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Har Sarup and anr. Vs. Brij Bhushan Saran and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 2 of 1963
Judge
Reported inAIR1964All340
ActsRepresentation of the People Act, 1951 - Sections 37, 82 and 123
AppellantHar Sarup and anr.
RespondentBrij Bhushan Saran and anr.
Appellant AdvocateG.P. Bhargava, ;A.N. Bhargava and ;P.J. Ahuliwala, Advs.
Respondent AdvocateS.C. Khare and ;A.B. Saran, Advs.
DispositionAppeal dismissed
Excerpt:
election - corrupt practices - sections 37, 82(b) and 123 of representation of the people act, 1951 - the respondent and his agent threatened others to cast vote in their favour - held, to be a corrupt practice and his candidature cancelled. - - we are of the opinion that the corrupt practice referred to in section 123(2) is clearly indicated in this allegation. clearly, that could not have been the intention of the legislature. 8. we are, therefore, of the view that this appeal must fail......to vote for him.'3. a number of persons were impleaded as respondents to the election petition but raturi vaid was not impleaded. the first respondent raised an objection in his written statement that the election petition was liable to be dismissed on account of the omission to implead raturi vaid as respondent. the election tribunal framed a number of issues, including an issue on this question, and ultimately held that the petition was liable to be dismissed for non-joinder of the said raturi vaid.4. learned counsel for the appellants has contended before us that the provisions of section 82(b) were not attracted in the present case. he urges firstly that no corrupt practice can be said to have been alleged in paragraph 4(f) of the election petition. this contention cannot be.....
Judgment:

Pathak, J.

1. This is an appeal under the Representation of the People Act against an order of the Election Tribunal Bijnor dismissing an election petition.

2. Of a number of candidates for election to the U. P. Legislative Assembly from the Dehra Dun City constituency, the first respondent Brij Bhushan Sharma was declared elected. His election was challenged by an election petition filed by the present appellants, and among the several allegations contained in that petition it was alleged in paragraph 4(F) :

'Because respondent No. 1 through his agent and worker Shri Katuri Vaid, who is also President of City Congress Committee with the consent and connivance of respondent No. 1 threatened on the 15th February, 1962, at Dharampur, Dehra Dun, one Sri Jai Lal Khandelwal, an elector that his bones would be broken if he did not cast his vote for respondent No. 1 and also did not work for him and persuade others to vote for him.'

3. A number of persons were impleaded as respondents to the election petition but Raturi Vaid was not impleaded. The first respondent raised an objection in his written statement that the election petition was liable to be dismissed on account of the omission to implead Raturi Vaid as respondent. The Election Tribunal framed a number of issues, including an issue on this question, and ultimately held that the petition was liable to be dismissed for non-joinder of the said Raturi Vaid.

4. Learned counsel for the appellants has contended before us that the provisions of Section 82(b) were not attracted in the present case. He urges firstly that no corrupt practice can be said to have been alleged in paragraph 4(F) of the election petition. This contention cannot be accepted. Paraphrased, paragraph 4(F) is to the effect that the first respondent employed Raturi Vaid to threaten one Jailal Khandelwal, an elector, with physical injury if he did not cast his vote for the first respondent. We are of the opinion that the corrupt practice referred to in Section 123(2) is clearly indicated in this allegation.

That provision reads

'123. The following shall be deemed to be corrupt practice for the purposes of this Act :

(1) ........................

(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right :

Provided that :

(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who :

(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social obstracism and ex-communication or expulsion from any caste or community.

(ii) .........................'

To us it appears plain that the threat which is mentioned in paragraph 4(F) constitutes a corrupt practice.

5. Learned counsel next contends that assuming that Paragraph 4(F) refers to a corrupt practice, it is a corrupt practice which has been alleged against the first respondent and not against Raturi Vaid. We are unable to accept this contention either. An allegation of corrupt practice has been made against Raturi Vaid, because it is he who it is said, threatened Jailal Khandelwal, an elector, with physical injury in case he did not vote for the first respondent. He may have been employed for the purpose by the first respondent, but it is none-the-less Raturi Vaid who theatened the elector. It cannot be said that a corrupt practice has not been alleged against Raturi Vaid.

6. Then if is argued that Raturi Vaid is alleged to have committed this corrupt practice not as a candidate but in some other capacity. It is urged that the provisions of Section 82(b) require that the allegation of corrupt practice must be made by a candidate, and Raturi Vaid, when he threatened the elector, was not acting as a candidate. It is also pointed out that Raturi Vaid had been originally nominated as a candidate for election but be had withdrawn under the provisions of Section 37, and therefore was not a candidate within the meaning of Section 82(b). These contentions in our judgment, are equally without force. Section 82(b) does not require that the person who is alleged to have committed a corrupt practice was acting as a candidate when committing such corrupt practice. All that is necessary is that he should be a candidate at that particular election.

7. As regards the contention that he had withdrawn under Section 37 and was, therefore, no longer a candidate, it is sufficient to point out that if the provisions of Section 82 of the Act are read as a whole, it is clear that the words 'any other candidate' in Clause (b) of that section refer to candidates other than contesting candidates. Now contesting candidates are those who are mentioned in the list drawn up under Section 38. If, as learned counsel contends that word 'candidate' referred to in Clause (b) cannot include a candidate who has withdrawn under Section 37 but must he restricted to a contesting candidate, it will be difficult to give any meaning to Clause (b) in a case where under Clause (a) a further declaration is sought by the petitioner that he himself or any other candidate has been duly elected. In such a case all the contesting candidates other than the petitioner, will be impleaded as respondents by virtue of Clause (a) and Clause (b) will become redundant. Clearly, that could not have been the intention of the Legislature. Learned counsel relies upon a decision of the Patna High Court reported in Kapildeo Singh v. Suraj Narayan Singh, AIR 1959 Pat 250 where a Bench of that Court held that the words 'any other candidate' in Section 82(b) must refer to a candidate who had not withdrawn his candidature under Section 37 of the Act.

With respect, we find ourselves unable to agree with the reasoning underlying that decision. The learned Judges, who decided that case, took the view that the words 'any other candidate' in Section 82(b) must have the same meaning as the words in Section 82(a). If that was so, then it would have been unnecessary to use the word 'other' before the word 'candidate' in Section 82(b). The intention of the Legislature was that apart from those who had already been impleaded as respondents by virtue of Section 82(a), the petitioner must further implead such other candidates against whom an allegation of corrupt practice has been made even though such candidate may have retired from the election.

The correctness of the decision in Kapildeo Singh's case, AIR 1959 Pat 250 (Supra) was, in fact, doubted by another Bench of the same High Court in Badri Narain Singh v. Kamdeo Prasad Singh, AIR 1961 Pat 41, where, however, although the view taken by that Bench is the same which we have taken now, the Bench found itself unable to disagree with the earlier decision of that Court on the ground that it felt itself bound by that decision.

Learned counsel also referred to a decision of the Supreme Court in S. B. Adityan v. S. Kanda-swami, AIR 1958 SC 857. In our opinion that decision does not help the appellants. In that case the question was whether a candidate who had accepted a gift and withdrawn his candidature could be said to have committed a corrupt practice. It was held that as the acceptance by a candidate of gratification paid to him to withdraw his candidature did not amount to a corrupt practice, he did not fall within the scope of Section 82(b). The point which is canvassed before us was not in issue in that case.

8. We are, therefore, of the view that this appeal must fail. It is accordingly dismissed with costs, which we assess at Rs. 250/-.


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