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NasiruddIn Ahmed Vs. Haji Mahammad Yusuf - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in165Ind.Cas.489
AppellantNasiruddIn Ahmed
RespondentHaji Mahammad Yusuf
Cases ReferredTillett v. Stracey
Excerpt:
elections - calcutta municipal act (iii of 1923), sections 46, 26, 24(3), schedule ii, part i--proviso in section 46 giving eight days' time--scope of--corrupt practices--offences under the act--trial of election petition--whether criminal trial election agency, doctrine of--responsibility of candidate for agent's misdeeds--extent of--elector entered more than once in electoral roll under different numbers-whether commits offence in exercising right under section 26--exercise of second vote, if justified by section 46, proviso (b). - mcnair, j.1. in february 1935 there was a bye-election to fill a vacancy in the beniapukur constituency, ward no. 20, of the calcutta corporation.2. there were three candidates.3. haji mahammad yusuf polled 601 votes,4. dr. wahab '252' and5. nasiruddin ahmad '173'6. haji mahammad yusuf was declared duly elected. the two unsuccessful candidates have brought this petition under sections 46 and 47 of the calcutta municipal act, 1923, to have the election set aside.7. they allege corrupt practices within the meaning of schedule ii, part 1 of the act, viz.8. (1) obtaining votes of persons who were either dead or out of calcutta on polling day;9. (2) obtaining more than one vote from the same person;10. (3) publishing false and defamatory statements;11. (4) bribery, and12. (5) interference with.....
Judgment:

McNair, J.

1. In February 1935 there was a bye-election to fill a vacancy in the Beniapukur Constituency, Ward No. 20, of the Calcutta Corporation.

2. There were three candidates.

3. Haji Mahammad Yusuf polled 601 votes,

4. Dr. Wahab '252' and

5. Nasiruddin Ahmad '173'

6. Haji Mahammad Yusuf was declared duly elected. The two unsuccessful candidates have brought this petition under Sections 46 and 47 of the Calcutta Municipal Act, 1923, to have the election set aside.

7. They allege corrupt practices within the meaning of Schedule II, Part 1 of the Act, viz.

8. (1) Obtaining votes of persons who were either dead or out of Calcutta on polling day;

9. (2) Obtaining more than one vote from the same person;

10. (3) Publishing false and defamatory statements;

11. (4) Bribery, and

12. (5) Interference with the free exercise of the franchise of electors by means of threats and fraud.

13. Polling took place on February 14, 1935. The result was published in the Gazette on February 21, and the petition was filed on February 27, 1935. The petition contained most of the above charges and a schedule set out in six parts the particular voters in regard to whom the charges had been framed. Affidavits in opposition were affirmed on March 2, 1935, and affidavits in reply were filed on March 8.

14. The latter contained further details in regard to voters already mentioned and set out a further item of personation regarding a man who appears on the electoral roll as Ghulam Mohiuddin.

15. At the outset an objection was taken by Mr. C.C. Biswas on behalf of the respondent to the inclusion of the charge relating to Mohiuddin. He contended that any application under Section 46 must be made within 8 days of the publication of the result of the election in the Gazette, and that the effect of admitting this charge would be to defeat the statutory provision requiring the application to be made within a prescribed period. The petitioners, he argued, must be confined to the instances raised in the petition and to the material therein contained. Subsequent to the filing of the affidavits in reply there was an application for the matter to be heard on oral evidence, and the hearing before me commenced on June 17. It cannot be said therefore that the Mohiuddin incident was sprung upon the respondent, or that he was prejudiced by not having time to rebut the charge. Mr. Biswas admitted that he did not base his objection on this ground but relied on the wording of the Act. Mohiuddin has actually given evidence and has taken a leading part in the conduct of the respondent's case.

16. In my view, all that is intended by Section 46 of the Act is that the application should be filed at an early date (i.e. within 8 days), so that the person charged should be in a position to meet the charge at once, and to enable the matter to be enquired into so that if the charges upheld there may be a fresh election without delay. The application should set out the grounds on which the validity of the election is challenged but I can find nothing in the words of the section to prevent the applicant after 8 days from giving further particulars. The charge of personation had been levied in the petition and it is admitted that the respondent was not prejudiced in his defence owing to the addition of another incident. The guiding principle in ordinary particulars is to prevent the defence from being embarassed and to insure a fair and effectual trial and there is nothing in the Calcutta Municipal Act to show a departure from that principle. I note that a similar argument was put forward by Mr. Dickens, K.C. in the Hazel v. Viscount Lewisham, (Borough of West Bromwich case) (1911) 6 O'M and H 257, and was rejected by Ridley and Bucknill, JJ. I have accordingly admitted evidence relating to Mohiuddin.

17. Before examining the allegations in detail I will consider some legal aspects of the case.

18. Mr. B.C. Ghose on behalf of the respondent argued that the allegation were in the nature of criminal charges and must be proved with the same strictness. He contends that a 'corrupt mind' in an agent is not sufficient to justify such a finding against a candidate. I am not satisfied that that is a correct statement of the law.

19. In the first place, every one of the corrupt practices referred to in Schedule II, Part 1 of the Act is specifically made an offence if done by a candidate or his agent or by any other person with the connivance of a candidate or his agent, and 'connivance' has been held by this Court to involve some degree of knowledge on the part of the candidate or his agent Cohen v. Bepin Behary Sadhu Khan : AIR1929Cal137 .

20. Secondly, the Courts in England have decided in many instances that the trial of an election petition is not governed by the rules applicable to a criminal case.

If I were sitting hero trying an indictment or trying an action for penalty

said Mr. Baron Martin in the Tillett v. Stracey (Norwich case) (1869) 1 O'M and H 8 : 19 L.T. 615.

Before the candidate could be made responsible for another, for a crime or penalty, you would have to give evidence of direct bribery, but I am not trying a criminal case, I am trying a civil case, and the rules applicable to a civil case are, I apprehend, the rules applicable to this.

The law of agency which would vitiate an election is utterly different from that which would subject a candidate to a penalty, or an indictment and the question of his right to sit in Parliament.

21. Or as have in the Corporation,

Has to be settled upon an entirely different principle.

22. The learned Judge further stated that the relationship was more that of master and servant than of principal and agent, the master being responsible for the acts of his servant notwithstanding the directions he may have given him; and in company with Willes, J. and Blackburn, J. he decided that any person authorised to canvass was an agent.

The doctrines of election agency are much wider than those of common law agency and evidence which would be inadequate to establish agency at common law has often been held sufficient in election cases to make a candidate responsible for acts committed by other persons.

23. There can be no doubt that the candidate is responsible for all the misdeeds of his agent committed within the scope of his authority but the difficulty that frequently arises, and which has arisen in this case, is to determine whether the wrongdoer did or did not stand in the relation of agent to the candidate in respect to the particular matter of complaint. The question must always depend on the particular circumstances of each case but there are certain, guiding principles which have been, laid down for consideration in arriving at a conclusion. A man may become the agent of another either by actual employment or by recognition an acceptance and to establish agency it is not necessary to show that the candidate himself knew of and accepted voluntary services, knowledge and acceptance by other persons in control is sufficient.

I think it must be made out.

said Baron Fitzgerald in Dungannon Borough's case (1880) 3 O'M and H 101.

That a party, before he is chargeable as an agent has been entrusted in some way or other by the candidate with some material part of the business of the election which ordinarily is performed, or is supposed to be performed, by the candidate himself.

24. The entrustment maybe by implication, but that implication ordinarily must arise from the knowledge which it appears that the candidate has of the part which the person is taking in the election.

25. With these preliminary remarks I will now deal with the individual instances alleged.

26. The first charge set out in para. 6 of the petition relates to personation of voters who were not present in Calcutta on polling day. A. list of such persons is contained in Schedule A, Part 1 of the petition. The relevant provision of the Municipal Act is Schedule A, Part 1, Section 3 which includes among corrupt practices

The procuring or abetting or attempting to procure by a candidate or his agent or by any other person with the connivance of a candidate or his agent, the application by a person for voting paper in the name of any other person....

27. It has been proved conclusively that Sheikh Abdul Rahman, Ayesha Khatoon and Sheikh Rajabali were all absent on pilgrimage on polling day.

28. Bechu Mistry was in Bihar and too ill to be present. Zaman was in Rangoon. The evidence as to Mahamed Taher is inconclusive. In none of the cases has it been shown that there was any connivance on the part of the candidate or his agents. The only evidence is that their votes were tendered on behalf of the respondent. With regard to Ashraf Ali, there is more evidence. He has given evidence that be did not vote and he was not cross-examined. Yet a vote was recorded in favour of the respondent in Booth No. 1 on polling day. Nasiruddin's agent in that booth was his nephew Ghulam Mohammed who has since died. Nasiruddin's evidence is that at the polling booth Ghulam Mohammed pointed out a man to him and said 'That is the man who voted as Ashraf Ali.' The man is identified as Wali Ahmed. Nasiruddin says that his nephew challenged the vote, but not in writing, and there was no protest. Sharafat Ali the respondent's agent in booth No. 1 has no recollection and Wali Ahmed denies the charge. Wali Ahmed was the respondent's polling agent in Booth No. 2 but he had a vote which he would have to record in Booth No. 1. His evidence was that the morning was the busiest time in the booth and about 2/3rd of the voters would vote before lunch, and that he recorded his vote after lunch. The ballot papers show that the serial number of his vote was 33 and there were 300 voters in Booth No. 1, and he can give no explanation of how so early a number as 33 was recorded after lunch the necessary conclusion being that contrary to practice the vast majority of voters in Booth No. 1 voted in the afternoon.

29. Ashraf Ali's serial number was 140 and the suggestion is that Wali Ahmed voted early in his own name and after letting some time elapse came in again and voted as Ashraf Ali. The suggestion is not improbable and the circumstances are suspicious, but the charge has not been proved to my satisfaction. It is based on the statement of a dead man. There is no written challenge, and I am doubtful if Nasiruddin could really identify a man who was pointed out to him causally in the rush of the polling booth.

30. Shaik Ismail Mistry is an old gentleman said to be aged 125 and quite incapable of going to the poll, bat there is no evidence to show that the respondent or his agents were in any way responsible for the recording of a vote in his name in their favour. Two of the four persons mentioned in Schedule A, Part II of the petition are found to have voted for Dr. Wahab, and the charges in regard to the other two are abandoned.

31. Paragraph 8 of the petition and Part III of the schedule relate to plural voting.

32. Only 3 instances were pressed:

1. Haji Mahammad Yusuf;

2. Secunder Mia, and

3. Hamoo.

33. Haji Mahammad Yusuf is entered thrice in the electoral roll once as Mutwalli, a second time as executor, and thirdly in his personal capacity. These entries are, as I have stated, although there is a footnote to the electoral roll stating that only those voters marked with an asterisk are voters in a representative capacity and there is no asterisk against any of the three names.

34. Hamoo is entered as Shaik Hamoo, Mohammad Syed Hamoo and Mohammad Sayid Hamoo. It appears that he recorded two votes in Booth No. 2, one for the respondent and one for Dr. Wahab, and a third vote in Booth No. 3 for the respondent.

35. Secunder Mia was said to have voted twice being entered in two places in the roll.

36. It is admitted by the respondent that Hamoo and Secunder Mia were both working for him, but Counsel on his behalf contends that no offence has been committed. He refers to the proviso to Section 24(3) of the Calcutta Municipal Act which provides that a person who is registered as the representative of any Company, body, corporate firm, joint family or other association of individuals, or as a manager of a lunatic, or guardian of a minor, shall not therefore be ineligible for registration in his individual capacity on the same electoral roll; and to Section 26 which provides that every person registered on the electoral rot shall be entitled to vote. In this connection it is noteworthy that none of the three persons referred to comes within the exceptions in the proviso to Section 24 (3). and none of them is therefore entitled to be entered on the roll under more than one number. The entry having been made the question arises whether the same elector is entitled to exercise a vote in respect of such entry.

37. It is contended on behalf of the respondent that the number and name are both intrinsic parts of the entry in the electoral roll, and reference is made to Rule 29 which contains the questions to be put to an elector whose identity is in doubt: (1) Are you the person enrolled as fellows (reading the whole entry from the roll), and

38. (2) Have you already voted at the present election in this constituency as such voter

39. In my view each entry does suggest a different entity, for otherwise the proviso to Section 24 (3) would be inoperative, and if an elector has been entered more than once in the electoral roll under different numbers, it appears to me impossible to say that he is committing an offence in exercising the right to which he has become entitled under Section 26. Furthermore, I am by no means certain that proviso (b) to Section 46 does not justify the exercise, of a second vote even though it is wrongly recorded in the electoral roll.

40. Even, if I am wrong in my interpretation, it is quite possible that the electors now accused of personation have come to the same conclusion, and it is impossible to say that in acting as they have done they were actuated by a corrupt mind and intention. In the absence of such criminal intention no offence has been committed. (See Parker's Election Agent, 3rd Edition, p. 594), and I hold that the charges in para. 8 do not constitute an offence.

41. The charges in para. 9 are extremely vague.

42. M.A. Raquib is alleged to have been prevented from tendering his vote. His own evidence is that he found when he entered the booth that his vote had been recorded and he never even asked for a ballot paper. He said he was busy and would not bother about it. Mujibar Rahaman's evidence that he was hustled out cannot be accepted, and there is no evidence of interference with the free exercise of the franchise of an elector by any of the means specified in Schedule II, Part I (2) of the Act.

43. The same remarks apply to Syed Zain-ud-Din Hossain. He went to vote and was told by the respondent's agent Sharafat Hossain that his vote had already been exercised and the polling officer immediately gave him a tendered ballot paper on demand. At the conclusion of the evidence Mr. Bose informed me in answer to my question that the 'means' specified in Schedule II, Part (I) (2) of the Act on which he realised was fraud.

44. Fraud was never suggested in the petition and there is no evidence to show the nature of the fraud.

45. These charges have not been substantiated.

46. I now come to the two main charges of personation to which the greater part of the evidence has been directed. The first of these has been referred to as the 'Shan incident', and the other relates to the recording of a vote in the name of Ghulam Mohiuddin. The electoral roll contained the name of Mohammad Shafi, No. 880 of, Jannagar Road.

47. His vote had to be recorded in Booth No. 2 where polling agents were for Nasiruddin. Dr. De, and M.A. Jabbar;

48. for Dr. Wahab, A.S.M.K. Rahaman; and

49. for Haji Yusuf, Wali Ahmad and Samauddin Ahmad.

50. Shafi is said to be an absconder and to have been out of Calcutta on that day, nevertheless some one came in and recorded his vote.

51. Sometime later in the day another person came and wanted to vote as Mohammad Shafi. Dr. Wahab's agent A.S.M.K. Rahaman objected on the ground that Shafi had already voted, but as the man persisted Rahaman challenged, and a challenge paper was issued in conformity with Rule 32. The elector was then asked to sign and instead of signing 'Mohammad Shafi' he signed 'Mohammad Yusuf' in Urdu. The presiding officer was unable to read Urdu, but the signature was translated to him and the Police were then called and the elector to whom I shall refer as 'Yusuf' was given into custody. There is no doubt that 'Yusuf' signed as stated but no challenged vote list is forthcoming. Rahaman who made the challenge says that Yusuf was brought to the booth by Atoo khalifa who is alleged to be one of the respondent's agents. Rahaman's suspicions were aroused by seeing him with Atoo khalifa who he says was working for the respondent and bringing candidates to the poll. He also says that 'Yusuf' made a confession or statement to the Police after arrest. Dr. De, Nasiruddin's election agent in that booth, says that no one identified. 'Yusuf' but that 'Yusuf' said he could get himself identified by Atoo khalifa.

52. Nasiruddin says that he heard about the incident from Dr. De and that after the arrest the respondent's agent asked him to let 'Yusuf' off, but Nasiruddin refused to interfere as the matter was in the hands of the Police. Later the respondent himself came to his tent with a, large crowd of people and asked Nasiruddin to let him off.

53. The respondent denies being present but his presence is sworn to by Mujibar Rahaman, a retired Police Inspector and one of Nasiruddin's agents, He says that he was asked to intervene, as having some influence with the Police, to have all proceedings stayed on the ground that the man was a neighbour and 'such things should not happen.' He mentions a number of persons who were present including the respondent himself.

54. Dr. Wahab describes the incident as occurring in his presence between 3 and 4. p.m. He says that Atoo khalifa brought 'Yusuf inside the booth and the respondent's agent, Nasiruddin Ahmed, identified 'Yusuf' as Shafi. After the arrest the respondent and Sharafat Hossain said: 'He is a poor man, let him go.'

55. Wali Ahmad, the respondent's agent in Booth No. 2, describes the incident as related above, but he affirms that he also objected to 'Yusuf' voting. He cannot explain why in that case it was necessary to get the signature on a challenged sheet, but says that the polling officer insisted. After the man was detained this witness was relieved by Shamsuddin Ahmed, who merely heard of the incident later.

56. The respondent in his evidence denies that he was present or that he himself or anybody on his behalf asked Nasiruddin to intervene or to have the matter hushed up.

57. Apart from any question of the credibility or demeanour of the witnesses it seems to me unlikely that the respondent would not be informed of an incident of this kind which was at once reported to the other candidates and which if the petitioner's evidence is true created some little excitement at the time.

58. Sharafat Hossain, the respondent's only polling agent in Booth No. 1, denies that he tried to have the charge against 'Yusuf' dropped. He also makes the amazing statement that he did not know the names of any of the polling agents of the other candidates.

59. There can be no doubt that the incident took place very much as related by the petitioner's witnesses and I accept their story that the respondent was present and expressed the desire that the incident should be hushed up and no proceedings taken against 'Yusuf.'

60. It is contended that the evidence is not sufficient to connect the respondent with the incident so as to show that 'Yusuf was acting with his knowledge or connivance.

61. It is necessary, therefore, to see whether there is any other evidence which shows a connection. There is evidence that Atoo Khalifa introduced 'Yusuf' to the polling booth, that 'Yusuf' said Atoo Khalifa could identify him and that after 'Yusuf' had made a statement to the Police Officer the latter went in search of Atoo Khalifa who had in the meantime removed himself from the premises. There seems little doubt that Atoo is a person who is always ready to mould circumstances to his own advantage. I see no reason to doubt the evidence that he worked for Nasiruddin for two days and having got some money out of him offered his services to the respondent. After the election he had a conversation with Mujibar Rahaman in which he offered for Rs. 100 to supply the names of thirty persons who had falsely impersonated voters. Tins offer was refused.

62. It is also clear that at one time the respondent intended to rely on his evidence. Sharafat Hossain,--a witness who impressed me most unfavourably,--after trying to say that he had not met Atoo Khalifa for 12 or 14 months admitted that he actually met him in the High Court building in March of this year. 'In connection with some affidavit.' Sharafat says be was going out as Atoo Khalifa was going in and they just salamed and went their ways. Sharafat at first stated that he went to the respondent's attorney's office voluntarily and without being asked and swore an affidavit; later he qualified this by saying that the respondent told him of the charges against him and asked him to go to the attorney's office. His evidence is frequently contradictory and I am not willing to accept it where it is in conflict with the evidence for the petitioner.

63. It appears from the stamp register that the respondent's attorney in March 1935, purchased a stamp for an affidavit of Atoo Khalifa so that there can be no doubt that at one time he intended to rely on Atoo Khalifa's evidence. He did not do so eventually and it is not unfair to assume from what we have heard of him that Atoo Khalifa was too dangerous a witness. There is evidence that Atoo Khalifa's address is Jannagar Road and a leaflet Ex. L. calling upon the electors to support the respondent's candidature is signed by amongst others Atoo Khalifa of Jannagar Road.

64. There can be little doubt that the signatory to the leaflet is the Atoo Khalifa with whom we are concerned.

65. In regard to Ex. 'L' and other leaflets the following facts occurred. While the respondent was in the witness-box an employee was brought on sub poena from the Sitara-i-Hind Press and produced a bill for posters and leaflets (Ex. U) addressed to the respondent Haji Mohammad Yusuf. The bill was put to the respondent who made various contradictory statements. Mr. Bose for the petitioners then suggested that the Court should call a witness from the press to produce the relevant books.

66. I intimated my willingness to do so, but I suggested that the petitioner should examine the witness, and that the respondent should be afforded a full opportunity for cross-examination. This arrangement was agreed to by Mr. Biswas, the Senior Counsel for the respondent but when the witness was called next morning as arranged, Mr. B.C. Ghose, the junior Counsel who had been absent on the previous day objected to the vidence being given. I pointed out that the evidence in my view, was most material and that I had adopted the course which had been agreed to on the previous day so that the respondent alone should have the right of cross-examination and should be in no way prejudiced by the production of this witness at so late a stage in the trial.

67. In the circumstances I overruled the objection and allowed the witness Manjur Hossain to be called as agreed. Manjur Hossain did his utmost to prevent the respondent's connection with the bills and leaflets from being divulged, but it appears from Ex. U that the press looked to the respondent for payment of the cost of printing and the witness eventually admitted that the order had been placed by the respondent. Mr. Bose offered to call the accountant who had actually made the entries under the supervision of Manjur Hossain that this was objected to by the respondent and 1 held that in the circumstances his evidence was unnecessary.

68. We find, therefore, that in a leaflet printed under instructions from the respondent. Atoo Khalifa has been named as one of the persons soliciting votes for the respondent. In my opinion, this alone is sufficient to constitute him an agent as that term has been construed in election cases.

69. But, apart from this, there is a considerable body of evidence which I find no reason to doubt that Atoo Khalifa canvassed for the respondent, and was actually engaged during polling day in fetching electors to the poll and he was seen in the polling booth. After the Shad incident he disappeared and we only hear of him afterwards in connection with the affidavit which he never swore, and the offer of 30 personators for Rs. 100 which was never accepted.

70. I find that the charge is established and in respect to the Shali incident, a corrupt practice was committed by the respondent's agent within the meaning of Section 3 of Part I of Schedule II of the Calcutta Municipal Act.

71. The next charge for investigation relates to Gholam Mohiuddin. It will be remembered that this was the further charge of personation raised in the affidavit in reply.

72. It is charged that Mohiuddin Ahmad, a supporter, worker and agent for the respondent wrongly personated Ghulam Mohiuddin, voter No. 1181 on the electoral roll.

73. There is no question as to the person who voted. He has given evidence in Court, and the main question is whether he was in fact the person entered in the electoral roll as Ghulam Mohiuddin.

74. Once more we are concerned with a man who seems to be entirely unscrupulous. The petitioners story is that he worked for Nasiruddin for two days on February 4 and 5. He then drafted a sample of voting cards to be distributed among the electors, and having received Rs. 10 to get the cards printed, he went away and failed to return.

75. He had already come to Dr. Wahab in January for work and had failed to get more than Rs. 1 out of him. We next find him presiding at a meeting on February 9, at which it was decided to support the respondent's candidature and he admits that he did support him at that meeting.

76. On polling day he came into the polling booth to vote as Ghulam Mohiuddin No. 1181 of 27, Nur Ali Lane. He was promptly challenged by Mohammad Taher, Nasiruddin's polling agent who said that his real name was Mohiuddin Ahmed. The polling officer on request provided a challenge sheet which was signed by Mohammad Taher. The elector signed his name at Ghulam Mohiuddin and gave his address as 'Ice Factory Lane.' That address was later scored out and the address put in as '27, Noor Ali Lane.' The challenger deposes that the alteration was not made in his presence. Mohiuddin, as I shall call the alleged personator, says that he made the alteration at the request of the polling officer, because that was the address of the electoral roll.

77. Considering that the object of the challenge sheet is to obtain data for verifying the identify of the person challenged, it seems unlikely that the polling officer would call upon him to make a most material alteration. The challenge sheet shows the respondent's agent Abdul Aziz as identifier of Mohiuddin and Mohammad Taher says that the respondent was present and said that the person challenged was Ghulam Mohiuddin.

78. Dr. Wahab was present when the challenge took place and deposes that Mohiuddin used to reside at Ashgar Mistry Lane 5 or 6 months before polling day when he went to 22, Ice Factory Lane. The petitioners' contention is that the name of the person, challenged is Mohjuddin that his address is not Noor Ali Lane and never has been.

79. Abdul Latif a distant relation who has known him for 15 years deposes that he lived at Ashgar Mistri Lane in 1931 and 1932 when the electoral roll was being prepared, with a person named Kashabadaja who, it was suggested by the respondent, had quarrelled with Mohiuddin. It is suggested by the respondent that Mohiuddin voted in this name and number for Nasirddin at the General Election and that he considered he had now a bona fide right to that vote. Mohiuddin can only say that to the best of his recollection he voted for Nasiruddin.

80. He is proved to be a voter in Ward No. 18 under the name of the 'Mohiuddin Ahmed of Ashgar Mistry Lane' and he has signed a registered lease in November 1934, as 'Mohiuddin Ahmad' and he admits that that is the name by which he is generally known. He gives no explanation why he shonld be entered in Ward 20 as 'Ghulam Mohiuddin.' Moreover, his mother is described in the electoral roll as 'guardian of minor Mohiuddin Ahmad'. He is not a minor but there is no doubt that he is the person described as Mohiuddin Ahmad.

81. Witnesses have been called from the Corporation who depose that the elector who was entered in the roll was entitled to vote as being a hackney carriage licensee and not as a person paying rent. For the respondent it is contended that Mohiuddin was entitled to the vote as a sub-tenant of Abdul Sattar and was not guilty of any corrupt intention in exercising a vote. The Corporation witnesses were, cross-examined at length to show that he might have been entered subsequently on the register by reason of an application under Section 20 (1) B of the Act, but the B clause register, as it is called, showed no such application.

82. In my opinion it is clearly established that the Mohiuddin who was challenged was not the person entitled to Vote under the entry Ghulam Mohiuddin No. 1181 in the electoral roll. While giving evidence Mohiuddin attempted to deny his writing on Ex. 'A' which was the draft election card but was bound to admit in cross-examination that if it were not an exhibit in this case, he would not be able to tell the difference.

83. I am satisfied that the signature 'Mohiuddin Ahmad' on Ex. 'H' was written by him.

84. He was asked to write in Court but refused to do so on the ground that he had a boil on his hand which made writing impossible. Throughout the previous day he had been writing continuously in Court giving instructions to Counsel who was cross-examining on behalf of the respondent, and I am convinced that his refusal to write was due to his fear that he would make it clear that the signature on Ex. 'H' was similar to his ordinary signature. The respondent has tried to suggest that he hardly knew Mohiuddin and he even goes so far as to say that he knew none of his qualifications before he asked for Mohiuddin's help in his candidature.

85. The casual meeting near Entally market is not a convincing story and the respondent's evidence throughout is a mass of contradictions and was given in a halting manner which gave me the impression that he considered more the effect that his answers would have on his case than of their approximation to the truth.

86. I am satisfied on the evidence that Mohiuddin acted as agent for the respondent, that the knew he was not entitled to vote as Ghulam Mohiuddin, voter No. 1181, and that the offence of personation has been established in this instance also.

87. The remaining charges refer to an attempt to bribe Dr. Wahab as alleged in para. 14 of the petition and a threat to Nasir-ud-din unless he withdrew from the candidature.

88. The corrupt practice, if any, in the case of Nasiruddin must come under Clause 2 of Part 1 of Schedule II, The offence consists in interference with the right of any person to stand or not to stand or to withdraw from standing as a candidate by means of violence, injury, restraint, or fraud and any threat thereof.

89. It is urged on behalf of the respondent that the 'means' whereby Nasiruddin's right to stand as a candidate were interfered with have never been alleged or specified.

90. Mujibur Rahaman says that early in February he and a number of 'mostly respectable people' came to Nasiruddin's house and suggested that he should stand down in favour of the respondent. It was, he says, more or less a meeting of the three candidates to decide who should withdraw and started as a friendly discussion until Mulla Jan Muhammad began to use threats to which the others objected. According to Nasiruddin the threats consisted of propaganda to the effect that he was a member of the anti-terrorist league which might lose him the support of the Hindu community.

91. There is nothing that leads me to believe that the respondent had any connection with the deputation or that he was accessory to any threats that may have been made by Jan Muhammad.

92. Jan Muhammad is obviously a firebrand and his sympathies are undoubtedly with the respondent, but there is no evidence that he was an agent of the respondent or that he acted with the connivance of the respondent or his agent.

93. After the meeting at Nasiruddin's house the deputation went on to Dr. Wahab and I have no doubt that they offered Dr. Wahab a sum of Its. 200 to withdraw, which Dr. Wahab refused. Again there is no evidence that the respondent or his agents were in any way connected with the offer and these two charges must be dismissed.

94. The suggestion that undue influence was brought to bear on Dr. Wahab by his landlord Sharafat Hossain, though not abandoned, has not been pressed and I hold that it has not been established.

95. The petitioners have proved corrupt practices in regard to the Shaft incident and Mohiuddin, and I am of opinion that these corrupt practices were committed with the connivance and sanction of the candidate and his agents and the election of the respondent is void.

96. The greater part of the evidence has been directed to the proof of the charges which have been established and the respondent must pay to the petitioners two-thirds of their costs to be taxed as of a hearing.


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