PETITIONER: BACHAN SINGH Vs. RESPONDENT: PRITHVI SINGH & ORS. DATE OF JUDGMENT05/02/1975 BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH ALAGIRISWAMI, A. CITATION: 1975 AIR 926 1975 SCR (3) 439 1975 SCC (1) 368 ACT: Representation of the People Act 1951--S.123(2) and (7)--Publication of posters with pictures of Prime Minister and Chiefs of Staff--Whether amounts to undue influence. HEADNOTE: The appellant in his petition challenging the election of the respondent alleged (1) that the respondent had been guilty of committing a corrupt practice under s. 123(7) of the Representation of the People Act, 1951 in that he had obtained the assistance of a member of the armed forces in his election and (2) that he had distributed posters with the pictures of the Prime Minister and other important ministers together with the three chiefs and four Generals of the Armed Forces bearing the caption 'Pillars of Victory and thereby 'exercised undue influence within the meaning of s.123(2) of the Act. The High Court dismissed the petition. Dismissing the appeal to this Court. HELD : (1) Since the deletion of the words or a polling agent or a counting agent' from Explanation (2) of s.123(7) by the Amending Act 47 of 1966, a member of the armed forces, merely by acting as a polling agent, is not deemed to assist in the furtherance of the prospects of a candidate's election within the contemplation of s.123(7) of the Act. Secondly, the Lance Naik bad categorically asserted that he did the canvassing on his own and not in the company of the respondent. [441 G] (2) (a) The publication of the, poster was an act of impropriety but not one of corrupt practice falling within the mischief of s.123. Members of the armed forces spoken of in this clause mean persons in flesh and blood and not their inanimate photographs. [443 B] (b) In one sense even election propaganda carried on vigorously, blaringly and systematically through charismal leaders or through various media in favour of a candidate by recounting the glories and achievements of that candidate or his political party in administrative or political field, does meddle with and mould the independent volition of electors, having poor reason and little education in the exercise of their franchise. That such a wide construction would not be in consonance with the intendment of the legislature is discernible from the to proviso to this clause. The proviso illustrates that ordinarily interference with the free exercise of electoral right involves violence or threat of injury of any kind to any candidate or an elector or inducement or attempt to induce a candidate or elector to believe that he will become an object of divine displeasure or spiritual censure. The prefix "undue' indicates that there must be some abuse of influence. 'Undue influence is used in contra-distinction to 'proper influence. Construed in the' light of the proviso cl. 2 of s. 123 does not bar or penalize legitimate canvassing or appeals to reason and judgment of the voters or other lawful means of persuading voters to vote or not to vote for a candidate. Such proper and peaceful persuasion is the motive force of our democratic process [442 E-G] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 186 of 1973
From the judgment & Order dated the 27th November, 1972 of
the Punjab & Haryana High Court in Election Petition No. 15
of 1972.
Kapil Sibal, N. D. Bhargava and S. K. Gambhir, for the
appellants.
S. N.Marwah, Lalita Kohli, K. C. Dua and Naunit Lal, for the
Respondent No. 1
440
The Judgment of the, Court was delivered by
SARKARIA, J. Prithvi Singh Azad (hereinafter referred to as
the returned candidate), Bachan Singh, Naurang Singh and
Lachchman Singh contested the election to Punjab Vidhan
Sabha from the Khanna (Reserved) Assembly constituency.
Azad was the nominee of the Congress Party and Bachan Singh
of the Akali Dal.
The poll was held on March 11, 1972. on March 12, 1972, Azad
was declared elected. He secured 25,984 votes, whereas
Bachan Singh appellant No. 1 polled 24,865 votes. The other
two forfeited their securities.
On April 26, 1972, Bachan Singh, the unsuccessful candidate
and ,one elector, Harcharan Singh, jointly filed an election
petition under the Representation of the People Act, 1951
challenging the, election of the returned candidate on
several grounds. In the event of Azad’s election being set
aside, Bachan Singh claimed a further declaration under
s.101 of the Act of his own election.
The petition was dismissed by the High Court. Hence this
appeal by the petitioners.
Before us, only two grounds have been pressed into argument
by Mr. Kapil Sibal, learned Counsel for the appellants.
Firstly, it is contended that the returned candidate had
obtained the assistance of one Lance Naik Gurdev Singh, a
member of the Armed Forces of the Union, in his election and
was thus guilty of ,committing the corrupt practice defined
in s.123 (7).
In this connection, the petitioner tried to establish two
facts : (a) that Lance Naik Gurdev Singh was appointed as
his polling agent by the returned candidate and the former
acted as such at the polling station, Rahon Majra; (b) that
the Lance Naik actually canvassed for votes in the company
of the returned candidate. In regard to the first fact, the
petitioners relied upon the statement of L/N Gurdev Singh,
who was examined as C.W.1., and the certified copy Ex.P.W..
30/4, of the Polling Agents’ Form. Regarding the second
fact, they examined P.W.6 Subedar Bachan Singh, P.W.7 Bant
Singh P.W.8 Bhagat Singh P.W.9 Rulda Singh, P.W. 10 Sadhu
Singh, P.W. 11 Bachan Singh P.W. 12 Arjan Singh, P.W. 13
Haracharan Singh. They also sought support from the
statement of C.W. 1.
On both these points, the learned Judge of the High Court
found against the petitioners. In his opinion, the person
who had been appointed as his polling agent by the returned
candidate was another Gurdev Singh (RW2) and not L/N Gurdev
Singh (C.W. 1). He further held that the oral evidence
adduced by the petitioners to substantiate the allegation of
canvassing by the Lance Naik in association with the
returned candidate, was of a partisan character, and in the
absence of corroboration from any independent source, could
not be accepted.
441
Mr. Sibal contends that the High Court grievously erred in
holding that it was R.W.2 and not C.W.1 who had been
appointed as his, polling agent by the Respondent.
According to the Counsel, there are clinching circumstances
in this case which show that it was Lance Naik Gurdev Singh
who had been appointed and acted as the polling agent of the
Respondent; that the certified copy, Ex.P.W. 30/1 obtained
by the petitioner was a true copy of the original Form.
R.W.2, it is submitted, is an imposter and the Polling
Agents’ Form P.W. 30/4, was a false and fabricated document.
Once it is held, proceeds the argument, that L/N Gurdev
Singh (C.W.1) had acted as the Polling Agent of the
Respondent, that would lend assurance to and probabilise the
account given by P.Ws. 9 to 14.
The contention cannot be accepted.
Firstly, we do not think that the finding of the High Court
that R.W.2-and not C.W.1-was the Polling Agent of the
Respondent,, an be said to be palpably wrong necessitating a
reappraisal of the evidence by this Court-. Secondly, even
on the assumption that L/N Gurdev Singh C.W.1, was the
person who had been appointed as the polling agent, the
evidence on the record was not sufficiently clinching to
bring home the charge to the Respondent.
L/N Gurdev Singh (C.W.1) himself had knocked the bottom out
of the petitioner’s case. The Lance Naik while admitting
that he had canvassed for votes for the returned candidate,
categorically asserted that the did such canvassing on his
own and not in the company of the respondent. The Lance
Naik was examined as a court witness. The appellants had a
right to cross-examine him. But they did not avail of this
right. They did not put any question to the witness to
challenge his account. L/N Gurdev Singhs statement
therefore, that he had never canvassed with or at the
instance of the returned candidate, would be deemed to have
been accepted by them. C.W. I was ‘the, keystone of the
arch which the petitioners tried to build to sustain this
charge. Failure of C.W.I, therefore, to support the
partisan P.Ws. on all the material facts constituting the
charge, must lead to the collapse of whole arch.
Moreover, since the deletion of the words “or a polling
agent or a counting agent” from Explanation(2) of s. 123(7)
by the Amending Act 47 of 1966, a member of the Armed For=
merely by acting as a polling agent is not deemed to assist
in the furtherance of the prospects of a candidate’s
election within the contemplation of s.123(7).
We would therefore reject the first contention and affirm
the finding of the court below on this Issue.
The next charge which has been agitated before us relates to
the poster, Esh.PW15/1 which was published by the Pradesh
Congress Committee. It bore the photographs of the Prime
Minister Smt. Indira Gandhi, Shri Jagjiwan Ram, Defence
Minister and Shri Swaran Singh, Foreign Minister in the
first row. Beneath the first row were the photographs of
three Chiefs and four Generals of the Armed Forces. It
bore. the caption “Pillars of. Victory”. It is alleged:
that
442
below these photographs was printed the Congress symbol of
Cow and Calf. On a complaint being made, the Election
Commission of India moved in the matter and directions were
issued to the Punjab Pradesh Congress Committee to withdraw
the poster, which, in consequence, was withdrawn.
In his written statement, the returned candidate pleaded
that he ‘was unaware of any such poster. In cross-
examination, however, he (as R.W.6) admitted that the letter
Ex.R.W.6/1 had been issued by S. P. Mittal to all the
Presidents of the District Congress Committee in Punjab
directing them to withdraw this poster. R.W.6 admitted that
this poster bore the photographs of Service Chiefs along
with those of the Prime Minister and two other Ministers-all
of whom were described as Pillars of Victory. He, however,
disclaimed that he had anything to do with the distribution
of this poster.
Mr. Sibal contends that the publication of this poster not
only ,amounted to the exercise of “undue influence” within
the contemplation of s.123(2)_ but also constituted an
attempt to obtain or procure assistance from the members of
the Armed Forces of the Union for fur therance of the
prospects of the returned candidate’s election within the
purview of s.123(7).
The contention is ingenious but unsustainable.
Doubtless the definition of ‘undue influence’ in sub-s. (2)
of s. 123 is couched in very wide terms, and on first flush
seems to cover every conceivable act which directly or
indirectly interferes or attempts to interfere with the free
exercise of electoral right. In one sense even election
propaganda carried on vigorously, blaringly and
systematically through charismal leaders of through various
media in favour of a candidate by recounting the glories and
achievements of that candidate or his political party in
administrative or political field, does meddle with and
mould the independent volition of electors, having poor
reason and little education, in the exercise of their
franchise. That such a wide construction would not be in
consonance with the intendment of the legislature is
discernible from the proviso to this ,clause. Ile proviso
illustrates that ordinarily interference with the free
exercise of electoral right involves either violence or
threat of injury of any kind to any candidate or an elector
or inducement or attempt to induce a candidate or elector to
believe that he will become an object of divine displeasure
or spiritual censure. The prefix ‘undue’ indicates that
there must be some abuse of influence. Undue influence’ is
used in contra-distinction to ‘proper influences’.
Construed in the light of the proviso, clause (2) of S. 123
does not bar or penalize legitimate canvassing or appeals to
reason and judgment of the voters or other lawful means of
persuading voters to vote or not to vote for a Candidates
indeed such proper and peaceful persuasion is the motive
force of our democratic process.
We are unable to appreciate bow the publication of this
poster Interfered, or was calculated to interfere with the
free exercise of the electoral right of any person. There
was nothing in. it which amounted
443
to a threat of injury or undue inducement of the kind
inhibited by s. 123 (2).
Nor could the publication of this poster fall within the
ambit of s.123(7). The ‘members’ of the Armed Forces spoken
of in this Clause mean persons in flesh and blood and not
their inanimate photographs.
In short, the publication of the poster was an act of
impropriety but not one of corrupt practice falling within
the mischief of s. 123.
No other point has been argued before us.
The appeal fails and is dismissed with costs.
Appeal dismissed.
P.B.R.
444