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Nani Gopal Swami Vs. Abdul Hamid Choudhury and anr. - Court Judgment

LegalCrystal Citation
CourtGuwahati High Court
Decided On
Case NumberFirst Appeal No. 12 of 1958
ActsCode of Civil Procedure (CPC) , 1908 - Sections 107; Representation of the People Act, 1951 - Sections 99, 100, 100(2), 123, 123(1), 123(2) and 123(3); Contract Act, 1872 - Sections 182; Evidence Act, 1872 - Sections 5 and 32(3)
AppellantNani Gopal Swami
RespondentAbdul Hamid Choudhury and anr.
Appellant AdvocateH. Goswami, D. Pathak and B.M. Goswami, Advs.
Respondent AdvocateS.K. Ghose, K.P. Bhattacharjee and J.P. Bhattacharjee, Advs.
DispositionAppeal allowed
- - shri aklakur rahaman choudhury, who is another unsuccessful candidate, is the second respondent to the petition. on appeal this court would be naturally slow to interfere with findings, which depend on an appreciation of the evidence on record, unless this court is satisfied that the findings are manifestly erroneous or, not justified on a correct assessment of facts, and proceed rather on a superficial view of the evidence adduced by the parties. as abdul bari in this case is not alleged to be an election agent, but merely an agent of the respondent, it is argued that the court will have to see whether the act complained of against abdul bari, if it is found to be true, was a corrupt act done with the consent or at the instance of the respondent abdul hamid choudhury. here again,..... sarjoo prosad, c.j. 1. this appeal is directed against an order dated the 25th march, 1958, passed by the election tribunal, presided over by sri s.k. dutta, district and sessions judge of cachar. 2. it relates to an election held on the 2nd march 1957, for the assam legislative assembly from the south karimganj constituency. the results of the voting were announced on the following day and the respondent no. 1, abdul hamid choudhury was declared elected. the appellant before us, who was a rival candidate, then presented a petition for setting aside the election. shri aklakur rahaman choudhury, who is another unsuccessful candidate, is the second respondent to the petition. it appears that the communist party, the praja socialist party and a local party known as the progressive.....

Sarjoo Prosad, C.J.

1. This appeal is directed against an order dated the 25th March, 1958, passed by the Election Tribunal, presided over by Sri S.K. Dutta, District and Sessions Judge of Cachar.

2. It relates to an election held on the 2nd March 1957, for the Assam Legislative Assembly from the South Karimganj constituency. The results of the voting were announced on the following day and the respondent No. 1, Abdul Hamid Choudhury was declared elected. The appellant before us, who was a rival candidate, then presented a petition for setting aside the election. Shri Aklakur Rahaman Choudhury, who is another unsuccessful candidate, is the second respondent to the petition. It appears that the Communist Party, the Praja Socialist Party and a local party known as the Progressive Congress Party, formed an alliance, known as the Leftist Front, in opposition to the Congress at the time of the election.

The candidature of the petitioner-appellant was sponsored by this Leftist Front; while Sri Abdul Hamid Choudhury, the first respondent, was set up as a Congress candidate. Aklakur Rahaman Choudhury did not belong to any particular party and contested the election as an independent candidate. The results of the poll showed that Abdul Hamid Choudhury secured 13402 votes, Nani Gopal Swami, the petitioner, 11382 votes and Aklakur Rahaman Choudhury, the independent candidate 749 votes only. The election of the first respondent is now challenged on various grounds. It is not necessary to refer to those, which were not pressed either before the Tribunal or before this Court.

The petitioner has canvassed substantially only three of the charges of corruption specified in Sub-paras (a), (b), (c) and (f) of paragraph 6 and also paragraph 8 of his petition. The basis of the first charge is that one Abdul Bari, a teacher of the local L.P. School of village Durlabpur and an agent of Abdul Hamid Choudhury, was caught red handed in possession of 17 ballot papers issued to different voters on the date of the poll. The case of the petitioner in this context is that three persons, Kashinath Nath, Kanai Nath and Sukcharan Nath, all of village Durlabpur, were also those voters whose papers had been taken over by Abdul Bari; they deposed before the Presiding Officer for the Mocaichand L.P. School Polling Booth that they were to have cast their votes in the above polling centre, but Abdul Bari prevented them from doing so and asked them to hand over the ballot papers to him on promise to pay Re. 1/- for each ballot paper so delivered.

These ballot papers, according to the petitioner, were secured by corrupt means seeking to prevent the electors from voting. Secondly, it was alleged that the respondent Abdul Hamid Choudhury had declared a 'jehad' amongst his Muslim community and spoke in various meetings that the impending election was a religious war for the Muslims against the petitioner, a Hindu candidate, and if the Muslims did not vote for him in the election, it would be contrary to Islamic religion and would amount to the act of a heathen or an apostate (katir).

It was further alleged that in the meetings it was falsely given, out by the respondent Abdul Hamid Choudhury that the independent Muslim candidate, the second respondent, was a mere creature of the petitioner and set up with a view to divide the Muslim voters. Thirdly, the petitioner submitted that an article appeared in a weekly paper 'Navashakti' dated the 20th February, 1957, published by the Congress Organisation at Karimganj under the caption 'Musalman Husiar', 'Bampanthidaler Parikalpana'.

It is said that this article was published at the instance of the Congress Party and constituted corrupt practice on the part of the respondent, Abdul Hamid Choudhury, who was a Congress candidate. According to the petitioner, all the corrupt practices referred to above, were resorted to by the elected candidate, Abdul Hamid Choudhury himself and/or with his consent by his agents and other persons. Respondent Abdul Hamid Choudhury in his written statement totally denied these allegations. He denied that Abdul Bari was his agent or canvassed for him. He denied that Abdul Bari ever got hold of any ballot paper as alleged or that he did so with his consent.

He also denied having carried on any such religious propaganda or addressed any meetings or having given his consent to any such publication as stated by the petitioner. On the above pleadings, the Tribunal framed various issues and answered all of them in favour of the returned candidate Abdul Hamid Choudhury and by its order in question dismissed the election petition with costs. The petitioner has, therefore, preferred this appeal.

3. I shall take up the first two issues together which have a bearing on the allegations contained in Sub-paras (a), (b) and (c) of para 6 of the petition. The issues relate to the question whether Abdul Bari was found in possession of the ballot papers details whereof are given in the petition; and whether he got possession of the papers on the promise of a bribe to the electors concerned with a view to prevent them from voting; and if so, whether the act amounted to a corrupt practice so as to affect the election of the first respondent. The answer to the issues involves the determination of three-fold questions: (1) whether Abdul Bari has been proved to be an agent of Abdul Hamid Choudhury and canvassed in support of his election; (2) whether on the date of the election, he was actually found in possession of the ballot papers in question, having secured those papers from the electors concerned on promise of payment of bribe; and (3) whether Abdul Bari did all this with the consent, express or implied, of the returned candidate Abdul Hamid Choudhury and in furtherance of his election or otherwise. As I said, on all these points the Tribunal found against the petitioner. On appeal this Court would be naturally slow to interfere with findings, which depend on an appreciation of the evidence on record, unless this Court is satisfied that the findings are manifestly erroneous or, not justified on a correct assessment of facts, and proceed rather on a superficial view of the evidence adduced by the parties.

4. The expression 'agent' has been defined in Explanation (1) to Section 123 of the Representation of the People Act, 1951 (hereinafter called the Act). It includes an election agent, a polling agent and any person, who is held to have acted as an agent in connection with the election with the consent of the candidate. For the purposes of the Act, the expression 'agent' has a much wider connotation than it is ordinarily understood to have under the law of contract.

Anybody, who acts in furtherance of the prospects of the candidate's election may be said to be an agent of the candidate concerned, provided he does so with the consent of the candidate. This consent may not be necessarily an express consent and no written document is necessary. It may be gathered and implied from the circumstances of the case. Under the Act, an 'agent' includes not only a person, who has been specifically engaged by the candidate or his election agent to work for him in the election, but also a person, who does in fact work for him and whose services have been accepted by the candidate.

Thus an association of persons or a society or a political party and its prominent members, who set up the candidate, sponser his cause and work to promote his election, may be aptly called the 'agent' of the candidate for election purposes. If it is found that the person concerned was merely an officious intermeddler in the election or a mere volunteer, then of course the candidate cannot be said to have any responsibility for his action, even though the person may have acted for the candidate's benefit and with a view to advance his interest in the election.

It will, therefore, have to be seen if Abdul Bari was acting in furtherance of the prospect of the erection of the returned candidate, Abdul Hamid Choudhury, and with his consent, express or implied; and if he actually resorted to the corrupt practice, as alleged in the petition. One of the corrupt practices mentioned in Section 123(1) of the Act is bribery, that is to say, any gift, offer or promise by a candidate or his agent or by any other person of any gratification to any person whomsoever, with the object directly or indirectly of inducing any elector to vote or refrain from voting at any election. This section has to be read along with Section 100 of the Act, which specifies the grounds on which any election should be declared to be void.

Section 100 provides that where a corrupt practice has been resorted to by a returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent, the Tribunal shall declare the election of the returned candidate to be void. As Abdul Bari in this case is not alleged to be an election agent, but merely an agent of the respondent, it is argued that the Court will have to see whether the act complained of against Abdul Bari, if it is found to be true, was a corrupt act done with the consent or at the instance of the respondent Abdul Hamid Choudhury. Reliance has been placed on the language of section 100, Sub-section (1), Clause (b) of the Act.

Direct evidence of consent of the candidate to a corrupt act done by his agent in most cases may not be available; and for obvious reasons, it would be unwise to insist upon the production of direct evidence in every case. Here again, the consent of the candidate to the act complained of or to his acceptance thereof has to be inferred from the facts and circumstances proved in the case, In my opinion, where the corrupt practice is attributed to an 'agent' and not to 'any other person' as provided in Sub-section (1), Clause (b) of Section 100, the case strictly falls under Sub-section (2) of the section.

It is common knowledge that in elections many strangers start taking interest, who have directly no concern with the candidates or their election agents and have never been asked to do anything on their behalf in furtherance of their election. Such persons are in the position of mere intermeddlers or sympathisers and the candidate or his election agent will have no responsibility for anything done by them, even if the act is done with a view to advance the prospect of the candidate's election or results in some advantage to him, unless it is shown that the candidate or his election agent had given his express or implied consent to the act in question or had knowingly taken the benefit of his conduct at the time.

The case, however, of an 'agent', who has been proved to be regularly working for the candidate during the election, stands on a somewhat different footing. In his case, approval or consent to any act done by him to promote the candidate's election is implied. Where, therefore, corrupt practice in the coarse of the election proceedings is attributed to an 'agent', it raises a strong presumption that it was done at the instance or with the express or implied consent of the candidate himself. The candidate is himself vicariously responsible for the act and conduct of his 'agent' during the election. The language of Sub-section (2) of Section 100 strengthens the above inference.

This sub-section assumes that the returned candidate himself is guilty of the corrupt practice done by an 'agent' unless he satisfies the Tribunal about the conditions mentioned in any of the clauses of that sub-section, in order to escape the guilt; in which case the Tribunal may decide that the election was not void. One of the conditions in Subsection (2) is that the candidate is to satisfy the Tribunal that the questionable practice of his agent was contrary to his orders and without his consent or that of his election agent.

In such a case, the burden is thrown on the candidate to prove the want of consent and the act being done by the agent contrary to orders; in the case of an isolated act done by any other person, the burden lies on the person alleging corrupt practice to prove that it was done with the candidate's consent or that of his election agent. The opening words of Sub-section (2) are,

'If.... ....a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice.......'

This appears to me a cogent and natural interpretation of the provisions contained in the different subsections of Section 100 of the Act. The observations of this Court in Khagendranath v. Umesh Chandra Nath AIR 1958 Assam 183, do not lay down any different legal proposition.

In that case, although we set aside the order of the Election Tribunal on a different ground, we appeared to agree with the Tribunal on certain points that on the evidence adduced by the parties, the returned candidate was not proved to have been guilty of the corrupt practice attributed to his agent or other persons. The decision on those points rests upon the facts found in that case; and there the candidate also led evidence to show that he could not be held responsible for the acts of his alleged agents. Bearing in mind the above principles, I may now examine the evidence on the point of agency and the corrupt practice attributed to Abdul Bari.

5. The evidence shows that Abdul Bari was a resident of Durlabpur and a teacher in the L.P. School run under the control of the Karimganj School Board. He also appears to have been a nominated member of the Karimganj Municipal Board since before the date of the election and a member of the Congress Election Committee at Suprakandi. The rules of the School Board, as observed by the Tribunal, prohibit a teacher working in the schools subordinate to it from taking part or canvassing in any political election. One would have expected, therefore, as the Tribunal also opines, that Abdul Bari, being a teacher in the L.P. School would not take part in the elections. The facts disclosed in this case show otherwise.

The evidence shows that Abdul Bari did take part in canvassing on behalf of the Congress nominee, the respondent Abdul Hamid Choudhury, and even avoided serving as a polling officer of the pretext of illness, in order to be able to work for the respondent. Exhibit 1 is an order dated 13-2-1957 appointing Abdul Bari a polling officer in Bhegisigi Boys' L. P. School centre and asking him to report, there for duty, the date of poll being 2-3-1957. Abdul Bari sent a petition (Ext. 2) dated the 1st March, 1957, to the Returning Officer, Karimganj, in which he slated that since 28-2-1957 he had been ill and was not in a position to move about; for which reason, he pleaded inability to be present at the polling station on that date, and prayed that some other person be appointed.

That this illness was a mere pretence is clearly established by subsequent events. In this connection, reference may be at once made to two reports submitted by the Presiding Officer, who conducted the election at Macaichand L. P. School centre on 2-3-1957. Both the reports were made on the date of the election and are addressed by the Presiding Officer, Sri G.P. Bora (P. W. 17) to the Returning Officer (P. W. 36), who was also the then Sub-divisional Officer of Karimganj. In one of the reports (Ext. 3) relating to the general conduct of the election, the Officer reported that in the afternoon that day, one Gopesh Namasudra (P. W. 22) produced before him one Abdul Bail with 17 ballot papers for the Legislative Assembly section, after those ballot papers had been issued to different voters; the man was immediately arrested and handed over to the Police along with a separate report of the incident and the ballot papers were treated as cancelled.

The Presiding Officer put the ballot papers recovered from the possession of Abdul Bari the same day in a sealed envelope addressed to the Returning Officer (vide Ext. 4). In the second report (Ext. 14), the Returning Officer mentioned the details of the 17 ballot papers found in possession of Abdul Bari of Durlabpur and again reiterated the fact that the man with the ballot papers, who was produced by Gopesh Namasudra, had been handed over to the Police. These documents have been duly proved by the Presiding Officer, Sri G.P. Bora. The numbers of the ballot papers recovered are the same as those specified in the election petition filed in this case; and three of the ballot papers were those, which were issued to Kashinath Nath, Kanai Nath and Sukcharan Nath of village Durlabpur. The Officer has proved that ballot papers issued to Kashinath Nath and Kanai Nath bore electoral numbers 8466 and 8455 respectively, while that issued to Sukcharan Nath bore number 8456.

All these voters belonged to Durlabpur where Abdul Bari also resided. Sri Bora is definite that the ballot papers were in the hand of Abdul Bari, when he was produced before him and that they were not produced by Gopesh Namasudra. These documents prove beyond any shadow of doubt that although Abdul Bad feigned illness pleading that he was unable to move about, in order to be exempted from working as a polling officer at another polling centre, yet in fact, he was present at the Macaichand polling booth and that ballot papers were recovered from his possession. Sri G.P. Bora, the Presiding Officer, has also deposed about the procedure followed in the election at the time of voting.

He says that when an elector arrived, his identity was verified by polling officers, who sat near the gate of the cordoned area; the polling officer would verily from the electoral roll if his name appeared there and then gave a slip containing his number in the electoral roll; armed with the slip the voter would go inside the room and he would be given a ballot paper by another polling officer, who would record the number of the ballot paper issued against his name in the electoral roll; the same officer would also put a mark with marking ink on the left index finger of the voter to show that he had voted; with the ballot paper in hand, the voter was finally allowed to go inside the enclosure to put his vote in the ballot box; after the above process was over, the voter would go out and would leave the polling area.

What the voter did inside the enclosure, whether he actually cast his vote or went out with the ballot paper secreted on his person, was not easy to detect. It was thus clear that the ballot papers recovered had been issued out to different voters. Sri Bora further says that Abdul Bari also handed over to him a written explanation of the incidents and that explanation was also forwarded to the Returning Officer. The fact that the above reports of Sri G.P. Bora were submitted in due course of official business is further supported by the evidence of the Returning Officer, Sri R.K. Srivastava (P. W. 36), who received the reports.

The Presiding Officer further recorded the statements of the three voters mentioned above, who were produced before him that day. These statements are Exhibits 12, 13 and 16 respectively. On this evidence, there could be no doubt about the case of the petitioner that ballot papers issued to various candidates, including the three voters aforesaid, were found in possession of Abdul Bari, who, on the date of the election was produced before the Presiding Officer along with the ballot papers by Gopesh Namasudra and others and later handed over to the Police; and that on the same date, the three voters also were produced before this officer whose statements were recorded by the latter.

These are unimpeachable materials, in the light of which the Tribunal should have proceeded to examine the evidence of Gopesh Namasudra and the other witnesses on the point who, even though interested, were competent to depose about the events, which happened. The Tribunal was in error in not attaching any weight to their evidence merely on account of their interested character or because of some small discrepancy in their narration of the facts, which was both natural and inevitable. I would, therefore, briefly refer now to their evidence to see how far it can be accepted.

6. Gopesh Namasudra (P.W. 22) is a member of the Assam Legislative Assembly and was returned in the last elections from Patharkandi constituency in the Karimganj sub-division. The polling in Patharkandi constituency was held earlier on 25-2-1957. He appears to have been set up by the Communist Party and was a member of the United Leftist Opposition. He says that on the date of polling of the Karimganj South constituency on 2-3-1957, he was working for the petitioner. In the afternoon, he noticed a few people going from the camp of the respondent No. 1 towards the polling booth with chits.

They returned to the camp after entering the polling booth. Abdul Bari, Master, who was also in the respondent's camp, then took these people to the north east of the camp at a secluded place about thirty or forty cubits away. This aroused his suspicion and the witness asked Jogesh Podder (P. W. 32) and Jyotirmoy Adhikari (P. W. 27) to keep an eye on the people going that side. At about 3 p.m. Jogesh Podder suddenly shouted that Abdul Bari had been purchasing votes. The witness then rushed and caught Abdul Bari, who had some ballot papers in his hand. As soon as he caught hold of him, Abdul Bari threw the ballot papers on the ground and took out some more ballot papers from his pocket and threw them on the ground; but when the witness threatened Abdul Bari, he picked up the ballot papers.

In the meantime, the three people who were near Abdul Bari ran away and the witness shouted for their capture when Jogesh Podder and Jyotirmoy Adhikari and others chased them. The witness then took Abdul Bari to the polling booth where he handed him over to the Presiding Officer. He also admits that a report was submitted to the Presiding Officer (Ext. 11), which bears his initial. The report substantially corroborates the witness. It is stated therein that Jogesh Podder of Karimganj Bazaar seeing Abdul Ban purchasing ballot papers from the voters shouted at the top of his voice and then he with some others ran over to the place and caught hold of Abdul Bari with the ballot papers almost at once.

It is also stated therein that when Abdul Bari was caught, he threw the ballot papers on the ground and the voters selling the ballot papers wanted to flee away, but were seized by the crowd and produced before the officer for necessary action. The statement of the witness that it was Abdul Bari. who made over the ballot papers to the Presiding Officer, when Abdul Bari was produced before him, is fully supported by the evidence of the Presiding Officer himself. This shows that although in the first flush Abdul Bari may have attempted to throw down the ballot papers, but when he found he could not escape, he later picked them up and delivered them to the Presiding Officer with his own explanation of the matter, to which at present I need not refer.

There is, therefore, no point in the suggestion that in the report it is not stated that although the ballot papers had been thrown down by Abdul Bari, those were later picked up by him. The witness has further explained that the numbers of the ballot papers could not be mentioned by him in his report, because at the time he did not know the numbers. This is quite a reasonable explanation and in view of the report (Ext. 14J submitted by the Returning Officer himself the same day, which gives all the numbers of the voting papers recovered from Abdul Bari, the omission thereof in the report of Gopesh Namusudra was not only natural, but immaterial.

Nor was it necessary for Gopesh Namasudra to mention in his report the name of Abdul Hamid Choudhury, when the respondent was not present at the time. If he had done so the report would have been tendencious and open to grave suspicion. Much has been made of some inconsistency in the evidence as to the point of time when the fleeing voters were caught and produced before the Presiding Officer. The fact, however, remains that these voters were actually produced before the officer that very clay when he recorded their statements (Exts. 12, 13 and 16). All these facts have been proved by the officer himself and the above recorded statements were also forwarded to the Returning Officer for necessary action in normal course of official business.

Any discrepancy as to the exact time, when they were actually produced and when the statements were recorded, that day, was not so important as to destroy the value of all this evidence. There was, therefore, no valid reason to distrust the testimony of Gopesh Namasudra. The evidence of Jogesh Podder and Joytirmoy Adhikari also needs mention in this context. Jyotirmoy Adhikari (P. W. 27) is a teacher of the M. E. School newly started at Supra-kandi. He admits that he worked in the last election for the petitioner and was a voter of Mokaichand voting centre. He fully corroborates Gopesh Namasudra in all material details. So also is the evidence of Jogesh Podder (P. W. 34).

Much has been made by the Tribunal about the supposed contradiction in their evidence as to the aperture through which these witnesses watched the conduct of Abdul Bari and the voters. I am, unable to see any point in it. It is true that they were all workers of the petitioner in the Girishganj Bazaar, and at the relevant polling centre; so far as Jogesh Podder is concerned, he may also have some animus against the respondent Abdul Hamid, because he was in arrears of rent to the respondent's father, for which a suit had been filed against him; but these considerations only require that the evidence of the witnesses should be carefully sifted and appraised.

In the background of the circumstances to which I have referred earlier, I find little hesitation in accepting their testimony on the whole, as a true narration of the facts which happened. They do not deny that they were working for the petitioner nor is the fact controverted by the respondent. Therefore, they were competent to depose about these matters, provided their evidence was corroborated by other unimpeachable materials, as it has been done in this case.

7. The point which then arises is whether Abdul Bari was guilty of corrupt practice within the meaning of Section 123(1)(a) of the' Act. It has been found that he had secured possession of various ballot papers issued to electors. That the ballot papers had not been cast in the ballot box and that the voters had thus refrained from, voting at the election also cannot be doubted; but it is further to be seen whether Abdul Bari secured these ballot papers on an offer or promise of gratification to the voters concerned, so as to prevent them from voting. On this point of illegal gratification or promise of gratification, there is unfortunately no direct evidence.

It has been found no doubt that three of the voters, who were seen handing over their voting papers to Abdul Bari, were arrested and produced before the Presiding Officer, who recorded their statements on the same day; but it is contended for the respondent Abdul Hamid Choudhury that those statements are not admissible in evidence, because the voters themselves have not deposed in the case. So also is the case with Abdul Bari. The circumstances in which the voting papers were delivered to Abdul Bari are of course highly suspicious and lead to an inference of some underhand dealing on the part of Abdul Bari; but the evidence does not go any further.

Gopesh Namasudra or the other two witnesses, Joytirmoy Adhikari and Jogesh Podder, do' not say that they actually heard Abdul Bari making any promise of illegal gratification to the voters when securing their voting papers. Of course, Jogesh Podder is said to have shouted that Abdul Bari was purchasing votes, but this may be an inference on me part of the witness for which there was no direct material on record, except the statements made by three o the voters before the Presiding Officer.

8. If these statements, Exhibits 12, 13 and 16 are held admissible for the purpose of proving what the voters themselves gave out at the time, then there can be no doubt that the votes were secured on promise of illegal gratification and the finding of corrupt practice in that case would be adequately justified. But it is argued that when the voters have not been examined before the Tribunal, their statements are inadmissible and cannot be utilised against the respondent Abdul Hamid. The petitioner applied for examination of Abdul Bari and the other witnesses, but unfortunately, the Tribunal was unable to accede to his prayer.

The Tribunal has commented in strong 'terms on the conduct of the petitioner in the matter of examination, of witnesses. It has even suggested that the petitioner had been playing bide and seek with the Court. The petitioner filed his original list of witnesses on 19-8-1957. Later, he again applied on 6-1-1958, for summoning certain witnesses including Kashinath Nath and Kami Nath; but even then, the Tribunal says, he did not move for examination of Sukcharan Nath until 1/-1-1958. The Tribunal appears to have ordered summons to these witnesses at the risk of the petitioner.

The summonses, however, returned back owing to some formal defect and they were reissued; but the witnesses concerned did not turn up. Then the petitioner applied for warrant of arrest of those witnesses. The Tribunal refused to do so and thought that the conduct of the petitioner was calculated to delay the hearing of the case and that he was never serious about the examination of those three persons. One can well appreciate the natural reticence and hesitation of the petitioner in examining these witnesses on his own behalf: These witnesses were detected by the petitioner's men handing over their voting papers to Abdul Bari in a secluded spot, they were caught hold of by his men when fleeing on the alarm produced in spite of their reluctance before the Presiding Officer on the date of the election, when the Officer recorded their statements.

It was, therefore, too much to expect that they or Abdul Bari would willingly come to depose at his instance; but in any case, when the petitioner was making efforts to examine them, it is unfortunate that the Tribunal should have allowed this material evidence to be lost. Of course, when a party alleges corrupt practice, it is the duty of that party to prove the elements of the corrupt practice alleged. The Tribunal cannot be asked to go on a roving enquiry to ascertain the facts thereof, when the person alleging it is himself unable to prove the same.

This, however, does not mean that in all such cases, the Tribunal should refuse to assist the petitioner; when on the face of the record itself, it appears to be quite necessary that certain persons should be examined in order to probe certain facts disclose, specially when those persons may be unwilling to appear at the instance of the petitioner. In this case, it is manifest that these voters who were seen transferring their votes to Abdul Bari, had made their statements before the Presiding Officer, who recorded their statements in due discharge of his official duties and forwarded them to the Returning Officer for necessary action. Abdul Bari has kept away from the witness box and so have these persons. Even if the petitioner had not cited these witnesses, the Tribunal was not prevented from summoning them as Court witnesses in order to ascertain the truth of the matter. Perhaps, there is some confusion also about the proper scope and ambit of these proceedings, which are often mixed up either with civil or with criminal proceedings pure and simple, when in fact they are neither, though in many respects they resemble both.

The proper conduct of an election is a matter of serious concern to the entire electorate and no rigid doctrine of estoppel or onus of proof can be imported into election proceedings. In appropriate cases, the Tribunal has jurisdiction suo motu to enquire into allegations of corruption made in an election petition and even a respondent can bring to the notice of the Tribunal illegalities and irregularities not alleged in the election petition itself and support the petitioner by proving them.

That is why the law has given an option not only to the interested candidates but also to an elector or a voter in the constituency to file an election petition, where he thinks that the election should be declared void on the grounds mentioned in Section 123 of the Act. The elaborate machinery which the statute has devised to ensure fair and free election in a democratic State would, be defeated if the Tribunal stands upon the abstract doctrine of onus of proof and does not insist upon the respondent to depose about facts within his knowledge or to produce evidence under his possession or control to explain the materials placed on record to enable the Court to arrive at the truth.

Though the burden of proof is initially and almost entirely on the petitioner, the respondent is not altogether absolved of his responsibility to assist the Court by producing the best evidence available. On his failure to do so, the Court may draw such inference against him as may appear to be just and reasonable. Under Section 99 of the Representation of the People Act, 1951, the Tribunal is also given the power to name persons found guilty of corrupt practice, I, therefore, think that in this case the Tribunal would have been completely justified in enforcing the attendance of those persons even by a warrant for their appearance or calling upon them to appear as Court witnesses in the proceeding in order to ascertain the truth of the matter.

It is to be remembered that these persons were not mentioned for the first time in the list of wit nesses, but the petitioner specifically named them in his election petition, referred to the numbers of their ballot papers and stated that they had handed over the ballot papers to Abdul Bari on promise of illegal gratification. These definite allegations being there horn the beginning, it would be unfair to say that the petitioner was never serious about the examination of these witnesses, when he had done his best to examine witnesses on the relevant points within his control. We would have been compelled, therefore, to remand this case for the purpose of examining those persons including Abdul Bari as well, against whom serious allegations were made and about whose part in the election, there was already sufficient

material on record, but we think it unnecessary to do so in the view which we take of the other issues in the case.

9. It has been argued that the statements of those persons recorded by the Presiding Officer at the election should be admitted under Section 32 of the Evidence Act. Under Section 32, all statements written or verbal of relevant facts made by a person whose attendance could not be procured without an amount of delay or expense, which under the circumstances of the case appeal's to the Court unreasonable, are admissible, where the statements, if true would expose the person concerned or would have exposed him to a criminal prosecution or to a suit for damages.

It is, therefore, contended that these statements made by the voters which would evidently expose them to criminal prosecution, if true, should be admitted into evidence, since the witnesses could not turn up in spite of summons having been issued to them and the Court refused to grant the prayer of the petitioner to enforce their attendance by a warrant. The discretion vested in the Court under Sub-section (3) of Section 32 of the Evidence Act has to be exercised with great care and caution in the special circumstances mentioned in the section. The caution indeed must be greater where it is likely to be used against a party, who did not have the advantage of testing the correctness of the statements, by cross-examination of the persons who made those statements.

In this case, it cannot be said that the attendance of the witnesses could not be procured without an amount of delay or expense which, under the circumstances, would have been unreasonable. The error, if any, was on the part of the Tribunal in not enforcing the attendance of these witnesses, whose names were mentioned in the election petition at the earliest stage. I am therefore, unable to hold in the circumstances that these statements should be taken in evidence under Section 32(3) of the Evidence Act. If those statements arc eliminated from consideration, all that we have on the record is that the Presiding Officer recorded their statements, but he could not vouch for the correctness or otherwise of the statements made; nor has the Presiding Officer definitely stated in Court that the said persons admitted before him that they had transferred their voting papers to Abdul Bari on promise of payment of a bribe. Thus substantive evidence on one of the essential links to prove the charge of bribery is missing.

10. In these circumstances, it may appear to be redundant to investigate any further the question whether Abdul Bari has been proved to be an agent of the respondent Abdul Hamid Choudhury, and had been regularly working as such for his election; but the evidence adduced on the point has in common a relevant bearing on the other issues in the case and it is, therefore, necessary to consider the same. Here again, we find that we regret to have to differ from the Tribunal and hold that the evidence led by the petitioner is quite convincing; specially when the respondent Abdul Hamid has avoided going into the witness box or examining any of his other witnesses except a relation of his to controvert the petitioner's witnesses. The petitioner's witnesses deposing on the point, generally speaking, fall under two heads. One set consists of those who worked for the petitioner in the election and the other set of those, who worked for the Congress or for the matter of that, for the Congress nominee, Abdul Hamid, the respondent.

A facile way of discarding all that material is to dismiss them with the observation that the first set is interested, while the second set has come to depose against its own party: this is a thoroughly wrong approach to the evidence and would tend to deprive the Court of the most competent material available. If such a test were adopted then no conscientious person would venture to assist the Tribunal, because whether he deposes for or against his party, in either event he runs the risk of being disbelieved and his evidence being rejected on that score. These considerations, therefore, though relevant are seldom decisive; and the evidence has to be appraised on its own merits in the light of the other materials placed on record.

(His Lordship reviewed the evidence of these witnesses and continued).

On the whole, therefore I find no reason to discard all this evidence in the background of the other undisputed materials available in this case and hold in disagreement with the Tribunal, that there was ample evidence to prove that Abdul Bari was regularly acting as an agent of the respondent Abdul Hamid Choudhury in the election and with his knowledge and consent. The evidence of Nurul Haque Choudhury, a relation of respondent No, 1 who alone has been examined for the respondent to deny that Abdul Briri was his worker, is hardly of any value in fare of the above materials, The respondent himself has kept away from the witness box. The Tribunal was in error in its appreciation of the evidence on the point, because it attached undue importance to small and even immaterial details and lost sight of its salient features. I have had to review all that evidence because of its bearing on the other material issues in the case, which I will now turn to examine.

11. The next issue relates to the question of publication of an article in an issue of the 'Navashakati', dated 20-2-1957 published from Karimganj. The article bears the caption: 'Muslim Hushiar, Bampanthidaler Parikalpana'. According to the petitioner, the weekly paper 'Navashakti' was published by the local Congress Organisation and its Editor, who were the agents of Congress candidates and the publication of the article in question was with the consent and at the instance of the respondent No. 1. The petitioner alleges that the said publication amounted to a systematic appeal to influence and intimidate the voters of the Muslim community on false grounds to support the Congress nominee and this constituted corrupt practice within the meaning of Section 123(3) of the Act.

A copy of the weekly paper 'Navashakti' is on the record (Ext. 5) and the questioned article therein is Ext. 5(1). The offending passage says that if the members of the Leftist party 'won the election, their plan to construct the country includes driving out of the Muslims from India and creation of hostilities with the neighbouring State'. We had occasion to consider this article on an earlier case in Abdul Talil v. Rathindra Nath Sen. AIR 1958 Assam 51. We held in that case that the distribution and reading of this article in election meetings by the candidate constituted corrupt practice, as it interfered with the free exercise of electoral right and was a systematic appeal to intimidate and influence voters or the Muslim community on false grounds to support the candidature of the Muslim Candidate, which fell within the mischief of Section 123 of the Act. There appears to be some misunderstanding

about the meaning and import of our judgment in that case. We did not purport to lay down there

that publication does not include reading and distribution under any circumstance. If the offending article appears in a paper, which is proved to have circulation and is read by the public, this would be sufficient publication in the eye of law to constitute corrupt practice, within the meaning of the Act provided it is also found that the said publication

was at the instance, or with the consent of the candidates or his election agent. The real point of our decision was that the publication must be proved to be with the consent of the candidate; and for this there was ample material on record in that case, inasmuch as the candidate himself had been proved to have been reading out the article in question in

election meetings addressed by him and making it a plank of his election campaign. This is clear from the following passage in the judgment:

'The undue influence under Section 123(2), as I have already stated, is constituted not merely by publication in the paper, but by its reading out and distribution. The act is thus the act of the candidate himself and not of his agent. The question that the publication was done by the connivance of the appellant is also of little consequence. The article may have been printed and published by anybody, if the article had the tendency to interfere with the free exercise of an electoral right, and is read out by the candidate himself in the meetings or distributed by him, the act of reading out in the meetings and distributing in the public places will itself amount to a corrupt practice'.

12. The Tribunal, therefore, apparently was under some confusion about the ratio of that decision. The Tribunal is, however, right in commenting upon the absence of any such specific plea of distribution and reading in the election petition itself and it had enough justification for refusing to accept all the explanation offered by the petitioner and his worker Manmatha Nath Dutta on the point; nevertheless, I find that there is reliable evidence to connect the respondent No. 1 with the publication which leads to an inference that the publication was with his knowledge and consent. It was open to the petitioner to lead evidence in order to establish the circumstances from which such an inference of consent could be drawn.

(His Lordship considered the evidence and proceeded).

In Biswanath Upadhaya v. Haralal Das AIR 1958 Assam 97. it has been pointed out by this Court that in order to fasten the liability of the editor's act on a candidate, it was necessary to establish that the editor was acting as an agent of the candidate in connection with the election and that too with his consent. Mere action of the editor beneficial to the candidate would not be enough to prove that he was acting as an agent in connection with the candidate's election. Further, it should also be proved that he was doing the alleged act with the consent of the candidate.

In this case, in my opinion, the evidence on the record satisfies all these requirements; and in the circumstances, one would be justified in holding that the publication was with the consent of the candidate by a paper, which was a Congress party organ and which publication the candidate himself had been utilising to facilitate his election prospects. On

these grounds, I am unable to agree with the decision of the Tribunal that the publication in question did not amount to corrupt practice within the meaning of Section 123, Sub-section (3) of the Act. It is not disputed now that the publication was an objectionable publication and even Sri Har Dayal Das admits it to be so.

13. For the contesting Respondent reliance has been placed on Exts. F and G, the directives sent by the Pradesh Congress Committee about the conduct of elections. Ext. F quotes a circular letter of the Election Commission of India in which it was advised that the voters should vote in an atmosphere free from fear and intimidation. The other document contained a direction from the President of the Pradesh Congress Committee that nothing should be done to undermine the prestige of the Congress. It is, therefore, contended that even if the 'Navasakti' was an agent of the Congress and even if it did the corrupt practice in making the publication contained in the offending article, it was done without the consent and contrary to the orders of the congress; as such the candidate was entitled to the protection of Section 100(2) of the Act.

The contention has found favour with the Tribunal: but I am unable to entertain the same. The above documents containing the salutary directions undoubtedly do credit to the parent body, the Pradesh Congress Committee; but there is nothing to show that the local Congress Committee at Karimganj and its ramifications strictly adhered to them. Sri Har Dayal Das admits that he did not personally show those documents to the Editors concerned and he could not say who actually showed them. The fact remains that the Editor, who was the paid Congress organiser in the election, did publish the article in question and the candidate participated in its circulation. Therefore, the protection under Section 100(2) of the Act is not available to him.

14-15. The other issue relates to 'jehad' alleged to have been declared by the respondent No. 1 amongst his community, which prejudicially affected the result of the election. It was alleged that election meetings were held by the said respondent attended by a large number of Muslims, in which the respondent delivered speeches to the effect that it was a religious war for the Muslims and unless every Muslim voted in his support, it would be un-Islamic and an act of a heathen, and where he further gave out that the independent candidate, respondent No. 2, although a Muslim, was merely a creature of the petitioner and set up with a view to divide the Muslim votes. In the petition it is alleged that, amongst others, such meetings were held at ten different places specified therein, between 1st February to 1st March, 1957.

The respondent has denied these meetings in toto and the Tribunal appears to think that the entire allegation was a pure concoction. Having examined the evidence myself, I am not prepared to go to that length. I substantially agree with the Tribunal that in regard to most of these meetings, the evidence is scanty and it would be unsafe to rely upon the same in order to hold that any corrupt practice was committed in those meetings, if any. I am, however, inclined to hold that at any rate, so far as the meetings to which the petitioner refers in his deposition and about which he claims to have personal knowledge, they did in fact take place; and at those meetings the alleged objectionable propaganda was resorted to. These meetings relate to three places, Kallyganj, Jatrapur and Kurikhala.

(After dealing with evidence regarding these meetings in chronological sequence, his Lordship proceeded).

16. I, therefore, hold in disagreement with the Tribunal that the above meetings did take place as alleged by the petitioner in which there was communal propaganda of the kind indicated by the petitioner, interfering with the tree exercise of electoral rights of the voters by inducing the electors to believe that they would be rendered an object of divine displeasure or spiritual censure if they did not vote for the respondent No. 1, a Muslim candidate, and against his real opponent, the petitioner, a Hindu. The propaganda carried on in those meetings also amounted to a systematic appeal by the candidate and his agents to vote and refrain from voting on grounds of religion and community. These corrupt practices fall within the category of corrupt practices described in Sub-sections (2) (a) (ii) and (3) of Section 123 of the Act and the election of the respondent No. 1 Abdul Hamid Choudhury must, therefore, be declared void on those grounds.

17. I regret to have to differ from the Tribunal in its appreciation of the evidence, because I find that it has misdirected itself on many vital aspects of the case. If the fact that the witnesses, who have deposed for the petitioner, are not altogether independent or that they do not answer to a high standard of rectitude, or that they are not in other respects wholly above reproach, though quite competent to depose about the facts in issue, were alone decisive of the case, I do not think that the few witnesses for the respondent barring the unexceptionable evidence of Shri Chaliha, appear in any better light. As I have shown, this is not the true approach to the evidence. A case is not decided by picking out minute holes in the evidence, though in the appreciation thereof, an eye to details is both necessary and commendable; but the evidence has to be tested, sifted and weighed in the light of the broad probabilities, which clearly emerge from the record.

18. The appeal is accordingly allowed, the order of the Tribunal is set aside and it is declared that the election of the respondent Abdul Hamid Choudhury is void. The petitioner is entitled to his costs throughout, which we assess at Rs. 1,000/-.

Deka, J.

19. I agree.

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