{"id":26510,"date":"1976-02-04T00:00:00","date_gmt":"1976-02-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/balwan-singh-vs-prakash-chand-on-4-february-1976"},"modified":"2016-07-12T04:33:49","modified_gmt":"2016-07-11T23:03:49","slug":"balwan-singh-vs-prakash-chand-on-4-february-1976","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/balwan-singh-vs-prakash-chand-on-4-february-1976","title":{"rendered":"Balwan Singh vs Prakash Chand & … on 4 February, 1976"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Balwan Singh vs Prakash Chand & … on 4 February, 1976<\/div>\n
Equivalent citations: 1976 AIR 1187, \t\t 1976 SCR (3) 335<\/div>\n
Author: P Shingal<\/div>\n
Bench: Shingal, P.N.<\/div>\n
           PETITIONER:\nBALWAN SINGH\n\n\tVs.\n\nRESPONDENT:\nPRAKASH CHAND & OTHERS(Vice-Versa)\n\nDATE OF JUDGMENT04\/02\/1976\n\nBENCH:\nSHINGAL, P.N.\nBENCH:\nSHINGAL, P.N.\nGOSWAMI, P.K.\n\nCITATION:\n 1976 AIR 1187\t\t  1976 SCR  (3) 335\n 1976 SCC  (2) 440\n CITATOR INFO :\n RF\t    1979 SC 234\t (40)\n RF\t    1986 SC   3\t (22)\n D\t    1987 SC1577\t (27)\n\n\nACT:\n     Representation of\tPeople\tAct  1951-s.  123(5)-Corrupt\nPractice-Procuring of  a tractor and trolly belonging to the\ncandidates wife\t for carrying voters to the polling station-\nIf corrupt practice.\n     Words and phrases \"procuring\" meaning of-\n     Practice-Amendment\t of   election\tpetition  after\t the\nperiod prescribed  for presentation-If could be done-Whether\nobligatory for the election petitioner to examine himself at\nthe trial.\n\n\n\nHEADNOTE:\n     The appellant's  election to the State Assembly was set\naside by  the High  Court on  the ground of corrupt practice\nfalling under s. 123(S) of the Representation of People Act.\nThe appellant,\tit was\talleged, hired and procured vehicles\nfor the\t free conveyance  of voters. This was however denied\nby the\tappellant. The\tHigh Court  allowed amendment of the\nelection petition  by inserting\t a new\tsub-paragraph 12(d),\nstating that  the names of the persons who hired or procured\nthe vehicles  for carrying the voters to the polling station\nwere given  in schedule\t lII(i) of the petition, on the view\nthat the  information given  was a  necessary particular  to\nallege\tand   prove  that  the\tvehicle\t was  used  for\t the\nconveyance of the voters.\n     It was contended in this Court. (i) that the tractor in\nwhich the  voters were\talleged to  have been carried to the\npolling station,  was taken  there in  some other connection\nand that  though the  tractor was in the name of his wife as\nbenamidar. it really belonged to the appellant and, as such,\nno question or hiring or procuring it, whether on payment or\notherwise, arose so as to make it fall within the purview of\ns. 123(5)  of the  Act. and  (ii) that\tthe High  Court\t had\ncommitted a  serious. error  of law in allowing the election\npetition to  be amended\t after\tthe  expiry  of\t the  period\nprescribed for its presentation.\n     Dismissing the appeal,\n^\n     HELD : The finding of the High Court that the appellant\nprocured the tractor with trolly and used it for the purpose\nof transporting\t the  voters  to  the  polling\tstation\t and\nthereby committed  a corrupt  practice within the meaning of\ns. 123(5) of the Act is correct. [348E]\n     (1) (a)  There is\tno justification for contending that\nthere could  be\t no  question  or  occasion  for  hiring  or\nprocuring the  tractor because it belonged to the appellant.\nIt cannot  be urged  that the tractor, which belonged to his\nwife mutt  be deemed  to belong\t to the appellant or that it\nshould be  inferred that  she was a mere benamidar when that\nwas not\t the appellant's  case anywhere The tractor belonged\nto the\twife of\t the appellant\tand was not his own property\n[341E-F1\n     (b) It  would amount  to \"procuring\"  the tractor if it\ncould be  shown that  r the  appellant obtained\t or  got  or\nacquired the tractor from his wife The dictionary meaning of\nthe word  \"procure\" is \"to obtain as by request loan effort,\nlabour; get,  gain, come  into possession  of\". This  is the\ncorrect meaning of the word used in s. 12(5). [341G-H]\n     (c)  It   is  not\t always\t possible  for\tan  election\nPetitioner  to\tadduce\tdirect\tevidence  to  prove  that  a\nparticular vehicle was hired or procured by the candidate or\nhis agent  or by  any other  person with  the consent of the\ncandidate or  his election  agent, but\tthis can be inferred\nfrom  the  proved  circumstances  where\t such  inference  is\njustifiable. [348B]\n336\n     Bhagwan Datta Shastri v. Badri Narayan Singh and others\nA.I.R. 1960  S.C. 200:\tShri Umed  v. Raj  Singh and others<\/a>.\nA.l.R. 1975  S.C. is;  Ram Awadesh Singh v. Sumitra Devi and\nothers<\/a>. [1972]\t2 S.C.R.  674; Rahim  Khan v. Khurshid Ahmed\nand others<\/a>, [1975] 1 S.C.R. 643. Baburao Ragaji Karemore and\nothers v.  Govind and  others<\/a> [1974]  2 SCR  429.  and\tSmt.\nIndira Nehru  Gandhi v.\t Raj Narain.  A.I.R.<\/a> 1975 S.C. 2299;\nreferred to.\n     (2) It is futile to contend that a new corrupt practice\nwas allowed  to be.  inserted by  the High  Court's order of\namendment. The schedule was an integral part of the election\npetition and  the original  election petition contained what\nwas required  to be  stated by\ts. 83  of the  Act  and\t the\namendment was  meant to\t furnish some further particulars in\nregard to  the same  corrupt practice  When issue  No. 2 was\nframed by the High Court, the appellant was fully aware that\nthe  election  petitioners  had\t alleged  the  user  of\t the\nvehicles also and that was why he joined issue for the trial\nof that allegation. [340B-C]\n     (3) There\tis no obligation on the part of the election\npetitioners to\texamine themselves  at the trial in the High\nCourt. The  evidence which  they were able to produce at the\ntrial could  not have  been rejected  for any such fanciful`\nreason when  there was\tnothing to  show that  the  election\npetitioners were`able  to  give\t useful\t evidence  to  their\npersonal knowledge but stayed away purposely\n\t\t\t\t\t\t      [349F]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil  Appeals Nos.\t 775
\nand 1107 of 1975.\n<\/p>\n
     (From the Judgment and order dated the 9-4-19.75 of the
\nAllahabad High Court in Election Petition No. 24 of 1974)
\n     N. S. Bindra. K. C. Agarwala. R. D. Uppadhaya and M. M.
\nL. Srivastava, for the appellant in CAs 775\/75.\n<\/p>\n
     Yogeshwar Prasad  and Miss\t Rani Arora  and Bir Bahadur
\nSingh, for the appellant in CA 1107\/75.\n<\/p>\n
     N. S. Bindra, K. C. Agarwala, R. D. Uppadhaya and M. M.
\nL. Srivastava, for the respondent in CAs 1107\/75.\n<\/p>\n
     Yogeshwar Prasad,\tMiss  Rani  Arora  and\tBir  Bahadur
\nSingh, for respondents 1 and 2 in CAs 775\/75.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     SHINGHAL, J.-Civil\t Appeal No.  775 of  1975  has\tbeen
\nfiled under  section 116A  of the  Representation  of`People
\nAct, l95l,  hereinafter referred  to as\t the Act,  by Balwan
\nSingh  whose  election\tto  the\t Uttar\tPradesh\t Legislative
\nAssembly from  the Sarwan  Khera constituency at the general
\nelection of  1974, has\tbeen set aside by the Allahabad High
\nCourt by its judgment dated April 9, 1975. The appellant has
\nbeen. held  guilty of  committing a  corrupt practice  under
\nsection 123(S)\tof the\tAct. and has been disqualified for a
\nperiod of six years. this election was challenged on several
\ngrounds by an election petition filed by respondents Prakash
\nChandra and  Jai Chandra,  hereinafter referred\t to  as\t the
\nelection petitioners, who were electors of the constituency.
\nThere were  several candidates at the election, but the main
\ncontestants were  appellant Balwan  Singh  of  the  Bhartiya
\nKranti DaI  (B.K.D.) who  secured 34.968 votes, and Ragunath
\nSingh, respondent  No. 2  of  the  Congress  (R)  party\t who
\nsecured 31,008\tvotes. Appeal No.1167 of 1975 is by election
\npetitioner Prakash Chandra for setting aside the judgment on
\nissues decided against the election petitioners.\n<\/p>\n
337<\/span><\/p>\n
     The allegation  regarding the commission of the corrupt
\npractice referred  to above  was  to  the  effect  that\t the
\nappellant, his\tworkers, agents\t and  supporters,  with\t his
\nconsent hired  and procured vehicles for the free conveyance
\nof electors.  A concise\t statement of the mate rial facts in
\nthat respect  was made\tin  paragraph  12  of  the  election
\npetition. Particulars  of the  vehicles used  for  the\tfree
\nconveyance of the electors were given in Schedule III of the
\npetition. The  appellant   denied the allegation and pleaded
\nin his written statement that none of the vehicles mentioned
\nin Schedule  III was either, procured or hired by him or his
\nworkers and  agents with  his consent  for  the\t purpose  of
\ncarrying voters to and from the polling stations and that no
\nsuch vehicle was “used for the purposes of carrying electors
\nto and\tfrom the  polling stations  on the date of poll”. It
\nwas also  stated that  the  allegations\t contained  in\tsub-
\nparagraphs  12(a),  12(b)  and\t12(c)  were  not  the  facts
\nrequired by  section 83. They were totally vague and lack ed
\nin material  particulars, and  were liable to be struck off.
\nThe High  Court considered that and the other objections and
\nstated in  its order dated August 30, 1974, in regard to the
\nobjection that\tthe names  of the  persons who\tprocured  or
\nhired vehicles\twere not  given in  paragraph 12 or Schedule
\nIII, that  the\tcounsel\t for  the  election  petitioner\t had
\nundertaken  to\tfurnish\t the  names.  The  election  tioners
\nfurnished  better  particulars\tby  adding  paragraph  12(d)
\nstating that  the names of the persons who hired or procured
\nthe vehicles  by which\tthe electors  were “carried  free of
\ncost from  their houses\t to the polling station” on the date
\nof election  by respondent  No. 1  were\t given\tin  Schedule
\nIII(l). They  save  the\t percentage  and  residence  of\t the
\npersons named in Schedule III, as also particulars and names
\nof the\tpersons who hired and procured vehicles for the free
\nconveyance of  the electors,  and the names of the owners of
\nthe vehicles.  An objection  was then  taken  that  such  an
\namendment was  not permissible. The High Court rejected that
\nobjection by  its order\t dated October 10, 1974, except that
\nthe names of two new persons were not allowed to be inserted
\nin Schedule V, with which we are not concerned.\n<\/p>\n
     The High  Court framed  several issues, including issue
\nNo. 2 which was as follows-\n<\/p>\n
\t  “2. Whether  the respondent  No. 1 himself, or his
\n     workers and  agents with his consent, hired or procured
\n     vehicles for  the free  conveyance of  the\t voters\t and
\n     whether the  vehicles so  hired and  procured were used
\n     for the  purpose and  , .\tthereby the respondent No. 1
\n     committed corrupt practice.”\n<\/p><\/blockquote>\n
After recording\t the evidence of the parties, the High Court
\nrecorded its finding as follows.-\n<\/p>\n
\t  “My answer  on issue No. 2 accordingly is that the
\n     respondent No.  2 procured tractor 9962 with trolly and
\n     hired Jeep UPW 359 and Tractor UTE 5865 with trolly and
\n     that the said vehicles were used for free conveyance of
\n     voters  to\t  Maubasta,  Jaganpur\tand  Tigain  polling
\n     stations and  further that the respondent No. 1 thereby
\n     committed a  corrupt practice  under section  123(5) of
\n     the R.P. Act.”\n<\/p><\/blockquote>\n
338<\/span><\/p>\n
It was\tin view\t of that  finding that the election petition
\nwas allowed  with costs,  the election\tof the appellant was
\ndeclared void, and he was disqualified as aforesaid. That is
\nhow appeal No. 775 has arisen The other appeal No. 1 107 has
\nbeen filed  by election-petitioner.  Prakash Chandra,  as he
\nfeels aggrieved\t against the  High Court’s  findings on\t the
\nother issues,  but Mr.\tYogeshwar Prasad  has stated that he
\nwould not  press that  appeal. We have therefore only Balwan
\nSingh’s appeal for consideration.\n<\/p>\n
     It has  been argued  by Mr.  Bindra on behalf of Balwan
\nSingh, hereinatter  referred to\t as the\t appellant, that the
\nHigh Court  ought  not\tto  have  entertained  the  election
\npetition as  it was  not verified in the manner laid down in
\nthe  Code   of\tCivil  Procedure  for  the  verification  of
\npleadings even\tthough that  was the  clear  requirement  of
\nsection 83(1)(c)  of the  Act. We asked the counsel to refer
\nus to  any such\t objection of  the appellant  in  the  triaI
\ncourt, and  all that he could do was to invite our attention
\nto paragraph  5 of  the application dated November 27, 1974.
\nThat paragraph\thowever relates\t to the\t objection regarding
\nthe defective  verification of\tthe – affidavit accompanying
\nthe election  petition, which is a different matter. That is
\nin fact\t the subject matter of Mr. Bindra’s second argument,
\nand we\tshall deal with it separately. The fact remains that
\nan objection regarding the alleged defective verification of
\nthe election  petition was  not taken in the High Court, and
\nit was\tnot a  point at\t issue there.  There is therefore no
\njustification for  allowing it\tto be  raised here. It is in
\nfact significant  that even though an objection was taken on
\nNovember 27,  1974 in  regard to  the  verification  of\t the
\naffidavit,  no\t such  objection   was\t taken\t about\t the
\nverification of\t the main  election petition. It was vaguely
\nstated that  verification of  the affidavit and verification
\nof the\tSchedule (i.e. Schedule III) were “at variance”, but
\nthat was  a different  matter. In so far as the verification
\nof the affidavit is concerned, it would be sufficient to say
\nthat that  part of it which related to the commission of the
\ncorrupt practice which was the subject matter of issue No. 2
\nwas concerned  (Schedule III)  it was verified in accordance
\nwith the  prescribed form  (No.25 of the Conduct of Election
\nRules,\t1961)\tas  true   to  the   election\tpetitioner’s
\ninformation received  from the\tpersons mentioned  in it. It
\nwas therefore quite in order.\n<\/p>\n
     It may  be\t mentioned  that  although  the\t High  Court
\nexamined the  objections of  the appellant on two occasions,
\nno objection  was taken\t or pressed for its consideration in
\nregard to  the verification  of the  main election petition,
\nits schedules  or the affidavits. An objection was raised in
\nthe appellant’s application dated November 27, 1974 that the
\nelection petition  may not  be tried  because  of  defective
\naffidavit, but\tit was rejected by the High Court’s order of
\nthe  same  date\t on  the  grounds  that\t it  was  a  belated
\nobjection, and\tthe allegation of corrupt practice could not
\nbe deleted  merely because  of the  defective  form  of\t the
\naffidavit. No  issue was  joined  in  respect  of  any\tsuch
\nobjection and  it cannot  be allowed  to be  raised for\t the
\nfirst time in this appeal.\n<\/p>\n
     It has  next been\targued by  Mr. Bindra  that the High
\nCourt committed\t a serious  error of  law  in  allowing\t the
\nelection petition to be
\n339<\/span>
\namended, after\tthe expiry  of the period prescribed for its
\npresentation, even though it did not allege that any vehicle
\nwas used  for the free conveyance of any elector and did not
\nspecify the  names of  the persons  who were alleged to have
\nhired or  procured the\tvehicles. It  has been urged that as
\nthe facts  alleged in the petition did not bring out all the
\ningredients of\tthe corrupt  practice, there was no cause of
\naction for trial. Reference in this connection has been made
\nto Samant  N.  Balakrishna  etc.  v.  George  Fernandez\t and
\nOthers(1). Hardwari  Lal v.  Kamal Singh,<\/a>(2)  Rai Narain  v.
\nSmt. Indra  Nehru Gandhi and another(3) and Vatal Nagaraj v.
\nR. Dayanand Fagar.<\/a>(4).\n<\/p>\n
     By the  amendment in question, the election petitioners
\nhad applied  for insertion  of a  new sub-paragraph  (d)  in
\nparagraph 12 of the petition as follows,-\n<\/p>\n
\t  “The names  of the  persons who  hired or procured
\n     the vehicles by which the electors were carried free of
\n     cost from\ttheir houses  to polling station on the date
\n     of election by respondent No. 1, his workers and agents
\n     with his  consent are  given in  schedule III(i) of the
\n     election petition.”\n<\/p><\/blockquote>\n
Schedule III(i)\t gave  the  particulars\t and  names  of\t the
\npersons who  hired and\tprocured the  vehicles for  the free
\nconveyance of  electors. The High Court took note of the law
\nthat a\tfresh corrupt practice could not be alleged by means
\nof an  application to amend the election petition and, after
\nreferring to the decisions in Balwan Singh v. Lakshmi Narain
\nand others<\/a>(5)  and Joshbhai  Chunibhai Patel v. Anwar Beg A.
\nMirza,<\/a>(6) given\t before and  after the amendment made by Act
\n47 of  1966, it\t held that it was the requirement of the law
\nthat in\t addition to  proving the hiring or procuring of the
\nvehicles for  the free conveyance of any elector to and from
\nany polling  station, it  was a\t necessary  particulars`  to
\nallege and  prove that\tthe  vehicle  was  used\t for  –\t the
\nconveyance of the electors. It then noticed paragraph 9 (iii
\n) of  the election petition which stated that the appellant,
\nhis workers,  agents and  supporters with his consent, hired
\nand procured  vehicles for  the free  conveyance of electors
\nand committed corrupt practice as provided under sub-section
\n(S) of\tsection 123 of the Act. It also noticed paragraph 12
\nwhich clearly  stated that the concise statement of material
\nfacts in-relation  to the  aforesaid ground  relating to the
\nprocuring and  hiring of  tractors, jeep  and car  “for free
\nconveyance of  voters to  thc polling  stations\t from  their
\nhouses” were given in sub-paragraphs (a) and (b). Those sub-
\nparagraphs clearly  mentioned that  the\t vehicles  had\tbeen
\nhired and  procured for the free conveyance of the electors-
\nfrom their  houses to  the polling  stations on\t the date of
\npoll. Reference\t was  also  made  to  Schedule\tIII  of\t the
\npetition for  which it\twas stated in paragraph 12(c) of the
\npetition that  the full particulars in regard to the corrupt
\npractice were  given in\t it.  That  schedule  contained\t the
\n“particulars of vehicles used for
\n     (1) [1969] 3 S.C.R. 603.\t    (2) [1972] 2 S.C.R. 742.
\n\t(3) [1972] 3 S.C.R. 811.(4) [1975] 2 S.C.R. 384.
\n\t (5) [1960] 3 S.C.R. 91.(6) [1969] 2 S.C.R. 97.\n<\/p>\n
340<\/span><\/p>\n
free conveyance\t of electors  on the  date of  election” and
\ncontained not  only the\t place from  which the electors were
\nconveyed, the  time of\tconveyance, the\t name of the polling
\nstation. The  particulars of The vehicle, but also the names
\nof the\telectors who  were so  conveyed and the names of the
\nworkers and  agents who\t conveyed them.\t The schedule was an
\nintegral part  of the  election petition,  and the  original
\nelection petition  thus contained  what was  required to  be
\nstated by section 83 of the Act, and the amendment was meant
\nto furnish  some further  particulars in  regard to the same
\ncorrupt practice.  It is  therefore futile to contend that a
\nnew corrupt  practice was allowed to be inserted by the High
\nCourt’s order  of amendment.  It may be pointed out that, as
\nwould  appear\tfrom  paragraph\t 12(c)\tof  the\t appellant’s
\noriginal  written   statement  to   the\t unamended  election
\npetition, he  also understood the allegation in the election
\npetition to  mean that it related to the use of the vehicles
\nfor carrying  the electors  to and from the polling stations
\non the\tdate of\t poll. It  will be  recalled that the issues
\nwere framed  on August\t30, 1974,  before the  making of the
\napplication for\t leave to  amend the  election petition, and
\nissue No  2 clearly  raised the\t question whether  appellant
\nBalwan Singh,  or his  workers and  agents with his consent,
\nhired or  procured the\tvehicles for  the free conveyance of
\nthe voters  and whether\t the vehicles  so hired and procured
\n“were used  for the  purpose.” The  appellant was  therefore
\nfully aware  that the  election petitioners has, inter alia,
\nalleged the  user of  the vehicles also, and that was why he
\njoined issue for the trial of that allegation. There is thus
\nno justification for the argument to the contrary.\n<\/p>\n
     We have  already made  a mention of issue No. 2 and the
\nHigh Court’s  finding thereon  in favour  of’  the  election
\npetitioners in\trespect of  tractors No. as UPG 9962 and UTE
\n5865, and  jeep No.  UPW 359,  for the\tfree  conveyance  of
\nelectors to Naubasta, Jaganpur and Tigain` polling stations.
\nMr. Bindra  has challenged that finding and we shall proceed
\nto examine  his arguments in respect of the Naubasta polling
\nstation.\n<\/p>\n
     The  election   petitioners  alleged  in  the  election
\npetition that  the appellant,  his workers,  supporters\t and
\nagents hired and procured the vehicles mentioned in Schedule
\nIII, with  his consent,\t for the free conveyance of electors
\nfrom their  houses to  the polling  stations on\t the date of
\npoll namely.  On  February  26,\t 1974.\tParticulars  of\t the
\ncorrupt practice  were given  in the  schedule. It  was thus
\nstated. in regard to Naubasta polling station, that electors
\nwere conveyed  there from  Bbimpur and\tBasehi villages,  by
\ntractor No.  UPG 9962.\tin a  trolly.  It  was\tspecifically
\nstated that  electors Munshi  Lal (P.W.2O), Ram Swarup (P.W.\n<\/p>\n
13) and\t Misri Lal  (P.W. 13)  of Bhimpur,  and Radhelal and
\nBahulal (P.W.Il)  of Basehi  were thus taken to Naubasta. So
\nalso, it  was stated that some of the workers and agents who
\nconveyed the  electors were Bhavwan Singh (P.W. 11) and Babu
\nSingh of Naubasta, and Maikoo of Bhimpur.\n<\/p>\n
     The appellant pleaded in his written statement that the
\nallegation was “totally incorrect and false,” and that “none
\nof the vehicles men –\n<\/p>\n
341<\/span><\/p>\n
tioned in  Schedule III\t was either procured or hired by the
\nanswering A  respondent or  by any of his workers and agents
\nwith his  consent for the purposes of carrying voters to and
\nfrom the  polling station,  nor any  such vehicles were used
\nfor the purpose of carrying electors to and from the polling
\nstations on  the date  of poll.”  It was not the case of the
\nappellant that\ttractor No.  UPG 9962  was taken to Naubasta
\npolling station\t in some other connection, or that there was
\nno occasion  or question of hiring or procuring it as it was
\nhis own\t property, or that it was otherwise utilised for his
\nelection campaign  or for  some other work. He merely stated
\nthat the  tractor “was\tnot  used  in  connection  with\t the
\nelection.”\n<\/p>\n
     It has  been argued  by Mr.  Bindra  that\tthe  tractor
\nreally belonged to the appellant, and that his wife was only
\na ‘benamidar’  so that there could be no question of “hiring
\nor procuring  it whether on payment or otherwise” within the
\nmeaning of  sub-section (5)  of\t section  123  of  the\tAct.
\nReliance in this connection has been placed on Surinder Nath
\nGautam v. Vidya Sagar Joshi(‘).\n<\/p>\n
     That tractor  No. UPG  9962 belonged to the appellant’s
\nwife Smt. Vimla, has been clearly admitted by him in his own
\nstatement in the High Court. In fact, as has been stated, it
\nwas not\t his case in the written statement that this was not
\nso and\tthat it\t was his  own property and there could be no
\nquestion of  hiring or procuring it. A. U. Siddiqui (P.W.2),
\ntax clerk  of the  office of  R.T.O. Kanpur, has proved that
\nthe tractor  was registered in the name of Smt. Vimla Yadav,
\nwife of\t appellant Balwan  Singh, and  that it\tstood in her
\nname since  May 1, 1971. Balwan Singh’s statement shows that
\nshe was\t an independent\t candidate for\tbeing coopted  as  a
\nmember of  the\tZila  Parishad.\t and  it  appears  from\t the
\nstatement of  Vijay Kumar  Singh (P.  W. 5) that she was her
\nhusband’s counting  agent. It cannot therefore be urged with
\nany justification  that the  tractor which  belonged to her,
\nmust be\t deemed to  belong to her husband, or that it should
\nbe inferred  that she  was a  mere ‘benamidar’ when that was
\nnot the\t appellant’s case anywhere. We must therefore accept
\nit as proved beyond doubt that tractor No. UPG 9962 belonged
\nto the\twife of\t the appellant and was not his own property.
\nThere is  thus no  justification for  contending that  there
\ncould be  no question or occasion for hiring or procuring it
\nas it belonged to the appellant.\n<\/p>\n
     The word  “procure’ has  been defined  in\tthe  Century
\nDictionary to  mean “to obtain, as by request, loan, effort,
\nlabour, or purchase; get; gain, come into possession of.” It
\nhas been  defined in  the Oxford  English Dictionary to mean
\n“to gain, win, get possession of, acquire.” This in our view
\nis the correct meaning of the words as used in sub-s. (5) of
\ns.123 of  the Act.  It would therefore amount to “procuring”
\nthe tractor if it could be shown that the appellant obtained
\nor got\tit or acquired it from his wife. As has been stated.
\nthe tractor  did not  belong to\t the appellant\tand, in that
\nview of\t the matter.  it is  not necessary for us to examine
\nthe correctness of the view taken by the Delhi High Court in
\nSurinder Nath Gautam’s case (supra).\n<\/p>\n
     (1) 35 E.L.R. 129.\n<\/p>\n
342<\/span><\/p>\n
     We shall  now examine  whether tractor No. UPG 9962 was
\nused for  the free  conveyance of any elector to or from the
\nNaubasta polling  station on  the  date\t of  the  poll,\t and
\nwhether it  was hired  or pro  cured for that purpose by the
\nappellant or  his agent\t or by\tany other  person  with\t his
\nconsent.\n<\/p>\n
     As has  been stated,  polling in  the constituency took
\nplace on  February 26,\t1974. It  has been  stated by  Vijay
\nKumar Singh (P.W. S) who was the polling agent of respondent
\nRaghunath Singh,  that he  saw the  workers of the appellant
\nbringing voters to Naubasta polling station in the trolly of
\ntractor No. UPG 9962. The tractor, according to him, carried
\nthe B.K.D. flag and the posters of that party were pasted on
\nthe trolly. When he saw the tractor making the first trip to
\nthe polling  station, he  made\tan  oral  complaint  to\t the
\npresiding officer.  It took some time for him to come out of
\nthe polling  station, and by that time the tractor had gone.
\nBut when  the tractor  came for\t the second  time,  he\tmade
\nwritten complaint  Ex. 4  about it  to Mr. Singh who was the
\npresiding officer,  and he  made an endorsement on it in his
\npresence. The  witness has stated further that the presiding
\nofficer came  out of the polling station and himself saw the
\ntractor as  well as  the persons who got down from it. Those
\npersons, according  to the  witness, were  assisted  by\t the
\nworkers of  the B.K.D.\tin standing  in\t the  queue  at\t the
\npolling booth.\t“Parchis were given to them from the camp of
\nthe B.K.D.  which also\thad that  party’s flag\tand posters.
\nAccording to  Vijay Kumar  Singh, The tractor and the trolly
\nmade only  two trips to the polling station, the second trip
\nbeing at about 3.30 p.m. The witness has stated further that
\nthe presiding  officer made an enquiry on his complaint, and
\nhe must\t have mention  ed the  result of  the enquiry in his
\ndiary. He  has stated further that the presiding officer saw
\nthe tractor  from a  distance of  about 100  paces  and\t the
\nregistration number could be read from that distance.\n<\/p>\n
     The witness  was cross  examined at length, but nothing
\ncould be brought out to discredit his testimony, except that
\nboth the witness and respondent Raghunath Singh were related
\nto one\tShashi Bhushan\tSingh. That  might be the reason why
\nthe witness was appointed as the polling agent of respondent
\nRaghunath  ‘Singh,  but\t that  distant\trelationship  cannot
\njustify the  argument that the witness is unreliable and his
\ntestimony should be rejected for that reason.\n<\/p>\n
     The statement  of vijay  Kumar Singh  has in  fact been
\ncorroborated in\t material particulars by the statement of M.
\nP. Singh  (P.W. 6) who was an employee of the U.P. Institute
\nof Agricultural\t Sciences and  was the\tPresiding officer of
\nthe  Naubasta  polling\tstation.  He  has  stated  that\t the
\naforesaid complaint  Ex. 4  was presented  to him  by  Vijay
\nKumar Singh  on February  25, 1974  at 3.30 p.m. and that he
\nmade an\t endorsement to\t that effect  on the  complaint. The
\ncomplaint Ex.  4 was  in Hindi\tbut it’ is not disputed that
\nits English translation reads as follows:\n<\/p>\n
\t  “It is  submitted that  the workers  of Sri Balwan
\n     Singh have\t brought voters\t in UPG\t 9962 tractor trolly
\n     bearing flag, and the agents of B.K.D. are setting them
\n     in queue. It is
\n343<\/span>
\n     entirely illegal.\tI have already spoken to you in this
\n     connection. But  no action has been taken. Kindly taker
\n     proper action.”<\/p><\/blockquote>\n
     M. P.  Singh has stated that he came out of the polling
\nstation, as the polling agent said that he should see things
\nfor himself,  and also\tbecause he was aware of paragraph 60
\nof the\t“Instruction to\t Presiding officers”  issued by\t the
\nElection Commission  of India.\tThe witness admitted that it
\nwas the\t requirement of\t the instruction  that the Presiding
\nofficer of  the polling station should forward any complaint
\nfiled before  him in  regard to\t the illegal  conveyance  of
\nvoters to  the sub-divisional  and other  magistrate  having
\njurisdiction, with such remarks as he could make on his “own
\nobservation and personal knowledge.” He saw on coming out of
\nthe polling  station that a tractor and trolly were standing
\nat a  distance of  500 or  600\tyards  from  the  polling  .
\nstation. The  witness admitted\tultimately that the “tractor
\nwas standing  near the\tcamp of\t the B.K.D.”,  he “saw\tsome
\npersons getting\t down from  the tractor\t and the trolly” and
\nthat “those  who got  down from\t the tractor were seen by me
\n(him) going  towards the  B.K.D. Camp.”\t It may be mentioned
\nthat the  High Court  allowed the  counsel for\tthe election
\npetitioners to\tcross-examine the  witness as there was some
\ninconsistency in  the statement\t made by  1 him in the Court
\nand the\t report (Ex. 5) made in his diary. We shall refer to
\nthat report  in a while. It was then that the witness stated
\nas follows:\n<\/p>\n
\t  “I had  read the  whole of  the complaint  (Ex. 4)
\n     while going out. Having seen the tractor and the trolly
\n     outside the  polling station  near the  B.K.D. camp and
\n     having seen  the persons  getting down  the tractor and
\n     trolly and\t moving towards\t the camp,  I concluded that
\n     everything contained  in  the  complaint  (Ex.  4)\t was
\n     correct, and it was for this reason that I mentioned in
\n     the report (Ex. 5) that the facts of the complaint were
\n     found to  be correct.  I  stayed  outside\tthe  polling
\n     station for hardly 5 or 6 minutes.”<\/p><\/blockquote>\n
     The witness has therefore corroborated the statement of
\nVijay Kumar  Singh (P.W. 5) in several material particulars.
\nHe has thus stated that (i) complaint Ex. 4 was presented to
\nhim on\tFebruary 26, 1974 at 3.30 p.m. by Vijay Kumar Singh,\n<\/p>\n
(ii) he\t read the  whole of  it, (iii)\the came\t out of\t the
\npolling station\t to see\t for himself  whether the allegation
\nwas correct,  (iv) he  saw that\t the tractor and trolly were
\noutside the  polling  station  near  the  B.K.D.  camp,\t (v)
\npersons were  getting down  the tractor and trolly, and (vi)
\nthey were  moving towards  the camp.  The witness  has\talso
\nstated that  he forwarded  the\tcomplaint  to  the  District
\nElection officer  and that he made report Ex. 5 in his diary
\nto the following effect,-\n<\/p>\n
     “22-Serious complaint made by the candidates.
\n\t  The Congress\tpolling agent made a complaint, that
\n     B.K.D. workers  were conveying  voters to\tthe  polling
\n     station by\t a tractor  and trolly.\t ‘ The\tfact of\t the
\n     complaint were  found to  be correct  and the complaint
\n     forwarded.”\n<\/p><\/blockquote>\n
344<\/span><\/p>\n
M. P.  Singh was cross-examined in regard to the correctness
\nof the\treport, but he was unable to deny its genuineness or
\ncorrectness. His  explanation that he merely concluded after
\nseeing what  he has  stated, that  everything  contained  in
\ncomplaint  Ex.\t4  was\tcorrect,  but  did  not\t notice\t the
\nregistration number  of the tractor and did not see any flag
\nor posters  on the tractor or the B.K.D. agents setting them
\nin queue,  cannot be  accepted because of his statement that
\nhe went\t out of\t the polling  station as  he  considered  it
\nnecessary to  see for  himself whether\tthe  allegation\t was
\ncorrect, and also because of his contemporaneous note in the
\ndiary that  “the facts\tof the\tcomplaint were\tfound to  be
\ncorrect.” We  have therefore  no reason to disagree with the
\nview taken  by the  High Court\tthat the  statement of M. P.
\nSingh and documents Exs. 4 and 5 go to prove the correctness
\nof the statement of Vijay Kumar Singh (P.W. 5).\n<\/p>\n
     Mr. Bindra\t has argued  that M. P. Singh could not have
\nseen-the registration  number  of  the\ttractor\t as  it\t was
\nstanding at  a distance of 500 or 600 yards from the polling
\nstation, and  that there  is no\t reason\t to  disbelieve\t his
\nstatement to  that effect.  It would be sufficient for us to
\nsay in\tthis connection\t that Vijay  Kumar Singh (P.W 5) has
\nstated that  the Presiding officer had seen the tractor from
\na distance  of about  100 paces,  and his  statement to that
\neffect has not been contradicted by any other witness except
\nM. P.  Singh (P.W.  6) who, as has been shown, tried to give
\nan inconsistent\t statement and\twas  allowed  to  be  cross-
\nexamined by an order of the High Court. But even M. P. Singh
\nhas stated  that he saw the tractor standing near the B.K.D.
\ncamp. Section  130  of\tthe  Act  prohibited  canvassing  or
\nexhibiting any\tnotice or  sign within\ta  distance  of\t 100
\nmetres of  the polling station, and Mr. Bindra was unable to
\nrefer us  to any  requirement of  the law  that it  was\t not
\npermissible for\t a candidate  to locate\t his  camp  at\tthat
\ndistance. Moreover,  if it  had not  been possible for M. P.
\nSingh to  see the  registration number\tof the\ttractor,  he
\nwould not  have recorded  in his report Ex. 5 that the facts
\nmentioned in  the  complaint  (Ex.  4)\twere  “found  to  be
\ncorrect.” The  same is\tthe position  in  regard  to  M.  P.
\nSingh’s statement that he did not notice whether the tractor
\nand the\t trolly did or did not carry any flag or posters. It
\nis pertinent  to point\tout  in\t this  connection  that\t the
\ncomplaint (Ex.\t4) of  Vijay Kumar Singh was that workers of
\nthe appellant  had brought the voters in the tractor trolly,
\nand it\twould not  have been  possible for  him to “conclude
\nthat everything\t contained  in\tthe  complaint\tEx.  4)\t was
\ncorrect” if  he had not seen some distinguishing mark on the
\ntractor or  the trolly\tto connect it with the appellant. It
\nhas been  stated by  Vijay Kumar  Singh (P.W.  S)  that\t the
\npersons who  got down  from the tractor trolly went and took
\n“parchis” from\tthe B.K.D. camp outside the polling station.
\nM. P. Singh (P.W. 6) has also stated that those who got down
\nfrom the  tractor were\tseen by him going towards the B.K.D.
\ncamp. It is not the case of the appellant that they were not
\nthe electors  of the constituency. In fact it would not have
\navailed him  or his  workers to bring those who were not the
\nelectors to the polling station.\n<\/p>\n
     The election  petitioners stated  in the  petition that
\nthe names  of some  of the  electors who  were\tconveyed  to
\npolling station Naubasta
\n345<\/span>
\nwere Babu Lal (P.W. 11) and Radhey Lal ‘(P.W. 12) of village
\nA Basehi,  and Ram Swarup (P.W. 13), Misri Lal (R.W. 13) and
\nMunshi Lal  (P.W. 20)  of village  Bhimpur. While  Babu Lal,
\nRadhey Lal,  Ram Swarup and Munshi Lal have been examined by
\nthe election  petitioners, Misri  Lal  (R.W.  13)  has\tbeen
\nexamined by the appellant.\n<\/p>\n
     We have  gone through the statement of these witnesses.
\nBabu Lal (P.W. 11) has stated that a tractor having a trolly
\ncame to\t Basehi on  the date  of poll  carrying the flag and
\nposters of  the B.K.D.\tand that  he travelled\tin it to the
\npolling station along with others including Radhey Lal (P.W.\n<\/p>\n
12), Kunji  Lal, Hira,\tBabbu Prasad and Raghubar Dayal, and
\nthat no\t fare was  demanded, or was paid Voluntarily. Radhey
\nLal (P.W.  12) has  stated much\t to the\t same effect, except
\nthat he\t was  not  asked  to  name  the\t other\tpersons\t who
\ntravelled with him in the trolly. He has however stated that
\nBabu Lal  had gone  with him in the trolly. Nothing has been
\nelicited in  the cross-examination to shake the testimony of
\nthese witnesses.\n<\/p>\n
     We have  also gone through the statements of Ram Swarup
\n(P.W. 13)  and Munshi  Lal (P.W.  20) of Bhimpur. Ram Swarup
\nhas stated  that a  tractor and trolly carrying the flag and
\nposters having the symbol of “Haldhar Kisan” came to Bhimpur
\non the\tdate of\t poll and  that he  and Munshi (P.W. 20) and
\nLallu, Sukhnandan  and his  sons went  in it  to the polling
\nstation to cast their votes and that they were neither asked
\nto pay\tany fare  for travelling  by the tractor to Naubasta
\nnor did they voluntarily pay anything. He has stated that he
\nreturned to  the village in the same tractor, after casting,
\nhis vote.  Munshi Lal (P.W. 20) has deposed much to the same
\neffect, and  he has  stated that  Ram Swarup  (P.W. 13) also
\ntravelled in the tractor trolly along with the other persons
\nnamed by  him. The  statements of  these witnesses  have not
\nbeen shaken in cross-examination.\n<\/p>\n
     As has  been stated, Misri Lal (R.W. 13) was also named
\nin the\tschedule to the election petition as the elector who
\nwas conveyed in the tractor trolly, and he has been examined
\non behalf  of the  appellant. He  has stated that there is a
\ndistance of  2 or  2 1\/2  furlongs between  the\t “abadi”  of
\nBhimpur and  the “abadi”  of Naubasta,\tand that  he went on
\nfoot to\t cast his vote at the polling station. He has stated
\nfurther that  the persons  living at Bhimpur had gone to the
\npolling station\t on foot  and that  it was wrong to say that
\nany tractor  come to  Bhimpur to transport the voters to the
\npolling station.  The appellant\t has admitted  that he\tknew
\nMisri Lal  for 3 or 4 years, and we are unable to think that
\nthe High  Court erred  in rejecting his statement in face of
\nthe other evidence to which reference has been made above.\n<\/p>\n
     It was  specifically stated  in  Schedule\tIII  of\t the
\nelection petition that Bhagwan Singh (R.W.ll) and Babu Singh
\nof Naubasta,  and Maikoo  of Bhimpur  were the\tworkers\t and
\nagents of  the appellant  who conveyed\tthe electors  to the
\nNaubasta polling  station. Of  these only  one Bhagwan Singh
\n(R.W.ll) has been examined on behalf of Balwan Singh. He has
\nstated that it was wrong to say that he, Maikoo and
\n346<\/span>
\nBabu Singh brought any’voters in tractor trolly from Bhimpur
\nto Naubasta, or that he got any “parchis” distributed to any
\nvoters in  the queue  at the  polling  station.\t It  may  be
\nmentioned that\tthe election  petitioners made it clear that
\nBhagwan\t Singh\twas  Bhagwan  Singh  Thakur.  Bhagwan  Singh
\n(R.W.ll) has admitted that there r was another Bhagwan Singh
\nin his\tvillage. He has stated that he did not see appellant
\nBalwan Singh  during the  election, in\this village, that he
\nhad put\t the flag  and poster  of the  Congress party at his
\nhouse and  that he  and his  sons worked for the Congress in
\nthe election. As against this, the appellant has stated that
\nhe did\tgo to  Naubasta and  talked to\tThakur Bhagwan Singh
\nthere who  was a  sympathiser of B.K.D. It therefore appears
\nthat Bhagwan  Singh (R.W.ll) cannot be said to be the worker
\nnamed in  the Schedule\tof the\tpetition,  and\tnothing\t can
\npossibly turn on what he has stated.\n<\/p>\n
     It will  be recalled that Vijay Kumar Singh (P.W.5) who
\nwas the\t polling agent of the Congress candidate at Naubasta
\nhad stated  in the  trial court\t that he had made an oral as
\nwell as\t a written  complaint about the conveyance of voters
\nby the\tworkers of  the appellant, to the Presiding officer.
\nThe appellant  also  appointed\this  polling  agent  at\t the
\npolling station,  but he has not examined him in rebuttal of
\nVijay Kumar Singh’s statement to that effect.\n<\/p>\n
     We have  gone through the other evidence which has been
\nled by\tway of\trebuttal of the allegation regarding the use
\nof tractor  No. UPG  9962 for  the conveyance of electors to
\nNaubasta polling  station. We  have already  dealt with\t the
\nstatements of Bhagwan Singh (R.W. 11) and Misri Lal (R.W.13)
\nand  have   given  our\t reasons  for\trejecting  them\t  as
\nunsatisfactory. The  remaining witnesses, to whose testimony
\nour attention  has been invited by Mr. Bindra, are Vijai Pal
\nSingh (R.W.14)\tand appellant  Balwan Singh  (R.W.34). Vijai
\nPal Singh  is a self-condemned witness for whereas he stated
\nthat  he  was  the  polling  agent  of\tAyodhya\t Prasad\t who
\ncontested the  election as  a Congress (o) candidate and did
\nnot see\t any tractor  trolly conveying\tvoters\tto  Naubasta
\npolling station\t although he remained present at the polling
\nstation, he admitted under cross-examination that he was not
\na polling agent at the Naubasta polling station and had made
\na false\t statement to that effect. In so far as Balwan Singh
\n(R.W.34) is  concerned, it will be sufficient to say that he
\nhas admitted  that he  did not go to Naubasta on the date of
\nthe poll.  He could  not therefore  disprove the evidence of
\nthe election  petitioners in  regard to\t the alleged corrupt
\npractice. He  once ventured to state that he came to know on
\nthe “next  day after  polling that (his) tractor had gone to
\nthe National  Sugar Institute”\tfor transporting  “seta” and
\n“patwar”, but he qualified that statement by saying that the
\ntractor may have been sent there by his wife and that “seta”
\nand “patwar”  were obtained  before February  26,  1974.  An
\nattempt was made to examine Iqbal Bahadur Dwivedi along with
\nthe original gate pass of the Institute, but it was given up
\nby Balwan  Singh.  He  cannot  therefore  be  said  to\thave
\nrebutted the evidence of the election petitioners. It may be
\nmentioned in  this connection  that although  the  important
\nrole of\t conveying voters  to Naubasta\tpolling station\t had
\nbeen assigned to Babu
\n347<\/span>
\nSingh and  Maikoo in  the election  petition, they  were not
\nexamined in defence.\n<\/p>\n
     It may be mentioned that some witnesses of the election
\npetitioners, namely,  Babu Lal (P.W.II), Ram Swarup (P.W.13)
\nand Munshi Lal (P.W.20) named certain persons who, according
\nto them, travelled with them to the polling station Naubasta
\nfree of\t cost. Most  of those  persons were  summoned at the
\ninstance of  the  appellant,  but  they\t were  not  examined
\nultimately, and were given up.\n<\/p>\n
     The election  petitioners have  also  led\tevidence  to
\nprove that tractor UPG 9962 was procured by appellant Balwan
\nSingh himself  for the\tconveyance of  the electors  to\t the
\nNaubasta polling  station. Amarpal Singh (P.W.33) has stated
\nin this connection that he held a diploma in motor mechanism
\nand was\t running a repairing shop at Rawatpur for motors and
\ntractors. The appellant was known to him and asked him to do
\nthe repair  work of  the vehicles  at the  B.K.D. office  at
\nRania for  Rs. 25\/-  per day.  He has stated further that he
\nwent to\t Rania and  worked there for 12 days. One day before
\npolling, the  tractor of  the appellant was brought to Rania
\nas it  had developed  some defects. Balwan Singh’s wife Smt.
\nVimla and  his driver  were present  when he  was working on
\nthat  tractor.\t Ram  Swarup  Sharma,  Babu  Singh  and\t the
\nappellant came\tthere at  that time  and the appellant asked
\nthe witness  to complete  the repairing\t work  as  early  as
\npossible, and  he asked\t Smt. Vimla  to send  the tractor to
\nNaubasta with  Babu Singh  for transporting  voters. Witness
\nhas stated  further that  his partner  Ramesh was present at
\nthat time. Ram Swarup Sharma is dead. Appellant Balwan Singh
\ncited Babu  Singh as  a defence witness, but gave him up. He
\ndid not examine Ramesh. Uma Shankar (R.W.24) was examined to
\nprove that the appellant did not have any election office at
\nthe house  of Ram  Swarup in  Rania and\t no vehicle  of the-
\nappellant was repaired there, but he has not stated anything
\nabout Amarpal Singh, and it is difficult to place – reliance
\non his statement as he was admittedly a worker of the B.K.D.
\nparty in  Rania. Rania,\t according to  the  witness,  had  a
\npopulation of  some 3500  persons and  it  is  difficult  to
\nbelieve\t that\tthe  appellant\thad  no\t office\t there.\t The
\nappellant recorded  his own  statement to  the effect, inter
\nalia, that he did not employ Amarpal Singh for repairing any
\nvehicle and  did not  give any instruction that Babu Singh –
\nshould take  the tractor  for transporting voters. No reason
\nhas how\t ever been  assigned why  Amarpal Singh\t should have
\ntried to  implicate the\t appellant falsely.  The trial Judge
\nhas placed  reliance on\t his statement, and we see no reason
\nfor taking a different view.\n<\/p>\n
     Tractor UPG  9962 belonged to the appellant’s wife Smt.
\nVimla, and  it was  alleged from  the very inception, in the
\ncontemporaneous report\tEx. 4, that it had been used for the
\nconveyance of  electors, some  of whom\twere  named  in\t the
\nSchedule to  the election  petition along  with the names of
\nthe workers  and agents\t who utilised  the tractor  for\t the
\nwork. It  could be  expected of\t the appellant that he would
\ngive satisfactory  particulars and  details about  any other
\nuse of\tthe tractor  on the  date of  the poll\tif that\t was
\nwithin his special knowledge, but he has not done so. On the
\nother hand, as has been
\n348<\/span>
\nshown, his  attempt to\tprove that the tractor had been sent
\nto the National Sugar Institute met with dismal failure. His
\nwife Smt.  Vimla did  not even\tappear as  a witness  and no
\nattempt was  made even\tto examine the driver of the tractor
\nalthough the  appellant has stated that tractor UPG 9962 was
\ndriven by a driver whose name was Rangilal.\n<\/p>\n
     It is not always possible for an election petitioner to
\nadduce direct  evidence to  prove that\ta particular vehicle
\nwas hired  or procured\tby the\tcandidate or his agent or by
\nany other  person with\tthe consent  of the candidate or his
\nelection agent,\t but this  can be inferred from . the proved
\ncircumstances where such inference is justifiable. Reference
\nin this\t connection may\t be made  to the  decisions of\tthis
\nCourt in  Bhagwan Datta\t Shastri v.  Badri Narayan Singh and
\nothers(1) and  Shri Umed  v. Raj Singh and others<\/a>(2). In the
\npresent case,  it has  been proved  by\tclear  and  reliable
\nevidence that  tractor UPG  9962 was used for the conveyance
\nof electors  to and  from the Naubasta 1′ a polling station,
\nand r  that it\twas so used by the workers of the appellant.
\nThen there is the further fact that the voters were conveyed
\nfree of\t cost. It  has also  been proved  that\tthe  tractor
\nbelonged to the appellant’s wife and he could not succeed in
\nhis effort  to prove  that it was used elsewhere or for some
\nother purpose. In these facts and circumstances, it would be
\nquite permissible to draw the inference that the tractor had
\nbeen procured,\tby the\tappellant for the free conveyance of
\nthe electors.\n<\/p>\n
     For the  reasons mentioned above, we have no doubt that
\nthe finding  of the  High Court\t that appellant Balwan Singh
\nprocured `tractor  No. UPG  9962 with  trolly and  that they
\nwere used  for the purpose of transporting the voters to the
\nNaubasta polling station, and he thereby committed a corrupt
\npractice within\t the meaning of’ section 123(5) of the Acts.
\nis correct  and must  be upheld. In view of this categorical
\nfinding it is not necessary for us to examine the allegation
\nregarding the  hiring or  procuring of\ttractor No. UTE 5865
\nand jeep  No. UPW 359 for the free conveyance of electors to
\ntwo other polling stations.\n<\/p>\n
     It may  be mentioned  that in  arriving  at  the  above
\nfinding we  have ”  taken due note of the view expressed by
\nthis  Court  in\t Ram  Awadesh  Singh  v.  Sumitra  Devi\t and
\nothers<\/a>(8) in  regard to\t the generation of factious feelings
\nduring\telections  and\ttheir  continuance  even  after\t the
\nelection enabling  the parties\tto produce a large number of
\nwitnesses some\tof whom\t may be seemingly disinterested, and
\nthe view  expressed in\tRahim Khan  v.\tKhurshid  Ahmed\t and
\nothers<\/a>(4) that\tan election  once held should not be treated
\nin a  light-hearted manner  and’ the  court should insist on
\nclear and  cogent testimony  compelling\t it  to\t uphold\t the
\ncorrupt practice  alleged against the returned candidate. So
\nalso, we  have noticed\tthe view expressed in Baburao Ragaji
\nKarem ore  and others v. Govind and others(5) that the Court
\nshould
\n     (1) A.I.R. 1960 S.C. 200.\t    (2) A.I.R. 1975 S.C. 43.
\n     (3) [1972] 2 S.C.R. 674.\t       (4) 19751 S.C.R. 643.
\n\t\t  (5) [1974] 2 S.C.R. 429.\n<\/p>\n
349<\/span><\/p>\n
examine the  evidence having  regard to\t the fact that where
\nthe electorate\thas chosen  their candidate  at an election,
\ntheir choice  ought not\t to be\tlightly upset.\tWe have also
\ntaken notice  of the  view expressed  by Ray  C.J.  in\tSmt.
\nIndira Nehru  Gandhi v.\t Raj Narain<\/a>(1)\tthat in\t an election
\ncontest it  is the public interest, not the parties’ claims,
\nwhich is  the  paramount  concern.  Mr.\t Bindra\t has  placed
\nconsider ”  able reliance  on these  decisions. But,  as has
\nbeen shown,  the finding  of the  High Court  regarding\t the
\naforesaid corrupt  practice is\tbased on  clear, cogent\t and
\nconvincing  evidence  and  there  is  no  justification\t for
\ninterfering with it.\n<\/p>\n
     Mr. Bindra\t has laid  much stress\ton the fact that the
\nappellant  was\tsuccessful  at\tthe  election  to  the\tU.P.
\nLegislative Assembly  from another constituency in 1957, but
\nhis election was set aside on the round, inter alia, that he
\nand\/or his  election agent  and\/or other  persons  with\t his
\nconsent,  had  committed  corrupt  practice,  including\t the
\ncorrupt practice  of hiring  a tractor for the conveyance of
\nelectors. He  has  argued  that\t in  view  of  this  Court’s
\ndecision against  him in Balwan Singh v. Shri Lakshmi Narain
\nand others<\/a> (supra) he could not possibly have taken the risk
\nof  committing\tanother\t similar  corrupt  practice  at\t the
\nelection  in   question.  The  argument\t is  based  on\tmere
\nconjecture and\tcannot disprove\t or rebut  the clear, cogent
\nand reliable  evidence on  which the appellant has been held
\nguilty of committing the corrupt practice in this case.\n<\/p>\n
     Mr. Bindra\t tried to  argue further that the High Court
\ncommitted an  illegality in  setting aside  the\t appellant’s
\nelection without finding that the result of the election had
\nbeen  materially   affected   thereby.\t The   argument\t  is
\nmisconceived, for  it is  not  the  requirement\t of  section
\n100(1) (b)  which has  been found  to be  applicable to\t the
\ncorrupt practice  in question,\tthat the  High Court  should
\ndeclare the  election of  the returned\tcandidate to be void
\nonly if\t the result  of the  election has  r been materially
\naffected by it.\n<\/p>\n
     Another argument  of Mr.  Bindra was  that the  corrupt
\npractice in  question should not have been found to have ben
\ncommitted  as  the  election  petitioners  did\tnot  examine
\nthemselves during the course of the trial in the High Court.
\nThere was  however no  such  obligation\t on  them,  and\t the
\nevidence which the election petitioners were able to produce
\nat the\ttrial could  not have  been rejected  for  any\tsuch
\nfanciful reason\t when there  was nothing  to show  that\t the
\nelection petitioners  were able\t to give  useful evidence to
\ntheir personal knowledge but stayed away purposely.\n<\/p>\n
     In the  result, the  appeal (Civil\t Appeal No.  775  of
\n1975) filed  by Balwan\tSingh fails  and is  dismissed\twith
\ncosts. The  cross-appeal (Civil\t Appeal No. 1107 of 1975) is
\ndismissed as  not pressed,  but without\t any order as to the
\ncosts.\n<\/p>\n
P.B.R.\t\t\t\t\t   Appeal dismissed.\n(1) A.I.R. 1975 S.C. 299.\n8-L522SCI\/76\n350<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Balwan Singh vs Prakash Chand & … on 4 February, 1976 Equivalent citations: 1976 AIR 1187, 1976 SCR (3) 335 Author: P Shingal Bench: Shingal, P.N. PETITIONER: BALWAN SINGH Vs. RESPONDENT: PRAKASH CHAND & OTHERS(Vice-Versa) DATE OF JUDGMENT04\/02\/1976 BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. GOSWAMI, P.K. CITATION: 1976 AIR 1187 1976 […]<\/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-26510","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBalwan Singh vs Prakash Chand & ... on 4 February, 1976 - 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\/balwan-singh-vs-prakash-chand-on-4-february-1976\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Balwan Singh vs Prakash Chand & ... on 4 February, 1976 - 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