# C. NARAYANASWAMY v. C.K. JAFFAR SHARIEF AND ORS

- **Citation:** [1994] Supp. 2 S.C.R. 463
- **Court:** Supreme Court of India
- **Decided:** 1994-08-09
- **Case number:** Civil Appeal No. 7194 of 1993
- **Bench:** Kuldip Singh, P.B. Sawant, N.P. Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/c-narayanaswamy-v-c-k-jaffar-sharief-and-ors-12294
- **Pages:** 23

## Headnote

Election laws- Representation of the People Act, 1951,-Section
123(l)(A)(b)-Corrupt practices-Mass feeding of electors during election-Whether a corrupt practice.
A
B
c
Election laws-Bribery, gift, offer or promise of gratification and.induce- D
ment to vote-Negotiation between Candidate or agent and electors-Need
not be proved-inducement to voters may be indirect.
Representation of the People Act, Sec. 83(1)(a)(b)-Requirements
of-Pleadings-Statement of material facts and setting forth of full particulars
of any corrupt practice-Needs to be complied with-Mere reproduction of E
section does not amount to statement of material facts.
Representation of the People Act-Section 83(J)(a)(bf--<:orrupt practices-f'roof of incuning of expenditure beyond prescribed limit by elected
candidates-Burden of-Conduct of ''Election Rules, 1961-ll.ule 90.
Election Laws-ll.ight to elect or to be elected-Statutory right, not
fundamental or Common law right-ll.ight to challenge electio~Similarly,
flows from statute.
F
Representation of the People Act-Ss. 77(1)-Effect of Explanation I G
as introduced by Act 58 of 1974 and 123(6)-Corrupt practice-Expenditure-By political party or association or other person-Not deemed expenditure incu"ed .or authorised by candidate.
Representation of the People Act-S.IOO(l)(d)(iii)-Declaring election
. void-Grounds of-Conduct of electi01.-Election Rules-ll.ules 45 and 56 H
463
464
SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A
(7)-Fom1 16-lmproper numbering of ballot papers-Effect of
B
c
Shri. C.K. Jaffer Sharief was elected to the Lok Sabha from Banglore
North Lok Sabha Constituency. His election was challenged by the appel·
lant on the grounds of corrupt practice of mass scale free feeding of the
electors, excessive expenditure and printing of spurious ballots papers.
The respondent's position was (i) the free feeding was on account of the
obsequies observed for the assassinated former Prime Minister, Shri Rajiv
Gandhi; (ii) the respondent had only incurred the reported expenditure
and the rest was incurred by the party and; (iii) the ballots were not
spurious.
Dismissing the appeals, this Court
HELD: 1. After the process of election had commenced and before the
electors had exercised their right of franchise. mass feeding of electors
arranged by the candidate or on his behalf in order to induce directly or
D indirectly the electors to vote, was a corrupt practice. With the existing
economic conditions prevailing in the country feeding of electors may in·
duce them to vote in favour of the candidate arranging it. [ 468·G·H, 469-A]
E
F
G
Mohan Singh v. Bhanwarlal, AIR (1964) SC 1366 andRajendra Prasad
Jain v. Shee/ Bhadra Yajee, AIR (1967) SC 1445, relied on.
2. The negotiation between the candidate or by any person on his
behalf on the one hand and the electors on the other need not be proved.
Section 123(1)(A)of the Representation of people Act did not require the
electors to express or convey their acceptance or assurance that they could
vote for the candidate. But a ne>.11s between the gift, offer or promise of
gratification and the inducement to vote had to be established, which
could be d.one even by circumstantial evidence. (469-C-F]
S.B. Adityan v. S. Kandaswami, AIR (1958) SC 857 and B. Rajagopala
Rao v. Appayya Dora Hanumanthu & Ors., AIR (1990) SC 1889, relied on.
Laxmi Narayar. Nayak v. Ramrathan Chaturoedi, (1990] 2 SCC 173;
referred to.
Ghasi Ram v. Dal Si11gh, [1968] 3 SCR 102=AIR (1968) SC 1191,
Bhanu Kumar Shastri v. Mohan Lal Sukhadia, [1971] 3 SCR 522 = AIR
H
(1971) SC 2025 and Harjit Singh Man11 v. S. Umrao Singh, [1980] 2 SCR
NARAYANASWAMY v. JAFFAR SHARIEF
465
3. Charge of corrupt practice bad to be proved by the election A
petitioner. The proceedings in the election petition were quasi-criminal in
nature.
Devi Prasad v. Malluram Singhania, [1969] 3 SCC 595; Rahim Khan
v. KhurshidAhmed, AIR (1975) SC 290; Bir Chandra Barman v.Anil Sarkar,
AIR (1976) SC 603; Laxmi Raman v. Chandan Singh, AIR (197

## Text

_Characters 0–39,969 of 54,767. This is a partial read: ask again with offset=39969 for what follows._

C. NARAYANASWAMY
v.
C.K. JAFFAR SHARIEF AND ORS.
AND
SMT. PRAMILA NESARGI
v.
C.K. JAFFER SHARIEF AND ORS.
AUGUST 9, 1994
(KULDIP SINGH, P.B. SAWANT AND N.P. SINGH. JJ.]
Election laws- Representation of the People Act, 1951,-Section
123(l)(A)(b)-Corrupt practices-Mass feeding of electors during election-Whether a corrupt practice.
A
B
c
Election laws-Bribery, gift, offer or promise of gratification and.induce- D
ment to vote-Negotiation between Candidate or agent and electors-Need
not be proved-inducement to voters may be indirect.
Representation of the People Act, Sec. 83(1)(a)(b)-Requirements
of-Pleadings-Statement of material facts and setting forth of full particulars
of any corrupt practice-Needs to be complied with-Mere reproduction of E
section does not amount to statement of material facts.
Representation of the People Act-Section 83(J)(a)(bf--<:orrupt practices-f'roof of incuning of expenditure beyond prescribed limit by elected
candidates-Burden of-Conduct of ''Election Rules, 1961-ll.ule 90.
Election Laws-ll.ight to elect or to be elected-Statutory right, not
fundamental or Common law right-ll.ight to challenge electio~Similarly,
flows from statute.
F
Representation of the People Act-Ss. 77(1)-Effect of Explanation I G
as introduced by Act 58 of 1974 and 123(6)-Corrupt practice-Expenditure-By political party or association or other person-Not deemed expenditure incu"ed .or authorised by candidate.
Representation of the People Act-S.IOO(l)(d)(iii)-Declaring election
. void-Grounds of-Conduct of electi01.-Election Rules-ll.ules 45 and 56 H
463
464
SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A
(7)-Fom1 16-lmproper numbering of ballot papers-Effect of
B
c
Shri. C.K. Jaffer Sharief was elected to the Lok Sabha from Banglore
North Lok Sabha Constituency. His election was challenged by the appel·
lant on the grounds of corrupt practice of mass scale free feeding of the
electors, excessive expenditure and printing of spurious ballots papers.
The respondent's position was (i) the free feeding was on account of the
obsequies observed for the assassinated former Prime Minister, Shri Rajiv
Gandhi; (ii) the respondent had only incurred the reported expenditure
and the rest was incurred by the party and; (iii) the ballots were not
spurious.
Dismissing the appeals, this Court
HELD: 1. After the process of election had commenced and before the
electors had exercised their right of franchise. mass feeding of electors
arranged by the candidate or on his behalf in order to induce directly or
D indirectly the electors to vote, was a corrupt practice. With the existing
economic conditions prevailing in the country feeding of electors may in·
duce them to vote in favour of the candidate arranging it. [ 468·G·H, 469-A]
E
F
G
Mohan Singh v. Bhanwarlal, AIR (1964) SC 1366 andRajendra Prasad
Jain v. Shee/ Bhadra Yajee, AIR (1967) SC 1445, relied on.
2. The negotiation between the candidate or by any person on his
behalf on the one hand and the electors on the other need not be proved.
Section 123(1)(A)of the Representation of people Act did not require the
electors to express or convey their acceptance or assurance that they could
vote for the candidate. But a ne>.11s between the gift, offer or promise of
gratification and the inducement to vote had to be established, which
could be d.one even by circumstantial evidence. (469-C-F]
S.B. Adityan v. S. Kandaswami, AIR (1958) SC 857 and B. Rajagopala
Rao v. Appayya Dora Hanumanthu & Ors., AIR (1990) SC 1889, relied on.
Laxmi Narayar. Nayak v. Ramrathan Chaturoedi, (1990] 2 SCC 173;
referred to.
Ghasi Ram v. Dal Si11gh, [1968] 3 SCR 102=AIR (1968) SC 1191,
Bhanu Kumar Shastri v. Mohan Lal Sukhadia, [1971] 3 SCR 522 = AIR
H
(1971) SC 2025 and Harjit Singh Man11 v. S. Umrao Singh, [1980] 2 SCR
NARAYANASWAMY v. JAFFAR SHARIEF
465
3. Charge of corrupt practice bad to be proved by the election A
petitioner. The proceedings in the election petition were quasi-criminal in
nature.
Devi Prasad v. Malluram Singhania, [1969] 3 SCC 595; Rahim Khan
v. KhurshidAhmed, AIR (1975) SC 290; Bir Chandra Barman v.Anil Sarkar,
AIR (1976) SC 603; Laxmi Raman v. Chandan Singh, AIR (1977) SC 587
ao_d Amolakchand v. Bhagwandas, AIR (1977) SC 813, relied on
B
4. The elected candidate could not meet the allegations in the vagoe
pleadings. Requirements of section 83(l)(a)b) regarding statement of
material facts and setting forth of foll particulars of any corrupt practice C
bad to be complied with in the election petition. (475-E-F, HJ
Samant N. BaJkrishna v. George Fernandez, [1969] 3 SCR 603; Udhav
Singh v. Madhav Rao Scindia, [1976] 2 SCR 246; Dau/at Ram Chauhan v.
Anand Sharma, [1984] 2 SCR 782; Dhartipakar Madan Lal Agarwal v. Rajiv
Gandhi, [1987] 3 SCR369andSapa v.Singora, [1991] 2 SCR 752, relied on. D
5.1. The requirement of keeping separate and correct account of all
expenditure in connection with the election incurred or authorised by the
candidate or on his on bis behalf bad been diluted by Explanation 1 which
provided that ifthe expenditure bad been incurred by a political party/any
other association/body of persons/any individual other than the candidate E
or his election agent, it would not be deemed to be expenditure in connection
with the election incurred or authorised by the candidate. (482-H, 483-A]
5.2.Explanation I encourage corruption by underhand methods.
Candidate should no_t be allowed to plead ignorance aboot the persons who
had made contributions and investment for his success. Bot this had to be
taken care of by the Parliament. (482-C-D]
Kanwar Lal Gupta v. Amar Nath Chawla, [1975] 3 SCC 646 and P.
Na/la Thampy Terah v. Union of India, [1985] Supp. SCC 189, referred to.
F
6. Io Bangalore there being no facility of printing ballot papers in G
seven digits 'A' was added as a prefix to the ballot papers printed beyond
10 lakbs. Merely because in Form 16 instead or A' 'I' had been mentioned
as prefix for those ballot papers it could not be said that the ballot papers
beyond the number 999999 were spurious and duplicate and were used by
the respondent in a surreptitious manner thereby materially affecting the H
466
SUPREME COURT REPORTS [1994J SUPP. 2 S.C.R.
A
result of the election. [ 485-E-F]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7194 of
1993.
From the Judgment and Order dated 19.4.93 of the Karnataka High
B
Court in E.P. No. 2 of 1991.
With
Civil Appeal No. 2543/93.
C
Prashant Bhushan and Mohan Rao for the Appellant in C.A. No.
7194/93
In-person for the Appellant in C.A. No. 2543/93.
Kapil Siba~ D.N. Nanjunda Reddy, Ms. Vimla Sinha and Gopal
D Singh for the Respondent in No. 1.
Prashant Bhushan and C. Mohan Rao for the Respondent in No. 2.
R.C. Mishra and Dr. Meera Aggarwal for the Respondent in No. 3.
E
Shankar Divate and Ms. Lalita Kaushik for the Respondent Nos. 15
and 19.
The Judgment of the Court was delivered by
N.P. SINGH, J. These appeals have been filed against the judgment
F
of the High Court dismissing , two election petitions filed on behalf of the
appellants, questioning the validity of the election of respondent C.K. J affar
Sharief (hereinafter referred to as "the respondent") to the Lok Sab~.a from
Bangalore North Lok Sabha Constituency.
The appellants challenged the election of the respondent, primarily
G on the grounds (i) that the respondent arranged large scale mass free
feedings for the electors during the election, which amounted to a corrupt
practice within the meaning of Section 123{1){A) of the Representation of
the People Act, 1951 {hereinafter referred to as "the Act") (ii) that the said
respondent incurred expenditure at the said election in contravention of
H Section 77 of the Act which amounted to a corrupt practice within the
NARAYANASWAMY v. JAFFARSHARIEF[N.P.SINGH,J.]
467
meaning of Section 123( 6) of the Act; and (iii) that the declaration of the A
result of the respondent was in violation of the provisions of the Act
inasmuch as several thousand .votes which should not have been· counted
in his favour and ought to have been rejected as invalid, were counted in
favour of the respondent, which has materially· affected the result of the
election of the respondent and as such his election is liable to be declared · B
void under Section lOO(l)(d)(iii) & (iv) of the Act. The relevant part of
Section 123( 1) is as follows :
"Corrnpt practices- The following shall be deemed to be corrupt
practices for the purposes of this Act:
(1) 'Bribery", that is to say -
c
(A) any gift, offer or promise by a candidate or his agent or by
any other person with the consent of a candidate or his election
agent .of ariy gratification, to any person whomsoever, with the
object, directly or indirectly of inducingD
(a) ........ .
(b) an elector to vote or refrain from voting at an election ........... .
Explanation- For the purposes of this clause the term "gratification"
is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all
forms of employment for reward but it does not include the
payment of any expenses bona fide incurred at, or for the purpose
of, any election and duly entered in the account of election expenses referred to in section 78
11
(emphasis supplied)
E
F
In view of Section 123(1)(A)(b), any gift, offer or promise by a candidate G
or his agent or by any other person with the consent of a candidate or his
election agent, of any gratification, with the object of "directly or-indirectly"
inducing a voter to vote, shall be deemed to be "bribery" and as such shall
amount to a corrupt practice. Mass feeding of the electors after the process
of election has commenced and before the date of poll may induce directly H
468
SUPREME COURT REPORTS [1994] SUPP. 2S.C.R.
A
or indirectly the electors to vote in favour of the candidate who has
arranged such feast for them in course of the election. In the case of Mohan
Singh v. Bhanwarlal, A.I.R. (1964) SC 1366 a Constitution Bench of this
Court, \vhile commenting on the expression
11gratification
11 in Section
123(1)(A), held that :
B
c
" ............ .'
1Gratification
1
' in its ordinary Connotation means satis·
faction. In the context in which the expression is used, and its
delimitation by the Explanation, it must mean something valuable
which is calculated to satisfy a person's aim, object or desire,
whether or not that thing is estimable in terms of money; ........... "
It was further stated that Explanation to sub-section (1) of section 123 of
the Act extends the expression "gratification" to include all forms of entertainment.
D
In the case of Rajendra Prasad Jain v. Sheel Bhadra Yajee & Ors., A.LR.
(1967) SC 1445, this Court said :
" ....... In our opinion, when considering the scope of the words
"offer of bribery" in the Election Law, we should not place a narrow
construction· on that expression. In fact, the scope of that expresE
' sion should be extended in order to ensure that elections are held
in an atmosphere of absolute purity, and a wide meaning should
be given to the expression "offer of bribery"."
The Explanation to Sub-Section (1) of Section 123 says specifically that the
F
term "gratification" includes all forms of entertainment. Even Explanation
to Section 171-E of the Indian Penal Code says that "treating" means that
form of bribery where the gratification consists of food, drink, entertainment or provision.
In view of the Explanation to Section 123(1) of the Act, there should
G be no difficulty in holding that after the process of election has commenced
and before the electors have exercised their right of franchise, mass feeding
of electors arranged by the candidate or his agent or any other person with
the consent of the candidate or his election agent in order to induce
directly or indirectly the electors to vote, shall be a corrupt practice within
H the me~ning of the said section. Particularly with the existing economic
NARAYANASWAMY v. JAFFARSHARIEF[N.P.SINGH,J.]
469
conditions prevailing in the country feeding of electors may induce them A
to vote in favour of the candidate arranging it. As such if the Court is
satisfied that the mass feeding had been arranged in order to directly or
indirectly induce . the electors to vote for the candidate in question, the
charge of 'bribery' shall be deemed to have been established.
The next aspect which needs examination is as to whether before
arranging any such mass feeding, or in course thereof, the factum of any
negotiation between the electors on one side, and candidate or his agent
or any person arranging such mass feeding on behalf and with the consent
of the candidate or his election agent on the other side has to be proved.
B
c
The framers of the Act while specifying as to what shall be deemed to be
"bribery", did not provide that the negotiation between the candidate or his
agent or any other person with the consent of such candidate or his election
agent on the one hand and the elector on the other should be proved
Section 123(1)(A) says that any gift, offer or promise by a candidate or his
agent or any other person with the consent of such candidate or his election D
agent, of any gratification made to the elector "with the object, directly or
indirectly of inducing" such an elector to vote, shall be deemed to be
'bribery'. Section 123(1)(A) does not require the electors to express or
convey their acceptance or assurance that they shall vote for such candidate. On the material on record, of course the court has to be satisfied
that such gift, offer or promise of any gratification has been made to the E
electors with the object directly or indirectly to induce the electors to vote
in favour of such candidate. A nexus between the gift, offer or promise of
gratification and the inducement to vote has to be established. This can be
established even by circumstantial evidence. The Election Petitioner is not
required to prove any direct negotiation between the candidate or his agent
on the one hand and the electors on the other.
In the case of S.B. Adityan v. S. Kandaswami & Ors., A.LR (1958)
SC 857, it was said ;
" .......... The words "gift, offer or promise by a candidate or his agent
or by any other person, of any gratification" clearly shows that what
is contemplated is the making of a gift. These words are wholly
inawropriate to describe the acceptance of a gift. The words "with
the object, directly or indirectly, of inducing" also indicate that only
F
G
the making of a gift is contemplated, for the object is of the person H
A
B
c
D
E
F
G
470
SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
making the gift, and clearly not of the person accepting it.. ..... "
A Three Judges Bench in the case of B. Rajgopala Rao & Anr. v. Appayya
Dora Hanumanthu & Ors., A.LR. (1990) SC 1889, said :
"It was urged by Mr. Rao, learned counsel for the appellants
that in the impugned judgments, the High court has incorrectly
taken the view that in order to amount to bribery within the
meaning of the said term in S. 123(1)(A), the transaction must
amount to a bargain by the candidate with a view to get votes. It
was pointed out by him that the said view has been taken in the
impugned judgments, relying upon the decision of a Bench comprising two learned judges of this Court in Ghasi Ram v. Dal Singh,
[1968] 3 SCR 102 at pp 109- 110 : AIR (1968) SC 1191 at p. 1196.
We have gone through the relevant portion of that judgment (at
pages 109 and 110 (of SCR): at p.1196 of AIR of the said report).
A careful persusal of the said judgment shows that what has been
really held in that case is that if the promises given or made amount
to a bargain entered into by a candidate for a vote or votes, that
would amount to a corrupt practice, but it has not been held there
that unless the act alleged amounts to such a bargain, it could not
amount to a corrupt practice. In our view, that judgment does not
lay• down that in order to amount to a corrupt practice, the
transaction must amount to a bargain for getting a vote. It was
pointed out by Mr. Rao, however, that such a view seems to have
been taken into other decisions rendered by two Benches, each
comprising two learned Judges of this Court in Bhanu Kumar
Shastri v. Mohan Lal Sukhadia, [1971] 3 SCR 522 at p. 543=AIR
(1971) SC 2025 at p. 2038 andHaljit Singh Mann v. S. Umrao Singh,
[1980] 2 SCR 501 at p. 510;,;AIR (1980) SC 701 at p. 706 and
these judgments need to be overruled. We do not propose to go
into the correctness or otherwise of this view because, even on the
footing that in order to amount to a corrupt practice under the
aforesaid provision the alleged acts need not constitute a bargain,
the acts established in the present case, in our opinion , do not
amount to a ~orrupt practice."
Mr. Prashant Bhushan, learned counsel appearing for one of the
H appellants rightly pointed out that in the case of Laxmi Narayan Nayak v.
NARAYANASWAMY v. JAFFARSHARIEF[N.P. SINGH,J.]
471
Ramratan Cltanm'edi & Ors., [1990] 2 S.C.C. 173, the attention of the two A
learned Judges of this Court, was not drawn to the case, referred to above
and because of that an observation was made, viz. "element of 'bargaining'
is completely absent in the present case". If an election petitioner is
required to prove that the gift~ offer or promise of gratification \va.s
accepted by the electors by assuring to vote in favour of such a candidate,
the provisions of Section 123(1)(A)(b) shall become redundant and shall
have to be read as a pious wish of the framers of the Act to elimina'te the
B
c
role of 'bribery'. in the elections. The framers of the Act were quite
conscious that in many cases it will be difficult to get direct evidence of
inducement to the electors to vote, and because of that they have provided
that inducement to voter may be indirect as well. This is so even where
before poll, cash, clothes, cycles, blankets etc., are distributed amongst the
electors by the candidate or his agent. Once the Court comes to the
conclusion that such gifts were made to induce the electors to vote in
favour of the candidate concerned, a corrupt practice within the meaning
of ~ection 123(1)(A) shall be deemed to have been committed.
D
But before the charge of bribery, as contemplated in Section
123(1)(A) of the Act, is held to have been proved, against the candidate
concerned, because of mass feeding arranged by him or his agent or any
other person with his concept or the consent of this election agent, it must
be established that the object of such mass feeding was directly or indirectly to induce the electors to vote in favour of such candidate. In some cases,
on material being produced, this charge can be established directly if the
candidate or his agent or any ·other person with the consent of the candidate or his election agent, at such mass feeding of the electors, seeks
their support and votes at the election in question. But there may be cases,
where the inducement to vote is not direct but only indirect one. The
candidate or his agent or any other person who has arranged such mass
feedings with the consent of the candidate or his election agent, may not
make a direct appeal to the electors either before during or after the feast.
In the present case, it has been alleged in the election petition, filed
E
F
G
on behalf of the appellant in Civil Appeal No. 7194 of 1993, that the
election for the said parliamentary constituency, was to be held on
26.5.1991, but it was adjourned by three weeks by the Election Commissioner, because of the assassination of Rajiv Gandhi. It was ultimately held H
472
SUPREME COURT REPORTS (1994) SUPP. 2 S.C.R.
A
on 15.6.1991. During the interval between 26.5.1991 and 15.6.1991 under
the guise of observing obsequies of the assassinated former. Prime Minister,
large scaie free mass feedings of the electorate in the slum areas in the city
and the poor localities in the villages were arranged by the respondent, his
election agent and other persons with his consent with a view to induce the
B electors to vote in favour of the respondent. Thousands of voters of the
constituency participated in such mass feedings. On behalf of the appellant,
reliance was placed on an advertisement published on 8.6.1991 in paper
SANJFV AN! (Ext. p. 10) which is as follows :
c
D
E
"ANNADANA
PHOTOGRAPHS OF :
SHRI RAJIV GANDHI
C.K. JAFFER SHARIEF
SMT. INDIRA GANDHI
K.J. GEORGE
In memory of Rajiv who died for the country under the auspecies of
Bharati Nagar constituency, Indira Congress Mass Feeding is organised
tomorrow Sunday (9.6.91)
President : Shri KJ. George
Annadana distributed by : Shri C.K. Jaffar Sharief.
Maruthi Sevanagar : Morning 11.30, Cox. Town : 12 Noon, Bharati
Nagar : After Noon 12.30, Nehru Puram : AfterNoon 1 o'Clock. Shavanna
Chetty Garden : After Noon 1.30, Ulsoor : 2, Murphy Town : After Noon
F
2.30.
Published By
Bharati Nagar Block Youth Congres (I) Committee.
Bharati Nagar Block Youth Congress (I) Committee.
G All are requested to participate in these programmes."
It was urged that although in the advertisement, it was mentioned that mass
feeding had been organised on 9.6.1991 at different places mentioned in
the said advertisement, in the memory of Shri Rajiv Gandhi, who died for
the country the real object behind such mass feeding was to influence and
H
to induce the electors to vote in favour of the respondent.
NARAYANASWAMY v. JAFFARSHARIEF[N.P.SINGH.J.]
473
Election petitioner examined himself as PW 1. He stated that A
'Annadana' was arranged in the entire constituency on several days under
the leadership of the respondent in connection with 'Punya Thithi' of Shri
Rajiv Gandhi. This 'Annadana' was held by making publication in
newspapers and in some cases even without such publication. The
'Annadana' used to be organised like a public function and food used to B
be served. The respondent himself used to offer food to the persons who
came as guests. According to PW l such mass feedings were organised to
get votes from poor people. He also claimed to have seen the mass feedings
at Cox Town, Maruthi Seva Nagar, Murphy Town and other places, details
whereof have been stated by him in his evidence. Similarly, PW 2 also C
stated that election campaign had been carried on in several ways, including 'mass feeding' in connection with the obsequies of Shri Rajiv Gandhi.
He also stated that through advertisement and other media announcements
were made about 'Annadana' to be held on 9.6.1991 at different places.
According to him, in the mass feeding at Maruthisevanagar on 9.6.1991,
D
800 person> were fed. PW5 also stated that 'Annadana' took place in
Vijayap!!ra Town in the Town Hall on 31.5.1991 and hand bills had been
printed in that connection. He also stated that such mass feeding took
place after the assassination of Shri Rajiv Gandhi, in Harijan and Muslim
colonies. According to him, 'Annadana' was performed to secure votes. E
PW 8 stated that on 31.5.1991 food was distributed in the Town Hall after
wide publicity, ostensibly in connection with the obsequial ceremony of late
Shri Rajiv Gandhi. People of Vijayapura town and surrounding villages
participated at such mass feeding. Similarly PW 14 stated in his evidence
that on the ostensible reason of holding of obsequial ceremony of Shri
Rajiv Gandhi there was distribution of food in some slum areas. In respect F
of such 'Annadana' announcement had been made in the different segments of the constituency. Several leaders were present including the
respondent at such distribution of food to poor people. PW 15 also
supported the said allegation. But at the same time, he also stated that the
mass feedings were held in connection with the obsequial ceremony of late G
Shri Rajiv Gandhi, in which he saw the respondent distributing the food.
PW 18, the other witness, examined on behalf of the appellant, also stated
about the advertisement in the newspaper Sanjevani on 8.6.1991 about
'Annadana' to be held on 9.6.1991. PW 18 was examined to prove the
advertisement aforesaid (Ext.P.10) in the Sanjevani Newspaper. PW 22 also H
474
SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.
A stated about the mass feeding at Gymkhana ground. He stated that 500 to
600 persons were present to whom food was served by the respondent. He
also stated that there was a poster of Shri Rajiv Gandhi at that place.
B
It appears to be an admitted position that the mass feeding, which
was described as 'Annadana' in the advertisement referred to above had
been arranged only after the postponement of the election, due to the
assassination of Shri Rajiv Gandhi from 26.5.1991 to 15.6.1991. No mass
feeding had been held prior to 26.5.1991. In the advertisement, which was
published in the Sanjevani on 8.6.1991, it was specifically stated that mass
feeding was being organised at different places on 9.6.1991 'in memory of
C Rajiv who died for the country" . The mass feeding was described as 'Indira
Congress Mass Feeding'. In the advertisement, it was mentioned that it was
being published by Bharati Nagar Block Congress (I) Committee and
Bharati Nagar Block Youth Congress (I) Committee.
D
E
F
According to the appellant, the ostenisble object was to observe the
obsequies of Shri Rajiv Gandhi, but the real object was to arrange feasts
for electors, to induce them to vote in favour of the respondent. It is well
settled that charge of corrupt practice has to be proved by the election
petitioner and the proceedings in the Election Petition are quasi criminal
in nature. Reference in this connection may be made to Devi Prasad v.
Mal/uram Sing/Jania, [1969] 3 SCC 595; Rahim Khan v: Khurshid Ahmed,
AIR (1975) SC 290; Bir Chandra v. Anil Sarkar, AIR (1976) SC 603,
Lakshmi Raman v. Chandan Singh, AIR (1977) SC 587 andAmolak Chand
v. B/Jagwandas, AIR (1977) SC 813. As such unless the Court is fully
satisfied that the object of the mass feeding so arranged was only to induce
the participants at such mass feeding to vote for the respondent, a
finding of corrupt practice on that account cannot be recorded against
the responded. It may be pointed out that although during the
evidence, the witnesses have stated as already referred to above, that
the respondent himself was present and was distributing the food, surprisG ingly, in the petition there is no such avernment. It has been simply stated
there:-
"During the interval between 26th May and 15th June 1991
under the guise of observing obsequies of the assassinated former
H
Prime Minister a large scale free-feeding of the electorate in the
I
_j
•
NARAYANASWAMY v. JAFFARSHARIEF[N.P.SINGH,J.]
475
slum areas in the City and the poor localities in the villages was A
arranged by the !st respondent, his election agent, his political
party and other persons with the consent of the !st respondent or
his election agent in furtherance of prospects .of election of the ·!st
respondent.
11
Thus there is no allegation that at any of such mass feeding, the respondent
was present. It has simply been stated that it had been arranged by him,
his election agent, his political party and other persons with the consent of
B
the said respondent or his election agent. On behalf of the respondent, an
objection was taken in respect of the pleading with respect to the mass C
feeding in para 17 of the election petition, that it was absolutely vague
inasmuch as full particulars of the corrupt practice i.e. bribery by way of
mass feeding had not been set forth as required by Section 83(1)(b) of the
Act. It was pointed out that when the appellant stated in the election
petition that a large scale free feeding of the electorate in the slum areas D
in the city and the poor localities in the villages, was arranged by the !st
respondent, his election agent, his political party and other persons with
the consent of the respondent or his election agent', the statement was a
mere reproduction of Section 123(l)(A) of the Act. It did not amount to
a statement of material facts or to setting forth full particulars of the
corrupt practice. There is substance in this contention. The pleading that E
"the mass feeding was either arranged by the respondent or his election
agent or his political party or other persons with the consent of the
respondent or his election agent" cannot be held to be in accordance with
the requirements of Section 83(1)(a)(b) of the Act. It is vague and does
not give any particulars. The elected candidate cannot meet such allegaF
tion. This Court from time to time has laid down as to how the requirement
of Section 83(1) has to be complied with. Reference can be made to the
cases of Samant N. Balkrishna v. George Fernandez, (1969] 3 SCR, 603,
Udhav Singh v. M.R. Scindia, (1976] 2 SCR 246, Dau/at Ram Chauhan v.
Anand Shanna, (1984] 2 SCR 419, Azhar Hussain v. Rajiv Gandhi, (1986] G
2 SCR 782, DhaJtipakar Madan Lal Aganval v. Rajiv Gandhi, (1987] 3 SCR
369, FA. Sapa v. Singora, (1991] 2 SCR 752, where it has been pointed
out by this Court that requirement of sub-section l(a)(b) of Section 83 of
the Act regarding statement of materials facts and setting forth of full
particulars of any corrupt practice has to be complied with in the election H
476
SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.
A
petition. Apart from that, as already mentioned above, the advertisements
as well as the witnesses on behalf of the appellants have stated categorically
that such mass feeding had been arranged after 26.5.1991 the original date
fixed for the election, "in the memory of Rajiv who died for country". In
the election petition it has not been stated that respondent or any person
B
on his behalf requested the persons participating at the mass feeding, to
vote in favour of the respondent. Sarne is the position so far the oral
evidence adduced on behalf of the appellant is concerned. If the mass
feeding had not been held against the background of the assassination of
Shri Rajiv Gandhi, this Court could have examined as to whether arranging
C
feasts before or during the election amounted to the corrupt practice. The
High Court has rightly come to the conclusion that in the special facts and
circumstances of the present case, it is not possible to hold the respondent
guilty of the charge of bribery, by arranging mass feeding.
Regarding the charge of excessive expenditure at the said election in
D contravention of Section 77 of the Act is concerned, it has been stated by
the appellant C. Narayanaswarny in paragraphs 21 to 26 of the election
petition as to how the respondent incurred expenditure beyond the limit
of Rs. 1,50,000 as fJXed under rule 90 of the conduct of Election Rules,
1961 read with Section· 77 of the Act. It has been stated that the respondent
E
published advertisement in News papers in Kannada, English, Urdu and
Tamil, appealing to the voters to vote in his favour. Such advertisement
had been published under the signature of the respondent. According to
the appellant, the advertisement charges in respect of such advertisement
alone shall be far in excess of the ceiling limit of Rs. 1,50,000. The said
expenditure has not been included in the election expenses submitted by
F
the respondent. It has been stated that the respondent got printed posters
in multi colours with his portrait appealing to the voters to cast their votes
in his favour. The cost of printing of such posters on a modest estimate
would be not less than a rupee per copy. It has been asserted that the
minimum number of such posters would not be less than one lakh. The
G expenditure incurred on advertisements and printing of posters had not
been included in the election expenses submitted by the respondent. It has
been stated that statement at the foot of the advertisements and the posters
to the effect that it had been issued by "the General Secretary, Karnataka
Pradesh Congress (I) Committee, Bangalore" was false; as a matter of fact,
it was the respondent who had paid for those advertisements and posters.
H It has also been stated that booklets in Kannada, English, Urdu and Tamil
,
NARAYANASWAMY v. JAFFARSHARIEF[N.P.SINGH,J.]
477
containing the achievements of the respondent, during his membership of A
the Parliament had also been published. The number of copies of such
booklets in each language was not less than 50,000. Even if the cost of each
booklet is calculated at rupee one each the estimated total cost of publishing the booklets in four languages shall be not less than Rs. 2 lakhs. In the
return showing the expenditure incurred by the respondent, the cost of
printing of booklets had not been included. It has been stated in the B
election petition, that big cutouts of resondent and the then President of
the Congress (!)-party were put up through out the constituency. The cost
of each of the cutout was not less than a thousand rupees and on a modest
estimate the cost of making and erecting a hundred of such cutouts would
not be less than Rs. 1 lakh. This expenditure has also not been included in C
the election expenses submitted by the respondent. The respondent had
also got several paintings on the different walls within the constituency,
appealing to the voters to vote in his favour. Expenditure incurred in
respect of such wall paintings has also not been included in the return filed
by the respondent. It has been stated that apart from the advertisement,
posters, booklets, cutouts, wall paintings, hoardings of different sizes, the D
biggest size being 15' x 10' and the smallest being 3' x 2' had been put on
throughout the constituency. The cost of erection and painting of the
hoardings of the size 15' x 10' would not be less than Rs. 10,000. According
to the appellant, the cost of these huge hoardings would be not less than
Rs. 50,000 and the cost of small hoardings shall also be not less than Rs.
50,000. These expenses were also not included in the return submitted by E
the respondent.
The Stand of the respondent is that whenever elections are held,
respective Congress Committees take the responsibility of campaign and
publicity on behalf of the party candidates. All India Congress Committee
F
assists the candidates contesting from the party, by providing posters,
banners, manifestoes, pamphlets and handbills and various other kinds of
materials in different languages. The campaign materials are distributed to
different Congress Committee right from the All India level to the unit
level. Pradesh Congress Committee supports such candidate in campaign.
Depending on the local needs, they provide the necessary publicity G
materials. Respondent stated that he did not make any request to Karnataka Pradesh Congress Committee (I) to issue any advertisements on his
behalf. He also claimed that he had not incurred any expenditure other
than what had been disclosed in the return of the expenditure (Ex. P. 20).
When the advertisements issued in newspapers were shown to his, he stated H
478
SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.
A in his evidence that he had not incurred any expenditure on those advertisements and the expenditure had been incurred for the same by the party.
He also denied to have published the booklets in English, Tamil or Kannada. He also denied to have got the wall posters printed or any cutouts
made or got them installed in any part of the constituency. He stated that
B
he had not incurred any expenditure in relation to cutouts, wall paintings,
hoardings. The factum of several advertisements issued in different
newspapers, publication of booklets, cutouts, wall post.\'rs, hoardings, appealing to voters to vote in favour of the respondent does not appear to be
in dispute. The stand of the respondent is that the party has incurred all
the expenses and he has not incurred any .expenses beyond what has been
C shown in the statutory return.
D
E
F
G
Section 123( 6) says that the incurring or authorising of expenditure
in contravention of Section 77 shall be deemed to be a corrupt practice,
for the purpose of the said Act. The relevant part of Section 77 is as
follows:.,.
Section 77(1) "Account of election expenses and maximum thereof- (1) Every candidate at an election shall, either by himself or
by his election agent, keep a separate and correct account of all
expenditure in connection with the election incurred or authorized
by him or by his election agent between the date on which he has
been nominated and the date of declaration of the result thereof,
both dates inclusive.
Explanation 1. Notwithstanding any judgment, order or
decision of any court to the contrary, any expenditure incurred or
authorized in connection with the election of a candidate by a
· political party or by any other association or body of persons or
by any individual (other than the candidate or his election agent)
shall not be deemed to be, and shall not ever be deemed to have
been expenditure in connection with the election incurred or
authorized by the candidate or his election agent for the purposes
of this sub-section.
Explanation (1) aforesaid was introduced by Act No.58 of 1974 w.e.f.
19.10.1974. It may be mentioned that this Court on 3.10.1974, in the case
of Kanwar Lal Gupta v. Amar Nath Chawla, [1975] 3 SCC 646, while
H examining the scope of Section 77 (1) had observed :-
\
'
NARAYANASWAMY v. JAFFARSHARIEF[N.P.SINGH,J.]
479
"When the political party sponsoring a candidate incurs expenA
diture in connection with the election, as distinguished from expenditure on general party propaganada, and the candidate
knowingly takes advantage of it or participates in the programme
or activity or fails to disavow the expenditure or consents to it or
acquiesces in it, it would be reasonable to infer, save in special
circumstances, that he impliedly authorised the political party to B
incur such expenditure and he cannot escape the rigour of the
ceiling by saying that he has not incurred the expenditure, but his
political party has done so. A party candidate does not stand apart
from his political party and if the political party does not want the
candidate to incur the disqualification, it must exercise control over C
the expenditure which may be incurred by it directly to promote
the poll prospects of the candidate. The same proposition must
also hold good in case of expenditure incurred by friends and
supporters directly in connection with the election of the candidate. This is the only reasonable interpretation of the provision
which would carry out its object and intendment and suppress the D
mischief and ad~ance the remedy by purifying our election process
and ridding it of the pernicious and baneful influence of big
money.
11
To take away the effect of the judgment of this Court in· the case of Kanwar
Lal Gupta (Supra) the explanation aforesaid was introduced saying that E
notwithstanding any judgment, order or decision of any Court to the
contrary, any expenditure incurred or authorised in connection with the
election of a candidate by a political party or by any other association or
body of persons or by any individual (other than the candidate or his
election agent) shall not be deemed to have been, expenditure in connecF
tion with the election, incurred or authorised by the candidate or by his
election agent for the purposes of the said sub-section.
The validity of the said explanation was questioned before this Court.
A Constitution Bench of this Court in the case of P. Nal/a Thampy Terah G
v. Union of India, (1985] Supp. SCC 189, observed that petitioner in that
case was not unjustified in cirticising the provision contained in Explanation 1 as diluting the principle of free and fair elections, which is the corner
stone of any democratic polity, but was not for the Court to lay down
policies in matters pertaining to elections. As the said amendment in
sub-section 1 of Section 77 of the Act did not violate the constitution, it H
480
SUPREME COURT REPORTS [1994] SUPP. 2S.C.R.
A
could not be declared to be invalid although this Court may not approve
the poHcy which underlines it.