# [1976] 1 S.C.R. 897

- **Citation:** [1976] 1 S.C.R. 897
- **Court:** Supreme Court of India
- **Decided:** 1975-09-19
- **Case number:** Civil Appeal No. 90 of 1973
- **Bench:** A. ALAG!RlSWAMI, P. K. Goswami, N. L. Untwalia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1976-1-s-c-r-897-6688
- **Pages:** 9

## Headnote

Representation of the people Act--S. 123(1). Brtbery-Gift or inducement
to cause defection whether bribery-The voters niust know about the gift and
induce1nent-Burden of proof in a case of bribery-Oath against oath whether
suf/ioient.
The first respondent, a candidate of the ruling Congress was elected to the
Lok Sabha from Banaskantba constituency in Gujarat, defeating his rival candidate of Organisation Congress. The appellant a voter in
the
constituency
belonging to the Organisation Congress filed an election petition challenging the
validity of ele::tioii of respondent No. 1 on variou3 grounds. The only ground
surviving now i'.5 the allegation thait respondent No. I or his agents or other
persons with his consent madei a gift or promise of gratification to the petitioner
with the object of directly or indirectly inducing the petitioner to vote for respuedent No. l or to refrain from voting for respondent No. 2. The allegation
is that the first respondent's agent Maulvi and the respondent's son Bipin with
the consent of the first respondent made a gift of Rs. 10,000/- and promised
to secure· a party ticket for the appellant and to construct a hostel for the
Kshatriya students of the Bansaskantha district. A specific allegation was made
that the first respondent wanted the appellant to vote for him. It was ~s•
alleged thM the first respondent asked the appellant to convey to Madhusudan
Sinhji, another voter an offer of a party ticket f'or the Legislative Assembly
election, and to pay to him also a sum of R's, 10,000/-
The High Court after considering the evidence held that Bipin handed over
Rs. 10,000/- to the appellant to bring about the appellant's defection from the
Organisation Congress. The High Court took the view that the object of the
gift was to bring about the appellant's defection from the Organisation Congress
and not to induce directly or indirectly any voters to cast their votes for the
ruling Congress candidate or to refrain from voting in favour of the second
respondent. The High Court held that the payment of Rs. 10,000/- and holding
out inducement to build the hostel for Kshatriya students does not &mount to
any offen:e under the election law.
On an appeal, the appellant contended : (i) that the first respondent or his
agent or his son with his consent induced the appellant and Madhusudan Sinhji
to vote for respondent No. 1 and to refrain from voting for respondent No. 2.
(ii) that the whole purpose of the defection was tha't the appellant and
Madhusuda_n Sinhji should can':'ass votes for resP?n?ent No. 1, particularly, from
the Kshatnya voters on the inducement of building hostel for the Kshatriya
:students.
(iii) that the decision of this Court in the case of Kalia Singli v Gendo!at
requires to be reconsidered.
·
(iv) that there was a specific request by respondent No. 1 to the appeUant
to vote for hifil in exchange for the gift and inducement.
Dismissing the appeal,
HELD : (I) We are in entire agreement with the finding of the High Court
as re~rds the payment ~f Rs. 10,000/- to the appellant and also the offer
to bmld hostel for Kshatnya students. [900-H]
898
SUPREME COURT REPORTS
[1976] 1 s.c.R.
(2) The payment of Rs. 10,000/- to the appell~nt was with a view to indv.ce
him to defect from Organisation Congress to the ruling Congress.
It may
carry with it the implication that he was expected to use his influence with
the voters to vote for the candidate set up by the ruling Congress.
[901-B-C]
(3) The deci·5ion of this Court in the case of Kalia Singh v. Genda Lal
approved. The said decision does not require any re-consideration. The expression "directly or indirectly" iS1 intended to cover situations where payment to
a husband, wife son or father is intended to induce the wife, husband. father
or son to vote for the bribe giver, that would be indirect inducement. Otherwise
it would be easy for the bribe giwn to say that he did not bribe the voter
himself.
This provision was not intended to cover a case

## Text

•
A
B
c
D
E
•
F
G
H
897
IIARISINGH PRATAPSINGH CHAWDA
I'.
POPATLAL MULSHANKER JOSHI & ORS.
September 19, 1975
[A. ALAG!RlSWAMI, P. K. GOSWAMI AND N. L. UNTWALIA, JJ.]
Representation of the people Act--S. 123(1). Brtbery-Gift or inducement
to cause defection whether bribery-The voters niust know about the gift and
induce1nent-Burden of proof in a case of bribery-Oath against oath whether
suf/ioient.
The first respondent, a candidate of the ruling Congress was elected to the
Lok Sabha from Banaskantba constituency in Gujarat, defeating his rival candidate of Organisation Congress. The appellant a voter in
the
constituency
belonging to the Organisation Congress filed an election petition challenging the
validity of ele::tioii of respondent No. 1 on variou3 grounds. The only ground
surviving now i'.5 the allegation thait respondent No. I or his agents or other
persons with his consent madei a gift or promise of gratification to the petitioner
with the object of directly or indirectly inducing the petitioner to vote for respuedent No. l or to refrain from voting for respondent No. 2. The allegation
is that the first respondent's agent Maulvi and the respondent's son Bipin with
the consent of the first respondent made a gift of Rs. 10,000/- and promised
to secure· a party ticket for the appellant and to construct a hostel for the
Kshatriya students of the Bansaskantha district. A specific allegation was made
that the first respondent wanted the appellant to vote for him. It was ~s•
alleged thM the first respondent asked the appellant to convey to Madhusudan
Sinhji, another voter an offer of a party ticket f'or the Legislative Assembly
election, and to pay to him also a sum of R's, 10,000/-
The High Court after considering the evidence held that Bipin handed over
Rs. 10,000/- to the appellant to bring about the appellant's defection from the
Organisation Congress. The High Court took the view that the object of the
gift was to bring about the appellant's defection from the Organisation Congress
and not to induce directly or indirectly any voters to cast their votes for the
ruling Congress candidate or to refrain from voting in favour of the second
respondent. The High Court held that the payment of Rs. 10,000/- and holding
out inducement to build the hostel for Kshatriya students does not &mount to
any offen:e under the election law.
On an appeal, the appellant contended : (i) that the first respondent or his
agent or his son with his consent induced the appellant and Madhusudan Sinhji
to vote for respondent No. 1 and to refrain from voting for respondent No. 2.
(ii) that the whole purpose of the defection was tha't the appellant and
Madhusuda_n Sinhji should can':'ass votes for resP?n?ent No. 1, particularly, from
the Kshatnya voters on the inducement of building hostel for the Kshatriya
:students.
(iii) that the decision of this Court in the case of Kalia Singli v Gendo!at
requires to be reconsidered.
·
(iv) that there was a specific request by respondent No. 1 to the appeUant
to vote for hifil in exchange for the gift and inducement.
Dismissing the appeal,
HELD : (I) We are in entire agreement with the finding of the High Court
as re~rds the payment ~f Rs. 10,000/- to the appellant and also the offer
to bmld hostel for Kshatnya students. [900-H]
898
SUPREME COURT REPORTS
[1976] 1 s.c.R.
(2) The payment of Rs. 10,000/- to the appell~nt was with a view to indv.ce
him to defect from Organisation Congress to the ruling Congress.
It may
carry with it the implication that he was expected to use his influence with
the voters to vote for the candidate set up by the ruling Congress.
[901-B-C]
(3) The deci·5ion of this Court in the case of Kalia Singh v. Genda Lal
approved. The said decision does not require any re-consideration. The expression "directly or indirectly" iS1 intended to cover situations where payment to
a husband, wife son or father is intended to induce the wife, husband. father
or son to vote for the bribe giver, that would be indirect inducement. Otherwise
it would be easy for the bribe giwn to say that he did not bribe the voter
himself.
This provision was not intended to cover a case where money is paid
to a certa·in person in order to make him induce another persori to vote for the
person who paid him the money would be obvious by looking at the converse
case.
When a candidate or anybody on his behalf pays any gratification to a
person in order that the payment made to him may indu:::e the voter to vote
for the bribe giver, it is bribery.
But where the gr<}tification is paid to a
person in order that he ma:y induce the other person to vote for the bribe
giver, it is not bribery on the- part of the bribe giver.
(901-C ... H, 902-A]
( 4) In this case it is obvious that the primary object of the payment made
to the appellant wa~ to induce him to defect from the Organisation Congress
to the ruling Congress. The bargain was not for his vote.
The bargain was
for def'ection.
That is not a corrupt practice under the Representations of the
People Act.
Even' if the payment was received with the promise that he would
induce the voters to vote for the bribe giver, it will not be bribery on the part
of the bribe giver but only bribery on tlie part of the bribe taker. Th'e defection of
the appellant to the ruling Congress, if it took place, might mean that he was
expected to work for the ruling Congress.
Equally it may not.
The fact of
the app~llant and Madhusudan Sinhjl's joining the ruling Congress might be
expected to i'nfluence the voters to vote for the candidate set up by the ruling
Congress.
But, that would not be because of the payment made to
the
appellant and Madhusudan Sinhji nor would such payme"nt be bribery. It is
the payment to the appellant that must induce the voters to vote for the candidate set up by the ruling Congress in order that it might amount to bribery. It
is not enough th.at his defection from Organisation Congress to the
ruling
Congress induces voters to vote for the ruling Congress candidate. [902 B-E]
(5') As far as the promise to build a hostel for the Kshatriya students i;;
concerned, be.fore it can be termed a bribery the matter should come to the
knowledge of the voters.
Only if the voters know that the promise has been
made to the appellant and Madhusudan Sinh_ji, can that promise would induce
the voters to vcte for the first respondent.
In the present c·ase, the kno\vlcdge
of the promise remained confined to the appellant. If the payment or the promise
was to induce· the voters, it cannot induce the voters unless they come to know
about the payment or the promise.
It is not necessary that the voters should
have accepted the bribe but the voters must have a knowledge about the offer.
Then only it would be a bargain. Therefore, in the present case the offer tC1
build a hostel does. not amount to bri}lery.
[904-D-F]
(6) But. if there was a specific request by the first respondent to the appellant that he should vote for him in exchange for the gift and the induceme;nt
in that case it would be briberv and even bribery to one voter is enough to
make a election void.
A specific allegation to that effect was made in th.:-
election petition and that has not been considered by ·:he High Court. This
Court, therefore, went through the ev.idence and came to the c?ndusion that
no such request for vote was made to ·:he appellant for the following reasons.
[902H; 903A]
(i) Madhusudan Sinhji wa;; not put a question about the exact date on whicP
Maulvi and the. first respondent met him.
Quite possibly there was no such
1'neeting on the 9'.h February and that i;; why the question wa;; not put to
him. [903-E]
B
c
I
D
E
F
;. I
G
H
.B
!
D
F
.
• •
G
'
H
H. p CHAWDA v. P. M. JOSH! (A/agiriswami, J.)
899
. (ii) The statement of Madhusudan Sinhji is too sJander fl foundation on
wh1r:h the argument could be built. Jt is, thus, a case of the appell~nt's oath
against the first resp?ndenFs oath and in a case of serious charge like bribery
we would not be satisfied merely on the basis of an oath against an oath.
[903-H]
(iii) Three other possible witnesses including the <lppellant's wife Pushpa
WhC? could have been examined to establish that the first respondent accom ..
pan1ed the Maulvi to the appellant had not been exan1ined:
[904·A]
(iv) No evidence was led about the first respondent's having a'3ked the
appellant to vote. '!he all_egation regarding the request to appellant to vote
for first respondent 15 put ID· merely for 1he purpose of election petition and
nnt a fact. [904-C!
( v) All parties would have proceeded on the understanding that when :he
appella~t defected to the ruling Congress, he would both work and vote for
the ruhng Congress.
There could not have been a specific bargain for the
vote.
[904-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 90 of 1973.
From the Judgment antl Order dated the 24th and 25th July, 1972
of the Gujarat High Court in Election Petition No. 2 of 1971.
S. N. Andley, K. J. John and Shri Narain Mathur for the appellant.
F. S. Nariman, P. H. Parekh, Mrs. S. Bhandare and Manju Jaitley
for respondent No. 1.
The Judgment of the Court was, delivered by
ALAGIRISWAMI, J. This appeal arises out of an election petition
questioning the election of 1st respondent in the election held
in
March 1971 to the Lok Sabha from the Banaskantha constituency in
Gujarat.
In that election the !st respondent, a nominee
of the
Ruling Congress was declared elected securing 1,16,632
votes
as
against 92,945 votes secured by the 2nd respont!ent, a nominee of the
Organisation Congress. The appellant, a voter in the constituency,
also belonging to the Organisation Congress, filed a petition challenging the validity of the election on various grounds out of which onlv
those covered by issue No. 10. hereinafter set out, survive for consideration :
•
"(10) Whether respondent No. I or his
agents
or/
other persons with his consent made a gift or promise of
gratification to the petitioner with the object directly
or
indirectly of inducing the petitioner to vote for respondent
No. I or to refrain from voting for respondent No. 2 ?"
The allegation relating to this charge in the election petition is
that the !st respondent and his agent Maulvi Abdur Rehman and the
.1st respondent's son Bipin Popatlal Joshi with the consent of the !st
Tespondent had made a gift and a promise of gratification to the appellant for voting in 1st respondent's favour.
The apoellant as well as
-one Madhusudansinhji, who has been examined as P.W. 10, seem to
have been at that time prominent members of the Organisation Congress and also leaders of the Kshatriya community which
formed
900
SUPREME COURT REPORTS
[19761 1 s.c.R.
about 20 to 25 per cent of the votes in the Banaskantha constituency.
It was alleged that on February 9, 1971 the !st respondent and Maulvi
Abdur Rehman came to the appellant's residence and persuaded him
to leave Congress (0) and join Congress (R) offering (!) to secure
a party ticket for the appellant for the election to the Gujarat Legislative Assembly in 1972, (2) to meet all his expenses for that election
and to pay him Rs. 10,000/- in cash towards the said expenses, and
~3) to construct a hostel for the Kshatriya students of the Banaskantha district.
A specific allegation was made that the 1st respondent wanted the appellant to vote for him.
It was also al!eg'*1 that
the !st respondent asked the appellant to convey to Madhusudansinhji
an offer of a party ticket for th!" Legislative Assembly election in 1972
and to pay him also a snm of Rs. 10,000/-. The Prime Minister was
addressing a meeting at Palanpur on that day.
The appellant,
his
wife and Madhusudansinhji were taken to the helipad, Palanpur when
the Prime Minister landed there and also to the dais from which the
Prime Minister was addressing a public meeting.
One
Akbarbhai
Chavda, convener of the District Congress Committee announced that
the appellant and Madhusudanslnhji had joined Congress (R), and
asked the appellant to say a few words.
The appellant went to the
microphone, took out the bundle of notes of Rs. 10,000/- given to
him and flung it in the air and told the gathering that he and his
colleagues could not be purchased and that they would remain loyal to
the Organisation Congress.
During the trial of the electioA petition Madhusudansinhii.
who
had by that time joined the Ruling Congress and Maulvi Abdur
Rehman were examined as witnesses on behalf of the appellant.
The learned Judge of the High Court after considering the evidence before him held that Bipin Popat!al Joshi, son of the !st respondent, handed over Rs. 10,000/- to the appellant as a bribe to
bring about the appellant's defection from the Organisation Congress.
But he took the view that the object of the gift was to bring about the
appellant's defection from the Organisation Congress and not induce
directly or indirectly any vpters to cast their votes for the Ruling Congress candidate or to refrain from voting in favour of the 2nd respondent.
As regards the offer to build the hostel for Kshatriya
students he held that the fact that a person who defects from another
party to the Ruling Congress would be expected to work for
that
party and would be expected to use his personal influence in support
of the candidate of that party does not mean that the object of bringing about the defection was to indirectly induce the Kshatriya voters
to cast their votes for the 1st respondent.
He therefore held that payment of such money and holding out such inducement does not
amount to any offence under the Election Law and it was with regret
that he had to decide the case in favour of the 1st respondent.
We are in entire agreement with the finding of the learned Judge
as regards the payment of Rs. 10,000/- to the appellant and also the
9ffer to build hostel for Kshatriya students and do not consider it
A
B
c
I)
E
c;
H
..
-{
' •
-
H. p. CHAWDA v. P. M. JOSHI (Alagiriswami, J.)
901
A
necessary to go into the evidence in support of that finding.
That
findmg 1s supported not only by the eVJaence of Madnusudansinhj1
and !YlaUlv1 Atxlur Rehman but also the Jetter Ex. T, passed by the
latter to tne appetlant ana Maa.nusudansinhji.
B
c
D
E
F
G
H
The question is whether that finding is enough to establish the
charge ot bnbery against the !st respo$ent. There is still another finding necessary m regard to the allegations made in the petition in respect
ot w.h!ch tne learned Judge has given no finding and that is with regard
to what happened on the 9th of February 1971.
We are at one with
the view ot the learn<# Judge that the payment of Rs. 10,000/- to
the appellant was with a view to induce hinI to defect from Organisation Congress to the Ruling Congress. It may carry with it the implication that he was expected to use his influence with the voters
to
vote for the candidate set up by the Ruling Congress.
It has been
held by this Court in Kalia Singh v. Genda Lal & Ors. (1) to which
two of us (Untwalia & Alagiriswami JJ) are party, that a payment
made to a person in order to induce him to canvass votes on behalf
of the bribe giver would not be bribery within the definition of that
word in section 123(1) of the Representation of the People Act. It
was held that it is only in a case where the payment to a third person
by itself induces the voter to vote for the bribe giver that it would fall
miller s. 123 ( 1). Mr. Andley appearing on behalf of the appellant
tried to persuade us, that that decision requires reconsideration. After
having considered his arguments we are still of the opinion that the
view taken in that decision is correct.
The object of providing that
a payment s\lould not be made to a person in order that that payment
should induce some other person to vote for the bribe giver is obvious.
It is apparently intended to cover situations where payment to a husband, wife, son or father is intendeti to induce the wife, husband,
father or son to vote for the bribe giver.
That would be indirect
inducement.
Otherwise it would be easy for the bribe giver to say
that he did not bribe the voter himself and therefore it is not bribery.
That this provision was not intended to cover a case where money is
paid to a certain person in or<!er to make him induce another person
to vote for the person who paid him the money wouJld be obvious by
looking at the converse case. Under s. 123(1)(B)(b) the receipt of
or agreement to receive, any gratification, whether as a motive or a
reward by any person whomsoever for himself or any other person for
voting or refraining from voting, or inducing or attempting to induce
any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature is bribery.
Under this clause
any person who receives or agrees to receive any gratification as a
reward for inducing or attempting to induce' any elector to vote etc.
would be receiving a bribe.
The law therefore contemolates that
when a person makes any oavment to another person in order to make
him use his influence to induce a third person to vote for him that is
no~ bribery by the person who oavs but the receiot of mnney bv the
second person for inducing or attempting to induce Rnother
elector
to vote is bribery. It is also bribery for the voter ·himself to receive
-"---~-------------
(!) [1975] 3 S. C.R. 783.
/
/
\
902
SUPREME COURT REPORTS
[ 197 6] 1 s.c.R.
the money.
We, therefore, reiterate the view that when a candidat<
Dr anybody on his behalf pays any gratification to a person in order
that the payment made to him may induce the voter to vote for the
bribe giver it is bribery.
But where the gratification is paid to a person in order that he may induce the other persons to vote for the bribe
giver it is not bribery on the part of the bribe giver. It is, however,
as we have explained above, bribery on the part of the bribe taker
even when he takes it in order to induce an elector to vote for the
bribe giver.
In thls case it is obvious that the primary object of the payment
made to the appellant was to induce him to defect from the Organisa·
tion Congr-oss to the Ruling Congress. That is not a corrupt practice
under the Representation of the People Act.
Even if the payment
was received _with the promise that he would induce the voters to vote
for the bribe giver it will not be bribery on the part of the bribe giver
but only bribery on the part the bribe taker.
The defection of the
appellant to the Rulillg Congres§, if it took place, might mean that he
was expected to work for the Ruling Congress.
Equally it may not.
A person who changes his party allegiance at the time of the election
probably might not command much respect among electors if
the
electors knew that he had done so after receiving some money. Otherwise the fact that two important persons the appellant and Madhusudansinhji, a younger brother of the ex-ruler of Danta State had joined
the Ruling Congress. might be expected to inflnence the voters to vote
for the canldidate set up by the Ruling Congress.
But that would be
not because of the payment made to the appellant and Madhusudansinhji.
Nor would such payment be bribery.
To reiterate, it is the
payment to the appellant that must induce the voters to vote for the
candidate set up by the Ruling Congress in order that it might amount
to bribery. It is not enough that his defection from
Organisation
Congress to the Ruling Congress induces voters to vote for the Ruling
Congress candidate.
As we said earlier. if the payment to the appellant came to be known as the cause for his changing allegiance it may
have a boomerang effect. It is therefore clear that the
payment
made to the appellant would not have induceld the voters to vote for
the Ruling Congress candidate. While after his defection therefore the
appellant might have been expected to work for the Ruling Congress
candidate or equally might not have been, it is perhaps implicit that
he would also vote for the Ruling Congress candidate.
Is this enough
to make the payment made to the appellant bribery ? The payment
was made not for the purpose of inducing him to vote but to make
him defect to the Ruling Congress.
That was the purpose for which
the payment was made.
That incidentally he might vote for
the
Ruling Congress candidate does mean that the payment was made to
him in order to make him vote for the Ruling Congress candidate.
The bargain was not for his vote, the bargain was for his defection.
Therefore. on this point we agree with the learned Judge of the High
Court.
But if there was a specific request by the 1st respondent to
the appellant that he should vote for him then the position would be
different.
In that case it would be bribery and even bribery to one
A
B
c
E
F
G
H
A
B
,
c
-
D
E
F
G
11
H. P. CltAWDA v. P. M. JOSHI (Alagiriswami, !.)
903
person is enough to make an election void.
A specific allegation to
that effect has been made iu the election petition and that has not been
considered by the learned Judge of the High Court.
We shall now
proceed to do so.
The appellant gave evidence to the effect that the 1st respondent
asked him on 9th February to vote for him and made the three promises earlier referred to.
He was not cross-examined on that point
but the 1st respondent in his turn denied this when he gave evidence.
Maulvi Abdul Rehman speaks t_q his having met the appellant on
February 9, 1971 but he says that the 1st respondent was not with him
at that time.· Madhusudansinhji says that he had met the appellant
before the 14th and that at that time the appellant told him that the
Maulvi and the I st respondent were insisting (hat the appellant and
he (Madhusudansinh) should join Congress (R). He also denied a
suggestion put to him in cross-examination that it was not true that
the appellant hakl told him before the 14th of February anything
about the Maulvi or the !st respondent telling the appellant that the
appellant and he (Madhusudansinh) should join the Congress
(R)
on certain terms.
This is the e.vidence relied on to show that on the
9th the !st respondent also had met the appellant. If the appellant
and Madhusudansinhji had met at Palanpur before the 14th and the
appellant then told him that Maulvi and the !st respondent were insist·
ing that they shoulU join the Ruling Congress the meeting should have
been on the 13th or earlier and the request to him on the 12th or
earlier.
Naturally having chosen to examine Madhusudansinhji, who
had by that time joined the Ruling Congress, as his witness the appellant would not have risked putting questions about the exact date on
which Maulvi and the !st respondent had met him.
Quite possibly
there was no such meeting on the 9th of February and that was why
that question was not specifically put to him.
When that question
was put to Maulvi Abdul Rehman, who was examined as P.W. 8 a
little earlier, he denied that the !st respondent was with him on the
9th February.
Coming to the conversation which the appellant and
Madhusudansinhji had before the 14th, if the Maulvi and the I st respondent were insisting either on the 13th or earlier that the appellant
should join the Ruling Congress there should have been a meeting
between them a little earlier than the 13th and it should have been
on the 9th is the argument on behalf of the appellant.
But there are
many imponderables in this argument. If the Maulvi and the
1st
respondent were insisting that the appeJlant and Madhusuldansinhii
should join the Ruling Congress it does not mean that they both did
so at the same time.
They could have been doing it on different
occasions separately.
Nor does it follow that the Maulvi and
the
1st respondent met him on the 9th.
Nor does it follow that on that
date the 1st respondent asked the appellant to vote for him.
The
statement of Madhusudansinh is too s~ender a foundation on which this
argument could be built. It is thus a case of the appellant's oath
against 1st respondent's oath and in a case of a serious charge like
bribery we would not be satisfied merely on the basis of an oath
:against oath to hold that it has been satisfactorily established that the
904
SUPREME COURT REPORTS
[1976] 1 s.c.R.
1st respondent asked th.e' appellant on 9th February to vote for him.
H~ may a1so mention that with regard to the alleged visit of the
Mau1v1 and the 1st respondent to the appellant three other possible
witnesses including the appellant's wife, Pushpaben. who could have
been exalllined to establish that the 1st respondent accompanied the
Maulvi to the appellant had not been exarruned. A further tact which
improbabilises this story is that in the election petition it is stated that
the 1st respondent told the appellant that he would arrange for
a
ticket for Madhusudansinh in the 1972 clcqtions
and pay him
Rs. 10,000/- if Madhusudansinh left Organisation Congress
and
joined the Ruling Congress and voted and worked for him (1st respondent) and asked him to convey the offer to Madhusudansinh.
No
evidence was let in about the voting and what is more Madhusudansinh was nQt a voter in the Banaskantha Constituency.
This shows
that the allegation regarding the request to appellant to vote for 1st
respondent is of the character as the request to Madhusudansinh and
put in merely for the purposes of the election petition anll not a fact.
On broader considerations also it is very unlikely that when the talk
was about the appellant and Madhusudansinh defecting to the Ruling
Congress from the Organisation Congress there would have been any
talk about the voting itself.
All parties would have proceeded on the
understanding that when they defected to the Ruling Congress they
would both work and vote for the Ruling Congress.
The distinction
between a gift or offer combineld with the request to vote and the gift
or offer to a person asking him to work for him with the incidental
resnlt that that person might vote for him should always be kept in
mind.
In such a case there is no specific bargain for the vote. Were
it not so it would be impossible for persons standing for election
to
get any person to work for them who is not also a voter in the constituency.
This was brought out by this Court in the decision in
Onkar Singh v. G/zasiram Maj/zi( 1). We would, therefore, hold that
the case that 1st respondent bargained for the appellant's vote has
not been satisfactorily made ou\.
On behalf of the 1st respondent it was urged that the actions of
the appellant and Madhusudansinhji immediately after the payment of
Rs. 10,000/- anld the dramatic developments at the meeting addressed
by the Prime Minister show that there would not have been any bargaining for the appellant's vote.
The points relied upon were
(1)
that it was not said by the appellant when he threw the money into
the crowd on the 18th that he was asked to vote for the 1st respondern, (2) that it was not mentioned in the statement (Ex. 5) made
by the "ppellant and Madhusudansinh.ii on 18-2-1971, (3) that that
was not mentioned in the interview given to the newspaper reporters
found in Ex. 7 or in the newspaper report Ex. 8. We do not consider
that these things arc of much importance.
At that time the most important factor was the attempt to persuade the appellant and Madhusudansinhji to defect to the Ruling Congress and any request to the
appellant to vote for the 1st respondent would have been insignificant
ill 39 M.CR.An
A
ll
c
-
D
E
F
,._
' •
G
H
f
' •
A
B
c
D
E
F
G
H. P. CH;AWDA v. P. M. JOSHI (Alagiriswami, !.)
9e5.
even as we have held that when requesting the appellant and Madhusudansinhii to defect to the Rulin!J Congress it is not likely that theywould have been asked to vote for the !st respondent.
The reference
to the piece of evidence just mentioned cannot be sai.\! to establish
that there was no request made to the appellant to vote for the 1st
respondent.
That would have to be decided on other factors and
other evidence and on the basis of that evidence we have already held
that it is not established that the 1st respondent requesteU the appellant to vote for him.
Now remains the question of the offer to build a hostel for Ksha-·
triya boys.
Strictly speaking this does not arise on issue 10.
This.
is probabilised by the evidence of Madhusudansinhji, Maulvi Abdul
Rehman and the appellamt as well as Ex. T.
Whether it was to be iTu
Danta or Banaskantha does not make much difference as long as it
was for the Kshatriya boys.
The two places are near to each other
though in different Parliamentary constituencies and in
whichev~r
place it was situate it will benefit Kshatriya boys and there is no·
doubt that if the hostel were constructed by respondent No. 1 or the
Ruling Congress party at his instance that would induce the voters to·
vote for the Ruling Congress candidate.
But before that happens the
matter should come to the knowledge of the voters. Only if the
voters knew that the promise had been made to the appellant and
Madhnsudansinhji that promise would induce the voters to vote for
!st respondent.
But the knowledge of the promise remained confineld
to the appellant and P.W. 10, in addition of course to Maulvi Abdul
Rehman and the !st respondent's son. If the payment or the promise was to induce the voters, it cannot induce the voters uHle'ss they
come to know about the payment or the promise.
There is no evidence here that the voters knew about the promise to build the hostel.
The bargain in such cases as we have mentioned in the
iud~ment
delivered by us today in S. Iqbal Singh v. Gurdas Singh & Ors. (1) is
really an offer on the part of the bribe giver that he would do such a
thing if the voters would vote for him. It is not necessary that the
voters should have accepted it. But the voters should have a knowledge about the offer.
Then only it would be a bargain.
An offer
contemplated and retained in the mind of the offerer and not articulated
and made known to the offeree will not be a bargain. It therefore
follows that in this case the offer to build a hostel does not also amount
to bribery.
In the result we upheld the judgment of the High Court and dismise this appeal.
We make no order as to costs.
P.H.P.
Appeal dismissed.
(1) [1976] I S.C.R. 884.
1