# MOHD. YUNUS SALEEM v. SHIV KUMAR SHAS1RI AND OTHERS

- **Citation:** [1974] 3 S.C.R. 738
- **Court:** Supreme Court of India
- **Decided:** 1974-03-25
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohd-yunus-saleem-v-shiv-kumar-shas1ri-and-others-6069
- **Pages:** 16

## Headnote

j
738
MOHD. YUNUS SALEEM
v.
SHIV KUMAR SHAS1RI AND OTHERS.
March 25, 1974
(P. N. BHAGWATI AND P. K. ClosWAMI, 11.]
Rcvr1:sentah_"o11~the,P~ople1-ct (43 of 1951), Ss. 30, 116--A and 123(1)
(A)(a)-Elect1on ·,_,omm1ss1oner if he can alter .date of Poll-Appreciation of
evidence by Supre111e
Court-Bribe for
witlrdrawal after the date fixed for
witltdrawal-lf corrupt practice.
.
A parliamentary ~nstituency from which election to Lok Sabha took place
1n March 1971 consisted of five assembly constituencies.
The polling at two
of them was scheduled to take place on March 1, and at the other three on
March 3. 1971. ISth March. 1971 was fixed as the last day for the completion
of tho election. The Polling at the first two constituencies took place on Marth
I. 19_71. but. or: ¥arch 2. there was a communal riot as a result of which, the
Election Comm.ISS1oner pastponed the poll at the other three constituencies from
March 3 to March 9.
After the polling took place the first respondent
was
ded~ elected.
The
appellant filed an election petition
challenging
the
clecti0-!1 of the first respondent alleging several corrupt practices against him, one
of which was that on 6th March. tho second respondent, who was one of the
candidates. was induced to withdraw from the contest by the first respondent
offering to reconunend him to a seat in the legislative council and by a· financier
offering him a large sum of money; and that tho second respondent, though he
declined· the offers, did. in fact, withdraw. He also contondcd that the Election
('ommissioner had no power to alter tho date of Poll at the remaining constituencies. Tho election petition was dismissed by tho High Court.
Jn appeal to this Court, tho firnt respondent raised the contention that even
if tho facts relating to tho offers were established,, the first respandent would
not be guilty of the corrupt practice under s. 123(1)(A)(a), because, the with·
drawal of the 2nd respondent was after the date fixed for withdrawal from
being a candidate.
Dismissing the appeal to this Court.
A
B
c
D
E
HELD .(1) The Election Coi;nmissioner had power to alter the date of the
poll from 3rd Maren to 9th March in the remaining constituencies. Secs. 57 &
58 could not be invoked by Election Commissioner for this purpose, because
they are applicable only in the circumstances
specifiod and in the
manner
provided, in those sections and s. 153. on which the High Court relied, is also
F
not applicable, because it in terms provides only for extending the timt ftN
co1nplcfion of election and not for altering the date of the poH. But s. 30 of
the _Repre6entation of the People Act. read with s. 21 of the General Clauses
Act gives the necessary power to the Election Commissioner to a1ter the dalt"
of the poll.
1.742H; 743F-H; 744C.E)
.(2) The amendment of the date of the poll gets en.grafted in the original
form no. 1 in pursuanc.o of the subsequent notification made in valid exercise
of the power under s. 30 of the Representation of the People Act read \vilh
G
s. 21 of the General Clauses Act. and therefore, a fresh notification of the date
under r.3 of the Conduct of Election Rules. in the requisite form,
is
not
necessary.
[744E·G)
(3) If the facts regarding the offers to the second respondent had been
established it v:oold amount to corrupt practice within the meaning of s. 123(1)
(A)(a) of the Representati~n of the ~eople Act.
(a1 Bribery to induce a
person to withdraw from being a candidate at an election amoun!S to cor!Ul't
practice within the meaning of. the sub-section. It cannot ~ said that !lt!lCC
H
1he time for withdrawal of candidature fixed for that purpose in the. appropnatc
notification had .aJready expired in this case there coul~ be no. withdrawal of
· c:111didature after the date.
When s. 123(1)(A){a) speaks of wtthdf!'Wal fro'!'
\\being a candidate it is not limited to a candidate who has been validly nom1-
c
}'
G
H
MOHD. YUNUS 1'. s. K. SHASTRI (Goswami, ].)
739
n~ted and who h~s ·withdraw!\ ea.~l

## Text

_Characters 0–39,965 of 49,655. This is a partial read: ask again with offset=39965 for what follows._

j
738
MOHD. YUNUS SALEEM
v.
SHIV KUMAR SHAS1RI AND OTHERS.
March 25, 1974
(P. N. BHAGWATI AND P. K. ClosWAMI, 11.]
Rcvr1:sentah_"o11~the,P~ople1-ct (43 of 1951), Ss. 30, 116--A and 123(1)
(A)(a)-Elect1on ·,_,omm1ss1oner if he can alter .date of Poll-Appreciation of
evidence by Supre111e
Court-Bribe for
witlrdrawal after the date fixed for
witltdrawal-lf corrupt practice.
.
A parliamentary ~nstituency from which election to Lok Sabha took place
1n March 1971 consisted of five assembly constituencies.
The polling at two
of them was scheduled to take place on March 1, and at the other three on
March 3. 1971. ISth March. 1971 was fixed as the last day for the completion
of tho election. The Polling at the first two constituencies took place on Marth
I. 19_71. but. or: ¥arch 2. there was a communal riot as a result of which, the
Election Comm.ISS1oner pastponed the poll at the other three constituencies from
March 3 to March 9.
After the polling took place the first respondent
was
ded~ elected.
The
appellant filed an election petition
challenging
the
clecti0-!1 of the first respondent alleging several corrupt practices against him, one
of which was that on 6th March. tho second respondent, who was one of the
candidates. was induced to withdraw from the contest by the first respondent
offering to reconunend him to a seat in the legislative council and by a· financier
offering him a large sum of money; and that tho second respondent, though he
declined· the offers, did. in fact, withdraw. He also contondcd that the Election
('ommissioner had no power to alter tho date of Poll at the remaining constituencies. Tho election petition was dismissed by tho High Court.
Jn appeal to this Court, tho firnt respondent raised the contention that even
if tho facts relating to tho offers were established,, the first respandent would
not be guilty of the corrupt practice under s. 123(1)(A)(a), because, the with·
drawal of the 2nd respondent was after the date fixed for withdrawal from
being a candidate.
Dismissing the appeal to this Court.
A
B
c
D
E
HELD .(1) The Election Coi;nmissioner had power to alter the date of the
poll from 3rd Maren to 9th March in the remaining constituencies. Secs. 57 &
58 could not be invoked by Election Commissioner for this purpose, because
they are applicable only in the circumstances
specifiod and in the
manner
provided, in those sections and s. 153. on which the High Court relied, is also
F
not applicable, because it in terms provides only for extending the timt ftN
co1nplcfion of election and not for altering the date of the poH. But s. 30 of
the _Repre6entation of the People Act. read with s. 21 of the General Clauses
Act gives the necessary power to the Election Commissioner to a1ter the dalt"
of the poll.
1.742H; 743F-H; 744C.E)
.(2) The amendment of the date of the poll gets en.grafted in the original
form no. 1 in pursuanc.o of the subsequent notification made in valid exercise
of the power under s. 30 of the Representation of the People Act read \vilh
G
s. 21 of the General Clauses Act. and therefore, a fresh notification of the date
under r.3 of the Conduct of Election Rules. in the requisite form,
is
not
necessary.
[744E·G)
(3) If the facts regarding the offers to the second respondent had been
established it v:oold amount to corrupt practice within the meaning of s. 123(1)
(A)(a) of the Representati~n of the ~eople Act.
(a1 Bribery to induce a
person to withdraw from being a candidate at an election amoun!S to cor!Ul't
practice within the meaning of. the sub-section. It cannot ~ said that !lt!lCC
H
1he time for withdrawal of candidature fixed for that purpose in the. appropnatc
notification had .aJready expired in this case there coul~ be no. withdrawal of
· c:111didature after the date.
When s. 123(1)(A){a) speaks of wtthdf!'Wal fro'!'
\\being a candidate it is not limited to a candidate who has been validly nom1-
c
}'
G
H
MOHD. YUNUS 1'. s. K. SHASTRI (Goswami, ].)
739
n~ted and who h~s ·withdraw!\ ea.~lier according to law.
The expression "to
withdraw from being a Candidate cnnnot be given a restricted meaning and
confi!led .to the stage where law permits a cindidate to
withdraw from
thi.:
~lection. For the p~rpose of the section the words are of wide amplitude to
mclude subsequent \vtthdrawal even at the last stage prior to tho poll
(746B·
747C]
.
•
. <? ~ The omiss!on of ~he. words "retire from contest" from the section as
~t _ong1na1ly_ stood is, not s1.gn1ficant, because the dictionary n1eaning of the "''Ord
withdraw' includes to retire from the field or battle or any contest' and it is
because the words 'retire from contest' .have become unnecessary '•bat they
were advisedly deleted by the legislature.
(746G~H]
•
(c) Si11ce purity of elections is the most important object of the Act. a
11arrow meaning to the v.·ord "withdraw'' to refer only to lesal withdrawal under
section 37 \\'otdd defeat the very aim.
We have therefore, to give n\Cllning
lo the word "withdraw" keeping in mind the object and scheme of the Act
with a vie\'.' to effe.ctuate the intention of the legislature to ensure purity in
elections; else there will be an absurd po~ition where actual withdrawal after
the time limit by taking bribe: will be free from the vice of corrupt pfacticC"
whereas that prior 1.o it \I/ill not be so. Such an intention cannot be attributed
to the legislature from deletion of the words ••retire from contest". The worJ
.. withdraw''
is. :omprehensive enough to also connote
"retir~ from contc:>l".
[747C-FJ
(4j On the c\'idence, however, it could not be held
that· any
com1;it
practice had been proved to have been conunitted by the first respondent under
s. 123(1) to (4} of the Act. In the matter of appreciation of oral testimo11y
in an election di.,putc this Court, in an appeal under s. l 16·A, must ha\•e COn·
.vincing and clinching reasons to take a contrary view from that of the High
rCol,lrt. It is not enough that. another view is merely possible on the oral
·l:!vidence.
Strict proof of the allegations is called for and the High Court ha<>
:in ihe present case rightly declined to accept the oral evidence of the appCllant's
-side and rightly preferred that on the respondeI).t's side. [753A-EJ
'
C1v11, APPELLATE JuRrsn1cT10N : Civil Appeal No. 282 of 1\17'.!.
From the judgment and order dated the 21st December, 1971, of
1he Allahabad High Court in Election Petition No. 6 of 1.971,
A. Subba Rao and J.B. Dadacha11ji, for the appcllan(
llardyal Hardy, S. S. Khanduja and S. K. Dhingra, for respondent
No. 1.
L. N. Si11Jza,, Solicitor General of India and M. N. Shroff, for the
respondent no. 2.
The Judgment of the Court was delivered by
Gosw,AMI, J. This election appeal under section 116A of the Re·
presentation cf the People Act, 1951 (briefly the Act) by the appellant, Mohd. Yunus Saleem, the defeated Congress (R) candidate, is
against the judgment of the Allahabad High Court wherein he challenges the election of the B. K.. D. candidate, Shiv Kumar Shastri
.(Respondent No. 1) to the Lok Sabha from the 76 Aligarh Parliamentary constituency in the general elections he)d in fviarch 1971-
.This
constituency consists of five Assembly .C<Jnstituenc1es,
namely,
376Aligarh, 377-Koil, 378-Jglas, 379-Khrur and 380-Chandaus. There
740
SUPREME COURT REPORTS
(1974] 3 S.C.R.
were seven candidates on the run for the election from this coristiA
tuency. The poll was scheduled to take place in Aligarh and Koil on.
March 1,· 1971 and· in Iglas, Khair and Chandaus o.n March 3, 1971.
The polling in Aligarh and Koil was completed peacefully on March
I, 1971 and the appellant obtained the highest number of votes as will
appear from the chart giycn below
·
Sarra Shri
Amar Singh
Jagdish Gandhi
Pooran Singh
l\Ialan
~·Iohd. Yunus
·Saleem
Virpal Singh
Shiv Kuniar
Shastri
Saheb Singh
367
City
205
500
18,385
44,422
622
4,719
S58
377
Koil
.559
l,~91
4,165
25,228
1,240
16,260
3,170
378
Jglas
310
17,134
1,026
42,281
1,653
379
380
Khair
Chandau'i
Total
760
1,103
337
19,372
1,254
53,240
1,671
868'
927
386
3,995
4,937
23,583
18,030
124, l 86
1,320
5,462
43,012
180,313
3,076
6,958
c
On March 2, 1971 a communal riot ·betw~en· Hindus .and Muslims
took place in Aligarh city and as a result of this the Election Commission ou receipt of reports of th~ local authorities at Aligarh postponed the poll in the reniainining segments from Marc!i 3, 1971 to
E
1
Marc1" 9, 1971. As wilWippear from the abc!Ve chart, during the poll
this time on March 9, 1971, the first respon'dent obtained a very high
percentage of votes with the result that he was decli'red elected. The
2nd respondent, although a Samyukt Socialist Party candidate (SSP),
was sponsored by the four parties alliance consisting of Jan Sangh,
Swatantra, Congress led by Shri Nijalingappa, and Samyukt Socialist
Party.
,
F
The appellant ·alleges several corrupt practices in his election petition before the.'Hizh Court and also raises <:ertain question of law ..
The Chief Election Commissioner has been impkaded as a respondent
in this appeal. The High Court has repelled the contentions of the
appellant. We are now concerned in this appeal with the following
issues:-.
G
Issue No. 2 : "Whether the order of the Election"Commission adjourning the poll from 3rd March to 9th March wa~
without jurisdictio.n and iIIegal"' ?
Issue No. 5 : "Whether Pooran Singh Malan (respondent
No. ·2) withdrew from the election on 6th March and asked
his supporters to vote instead for respondent No. 1. If so,
was this done as a result cf inducements offered at the instance of respondent No. 1" ?
·
H
)
A
B
c
D
E
F
G
H
MOHD. YUNUS v. s. K. SHASTRI (Gosl\'ami, /.)
Issue No. 7 : "Whether voters were induced by threats
oll'ered by Hukum Singh, the polling ag~nt of respondent No.
1, to promisa not to vote for the petitioner but to vote for
respondent No. l (as detailed in paragraph 28 of the petition)"'!
Issue No. 8 : "Whether respondent No. 1 and Kalya11
Singh, M.. L.A. appealed to Hindu voters in Gordha village
on 7-3-1971 not to vote for the petitioner because he was a
Muslim (as detailed in para 29 of the petition): and whether
similar appeals were made to voters by respondent No. 1 and
Prakash Vir Shastri, Virendra Varma, Raghunath Singh and
Ram Prasad Deshmukh in Khair, Chandaus and lglas bet·
ween 7·3-1971 and 9-3-1971 (as detailed in para 30 of the
petition)"?
Issue No. 8A: "Whether respondent No. 1 and the other
persons named in paragraph 30 of the petition and the sta'c·
ment of further particulars made speeches in Khair, Chandaus
and Iglas Tehsils alleging that the petitioner was responsible
for communal riots in Aligarh and other place.;, which statements were known by them to be false" ?
Issue No. 9 : "Whether Virendra Varma and Raghunath
Singh appealed to Jat voters to vote for respondent No. 1 on
the ground that he was the candidate of a party led by Shri
Charan Singh (as detailed in para 30 of the petition)" ?
Issue No. 10 : "Whether respondent No. l's election agent
Yogendra Pal Singh and Virendra Varma and Charan Singh
appealed to Jat and Thakur voters at Iglas on 7-3-1971 not
to vote for the petitioner as he was a· Muslim and not to
allow Muslim, Jatav and Brahmin voters to vote (as detailed
in para 34 of the petition)" ?
Issue No. 11 : "Whether at the same mectlhg men•ioned
in para 34) Yogendra Pal Singh falsely stated that the peti,
tic.ner was a Razakar of Hyderabad and had instigated the
Aligarh riots" ?
Issue No. 12 : "Whether respondent No. l has commi•ted
corrupt practices as defined in clauses (1), (2), (3), (3A)
and ( 4) of section 123 of the Representation of the People
Act"?
741
The learned counsel for the appellant has firstly addressed us on
the 2nd issue and we will, therefore, take the same first.
To appre·
ciate the point i.n controversy, some 'facts may be stated :
The Election Commission published a notification in the Ga7.etle
of India Extraordinary dated 27th January, 1971, fixing the following
dates for the purpose of the election under section 30 of the Act :
February 3, 1971-The last date for making nominations.
/
742
SUPREME COURT REPORTS
[1974] 3 ~.C.R.
February 4, 1971-The date for the scrutiny of nominations.
February 6, 1971-The last date for the withdrawal of candidatures.
Various dates between March 1, 1971 and March 5, 1971-For
holding the poll in different constituencies in Uttar Pradesh.
March 15, 1971-The date before which the election shall be
completed.
The notification fixed March I, 1971, for the poll in the A!igarh and
Koil segments and March 3, 1971 in the Iglas, Khair and Chandaus
segments.
The learned counsel for the appellant submits that the
Election Commission had no jurisdiction or authority to alter the dates
fixed under clause (d) of section 30 in the aforesaid notification except under circumstances mentioned in sections 57 and 58 of the Act.
We may, therefore, first look at sections 57 and 58 of the Act. Section 57 in terms provides for a situation when the proceedings at any
poHing station in an election are interrupted or obstructed by any riot
or open violence, or if it is not possible to take the poll at any polllllg
station on account of any natural calamity, or any other sufficient
cause. Section 57 empowers the presiding officer or the returning
officer to adjourn the poll to ano:hcr date in any of those circumstances.
The returning officer under sub-section (2) has to report the circumstances to the appropriate authority and the returning officer next
fixes appropriate dates for poll with the previous approval of the Election Commission. Under soction 57(2) when the poll has to k post-·
paned after the same has commenced and voters have exercised their ·
right to vote for some time, there is provision for fixing the hours during which the next poll shall be taken and there is a direction in this
sub-section not to count the votes cast at such election until such ad-
}ourncd poll has been completed. Section 57, therefore, does not deal
with •he direct exercise of power by the Election Commission in altering dates of poll under the conditions specified in that section. Section
58 provides for a contingency where a ballot box used at a polling
station or at a place fixed for the poll is unlawfully taken 011t of the
custody of the presiding officer or the returning officer, or is accidentally or intentionally destroyed or lost or is damaged or tampered with
to such an extent that the result of the poll at that polling station or
place cannot be ascertained or any such error or irregularity in procedure is likely to vitiate the poll is committed. therein. In such an
event the returning officer has to report the matter to the Election
Commission who after. taking all material circumstances into account
has to t1ke a decision to declare the poll void and appoint a day and
fix the Jiours for taking a fresh poll after an appropriate notification
in that behalf. The Election Commission under this section may even
decide against a fresh po!I after considering •he various circumstances
and direct the returning officer for the further conduct and completion
of the election. It is, therefore, clear that these two sections can be
invoked only in very specified circumstances and in the manner provided therein. On the other hand, our attention is drawn to two oth<r
sections, namely, section 30 and section 153 of the Act, which were
A
B
c
D
E
G
H
MOHD. YUNOS V, s. K. SHASTRI (Goswami,/.)
743
A
relied upon by the respondents in. the High Court and the submissions
were accepted there .. We may read these two sections :
B
c
D
E
F
G
H
··-·r ' .. , •
Section 30 : "Appointment of dates for nomi,nations, etc.-
As soon as the notification calliJ.lg upon a constituency
to elect a member or members is issued, the Election Commission shall; by notification in the Official pazette, appoint-
( al the last date f~r maki,ng nominations, which shall be
the seventh day after the date of publication of the
first-mentioned notification or, if that day is a public
holiday, the 'next succeeding day which is not a public holiday;
( b) the date for the scrutiny of nominations, which shall
be the day immediately following the last date for asking nominatio.ns or, if that day is a public holiday, the
next succeeding day which is not a public holiday;
( c) the last date for the withdra\Val of candidatures,
which shall be the second day after the date for the
scrutiny of noininations ·or, if that day is a public
holiday, the next succeeding day which is not a public
holiday;
{ d) the date or dates on which a poll shall, if necessary,
be take.n, which or the first of which shall be a date
not earlier than the twentieth day after .the Jast date
for the withdrawal of candidatures; and
( e) the date before which the election shall be completed".
Section 15 3 : "Extension of time for completion of electionIt shall be competent for the Eiection Commission !or
reasons which it considers sufficient, to extend the time for the
completion of any election by making necessary amendments
in the notification issued by it under secticln 30 or sub-section
(1) of section 39".
The High Court has held that "sectio.n 153 can be construed as
declaring the competency of the Election Commission to extend time
under clause (d) as well as clause (e) of section 30". We are w1ablc
to a~e with the High Court .that section 153 can be properly invoked
in this case to the aid of the Election Commission in changing the
dates of poll for the three remaining constituencies, speeified in the
notification under .section 30'(d) of the Act. Secti6n 153 in terms pro·
vides for extending "the time for completion of any election by making necessary amendments in the notification issued by it under section
30 .....• ". Section 30 (e) deals with "the date before which the
election shall be completed". It is clear in this case, as set out earlier,
that the last date for completion of the election was fixed by the appropriate notification to be 15th March, 1971 and the altered date of poll
.in this case from 3rd to 9th March is within. the last date for completion of the poll under section 30(e). Section 153, therefore. cannot
744 .
SUPREME COURT REPORTS
[1974] 3 S.C.R.
come to the aid of the Election Commission to alter the date of poll,
A
ns has been clone in this case, as the said section is inapplicable to the
facts and circumstances of this case. We may, therefore, examine
whether the Election Commission bas got power to alt!'r the date of
poll under section 30 of the Act read with section 21 of the General
Clauses Act which is undoubtedly applicable in interpretation of the
proviS1ons of the Act. We may read section 21 of the General Clauses
B
Act.
Section 21 : "Where, by any Central Act or Regulation,
a power to issue notifications, orders, rules, or bye-Jaws is
cunforred, then that power includes a power, exercisable in
the like manner and subject to the like sanctio.n and conditions if any, to add to, amend, vary or rescind any notifications, crdcrs, rules or bye-laws so issued".
.
· The Election Commission in this case exercised power under section
30 of the Act and issued the .notification appointing the various dates
mentioned therein for the purposes specified. Once this power is conferred under section 30 upon the Election Commission, the power to
amend the - ~amo,. which will include alteration of the dates of poll,
can be exercised under secticn 21 of the General Clauses Act. There
· is, teerefore, no merit in the contention that the Election Commission
had no power or jurisdiction to alter the date of poll from 3rd March
to 9th March" 1971, in the remaining constituencies in this case. Issue
No. 2 is, therefore, rightly decided by the High Court although we do
not agree with the High Court with regard to the construction of sec·
tion 153 of the Act In the view we have taken, it is not necessary for
us to consider whether Article 324 can be invoked in this case in aid
of the power to alter the date of poll by the Election Commission.
The learned counsel for the appellant also submits that there
should have been a fresh notification of the date in form No. 1 under
rulc 3, read with. section 31 of the Act, of the Conduct of Elections
Rules 1961. ·We -are, however, not impressed by this submission as
the amendment of the date of poll gets engrafted in the original form
in pursuance of the subsequent notification dated 2nd March, 1971.
made in valid. exercise of the power under section 30 of the Act, read
with section '.21 of the General Clauses Act.
We now turn to issue No. 5· relating to the corrupt practice of
bribery defimod under section 123(0.(A) {'a) of the Act, The case of
the appellant with regard to this. issue is as follows :-
"At about 7.00 P.M. on 6-3-1971 there was a meeting
at the J\ligarh residence of K. N. Agarwal(said to be one
of the financiers of the B . K. D .
Party in . the elec•ion), .
which, was attended by Shiv Kumar Shastri (respondent
No.)), Pooran Singh Malan (respondent No. 2), Vircndra
Verma (Hom~ Minister of the then U. P. · Government),
~urendra Kumar (another alleged financier of the B. K. D.
Party), and a number of other persons. Oiie A•nia Deo
%arma stood up and made an appeal. to Shastri and Malan
c
D
E
F
G
H
,
<~ •
•
A
B
c
D
E
F
G
H
MOHD. YUNUS v. s. K, SHASTRI (Goswami, I.)
that only one of them should stand ·for election and thereupon Shastri, Malan and Surendra Kumar went into an adjommg room, where Surendra Kumar offered to pay Rs.
30,000/· to Rs. 35,000/- to Malan if he would withdraw
from the co.ntest, white Shastri told Malan that he would
recommend him for a seat in the Legislative Council. On
this Malan said that he had no need of money and as regards
the seat in the Council, that was for the future to decide, but
as they were all asking him to withdraw, he would comply.
The three of them then joined the others and Malan
,,nnounced his withdrawal and requested his supporters to
. transfer their allegiance to Shastri".
745
Before we discuss the evidence, we may deal with a question of
law. addressed by Mr. Hardy, learned counsel for the contesting respondent.
According to the learned counsel, even assuming that any
gratification was offered to Malan on 6th March, 1971, to induce him
to refrain fron1 contesting the election, that would not amount to a
corrupt practice within the meaning of section i23(l}(A)(a) of the·
Act.
We may, therefore, read that part of the section :
Section 123: "Corrupt practiceS-The following shall be
deemed to be corrupt practices for the purposes of this Act :-
(1) 'Bribery', that is to say,-
( 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 any gratification, to any
person whomsoever, with the object, di rec Uy or illr
directly of inducing-
( a) a person to stand or not to stand as, or to. withdraw
or not •o v.ithdraw from being a candidate at a.n election, or;''
Th<! allegation in the present case is that an offer of gratification wa~,
mode to Malan to induce him "to withdraw from being a candidate".
It is submitted· that since. the time for withdrawal Qf candidature ha<t
already expired, there can be no withdrawal of candidature after the"
date fixed for that purpose in the appropriate notification to come
within the mischief of section 123(l)(A)(a). It is further submitted·
that even though he may not have taken any part in the election after
the expiry (If. the date of withdrawal, he will remain a contesting can·
didate •houghout the clectio.n. n is also pointed out that in fact Malan
obtained vote.s in the election which was held on 9th March, 1971 itr
various constituencies as will also appear from the chart given above.
The learned counsel also drew our attention to the earlier law on the"
subject where a provision under section 123(0(a) stood as follows:-
"a person to stand or not to stand as or to. with-draw
from being a candidate or to retire from contest, at an
election;''
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SUPREME COURT REPORTS
[1974] 3 S.C.R.
Mr. Hardv .submits that the words "to retire from contest" are omitted
from the 'present section, which, according to him, is very -significant.
He, theretore, submits that since Malan could not in !aw withdraw
from the candidature on 6th March, 1971 and there is no question of
retiring from the contest under the present Jaw, _no corrupt practice has
bcrn committed within the meaninz of section 123(l)(A)(a}.
JI is well settli:d that election under the Act is from the date of
publication of the notification calling the election to the date of declaration of the result of the election, both days inclusive. We have,
therefore, a torminus a quo and terminus ad quern under the law. The
word "candidate" is defined for Part VI (Disputes regarding Elections)
and !'art VII (Corrupt Practices and E1ectoral Offences) under Section 79 (b} and it mea.ns "a. person who has been or claims to have
been duty nominated as a candidate at any election and any such
person shall be deemed to have been a candidate as from the time when
with the election in prospect; he began to hold himself out as a prospective candidate".
Section 32 provides for nomination of candidates for election. Under section 36(8), "f=ediately after all the
nomination papers have been scrutinised and decisions accepting or
rejecting the same have been recorded, the returning officer shall
prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his
hotice board"'. Section 37 provides for
withdrawal of candidature
within the time. specified therein. Section 38 provides for publication
of list of contesting candidates, that is to say, candidates who were
included in the list of validly nominated candidates and who have
not withdrawn their candidature within the said period.
The word
"contesting candidate" as such is not defined in the Act, but the
word "candidate" under rule 50(a} and rule 28(a} of the Conduct of
Elections Rules 1961 means a contesting candidate. The question is
whether after the time for withdrawal has expired and a JiSt of contesting candidates has been published, withdrawal thereafter from the
contest on receipt of bribe will be ·within the mischief of section
123(1)(Al(a). -
We have already
set out the
material
portions
of section
123(1} (A} as well as the earlier section to which our attention has
been drawn. It is strimuously submitted by Mr. Hardy that the omission
__ -_of the words "retire from contest" is very significant and the legislature
now confines withdrawal under section: 123(l}(A}(a) to the stage
as envisaged under section 37 and not thereafter. The Shorter Oxford
English dictionary gives the meaning of the word "withdraw" (verb
intransitive} to go away or retire fro!!! the field of battle or any contest.
Withdraw or not to withdraw, therefore, includes "retire from
contest" or not to retire from contest. There is,, therefore, nothing
·significant etymologically in the deletion of the words "retire from
contest". When, therefore, section 123(l}(A) soeaks of withdrawal
from being a candidate, it is not limited to a candida•e who has been
vali'dly nominated and who has withdrawn earlier according to law.
It is because of this reason that the words "retire from contest" become
unnecessary and were advisedly deleted by the legislature.
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MOHD. YUNUS V, S, K, SHASTRI (Goswami, /.).
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Again looking frcm another angle, section 123(l)(A)(a) has got
two stages; the first stage relates to the period when even before filing
of nomination paper a person is contemplating to stand or not to stand
as a candidate in the election· [see definition of candidate under section
79(b)]. The second stage is reached after filing of the nomination
paper when law gives a candidate requisite lime to withdraw from the
cindidature. It is true that the words "to retire from contest" in the
old provision arc now deleted and the provision is recast by adding the
words "not to withdraw" in addition to the words "to withdraw" in the
earlier provision.
We arc, however, unable to hold that the expressicn
"to withdraw or not to withdraw" from being a candidate has only a
r"strictcd meaning to be confined to the stage where law permits a candidate to withdraw from the election.
For the purpose of section 123
the words "to wihdraw or not to withdraw" from being a candidate
are of wide amplitude to include a subsequent withdrawal or nonwithdrawal even al the last stage prior to the poll.
We may also consider whether deletion of the aforesaid words makes
any difference under the scheme of the Act.
"Since purity of elections
is the mcM important object of the Act, a narrow meaning to the word
"withdraw" to refer only to legal withdrawal under section 37 would
Jcfeat the very aim.
We have, therefore, to give a meaning to the
word "withdraw" keeping in mind the object and scheme of the Act
with a view to effectuate the intention of the legislature to ensure purity
in elections; else there will be an absurd position where actual withdrawal after the time limit by taking bribe will be free from the vice of
corrupt practice whereas that prior to it will not be so.
Such an intention cannot be attributed to the legislature from deletion of the words
"'retire from contest".
The
word
"withdraw"
is
comprehensive·
enough to also connote Hretire from contest"." We are, therefore,.
unable tci accept the submission that even if the facts alleged be established, there can be no corrupt practice within the meaning of seclion123( 1) (A) (a) of the Act.
We will, therefore, deal with the allegations to see how far they are
established on the evidence.
We have already set out the allegations
with regard to this issue and the first respondent has denied all the
allegations. His case is that no bribe was offered nor any promise
made to. Malan and in actual fact Malan did not withdraw from the
contest and continued to fight the election to the end. The solitary
witness who claims to have been present when the offer of gratification
was made is Dcvendra Pal Singh (P.W. 20). This witness claims to
have been one of the workers of the first respondent and indeed propooed Shastri's nomination.
He changed his allegiance from
one
party to another, namely, from the B.K.D. to the Congress (R) in
September 1971. We are unable to hold that the High Court.js wrong
in not placing reliance upon his evidence. The High Court has also
found the corroborating evidence equally unreliable. .Since we agree
with the appreciation of the evidence of the witness by the High Court
with regard to this.charge, we may only briefly allude to the other evidence to demonstrate its unreliability. Radha Raman Dhwaj Prasad
Singh (P.W. 21) was examined to support these allegations.
He hu.s
been a B. K. D. worker since 1969 and he claimed also to be in that
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tl974J 3 s.c.a.
' party on the date (12-12,1971) he gave evidence for the appellant.
He admits to have worked for the first respondent in 1971 election.
Although he did not depose to the entire episode and did not go into
.the room where the discussion took place with regard to the bribe and
.the promise of a seat in the Council, he stated that Malan announced
.that he was withdrawing in favour of Shiv Kumar Shastri and told his
workers to see that Shastri was successful.
He admits to have taken
ll!llll from the Aligarh Cooperative Bank at a time when Devendra Pal
Singh (PW 20) was the Chairman of the Bank. He has not received
.any recovery notice.
This witness has also changed his loyally for
.reasons best known to him and cannot be considered as a reliable
witness in an election matter where one may not fail to come across
truth being sacrificed at the altar of political expediency.
The next
witness is Shashi Bhushan (P.W. 32). He has been a Member ot
Parliament since 1967. He went to Aligarh on 7th March, 1971, to
'help the appellant in his election.
He met Pooran Singh Malan on
7th·March, 1971, in Aligarh.
He asked him why he was withdrawing
from the election since he had read about this in an Agra news paper
.called "Amarujwala", which,
however,
has
not been produced .
.According to his evidence, Malan told him that the atmosphere had
•Changed since the communal riots and the grand alliance which had
been supporting him was no longer supporting him. He further stated
''° this witness that he had be.en promised a seat by Shiv Kumar Shastri
in the .Legislative Council.
He further stated that he was going to a
meeting of Shastri to announce his withdrawal.
This
~videncc is
,absolutely improbable in view of P.W. 2l's statement that Malan had
.announced his withdrawal on the previous day, viz., 6th March, 197L
Tt is not easy to comprehend why Malan should have at all cxpo5cd him.-
self to unsavoury comments and other consequences by stating to this
witness in the manner he is alleged to have done.
We cannot say lhat
the High Court has wrongly rejected the testimony of P.W. 32. Another
witness is Anand Pal (P,W. 10) who attended, according to. him, certain meeting at Gordha Bazar on 7th March, 1971. He deposed to
rhe effect that KaJyan Singh was addressing the meeting and Kalyan
·Singh while addressing the meeting said, "he had got Pooran Singh
Malan to withdraw'', so that all Hindus could unite to vote for a Hindu.
Shiv Kumar Shastri also repeated the same things.
He said he was a
·staunch Hindu and they should vote for him and he bad got Malan to
·stand down". It is difficult to believe that the first respondent woukl
expose himself in such an open manner by stating in public that "he
had got Malan to stand down".
This Was not at all necessary to state.
Such a serious charge cannot be established on mere statcmem of this
·kind.
Gajendra Singh (P.W. 18) is another witness to depose about
the withdrawal of Malan amongst other things.
He is a member .:if
·s.K.D. Party and was a polling agent of Mrs. Gyatri Devi (wife of Sri
·Charan Singh) in 1967. In 1971 Parliamentary election k worked
for·'the first respondent and yet he went against him to depose against
·his interest. It is difficult to place any reliance upon such a witness
and the High Court has rightly rejected ))is testimony.
Kishan Singh
(P.W. 23) also deposed that he was present in a meeting at Iglas on
/th March, 1971 and he heard Jogendra Pal ·Singh, election agent <>f
·the first respondent, speaking in the meeting to the cf!ect, among•t
-0lher things, "that Malan had bce.n made to withdraw and votes should
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MOHD. YUNUS v. s. K. SHASTRI (Goswami,/.)
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now go to Shastri who was of Charan Singh's party". This is llOt at all
direct evidence about the allegauons which are made. by the appellant
to support the charge.
Ram Das Singh (P.W. 19) was also examined
with reference to this charge.
His evidence too is not direct On the
point and cannot be held to be at all helpful in establishing th" charge.
On the side of the respondents, the allegaticJts have been denied by
Virendra Varma (R.W. 7) and also by Mahendra Singh (R.W. 3). In
view of the nature of the evidence on the side of the appellant it is not
even necessary to refer in detail to the respondent's evidence.
A grievance was made by the learned counsel for th~ appellant that
a petition was made by the appellant for examination of additional witnesses and the High Court wrongly rejected the same.
We frnd from
the order of the High Court that the party had been warned that "any
proposed addition to the list of witnesses would have to be justified".
'fhe High Court found that beyond saying that their names were left
out "by inadvertence or oversight" no other sufficient ground was giYCn
by the appellant to justify his prayer. We, therefori, do not find any
Justification for the grievance on this score. Another petition was also
filed by the appellant on 18th November, 1971, for examination· of
Pooran Singh Malan (respondent No. 2) as a witness. The High
Court rejected the prayer on the ground that his name did not figure in
the list of witnesses supplied on 9th November, 1971. Since Malan is
a respondent, who on the proof of the averments could have been
named under section 99, the appellant cannot mnke. a grievance for
rejection of his prayer. It is not possible for this Court to interfQrc
with the discretion exercised by the learned trial 1udge in a matter like
this.
We now come to issue No. 7. This issue is with regard to the cot'
rupt practice of undue. influence under section 123(2) of the Act. TI1e
allegations are that on 7th March, 1971, two days before the poll, the
first respondent visited the village of Sapera and after collecting a number of Hindus at the chaupal of the Sarpanch, Hukum Singh, went,
along with them to the Muslim quarter of the village and by means of
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'threats forced the Muslim voters of that place to swear by the Quran
that they would vote for him and not for the appellant or any other
candidate. After the Muslims had. taken the oath, Shastri is alleged
to have warned them that if they d1d not act in accordance with the
oath, they would be in danger of divine displeasure. The witnesres
examined by the appellant for establishing this charge arc Raghubir
Singh (PW 11), Rafiq (PW 14) and Shcodan Singh (PW 15). These
witnesses are residents of Sapera. Both PWs 11 and 15 admit that
they are supporters of the Congress and were supporting the Congress
in the election but claim that on account of Shastri's visit to the villag~
on 7th March, J 97 J, they turned over to him. Even then they ha\'c
come forward to give evidence against Shastri in this case. The High
Court has given cogent reasons for discarding their testimony and we
ore unable to take a contrary view.
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Although he spoke about the swearing by the Quran at the
mosque, he did not know the name of the Mulla.. He has no opinion
nf his own and admitted that when asked by Shastri and others lie toltl
that he would vote "as they directed". Finally he did not go lo \'Ole
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SUPREME COURT REPORTS
[1974] 3 S.C.R.
on the day of poll. Besides, their statements are satisfactorily rebutted . A
by the evidence of the first respondent, R.W. 1, Giraj Singh and R.W.
8 Harl Singh, the polling agent of the first respondent. We are satisfied that the High Court has correctly appreciated. the testimony of these
witnesses with regard to this charge.
We will now deal with issues Nos. 8, SA, 9, 10 and 11.
These issues are interconnected and relate to the allegations made
in paragraphs 29, 30 and 34 of the election petition. · Tuey refer to a
number of meetings held at various places, namely,
Gordha, lglas,
Jatari, Gaghana and Beswa, on 7-3-1971 and 8-3-1971, at whiclJ
speeches were made either by the first respondent or by his agents and
supporters.
Since we agree with the conclusions reached by the High
Coun with regard to the proof of the various allegations, we do not
propose to deal exhaustively with the evidence and only make a brief
reference to some broad features.
Meeting at Gordha :
The allegations are that on 7th March. 1971, in village Gordha in
the afternoon at weekly bazar, Kalyan.Singh, M.L.A., addressed a huge
gatheriog in the following terms :-
"In Aligarh Muslims at the instance of the petitioner have
chopped off the breasts of the Hindu women and have
inllicted bodily injuries.
Now I ask every Hindu ·who is
present in this gathering : Arc you so shameless to vote for a·
Muslim candidate?" He posed a question that you are the
descendants of Shivaji and Rana Pratap and you should see
·that the butcher miyan (i.e. the petitioner) is defeated.
He
also said that for this purpose only we got Shri Pooran Singh
Malan, respondent No. 2, to withdraw his candidatwe so
that Hindu votes may not be divided and a Muslim candidate
may not win the election".
It is fwther stated in paragraph 20 of the.