{"id":248992,"date":"1974-12-20T00:00:00","date_gmt":"1974-12-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/abdul-hussain-mir-vs-shamsul-huda-anr-on-20-december-1974"},"modified":"2017-04-03T23:06:11","modified_gmt":"2017-04-03T17:36:11","slug":"abdul-hussain-mir-vs-shamsul-huda-anr-on-20-december-1974","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/abdul-hussain-mir-vs-shamsul-huda-anr-on-20-december-1974","title":{"rendered":"Abdul Hussain Mir vs Shamsul Huda & Anr on 20 December, 1974"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Abdul Hussain Mir vs Shamsul Huda & Anr on 20 December, 1974<\/div>\n
Equivalent citations: 1975 AIR 1612, 1975 SCR (3) 106<\/div>\n
Author: A Alagiriswami<\/div>\n
Bench: Alagiriswami, A.<\/div>\n
           PETITIONER:\nABDUL HUSSAIN MIR\n\n\tVs.\n\nRESPONDENT:\nSHAMSUL HUDA & ANR.\n\nDATE OF JUDGMENT20\/12\/1974\n\nBENCH:\nALAGIRISWAMI, A.\nBENCH:\nALAGIRISWAMI, A.\nKRISHNAIYER, V.R.\nSARKARIA, RANJIT SINGH\n\nCITATION:\n 1975 AIR 1612\t\t  1975 SCR  (3) 106\n 1975 SCC  (4) 533\n CITATOR INFO :\n D\t    1975 SC1634\t (4,9)\n RF\t    1976 SC1599\t (6)\n RF\t    1978 SC1162\t (5)\n R\t    1985 SC  89\t (19)\n\n\nACT:\nRepresentation of the People Act<\/a> (43 of 1951) Ss. 83, 123(1)\n(2) and (3)-Scope of.\n\n\n\nHEADNOTE:\nThe  appellant is a Muslim, whose mother was a tribal  Hindu\nwho  was converted to Islam on the eve of her marriage to  a\nMuslim.\t  In the election to the Assam Legislative  Assembly\nfrom  a constituency which is a tribal area of Assam with  a\nheterogeneous  composition  of tribesmen  vaguely  Hindu  by\npersuasion,  plainsmen\tHindus and nearly 80%  Muslims,\t the\nappellant  was\tdeclared elected.  The respondent  filed  an\nelection  petition  challenging the election inter  alia  on\nthree grounds : (1) that the appellant offered Rs.  2,000\/to\nP.W. 12 a Mulla to collect votes for him, and though P.W. 12\nrefused\t the offer the appellant was guilty of\tthe  corrupt\npractice under s. 123(1)<\/a> of the Representation of the People\nAct,  1951;  (2) that the appellant was\t guilty\t of  corrupt\npractice  under s. 123(3)<\/a> because he canvassed for votes  on\nthe basis of his religion by asking for votes on the  ground\nof  his being the son of a tribal Hindu woman; and (3)\tthat\nthe appellant exercised undue influence by threatening\tthat\nthe  persons  who might note for the  respondent,  could  be\nidentified  and would be subjected to the same treatment  as\npeople of Bangladesh were by the Pakistanis. thus  violating\ns. 123(2).  The High Court allowed the petition.\nAllowing the appeal to this Court,\n(Per, Alagiriswami, J.)\n(1)  Regarding\tthe  first charge, P.W. 12 stated  that\t the\nappellant offered him money if he would work for him in\t the\nelection in the two villages in which he happened to be\t the\nMulla.\t Another witness stated that the appellant told\t him\nthat he had offered money to P.W. 12 for helping him in\t the\nelection  campaign but that P.W. 12 rejected the offer\tand,\nrequested that witness to make over the money to P.W. 12 and\nprevail upon him to work for the appellant.  These facts do\nnot  fall under s. 123(1)<\/a>.  Therefore. it is unnecessary  to\ndiscuss\t  whether,   if\t money\tis  paid   or\toffered\t  as\nconsideration  for votes promised to be secured by a  person\nusing  his  influence  it is bribery or\t not.  because,\t the\nquestion  does\tnot  arise out of the facts  of\t this  case.\n[108G109A]\n(Per Krishna Iyer and Sarkaria, JJ.)\n(1)(a)\tAn appraisal of the evidence and an overall view  of\nit makes it doubtful whether the appellant it even met\tP.W.\n12  and\t therefore,  the offer of the  bribe  had  not\tbeen\nestablished. [123B; 126E-F]\n(b)  Section 123(1)<\/a> requires (i) an offer or promise by\t the\ncandidate etc., of gratification to any person, and (ii) the\nobject\tmust be directly or indirectly to induce an  elector\nto  vote or not to vote at an election.\t The purpose of\t the\nprovision  is  to ensure poll purity and  the  exclusion  of\npollution  by money power.  If the payment is to  induce  an\nelector to vote, be it direct or vicariously, it is corrupt.\nIf the money is paid as consideration for votes Promised  to\nbe secured by an important person of the locality using\t his\nsway  it is bribery even though indirectly exercised.\tBut,\nif  the\t candidate pays money to use his  good\toffices\t and\ncanvass\t votes for him it would be a border line  case.\t  In\nthe  present  case,  if\t P.W. 12 had  been  paid  the  money\nstriking  a  bargain for getting the votes in his  ambit  of\ninfluence it is electoral corruption.  On the other hand, if\nit   is\t money\treceived  for  the  purpose  of\t  organising\neffectively  the election campaign by hiring workers,  going\nground to places in car, meeting people and persuading\tthem\nto vote for the candidate it is\n107\nproper\telection  _expenses.  The touch stone in  all  these\ncases of payment or gratification is to find out whether the\nmoney  is paid in reasonable measure for work to be done  or\nservices  to  be  tendered, and\t whether  the  services,  so\noffered\t amount to a bargain for getting votes or merely  to\ndo  propaganda\tor  to\tpersuade  voters  to  vote  for\t the\ncandidate.   The  crucial  point is the\t nexus\tbetween\t the\ngratification and the votes, one being the consideration for\nthe  other,  direct or indirect.  In the present  case,\t the\nfacts  as  spoken  do  not even if  true,  come\t within\t the\nrelevant clause namely s. 123(1)<\/a>, because the offer was made\nonly  to  make P.W. 12 work for the candidate  that  is,  to\npersuade  voters to support the paying candidates.  [124B-E,\n125B-C, D-F]\n(Per Alagiriswami, J.)\n(2)  As far as the second charge is concerned some witnesses\nsaid that the appellant canvassed for votes claiming that he\nwas  a\tHindu and others said that be claimed votes  on\t the\nbasis\tthat  his  mother  was\ta  tribal  woman.    In:   a\nconstituency  where  80%  of the voters are  Muslims  it  is\nextremely  unlikely that the appellant would have  canvassed\nfor  votes on any such basis.  The appellant being a  Muslim\nhe  could  not be said to have canvassed for  votes  on\t the\nbasis of his religion, he not being a Hindu. [109B-C]\n(Per Krishna lyer and Sarkaria, JJ.)\n(2)  (a)  The  appellant is a Muslim and his appeal,  if  at\nall,  is on the basis that he was an inter-caste  or  inter-\nracial\tor inter-religious product and as such a  symbol  of\nunity  or  a  less  communal  Mussalman.   An  appeal  by  a\ncandidate  that he personifies Hindu-Muslim  interplay\tdoes\nnot cross the line of corrupt practice. [114G-115B]\n(b) The section requires that the vote must be sought by the\ncandidate exploiting his religion.  An appeal to Hindus by a\nMuslim candidate on the ground of his religion is impossible\nunder the present Indian conditions. [115E]\n(c)  In the particular constituency, if one took up a  Hindu\nposture it would not be\t an advantage to him, and therefore,\nit is unlikely that the appellant sougth     votes  on\t the\nground that  he is a Hindu.  The ground\t of  religious\tor\ncommunal appeal does not stand in the light of the  evidence\nin  the\t present  case and finding of  the  High  Court\t is.\ntherefore,  wrong.  The High Court had been far\t too  easily\npersuaded  by unsatisfactory oral evidence each of which  is\nof  an ad hoc character, uncorroborated by any testimony  of\ncompelling value and is contradicted by the party  affected.\nThe criterion of proof beyond reasonable doubt was forgotten\nalthough verbal homage was paid to it. [119C-F]\n[It   is  a  matter  for  profound  regret  that   political\ncommunalism  far  from\tbeing rooted out  is  foliating\t and\nflourishing,  largely because parties and  politicians\thave\nnot  the will. professions apart, to give up the  chase\t for\npower through politicising communal awareness and  religious\ncultural identity.] [119F]\n(By Full Court)\n(3)  The  election  petition  is  vague\t in  regard  to\t the\nparticulars  in support of The averment of undue  influence.\nMore  than one amendment. was sought and still\tneither\t the\nnames  of the persons nor of the places so vital  to  induce\ncredence  and to show fairplay have been given, in spite  of\nthe appellant urging that the allegation was vague and bold.\nOne  cannot pick up witnesses on route and march  them\tinto\nthe witness box without running the risk of their apparently\nconsistent evidence from being disbelieved.  The charges are\nquasi-criminal\t and  have  serious  consequences  and\t all\nnecessary  particulars have to be furnished in the  election\npetition  as required by s. 83<\/a>.\t This being absent  and\t the\nentire\tcase  resting  on  shaky  ipsi\tdixits\tthe  version\ntendered  by the respondent could not be believed.  [109C-D;\n122A-D]\n(Per Krishna Iyer and Sarkaria, JJ.):\n(4)  Certain basic legal guidelines cannot be lost sight  of\nwhile  adjudging art election dispute.\tThe verdict  at\t the\npolls wears a protective mantle in a\n108\ndemocratic polity.  The Court will vacate such ballot  count\nreturn\tonly  on proof beyond reasonable  doubt\t of  corrupt\npractices.   Charges,  such as have been imputed  here,\t axe\nviewed\tas  quasi-criminal, carrying  other  penalties\tthan\nlosing a seat and a strong testimony is needed to subvert  a\nReturning Officer's declaration.  At the same time, findings\nreached\t by  the trial judge, will not\tbe  reappraised\t and\nreversed in appeal unless palpable errors or misappreciation\nare writ large on them. [111H-112B]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION Civil Appeal No. 915 of 1973.
\nFrom  the judgment and order dated the 30th April,  1973  of
\nthe Gauhati High Court in Election Petition No. 2 of 1973.
\nR.   K. Garg, S. C. Agarwal, S. S. Bhatnagar, V. J.  Francis
\nand S. N. Chaudhary, for the appellant.\n<\/p>\n
D.   N.\t Mukherjee,  Prodyot  Kumar Chakravarti\t and  N.  R.
\nChaudhry, for respondent No. 2.\n<\/p>\n
The Judgment of V. R. Krishna Iyer and R. S. Sarkaria.\t JJ.
\nwas delivered by Krishna Iyer, J. A. Alagiriswami, J. gave a
\nseparate opinion.\n<\/p>\n
ALAGIRISWAMI, J. I agree with the conclusions of our learned
\nbrother\t Krishna  Iyer.\t  But I think it  necessary  to\t say
\nsomething on my own.\n<\/p>\n
The appeal relates to the election to the Assam\t Legislative
\nAssembly   from\t Dhing\tconstituency.\tThe  appellant\t was
\ndeclared   elected  by\ta  majority  of\t 1185  votes.\t The
\nrespondent  filed an election petition making three  charges
\nof  corrupt  practices against the appellant.\tThe  learned
\nJudge  of the Gauhati High Court held that the charges\twere
\nmade  out  and allowed the election  petition.\t Hence\tthis
\nappeal.\n<\/p>\n
The first charge was the offer of a bribe to P. W. 12.\t The
\nsecond\t,charge\t was  that the appellant  was  guilty  of  a
\ncorrupt\t practice  under section 123(3)<\/a>\t of  canvassing\t for
\nvotes  on the basis of his religion.  The third\t charge\t was
\nthat he exercised undue influence by holding out the  threat
\nthat  the  people  who voted for  the  respondent  would  be
\nidentified and subjected to the same treatment as the people
\nof Bangladesh by the Pakistanis.\n<\/p>\n
Regarding the first charge all that is necessary to do is to
\nrefer  to the evidence of.  P.W. 12 and 13.  P.W. 12  stated
\nthat the appellant offered him Rs. 2000 if he worked for him
\nin the election in the two villages in which he happened  to
\nbe a Mulla.  P.W. 13 stated that the appellant told him that
\nhe  had offered Rs. 2000 to P.W. 12 for helping him  in\t the
\nelection  campaign  but that he had rejected the  offer\t and
\ntherefore  requested him (P.W. 13) to collect the money\t and
\nmake it over to P.W. 12 and prevail upon him to work for him
\n(appellant).   Clearly\tthis  does not\tfall  under  section
\n123(1)<\/a>.\t 1  consider it, therefore, unnecessary\t to  discuss
\nwhether\t if money is paid ,or offered as  consideration\t for
\nvotes Promised to be secured by a person
\n109<\/span>
\nusing  his  influence it is bribery or not.  It\t is  a\tgood
\npolicy\tnot to discuss in a judgment question which do\tnot
\narise out of the facts of the case.\n<\/p>\n
As  far as the second charge is concerned, it is  said\tthat
\nthe appellant’s mother was a ‘Kachari’, one of the tribes in
\nAssam.\tBut admittedly she was converted to Islam before she
\nmarried the appellant’s father., Some witnesses say that the
\nappellant canvassed for votes claiming that he was a  Hindu.
\nSome others say that he claimed votes on the basis that\t his
\nmother\twas a Kachari.\tAll that is necessary to  say  about
\nthis part of the, case it that apart from he fact that in a
\nconstituency where 80 per cent of the voters were Muslims it
\nis not at all likely that the appellant would have canvassed
\nthe  votes  on any such basis, there is no  doubt  that\t the
\nappellant  being  a  Muslim he could not  be  said  to\thave
\ncanvassed  for\tvotes on the basis of his religion,  he\t not
\nbeing a Hindu.\n<\/p>\n
As  regards  the  third\t charge,  in  spite  of\t the   three
\namendments   made   to\tthe   election\t petition   material
\nparticulars  were  not\tgiven  on the  basis  of  which\t the
\nevidence regarding this charge could have been admitted.   I
\nagree  with  the conclusions of my learned  brother  on\t the
\nbasis  of the evidence which he has discussed that the\tcase
\nof undue influence is not satisfactorily established.
\nI  agree that the appeal should be allowed and the  election
\npetition dismissed with costs.\n<\/p>\n
KRISHNA\t IYER,\tJ. In the  current  Indian  socio-geographic
\ncontext,  with its delightfully and  distressingly  diverse,
\ntraditional and complex humanity, we have to appreciate\t the
\nthree  grounds\tof corrupt practice  levelled  through\tthis
\nelection appeal against the Congress candidate who secured a
\nlead  of  1385\tvotes but was allegedly\t guilty\t of  several
\nmalpractices  at the polls of which three have found  favour
\nwith  the  High Court and have been  challenged\t before\t us.
\nBriefly, they are\n<\/p>\n
\t      (a)that the petitioner offered Rs. 2,000\/-  to
\n\t      one  Jabbar Munshi (P.W. 12) to collect  votes
\n\t      for him which this righteous soul spurned\t and
\n\t      therefore\t  the  preferred  payment  did\t not
\n\t      materialise  although  the  corrupt   practice
\n\t      under s.123(1) was   nevertheless committed;\n<\/p>\n
\t      (b)   the\t petitioner,  of  the  same  Islamic
\n\t      faith as his opponent though, canvassed  votes
\n\t      using  the potency of a queer sort of  mulatto
\n\t      religious\t or  communal appeal,  thus  Petting
\n\t      caught  within the coils of s. 123(3)<\/a>  of\t the
\n\t      Representation of the People Act\t(hereinafter
\n\t      called the Act, for short); and\n<\/p>\n
\t      (c)   he\texercised a kind of undue  influence
\n\t      to  which\t people\t of States  of\tour  country
\n\t      bordering\t on Pakistan and a  sizeable  Muslim
\n\t      population    may\t  perhaps   be\t  peculiarly
\n\t      susceptible,    viz.,   subjection   to\t the
\n\t      excruciating  torture  suffered  by  the\tEast
\n\t      Pakistanis if perchance these voters dared  to
\n\t      vote against
\n\t      110<\/span>
\n\t      the   Congress   thus  violating\t the   basic
\n\t      guarantee of free and fair elections contained
\n\t      in s. 123(2)<\/a> of the Act.\n<\/p>\n
\t      The  High\t Court’s holdings on  those  charges
\n\t      may, at the outset,  be set out, to get a\t hang
\n\t      of the controversy in this appeal
\n\t      “According to the statement of Jabbar  Munshi,
\n\t      which  is reinforced by that of Sahed Ali\t the
\n\t      respondent No. 1 had offered Rs. 2,000, to him
\n\t      for doing work for him in the election in\t the
\n\t      two  villages of Rowmari and Mariadhaj.\tShri
\n\t      Choudhury laid emphasis on the word ‘inducing’
\n\t      used  in\tsub-clause  (A)\t of  Clause  (1)  of
\n\t      Section 123<\/a> and canvassed that we cannot spell
\n\t      out inducement by Jabbar Munshi vis-a-vis\t the
\n\t      voters  putting  up in Rowmari  and  Mariadhaj
\n\t      from  his statement that he had  been  offered
\n\t      Rs. 2,000, to do work for the respondent No. 1<\/span>
\n\t      in  the  election in the\tsaid  two  villages.\n<\/p>\n
\t      Here, again, it is not possible to agree\twith
\n\t      Sri  Choudhury  If a priest of  a\t village  is
\n\t      pressed  into service by a candidate, who\t has
\n\t      offered to pay him handsomely, to help him  in
\n\t      the election work, it becomes patent that\t the
\n\t      priest  is  to use his influence\tas  such  in
\n\t      winning  votes  for  the\tcandidate  who\t had
\n\t      approached him.  Hence all the ingredients  of
\n\t      sub-clause  (A) of clause (1 ) of section\t 123<\/a>
\n\t      are  proved  by the  dependable  testimony  of
\n\t      Jabbar   Munshi\tand  Sahed  Ali\t  with\t the
\n\t      consequence  that\t the  corrupt  practice\t  of
\n\t      bribery  attributed  to respondent  No.  1  is
\n\t      established.”\n<\/p>\n
\t      “In  view\t of  the  above\t discussion  of\t the
\n\t      relevant\t evidence  I  conclude\tthat   Kanak
\n\t      Doimari  and  Kahiram Deuri  have\t spoken\t the
\n\t      truth   with   the consequence   that   the
\n\t      respondent  No. 1 is proved to have  solicited
\n\t      votes  on the basis of his being the son of  a
\n\t      Boro  Kachari woman.  This appeal was made  up
\n\t      him in village which were inhabited by tribals
\n\t      who may or may not be considered as Hindus but
\n\t      they  are certainly not  Muslims.\t  Therefore,
\n\t      all  the ingredients of Clause (3) of s.-\t 123
\n\t      are established.”\n<\/p>\n
\t      :,The statements of the relevant witnesses  of
\n\t      the  petitioner are that the respondent No.  1<\/span>
\n\t      had  told them that he is half Hindu and\thalf
\n\t      tribal  because  of his maternal\tlineage.   I
\n\t      have  already  held the  statements  of  those
\n\t      witnesses as acceptable.\tNothing said by\t the
\n\t      respondent  No. 1 in the witness box  has\t the
\n\t      effect,  of  robbing the\tstatement  of  those
\n\t      witnesses\t of their quality as held by me.  of
\n\t      being  credible.\t‘Therefore, I hold that\t the
\n\t      allegations  made in section C9(i)  C9(ii)  of
\n\t      Part  III\t of the Annexure are  proved  beyond
\n\t      reasonable  doubt and as such  the  respondent
\n\t      No.  1  is  guilty  of  the  corrupt  practice
\n\t      mentioned in clause (3) of section 123<\/a> of\t the
\n\t      Act.”\n<\/p>\n
\t      It   is  mentioned  in  Section  B  that\t the
\n\t      respondent  threatened the Muslim voters\tthat
\n\t      in  case\tthey voted  against the\t Congress,
\n\t      whose nominee be was, it would be possible
\n\t      111<\/span>
\n\t      this time in view of the new system of  voting
\n\t      introduced,  to detect that fact and  that  in
\n\t      such  an\tevent they shall be  severely  dealt
\n\t      with.   According\t to the\t new  voting  system
\n\t      introduced  in  1972, it may be  stated,\teach
\n\t      elector,\tto whom a ballot paper\twas  issued,
\n\t      had either to make his signature or place\t his
\n\t      thumb  mark on the counter-foil of the  ballot
\n\t      paper.  That fact, it is mentioned in  Section
\n\t      B,  was prominently brought to the  notice  of
\n\t      the  electors by respondent No. 1, The  threat
\n\t      held  out to them, besides that they shall  be
\n\t      severely dealt with in case they voted against
\n\t      the   Congress,\twas  that  they\t  shall\t  be
\n\t      considered  and  treated\tas  Pakistanis\t and
\n\t      supporters  of  Yahya Khan and  having  worked
\n\t      against  the Congress Government\twhich  meant
\n\t      and  implied  that they  Were  voting  against
\n\t      Srimati  Indira Gandhi and as such were  anti-
\n\t      national.\t  In  Section F of Part\t VI  it\t was
\n\t      stated  that the respondent No. 1 and the\t men
\n\t      working  with him had propagated that  if\t the
\n\t      electors voted in favour of a candidate  other
\n\t      than that of the Congress ‘the Congress  would
\n\t      carry  out torture amongst the Muslims as\t was
\n\t      done in suppression by Pakistan”.\n<\/p>\n
\t      “The up-shot of the discussion of the evidence
\n\t      of a large number of witnesses examined by the
\n\t      petitioner and the respondent No. 1 bearing on
\n\t      the allegations set out in Sections B and F of
\n\t      Part  VI is that those allegations are  proved
\n\t      to the hilt.”\n<\/p>\n
Hearing\t this appeal, we realised that there was an  endemic
\nsensitivity  to\t election propaganda and method\t in  certain
\nregions\t which would be wasted strategy else  where  because
\nhuman  responses  differ according  to\tthe  socio-political
\nconditioning  of  groups  and  communities.   Here  we\t are
\nconcerned with a tribal area of Assam, a border State with a
\nheterogeneous  composition  of tribesmen, vaguely  Hindu  by
\npersuasion,  plainsmen Hindus and a ‘considerable number  of
\nMuslims.   A Mulla or Muslim minipriest may have  sway\tover
\nhis  orthodox  flock here while elsewhere his voice  may  be
\nignored.   A  threat of East Pakistan type  terror  or\tpro-
\nPakistan  branding is prone to frighten many here  while  in
\nCentral\t India\tor  the South such a  bogey  may  have\tless
\nminatory impact.  Religious appeal or communal appetite in a
\nbigoted\t and  backward population is stronger  than  in\t ail
\nenlightened  or\t indifferent  or  other\t area  with  a\tlong
\ntradition  of peaceful co-existence of variegated  religious
\ngroups or cosmopolitan people.\tIt all depends on the socio-
\npolitical  pathology  or  sensibility of  each\tprovince  or
\nconstituency.  We cannot dogmatise universally without being
\nconvicted  of  social  inexperience  or\t lack  of  political
\nrealism.   Shri\t Mukherjee, counsel for the  respondent,  is
\nright  in stressing the interplay of divergent kinks  making
\nup the mores of the Dhing Assembly constituency.  Before  we
\ncan competently judge human nature we must educate ourselves
\nabout  the  behaviourism  of the  concerned  group  avowedly
\npluralist  in  this case.  Law, after all, is a\t species  of
\nsociology.\n<\/p>\n
Even so, certain basic legal guidelines cannot be lost sight
\nof  while adjudging an election dispute, The verdict at\t the
\npolls wears a
\n112<\/span>
\nprotective  mantle in a democratic polity.  The\t Court\twill
\nvacate\tsuch  ballot  count  return  only  on  proof  beyond
\nreasonable  doubt  of corrupt practices.  Charges,  such  as
\nhave  been  imputed  here,  are\t viewed\t as  quasi-criminal,
\ncarrying  other\t penalties than losing a  seat,\t and  strong
\ntestimony  is  needed  to  subvert  a  Returning   officer’s
\ndeclaration.   On  the other side of  the  scales,  findings
\nreached\t by  the trial Judge will’ not\tbe  reappraised\t and
\nreversed in appeal unless palpable errors or misappreciation
\nare  writ large on them.  Such being our broad\tperspective,
\nlet us come to grips, with the facts and the law arising  in
\nthis case.\n<\/p>\n
We will first deal with the second charge-held proved by the
\nHigh  Court  but  hardly  easy\tof  solution  in  the  legal
\nconnotation  of\t the  provision Ls. 133(3)  or\tthe  factual
\ncomplex\t of  forces-and it relates to what  may\t naively  be
\ncalled ‘religious appeal’.  For an intelligent understanding
\nof  this  translucent  provision the best  beginning  is  to
\nreproduce  the\tsubsection and then search for the  soul  of
\nthis  wholesome legal man on communalism in elections a\t ban
\nof  Indian politics which dies hard, defiant of law and\t our
\nsecularist  creed.   Likewise, the voluminous  testimony  in
\nthis  case, bearing on the spectrum of appeals\tattributable
\nto a variety of shades and hues from crude Islamic to  plain
\nancestral  kinship  and tribal fellowship,  baffles  identi-
\nfication,  being  curiously psychic  and  sociological.\t  In
\nthese areas of evidence judicial navigation towards the port
\nof truth is not so simple as the homing instinct or habitual
\ntest of judges whereby they break through false and doubtful
\ndepositions.  Local obsessions and subjective  exaggerations
\nhave to be kept in leash and objective touchstones and\tsafe
\nProcedures relied on if we are not to get lost in mere\tbulk
\nof  evidence or cynical negation of good and bad.  To  judge
\nis  in\tpart an esoteric art, not a rule of thumb  and\tthis
\ncase  is a real challenge to our ability to feel our way  to
\nveracity through university.  When elections are  challenged
\non  grounds with a criminal taint, the benefit of  doubt  in
\ntestimonial matters belongs to the returned candidate.
\nSection 123(3)<\/a> of the Act reads
\n\t      “Corrupt\tpractices.-The\tfollowing  shall  be
\n\t      deemed to be corrupt practices for the purpose
\n\t      of this Act
\n\t      x\t    x\t   x\t x     x     x
\n\t      (3)   The\t appeal by a candidate or his  agent
\n\t      or  by any other person with the consent of  a
\n\t      candidate\t or  his election agent to  vote  or
\n\t      refrain  from  voting for any  person  on\t the
\n\t\t\t    ground of his religion, race, caste,
\ncommunity
\n\t      or  language  or\tthe use\t of,  or  appeal  to
\n\t      religious symbols or the use of, or appeal to,
\n\t      national symbols, such as the national flag or
\n\t      the  national emblem, for the  furtherance  of
\n\t      the   prospects  of  the\telection   of\tthat
\n\t      candidate\t or for prejudicially affecting\t the
\n\t      election of any candidate.”\n<\/p>\n
The  conscience\t of this clause-and the core  of  the  legal
\ninhibitions  to\t impart\t penal incarnation  to\tthe  secular
\nmandate commonly expressed in biblical language
\n113<\/span>
\n“Render therefore unto Caesar the things which are Caesar’s;
\nAnd unto God the things that are God’s.”\n<\/p>\n
The  founding faith of our poll process is to ostracise\t the
\ncommunal  vice from the campaign, having suffered from\tthis
\nvirus  during  the Raj.\t This great idea must  brighten\t the
\nlegal  phrases\tso that the purpose, the whole\tpurpose\t and
\nnothing but the purpose may be carried into effect.
\nThe  gravamen  of the charge as covered by  sec.   C(i)\t and
\nC(ii`  of  the petition is that the  1st  respondent  sought
\nsupport\t from tribals on the score that he was\thalf-tribal,
\nhalf-Muslim-his\t mother\t was  of  Kachari  tribe-while\t the
\npetitioner  was\t unmitigated  hundred-per-cent\tMuslim,\t and
\namongst\t Hindus settled from the plains he pleaded  that  he
\nwas after all half-Hindu and so, obviously, more  acceptable
\nthan  are undiluted Muslims like the petitioner.  The  facts
\nof  parentage  are that the 1st respondent’s  mother  was  a
\ntribal\tHindu  who  was converted to Islam  on\tthe  eve  of
\nmarriage  to a Muslim, The refutation by the respondent\t has
\ntaken  two  forms.   Firstly, no such half  tribal  or\tlike
\npropaganda  was\t done  and secondly,  such  a  Hindu  Muslim
\nhybridisation in parentage, even if urged tactically  before
\nthe relevant communities, did not fall within the  obnoxious
\nprovision  regarding religious or communal appeal.  At\tbest
\nit  was\t a  sentimental sop based on  ancestry\tor  kinship,
\nreligious rivalry in appeal being out of the ring since both
\ncandidates  were  apparently full-blooded Muslims.   We\t are
\nfree to agree that, what with mixed marriages and change  of
\nreligion  and  the gamut of beliefs and\t unbelief  and\tlike
\nsocial\tphenomena, viewed against the backdrop of a  dynamic
\npolicy\tof secularism and national integration, the  correct
\nconstruction   of   the\t  sub-section\tis   fraught\twith
\ndifficulties.\n<\/p>\n
What is religion?  What is communal or caste appeal? (We  do
\nnot have to deal with the thorny problems relating to appeal
\nto  language,  in  this\t appeal).   Some  of  the   inherent
\nconfusion besetting ,appeal to religion’ have been indicated
\nby this Court in Rahim, Khan case.(1) There are orthodox and
\nheterodox wings in all religions schools, sects,  Protestant
\ngroups and so on-more so in one like Hinduism with a hundred
\nstrands\t ranging  from pantheism to atheism.   We  are\there
\nconcerned  not so much with theology as with sociology,\t not
\nwith  intra-religious  feuds  as with the  divisive  use  of
\nreligious  faith  by  projecting  them\tinto  and  polluting
\npolitics   and\tsocial\tlife  Strangely\t enough,  both\t the
\ncandidates  are\t professing  Muslims,  speaking,  in  formal
\nterms,\tthe  petitioner being a revolutionary  communist  to
\nboot.  Judicial insight into practical politics,  measuring,
\nthe degree of contamination, through injection of religious,
\nracial,\t caste\tor communal poison, of the  blood-stream  of
\nhealthy\t electoral processes is a socio-legal essay,  as  is
\ndiscernible  in\t this  Court’s ruling  in  Kultar  Singh  v.
\nMukhtiar  Singh<\/a>(2)  that religious appeals  can\t conceivably
\nplay even in a situation where both candidates swear by\t the
\nsame  denomination  or faith.  Within  the  fold,  variables
\noperate\t and blurred areas exist.  A fanatic may seek  votes
\ncastigating his co-religionist
\n(1)  [1974] 11 S.C.C. 660.\n<\/p>\n
(2) A.I.R. 1965 S.C. 141.\n<\/p>\n
9-L 379 Sup.  CI\/75
\n114<\/span>
\nrival  with  reforming zeal as a de faco apostate.   But  to
\ndelve  meticulously  into  these  dark\tmines  of  divergent
\nopinions  and  clashing practices and hold  that  ‘religious
\nappeal’\t has been invoked is to overdo legality\t and  hamper
\nsocial\tadvance.  Without being obsessed by  procedents\t and
\nfreeing ourselves from theological inhibitions we proceed to
\ninterpret s. 123(3)<\/a> of the Act in the social setting of this
\ncase.\tWe cannot countenance, in the name of narrow law,  a
\npush back to movements blending of religions, races,  castes
\nand  communities  if  it will  homogenise  the\tpeople\tinto
\nnational unity, social solidarity and secular mentality.  If
\nthe  rule  of law must run close to the rule of\t life,\tthis
\nsociological  view-point stands vindicated, since  elections
\npolitically expose the social inside in the raw.
\nTaking\tthis  stance  is  to read  legal  realism  into\t the
\nexpression   ,religious\t  appeal’  used\t in   the   relevant
\nprovision.   To exhort the masses-assuming  the\t appellant’s
\nfacts  to test the legal thrust of his argument-to vote\t for
\nhimself\t because  his  mother was a tribal or  a  Hindu,  is
\nperhaps prone to excite the clan feeling in a vicarious way,
\nthough\tthe  appeal  is by a  Muslim.\tDoes  this  sympathy
\npotential  of  the  appeal to  the  electorate\tvitiate\t the
\nelection  as  an  appeal  to religion  to  get\tvotes  ?  To
\nsensitize the voting masses on every politically  irrelevant
\nappeal is bad but not yet illegal.  Law lays down  practical
\nnorms,\tnot  prohibitions  of  intangible  injuries.   In  a
\npluralist  society like ours, a certain irremovable  residum
\nof  ‘minority  complex’\t will haunt the polls,\tas  it\tmay,
\nperhaps\t in a lesser measure, in the United States  or\teven
\nthe  ‘United  Kingdom.\t A Jew, a black, a  Catholic  or  an
\nIndian\tor  woman  will, without  special  appeals  in\tthat
\nbehalf, rouse prejudices for and against in some  countries.
\nEven  in  India, the religion or caste or community  of\t the
\ncandidate  may exude through his name, dress, profession  or
\nother external indicium.  Does it mean that his\t candidature
\nis imperiled by the inscription of his name or ,caste suffix
\nin  posters  or\t pamphlets ?   Something  more\tsubstantial,
\nintentional  and  oblique  is  necessary.   Similarly,\tmere
\nreference  to ,one’s tribe, ancestry or genetic\t commingling
\nmay  not  be  tainted with the legal vice  of  religious  or
\ncommunal appeal, exceptional situations apart.\tIt may\twell
\nhe  that  a strong secularist candidate may plead  with\t the
\nelectorate to be non-communal and therefore vote for him ,on
\nthe  basis  that he was an inter-caste\tor  inter-racial  or
\ninter-religious\t product  and as such a symbol\tof  communal
\nunity.\t Indeed,  mixed marriages  may\taccelerate  national
\nintegration and a candidate cannot be warned off by the\t law
\nfrom  stressing this non-communal merit of his.\t That  would
\nbe a perversion, of the purpose of the provision.
\nThe substance of the appeal, if at all is-not the  delicate,
\nlegal concoction for, Court consumption-that being of  Hindu
\nand  Muslim extraction he is a less communal Mussalman.\t  If
\nsome misunderstand, the bulk understand and the masses\thave
\nan uncanny political sense.  Viewed from another angle, the
\nhortative  exercise  is\t relatable  to\tparentage,   vaguely
\nsounding  in a sub-conscious clan feeling-too remote,  too
\nattenuated to be a plain, or even indirect appeal on grounds
\nof   religion  or  community.\tThose  who  urge,  in\tsome
\nroundabout manner ‘Hindu Muslim Ek Ho’ are doing no violence
\nto  law\t but  promote  its object.   We\t disagree  with\t any
\ncontrary reasoning or
\n\t\t\t    115<\/span>
\ninical approach and hold that an appeal by a candidate\tthat
\nhe  personifies\t Hindu Muslim interplay does not  cross\t the
\nline of corrupt practice.  The sharp edge of the appeal, not
\nits  elitist  possibility or over-nice implication,  is\t the
\ncrucial, commonsense test.\n<\/p>\n
Now  to\t the  factual conclusion.  Did\tthe  1st  respondent
\nproject Hindu profile or, more plainly, did he articulate  a
\nHindu  communal\t appeal ? Religious, it could not  be.\t How
\ncould  the son of a woman, who made  pre-matrimonial  switch
\nfrom  Iswara to Allah, appeal to is religion  while  himself
\nwearing\t the  Islamic inscription in his name?\tto,  declare
\noneself\t an  offspring\tof a religious renegade\t is  not  to
\nappeal\tto  religion.  It is unlikely because  it  does\t not
\nsocially pay.  Even Hindu tribals may probe beneath the skin
\nand politically discover he no not a Hindu.  Moreover is  it
\nstrategy  in  a\t fevered situation like\t a  hotly  contested
\nelection,  to  propagate, in one part  of  the\tconstituency
\nwhich is predominantly and backwardly Muslim, that one is  a
\nhalf Hindu ?  You cannot insulate such appeals to  specified
\nvillages  as  no  iron\tcurtain\t halts\telection  campaigns.
\nCounter-productive would have been the result.\tWhispers may
\nhave  succeeded,  not  public meetings, if  the\t object\t was
\ndiscreetly to spread communal propaganda in a secluded\tarea
\nput prudently to prohibit its diffusion into other areas  of
\nthe  same constituency.\t But here the case is one of  public
\nmeetings  and  drama  stage  with  loudspeakers\t and   other
\npublicity and wedding gathering, not nocturnal sub  silentia
\ncirculation   of  injurious  facts  appealing  to   communal
\nfeeling.\n<\/p>\n
Before\twe  proceed directly to deal with  the\tevidence  we
\nshall  refer  to one more dimension of the  law\t of  corrupt
\npractice  based\t on communal and allied appeals.   The\tvote
\nmust  be  sought by the candidate exploiting  his  religion.
\nHere the 1st respondent is avowedly a Muslim.  An appeal  to
\nHindus\tby a Muslim candidate on the ground of his  religion
\nis  impossible under the Indian Sun, things as\tthey  stand.
\nNor  is there any religion or tribe for\t hybrids,  something
\nlike  ‘Hinduslim’.  The finer shades, minor tenets or  avant
\ngarde movements present in all religions are not the  target
\nof  the\t sub-section which seeks to strike  at\tthe  cruder,
\nbaser,\t divisive   trends  being  fostered   by   casteism,
\ncommunalism  and  the  like.   All  great  religions   speak
\nbasically  the same truth and converge towards the  Religion
\nof  Man.   Science  itself is tending to  be  spiritual\t and
\nreligions  are turning towards science.\t Man and  his  Maker
\nare  the profound theme of the major religions but some\t men
\npervert this deeper urge to make gods go to war against each
\nother\tby   forming   hostile\t camps.\t   Indian   history,
\nparticularly under the British, is tainted with godly  blood
\nof  humans  and\t the cunning  manoeuvres  of  candidates  to
\nresurrect  that spirit during electoral battles is  anathema
\nfor the law.  We have no hesitation in taking the view\tthat
\nhere  was no religious exploitation by the candidate of\t his
\nreligion or community, legally or factually.  Tribalism\t may
\nperhaps\t be stretched to embrace communalism but the  accent
\nin the evidence is on half-Hindu bias, not tribal  identity.
\nThe ground fails and the clever twist in the evidence  seems
\nto be too sophisticated an- attempt to pasmuster.
\nIt  is\tnot  out of place to point out that  if\t we  stretch
\nsemantics  out of context the appellant may, by calling\t his
\nrival a revolutionary
\n116<\/span>
\ncommunist (which he claims to be), commit a corrupt practice
\nbe cause to be a communist, nearly means, as a good Marxist,
\nto  be\tmaterialist disawoving all religious  faiths.\tSuch
\nobviously  cannot  be the connotation.\tWords  of  wide\t and
\nvague\timport,\t like  appeal  to  religion,  must   receive
\nrestricted  construction  lest\tlaw  run  riot\tand  up\t set
\naccepted   political  standards.   For,\t certain   political
\nparties-an(  therefore, their candidates-have mild  communal
\novertones  and Court must confine themselves to\t clear\tmis-
\ndirection of voters grounded on plain religious or  communal
\nappeal.\t  Again, to claim to be a) Assamese or\tBengalee  is
\nnot necessarily a communal appeal-may even be declaration of
\nminority status of the group.  In certain circumstances such
\na  vote-catching  technique  may  be  violative\t of  Article
\n123(3).<\/a>\t It all depends on the over-all factors and setting.\n<\/p>\n
\t\t\t THE FACTS
\nIf  the\t appellant had placated the Hindus by  a  communally
\npala table version of his ancestry, the news of the  meeting
\nwould  have  taken wings and the Muslim\t voters\t would\thave
\navenged\t themselves on him–a risk he was unlikely to  take,
\nthe  contest being close and damage by\tinflammatory  recoil
\nfrom the Islamic and being incalculable.  We are inclined to
\nthink  that the probabilities are against the  alleged\thalf
\nHindu story.\n<\/p>\n
Let us examine the oral evidence bearing on this issue.\t But
\nsince  this  branch of the case is built on  lip  testimony,
\njudicial  scepticism  has to be activised  before  upholding
\nthis species of alleged corrupt practice.  Witnesses may lie
\nwith  counterfeit  candour,  and  judicial  hunch.  may\t not
\nsuccessfully\tX-ray\tthe   unveracity    of\t  apparently
\ndisinterested persons.\tWhile it may be hazardous to stake a
\nconclusion  on\tso serious and undetectable a matter  as  an
\nelection result because a single witness or more swears that
\nway,  no  rule of thumb wit work, since\t Courts\t weigh,\t not
\ncount,\t witnesses.   Broad  probabilities,   corroboration,
\ncircumstantial\tor  oral,  the non-production  of  the\tbest
\nevidence  and a host of like factors have to be\t taken\tnote
\nof,  even  if not elaborately, documented in  the  judgment.
\nThe  screening\tand  testing processes will  also  give\t due
\nweight\tto the trial Judge’s sense of credence.\t  Ultimately
\nthe  appellate\tCourt  has  to\thave  an  appraisal  of\t the
\nwitnesses’ truthfulness and accuracy, the Judge’s experience
\nof  men\t and matters and careful reflection being  the\tlie-
\ndetector.\n<\/p>\n
The  pleadings\tof the petitioner leave much to\t be  desired
\nfrom  the  point  of view of  precision\t and  particularity,
\nespecially specification of persons and places so  essential
\nto fair-play in the legal process in such matters.  Even  if
\none  winks  at\tthis blemish. there  must  be  strict  proof
\notherwise.  The general criticisms made by Mr. Garg, counsel
\nfor the appellant, have force and we will deal with them  in
\nthe light of the explanation offered by Shri Chatterjee\t for
\nthe petitioner.\n<\/p>\n
The  appellant\thas  denied having made any  such  Hindu  or
\ntribal appeal to the voters and the burden of proof rests on
\nthe respondent petitioner.  We may also discard the new case
\ncasually  set  up through some witnesses that  the  Congress
\ncandidate  had declared himself a Hindu (not half but  full)
\nand  asked at public meetings for support on  that  footing.
\nEqually adventitious is the emergence of the evidence
\n117<\/span>
\nthat  the appellant campaigned on the basis of his being  an
\nAssamese.   While absence of particulars does not  stand  in
\nthe  way  of  the Court considering the evidence  led  on  a
\nground\tof  corrupt  practice  if  such\t evidence  had\tbeen
\nadmitted without objection and no prejudice has been  caused
\n(vide  A.I.R 1960 SC 200) still a case, departing  from\t the
\npleading has frail prospects of acceptance.  The failure  to
\nplead  is  a  blow  to\tthe  credibility  of   after-thought
\ntestimony.  In the present instance, although some witnesses
\nhave  lent up support to the story that the appellant  urged
\nthat  he  be regarded as Hindu and other P.Ws.\tthat,  being
\nAssamese, the voters should back him, we do not give  credit
\nto  such belated ipse dixits.  May be, as earlier  observed,
\nthe  Assamese  appeal, or tribal sentiment, may\t in  certain
\nsituations savour of communal appeal and on other  occasions
\nbe a request by a member of a weaker or backward or minority
\nsection to the people for voting help a democratic  gesture-
\nwe need not examine such possibilities here, the evidence on
\nthe point being naked assertions unfounded in pleadings\t and
\nunconvincing  on probabilities.\t The Hindus or\tAssamese  or
\ntribals\t were  small numerically, about 80%  of\t the  voters
\nbeing  Muslims\tand the balance sheet would show  more\tloss
\nthan gain if one took up a Hindu posture.  Nor is there\t any
\nforce  in the submission that witnesses R. Ws. 30, 8, 9\t and
\n12  themselves\thad  admitted the  holding  of\tthe  alleged
\nmeetings  because  they\t do not agree on  the  religious  or
\ncommunal appeal at all.\n<\/p>\n
The heap of half-Hindu evidence may be analysed, not meticu-
\nlously\tbut applying commonsense tests.\t P. Ws. 53, 54,\t 55,
\n57, 65, 66, 67, 68, 79, 80 generally testify to the case  of
\npublic\tappeal\tin  tribal and\tnon-Muslim  areas  that\t the
\npetitioner  has\t part-Hindu blood flowing in his  veins\t and
\nmust be voted for on that basis.  Impressive in numbers they
\nare but the phalanx breaks down on closer examination.
\nWe   will   eshew  the\timpressionistic\t approach   to\t the
\ncredibility  of witnesses but look out\tfor  interestedness,
\nlack  of corroboration and other unnatural features.   By  a
\nsimilar\t token we will examine the half-tribal appeal.\t The
\nlearned\t trial Judge has generally chosen to  believe  these
\nwitnesses  and\twe will have that in mind  while  appraising
\ntheir\ttestimonial  worth.   P.W.  53\ttestifies   to\t the
\nappellant’s visit to a village library and asking for  votes
\npleading that he may be taken as a Hindu ‘because his mother
\nis  a  Kachari Hindu’.\tHe admits that the  appellant  is  a
\nMohammedan   and  still\t states\t that  ‘nobody\traised\t any
\nobjection  to what he said’.  From his evidence it  is\tseen
\nthat  there were three persons Puran, Padmaram\tand  Dharani
\nwho  were workers of the present respondent sitting  in\t the
\nlibrary.   Although  they  are\tinterested  witnesses  their
\ncorroboration could have added some weight to the  testimony
\nof  P. W. 53.  Moreover the same witness deposes ‘A  polling
\nOfficer\t was  also  sitting with us when  respondent  No.  1
\n‘talked’.   Obviously the evidence of such a  witness  would
\nhave reinforced the credibility of P. W. 53.  We are  unable
\nto take at its face value the testimony of this easy witness
\nparticularly  because he goes beyond the  half-Hindu  theory
\ntrotted out in the pleadings.\n<\/p>\n
P.   W.\t 54 is no better.  He also speaks to the request  by
\nthe  appellant that he be taken as a Hindu by the voters  of
\nthe village since
\n118<\/span>
\nmaternal  Hinduism  flowed through his veins.\tHowever,  he
\nagrees\tthat  the appellant bears a Muslim name\t and  it  is
\nunlikely that he would have visited a Hindu wedding to claim
\nhimself\t a Hindu.  The surprising thing about this  witness
\nis that he swears ‘I took the respondent No. 1 to be a Hindu
\nas well as a Muslim’.  That a unanimous decision to vote for
\nthe  election-petitioner was reversed unanimously  the\tnext
\nday  after  the aforesaid appeal to vote on the basis  of  a
\nHindu  maternity  is  liable  to be  rejected  even  by\t the
\ngullible.   We feel P. W. 54 is speaking with his tongue  in
\nhis cheek.\n<\/p>\n
P.   W.\t  55   also  fares  ill\t  although   he\t  apparently
\ncorroborates P. W. 54.\t Strangely  enough  this   gentleman
\nadmits that notwithstanding the Hindu appeal ‘the respondent
\nNo.  1\tgave out his name as Abdul Hussain Mir\twhich  is  a
\nMuslim name and so we take him as a Muslim’.  He proceeds to
\nstate that he met the candidate on a later occasion but\t ‘on
\nthis last mentioned occasion, respondent No. 1 asked me cast
\nmy  vote  in  his  favour  and\tnothing\t more’.\t  He  hardly
\nconvinces  us.\tIt is significant that P. Ws. 54 and  55  do
\nnot speak of any corroborating persons apart from Sri  Neog,
\nthe supporter of the appellant.\t A communal appeal made at a
\nwedding\t party\tcould easily have been corroborated  by\t the
\nbride’s\t father or other important persons of  the  village.
\nThis  is a lacuna and the story itself can easily  be  woven
\nwithout fear of contradiction.\n<\/p>\n
P.   W.\t 57  repeats his predecessors, but the\tvery  appeal
\nmade  is self-contradictory because the words attributed  to
\nthe candidate are ,that though he is a Muslim … his mother
\nis  a Kachari Hindu and so he may be taken as a Hindu’.\t  He
\nmentions the names of certain others who were present on the
\noccasion  as ‘leading persons viz.  Buddheswar, Bhogram\t and
\nBaliram’.   But they have not been examined.  P. Ws. 67\t and
\n68  depart  from  the type, design  by\tasserting  that\t the
\nappellant asked for votes as he happened to be an  Assamese.
\nThe former continued ‘I joined issue with him for the reason
\nthat  he bore a Muslim name’ and whent on to assert ‘I\ttold
\nthe  respondent\t No.  1 that he is a  Bengalee\tand  not  an
\nAssamese . . . Today also I consider the respondent No. 1 as
\na  Mymensinghia\t of East Bengal, that is, a Muslim.   P.  W.
\n67’s evidence cannot carry conviction.\tNor are we impressed
\nwith  the  testimony  of  P. W. 68.   We  have\tperused\t the
\ndeposition  of P. Ws. 79 and 80 and for the sake of  brevity
\nwe   may   say\t that  their  testimony\t  is   weakened\t  by
\nimprobabilities and much oral evidence, served in  heapfuls,
\ncannot help induce judicial certitude.\n<\/p>\n
P.   Ws.  17, 21, 22, 82 and 83 specifically swear that\t the
\nappellant  urged  the  tribals to cast their  votes  in\t his
\nfavour because his mother was a Kachari.  The pattern is the
\nsame but surrounding defects make it\tdifficult  to  upset
\nan election on doubtful yarn orally spun.\n<\/p>\n
There is a mix up regarding the communal appeal spoken to by
\nP.   W.\t 17 because the allegation in the petition  is\tthat
\nthe appellant’s mother did the propaganda in Saharia village
\nwhile  the witness fathers it on the candidate himself.\t  Of
\ncourse,\t he is a polling agent of respondent-petitioner\t and
\nis  willing  to\t swear as directed.  Not only  is  there  no
\ncorroboration but R. Ws. 7, 8 and 15 deny the imputation.\n<\/p>\n
119<\/span><\/p>\n
P.   Ws.   21  and  22\tspeak  to  communal   representation
\nsoliciting  votes on the strength of maternal Hinduism,\t the
\npropaganda being done in Batabari village.  It would  appear
\nfrom  their  evidence that the candidate turned\t up  when  a
\ndrama  show was on, persuaded the stoppage of the  play\t and
\ntalked to them asking for votes because he belonged to\tthem
\n‘his  mother being a Bora Karhari woman’.  The\tevidence  is
\nvague, unlikely and denied by the appellant RW 1 and by RW 5
\nanother man of the village.  In this state of dubiety, it is
\na  high\t risk to run to rely on the testimony of  these\t two
\nwitnesses.\n<\/p>\n
P.   Ws. 82 and 85 speak to a similar propaganda in  village
\nNijdhing.  Both of them go beyond the case in the  pleadings
\nand put forward the story that the appellant urged that\t the
\nvillagers  ‘should  vote for him as he is  a  Hindu’.\tThis
\nevidence is contradicted by R. W. 8, the candidate.  We\t are
\nfar from satisfied that such glib oath of casually picked up
\nwitnesses speaking to circumstances more, ambitious than the
\npleading  sets\tforth  should from the basis  for  proof  of
\ncorrupt practice.\n<\/p>\n
To sum up, the ground of religious or communal appeal hardly
\ncommends  itself to us in the light of the evidence  in\t the
\npresent\t case and we are constrained to reverse the  finding
\nof  the\t High Court.  We are inclined to  observe  that\t the
\nlearned\t Judge\thas  been  far\ttoo,  easily  persuaded\t  by
\nunsatisfactory\toral evidence each of which is of an ad\t hoc
\ncharacter, is uncorroborated by any testimony of  compelling
\nvalue  and  is contradicted by the  party  affected.   Proof
\nbeyond\t reasonable  doubt  seems  a  forgotten\t  criterion,
\nalthough  verbal homage is paid at the start by\t the  Judge.
\nThe dictionary research into the meaning of religion,  race,
\ncaste and community and the ethnic enquiry into tribal\tlife
\nlaunched  by the tribal Judge may be useful but not  conclu-
\nsive  and is legally elusive.  Myriad forms of rubbing\thome
\ncommunal  appeal exist but if intangible, has to be  ignored
\nin the work-a-day world, law being pragmatic, not perfect.
\nIt   is\t a  matter  for\t profound  regret   that   political
\ncommunalism  far  from\tbeing rooted out  is  foliating\t and
\nflourishing largely because parties and politicians have not
\nthe will, professions apart, to give up the chase for  power
\nthrough politicising communal awareness and religio-cultural
\nidentity.  The Ram-Rahim ideal and the secular ideology\t are
\noften the Indian politicians election haberdashery, not\t his
\nsoul-stuff.   Micro- and mini-communal fires are  stoked  by
\nsome  candidates  and leaders whose over-powering  love\t for
\nseats in the Legislature is stronger than sincere loyalty to
\nsecular\t electoral processes.  Law can efficiently  regulate
\nand  control  if wider social legitimation  is\tforthcoming.
\nAnd this key factor is absent, so much so wrong\t methodology
\nbecomes rampant.  Small wonder, even revolutionaries, imbued
\nwith  realism,\toften prove ‘boneless wonders’\twhen  pitted
\nagainst communal politics in elections.\t Courts can act only
\nif cogent proof is adduced.  The charge fails.
\nWe now move on to the terrorising tactic allegedly  resorted
\nto  by\tthe  appellant.\t We have earlier  noticed  that\t the
\npolitics and practices of electioneering may vary from\tarea
\nto  area  and what is good in Tamil Nadu may be\t foolish  in
\nNagaland, such being the cultural
\n120<\/span>
\nmosaic\tthat is India.\tWe will transport ourselves to\tthis
\nconstituency, respond to its sensitivity and seek the  truth
\nof the charge of threat of voters in that milieu.
\nThe pleading in this behalf casts the net too wide and vague
\nand the complaint of the appellant that particulars have not
\nbeen  forthcoming  is not without force.   The\ttrial  Court
\nitself\thas negatived some of the grounds relied on  by\t the
\npetitioner under the broad head of undue influence,  tabooed
\nby  s.\t123(2)<\/a> of the Act.  What has survived and  has\tbeen
\nupheld\tis all that falls for our consideration.  The  drift
\nof   the  charge  is  that  the\t Congress   candidate\twho,
\nundoubtedly,  had  the propaganda backing  of  even  Central
\nMinisters  who landed in helicopters, that the\tvoters\twere
\ntold  about a change in the method of voting which  required
\nthe affixture of signature or thumb impression on the ballot
\nand the likelihood of detection of the identity of the votes
\ncast,  with  reference to the voter.  The next step  in\t the
\nthreat\tis  that if anyone was found to have voted  for\t the
\ncommunist-petitioner  he  would\t be subjected  to  the\tsame
\ntorture\t the  East Pakistanis suffered\tunder  the  Pakistan
\nregime.\t The macabre picture of the blood-bath in Bangladesh
\nbefore\tit was born was perhaps the psychic content  of\t the
\nthreat\theld out against anti-Congress electors.   Making  a
\nmargin for the ultra sensitive nature of the constituency to
\nthis  grim  threat  we\thave to\t see  whether  this  awesome
\npropaganda  has really been made.  Proof must be  clinching,
\nbefore\tgrave  charges\tcan be made  good.   Oral  evidence,
\nordinarily, is inadequate especially if it is of indifferent
\nquality or easily procurable.\n<\/p>\n
P.   Ws. 3, 5, 6, 7, 8, 9, 14, 56 and 58 have been relied on
\nby  the\t petitioner to press home the charge  of  threat  of
\ntorture\t or undue influence by that means.  Of\tcourse,\t the
\nvillages’  assigned to the witnesses vary and the  appellant
\nhas  not only denied by his testimony but has  pressed\tinto
\nservice\t other witnesses to repudiate the  intimidatory\t im-
\nputation.   They  are  R. Ws. 28, 31 and  35  in  regard  to
\nSalkathi  Pathar  village,  R. Ws. 30 and 35  in  regard  to
\nPalastholi  village;  R. Ws. 9, 12, and 38 relating  to\t the
\nalleged\t meeting at Rowman; R. W. 28 in regard\tto  palaswli
\nPanbari village; R. W. 36 with reference to Jarabari and  R.
\nWs. 38 and 42 negating the story in relation to Doomdoomia.
\nA brief and insightful survey of all this testimony may\t now
\nbe  undertaken.\t P. W. 3 swears that the  appellant  visited
\nhis house on March 10, 1972 accompanied by R. Ws. 31 and  35
\nand  others.   When  asked he mentioned that  as  before  he
\nintended to vote for the petitioner-respondent whereupon the
\nappellant  told him that according to the latest  system  of
\nelection  ‘my thumb mark shall be taken on the ballot  paper
\nand  if it was found that I had voted for a candidate  other
\nthan  a\t nominee of the Congress, I shall be killed  in\t the
\nmanner\tof  East-Bengalees.  I was also\t apprised  that\t all
\nthose voting against the Congress nominee shall be set up in
\na  line\t and killed in the way the East Bengalees  had\tbeen
\ndone  to death by the West Pakistanis’.\t This threat  turned
\nhis  vote towards the Congress candidate, says the  witness.
\nHe  had\t kept  this terrible fact a secret  till  after\t the
\ndefeat of the election petitioner.  The gruesome version  is
\ntoo  terrifying to be true in the conditions  prevailing  in
\nIndia  in  1972.  It must be remembered that  the  election-
\npetitioner is a man of consequence being
\n121<\/span>
\nthe President of the Managing Committee of a Madrasa in that
\narea  and former M.L.A. Of course, the substantial  vote  he
\nhas polled also shows the poor deterrence the alleged threat
\nhas  had on the constituency.  P. W. 5 encores this case  of
\nthreat and mentions the names of R. Ws. 30 and 35 as  having
\naccompanied  the appellant.  The witness admits that at\t the
\n1967 General Elections he voted for the communist candidate,
\ni.e.,  the election-petitioner, and that he never  disclosed
\nthe present frightful threat having been made to him to any-
\none before the election.  A perusal of the evidence of these
\nwitnesses   just   referred  to,  in  the   light   of\t the
\ncontradiction  by the concerned R. Ws., makes  us  extremely
\nhesitant  to  act on their deposition.\tIndeed\twe  discount
\ntheir credibility.\n<\/p>\n
P.   W.\t 6,  the  headman of a village and  President  of  a
\nMadrasa, deposes to a public meeting in the Madrasa compound
\nat  which the appellant and his supporter Shri\tNeog  spoke.
\nThe  theme was the same except the ruddy embroidery that  if
\nanyone voted for the communist candidate everything would be
\nbloodied like the communist flag.  There was reference\talso
\nto  Bangladesh brand of ill-treatment, In  cross-examination
\nthe  witness  refers to Abdul Khalek and  Abdul\t Quaddus  as
\nhaving been present, but neither of them is examined.  It is
\nsurprising that till the poll was over this witness did\t not
\ndivulge the threat of violence for getting votes to any\t one
\nand  this  strikes  us as improbable  remembering  that\t the
\nwitness is a headman of a village.  The appellant as well as
\nShri Neog have contradicted this version.  R. Ws. 12 and  38
\nhave also denied the holding of threats at that meeting.  Of
\ncourse, their evidence by itself may not be compelling.
\nP.   W.\t 9 speaks in the same strain as P. W. 6. So also  P.
\nW.  14 who claims to be a Congressman while  deposing  anti-
\nCongress,  not\ta  surprising phenomenon  in  election\tcase
\nevidence.   It looks odd that this witness should  say\tthat
\n‘excepting   Shri  Neog\t aforementioned,  no   other   Hindu
\nparticipated in the meeting.  Such an open threat is  likely
\nto counter-productive in a predominantly Muslim area, parti-
\ncularly\t when we remember that the petitioner-respondent  is
\nalso a man of considerable influence.  There is reference by
\nP.  W. 14 to ‘ some bustle in the meeting’, when the  threat
\nwas uttered ‘but I cannot say whether it was one of approval
\nor disapproval’ says P. W. 14.\n<\/p>\n
P.   Ws. 7 and 8 have given evidence of domestic delivery of
\nthe threat.  Both of them speak to the visit at night of the
\nappellant and his revealing the change in the election rules
\nwhich  would  require thumb impression or  signature  to  be
\nappended to the ballot paper and ‘the further shock to those
\nwho  voted for the communist party that they would  be\tshot
\ndead.  The possible corroboration could have come only\tfrom
\none  Abdul  Ghani and Isomuddin Master neither\tof  whom  is
\nexamined  by the petitioner but the latter figures as R.  W.
\n28 to deny the story.\n<\/p>\n
P.   W.\t 56 refers to a similar threat held out\t in  village
\nJerabari  by the candidate himself and the possibility\tof
\ndetection of the candidate to whom the vote was cast.\tThis
\nHomeopathic Doctor owns the presence of Sahed and Anwar\t but
\nneither\t of them has entered the witness box to\t corroborate
\nthis case.\n<\/p>\n
122<\/span><\/p>\n
P.   W.\t 58  was not even mentioned in the  witnesses’\tlist
\nalthough  he repeats the true-to-type case of  threat.\t The
\nGaon Sabha President Rupai Sailis and one Rabiram Bora\twere
\nalleged to the present at the time of the talk but they have
\nbeen examined by the appellant as R.\tWs.  38 and  42\t and
\nhave denied the whole case of threat.\n<\/p>\n
We  have  to  remember in assessing the\t evidence  of  these
\nwitnesses  that\t the election petition has  been  blissfully
\nvague  in  regard  to  the particulars\tin  support  of\t the
\naverment  of undue influence.  More than one  amendment\t was
\nsought and still neither the names of the persons nor of the
\nplaces so vital to induce credence and to show fairplay have
\nbeen  given.  We need hardly emphasize that one cannot\tpick
\nup  witnesses en route and march ;them into the witness\t box
\nwithout\t running  the risk of  their  apparently  consistent
\nevidence  from being disbelieved.  After all we are  dealing
\nwith  a quasi-criminal charge with serious consequences\t and
\nall necessary particulars have to be furnished in the
\nelection  petition.  This being absent and the\tentire\tcase
\nresting\t  on  shaky ipsi dixits we are unable to go by\tthe,
\nversion tendered by the election petitioner.  The upshot  of
\nthe discussion is that we are far  from satisfied about\t the
\nconclusive veracity of the case of undue influence and\thave
\ntherefore   to\t find  against\t the   election\t  petitioner
\nrespondent.\n<\/p>\n
Before taking leave of this part of the case it is necessary
\nto emphasise that the wisdom of the law of pleadings bearing
\non  election  petitions has set down  strict  provisions  to
\nensure\tthat fairness of opportunity is given  in  fastening
\ncorrupt\t practices on the successful candidate.\t Section  83<\/a>
\nsignificantly  insists\ton  all\t material  facts  and\tfull
\nparticulars being set forth at the earliest stage.  To avoid
\nthis duty is to play foul and we as umpires will not  easily
\nreckon\tthe  goal scored.  The rules of the  game,  in\tthis
\ndecisive  democratic  game  where power\t corrupts  even\t the
\ntechniques of proof, will be enforced in Court.\t  Precedants
\nare a profusion on this issue and the law is so settled that
\nwe do not cite case-law in support.  Here, three  amendments
\nwere  sought  and  made, of the\t petition  by  the  election
\npetitioner   and  objection  about  bold,  vague,   twilight
\nallegations  were urged by the opposing party.\tAnd yet\t the
\nelection  petition  remains bereft of specificity  on  vital
\nmatters.  The penalty will, in any case, be a stricter, more
\nsceptical   scrutiny  of  the  testimony  brought   by\t the
\ndelinquent  party.  We frown on tactics of keeping  material
\nparticulars  up one’s sleeves.\tThat is neither cricket\t nor
\ncourt process.\tThe testimonial assessment exercise by us in
\nthe present case has been influenced by this blemish in\t the
\nelection petition and after.\n<\/p>\n
The  last surviving corrupt practice of bribery may  now  be
\nexamined  from\tthe legal and factual  angle.\tThe  former,
\nsimpliutic  on\tthe  surface,, is blurred  and\tbeffling  in
\ncertain\t practical situations.\tBriefly, the charge is\tthat
\nthe appellant offered to P. W. 12, Jabber Munshi, a mulla or
\nmosque\tfunctionary with religious influence over his  fold,
\nthe  expressed object being ‘to collect votes’ for him.\t  In
\nevidence, the mulla crystallised the case thus :\n<\/p>\n
\t      “The  respondent No. 1 approached me and\tsaid
\n\t      that  he wanted to have a talk with me.\tThen
\n\t      respondent  No.  1 took me inside one  of\t the
\n\t      rooms of Johuruddin’s house and
\n\t\t\t\t   123<\/span>
\n\t      there  offered me Rs. 2,000\/- if I worked\t for
\n\t      him  in  the election in the two\tvillages  of
\n\t      which  I happened to be the Mulla.   I  turned
\n\t      down  the proposal since it was unbecoming  of
\n\t      me and then came out of the room.”\n<\/p><\/blockquote>\n
A  critical  appraisal of the evidence on this part  of\t the
\ncase  has lead us to conclude that the facts deposed to\t are
\naltogether   untrustworthy.   Facts  failing,  law   becomes
\notiose.\t  Even\tso, having regard to the importance  of\t the
\nsubject and largely out of deference to the counsel who have
\naddressed  long arguments and highlighted the High  Court’s
\nreasons\t on  the  point we think it proper  to\texpress\t our
\nopinion.  For an incisive understanding of the import of  s.
\n123<\/a>  (1) we Will assume the facts to be correct.   Precision
\nin  thought being essential, we will set out  the  provision
\nitself :\n<\/p>\n
\t      “123.  Corrupt practices.-The following  shall
\n\t      be  deemed  to be corrupt\t practices  for\t the
\n\t      purposes of this Act
\n\t      (1)   ‘Bribery, that is to say,-\n<\/p><\/blockquote>\n
\t      (A)   any\t  gift,\t offer\tor  promise   by   a
\n\t      candidate or his agent or by any other  person
\n\t      with  the\t consent  of  a\t candidate  or\t his
\n\t      election\tagent of any gratification,  to\t any
\n\t      person, whomsoever, with the object,  directly
\n\t      or indirectly, of inducing-\n<\/p><\/blockquote>\n
\t      (a)   a person to stand or not to stand as, or
\n\t      to  withdraw or not to withdraw from  being  a
\n\t      candidate at an election, or\n<\/p><\/blockquote>\n
\t      (b)   an\telector\t to  vote  or  refrain\tfrom
\n\t      voting at an election, or as reward to-\n<\/p><\/blockquote>\n
\t      (i)   a  person  for having so  stood  or\t not
\n\t      stood,  or for having withdrawn or not  having
\n\t      withdrawn his candidature; or\n<\/p><\/blockquote>\n
\t      (ii)  an elector for having voted or refrained
\n\t      from voting;\n<\/p><\/blockquote>\n
\t      (B)   the receipt of, or agreement to receive,
\n\t      any gratification,   whether as a motive or a
\n\t      reward-\n<\/p><\/blockquote>\n
\t      (a)   by a person for standing or not standing
\n\t      as, or for withdrawing or not withdrawing from
\n\t      being, a candidate; or\n<\/p><\/blockquote>\n
\t      (b)   by any person whomsoever for himself  or
\n\t      any other person for voting or refraining from
\n\t      voting or inducing or attempting to induce any
\n\t      elector to vote or refrain from voting, or any
\n\t      candidate\t to withdraw or not to withdraw\t his
\n\t      candidature.\n<\/p><\/blockquote>\n
\t      Explanation.-for\tthe purposes of this  clause
\n\t      the  term gratification’ is not restricted  to
\n\t      pecuniary\t  gratification\t  or   gratifications
\n\t      estimable\t in money and it includes all  forms
\n\t      of  entertainment and all forms of  employment
\n\t      for reward but it does not include the payment
\n\t      of any expenses bona fide incurred at, or\t for
\n\t      the purpose of, any election and duly  entered
\n\t      in  the account of election expenses  referred
\n\t      to in section 75<\/a>.”\n<\/p><\/blockquote>\n
 124<\/span><\/p>\n
One thing is clear.  A mere offer is enough, given the other
\ningredients.   An attempt to commit crime is as bad  as\t the
\ncommission, if proved infallibly.  To pay money ‘to work for
\nhim  in the election’ does it become illegal  gratification
\nof  the\t corrupt species ? We may slur over  the  minor\t gap
\nbetween ‘collecting’ votes as Pleaded and working’ for the
\ncandidate, as deposed, since what counts is the evidence.  A
\nbreak  down  of the sub-section yields\tthe  following\tcom-
\nponents :\n<\/p>\n
\t      (i)   An\toffer  or promise by  the  candidate
\n\t      etc., of gratification to any person,\n<\/p><\/blockquote>\n
\t      (ii)  The\t  object   must\t  be   directly\t  or
\n\t      indirectly to induce an elector to vote or not
\n\t      to vote at an election.\n<\/p><\/blockquote>\n
The  purpose of the provision is to ensure poll\t purity\t and
\nexclusion  of  pollution  by  money  power.   All  elections
\ninvolve\t expenses  and that is why s. 77<\/a> sets a\t ceiling  on
\nsuch  expenses\tand impliedly  contemplates  expenditure  on
\nelection work.\tSuch lay-out of money may be for  legitimate
\nitems.\tAny offer or promise by a candidate (or other person
\nspecified in the section) to any person whosoever, of  money
\nis  anathems  for  the\tlaw, if the  object  be\t to  induce,
\ndirectly  or  indirectly  a voter to cast  or  refrain\tfrom
\ncasting\t his  ballot.\tHere  there  is\t the  offer  by\t the
\ncandidate to a person viz., P. W. 12.  What is the  specific
\nobject\t?  To  make him work for  the  candidate,  viz.,  to
\npersuade voters to support the paying candidate.  There is a
\nlegal  line to be drawn here, which is fine but\t real.\t The
\npayment\t of offer as the case may be, may be to any  person,
\nbut  it\t must be linked with the object\t predicated  in\t the
\nsection.  If the payment is to induce an elector to vote, be
\nit  direct or vicarious it is corrupt.\tIf it is  any  other
\noblique\t object, it may be evil, not necessarily corrupt  in
\nthe  eye of the law.  The language of the provision  can  be
\nstretched  wide to cover even payments to do  propaganda  or
\nprint posters or hire transport since they are calculated to
\ninduce voters to vote.\tA narrow connotation is\t conceivable
\nwhere only payments to the voters is hit by the legal stick.
\nA   pragmatic\tconstruction,  inhibiting   corruption\t but
\npermitting electioneering expense is the right one, although
\nmany tricky projects may get through the legal mashes  which
\nlaw cannot help and only public vigilance can arrest.
\nReading s. 77<\/a>, dealing with the ceiling on election expenses
\nand s.\t  123<\/a> (i) which strikes at liberty, harmoniously and
\nrealistically, we   reach   a  few well-defined\t  semantic
\nconclusions.   To widen is to be idealists and\tineffectual.
\nTo  shrink  is\tto fail in the goal of the  law.   Mr.\tGarg
\nrightly\t emphasised that in the light of the  precedents  of
\nthis Court what the law aims at is a blow on the purchase of
\nthe  franchise by direct or indirect methods.  You  may\t buy
\ninfluence of important persons which is bad in morality\t but
\nnot yet in law.\t You may over-spend to create enthusiasm  to
\nthe workers which produces professional electioneers waiting
\nfor  the  season  to please candidates\tand  parties.\tThis
\nvitiates  the  smooth wheels of the democratic\tprocess\t but
\ncannot\tbe  stanched  by the tourniquet\t of  the  law.\t The
\nrulings in
\n125<\/span>
\nGhasi Ram v. Dal Singh<\/a> (1) and the one at Om Prabha Jain  v.
\nA  bnash Chand(2) have been cited at the bar and  they\tmake
\nout that the vice is the bargain for the ballot and what  is
\nobnoxious  in  the  quid  pro  qua  for\t the  vote,  however
\naccomplish.\n<\/p>\n
If  the candidate pays money to a V.I.P. of the locality  to
\nuse  his  good offices and canvass votes for him,  it  is  a
\nborderline  case, but if the money is paid as  consideration
\nfor  votes promised to be secured by him using his sway,  it
\nis  bribery even though indirectly exercised.  If the  Mulla
\nhad  been paid the money striking a bargain for getting\t the
\nvotes in his ambit of influence, it is electoral corruption.
\nOn  the other hand, if it is money received for the  purpose
\nof  organising effectively the election campaign  by  hiring
\nworkers,  going round to places in car, meeting\t people\t and
\npersuading  them  to vote for the candidate,  it  is  proper
\nelection  expense.  In between these two extremes  lies\t the
\ncase  of  a  man who just receives a  large  sum  of  money,
\npockets\t it himself and promises to use his good offices  to
\nsecure\tvotes, This is a gray area.  We are not called\tupon
\nto  pronounce on it in this case.  We have no doubt  that  a
\nmammoth\t election  campaign  cannot be\tcarried\t on  without
\nengaging  a number of workers of a hierarchical sort.\tMany
\nof them may be man commanding influence through goodwill  in
\nthe locality.  Some of them may be village V.I.Ps. social or
\nreligious,  our\t country being still feudal  in\t many  rural
\nareas.\t The  touchstone in all these cases  of\t payment  or
\ngratification  is to, find out whether the money is paid  in
\nreasonable  measure  for work to be done or services  to  be
\nrendered.  Secondly, whether the services so offered  amount
\nto a bargain for getting votes or merely to do propaganda or
\nto persuade voters to vote for the candidate, it being\tleft
\nto the voters not to respond to the election.  It is a plain
\ncase if a voter is paid for his vote.  It is direct.  It  is
\nequally plain if the payment is made to a close relation  as
\ninducement for the vote.  The same is the case if it is paid
\nto  a  local  chief on the understanding that  he  will\t get
\npolled the votes in his pocket borough, in consideration for
\nthe  payment.\tThe crucial point is the nexus\tbetween\t the
\ngratification and the votes, one being the consideration for
\nthe  other, direct or indirect.\t Such being the contours  of
\nthe  corrupt practice of bribery, let us consider the  facts
\nof the case bearing on this question.\n<\/p>\n
The  allegations are that the appellant and RW 33 called  PW
\n12  the\t Mulla\tto  the house of RW 33\tat  Dhing  Bazar  on
\nFebruary  18,  1972  and  offered to  pay  Rs.\t2,000\/-\t for
\ncollecting  votes.   PW 12 and PW 13 have been\texamined  to
\naffirm this case while the appellant as PW 8 and RW 33\thave
\nrefuted\t this  story, on oath.\tThe  version  is  inherently
\nimprobable as it is unlikely that such a corrupt offer would
\nbe  made  to a comparative stranger by one  conversant\twith
\nelection proprieties.  It is particularly noteworthy that RW
\n33  has no special influence over this Mulla and  his  house
\nneed not have been the venue for the offer of bribe.   Sahed
\nAli, P. W. 13 is also not shown to have any closeness to  PW
\n12  and why he should get mixed up with this matter  is\t not
\neasily understandable.\tPW 12 has sworn that he had  neither
\nworked nor canvassed for any candidate at
\n(1)  [1963] 3 S.C. R.102,110. (2) [1968]3 S.C. R.111, 116.\n<\/p>\n
126<\/span><\/p>\n
any  time and could not have been therefore  pressured\tthis
\ntime by the appellant who is likely to know the implications
\nof  this dangerous move himself being an  Advocate.   Before
\ntile  poll, P. W. 12 did not mention this matter  to  anyone
\nbut  it\t was divulged only a fortnight after  the  election.
\nThe  graphic description of the appellant not producing\t the
\ncash along with the offer but suggestively opening his\tlong
\ncost  without showing the money is more dramatic than  true.
\nP.  W.\t13 who corroborates in part the Mulla  also  is\t too
\nvirtue\tto  prevail  upon  Jabbar Munshi  to  work  for\t the
\nappellant, as requested by the latter, as his evidence runs.
\nThis witness would say that the occurrence was around  10-30
\na.m.,  but  we\thave  the  evidence  of\t Shri  Moinul  Haque
\nChowdhury  who\tcame  in a helicopter to  address  a  public
\nmeeting on behalf of the appellant that he and the appellant
\ntogether  landed in the place about mid-day.  If really\t the
\nappellant was keen on hiring the services of the Mulla at  a
\nfancy price he would have put more pressure on PW 13 than is
\ndiscernible in the dicerent answer of the witness :\n<\/p>\n
\t      “Respondent  No. 1 asked me this much  that  I
\n\t      should  previal upon Jabbar Munshi  to  accept
\n\t      the money and work for him.  He did not ask me
\n\t      anything\tmore though be told me that  he\t had
\n\t      offered, Rs. 2,000\/- to Jabbar.”\n<\/p><\/blockquote>\n
In  this  context  it must be stated that  in  the  original
\nelection  petition the source of information  regarding\t the
\nallegation contained in section C of Part I that bribery  of
\nRs.  2,000\/- was not mentioned.\t By an amendment,  Kabir  is
\nmentioned  as  the  source but in  the\taffidavit  filed  in
\nsupport\t of the amended election petition the  informant  is
\nmentioned  as Salkia and neither of them has been  examined.
\nNor  are-we  told  how they came to know  about\t the  secret
\noffer.\t The  overall view of the evidence bearing  on\tthis
\naspect leaves us in grave doubt as to whether the Mulla\t had
\nmet  the  appellant at all.  We have already held  that\t the
\nfacts  as spoken to by the former, even if true do not\tcome
\nwithin the relevant clause [s. 123(1)].\n<\/p>\n
The  evidence  is  purely  parol,  the\taccusation  one\t  of
\nreprehensible corruption and so, however attractive an offer
\nof payment to a Mulla for Muslim voters being influenced may
\nappear\tto be, the court has to be circumspect to a  degree.
\nIn  our\t country where marshy areas of\treligious  fanticism
\nsurvive into late twentieth century politics and candidates,
\nregardless of secular and even revolutionary faiths, succumb
\nto  methods  of vote-catching inconsistent  with  democratic
\nscruples, approaching Mullas, priests and pujaris may not be
\nunfamiliar.  But this vicious proclivity cannot be  combated
\nby courts except when (a) clinching proof is adduced and (b)
\nthe facts come within the clutches of the legal\t definition.
\nAfter all, poll purity is preserved not by law alone but  by
\na critical electoral climate.\n<\/p>\n
The  mere  word of the Mulla, denied by\t the  appellant,  is
\naltogether   insufficient   to\t bring\t home\tthe   guilt,
\ncorroborated though it is by P. W. 13.\n<\/p>\n
Summing\t up  our conclusions, we hold none  of\tthe  grounds
\npressed have been proved to the point of judicial certitude.
\nAll that
\n127<\/span>
\njudges, fallible instruments, and cacooned by the record can
\nhold  in  all  conscience  is  that  by\t human\tinsight\t and
\njudicialised  procedures, with all the limitations  they  in
\npractice imply, the truth is what our lights tell us it\t is,
\nno more.\n<\/p>\n
The  appeal is allowed and the election\t petition  dismissed
\nwith costs throughout.\n<\/p>\n
V.P.S.\t\t\t\tAppeal allowed.\n128<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Abdul Hussain Mir vs Shamsul Huda & Anr on 20 December, 1974 Equivalent citations: 1975 AIR 1612, 1975 SCR (3) 106 Author: A Alagiriswami Bench: Alagiriswami, A. PETITIONER: ABDUL HUSSAIN MIR Vs. RESPONDENT: SHAMSUL HUDA & ANR. DATE OF JUDGMENT20\/12\/1974 BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. KRISHNAIYER, V.R. SARKARIA, RANJIT SINGH […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-248992","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAbdul Hussain Mir vs Shamsul Huda & Anr on 20 December, 1974 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/abdul-hussain-mir-vs-shamsul-huda-anr-on-20-december-1974\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Abdul Hussain Mir vs Shamsul Huda & Anr on 20 December, 1974 - 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