1. The election to the Orissa Legislative Assembly of the Respondent Chittaranjan Naik from Binjharpur constituency in the mid-term election held in June, 1961 was challenged by the petitioner (appellant herein) Bankabehari Das, one of the defeated candidates, on several grounds stated in the election petition.
2. Out of the numerous grounds on which the election of the respondent was challenged, the peti-tioner confined himself to only a few grounds so far as this appeal is concerned.
The only grounds on which the petitioner relies herein are shortly stated these ; That the respondent was disqualified for the membership of the; State Legislature under Section 7(e) of the Representation of the People Act, 1951 (hereinafter referred to as the Act) by reason of his having been the Managing Director of Kalinga Foundry Ltd. at Dhenkanal in the district of Cuttack in which the Government of Orissa is said to have majority shares in the capital; that the respondent committed certain corrupt practices of bribery after the nomination and before the date of election -- all as stated in the election petition. The petitioner confined himself to only three instances of alleged bribery, namely, the respondent's alleged offer or promise of Rs. 500/- and conveyances, and alleged actual payment of Rs. 200/- and supply of jeeps for the cultural conference at Ban; the respondent's alleged promise of payment of money as gratification towards the cost of radio battery at village Tauntara and subsequent payment by the respondent of money with which the battery is said to have been purchased; the respondent's alleged promise of gratification by circulating a pamphlet entitled 'More Binjharpur Karyakrama' (My Binjharpur Programme) in which the respondent made several promises to the electors as fully stated therein -- all with the alleged object, directly or indirectly, of inducing electors to vote for the respondent.
The respondent denied that he was disqualified or that he had committed any corrupt practice of bribery as alleged or at all. The election Tirbunal decided against the petitioner on each of the grounds and dismissed the election petition. The Tribunal found that no corrupt practice is proved. It is against this decision of the Tribunal that this appeal has been filed by the petitioner (appellant herein).
3. In course of hearing of this appeal one of the main points urged on behalf of the respondent was that the charges of corrupt practices being quasi criminal in character, the allegations relating thereto should have been sufficiently clear and precise to bring home the charges to the candidate, and that judged by that standard the allegations in the original petition, before amendment, were wholly insufficient. It was contended that the Tribunal should not have allowed the amendment of the election petition.
Apart from undue delay for which there is said to be no reasonable explanation and the question of limitation, the point raised was whether the Tribunal was justified in allowing the amendment purporting to be in exercise of its power under Section 90(5) of the Act. It was argued on behalf of the petitioner that the amendment did not introduce new grounds of attack but mere fresh instances of the already alleged corrupt practices of bribery in the original petition. The respondent's point, on the other hand, was that the amendment introduced new grounds of attack not permissible under the law. Both sides argued and cited authorities in support of their rival contentions.
In view of our decision, on merits, against the petitioner, we do not think it necessary to embark upon a discussion of these points on amendments.
4. This leads me to the consideration of this appeal on merits.
5. Re : Respondent's alleged disqualification for membership of the State Legislature by reason of his having been the Managing Director of Kalinga Foundry Limited as alleged.
Section 7(e) of the Act, so far as material for thiscase, reads as follows :
'A person shall be disqualified for being chosen as, and for being, a member of ......... theLegislative Assembly of a State.
* * * * * (e) If he is a director, managing agent, manager or secretary of any company or corporation (other than a co-operative Society) in the capital of which the appropriate government has not less than twenty-five per cent share.'
The petitioner's case is that the respondent was the Managing Director of Kalinga Foundry Limited -- in the capital of which the Government of Orissa has majority share. The respondent denied the charge and stated that he was allowed by the Government of Orissa to retire from the Managing Directorship and that in fact the respondent hand-ed over charge to his successor who took over on May 2, 1961 and thereafter the respondent filed his nomination paper on May 5, 1961.
6-9. The simple question is whether the respondent ceased to be the Managing Director of the Company before the date on which the nomination paper was filed by him. The Government Order dated May 1, 1961 shows that the Director of Industries of Orissa as the Chairman of the Board of Directors' of the Company was allowed to accept the resignation of the respondent to enable him to contest the election. On May 2, 1961, at an Extraordinary General Meeting of the Company, the saidGovernment letter was placed by the Director of Industries as Chairman, and a resolution was passed accepting the resignation of the respondent as Managing Director of the Company. On May 3, 1961 in the usual course a copy of the Government Order was forwarded to the respondent. (His Lordship discussed the documentary and oral evidence and proceeded :)
10. I do not think it necessary to enter into any discussion of other points urged on behalf of the petitioner relying on the definition of 'Manager' and Managing Director under the Company's Act, because I have come to the conclusion, independently of them, that at the material date the respondent ceased to hold office as Managing Director or any other office in the Company which could disqualify him for membership of the State Legislative Assembly under Section 7(e) of the Act.
11. I am of opinion that the petitioner failed to establish the charge of alleged disqualification of the respondent.
12. Now, coming to respondent's alleged corrupt practices of bribery, the question is; What is a corrupt practice of bribery? The provisions of Section 123(1)(A), so far as material for the purpose of this case are these :
'123. Corrupt practices : The following shallbe deemed to be corrupt practices for the purposeof this Act :
(1) 'Bribery', that is to say -
(a) any gift, offer or promise by a candidate or his agent or by any other person with the consent of the candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing -
X X X X (b) an elector to vote or refrain from voting at an election .....
X X X X Explanation : For the purposes of this clause the term 'gratification' is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward.....'
The underlying principles of these provisions in Part VII 'Corrupt Practices and Electoral Offences' of the Act are certain fundamental basic rules of care, caution, conscience and common sense constituting unwritten moral code deduced from life and experience. Part VII of the Act is simply written statutory recognition of these basic principles. The question whether a particular candidate's behaviour is legitimate conduct permitted by law or whether it amounts to corrupt practice forbidden by law is often not easy to determine. The fine distinction between one and the other, in my opinion, -- though intelligible, -- is hardly capable of clear exposition in words. In the absence of a clear-cut absolute objective standard, the decisions have to be mostly subjective based on appreciation of evidence. It is thus ultimately a question of fact.
13. On corrupt practices generally, it must be remembered that the charges of corrupt practices are quasi criminal in character. The principles of criminal jurisprudence are applicable. As to the standard of proof required for judging the evidence by the parties, it has been held in a long array ofcases 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.
Their Lordships of the Supreme Court in Jagan Nath v. Jaswant Singh, AIR 1954 SC 210 observed that 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 of 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 the people do not get elected by flagrant breaches of that law or by corrupt practices.
14. On accomplice evidence, which is an almost normal feature in an election petition, it is to be generally kept in view that the law in India with regard to accomplice evidence is not different from the law in England. It is the rule of practice so invariable and peremptory that it must be regarded as having hardened into a rule of law that the Judge must be fully and expressly alive to the need for independent corroboration in material particulars both with regard to the offence and the offender, that one accomplice cannot corroborate another, and that although no doubt a previous statement of an accomplice satisfying the requirements of Section 157 of the Evidence Act can be used to corroborate his testimony, it is not the independent corroboration required by this rule. Save in most exceptional circumstances, no Court will record a finding of corrupt practice on such evidence.
15. With these general observations, I proceed to deal with the alleged corrupt practices of bribery. The question is; Have the alleged corrupt practices of bribery been proved beyond any reasonable doubt in this case? The burden of proof is on the petitioner.
16. Re : Alleged offer or promise of Rs. 500/-and conveyance and alleged actual payment of Rs. 200/- and supply of jeeps for the Sanskritika Kendra cultural conference at Bari :
In the election petition, there is no allegation about the respondent's alleged offer or promise to pay Rs. 500/- an essential fact which has been suppressed.
17. The principal witnesses are the Secretary and the Treasurer of the said Sanskritika Kendra who both are accomplices, and one dismissed servant of the respondent.
18-31. (His Lordship considered their and other evidence as also the documentary evidence and proceeded :)
32. Thus, the petitioner failed to prove the respondent's alleged corrupt practice of bribery by offer or promise of Rs. 500/- and actual payment of Rs. 200/- and supply of jeeps for the cultural conference at Bari with the object of inducing electors to vote for the respondent as alleged.
33. Re : Alleged promise by the respondent to pay money as gratification towards the costs of a radio battery to the library at Tauntara and subsequent payment by the respondent of money with which a battery is said to have been purchased as alleged :
In the written statement the respondent stated that he visited the Bharatiya Pathagar at village Tauntara on or about May 6, 1961 and promised to try to arrange a radio battery from some charitable source but he denied that this was done in order to induce the electors to vote for him (respondent). The respondent further submitted that no payment on account of the same has been made as yet by the respondent nor has it been so far arranged by the respondent. Thus on the present charge it is not that the respondent completely denied the fact of his having agreed to arrange for a battery, but his case in substance is that he did so out of a charitable motive and not with a view to influence the voters.
34. The question is; Was the respondent's conduct a noble honest act of charity or corrupt practice of bribery? The position in law, in the light of which the question is to be answered, briefly stated is this : Before the Court is led to the conclusion that the distribution of charity (in?) any particular case has been used for a dishonest purpose, it must be clearly proved that the motive of the person so using it is dishonest and corrupt. Whether this is so or not must be a matter of inference to be drawn from the facts of each particular case, and must depend upon many circumstances, involving those of time, place, the persons by whom the charity is distributed and by whom it is received; whether it has been given in pursuance of an accustomed course, or whether it is novel and unprecedented; whether it is moderate or immoderate in amount and specially whether the persons to whom it is given are proper recipients. In determining the question whether it is or is not reasonable to conclude that an act is done with a view to influence votes, the element of time becomes a very material one.
In each case the question arises whether the distribution of charity was done honestly or whether it was done corruptly. We must take the whole of the evidence into consideration, and enquire whether the governing principle in the mind of the man who made such gifts was that he was doing something with a view to corrupt the voters; or whether he was doing something which was a mere act of kindness or charity. It might be a doubtful question whether, assuming two motivesto exist, the one being pure, and the other with the intention to corrupt, you could exclude the corrupt intention, and rely wholly upon the pure intention. On this the Courts have consistently taken the view that this must be rather a question of degree. In all such cases, as in the present case, in which this question arises, however pure the motives of the charitable donor may be, if he be a candidate for the constituency, it is impossible to escape the conclusion that his acts of charity may, or even must, exercise some influence upon the mind of the voters; but when no personal bribery is proved, this influence is common to all such cases in which the candidate by his personal appearance, power of speech, manner of life or conduct in the management of the particular election, must or may ingratiate himself in the minds of the electors, and so obtain an advantage over the opponent.
The imminence of an election is an important factor to be taken into consideration in deciding whether a particular act of charity amounts to bri-bery. A charitable design may be unobjectionable so long as no election is in prospect; but if an election becomes imminent the danger of the gift being regarded as bribery is increased. It has been said that charity at election time ought to be kept in the back-ground by the politicians. Thus the question is one of degree. An isolated small donation on the occasion of a birth or death may not be bribery though such gifts on an extensive scale would lead to the inference that they were given to influence the voters. It is legitimate for a member of Parliament or a State Legislature to benefit his constituency and the Court will not therefore draw any adverse inference from the fact that he confines his charity to his constituency. The (care ?) with which the charity is dispensed by the candidate or his agents is also likely to be a factor to be considered. An agent may turn what was intended by the candidate to be a charitable gift into a corrupt gift. Where the object of the candidate in promising or making gifts is at the most to make himself popular in his constituency, this cannot amount to bribery and as such does not constitute any corrupt practice though this may result in some indirect propaganda for him.
35. Here, 'the point is whether the respondent under the garb of charity intended to influence the voters -- in other words whether the respondent's real purpose was pure generosity or motive to influence voters.
36. It is not that the respondent is a stranger to the constituency and that his promise at Tauntara was an act of sudden charity. The petitioner himself said that in 1956, individuals including the respondent made personal contribution aggregating Rs. 400/- to Rs. 500/- towards relief fund. The petitioner's witnesses on the point are the Secretary and Assistant Secretary of the Pathagar (Library) at Tauntara. They both are accomplice and there, is no corroboration of their evidence. The necessary particulars regarding time, place and manner of the alleged payment by the respondent are not mentioned at all nor is there any evidence or even any record of the alleged payment in the Library's Account Book. The Assistant Secretary of the Library said that no entry was made in respect of thesaid sum in the Library's Account of Income and Expenditure. Although the witness, who is said to have purchased the battery from Town Stores at Jaipur, obtaining a cash-memo receipt on the very date (June 10, 1961) on which the battery was purchased, it is significant that yet there is no mention, in respect thereof in the Account of. Income and Expenditure of the Library.
That apart, the non-production of the Visitors' Book in which the respondent is said to have made a note that he would supply a battery is also a circumstance against the petitioner. The Assistant Secretary's evidence is that the respondent said that he would give a battery for the radio and that they would vote for the respondent. The witness said that they agreed to vote for the respondent. The witness further said that the Visitors' Book was produced before the respondent in which the respondent made note and that the respondent told those present that he had made a note that he would supply battery. The witness also said that the respondent had made a promise in writing about supplying a battery. If this is true then certainly the visitors Book would have beyond any doubt, established the petitioner's case on this point. There is no reasonable explanation as to why the visitors' Book could not be produced. Moreover, the evidence of the proprietor of Town Stores, Jaipur, who is said to have sold a battery to Bharatiya Pathagar, Tauntara, -- is that he was approached by the purchaser stating that the cash memo issued by the witness had been lost and that the said purchaser wanted the witness to issue duplicate cash memo in the name of the respondent. The witness said that he did not agree. The witness however issued a duplicate in the same name as that mentioned in the original, namely, Secretary, Bharatiya Pathagar, Tauntara. This clearly shows that there was an unsuccessful attempt to create evidence for the purpose of directly connecting the respondent with the purchase of the battery.
37-38. The petitioner has also failed to prove the alleged corrupt practice of bribery at Tauntara as alleged.
Re; Respondent's alleged promise of gratification by circulating a pamphlet 'More Binjharpur Karyakrama' (My Binjharpur programme)'.
The petitioner's case is that in all the several villages mentioned in the petition the respondent promised gratification by circulating a pamphlet entitled 'More Binjharpur Karyakrama' in which the respondent made several promises regarding, inter alia, construction of roads, improvement of agriculture and irrigation, education, housing, health etc. as fully mentioned in the said pamphlet -- all with the object of inducing the electors to vote for the respondent. The respondent denies the allegations. The respondent denies that the circulation of the pamphlet amounts to any promise of gratification as alleged,
39. The question is : Does the pamphlet 'More Binjharpur Karyakrama' (My Binjharpur programme) amount to the corrupt practice of bribery as alleged? In the said pamphlet the respondent made promises to the people of Binjharpur to solve the local problem through Five Year plan and other methods which the respondent announced in the said pamphlet. The point is whether or not circulation of such a pamphlet amounts to corruptpractice of bribery, that is to say, promise of any gratification to the constituency with the object of inducing the electors to vote for the respondent. Both sides cited decisions in support of their respective contentions. It is unnecessary to cite them because each case has been decided on its facts and circumstances in the light of the well settled principles with legard to which there is no dispute.
40. The broad principles, as followed in these decisions, are these; If a candidate for election gives a promise of obtaining personal advantage to the voters, the respondent commits a corrupt practice, of bribery as defined in Section 123(1) of the Act. But it cannot be a promise of gratification, where the promise is one under which no personal advantage can be obtained by any voter, and such advantage for the benefit of the whole constituency is obtained by the respondent by using his influence in such a way that public action by the State Government in its development plans is to enure to the benefit of the residents of his constituency. It means that it is not promise of gratification when a promise is a promise relating to a public action 'and is not a promise relating to any private or personal benefit to any voter. In fact when elections are held, the very purpose of the election is that the Government and its public action would be influenced by the candidate for the benefit of the (sic) who send him as a representative. Being a representative of the voters of his constituency, it is one of his duties arid functions to influence the decisions of the Executive in such a manner that the resident of his constituency should be able to obtain full advantage of all plans prepared by and action sought to be taken by the Executive Government.
It is not an offer or promise of gratification toany of the voters, if a propaganda is carried outby a candidate for the purpose of telling the votersthat he would be only doing his duty towards themby influencing Government actions so as to obtainbenefit for them. Thus even if a candidate doesmake promise that he will try to get grievancesremedied and in fact gets the Executive to reinforce his promise, this amounts to only a promiseof public action and not individual benefit to suchpersons. Such promise does not amount to corruptpractice.
The word 'gratification' in Section 123(1) must not be interpreted narrowly but liberally and an offer made by a candidate of general amenities to public or to a section of the public irrespective of caste, creed, community and religion does not constitute an offer or promise of such a nature as to constitute bribery. The Court is always to consider whether the promise in question has degenerated to a promise of private or personal advantage in which case it will amount to promise of gratification within the meaning of Section 123(1).
41. In the present case, the opening words of the impugned pamphlet (translated) are these :
'I am contesting from the Binjharpur Police Station, for the Assembly as a Congress Candidate. The responsibility for working out the Third Five Year Plan in this country devolves upon the Congress. Besides that I promise to the brothers ofBinjharpur to solve the local problems of Binjharpur through Five Year Plan and other methods'.
'In order to execute the following matters I make this announcement.'
Thus the pamphlet starts by reference to the responsibility of the Congress for working out the Five Year Plan in this country. Then what follows in the pamphlet are the respondent's ideas of his methods for implementing Government plan under different heads, namely Roads, Agriculture and Irrigation, Flood, Burning of Houses (sic), Education, Electricity and Industry, Housing and Health, and peace and Fraternity. In this pamphlet the respondent purports to make promise to the effect that he will influence Government action and provide benefit to his countrymen. This promise is only a promise of influencing public action and does not amount to bribery. Our attention was drawn to a particular sentence under the heading 'Flood' in the pamphlet, namely, (as translated) :
'It may be mentioned, that discussion with different engineering companies in this matter is being made. The unnecessary breaches in different places will be filled up.'
Mere discussion with engineering companies does not mean that anything was being done by the respondent with any motive or object as alleged. There is no promise of any private or personal advantage in any portion of the pamphlet. The general tenor of the pamphlet is to invoke public., action which will benefit the public generally. This does not amount to gratification as alleged within the meaning of Section 123(1).
42. In the result, the appeal is dismissed with costs. Hearing fee Rs. 300/-
43. I agree.