Grover, J - (1.) THE Judgment of the court was delivered by
(2.) THIS is an appeal under Section 116-A of the Representation of People Act, 1951, hereinafter called the "Act" from a judgment ofthe Allahabad High court dismissing an election petition filed by the appellant challenging the election of respondent No. 1 to the U. P. LegislativeAssembly from Constituency No. 84 Sandila (District Hardoi) held inFebruary, 1969 on the ground that one of the candidates had not been madea party to the petition. The date for filing the nomination papers of the candidates for themid-term election in the State of U. P. was 9/01/1969. On that datenine candidates filed their nomination papers. Aizaz Rasul, who had thetitle of Nawab and who is the husband of respondent No, I, had beennominated as a candidate and his nomination papers were held to be in orderby the Returning Officer on 9/01/1969. After the nomination papershad been accepted Aizaz Rasul and one other candidate withdrew from thecontest and seven candidates were left in the field. The polling took placeon 7/02/1969. Respondent No. 1 was declared elected on 10/02/1969. It is unnecessary to mention the votes polled by all the candidates.It would be sufficient to mention that respondent No. 1 secured 32, 31 andthe appellant 31,955 votes. On 27/03/1969, the appellant filed anelection petition in the High court of Allahabad. Respondent No. 1 andother six candidates who had contested the election were duly impleaded asparties but Aizaz Rasul who had withdrawn from the contest was not madea party. The petition was dismissed in accordance with the terms of Section86(1) of the Act on the ground that the allegations of commission of corruptpractices had been made against Aizaz Rasul and therefore it was incumbenton the election petitioner to have impleaded him as a respondent. It is not disputed on behalf of the appellant that Aizaz Rasul was anecessary party and the failure to implead him would entail dismissal of theelection petition if there was a candidate against whom allegations of corrupt.practice had been made in the petition. Section 6'2(b) of the Act lays downin mandatory terms that such a candidate must be impleaded as a party.The allegations relevant for the purpose of disposal of this appeal which needbe noticed from the election petition are contained in clauses (b) and (c) ofPara 20 and Para 21. These are in the following terms : "(b) That respondent No. 1 herself and through her consent, heragents obtained or procured and attempted to obtain or procure theservices of Sri Madan Gopal Misra, Sanitary Inspector Kachauna Block.Sandila, a person in the service of the U. P. government who residesin the Kothi of respondent No. 1 at Sandila fur the furtherance of theprospects of her election. A complaint regarding her working at theaforesaid election was made by Bishamber Uayal Gupta of Jan Sangliparty to the District Magistrate) District Medical Officer of Health andDistrict Election Officer, Hardoi,. on 3/2/1969. particulars of this corrupt556 practice as far as possible are being given in Schedule VIII annexed tothis petition. (c) That the said Madan Gopal Misra, Sanitary Inspector (mentioned in foregoing paragraph), committed corrupt practice of undueinfluence defined in Section 123(2) of the Representation of People Actwith the consent of respondent No. 1 her election agent by interferingwith the free exercise of electoral rights of electors taking advantage ofhis official position and telling them that they will have to suffer fromhis hands in case they will not support the candidature of respondentNo. 1 and vote for her. The name, date and place of commission ofsuch corrupt practice are the same as are given in Schedule VIII to theelection petition. Para 20. That in case it is not proved that the corrupt practicesmentioned in Paragraph 20 (and in its sub-paragraphs) were committedby respondent No. 1 and her election agent or by her agents with herconsent they were committed by the persons named in respective Schedules viz. Schedules VII-A and VIII in the interest of the respondentNo. 1 and the same has materially affected the result of the election asthe respondent No. 1 who has succeeded by a margin of 76 votes shesecured More than 1,000.00 votes due to the corrupt practices committedin her interest." Schedule VIII of the petition which is a part of Para 20(c) may also bereproduced to the extent necessary : "SCHEDULE VIII JUDGEMENT_554_3_1970Html1.htm 557An attempt was made long after the period of limitation for filing the electionpetition had expired to amend Column I of the heading of Schedule VIII bythe insertion of words "in whose company Madan Gopal Misra" betweenthe word,''person" and "committed" in Column I of that Schedule. Thatwas rightly disallowed by the learned Trial Judge as a defective petition couldnot be allowed to be rectified after the period of limitation for filing it hadexpired.
(3.) IT has been pointed out by the learned counsel for the appellantthat so far as the allegation contained in Para 20(A) is concerned it has beenfound by the High court that the officer mentioned therein does not fallwithin the category of officers specified in Section 123(7) of the Act. IT has,therefore, to be decided whether the allegations in Para 20{c) read withSchedule VIII relate to the commission of a corrupt practice by respondentNo. l's husband and election agent Aizaz Rasul within the meaningof Section 123(2) of the Act. A great deal of stress has been laid on thecontents of Para 20 (c) and it has been emphasised that the allegation ofcommission of a corrupt practice of undue influence was made against MadanGopal Misra, Sanitary Inspector, although it was stated that the allegedcorrupt practice had been committed with the consent of respondent No. Iand her election agent. Reliance has been placed on S. B. Adityan v. S.Kandaswami and Others where it was observed at Page 876 that a corruptpractice committed with the consent of a candidate was not in itself a newkind of corrupt practice. The consent by a candidate to the commission ofa corrupt practice by someone else) whatever its consequences might be, wasnot itself a corrupt practice. Therefore to say that a candidate consented tocorrupt practice being committed by accepting a gift made to him to inducehim to withdraw his candidature was not to say that he himself committedthe corrupt practice. The decision in that case is clearly distinguishable on facts. Now Section 123(2) defines "undue influence" as meaning anydirect or indirect interference or attempt to interfere on the part of thecandidate or his agent or of any other person with the consent of the candi-date or his election agent with the free exercise of any electoral right.According to proviso a(i) any such person referred to above who threatensany candidate or any elector, inter alia, with injury of any kind shall bedeemed to interfere with the free exercise of the electoral right of suchcandidate or elector. The meaning of "corrupt practice" in clause (b) ofSection 82 of the Act has to be determined with reference to Section 123(2).It has thus to be seen whether any allegations of corrupt practice were madeagainst Aizaz Rasul who was admittedly a candidate within the meaning ofSection 79(A) of the Act.;