S. Barman, J.
1. This is an appeal from an order of the Election Tribunal, Puri (Shri T. V. Rao, Member, Election Tribunal) dismissing the election petition, on contest, against the respondent No. 1 (hereinafter referred to as the Congress candidate) and ex parteagainst the respondent No. 2 (hereinater referred to as the Independent candidate).
2. The relevant facts, shortly stated, are these: In the last General Elections, the appellant (hereinafter referred to as the Socialist candidate) as well as the respondents 1 and 2 filed their nomination papers from the Banki Constituency (District Cuttack) for being candidate for the Orissa Legislative Assembly. At the scrutiny, an objection was taken on behalf of the Congress candidate to the effect that the Independent candidate was a per on not qualified to stand for the election on the ground that he had an interest in a contract for the supply of goods and performance of services to the Government of Orissa. The said objection was, however, overruled and the nomination paper of the Independent candidate was accepted as valid by the Returning Officer on scrutiny.
3. So the contest at the election commenced as. triangular light among the Socialist, Congress and the Independent candidates, which, however, ended in a duel as a straight fight between the Socialist and the Congress candidates, as the Independent candidate ultimately withdrew from the contest, leaving his remaining two rivals in the field. In the contest, the Socialist candidate was defeated and the Congress candidate was declared elected.
4. There were two opposite versions of the circumstances in which the Independent candidate ultimately retired from the contest, which became the main subject-matter of the election petition filed by the defeated Socialist candidate. The admitted facts, over which there was no dispute, were that the Independent candidate was a Purchasing Agent under the Government of Orissa for paddy and he had certain claims against the Government of Orissa in connection with the said contract. In fact, he had lodged a huge claim as against the Government on the said contract. But the Government of Orissa till that time was not paying his claim for reasons with which we are not concerned for the present purpose.
5. The polling in the said Banki Constituency was to take place on 25-2-1957. The three candidates, the appellant from the Socialist Party, respondent No. 1 from the Congress and respondent. No. 2 as an Independent candidate, were all on electioneering campaign and were working in the field in their own way with their respective organisations. Ten days before the polling was to take place, the Independent candidate retired from the contest.
6. The main question for decision in the present appeal is under what circumstances the Independent candidate (respondent No. 2) retired from the contest. With regard to his withdrawal, there were two versions--namely, the Socialist version and the Congress version. The appellant, Socialist candidate, who filed the election petition calling in question the election of the Congress candidate (respondent no. 1) to the Assembly, in his petition came out with the following story with regard to the Independent candidate's withdrawal.
His case in brief was that in the morning of 14-2-1957 at about 8 a.m. the Congress with some of his followers approached the Independent candidate and threatened him saying that they would put their entire influence of the Congress Ministers to see that his entire claim, due from the Government on the said Purchasing Agency contract be rejected unless he would agree to withdraw his candidature from the election. The immediate reaction to such alleged threat was that the Independent candidate refused to withdraw and withstood the threat.
Again, on the same day (14-2-1957) in the evening as also the following day, the February 15 morning the Congress candidate and some of his collaborators in the election campaign again asked the Independent candidate that in case he would retire from his candidature, they would all influence the Congress Minister to see that the entire claim, due from the Government, was paid to him. In spite of these repeated overtures, the Independent candidate still grumbled on the ground that his withdrawal from contest at that stage would affect his reputation and that he had already incurred a huge expenditure on his election propaganda.
Thereupon, the Congress candidate was alleged to have offered to the Independent candidate Rs. 15,000/- by way of compensation in case he would agree to retire from the contest in the election. The further differ or promise of gratificationto the Independent candidate was the alleged promise by the Congress candidate along with other Congress workers of the locality that in case he would retire from contest, they would recommend and see that he becomes a Congress candidate at the next election. The Independent candidate ultimately succumbed to the alleged undue influenceof the Congress candidate and his political associates and accepted the said sum of Rs. 15,000/- as bribe and retired from the contest in the election.
After the retirement of the Independent candidate a letter (Ext. 1) signed by the Congress candidate and other persons was printed as a pamphlet and was circulated in the Constituency. This letter was given to the Independent candidate as a further gratification granted as a consideration of his retirement or withdrawal of his candidature. There was also a press statement announcing the news of the withdrawal by the Independent candidate of his candidature in favour of the Congress (Ext. 2). All this, according to the Socialist candidate's version, was by way of bribery and undue influence by which the Congress candidate was alleged to have succeeded in the election.
It was also alleged that after the retirement of the Independent candidate, the Congress candidate took advantage of the entire election propaganda machinery of the retired candidate but did not include the costs thus incurred by him in his election expenses and further that he exceeded the prescribed limit of maximum election expenses. This was the Socialist version of the matter.
7. Now let us come to the Congress version. The Independent candidate himself did not appear in the election petition and it was heard ex parte as against him. He has, throughout the election case, remained in the background and has not come forward to give evidence. The Congress version as to the circumstances in which the Independent retired and withdrew from the contest was given by the Congress candidate who appeared in the election petition, contested it and gave evidence (R. W. 6).
The Independent candidate was also a Congressman and was proposed as a Congress candidate. When he was not finally selected as such, he chose to stand as an Independent candidate. The Congress candidate either by himself or through anybody never at any time either on February 14 or 15, 1957 or at any time approached the Independent candidate and never held out to him any threat or promise as alleged. In fact, their case was that the Congress candidate was not even present in the town of Banki from 14-2-1957 to February 15 noon and that the Independent candidate himself was also not present in the town of Banki at that time.
There was no bribery or undue influence whichwas totally denied. As regards the letter and thePress Statement (Exts. 1 and 2), the Congress version was that the Independent candidate had himself already decided of his own volition to retire from the contest in favour of the Congress, when he himself realised that he had no chance of success and the Independent candidate got this letter (Ext. 1) from the Congress candidate and other people who signed it in order to save his (Independent candidate's) prestige in his own camp so that he might not be misunderstood by his friends and followers.
The Press statement (Ext. 2) was also intended to produce the same effect in the eyes of the public. The Congress candidate never used the propaganda machinery of the retired candidate except one jeep for which the Congress candidate paid all the expenses including the salary of the driver which he had already shown in the election expenses. This, in short, was the Congress version.
8. In this background, the defeated Socialist candidate presented the election petition, calling in question the election of the Congress candidate on the grounds of alleged bribery and undue influence under Section 123 (1), (2) of the Representation of the People Act, 1951 (hereinafter referred to as the said Act) and alleged contravention of Section 77 of the Act in not including some expenses in the election expenses and in exceeding the prescribed limit.
9-10. Now as to the standard of proof required for judging the evidence by the parties, it has been held in a long array of cases, both under the old and new law, that in the case of allegations of corrupt practices the burden of proof is on the petitioner, it never shifts and the standard of proof to discharge this burden is the same as in criminal cases, that is, the matter requiring proof should be established beyond any reasonable doubt and that in case of doubt the benefit should go to the respondent. Though an election petition has to be tried in accordance with the procedure applicable to civil suits, the standard of proof required in respect of corrupt practices alleged in the petition, is the standard applicable to criminal cases, that is to say, corrupt practices must be proved beyond any reasonable doubt. In Harish Chandra Bajpai v. Triloki Singh, (S) AIR 1957 SC 444: 12 El LR 461 (465, 483), the Supreme Court has clearly laid down that charges of corrupt practice are quasi-criminal in nature and that the allegations relating thereto must be sufficiently clear and precise to bring home the charges to the candidates. As regards the nature of the proceedings before the Election Tribunal, the Supreme Court in Jagan Nath v. Jaswant Singh, AIR 1954 SC 210, observed as follows:
'The general rule is well settled that the statutory requirements of election law must be strictly observed, and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law, and that the Court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law.......
It is always to be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices.'
In the light of the principles laid down by the Supreme Court this Court has to consider whether the charges of alleged bribery and undue influence in the present case were sufficiently clear and/or have been established by evidence beyond any reasonable doubt. (His Lordship after examining the evidence held that bribery and undue influence had not been proved; he then proceeded to state as follows:)
11. Now as to the documentary evidence, the question was whether the letter dated 15-2-1957, signed by the Congress candidate along with others, addressed to the Independent candidate fell within the definition of bribery or undue influence within the meaning of Section 123 (1) and (2) of the Act. For convenience of ready reference I set out below an English translation of the said letter (Ext. 1).
'Dear Sriman Dasarathi Babu You are one reputed and illustrious person ofBanki-Baidyeswar P.S. Many of the people ofBanki-Baideswar locality appealed to tile authoritiesto set you as a Congress candidate being attractedat your nobility and selfless service. But as thisappeal reached them late they could not but selectthe candidate proposed beforehand. So many ofthe people of Banki-Baideswar were wounded atthis and set you up as an independent candidatefor the ensuing election.
As it is observed from the present circumstances it is doubtful for the Congress candidate to win if you contest as an Independent candidate. So we on behalf of the people of Banki-Baideswar request you sincerely to withdraw your candidature in view of the welfare of the Banki-Baideswar locality and the upkeep of the prestige of the Congress and hope you will show your highest pitch of selflessness. Finding no other alternative we were compelled to request you as today is the last date for withdrawal of candidature.
You suffer of course from physical, mental worries and monetary loss in case you comply with our request and for your this sacrifice we give you this much assurance that we will support you as a Congress candidate in the next election and appeal to the Congress authorities to select you for the same. Your supporters and colleagues may be wounded for some reasons or other. We thank and request as well those who have helped and sympathised you that they rather may join their hands with us to make the Congress candidate successful in view of the welfare of the Banki-Baideswar Constituency. We apologise for any misunderstanding that might have occurred accidentally with your colleagues in the field of our activities.
At last we request you to engage your conveyances, office and workers too to make the Congress successful in this election and hope you will show your nobility, matured conscience and sacrifice and shoulder yourself the responsibility of making the Congress candidate successful.
Printed at Saraswat Press
Sd/- Jogesh Ch. Raut
and 22 others.'
The case of the Socialist candidate with regard toEx. 1 was as stated by him in his evidence (P.W.14). According to him, the letter itself containeda promise of gratification signed by the Congresscandidate, along with others, with the object of inducing the Independent candidate to withdrawfrom the election and retire. The whole questionwas whether such an alleged promise of gratification could be spelt out of this document. Readingthe document as a whole it is clear that it does notcontain any promise of any gratification within themeaning of the Explanation to Section 123(1) ofthe Act. The fact is that no inducement emanatedfrom the side of the Congress candidate requestingor inducing the Independent candidate to retire.
Rather the proposal came from the Independent candidate himself who had already decidedto retire at any cost. Realising that he had no chance of success in the triangular contest in the election, the Independent candidate himself decided to retire from the contest in any event. The evidence of R.W. 4, R.W. 5 and R.W. 6 was relevant in this connection. R.W. 4 Sanatan Sahu was one of the signatories to the letter to the Independent candidate (Ext. 1). He said in his evidence to the effect that the Independent candidate was repenting for contesting the election and that the Independent candidate intended to retire and that accordingly the Independent candidate sent for his brother-in-law Bhagawan Choudhury who drafted and wrote the said letter (Ext. 1). R.W. 4 also explained in his evidence the background in which the Independent candidate took this decision to retire.
The real purpose of the said letter was to save the prestige of the Independent candidate before his electorate. Bhagwan Choudhury was asked to draft the letter. The contents of the document were read over to all present and the letter was then signed by the Congress candidate along with others. After the document was signed the Independent candidate filed his retirement paper in Court. This version of the document was corroborated by the evidence of R.W. 5. He reiterated that after (sic) the Independent candidate had himself suggested that it would have been proper if the Congress people would request him to retire and give some writing in that regard so that he could use the same to maintain his prestige before his people. R.W. 5 also said in his evidence that after the letter was signed, the Independent candidate at night asked his Gumasta Sukanta Mohanti to give the letter to his brother Gadadhar to get it printed and circulated so that the people might not misunderstand him.
It is quite clear from his evidence that even if the Congress people did not agree to make a request in writing, the Independent candidate would still have retired from the contest. When he realised that there was no hope of his success, he did not like to spend any more money in the election, as well as to fall out with the Congress and so he decided to retire. The Congress candidate both in his written statement (paragraphs 10 and 16) as also in his evidence (as R.W. 6) before the Tribunal explained clearly the circumstances in which the letter was signed by him. He reiterated that it was the Independent candidate who wanted some writing from them to maintain his prestige before the public.
12. It was contended on behalf of the Socialist candidate that the promise of a Congress ticket in the next election as contained in the letter (Ext. 1) was itself a promise of gratification within the meaning of the Explanation to Section 123(1) of the Act. The Independent candidate formerly having been himself an old member of the Congress, was well aware of the value of such promise for the next election. There was no certainty as to who would live or who would die by then and who would be the selecting authority in the Congress high circles (R.W. 5). Besides, in view of the complicated procedure for selection of candidates for the Legislative Assembly by Congress party as explained by R.W. 3, it was a mere pious wish expressed by the signatories to the letter (Ext. 1) and nothing more than that. There was no substance in the argument that the promise of a seat in the next election was a promise of gratification.
13. In this connection, I have also considered Ext. 2, being a Press statement published in the news-papers giving the news that the Independent candidate withdrew his candidature in favourof the Congress. It is worth quoting an English translation of the news item for convenience of ready reference, as follows:
'The Independent candidate of Banki Constituency withdrew his candidature in favour of Congress.Sri Dasarathi Mahapatra, who was to contest in the election from the Banki Assembly Constituency as an Independent candidate has since withdrawn Ms candidature and has issued an appeal to his supporters as well as the public of Banki to elect the Congress candidate Sri Jogesh Chandra Raut.
In this connection he has issued the following statement in which he says:
More than thousand voters of the Banki Assembly Constituency appealed to the Congress authorities to select me as Congress candidate, but the Congress authorities decided to select Sri Jogesh Chandra Raut as candidate, So I was advised by all to contest as an Independent candidate. It was therefore that I was going to contest and my work in that regard has very much progressed.
In the circumstances the chance of success for the Congress was doubtful. On the presumption some prominent Congress workers and gentleman of Banki-Dompara, Baideswar and Saronda requested me in writing to withdraw my candidature and support the Congress candidate. Our aim being identical I agreed and have since withdrawn my candidature.
I hereby appeal to the workers and my supporters to work with equal zeal for the success of the Congress candidate. As it is not possible for me to inform this everybody through individual letter in so short time this appeal is published in the newspaper.'
The Press statement also clearly shows that no promise of gratification could be spelt out from this document. Evidence adduced before the Tribunal clearly showed in what circumstances the Independent candidate invited the Congress candidate and others to request him to retire so that he could show that letter to his electorate and the public and thus save his prestige which, it was apprehended by the Independent candidate, appeared to be the first casualty in the whole drama.
14. Lastly, it remains for me to deal with the question whether the Congress candidate utilised the election propaganda machinery of the retired candidate for purposes of his election which he did not show in the election expenses as alleged. The Socialist candidate's case was that some of the expenses which the Congress candidate incurred were not included in the election expenses accounts required to be filed by him and also that the Congress candidate exceeded the limit of Rs. 7,000/-permitted by Rule 135 of the Rules under the Act.
On this point, the appellant Socialist candidate's witnesses were P.Ws. 1, 2, 3, 4 and 13 and the respondent Congress candidate's witnesses were R.W. 6 and R.W. 4. On this point, I am satisfied that the Congress candidate did not utilise or take advantage of the propaganda machinery of the retired Independent candidate except the use of a jeep for which the Congress candidate paid Rs. 10/-as baksis to one Satyabadi who drove the said jeep, the petrol charges having been included in the general bill incurred for such expenses.
The said sum of Rs. 10/- paid to the driver was also duly shown in the election expenses accounts. Furthermore, in view of my finding that no bribery to the Independent candidate was proved, I cannot accept the contention of the Socialistcandidate that the Congress candidate had exceeded the prescribed maximum limit of election expenses. My conclusion is that the Congress candidate had not, in any way, violated the provisions of Section 77 of the Act.
15. The result, therefore, is that this appeal is dismissed with costs. Hearing fee Rs. 150/-.
S.C. Das, J.
16. I agree.