therefore, be Lightly interfered with, bearing in mind the fact that he had the benefit of having the witnesses before him and of observing the manner in which they deposed before him: Sarju Pershad v. Jwaleshwari, AIR 1951 SC 120. With these principles in mind, we shall first examine the findings which are adverse to the appellant.

    6. 'Chetawani' (Ex. P-1): This is a pamphlet in Hindi which purports to have been issued under the signature of Shrimati Sucheta Kriplani. Her husband Shri Kriplani is the leader of the Praja Socialist Party. In the general election before last she stood as a candidate on behalf of the Praja Socialist Party and had actively canvassed for the respondent but in the last general election she stood as a candidate for the Congress Party. Such a person was likely to carry weight with the electors if she spoke against the respondent. She has denied that she signed or issued the pamphlet in question, and this fact is not contested by the appellant also. The pamphlet is, therefore, clearly a forgery.

    7. In the pamphlet the respondent is said to have called Pandit Jawaharlal Nehru, who is described as the Emperor of the heart of India, a 'Nakabil' (worthless) Prime Minister. The reference is to the speech of the respondent at Ahmedabad where, according to the respondent, he had used the following words:

    "On this auspicious day (Independence day) if the Prime Minister of a Republic Country instead of congratulating the public threatens the public, then he is not fit to hold that post.'' This part of his speech was reproduced in the Hitavada in its issue of the 17th August 1956, Ex. P-10, thus :

    "Mr. Kamath added that he (Mr. Nehru) was unfit for holding the position of Prime Minister if he continues to give threats to the people."
    This version also does not imply any unconditional denunciation of Pandit Nehru, such as is imputed to the respondent in the pamphlet 'Chetawani'. And therein lies the sting as rightly observed by the learned member of the Tribunal. Pandit Nehru is doubtless the most beloved leader of the people. Therefore, if any candidate were reported to have called him a worthless Prime Minister, it would, in the estimation of the vast majority of the people who adore him, affect his own worth in relation to his personal character or conduct within the meaning of Section 123(4)) of the Act. The question, therefore, is whether the respondent had the pamphlet distributed among the voters through his agents.

    8. On this point, the learned member of the Tribunal has relied upon the evidence of Onkarpraad (P. W. 8) and Arjun Singh (P. W. 35). Onkarpra-sad said that S. N. Mushran had given him a copy of the pamphlet at mouza Panhari on the 2nd March 1957, saying 'Patel see the activities of Kamath Saheb'. S. N. Mushran was a Congress candidate for the State Assembly. In para 4 of the petition, the respondent alleged that the election campaign, publicity and propaganda of Congress candidates for election to the State Assembly as well as to the House of the People were conducted conjointly, and the Assembly candidates were in act and law the agents of the appellant and vice versa.

    These allegations were admitted by the appellant in his return. His version in the witness-box that the Congress propaganda was joint only in connection with the visit of All India leaders to the constituencies, but otherwise it was quite distinct in respect of each candidate, is at variance with his admission in the return, and was, therefore, rightly rejected by the learned member of the Tribunal. S. N. Mushran must, therefore, be deemed to be the appellant's agent within the meaning of Section 123(4) of the Act: see Explanation (1) of Section 123.

    9. Similarly Arjun Singh (P. W. 35) stated that Kishorilal Palliwal, who was a Congress candidate for election to the State Assembly from Gadarwara General Constituency, had given to him copies of the pamphlet for distribution among the voters. For the reasons applicable to S. N. Mushran, Kishorilal Palliwal also must be deemed to be appellant's agent within the meaning of Section 123(4) of the Act, and his action would bind the appellant. It was urged against this witness that since he could not name the persons to whom he distributed the pamphlets and the date or month when he did so, he should not be relied upon. We do not think that this is a sufficient reason to disbelieve him.

    A person who distributes pamphlets indiscriminately, is not likely to remember the names of the persons to whom he gave them. So far as the date or month of distribution is concerned, one may not remember it by number or name, but may indicate it by reference to an important event. The witness stated the date in the latter manner by reference to the date of the election, that is, he distributed the pamphlets, one day before the election. It was also urged that he was not likely to have worked for Kishorilal Palliwal as it did not appear from his evidence that he continued to be a member of the Congress. This is not, however, a ground for holding that he would not have worked for the Congress candidates. No sufficient reason is shown why the learned member of the Tribunal should not have relied upon his evidence. We, therefore, confirm the finding of the Tribunal that copies of the pamphlet were distributed by the appellant's agents among the voters on the 2nd and 3rd March 1957.

    10. As regards the falsity of the statement of fact contained in the pamphlet, the allegation that Shrimati Sucheta Kriplani advised the voters not to vote for the respondent is certainly false. This statement could not also be believed to be true by the appellant, since to his knowledge she had not made such an appeal. Mere circulation of the pamphlet, therefore, is sufficient to bring the Case within the mischief of Section 123(4) of the Act.

    11. The Tribunal has further found that the appellant had read the pamphlet in the public meeting of the voters at Gadarwara on the 3rd March 1957. The criticism of the learned counsel for the appellant was that this finding transgresses the limits of the pleading on the point and cannot accordingly be maintained. It is true that in para 7(a) of the petition, dealing with this point, there is no specific allegation that the pamphlet was read by the appellant in any meeting. But this was, in our judgment, not a matter for pleading, as it forms only evidence to prove the allegation of circulation that was duly pleaded. As regards the evidence on the point, the learned member of the Tribunal cannot, in our opinion, be said to have erred in accepting the testimony of Devicharan (P. W. 9) and Chhotelal (P. W. 19) who are not shown to be interested witnesses. His finding on this point also is, therefore, confirmed.

    12. In the view that we have taken, it is not necessary to determine the authorship of the pamphlet. We need not, therefore, consider whether it was Ramrao Waghude, Joint Secretary of the Maharashtra Socialist Party, who had presaged the pamphlet in Ex. P-8, that was responsible for it. The reason is that whoever the author, the appellant would be deemed to have adopted it when he read it in a public meeting and his agents distributed its copies among the voters. This incident alone, therefore, is sufficient to declare the appellant's election to be void under Section 98, read with Section 100(1)(b), of the Act.

    13. 'Dollars': The appellant is alleged to have said in the public meeting of the voters at Narsimhapur on the 19th February 1957 that the respondent was receiving lacs of dollars from America to discredit Pandit Nehru and his Government. It is not disputed that this is not a fact. If, therefore, such a statement was made by the appellant, he must have believed it to be false or not believed it to be true. The implication is that the respondent is receiving money from foreigners for an oblique purpose. That certainly reflects on the personal character or conduct of the respondent. The question is whether the appellant had made this statement.

    14. This matter has been dealt with by the learned member of the Tribunal in paras 82 to 88 of the order. He has mainly relied upon the testimony of Devicharan (P. W. 9) and Manakchand (P. W. 47) who have not been shown to be interested witnesses. In the context of the speech made by Shrimati Indira Gandhi, daughter of Pandit Jawa-harlal Nehru, at Delhi about the Praja Socialist Party receiving foreign aid, it is not unlikely that similar statements were made by Congress candidates against the candidates set up by the Praja Socialist Party. It was, however, urged that when on practically the same set of witnesses the learned member of the Tribunal found against the respondent on his allegation that the appellant had repeated the statement in the public meeting of voters at Gadarwara on the 3rd March 1957, he should not have held differently in respect of the meeting at Narsimhapur.

    This matter has Been dealt with in para 105 of the order. It would appear therefrom that the learned member of the Tribunal did not disbelieve the witnesses, but was of the opinion that an oblique purpose in receiving the money was not clearly indicated in the evidence, and accordingly the statement did not fall within the mischief of Section 123(4) of the Act. That finding, therefore, cannot be a ground for challenging the consistent and cogent evidence as regards the Statement made by the appellant in the meeting at Narasimhrpur. The finding thereon is accordingly confirmed.

    15. 'Singhpur well': This matter has been dealt with by the learned mcmber of the Tribunal in paras 131 to 149. The pleading on the point is that the appellant and Shrimati Sarla Devi Pathak, who was a Congress candidate for election to the State Assembly from Narsimhapur Constituency, had addressed a public meeting of voters at mouza Singhpur where the villagers said that they needed a well as there was dearth of water supply in the village. The appellant with some villagers then selected a site on the land of Vishwanathsingh (P. W. 11) and there he and Shrimati Sarla Devi Pathak performed the ceremony of consecrating and digging the well and promised to construct the well after the election. It was alleged that this was done with the object of inducing the voters to vote for the appellant and not to vote for the respondent.

    16-18. (His Lordship reviewed the evidence and proceeded). The appellant admitted in his evidence that he was present in the village on the date when a well was being dug. In the circumstances of the case, we are satisfied that the well was being dug at his instance and as a bait for votes.

    19. It was, however, urged for the appellant that the witnesses on the point are persons who-could not be cross-examined because of the absence of the counsel on the date they were examined, and accordingly, even though their evidence is legally admissible, it should carry little weight and also that this Court should give him an opportunity to cross-examine them before accepting their testimony. It was not disputed that the Tribunal was justified in examining the witnesses as no request was made to it for an adjournment. It was, however, urged that it should have accepted the appellant's application made to it on the next day to recall the witnesses for cross-examination. It was the duty of the appellant to satisfy the Tribunal why, when he had engaged three counsel, none of them appeared on the date fixed for hearing of the witnesses, at least to make a request for adjournment, if not actually to cross-examine them. In these circumstances, and keeping in view the fact that the Tribunal had limited time under the statute to complete the enquiry, it was, in our judgment, justified in refusing to recall the witnesses: see (S) AIR 1957 SC 444 (supra). In this connection, the fact that the Tribunal had on other occasions recalled some of the respondent's witnesses cannot be a ground for holding that it acted wrongly in refusing the appellant's request when no reasonable cause was shown to the satisfaction of the Tribunal why he failed to cross-examine them while they were in the witness-box. There is, therefore, no force in the request for recalling them now. The evidence having been legally tendered, and the appellant having had an opportunity to rebut it, the Tribunal was entitled to read that evidence in the ordinary way.

    20-21. (His Lordship examined the criticism against reliability of the witnesses and proceeded). Considering all the facts and circumstances of the case, we are not inclined to accept that the learned member of the Tribunal committed an error in relying on the testimony of these witnesses.

    22. It was further urged that the respondent had not raised any plea in express terms that the appellant had agreed to construct the well to win the votes of the Harijans for the Congress candidates, and therefore, he was not guilty of a corrupt practice even if he assured them to construct a well for them. Although the plea was not so clearly expressed, it was nevertheless alleged that what was done by the appellant was with a view to induce the voters to vote for him and not to vote for the respondent. As held by their Lord-ships of the Supreme Court in S. Khader v. Munnuswami, (S) AIR 1955 SC 775, while it is meritorious to make a donation for a charitable purpose, but if made on the eve of election, it is open to the charge that its real object was to induce the electors to vote in favour of a particular candidate. Although this observation was made in connection with the question whether the amount so spent should be treated as election expense, the necessary effect of the gift being to induce the electors to vote for a particular candidate, we see no reason why it does not constitute corrupt practice within the meaning of Section 123(1) of the Act. As held in Wigon 4 O' M and H 13, ''charity at the election time ought to be kept by the politicians in the background,'' as in truth,

    "it will generally be found that the feeling which distributes relief to the poor at the election time, though those who are the distributors may not be aware of it, is really not charity, but party feeling following in the steps of charity, wearing the dress of charity and mimicking her gait."
    We are accordingly of the opinion that while we endorse the view of the Tribunal that the circumstances of the case clearly reveal a case of a promise of reward for the votes, the case also otherwise falls within the mischief of Section 123(1) of the Act.

    23. This disposes of the contentions of the appellant. As we have confirmed the findings which are adverse to him it is really not necessary to decide whether the findings challenged on behalf of the respondent should also be found against him. However, we have gone through the evidence on record on all these points and find ourselves in agreement with the findings of fact arrived at by the Tribunal. It must, therefore, be held :-

    (1) That copies of the pamphlet Savdban, Ex, B-2, were distributed among the voters by or at the instance of S. N. Mushran, Kishorilal palliwal and Shrimati Sarla Devi Pathak, who were all Congress candidates for the State Assembly, and were admitted by the appellant to be his agents in law and in fact;

    (2) That the plea of the respondent that the appellant and S. N. Mushran had attempted to induce Patwari Chhidami Lal (P. W. 3) to work for the Congress candidates in his area on pain of being dismissed has not been proved;

    (3) That, the threat given by the appellant in the public meeting of voters at mouza Bankhedi on the 23rd February 1957 was only conditional on the creation of disturbance; and (4) That the appellant did say in the public meeting of voters at Gadarwara on the 3rd March 1957 that whether he won or lost he would see that the respondent and Niranjansingh were buried deep in the valley of Narmada river and he would go only after performing the 13th day Sliradha ceremony,

    24. These findings raise the following legal issues, namely (1) Whether the respondent ought to have proved that S. N. Mushran, Kishorilal Palliwal and Shrimati Sarla Devi Pathak distributed copies of the pamphlet Savdhan with the consent of the appellant or his election agent; Section 100(1)(b) of the Act;

    (2) Whether the contents of the pamphlet Savdhan amount to any statement of fact in relation to the candidature of the respondent within the meaning of Section 123(4) of the Act; and (3) Whether the threat given by the appellant to the respondent and Niranjansingh in the public meeting of voters at Gadarwara on the 3rd March 1957, if used figuratively, did not amount to undue influence within the meaning of Section 123(2) of the Act.

    These questions are important but any expression of opinion on them would only be of an academic nature in view of our findings on the contentions raised by the appellant. We may, however, shortly indicate the position.

    24a. As regards the first point, Section 100 of the Act read as a whole indicates 4 classes of persons, namely, (i) the returned candidate, (ii) the election agent of the returned candidate, (iii) the agent of the returned candidate other than his election agent, and (iv) any other person. Sub-section (1) of Section 100 is subject to the provisions of Sub-section (2), and, therefore, the question whether in the case of an agent, it is ior the opposite party to prove the consent of the returned candidate or for the returned candidate to prove want of consent on his part, would depend upon the effect of Sub-section (2) on Sub-section (1).

    25. AS regards the second point, it would be necessary to consider whether Section 123(4) of the Act contemplates that the statement of fact should, relate to a candidate as distinguished from his. Party. If the attack on his Party be not contemplated but if it is maligned in such a manner as to prejudice the prospects of his election seriously, the question will arise whether it can be deemed to be an attack on his candidature within the meaning, of Section 123(4). In this connection, it may be noted that the clause in relation to the candidature, or withdrawal, or retirement from contest, of any candidate does not find place in the English law of election. Section 123(4), therefore, covers a larger variety of cases than may arise under the English law. Accordingly, the decisions in Cockermouth (1852) 2 P R and D 166 and North Louth, 6 O' M and H 129 which deal with the questions to what constitutes personal character or conduct of a candidate in contradistinction to his political character or conduct, may not help to determine the extent and import of the word 'candidature' in Section 123(4) of the Act. While, on the one hand, it may only have a limited interpretation, meaning the right or qualification or factum of candidature as held in Krishnaji Bhimrao v. Shanker Shanta Ram More, 7 ELR 100, it may, in the circumstances of a case, even have a wider import, including a reflection on the worthiness of a candidate to contest the election.

    26. As regards the third point, the question whether the threat was intended literally or was used figuratively is one of fact and since the Tribunal has found that it was only used figuratively as meaning the political burial of the respondent and Niranjansingh, no threat can be deemed to have been intended by the appellant within the meaning of Section 123(2) of the Act.

    27. In the result the appeal is dismissed with costs. Hearing fee Rs. 250/- which shall be paid out of the security amount. The balance of the deposit shall be returned to the appellant.

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    Comments

    Maganlal Radhakishan Bagdi v. Hari Vishnu Kamath .
    (Apr 25, 1958)