# • \ BALWAN SINGH v. PRAKASH CHAND & OTHERS

- **Citation:** [1976] 3 S.C.R. 335
- **Court:** Supreme Court of India
- **Decided:** 1976-02-04
- **Case number:** Civil Appeals Nos. 775 and 1107 of 1975
- **Bench:** P. K. Goswami, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/balwan-singh-v-prakash-chand-others-6799
- **Pages:** 15

## Headnote

335
Representation of People Act, 1951-S. 123(5)-Corrupt Practice-Procuring
of G tractor and trolly belonging to the candidate's wife for carrying voters to
tlif' polling station-1! .corrupt practice.
·Words and phrases "procuring", nieaning ofA
B
Practice-A1nendment ,of election petition after the period prescribed for
C
presentation-If could be done-Whether obligatory for the election petitioner
to examine hitnself at the trial.
The appellant's election to the State Assembly \Vas set aside by the High
Court on the ground of corrupt practice fallip_g under s. 123(5) of the Repre~
sentation of People Act.
The appellant, it v,:as alleged, hired and pro:::ured
vehicles for the free conveyance of voters. This was however denied by the
appellant. The High Court allowed amendment of the election petition by
inserting a new .sub-paragraph 12(d), stating that the names of the persons
D
who hired or procured the vehicles for carrying the voters to the polling station
were given in schedule lll(i) of the petition, on the view that the information
given was a necessary particular to -allege and prove that the vehicle was used
for the conveyance of the voters.
It was contended in this Court_1 (i) that the tractor in which the voters were
alleged to have been carried to the polling station, was taken there in some
other connection and that though the tractor was in the name of his wife as
benamidar. it really belonged to the appellant and, as such, no question of
E
hiring or procuring it, whether on payment or otherwise, arose so as to make
it fall within the purview of s. 123 (5) of the Act; and (ii) that the High
Court had committed a serious error of law in allowing: the election petition
to be amended after the expiry of the period prescribed for its presentation.
Dismissing the appeal,
HELD :
The finding of the High Court that the appellant procured the
tractor with trolly and used it for the purpose of transporting the voters to the
F
polling station and thereby committed a corrupt practice within the meaning
of s. 123(5) of the Act is correct. [348E]
(1) (a) There is no justification for contending that there could be
no
question or occasion for hiring or procuring the tractor because it belonged to
the appellant. It cannot be urged that the tractor, which belonged to his wife,
must be deemed to belong to the appellant or that it should be inferred that
she was a n1ere benamidar when that was not the appellant's cas~ anyw'here.
The tractor belonged to the wife of the appellant and was not his own property.
G
f341E-F]
(b) It would amount to "procuring" the tractor if it could be shown that
the appellant obtained or got or acquired the tractor from his wife.
The
dictionary meaning of the word "procure'' is "to obtain as by request loan,
effort, labour; get, gain, come into possession of". This is the correct meaning
of the word used in s. 12(5). [34\G-H]
( c) It is not ahyays possible for an election petitioner to adduce direct
evidence to _prove that a particular vehicle was hired or procured by the candi-.
date or his agent or by any other person with the consent of the candidate
or his election agent, but this can be inferred from the proved circumstances
where such inference is justifiable. [348B]
H
A
B
c
D
E
F
G
H
336
SUPREME COURT REPORTS
(1976] 3 S.C.R.
Bhagwan Datta Shastri v. Badri Narayan Singh and others, A.LR. 1960 S.C.
200; Shri Un1ed v. Rai SinJ?h and others. A.LR. 1975 S.C. 43: Ratn Awadesh
Sinf{h v. Suniitra Devi and Others. [19721 2 S.C.R. 674: Rahim Khan v. Khurshitl
Ahmed and others, [1975] 1 S.C.R. 643; Baburao Ragaji Karemore and others
v. Govind and others [19741 2 S.C.R. 4zg; and Srnt. Indira Nehru Gandhi v.
Raj Narain, AJ.R. 1975 S.C. 2299, referred to.
(2) It is futile to contend that a new corrupt practice was allowed to be
inserted by the Hh~b Court's order of amendment. The
s-::hedulc
was
an
integral part of the election petition and the original election petition contained
what was required to be stated

## Text

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BALWAN SINGH
v.
PRAKASH CHAND & OTHERS
(Vice-Versa)
February 4, 1976
[P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]
335
Representation of People Act, 1951-S. 123(5)-Corrupt Practice-Procuring
of G tractor and trolly belonging to the candidate's wife for carrying voters to
tlif' polling station-1! .corrupt practice.
·Words and phrases "procuring", nieaning ofA
B
Practice-A1nendment ,of election petition after the period prescribed for
C
presentation-If could be done-Whether obligatory for the election petitioner
to examine hitnself at the trial.
The appellant's election to the State Assembly \Vas set aside by the High
Court on the ground of corrupt practice fallip_g under s. 123(5) of the Repre~
sentation of People Act.
The appellant, it v,:as alleged, hired and pro:::ured
vehicles for the free conveyance of voters. This was however denied by the
appellant. The High Court allowed amendment of the election petition by
inserting a new .sub-paragraph 12(d), stating that the names of the persons
D
who hired or procured the vehicles for carrying the voters to the polling station
were given in schedule lll(i) of the petition, on the view that the information
given was a necessary particular to -allege and prove that the vehicle was used
for the conveyance of the voters.
It was contended in this Court_1 (i) that the tractor in which the voters were
alleged to have been carried to the polling station, was taken there in some
other connection and that though the tractor was in the name of his wife as
benamidar. it really belonged to the appellant and, as such, no question of
E
hiring or procuring it, whether on payment or otherwise, arose so as to make
it fall within the purview of s. 123 (5) of the Act; and (ii) that the High
Court had committed a serious error of law in allowing: the election petition
to be amended after the expiry of the period prescribed for its presentation.
Dismissing the appeal,
HELD :
The finding of the High Court that the appellant procured the
tractor with trolly and used it for the purpose of transporting the voters to the
F
polling station and thereby committed a corrupt practice within the meaning
of s. 123(5) of the Act is correct. [348E]
(1) (a) There is no justification for contending that there could be
no
question or occasion for hiring or procuring the tractor because it belonged to
the appellant. It cannot be urged that the tractor, which belonged to his wife,
must be deemed to belong to the appellant or that it should be inferred that
she was a n1ere benamidar when that was not the appellant's cas~ anyw'here.
The tractor belonged to the wife of the appellant and was not his own property.
G
f341E-F]
(b) It would amount to "procuring" the tractor if it could be shown that
the appellant obtained or got or acquired the tractor from his wife.
The
dictionary meaning of the word "procure'' is "to obtain as by request loan,
effort, labour; get, gain, come into possession of". This is the correct meaning
of the word used in s. 12(5). [34\G-H]
( c) It is not ahyays possible for an election petitioner to adduce direct
evidence to _prove that a particular vehicle was hired or procured by the candi-.
date or his agent or by any other person with the consent of the candidate
or his election agent, but this can be inferred from the proved circumstances
where such inference is justifiable. [348B]
H
A
B
c
D
E
F
G
H
336
SUPREME COURT REPORTS
(1976] 3 S.C.R.
Bhagwan Datta Shastri v. Badri Narayan Singh and others, A.LR. 1960 S.C.
200; Shri Un1ed v. Rai SinJ?h and others. A.LR. 1975 S.C. 43: Ratn Awadesh
Sinf{h v. Suniitra Devi and Others. [19721 2 S.C.R. 674: Rahim Khan v. Khurshitl
Ahmed and others, [1975] 1 S.C.R. 643; Baburao Ragaji Karemore and others
v. Govind and others [19741 2 S.C.R. 4zg; and Srnt. Indira Nehru Gandhi v.
Raj Narain, AJ.R. 1975 S.C. 2299, referred to.
(2) It is futile to contend that a new corrupt practice was allowed to be
inserted by the Hh~b Court's order of amendment. The
s-::hedulc
was
an
integral part of the election petition and the original election petition contained
what was required to be stated by s. 83 of the Act and the amendment was
n1eant to furnish some further particulars in regard to the same corrupt practice.
When issue No. 2 was framed by the High Court, the appellant was tully aware
that the election petitioners had alleged the user of the vf'hi--:les also and that
\\'as why he joined issue for the trial of that allegation.
[340B-CJ
{3) There is no obligation on the part of the election petitioners to examine
themselves at the trial iTh the High Coutt.
The evidence which they vtere
able to produce at the trial could not have been rejected for anv such fanciful
reason when there was nothing to show that the election petitiOners were able
to give useful evidence to their personal knowledge but stayed away purpo<;ely.
[349F)
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 775 and
1107 of 1975.
(From the Judgment and Order dated the 9-4-1975 of the Allahabad High Court in Election Petition No. 24 of 1974)
N. S. Bindra. K. C. AJ?arwala. R- D. Uppadhaya and M.
M.
L.
Srivastava, for the appellant in CAs 775/75.
Yogeshwar Prasad and Miss Rani Arora and Bir Bahadur Singh,
for the appellant in CA 1107 /75.
N. S. Bindra, K. C. Agarwala, R. D. Uppadhaya and M. M. L.
Srivastava, for the respondent in CA 1107 /75.
Yogeshwar Prasad, Miss Rani Arora and Bir Bahadur Singh, for
respondents 1 and 2 in CAs 775/75.
The Judgment of the Court was delivered by
SHINGHAL, J.-Civil Appeal No. 775 of 1975 has been filed under
section l l 6A of the Representation of People Act, 1951, hereinafter
referred to as the Act, by Balwan Singh whose election to the Uttar
Pradesh Legislative Assembly from the Sarwan Khera constituency at
the general election of 1974, has been set aside by the Allahabad
High Court by its judgment dated April 9, 1975. The appellant has
been held guilty of co=itting a corrupt practice under section 123(5)
of the Act, and has been disqualified for a period of six years. His
election was challenged on several grounds by an ekction
petition
filed by respondents Prakash Chandra and Jai Chandra, hereinafter referred to as the election petitioners, who were electors of the constituency.
There were several candidates at the election, but the main
contestants were appellant Balwan Singh of the Bhartiya Kranti Dal
(B.K.D.) who secured 34.968 votes, and Ragunath Singh, respondent
No. 2 of the Congress (R) party who secured 31,008 votes. Appeal
No. 1167 of 1975 is by election oetitioner Prakash Chandra for setting
aside the judgment on issues decided against the election petitioners.
•
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BAL WAN SINGH V. PRAKASH CHAND ( Shingha/, J.)
3 3 7
The allegation regarding the commission of the corrupt practice
referred to above was to the effect that the appellant, his workers,
agents and supporters, with his consent hired and procured vehicles
for the free conveyance of electors. A concise statement of the material facts in that respect was made in paragraph 12 of the election petition.
Particulars of the vehicles used for the free conveyance of the
electors were given in Schedule III of the petition.
The appellant
denied the allegation and pleaded in his written statement that none of
the vehicles mentioned in Schedule III was either procured or hired
by him or his workers and agents with his consent for the purpose of
carrying voters to and from the polling stations and that no such vehicle was "used for the purposes of carrying electors to and from
the
polling stations on the date of poll". It was also stated that the allegations contained in sub-paragraphs 12(a), 12(b) and 12(c) were not
the facts required by section 83.
They were totally vague and lacked in material particulars, and were liable to be struck o!f.
The
High Court considered that and the other objections and stated in
its order dated August 30, 1974, in regard to the obiection that the
names of the persons who procured or hired vehicles
were
not
given in paragraph 12 or Schedule III, that the counsel for the election
rletitioner had undertaken to
fumi,fu the names.
Tho
ek(~ij/Jn
tioners furnished better particulars by adding paragraph 12( d) stating
that the names of the persons who hired or procured the vehicles by
which the electors were "carried free of cost from their houses to the
polling station" on the date of election by respondent No. 1 were given
in Schedule III ( 1). They ?ave the percentage and residence of the
persons named in Schedule III, as also particulars and names of the
persons who hired and procured vehicles for the free conveyance of the
electors, and the names of the owners of the vehicles. An objection
was then taken that such an amendment was not permissible.
The
High Court rejected that objection by it,1 order dated October 10,
197 4, except that the names of two new persons were not allowed
to be inserted in Schedule V. with which we are not concerned.
The High Court framed several issues, including issue No. 2 which
was as follows,-
"2. Whether the respondent No. 1 himself, or his workers and agents with his- consent, h;red or procured veh'cles
for the free conveyance of the voters and whether the vehicles so hired and procured were used for the purpose and
thereby the respondent No. 1 committed corrupt practice."
After recording the evidence of the parties, the High Court recorded
its finding as follows.-
"My answer on issue No. 2 accordingly is that the respondent No. 2 procured tractor 9962 with trolly and hired
Jeep UPW 359 and Tractor UTE 5865 with trolly and that
the said vehicles were used for free conveyance of voters to
Maubasta, J aganpur and Tigain polling stations and further
that the respondent No. 1 thereby committed a corrupt practice under section 123(5) of the R.P. Act."
A
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338
SUPREME COURT REPORTS
[1976] 3 S.C.R.
A
It was in view of that finding that the election petition was allowed
with costs, the election 'of the appellant was declared void, and he was
disqualified as aforesaid.
That is how appeal No. 775 has arisen.
The other appear No. 1107 has been filed by election-petitioner
Prakash Chandra, as he feels aggrieved against the High Ccurt's findings on the other issues, but Mr. Yogeshwar Prasad has stated that
he would not press. that appeal.
We have therefore only Balwan
ll
Singh's appeal for consideration.
·
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· It has been argued by Mr. Bindra on behalf of Balwan Singh,
hereinancr referrea to as the appellant, that the High Court ought
not to have entertained the elect10n petition as it was not .verified in
. the manner laid down in the Code of Civil Procedure for the verifica-
-tion of pleadings even though that was the clear requirement of section 83(l)(c) of the Act.
We asked the counsel to refer us
to
any such objection of the appellant in the trial court, and all
that
he could do was to invite our attention to paragraph 5 of the application dated November 27, 1974.
That paragraph however relates
to the objection regarding the defective verification of the affidavit
accompanying the election petition, which is a different matter. That
is. in fact the subject matter of Mr. Bindra's second argument, and
we shall deal with it separately. · The fact remains that an ()bjection
regarding the alleged defective verification of the election petition
was nor taken in the High Court, and it was not a point at issue
there.
There is therefore no justification for allowing it to be raised
here.
It ·is in fact significant that even though an objection was
taken on November 27, 1974 in regard to the verification of the
affidavit, no such objection was . taken about the verification of the
main election petition.
It was vaguely stated that verification of .
the affidavit and vertification of the Schedule (i.e. Schedule III) were
"at variance", but that was a different matter. In so far as the verification of the affidavit is concerned, it would be sufficient to say that
that part of it which related to the commission of the corrupt practice
which was the subject matter of issue No. 2 was concerned (Schedule III) it was verified in accordance with the prescribed form (No.
25 of the Ccndtict of Election Rules, 1961) as true to the election
· petitioner's information received from the persons mentioned in it.
It was therefore quite in order.
It may be mentioned that although the High Court examined the
, objections of the appellant on two occasions, no objection was taken
or pressed for its consideration in regard to the verification of the
main election petition, its schedules or the affidavits.
An objection
was raised in the appellant's application dated November 27, 1974
that the election petition may not be tried because of defective affidavit, but it was rejected by the High Court's order of the same date
on the grounds that it was a belated objection, and the alle)!ation of
corrupt practice could not be deleted merely because of the defective
form of the affidavit.
No issue was joined in respect of any such
objection and it cannot be allowed to be raised for the first time in
this appeal.
·
It has next been argued by Mr. Bindra that the High Court committed a serious error of law in allowing the election petition to be
+
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BALWAN SINGH v. PRAKASH CHAND (Shinghal, J.)
339
amended, after the expiry of the period prescribed for its presentation,
A
eve11 tnough it did not allege that any vehicle was used for the free
conveyance of any elector and did not specify the names of the perc
sons who wcr-~ alleged to have hired or procured the vehicles.
It
has been urgcu that as the facts alleged in the
petition
did
not
bring out all th0 ingredients or the corrupt practice, there was
no
cause of action for trial.
Reference in this connection has been
made to Samant N. Balakrishna etc.
v. George
Fernandez
and
B
others('). F!ardwari Lal v. Kamal Singh,(') Raj Narain v. Smt. fndira
Wehru Gandhi and another(') and Vatal Naxaraj v. R.
Dayanand
~agar(').
By the amendment in question, the election petitioners had applied
for insertion of a new sub-paragraph ( d) in paragraph 12 of
the
petition as follows,-
C
"The names of the persons who hired or procured t.he
vehicles by which the electors were carried free of cost from
their houses to polling station on the date of election by
respondent No. 1, his workers and agents with his consen(
arc given in schedule Ill(i) of the election petrtion."
Scheduic Ill(i) gave the particulars and names of the persons who
hired and procured the vehicles for the free conveyance of electors. The
High Court took note of the law that a fresh corrupt practice could
not be alleged by means of an application to amend the election
petition and, after referring to the decisions in Ba/wan Singh v. Lakshmi
Narain and others(') and Joshbhai Chunibhai Patel v.
Anwar Beg
A. Mirza,(6 ) given before and after the amendment made by Act 47
of 1966, it held that it was the requirement of the law that in addition to proving the hiring or procuring of the vehicles for
the free
conveyance of any elector to and from any polling station, it was a
necessary particulars to allege and prove that the vehicle was used
for the conveyance of the electors.
It then noticed
paragraph
9 (iii) of the election petition which stated that the appellant,
his
workers, agents and supporters with his consent, hired and procured
vehicles for the free conveyance of electors and committed corrupt
practice as provided under sub-section (5) of section 123 of the Act.
It also noticed paragraph 12 which clearly stated that the concise statement of material facts in relation to the aforesaid ground relating
to the procuring and hiring of tractors, jeep and car "for free conveyance of voters to the polling stations from their houses" were given in
sub-paragraphs (a) and (b).
Those sub-para!!faphs clearly mentioned that the vehicles had been hired and procured for the free
conveyance of the electors from their houses to the polling stations on
the date of poll.
Reference was also made to Schedule III of the
petition for which it was stated in paragraph 12(c) of the petition
that the full particulars in regard to the corrupt practice were given
in it.
That schedule contained the "particulars of vehicles used for
(l) [1969] 3 S.C.R. 603.
(3) [1972] 3 S.C.R. 811.
(5J [1960] 3 S.C.R. 91.
(2) [1972) 2 S.C.R. 742.
(4) f10751 2 S.C.R. >R4.
(6) [1969] 2 S.C.R. 97.
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340
SUPREME COURT REPORTS
(1976] 3 S.C.R,
free conveyance of electors on the date of election" and contained
not only the place from which the electors were conveyed, the time
of conwyance, the name of the polling station. the particulars of the
Teh1cle, but also the names of the electors who were so conveyed and
the names of the workers and agents who conveyed them.
The
schedule was an integral part of the election petition, and the original
election petition thus contained what was required to be stated by
section 83 of the Act, and the amendment was meant to furnish some
further particulars in regard to the same corrupt practice.
It is
therefore futile to contend that a new corrupt practice was allowed
to be inserted by the High Court's order of amendmi:nt.
It may l'.ie
pointed out that, as would appear from paragraph 12(c) of
the
appellant's original written statement to the unamended election petition, he also understood the allegation in the election petition to mean
that it related to the use of the vehicles for carrying the electors to
and from the polling stations on the date of poll.
It will be recalled
that the issues were framed on August 30, 197 4, before the making of
the application for leave to amend the election petition, and issue No 2
clearly raised the question whether appellant Balwan Singh, or his
workers and agents with his consent, hired or procured the vehicles
for the free conveyance of the voters
and
whether
the vehicles
so hired and procured "were used for the purpose." The appellant was
therefore fully aware that the election petitioners had, inter alia, alleged
the user of the vehicles also, and that was why he joined issue for ihe
trial of that allegation.
There is thus no justification for the argument to the contrary.
We have already made a mention of issue No. 2 and the High
Court's . finding thereon in favour of the election petitioners in respect of tractors No. as UPG 9962 and UTE 5865, and jeep No. UPW
359, for the free conveyance of electors to Naubasta, Jaganpur and
Tigain polling stations.
Mr. Blndra has challenged that finding . and
we shall proceed to examine his arguments in respect of the Nanbasta
polling station.
The election petitioners alleged in the election petition that the
appellant, his workers, supporters and agents hired and procured the
veh<cles mentioned in Schedule III, with his consent, for the free conveyance of electors from their houses to the polling stations on the date of·
poll. namely. on February 26, 1974. Particulars of the corrupt practice
were given in the schedule.
It was thus stated, in regard to Naubasta
polling station, that electors were conveyed there from Bhimpur and
Basehi villages, by tractor No. UPG 9962. in a trolly. It was soecificallv stated that electors Munshi Lal (P.W.20). Ram Swanm (P.W.
13) and Misri Lal (P.W. 13) of Bhimpur, and Radhelal and Bahulal
(P.W.11) of Basehi were thus taken to Naubasta.
So also, it was
stated that some of the workers and a)!ents who conveyed the electors
were Bhagwan Singh (P.W. 11) and Babu Singh of Naubasta, and
Maikoo of Bhimpur.
The aope_1lant pleaded. in his written statement that the allegation
was "totally mcorrect and false," and that "none of the vehicles menI
•
BALWAN SINGH v. PRAKASH CHAND (Shinghal, J.)
3 4 1
'
tioned in Schedule III was either "procured or hired by the answering
A
respondent or by any of his workers and agents with his consent for
the purposes of carrying voters to and from the polling station, nor
any such vehicles were used for the purpose of carrying electors to
and from the polling stations on the date of poll."
It was not the
case of the appellant that tractor No. UPG 9962 was taken to Naubasta
polling station in some other connection, or that there was no occasion or question of hiring or procuring it as it was his own property,
B
or that it was otherwise utilised for his election campaign or for some
other work.
He merely stated that the tractor "was not used in
connection with the election."
It has been argued by Mr. Bjndra that the tractor really belonged
to the appellant, and that his wife was only a 'benamidar' so that there
could be no question of "hiring or procuring it whether on payment c
or otherwise" within the meaning of sub-section (5) of section 123
of the Act. Reliance in this connection has been placed on Surinder
Nath Gautam v. Vidya Sagar loshi(1).
That tractor No. UPG 9962 belonged to the appellant's wife Smt.
Vimla, has been clearly admitted by him in his own statement in the
High Court.
In fact, as has been stated, it was not his case in the
0
written statement that this was not so and that it was his own property
and there could be no question of hiring or procuring it.
A. U.
Siddiqui (P.W.2), tax clerk of the office of R.T.O. Kanpur,
has
proved that the tractor was registered in the name of Smt. Vimla
Yadav, wife of appellant Balwan Singh, and that it stood in her name
since May I, 1971.
Balwan Singh's statement shows that she was
an independent candidate for being coopted as a member of the Zila
E
Parishad, and it appears from the statement of Vijay Kumar Singh
(P. W. 5) that she was her husband's counting agent.
It cannot
therefore be urged with any justification that the tractor which belonged to her, must be deemed to belong to her husband, or that it should
be inferred that she was a mere 'benamidar' when that was not the
appellanes case anywhere.
We must therefore accept it as proved
beyond doubt that tractor No. UPG 9962 belonged to the wife of theF
appellant and was not his own property.
There is thus no justification for contending that there could be no question or occasion for
hiring or procuring it as it belonged to the appellant.
The word "procure" has been defined in the Century Dictionary
to mean "to obtain, as by request, loan, effort, labour, or purchase;
get; gain, come into possession of." It has been defined in the Oxford
G
English Dictionary to mean "to gain, win, get possession of, acquire."
This in our view is the correct meaning of the words as used in sub-s.
( 5) of s.123 of the Act.
J[t would therefore amount to "procuring"
the tractor if it could be shown that the appellant obtained or got it
or arqui red it from his wife.
As has been stated. the tractor did not
belong to the apoellant and, in that view of the matter. it is not necessary for us to examine the correctness of the view taken by the Delhi
H
High Court in Surinder Nath Gautam's case (supra).
(I) 35 E.L.R. 129.
342
SUPREME COURT REPORTS
[1976] 3 S.C.R.
A
We shall now examine whether tractor No. UPG 9962 was used
B
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for the free conveyance of any elector to or from the Naubasta polling station on the date of the poll, and whether it was hired or procured for that purpose by the appellant or his agent or by ony other
person with his consent.
As has been stated, polling
in the constituency" took place on
February 26, 1974.
It has been stated by Vijay Kumar Singh (P.W.
5) who was the polling agent of respondent Raghunath Singh, that he
saw the workers of the appellant bringing voters to Naubasta polling
statio11 in the trolly of tractor No. Ul'G 9962. The trn.;~or, according to him, carried the B.K.D. flag and the posters of that party were
pasted on the trolly.
When he saw the tractor making the tirst trip
to the polling station, he made an oral complaint to the presiding
olliccr. It took some time for him to come out of the pc\,ing station,
and by thaL time the tractor had gone. But ·when the tractor came for
the second time, he made written complaint Ex. 4 about it to Mr.
Singh who was the presiding officer, and he made an endorsement on
it in his presence. The witness has stated further that the presiding
officer came out of the polling station and himself saw the tractor as
well as the persons who got down from it.
Those persons, according
to the witness, were assisted by the workers of the B.K.D. in standing
in the queue at the polling booth.
"Parchis were given to them
from the c:;mp of the B.K.D.
which also had that party's Jlag
and
posters.
According to Vijay Kumar Singh, the tractor and the trolly
made only two trips to the polling station,
the second
trio being
at about 3.30 p.m.
The witness has stated further that the presiding
oflicer made an enquiry on his complaint, and he must have mentioned the result of the enquiry in his diary. He has stated further that
the presiding officer saw the tractor from a distance of about 100
'paces and the registration number could be read from that distance.
The witness was cross-examined at length, but nothing could be
brought out to discredit his testimony, except that both the witness
and respondent Raghunath Singh were related to one Shashi Bhushan
Singh.
That might be the reason why the witness was appointed as
the polling agent of respondent Raghunath Singh, but that
o'l.stant
relationship cannot justify the argument that the witness is unreliable
. and his testimony should be rejected for that reason.
The statement of Vijay Kumar Singh has in fact been corroborated in material particulars by the statement of M. P. Singh (P.W. 6)
who was an employee of the U.P. Institute of Agricultural Sciences
and was the Presiding Officer of the Naubasta polling . station.
He
has stated that the aforesaid complaint Ex. 4 was presented to him
by Vijay Knmar Singh on February 25, 1974 at 3.30 p.m. and that he
made an endorsement to that effect on the complaint. The complaint
Ex. 4 was in Hindi but it is not disputed that its English translation
reads as follows :
"It is submitted that the workers of Sri Balwan Singh
have brought voters in UPG 9962 tractor trolly bearing flag,
and the agents of B.K.D. are setting them in queue. It is
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BALWAN SINGH v. PRAKASH CHAND (Shinghal, J.)
entirely illegal. I have already spoken to you in this connection.
But no action has been taken.
Kindly take proper
at.:tion."
343
M. P. Singh has stated that he came out of the polling station, as the
polling agent said that he should see things for himself, and also because he was aware of paragraph 60 of the "Instructions to PresidA
ing Orhcers" issued by the Election Commission of India. The witR
ness admitted that it was the requirement of the instruction that the
Presiding Officer of the polling station should forward any complaint
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filed before him in regard to the illegal conveyance of voters to the
sub-divisional
and
other magistrate having jurisdiction, with such
remarks as he could make on his ''own observation and
personal
knowledge."
He saw on coming out of the polling station that a
tractor and trolly were standing at a distance of 500 or 600 yards
c
from the polling station.
The witness admitted ultimately that the
"tractor was standing near the camp of the B.K.D.", he "saw some
persons getting down from the tractor and the trolly" and that "those
r
who got down from the tractor were seen by me (him) going towards the B.K.D. Camp." It may be mentioned that the High Court
allowed the counsel for the election petitioners to cross-examine the
witness as there was some inconsistency in the statement made by
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him in the Court and the report (Ex. 5) made in his diary. We shall
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refer to that report in a while.
It was then that the witness stated
as follows :
"I had read the whole of the complaint (Ex. 4) while
going out.
Having seen the tractor and the trolly outside
the polling station near the B.K.D.' camp and having seen
£.
the persons getting down the tractor and trolly and moving
towards the camp, I concluded that everything contained
in the complaint (Ex. 4) was correct, and it was for this
reason that I mentioned
in the report
(Ex. 5) that the
facts of the complaint were found to be correct.
I stayed
outside the polling station for hardly 5 or 6 minutes."
The witness has therefore corroborated the statement of Vijay Kumar
Singh (P.W. 5) in several material particulars.
He has thus st1ted
that (i) complaint Ex. 4 was presented to him on February 26, 1974
at 3.30 p.m. by Vijay Kumar Singh, (ii) he read the whole of it,
(iii) he came out of the polling station to see for himself whether the
allegation was correct, (iv) he saw that the tractor and trolly were
outside the polling station near the B.K.D. camp, (v) persons were
getting down the tractor and trolly, and (vi) they were moving towards the· camp.
The witness has also stated that he forwarded the
complaint to the District Election Officer and that he made report
Ex. 5 in his diary to the following effect,-
"22-Serious complaint made by the candidates.
The Congress polling
agent made a
complaint, that
B.K.D. workers were conveying voters to the polling station
by a tractor and trolly.
The fact of the complaint were
found to be correct and the complaint forwarded."
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M. P. Singh was cross-examined in regard to the correctness of" the
report, but he was unable to deny its genuineness or correctness. His
explanation that he merely concluded after seeing what he has stated,
that everything contained in complaint Ex. 4 was correct, but did
not notice the registration number of the tractor and did not see any
flag or posters on the tractor or the B.K.D. agents setting them in
queue, cannot be accepted because of his statement that he went out
of the polling station as he considered it necessary to see for himself
whether the allegation was correct, and also because of his contemporaneous note in the diary that "the facts of the complaint were found
to be correct."
We have therefore no reason to disagree with the
view taken by the High Court that the statement of M. P. Singh and
documents Bxs. 4 and 5 go to prove the correctness of the statement
of Vijay Kumar Singh (P.W. 5).
Mr. Bindra has argued that M. P. Singh could not have seen the
registration number of the tractor as it was standing at a distance of
500 or 600 yards from the polling station, and that there is no reason
to disbelieve his statement to that effect. It would be sufficient for us
to say in this connection that Vijay Kumar Singh (P.W. 5) has stated
that the Presiding Officer had seen the tractor from a distance of
about 100 paces, and his statement to that effect has not been contradicted by any other witness except M. P. Singh (P.W. 6) who, as
has been shown, tried to give an
inconsistent statement
and was
allowed to be cross-examined by an order of the High Court.
But
even M. P. Singh has stated that he saw the tractor standing near
the B.K.D. camp.
Section 130 of the Act prohibited canvassing or
exhibiting any notice or sign. within a distance of 100 metres of the
polling station, and Mr. Bindra was unable to refer us to any requirement of the law that it was not permissible for a candidate to locate
his camp at that distance. Moreover, if it had not been possible for
M. P. Singh to see the registration number of the tractor, he would not
have recorded in his report Ex.
5 that the facts mentioned
in th
complaint (Ex. 4) were "found to be correct."
The same is
the
position in regard to M. P. Singh's statement that he did not notice
whether the tractor and the trolly did or did not carry any flag
or
posters. It is pertinent to point out in this connection that the com1 -
lain! (Ex. 4) of Vijay Kumar Singh was that workers of the appellant had brought the voters in the tractor trolly, and
it would not
have been possible for him to "conclude that everything contained
in the complaint (Ex. 4) was correct" if he had not seen some distinguishing mark on the tractor or the trolly to connect it with the
appellant. It has been stated by Vijay Kumar Singh (P.W. 5) that
the persons who got down from the tractor trolly went and took
"parchis" from the B.K.D. camp outside the poUing station.
M. P.
Singh (P.W. 6) has also stated that those who got down from the
tractor were seen by him going towards the B.K.D. camp. It is not
the case of the appellant that they were not the electors of the constituency.
In fact it would not have availed him or his workers to bring
those who were not the electors to the polling station.
The election petitioners stated in the petition that the names of
some of the electors who were conveyed to polling station Naubasta
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BALWAN SINGH v. PRAKASH CHAND (Shinghal, J.)
345
wero Babu Lal (P.W.
11) and Radhey Lal (P.W. 12)
of village
Basehi and Ram Swamo (P.W. 13), Misri Lal
(R.W.
13) and
Munshi Lal (P.W. 20) of village Bhimpur. While Babu Lal, Radhey
Lal, Ram Swamp and Munshi Lal have been examined by the election
petitioners, Misri Lal (R.W. 13) has been examined by the appellant.
We have gone through the statement of these witnesses.
Babu
Lal (P.W. 11) has stated that a tractor
having a trolly came
to
Basehi on the date of poll carrying the flag and posters of the B.K._D .
and that he travelled in it to the polling station along with others mcluding Radhey Lal (P.W. 12), Kunji Lal, Hira, Babbu Prasad and
Raghubar Dayal, and that no fare was demanded, or was pait! vomntarily.
Radhey Lal (P.W. 12) has stated much to the same effect,
except that he was not asked to name the other persons who travelled
with him in the trolly. He has however stated that Babu Lal had gone
with him in the tro!ly. Nothing has been elicited in the cross-examination to shake the testimony of these witnesses.
·
We have also gone through the statements of Ram Swamp (P.W.
13) and Munshi Lal (P.W. 20) of Bhimpur.
Ram Swamp has
stated that a tractor and trolly carrying the flag and posters having
the •ymbol of "Haldhar Kisan" came to Bhimpur on the date of poll
and that he and Munshi (P.W. 20) and Lallu, Sukhnandan and his
sons went in it to the polling station to cast their votes and that they
were neither asked to pay any fare for travelling by the tractor to
Naubasta nor did they voluntarily pay anything.
He has stated
that he returned to the village in the same tractor, after casting, his
vote.
Munshi Lal (P.W. 20) has deposed much to the same effect,
and he has stated that Ram Swamp (P.W. 13) also travelled in
the
tractor trolly along with the other persons named by him.
The statements of these witnesses have not been shaken in cross-examination.
As has been stated, Misri Lal (R.W. 13) was also named in the
schedule to the election petition as the elector who was conveyed in
the tractor trolly, and he has been examined on behalf of the appellant.
He has stated that there is a distance of 2 or 2 t furlongs
between the "abadi" of Bhimpur and the "abadi" of Naubasta, and
that he went on foot to cast his vote at the polling station.
He has
stated further that the persons living at Bhimpur had gone to the polling st~tion on foot and that it was wrong to say that any tractor came
to Bhimpur to transport the voters to the polling station.
The appellant has admitted that he knew Misri Lal for 3 or 4 years,
and
we are unable to think that the High Court erred in rejecting his
statement in face of the other evidence to which reference has cbeen
made above.
It was speciJ;ically stated in Schedule III of the election petition
that Bhagwan Smgh (R.W .11) and Babu Singh of N aubasta
and
Maikoo of Bhimpur were the workers and agents of the appella~t who
conveyed the e~ectors to the Naubasta polling station.
Of these only
one Bhagwan Smgh (R.W.11) has been examined on behalf of Balwan
Singh.
He has stated that it was wrong to say that he, Maikoo and
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SUPREME COURT REPORTS
[1976] 3 S.C.R.
Babu Singh brought any voters in tractor trolly from Bhimpur
to
Naubasta, or that he got any "parchis" distributed to any voters in the
queue at the polling station. It may be mentioned that the election
petitioners made it clear that Bhagwan Singh was Bhagwan Singh
Thakur.
Bhagwan Singh (R.W.11) has admitted that
there . was
another Bhagwan Singh in his village.
He has stated that he did not
see appellant Balwan Singh during the election, in his village, that he
had put the flag and poster of the Congress party at his house and
that he and his sons worked for the Congress in the election. As
against this, the appellant has stated that he did go to Naubasta and
talked to Thakur Bhagwan Singh there who was a sympathiser of
B.K.D.
It therefore appears that Bhagwan Singh (R.W.11) cannot
be said to be the worker named in the Schedule of the petition,
and nothing can possibly turn on what he has stated.
It will be recalled that Vijay Kumar Singh (P.W.5) who was the
polling agent of the Congress candidate at N aubasta had stated in the
trial court that he had made an oral as well as a written complaint
about the conveyance of voters by the workers of the appellant, to the
Presiding Officer.
The appellant also appointed his polling agent at
the polling station, but he has not examined him in rebuttal of Vijay
Kumar Singh's statement to that effect.
We have gone through the other evidence which has been led by
way of rebuttal of the allegation regarding the use of tractor No.
UPG 9962 for the conveyance of electors to Naubasta polling station.
We have already dealt with the statements of Bhagwan Singh (R.W. 11)
and Misri Lal (R.W.13) and have given our reasons for rejecting
them as unsatisfactory.
The remaining witnesses, to whose testimony
our attention has been invited by Mr. Bindra, are Vijai Pal Singh
(R.W.14) and appellant Balwan Singh (R.W.34). Vijai Pal Singh
is a self-condemned witness for whereas he stated that he was the
polling agent of Ayodhya Prasad who contested the election as
a
Congress (0) candidate and did not see any tractor trolly conveying
voters to N anbasta polling station although he remained present at the
polling station, he admitted under cross-examination that he was not
a polling agent at the Naubasta polling station and had made a false
statement to that effect.
In so far as Balwan Singh (R.W.34) is
concerned, it will be sufficient to say that he has admitted that he did
not go to Nau bas ta on the date of the poll. He could not therefore disprove the evidence of the election petitioners in regard to the alleged
corrupt practice.
He once ventured to state that he came to know
on the "next day after polling that . (his) tractor bad gone to the
National Sugar Institute" for transporting· ''seta" .and "patwar", but:
he qualified that statement by saying that the tractor may have been
sent there by his wife and that "seta" and "patwar" were obtained
before February 26, 1974.
An attempt was made to examine Iqbal
Bahadur Dwivedi along with the original gate pass of the Institute,
but it was given up by Balwan Singh.
He cannot therefore be said
to have rebutted the evidence of the election petitioners. It may be
mentioned in this connection that although the important role of conveying voters to Naubasta polling station had been assigned to Babu
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BAL WAN SINGH v. PRAKASH CHAND (Shinghal, J.)
3 4 7
Singh and Maikoo in the election petition, they were not examined in
A
defence.
It may be mentioned that some witnesses of the election petitioners,
namely, Babu Lal (P.W.11), Ram Swarup (P.W.13) and
Munshi
Lal (P.W.20) named certain persons who, accordmg to them, travelled with them to the polling station Naubasta free of cost.
Most of
those persons were summoned at the instance of the appellant, but
B
they were not examined ultimately, and were given up.
The election petitioners have also led evidence to prove that tractor UPG 9962 was procured by appellant Balwan Singh himself for
the conveyance of the electors to the Naubasta polling station.