# [1969] 2 S.C.R. 1019

- **Citation:** [1969] 2 S.C.R. 1019
- **Court:** Supreme Court of India
- **Decided:** 1968-11-29
- **Case number:** Civil Appeal No. 1519 of 1968
- **Bench:** Hidayatullah, 0. K. .Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1969-2-s-c-r-1019-4550
- **Pages:** 14

## Headnote

Representation of the People Act, 1951 s. 123(5)-Employment of
cars for conveyance of voters-If adequately pleaded and proved.
Election /aw-Trial I udge calling witnes.es and examining documents
suo motu-/f empowered to do so.
Code of Civil Procedure 0. XVI r. 14-A.pp/icabi/ity and scope of.
The appellant. was elected to th~ Madras Llgislath:e Council from
the Madras District Graduates Conslltuency.
His elec!Ion was challenged by the Respondent, his nearest rival candidate by an election petition
alleging, mainly, that a large number of cars bad been employed for
the conveyance of voters to the polling booths in violation of s. 123(5)
of the Representation of the People Act, 195 I. The High Court bJld that
the corrupt practice was established and set aside the appellant's election. It also declared the respondent elected in bis place. The o~ginal
order passed by the High Court did not name the appellai;it ~ ~lty of
corrupt practice but the Court, by a subsequent order rev1ewmg its pre-
. vious order, gave a declaration to that effect.
In the appeal to this Court, it was .ontended by the appellant that
the plea in the petition regarding violation of s. 123 ( 5) was va1111e and
not sufficiently defined so as to Jl.ive him notice of the cbarge be bad to
meet, and furthermore, that the learned Judge who tried the case improved both the pleading on the subject and the evidence led by the election
petitioner by calling certain witnesses and looking into documents which
he bad no power to do. It was therefore contended that all
the
evidence which the learned Judge collected suo motu should not be looked at and if the case .of the petitioner was confined to the bare plea raised, the petition would deserve to be dismis.sed because it was not clear in
the plea and was Jacking in proof.
HELD : dismissing the appeal : On the facts, the High Court bad
rightly found that many cars were employed for
the conveyance of
voters in the constituency.
The circumstantial chain of evidence was
sufficient to show the connection between the appellant and the use of
the cars for the conveyance of
voters. The corrupt practice under
s. 123(5) was therefore brought home. [1031 F; 1032 A-Bl
( i) The plea in the petition in essence was that cars were used for
the purpose of conveying voters contrary to the prohibition contained in
the Election Law. The names of the booths and the divisions in which
the booths were situated together with the particulars of the cars and
the persons primarily concerned with cars at the polling booths
had
been mentioned.
The connection of the appellant with the use of the
c_ars had been specifically .Pleaded. Sufficient particulars of the allegatton had therefore been given and the
rest were matters of evidence
which did not require to bo pleaded.
. (iil. The power of a Civil Court to summon court witnesses is cont~10ed rn 0. XVI r. 14 of the Code of Civil Procedure. The Representatton ?f People Act enjoins that all the powers under the Code can be
exercised and all the procedure as far as may be applicable to the trial
SUPREME COURT REPORTS
[ 1969) 2 s.c.11..
of civil suits may be followed
in the trial of election petitions. The
A
Court trying an election petition therefore bas the power to summon a
_;_,,,,
court witness if it thinks mat the ends of jusuce require or that the case
before it needs that kind of evidence. The policy of election. law seems
to be that 'for the establishment of purity o! elections, investigation into
all allegations of malpractices including
corrupt practices at elections
should be thoroughly made. In the present case a large number of cars
were obviously used presumably for the purpose of carrying voters to
the booths.
ln the face ot this volummous evidence it was open to the
B
judge, if evidence was availabh: to establish who bad procured or hired
vehicles, to summon witnesses who could depose to the same.
Such a
power was therefore properly ex.ercised by the learned judge. [1028 B-F)
~·
(iii) In

## Text

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R. M. SESHADRI
G. VASANTHA PAI
November 29, 1968
1019
[M, HIDAYATULLAH, C.J. AND 0. K. .MITTER., J.]
Representation of the People Act, 1951 s. 123(5)-Employment of
cars for conveyance of voters-If adequately pleaded and proved.
Election /aw-Trial I udge calling witnes.es and examining documents
suo motu-/f empowered to do so.
Code of Civil Procedure 0. XVI r. 14-A.pp/icabi/ity and scope of.
The appellant. was elected to th~ Madras Llgislath:e Council from
the Madras District Graduates Conslltuency.
His elec!Ion was challenged by the Respondent, his nearest rival candidate by an election petition
alleging, mainly, that a large number of cars bad been employed for
the conveyance of voters to the polling booths in violation of s. 123(5)
of the Representation of the People Act, 195 I. The High Court bJld that
the corrupt practice was established and set aside the appellant's election. It also declared the respondent elected in bis place. The o~ginal
order passed by the High Court did not name the appellai;it ~ ~lty of
corrupt practice but the Court, by a subsequent order rev1ewmg its pre-
. vious order, gave a declaration to that effect.
In the appeal to this Court, it was .ontended by the appellant that
the plea in the petition regarding violation of s. 123 ( 5) was va1111e and
not sufficiently defined so as to Jl.ive him notice of the cbarge be bad to
meet, and furthermore, that the learned Judge who tried the case improved both the pleading on the subject and the evidence led by the election
petitioner by calling certain witnesses and looking into documents which
he bad no power to do. It was therefore contended that all
the
evidence which the learned Judge collected suo motu should not be looked at and if the case .of the petitioner was confined to the bare plea raised, the petition would deserve to be dismis.sed because it was not clear in
the plea and was Jacking in proof.
HELD : dismissing the appeal : On the facts, the High Court bad
rightly found that many cars were employed for
the conveyance of
voters in the constituency.
The circumstantial chain of evidence was
sufficient to show the connection between the appellant and the use of
the cars for the conveyance of
voters. The corrupt practice under
s. 123(5) was therefore brought home. [1031 F; 1032 A-Bl
( i) The plea in the petition in essence was that cars were used for
the purpose of conveying voters contrary to the prohibition contained in
the Election Law. The names of the booths and the divisions in which
the booths were situated together with the particulars of the cars and
the persons primarily concerned with cars at the polling booths
had
been mentioned.
The connection of the appellant with the use of the
c_ars had been specifically .Pleaded. Sufficient particulars of the allegatton had therefore been given and the
rest were matters of evidence
which did not require to bo pleaded.
. (iil. The power of a Civil Court to summon court witnesses is cont~10ed rn 0. XVI r. 14 of the Code of Civil Procedure. The Representatton ?f People Act enjoins that all the powers under the Code can be
exercised and all the procedure as far as may be applicable to the trial
SUPREME COURT REPORTS
[ 1969) 2 s.c.11..
of civil suits may be followed
in the trial of election petitions. The
A
Court trying an election petition therefore bas the power to summon a
_;_,,,,
court witness if it thinks mat the ends of jusuce require or that the case
before it needs that kind of evidence. The policy of election. law seems
to be that 'for the establishment of purity o! elections, investigation into
all allegations of malpractices including
corrupt practices at elections
should be thoroughly made. In the present case a large number of cars
were obviously used presumably for the purpose of carrying voters to
the booths.
ln the face ot this volummous evidence it was open to the
B
judge, if evidence was availabh: to establish who bad procured or hired
vehicles, to summon witnesses who could depose to the same.
Such a
power was therefore properly ex.ercised by the learned judge. [1028 B-F)
~·
(iii) In the present case it was not possible to reach the conclusion
that as the voters were brought to the polhng
booths in 11iolat10n of
s. 123(5), the result of the election had been materially affec<ed.
In a
single transferable vote, it is very difficult to say how the voting would
have gone, because if all the votes which the appellant had got, had gone
to one of the other candidates who were eliminated at the earlier counts,
those candidates could have won. The declaration of the respondent's
election: would be merely a guess or surmise as to the nature ot the voting which would have taken place if the corrupt practice had not been
p<\l'Petrated and the High Court's direction declaring him ele<:ted
must
therefore. be set aside. [1032 B-D]
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(iv) The appellant was properly named as guilty of corrupt practice
although the order was incorporated by the learned Judge through a review. It was his duty to have named persons who. had been guilty of
corrupt practice and he made this up later., There is no need for any
specific power for review since the power to name any person guilty of
corrupt practice is already contained in the Act.
Whether it comes in
the original judgment or by a supplementary or complementary order,
is not much to !he purpose; that order was correctly made. [1032 El
E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1519 of
1968.
Appeal qnder s. ll 6A of the Representation of the People
Act, 1951 from the judgmerit and order dated May 28, 1968 of
the Madras High Court in Election Petition 11 of 1967.
F
R. M. seshadri and R. Gopalakrishnan, for the appellant.
S. V. Gupte, A. C. Muthanna, S. S. Javali, Anjali JC Verma
and 0. C. Mathur, for respo,ndent No. 1.
G. Ramanujam and A. V. Rangam, for intervener.
The Judgment of the Court was delivered by
Hidayatullah, C.J., This appeal is directed against the judgment of the High Court of Madras, 28th May 1968, by which
the election of the appellant Seshadri has been set aside.
The
election in question was to the Madras Legislative Council from
the Madras District Graduates Constituency.
That constituency
consisted of 19,498 votes and the total votes poll.ed were
12,153. Since the voting wa> by a single transferable vote, three
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Sl!SHADRl v. VASANTHA (Hidayatullah, CJ.)
10:.l l
out of the five candidates were .eliminated at different counts with
the result that their votes were transferred to the second person
named by the elector on the ballot. At the final count the appellant Seshadri received 5643 vote> and G. Vasantha Pai (his nearest
rival) who is the first respondent in the appeal received 5388
votes.
Seshadri was, therefore, elected by a majority of 255
votes.
The election petition was filed by G. Vasantha Pai to question the election of Seshadri on many grounds. Only one ground
prevailed, namely, that he had employed cars which had been
hired or procured for the conveyance of the voters to the pollrng
booths which numbered 73 in this constituency.
The
other
charges were numerous but they need not be mentioned here because in our opinion this charge has been substantiated. It may
be mentioned that Seshadri filed a petition of recrimination but
it was dismissed because he failed to furnish security required
under the Act. Later he corrected this mistake but the petition
was not accepted because it was held to be delayed.
The learned Judge who heard the case held that instead of
Seshadri, Vasantha Pai deserved to be declared elected under
the law.
lo this appeal, therefore, Seshadri contends that the
decision in his respect was errone6us and in the alternative that
in any event Vasantha Pai could not be declared as the successful candidate.
We shall deal with ·these two points separately.
It may further be mentioned that in the original order passed by
the learned Judge he had not named Seshadri as guilty of corrupt practice.
By a subsequent order he reviewed his previous·
order and gave a declaration. This point also will require to be
considered in this judgment.
The aliegation in the election petition was that a large number of motor cars were hired or procured from various sources
for the conveyance of the voters to the polling booths. These
were sometimes occupied by persons wearing badges which bore
the name of Seshadri and sometimes were received at the polling
booths by persons who wore the same badges. From this, it is
inferred that the motor cars were used for the conveyance of
voters by Seshadri as one of the contesting candidates.
Such
conduct, if it is establi~hed, amounts to a corrupt practice under
s: 123 ( 5) of the Representatio~ o~ People Act. The short quest10n, therefore, on the first pmnt 1s whether Seshadri was guilty
of this corrupt practice.
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The app~al has been fought by Seshadri on the grounds that
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the plea which was inclu~ed on this .head in the election petition
was vague and not sufficiently clefimte so as to give him notice
?f the charge he had to meet, that a charge of corrupt practice
1s of the nature of a criminal charge and must therefore be
1022
SUPRBMB COURT ltBPORTS
[1969) 2 s.C.R.
proved by the election petitioner himself beyond all reasonable
doubt, that there exists some room for doubt and therefore he
should have the benefit of it and that the learned Judge who
tried the case improved both the pleading on the subject and
the evidence led by the election petitioner by calling certain witnesses and looking into documents which he had procured on
his own behalf. It is therefore contended that all the evidence
which the learned Judge collected suo motu should not be look-
.ed at and the case of the petitioner should be confined to the
bare plea which was raised in this case. If this is so, says
Seshadri, the election petition deserves to be dismissed because
the case as found was not clear in the plea and was
certainly
lacking in the proof as required by law.
Since the matter is om~ fought primarily with regard to plead-
,ings in the case, we shall begin by setting out the pleas which
have been advanced by the election petitioner. The pie.a consists of several parts. The election petitioner states that the
Swatantra }'arty and its agents conveyed the voters to and from
the polling booths in certain cars hired or procured from M/s
Kumarswamy Automobiles and T. S.
Narayanan,
Authorised
Tourist Taxi Operators.
The petitioner goes on to say that the
detailed analysis of the use of the cars and particulars of the
user are given in a schedule attached to his petition. That
schedule names a large number of cars which were used and at
many polling booths in different divisions for the
purpose of
carrying the voters to the polling booths.
Some of these cars
came admittedly from the garage of Messrs.
Kumarswamy
Automobiles and some others from the other motor garage named
by us or were loaned for the day by certain private owners including companies.
The essence of this plea is that cars \\ere
procured or hired for the conveyance of the voters.
There is,
however, no mention in the plea as to who had hired the vehicles
or caused them to be procured and it is this fact which has been
made much of by Seshad1i in the appeal before us. His contention is that without the particulars being sufficiently full and precise, it was not possible for him to controvert the case set up
against him, particularly as the case of the election petitioner
was supplemented by the learned Judge by calling at a later stage
court witnesses who deposed to the connection between the cars
and Seshadri.
We have, therefore, to deiermine first whether
the pie~ which was raised was sufficient for the purpose of investigation before we go to see whether the plea has
received
adequate support through evidence.
Seshadri personally argued his appeal on two separate occasions.
On the first occasion he confined himself entirely to the
plea as he expounded it and urged in support that the plea in the
election petition did not allege anything nor did the evidence in
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SESllADRI v. VASANl'HA (Hidayatullah, C.J.)
1023
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support establish anything further.
But before the
case con·
eluded Seshadri made a request to us that as he had m1sunder·
stood his own position with regard to the appeal, regard being
had to certain observations of the Court, he had not argued the
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case fully on the first occasion and he should be allowed an opportunity to supplement his arguments by urging the points de nova.
Since Seshadri was conducting his case in person and appeared
to be under some emotional stress, we felt that the ends of justice
would be satisfied if we accorded him a second opportunity and
this is how the case was set down again for hearing.
On the
second occasion Seshadri
supplemented his
arguments
with
numerous citations from the law reports in support of two propositions, namely, that the particulars should be complete before
the evidence could be looked into and secondly that amendment
of the pleadings through evidence is not permissible.
It may be mentioned here that the evidence in the case discloses that not one, two or three cars were used but as many as
63 cars were employed. This evidence has been weighed by the
learned Judge. He has gone critically into every aspect of it and
come to the conclusion that many cars in fact were used.
The
learned counsel for Vasantha Pai placed in our hands it tabulated
statement of the evidence bearing upon the use of the cars and
having looked into the judgment of the learned Judge as also
the evidence with the aid of the tabulated statement, we are satisfied and it is sufficient to say for us that we entirely agree with
the conclusion of the learned Judge that many cars were, in fact,
used for conveyance of voters in this constituency.
The alternative suggestion that on some of the days an election from the
Teachers' Constituency was going on and that since the polling
booths were sometimes located for the two constituencies in the
same building, it is possible that the cars were used for that election and not this, does not merit any consideration. The suggestion is extremely vague and the evidence even more tenuous. It
is said that one "'.aradachar.i .was responsible for the hiring of
the cars and that m our op1mon does not stand either substantiated or any scrutiny. We are therefore satisfied with the findmg of the learned Judge in the High Court that cars that were
empl~yed .for con.veyance of voters and that they were in fact
use~ m this constituency and none other. The question then remams as to who was responsible for this?
.
Now the plea on this subject, as we have said is contained
m several parts of the election petition. One part ~e have summansed abo~e. The second part was that the Swatantra Part
was supportmg ~eshadri and that the workers of the Swatantr~
Party were wor~mg strel'.ously for his success. From this it l1as
been reasoned m the High Court that the Swatantra Part wa
an agent of Seshadri.
Its actions therefore would b h' . ~t·
s
L6Sup.C.l/69-14
e is ,tc ions
l 024
SUPREME C:dURT REPORTS
[1969] 2 s.c.R..
if he was a consenting party. In this .connection it i:; also stated
that Seshadrl was being supported by some persons connected
with him who helped him by procuring these vehicles for the conveyance of the voters.
In the schedule which is filed with the
plaint a large number of cars is mentioned and the schedule
shows in one of its columns to which polling booths were the
voters carried. It is too detailed to be reproduced here. Suffice
it to say that it contains names of six divisions and 17 polling
booths.
It also mentions over two dozen cars which were so
used. In the body of the election petition, the petitioner further
stated as follows :
"Besides Tourist Taxis, the petitioner understands
the Private Co=erc:ial Firms and Cinema Producers
placed at the disposal of the first respondent their cars
for conveying voters. The persons who were conveying
the voters were members of the Swatantra Party, who
were acting as the Agents of the first respondent under
the guidance in particular of Mr. H. V. Hande.
The
Agents of the first respondent wore a distinctive badge
with R. M. Seshadri printed in bold letters attac:hed to
a blue ribbon and pinned to their shirts.
They were
either escorting the voters or receiving them at the polling stations specified above. In Booth Nos. 60 to 65,
prominent among the persons so escorting was Violin
Mahadevan who had a badge pinned to his shirt and
who the petitioner understands is a member of the
Swatantra Party.
In Saidapet South,
the
petitioner
states, the car MSS 3336 conveying the voters was in
charge of an Advocate's Clerk by name T. K. Vinayagam of No. 16, Karani Garden II Street,
Saidapet,
Madras-15. The said Vinayagam 'was wearing a badge
of Mr. Seshadri. At Raja Annamalaipuram the petitioner learns that a green-coloured Station Wagon
MSP 5398 was in charge of Mr. Venkataraman, member of the Swathanthra Party and residing at 30, IV
. Main Road, Raja Annamalaipuram, Madras-28.
The petitioner states that in almost every · polling
booth, Tourist Taxis and cars engaged by the first respondent were being used by the Swatanthra Party
Agents for·conveying voters."
Seshadri contends that in this plea only four names are
mentioned, namely, H. V. Hande, Violin Mahadevan, T. K. Vinayagam and Venkatraman. He starts therefore by analysing whether
the connection between these persons and him had been succ.~ss
fully established and further whether they were responsible for
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SESHADR! v. VASANTHA (flidayatul/ah, C.J.)
1025
conveying voters to the polling booths in the cars. He examines
critically the evidence of these witnesses before us and also the
other evidence bearing upon the subject and contends that the
evidence taken as a whole does not establish their connection
with him or with the voters or with the cars. We shall, therefore,
begin by considering what was said about these persons by
Seshadri.
In regard to Hande, Seshadri's contention is that no other
person had spoken about Hande excepting the petitioner (P.W.
33) and he spoke about him only in one place. He therefore
states that tht: evidence on this part is extremely insufficient
because it depends upon the interested word of the petitioner himself.
He refers us to his deposition contained in pages 419 to
531 of the Paper Book, but he draws our attention in particular
to certain passages where only one car was mentioned by him
in connection with Hande.
That car was
MSR 7065.
The
evidence of the election petitioner was that as he was emerging
from Doraiswamy Road he found that this car was going past
him with a gentleman with a blue upper cloth.
The gentleman
looked at him and he found that it was Hande. According to
Seshadri this evidence was not sufficient to show that Hande was
conveying voters to the polling booth. On this part of the case
Seshadri is right because the evidence of the complicity of Hande
with the hiring or procuring of the cars was not established nor
his complic~ty with regard to the carriage of voters to the polling
booths. .With regard to Vmayagam, Seshadri's argument is that
the fact is deposed to by the election petitioner himself who said
that he .had seen a car with a lady and a gentleman arriving at
the polhng booth and that a lawyer's clerk opened the door and
received them.
This car bore the number MSS 3336
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is ev1 ence IS sought by the election petitioner through the
evidence of Laxshaman Hegde (P.W. 15) who said that he had
see~ an Ambassador car carrying two voters just halting at the
pollmg booth.
Two lvo~ers whom he knew from before came
do~n from the car. A short gentleman' directed them to the
pollmg booth. Vasantha Pai then asked the witness if th
was known to the witness. As he did not know the namee P;[~~~
gentleman he could not tell him but Vasantha Pai n t d th
i~fil~:r b~o:e w~~r.lat~hii~~:@~a ~~
0 ~=c:ri~'!s~:s v~.e~se at th:
b;ehta:i: I~.w~1ch ~~ obtained this information has ~~%agi~
~e ,P~s~; c~~c!::a'.
10
nWh~:v!~~~a:a to b have obtaiD;ed it fr?m
mcnmmatmg m a worker of the
Y e: . there Is nothmg
H · polling booth
p Jr
party receivmg a voter at the
but there is ~othi~gmt~ ~1~~ i~a~~~t 1~an~hss w~thin 100 meters
the door of a car in which a voter ha w
.at J ey cannot open
of the charge, as Seshadri correctly po~n~~r~:et ~aJ'~~aft~:~~
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SUPREME COURT REPORTS
ll969J :i S.C.R.
kam was wearing a badge such as we have described and t.hat of
course is a different matter and we are not concerned with
1t
here.
On the whot.e, therefore, this evidence does not show that
the cars were hired by Seshadri. It only furnishes some link in
the circumstantial chain to which we shall later refer and that
in our opinion is the only use to which this evidence can be put.
The next person connected with the use of the car is Venkatraman.
Three persons deposed to his connection. Of these one
is the election petitioner himself; the others are P.Ws. 23
and
27.
Seshadri argues that we should not believe these witnesses;
one because he is himself a party and the other two because they
were connected intimately with the prospects of Vasantha Pai.
K. V. Padmanabha Rao (P.W. 23) is said to be the junior of
Vasantha Pai and was canvassing for him.
He was
standing
near the vehicle with a list, presumably of the voters, and at that
time several vehicles arrived there.
He stated that he connected
Venkataraman with Seshadri because he was moving about in
the company of one Sivasankaran (Junior of Seshadri) in
the
!Ind Main Road. He had also seen him with Sivasankaran going
with lists in his hand from house to house.
Later he found out
from some of his friends what was the purpose of this visit and
was. told that they were asking the voters whether they needed
any conveyance for the next day's polling, as they had command
over a large number of vehicles.
The latter part of the evidence
is hearsay and Seshadri is perfectly right in
claiming
that
it
should not be accepted.
The fact remains that the witness did
see Venkataraman moving with the clerk of Seshadri and therefore there is room for thinking that they were connect1~d together.
T. L. Rammohan (P.W. 27), it is said, was assisting Vasantha
Pai.
He wrote a Jetter Ext. P-109 and his evidence is also described as hearsay.
We need not therefore go by his evidence to
reach the conclusion that the cars were hired by
Seshadri
or
some one on his behalf.
We can only use this evidence if 1here
were some other evidence to which it can be read as corroborative
because by itself it does not furnish proof of the hiring of vehicles
by Seshadri. Ii only shows that the vehicles were in fact ·used
and that the vehicles were bringing voters to the polling booth.
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The connection of Violin Mahadevan was deposed to by four
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witnesses.
V. Murali (P.W. 5) who works in the chamber of
two lawyers Rao and Reddy admitted that he was working for
Vasantha Pai.
He also said that he
saw
Violin Mahadevan
wearing the badge and standing
near the
polling booth.
He
stated -this to Vasantha Pai and communicated to him his own
observation.
He admitted that he did not know Violin Maha- · 11
devan from before but somebody had told him about him.
He
could not name the voters who had been brought. He saw that
Violin Mahadevan was wearing the same bad~e which we have
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SESHADRI v. VASANTHA (Hidayatul/ah, C.J.)
I 027
described and the voters were accosted by persons wearing the
same badge and were received at the polling booth.
S. Ramamurthy (P.W. 10) saw Venkataraman.
He admitted that he
had not seen anybody brought by Venkataraman and he also did
not know the names of the voters who were brought. But the
evidence of S. Ramamurthy (P.W. 10) is sufficient to show that
the voters did in fact come by cars t-0 the polling booth. Therefore to that extent, his evidence is
material in determining
whether the alleged corrupt practice was committed or not.
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Sankaran (P.W. 20) also
saw
Violin Mahadevan receiving
voters at the polling booths.
Seshadri contends that as the plea
was limited to the naming of these four persons, it is clear that
the plea as made was insufficient to bring home the charge which
is now brought to his door, namely, that he had hired or procured
these vehicles.
As has been said above, the hiring and procuring of the vehicles is a totally different matter. These witnesses
only speak to what they saw at the polling booths and their evidence is believable that voters were brought to the polling booth.
The question is by whom?
The case then goes on to another point and that is : Where
did the cars come from?
Neither side had
examined either
Kumarswamy or the owner of the other garage or any other
person.
The learned Judge then felt that he should
examine
some court witnesses and he summoned three, namely,
Kumarswamy (C.W. 2), Krishnaswamy (C.W.
3) and one Ganesan
(C.W. I). He also called for a report from the police as to
whom the cars belonged and he perused the evidence of these
three witnesses as also the report sent by the police and come
to the conclusion that the hiring or procuring was by Seshadri
himself.
A great deal of argument is
therefore
direcied
by
Seshadri to exclude the evidence of these witnesses and the reference to the police to find out to whom the cars belonged. Jn
this connection Seshadri cites a number of ruling which he says
show quite clearly that a plea cannot be allowed to be magnified
particularly by evidence not brought by the parties, but at the
instance of the Court. This requires an examination closely .
~e firs! .con~ent.ioi;i of Seshadri is th~t the Court trying the
election peUt10n rs ltm1ted by the law which is contained in the
Representation of the People Act and the Rules made thereunder.
'!'his law, according to him, confers no power upon the Presidmg Judge to enter the arena to summon witnesses on his own
behalf.
The learned Judge who summoned witnesses passed a
very sh?rt order while doing so. He did not .refer to any law on
the sub1ect but extracted a passage from the trial
of Warren
Hast!ngs in which it "':as s~ated th~t a Judge is not to be a dummy
but is to take an active mt.erest m the case.
Seshadri contends
therefore that the action of the Judge in summoning the court
1028
SUPREME COURT REPORTS
[1969] 2 .C.R.
witnesses was entirely erroneous and that this evidenc<~ should be
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excluded.
The power of a Civil Court to summon. ~ourt witnesses is
contained in O. XVI r. 14 of the Code of C1v1l Procedure. Now
the Representation of People Act enjoins that all the powers
under the Code can be exercised and all the procedure as far as
may be applicable to the trial of civil suits may be followed !n
the trial of election petitions. It would appear therefore that m
the absence of any prohibition contained in the law, the Court
has the power to summon a court witness if it thinks that the
ends of justice require or that the case before it needs that kind
of evidence. It must be remembered that an election petition is
not an action at law or a suit in equity. It is a special proceeding. The law even requires that an election petitioner should not
be allowed to withdraw an election petition which he has once
made and that the election petition may be continued by another
person, so long as another person is available.
The policy of
election law seems to be that for the establishment of purity of
elections, investigation into all allegations of malpractices including corrupt practices at elections should be thoroughly
made.
Here was a case where a large number of cars were used presumably for the purpose of carrying voters to the booths. The question is : in the face of this voluminous evidence was it not open
to the judge if evidence was available to establish who had procured or hired vehicles, to summon witnesses who could depose
to the same ? In our opinion, such a power was properly exercised by the learned Judge.
Although we would say that the
trial should be at arms length and the Court should not really
enter into the dispute as a third party, but it is not to be understood that the Court never has the power to summon a witness
or to call for a document which would throw light upon the
matter, particularly of corrupt practice which is alleged and is
being sought to be proved. If the Court was satisfied that a
corrupt practice had in fact been perpeterated, may be by one
side or the other, it was absolutely necessary to find out who was
the author of that corrupt practice. Section 98 of the Act itself
allows the Court to name a person who is guilty of corrupt practice after giving him notice and this would be morn so in the
case of a candidate whose name appears to be connected with
the corrupt practice, the proof whereof is not before the Court
but can be so brought. In such a case we think that the court
would be acting within its jurisdictiQl!l in using O. XVI r. 14 to
summon witnesses who can throw light upon the matter.
Having disposed of this preliminary objection, we are now
in a posit!on to consider the evidence which was brought; but
before doing so, we must show its relevance to the pleas which
l!ad been raised in the 9ase, because nmch discussion was made
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SESHADRI v. VASANTHA (Hidayatullah, C.J.)
1029
of the law of pleadings in the case. We have pointed out above
that the plea in essence was that cars were used for the purpose
of conveying voters contrary to the prohibition contained in the
Election Law. The names of the booths and the divisions in
which the booths were situated together with the particulars of
the cars and the persons primarily concerned with cars at the
polling booths have been mentioned. It is true that the drivers
of the cars or the voters themselves have not been examined.
But it has been sufficiently pleaded and proved that the
cars
were in fact used.
The connection of Seshadri with the use of
the cars has been specifically pleaded. In our opinion, the rest
were matters of evidence which did not require to be pleaded
and that plea could always be supported by evidence to show
the source from where the cars were obtained, who hired or
procured them and who used them for the conveyance of voters.
This is exactly what has happened in this
case.
The learned
Judge after reaching the conclusion that a large number of cars
were used for conveying voters to the polling booths, felt impelled further to consider who was responsible for hiring them.
The names of the two garages were already given and there was
the allegation that certain companies and cinema producers were
also helping Seshadri by the loan of cars. Since the name of
Kumarswamy's garage was mentioned, it was but natural for the
Judge to have summoned the proprietor of the garage. The proprietor of the garage came and gave the story about the use of
the cars by some other candidate but not Seshadri. He however
brought on record documents to show that the cars were hired
on payment from his garage by one Krishnaswamy.
The next
step was therefore to summon Krishnaswamy and he was therefore summoned and questioned. Krishnaswamy admitted that he
had hired these cars and paid bills amounting to a few thousand
rupees.
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It is obvious that these cars were not employed· for any other
purpose that day except for election work.
It is ridiculous to
imagine that thev were ordered for a picnic or for a marriage
which did not take place. Therefore the inference was that
Krishnaswamv had hired these cars to convey voters to the polling booths. The question therefore boils down to this, for whom
was Krishnaswamy working?
Here we have the
evidence
of
various
types
against
Krishnaswamy.
Kumarswamy and
Krishnaswamv have been amply proved in the case to be connected with Seshadri. Kumarswamv was shown Ex. c-2A. He
stated that it was an order form filled by R. Krishnaswamy. He
also admitted that he had received pavments and that the trip
sheets of the cars were maintained for that date. Those trip
sheets are C-7 to C-36.
Now with regard to these trio sheets.
it may be stated that in some of them there was mention that
th() cars were used for election work, but subsequently it was
1030
SUPREME COURT REPORTS
[ 1969) 2 S.C.R.
found that someone had rubbed out that entry. We are not
here to find out who was guilty of attempting to create eviden~e
by rubbing this out. The fact remains that some of the t.np
sheets still read clearly that the cars had been used for elect10n
work. Ex. C-6 was the bill which was issued for these cars, and
it was issued to Krishnaswamy. · Therefore the cars were engaged
at least from Kumarswamy garage for conveying voters and they
were hired by Krishnaswamy and he paid for them.
Now Krishnaswamy is connected intimately with
Seshadri.
He was employed by two companies in which Seshadri was
a
Director.
A party was arranged in honour of Seshadri to celebrate his victory.
Th.~ arrangement for this was made by Krishnaswamy although the expenses for the party were paid by Seshadri'
by cheque. Seshadri contends that his
entire accounts were
examined but it was not proved from those accounts that he had
paid any money towards the hire of the cars. It is not possible
for anyone to say how Seshadri, if he was willing to pay for the
cars, would have procured the money. It would have been the
worst thing for him to have paid the amount by cheque so that
it could enter into the accounts.
Obviously
such
payments
would be made in a way that they could not be traced back to
the person actually paying the amount.
The connection, however, of Krishnaswamy with the hiring of the cars and with the·
celebration of the victory of Seshadri furnishes a very important
link in the chain of reasoning.
It is quite clear to us that the Swatantra Party was in favour
of Seshadri.
Seshadri relies upon finding which has been given
by the Court in which it is stated that the Judge found that the
first respondent, the Swatantra party and the persons mentioned
therein acted as agents of the first respondent and committed
corrupt practices under s. 123(5) with which we are now dealing.
The argument was that this finding is somewhat obscure
because it shows that the first respondent was the agent of the
first respondent himself.
It seem,s to us that the learned Judge
in recording this finding gave it unthinkingly taking the words
from the plea in the petition. It is quite clear that the learned.
Judge reaches the conclusion that the Swatantra party was working actively in support of Seshadri. It is of course not proved,
that he was the adopted candidate of 'the party nor is it proved
that he had appointed any particular person as his agent, but it
is quite clear that the Swatantra party was actively supporting
him. Thus there is the presence of the workers of the Swatantra party like Hande, Vinayakam, Violin Mahadevan and Venkatraman on the scene at the polling booths. It may also
be
mentioned that in one of the trip sheets, one Kalvanasundaram
had signed in token of the cars having been used. This Kalyanasundaram was the polling agent of Seshadri. The circumstantial
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SESHADRI v. VASANTHA (Hidayatullah, C.J.)
1031
evidence is now complete.
There is the hiring of the cars from
the Kumaraswamy Garage by Krishnaswamy, the
payment of
money by Krishnaswamy to the garage, Krishnaswamy's attachment to Seshadri because of his past connection and the further
proof that he arranged the party on his behalf after his victory
and the trip sheet was signed by Kalyanasundaram the polling
agent of Seshadri.
The amount paid was so large that only a
candidate would incur that expense, and no supporter. If there
was any doubt as to who hired or procured these cars, it is resolved by the concatenation
of circumstances which
clearly
demonstrate that it could have been only Seshadri and no one
else who had hired these vehicles. We can infer this circumstantially even though direct evidence be not available. In addition,
there is the patent fact that Seshadri did not himself go into the
witness box and clear these facts
standing out against him
although opportunity was offered. It is true that Seshadri complained before us that the plea was vague, that it had been magnified by the evidence brought in this
manner and the Court
allowed the election petitioner to take advantage of the. evidence
so brought, but we have already held that the evidence was legitimately brought and that it could be led in the case.
As to the
plea, we have already shown that it was sufficiently cogent to
establish the connection betwe.~n Seshadri and the hiring
and
procuring of the cars.
The missing links were supplied by that
evidence by showing the connection of the only person who had
hired the cars and paid several thousand rupees for their hire.
If that person is intimately connected with Seshadri, the conclusion is inescapable that it was Seshadri for whose benefit the
cars were hired or procured.
In our opinion, the circumstantial chain of evidence is
sufficient to show the connection between him and the use of the cars
r
for the conveyance of voters.
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As to the rulings which were cited before us, it is sufficient to
say that each case is decided on its own facts, and circumstances.
It is true. that better particulars can only be given by the party,
but that rs only where better particulars are required.
It was not
necessary for Vasanta Pai to have pleaded his evidence in this behalf.
H.~ made a very full plea by giving the numbers of the cars
by na~ing th.e polling ~oaths at "".hich voters were brought and
by sta• mg qurte categoncally that rt was Seshadri who had procured these cars for the conveyance of voters. Rest was matter
of evidence a~d the facts ~ad to be established by evidence. It
may be •hat w1tho_ut the evidence of Kumaraswamy and Krishnaswamy the case mrght have taken a different turn but we have already nomted out .th~t the learned Judge very correctly brought
these two pe~sons mhmately connected with the cars into
the
case before hrm, and to give their version.
Their version is partly
1032
SUPREME COURT REPORTS
[1969J2 S.C.R.
true and partly false and the false evidence was to exclude Seshadri
from the charge. In our opinion, this also demonstrates the connection between these persons and Seshadri which bad been established in other ways through their own mouths. We accordingly
hold that this corrupt practice was brought home.
It remains to consider the argument of Mr. Gupte whether
Vasanta Pai could be declared elected. This will depend on our
reaching the conclusion that but for the fact that voters were
brought through this corrupt practice to the polling booths, the
result of the election had been materially affected. In a single
transferable vote, it is very difficult to say how the voting would
have gone, because if all the votes which Sesbadri had got, had
gone to one of the other candidate who got eliminated at the earlier
counts, those candidates would have won.
We cannot order a
recount because those voters were not free from complicity. It
would be speculating to decide how many of the voters were
brought to the polling booths in the cars. We think that we are
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not in a position to declare Vasanta Pai as elected, because that
would be merely a guess or surmise as to the nature of the voting
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which would have taken place if this corrupt practice bad not
been perpetrated.
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In the result therefore., we set aside the direction that Vasanta
Pai is elecfed to the constituency.