# Appeal dismissed. The Commissioner of Income-tax DR. Y. S. PAIUTAit v. SH. HIRA SINGH PAUL AND ANOTHER

- **Citation:** [1959] Supp. 1 S.C.R. 213
- **Court:** Supreme Court of India
- **Decided:** 1958-07-31
- **Case number:** Civil Appeal No. 410of1958
- **Bench:** Venkatarama Aiyar, Gajendragadkar, A. K. Sarkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/appeal-dismissed-the-commissioner-of-income-tax-dr-y-s-paiutait-v-sh-hira-singh-1642
- **Pages:** 10

## Headnote

ElcFtion-Corru.pt Practice-Procuring assistance of Government servant-Candidate appointing person as polling agent, not
knowing him to be Government servant-Mens rea, if necessary
ingredient-Representation of the People Act (43 of z95r), ss. 46
and z23(7).
The appellant, who was a candidate for election to Parliament, signed a very large number of blank forms for the appointment of polling agents and made them over to one Kalyan Singh.
Kalyan Singh passed on three of the forms to Kashmira Singh
after inserting therein the name of a particular polling station.
Kashmira Singh filled in the name of Amar Singh as the polling
agent in one of these three forms and gave it to Amar Singh, who,
duly signed the form, filed it before the presiding officer of the
polling station and acted as the appellant's polling agent. Amar
Singh was a member of the armed forces but this fact was not
known to the appellant or to Kashmira Singh or Kalyan Singh.
After the poll the appellant was declared elected but on an
election petition being filed his election was set aside on the
ground that he had committed the corrupt practice of procuring
the assistance of a person in the service of the Government. The
appellant contended that Amar Singh had not been duly appointed as the appellant's polling agent as neither the appellant nor
his election agent had made the appointment, and that the
appellant could not be held guilty of the corrupt practice for he
did not know that Amar Singh was in the service of the Government and consequently did not have the necessary mens rea.
V enkatarama
Aiyar ].
October 17.
214
SUPREME COURT REPORTS [1959] Supp.
I958
Held, that the appellant did appoint Amar Singh as his
polling agent by personally signing the appointment form.
The
Dr. Y. S. Pnrmar fact that the name of the polling ~gent was written in the form
v.
by another person after the appellant had signed it does not
Sh. Hira Singh make it an appointment by the other person.
Paul and Anoth"
Held, further, that the appellant was guilty of the corrupt
practice inasmuch as he appointed Amar Singh as his polling
agent and Amar Singh by acting as the polling agent assisted in
the furtherance of the prospects of the appellant's election.
A
presumption arises under s. 123(7) Explanation (2) that the
appellant by so doing procured Amar Singh's assistance in furtherance of the prospects of his election, irrespective of whether
he intended to procure such assistance or not. The knowledge
of the appellant whether the person whose assistance he procured \Vas a person in the service of the Government or not was
irrelevant.
Mens rea \Vas not a necessary ingredient of the
corrupt practice.

## Text

(1) S.C.R.
SUPREME COURT REPORTS
213
In the result, we hold that the sum of Rs. 26,000
received by the appellant_on April 22, 1950, was dividend as defined in s. 2(6A) (c) of the Act and is chargeable to tax.
The appeal fails, and is dismissed with costs.
1\1 essrs.
Dhandhania
Redia & Co.
v.
Appeal dismissed.
The Commissioner
of Income-tax
DR. Y. S. PAIUTAit
v.
SH. HIRA SINGH PAUL AND ANOTHER
(VENKATARAMA AIYAR, GAJENDRAGADKAR
and A. K. SARKAR, JJ.)
ElcFtion-Corru.pt Practice-Procuring assistance of Government servant-Candidate appointing person as polling agent, not
knowing him to be Government servant-Mens rea, if necessary
ingredient-Representation of the People Act (43 of z95r), ss. 46
and z23(7).
The appellant, who was a candidate for election to Parliament, signed a very large number of blank forms for the appointment of polling agents and made them over to one Kalyan Singh.
Kalyan Singh passed on three of the forms to Kashmira Singh
after inserting therein the name of a particular polling station.
Kashmira Singh filled in the name of Amar Singh as the polling
agent in one of these three forms and gave it to Amar Singh, who,
duly signed the form, filed it before the presiding officer of the
polling station and acted as the appellant's polling agent. Amar
Singh was a member of the armed forces but this fact was not
known to the appellant or to Kashmira Singh or Kalyan Singh.
After the poll the appellant was declared elected but on an
election petition being filed his election was set aside on the
ground that he had committed the corrupt practice of procuring
the assistance of a person in the service of the Government. The
appellant contended that Amar Singh had not been duly appointed as the appellant's polling agent as neither the appellant nor
his election agent had made the appointment, and that the
appellant could not be held guilty of the corrupt practice for he
did not know that Amar Singh was in the service of the Government and consequently did not have the necessary mens rea.
V enkatarama
Aiyar ].
October 17.
214
SUPREME COURT REPORTS [1959] Supp.
I958
Held, that the appellant did appoint Amar Singh as his
polling agent by personally signing the appointment form.
The
Dr. Y. S. Pnrmar fact that the name of the polling ~gent was written in the form
v.
by another person after the appellant had signed it does not
Sh. Hira Singh make it an appointment by the other person.
Paul and Anoth"
Held, further, that the appellant was guilty of the corrupt
practice inasmuch as he appointed Amar Singh as his polling
agent and Amar Singh by acting as the polling agent assisted in
the furtherance of the prospects of the appellant's election.
A
presumption arises under s. 123(7) Explanation (2) that the
appellant by so doing procured Amar Singh's assistance in furtherance of the prospects of his election, irrespective of whether
he intended to procure such assistance or not. The knowledge
of the appellant whether the person whose assistance he procured \Vas a person in the service of the Government or not was
irrelevant.
Mens rea \Vas not a necessary ingredient of the
corrupt practice.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No.
410of1958.
Appeal by special leave from the judgment and
order dated July 31, 1958, of the Judicial Commissioner's Court, Himachal Pradesh at Simla in Civil
Misc. First Appeal No. 2 of 1958.
K. L, Misra, Advocate-General for the State of U. P.
and S. S. Shukla, for the appellant.
Achhru Ram and Ganpat Rai, for respondent Nu. I.
1958. October 17. The Judgment of the Court was
delivered by
sa,ka' J.
SARKAR, J.-This appeal arises out of an election
petition filed by the respondent No. l, Hira Singh
Paul, whom we shall hereinafter refer to as the respondent. The other respondent to this appeal is the Election Commission, but it has not appeared presumably
because it is not interested in the result of the 11 ppcal
which involves no claim against it. The only question
that it involves is whether tl\e appellant was guilty of
a corrupt practice, the details of which will be set. out
later, within the meaning of s. 123(7) of the Representation of the People Act, 1951.
In the 1957 General Elections, ten candidates filed
. their nomination papers to contest the election from
the l\fahasu double member constituency in Himachal
. Pradesh. One of the two seats for this constituency
•
•
(1) S.C.R. SUPREME COURT REPORTS
215
was reserved for a scheduled caste candidate. Two
I95B
of the candidates withdrew from the contest and the
-
, .
, ht
t t th
II
Th
• ht • I d
Dr. Y. S. Parmar
rema.mmg e1g
wen
o
e po .
ese eig
me u -
ed the appellant, the respondent and one Nek Ram. sh. m:: s>ngh
Nek Ram was declared elected to the reserved seat Paul and Another
and the appellant to the general seat. 'The respondent polled the next largest number of votes to the
Sarkar J.
appellant.
After the results had been declared the respondent
filed the election petition on August 3, 1957, challenging the validity of the election of the appellant on the
ground that he had committed various corrupt practices.
The Election Tribunal framed 18 issues in respect of the various corrupt practices alleged in the
petition but answered all the issues excepting issues
Nos. 8(i), 8(ii) and 11 against the respondent. Issue
No. 8(i) raised the question whether one Amar Singh,
said to be a member of the armed forces of the Union
of India, worked and canvassed for the appellant.
Issue No. 8(ii) was whether Amar Singh was appointed his polling agent by the appellant. Issue No. 11
was in the following terms :
In case one or more of Issues Nos. (8) to 10 is or
are decided in the affirmative, whether the respondent
No. 1 obtained, procured or abetted or attempted to
obtain, procure by himself, by his agents and by his
supporters the assistance of the Government servants
as specified under the said issues for the furtherance
of the prospects of his election ?
The Tribunal found against the appellant on Issues
X os. 8(i), 8(ii) and 11 and thereupon declared his election void.
The appellant then went up in appeal to the judicial
Commissioner, Himachal Pradesh, who by his judgment dated July 31, 1958, set aside the finding of the
Tribunal on Issue No. 8(i) but maintained its findings
on the other two issues and confirmed the declaration
tha.t the appellant's election was void. The appellant
has come up to this Court by special leave in appeal
against that judgment. As will have been seen
from what has been earlier stated the only questions
216
SUPREME COURT REPORTS [1959) Supp.
' 958
that survive are those raised by Issues Nos. 8(ii)
v,. Y. s. P•,m•' a.nd 11.
v.
The facts are not now in disput.e and may be stated
Sh. m,. Singh as follows: The constituency was divided into 606
Pa1<1 ••d Anothu polling station~ and for each polling station three polling agents could be appointed. The appellant was
Sarkar ].
l d
thus entit e
to appoint 1818 polling agents. On
April 28, 1957, he signed a very large number of the
forms prescribed by the rules framed under the Act
for appointing polling agents, in blank and without
setting out therein the name of any polling agent, as
he had not then been able to make up his mind in
view of the large number of polling stations as to who
would be his polling agents at the various polling
stations. He made over these forms to Kalyan Singh,
who passed on three of them to Kashmira Singh
having inserted therein the words "polling station
No. 13, Sheopur ". Kashmira Singh filled in the name
of Amar Singh as the polling agent in one of these
forms on May 25, 1957, the day of polling, and made
it over to the latter to enable him to act as the appellant's polling agent at polling station No.13, Sheopur.
Amar Singh then duly signed the form as required by
the rules and filed it with the presiding officer at polling station No. 13, Sheopur, and on the strength of it,
acted as the polling agent of the appellant at that
station for about two hours when objection having
been taken to him on th'.e ground that he was a member of the armed forces, he withdrew and left tho
polling station. Amar Siugh was on the polling day
in fact a member of the armed forces though this was
not then known to the appellant. Kalyan Singh and
Kashmira Singh acted in all that they <lid, under the
authority of the appellant. These facts may be taken
to have been established on the evidence adduced.
The learned Advocate"General of Uttar Pradesh
who appeared for the appellant, first sought to contend that Amar Singh had not really been appointed
the appellant's polling agent. He said that under
s. 46 of the Act a polling agent can be appointed only
by the candidate himself or by his election agent and
Amar Singh could not on the facts found, for reasons to
(1) S.C.R. SUPREME COURT REPORTS
217
he stated presently, be said to have been appointed a
r958
polling agent either by the appellant or his election
-5
t
Th
c
d'
t h'
A
s·
h h d Dr. Y. . Parmar
agen .
ere1ore, accor mg o 1m,
mar mg
a
v.
not been appointed the appellant's polling agent at Sit. Hira Singh
all and hence the charge of corrupt practice against Paul and Another
him for having so appointed Amar Singh must fa.ii.
First, it seems to us that this argument is not open
Sarkar J.
to the learned Advocate-Genel'al. He himself appeared
for the appellant before the learned J udicia.l Commissioner and there conceded that the factum or the validity of the appointment of Amar Singh a.s the appellant's polling a.gent could not be questioned by him.
We do not think that we should permit the appellant
to withdraw a. concession expressly made by his counsel
in the Court below in a matter of ; this kind. This is
all the more so as the present argument does not seem
to have been raised when the matter was before the
Tribunal, either. Secondly, it seems to us that the
contention is without substance. We will assume that
the learned Advocate-General is right in bis contention that under the Act a polling a.gent can be appointed only by the candidate himself or by his election
agent and not by the candidate acting through any
other a.gent. The learned Advocate-General's contention is that on the facts found, the only possible conclusion is that Amar Singh had not been appointed polling agent by the appellant himself but by one or other
of his a.gents, namely, Kalya.n Singh · or Ka.shmira.
Singh and as none of them was his election agent, the
appointment was invalid. It is not in dispute that
neither Kalya.n Singh nor K ashmira Singh was his
election a.gent; In fact it appears that the appellant
had no election agent at all. In our view, however,
this does not matter as the present is not the case of
an appointment by any agent but by the appellant
himself.
We have come to this view because here, the
appointment was ma.de by the document signed personally by the appellant. The fac' that the name of
the polling agent was written in the document by
another person after the appellant had signed it, does
not make the appointment of the polling a.gent under
28
218
SUPREME COURT REPORTS [1959] Supp.
r958
that document an appointment by some other person
-
acting as the agent of the appellant. On the language
Dr. Y. S. Parmar f th d
d th
· t
t
v
o
e ocument-an
e appom men was not purSh. Hir;, Singh ported to have been made in any other way than by
Paul and Another the document-it was an appointment made by the
appellant himself. The other person only wrote the
Sarkar J.
name in the document which he had authority to do.
He did not purpurt to make any appointment at all.
It is impossible to read the docu'ment as the making of
the appointment by an agent of the appellant acting
for him. The true view of the matter plainly is that
the appellant himself appointed by the document as
his polling agent, a person whose name had been
written therein by another with his authority. We,
therefore, hold that Amar Singh had been appointed
his polling agent by the appellant himself. It was thus
even on the learned Advocate-General's construction
of s. 46, a proper appointment.
We then come to this that the appellant appointed
Amar Singh, a member of the armed forces, his polling
agent and the latter acted as such. The question is, Did
this amount to a corrupt practice by the appellant ? The
respondent's contention which has been accepted by
the Courts below, is that it is a corrupt practice within
s. 123(7) of the Act. That provision so far as is relevant
and the explanation to it, are in these terms :
Section 123. The following shall be deemed to be
corrupt practices for the purposes of this Act :-
......................................................................
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7) The obtaining or procuring or abetting or
attempting to obtain or procure by a candidate or his
agent or, by any other person, any assistance (other
than the giving of vote) for the furtherance of the
prospects of that candidate's election, from any person
in the service of the Government and belonging to any
of the following classes, namely :-
......................................................................
• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • ! •••••••••••••••••••••
(c) members of the armed forces of the Union;
Explanation.- ( 1) ............................................ .
(2) ]for the purposes of clause (7), a person shall be
(I) S.C.R. SUPREME COURT REPORTS
219
<lcemed to assist in the furtherance of the prospects of
1958
a candidate's election if he acts as an election agent, or D
Y ~,
a polling agent or a counting agent of that candidate.
r.
· ~-
annar
The learned Advocate-General contends that the sh. IJira Sf:ngh
procuring or obtaining by a candidate of any assistance Paul and Another
for the furtherance of the prospects of his election from
-
a person in the service of the Government as a member
Sarkar J.
of the armed forces, would not amount to a corrupt
practice unless that candidate knew that the person
was in such Government service. He says that the
words ' procuring or obtaining ' import such know ledge
and that this view of the matter receives great strength
from the word 'for' in the phrase "for the furtherance
of the prospects of that candidate's election ". According to him, without such knowledge the candidate cannot be said to have procured or obtained any assistance, for no one can obtain or procure a thing unless
he knows that he is doing so.
He then points out that
there is evidence that neither the appellant nor Kalyan
Singh nor even Kashmira Singh knew that Amar
Singh was a member of the armed forces.
He, therefore, says that the appellant cannot in the absence of
such knowledge be said to have procured or obtained
the assistance of a member of the armed forces for
furthering the prospects of his election.
It is true that neither the appellant nor Kalyan
Singh, nor even Kashmira Singh knew at the date of
the appointment of Amar Singh that he was a member
of the armed forces but the point now raised by the
learned Advocate-General is, in our view, none the less
unsustainable. It overlooks the provisions of the
second explanation to the section
which we have
already set out. Under that explanation if a person
acts as the polling agent of a candidate it must be held
without more, that he assisted in furtherance of the
prospects of thet candidate's election. In the present
case therefore it has to be held that Amar Singh who
acted as the appellant's polling agent, thereby assisted
in the furtherance of the prospects of his election. Now
under the provisions of the Act, no one can act as the
polling agent of a candidate unless he has been appointed as such and we have already held that the appellant
220
SUPREME COURT REPORTS [1959) Supp.
r95B
himself had appointed Amar Singh &s his polling
D
Y ~r
agent. It follows in view oft.he explanation that the
'· · ·;. .,,,,., appellant procured and obtained the assistance of
sh. HiYa Singh Amar Singh for the furtherance of the prospects of his
Paul ""d Anoth" election. All the requirements of the section are thus
satisfied and the appellant must therefore be held to
Sa.Aa• f.
have committed the corrupt practice thereby constituted.
All that the section requires is that assistance
shall be procured for furthering the election. Where
the explanation applies as it does in the present case,
if a candidate has appointed a person to act. as his
polling agent and he accordingly does so act, a statutory presumption arises that the candidate thereby
procured that person's assistance in furtherance of the
prospects of his election, and this irrespective of whether he intended to procure such assistance or not.
Indeed, as Mr. Achhru Ram appearing for the respondent pointed out, the explanation clearly shows that
the candidate's intention is irrelevant, for, such presumption arises even when a candidate has procured
another person to a.ct as his counting agent and it is
very difficult to imagine that the appointment of a
counting agent can further the prospects of any election, for the counting agent acts after the polling .is
over and only when the votes already polled, a.re
counted. Therefore it seems to us that in the case of
the appointment of a polling agent which comes within
the explanation as the present case does, the intention
of the candidate in procuring the assistance is irrele-
,vant. If that is so, it is clear that the knowledge of
the candidate whether the person, whose service as his
polling agent he has- procured, is a member of the
armed forces or any of the other specified class of
Government servants or not, is equally irrelevant. We
think therefore that the learned Advocate-General's
contention must fa.ii.
\Vhat we have said just now also disposes of the
other argument of the learned Advocate-General,
namely, that a corrupt practice is in the nature of a
criminal a.ct and cannot therefore be established unless
mens rea, or criminal intention, is established, and
that the appellant cannot be said to have committed
(1) S.C.R.
SUPREME COURT REPOHTS
221
a corrupt practice for he had no mens rea in appointing Amar Singh his polling agent since he did not
~
Dr. Y. S. Parmar
know that Amar Singh was a member of the armed
v.
forces.
On this point we were· referred to certain pasSh. Hira Singh
sages from English text-hooks on election law of which Paul and Another
it will be enough to refer to one, for all state the law
fi Id' p l'
Sarkar ].
in substantially the same terms. In Scho e
s ar 1amentary Elections, 2nd Edn. whieh is one of the
text-books to which we were referred, it is stated at
p. 402:
There is an elementary distinction between a corrupt and an illegal practice. To establish the former
it is essential to show that a. corrupt intention is present. A corrupt practice is a thing the mind goes
along with, whereas an illegal practice is a thing the
legislature is determined to prevent, whether it is done
honestly or dishonestly.
The view thus formulated is founded on the English
law of election and is clearly of no assistance to us. It
is based on particular English statutes and the language employed therein. We have already shown that
our statute in the case at least of a corrupt practice
of the kind in hand does not concern itself with any
question of intention.
Mr. Achhru Ram with his
usual indust.ry made available to us the English statutes on which the statement of law set out in the textbooks referred to by counsel for the appellant had
been based and pointed out that under these statutes
the acts therein made corrupt practices had to be done
corruptly and that corrupt practices were a.I wayA
ma.de offences punishable as crimes. It may be of U8c
here to point out that the relevant provisions in our
8tatute wel'e amended in 1956 anrl that has doue away
with the distinction between illegal and corrupt pmctices. In fact, we have now only corrupt· praeticoK
and no illegal practices. The present case, it may be
pointed out, is governed by the amended statute. No
question of mens rea or intention or knowledge of the
candidate arises in this case.
We, therefore, come to the conclusion that the appellant was guilty of a corrupt practice by appointing
Amar Singh, a member of the armed forces, his polling
222
SUPREME COURT REPORTS [1959] Supp.
r958
agent whereby the latter was enabled to and did
-
act. as such. The appellant's election was consequDr. Y. S. Parmar
ti ·
· ·
· ht! d J
d
'd
en y m our opm10n rig
y ec aro vm .
sh. m:~ 5;,.gh
The appeal is therefore dismissed with costs.
1.)aul and Another
Sarka, ].
OcJober z7.
Appeal dismissed.
MCKENZIE & CO. LTD.
v.
ITS WORKMEN AND OTHERS
(JAFER IMAM, S. K. DAS and J. L. KAPUR, JJ.)
Industrial Dispute-Illegal strike-Enquiry by companyRejection by Tribunal of application for permission to dismiss workmeH-Fresh enquiry, if barred-Notice of enquiry, how to be effected
-Dismissal after fresh enquiry-Jurisdiction of Tribunal-If can
interfere with decision of company-Industrial Disputes Act (XIV
of r947), s. 33·
During the pendency of the adjudication of a reference before the Industrial Tribunal, the workmen illegally confined the
work-$ manager and went on strike. The company issued notices
to the workmen to resume '\'Ork immediately but they refused.
The company declared a lock out and served charge sheets on
the workmen calling upon them to submit their explanations.
No explanation having been submitted the company held an
enquiry and found the workmen guilty of gross misconduct
amounting to major misdemeanour which merited dismissal.
The company applied to the Tribunal under s. 33 of the Industrial Disputes Act for permission to dismiss the workmen.
The
Tribunal granted permission in respect of three workmen but
refused it in respect of 6I workmen on the ground that there was
reasonable doubt as to their identity and complicity in the
incident. The order was upheld in appeal by the Labour Appellate Tribunal. Thereupon the company took fresh. proceedings
against the 64 workmen. It sent charge sheets to them by
registered notices to their addresses registered with the company and also affixed notices on its notice boards both inside
the premises and outside the gate. The registered notices could
not be served upon workmen Nos. 2 to 24 as they were not found
at the addresses given. The company wrote to the Workers