- (1.) THIS is an appeal under Section 116-A of the Representation of the People Act, 1951, by Shri Krishna Kumar, against an order of the Election Tribunal, Kota, declaring void his election to the Rajasthan Legislative Assembly from the Kota city Assembly Constituency and holding him guilty of the corrupt practice mentioned in Section 123 (5 ). The appeal is contested by the respondent Shri krishna Gopal who had filed the election petition to challenge Shri Krishna Kumar's election. Shri Krishna Gopal is an elector of the constituency who had worked for the furtherance of the prospects of the Congress candidate Shri Rameshwar Dayal in the election. The candidature of Shri Krishna Kumar was sponsored by the Jan sangh party. The votes polied by the contesting candidates at the polling which took place on 22nd February 1962 were as follows : 1. Shri Krishna Kumar, Jan Sangh 11,886 shri Rameshwar Dayal, 2. 9,414 congress 3. Shri Purshottam Das, Socialist 6,261 4. Shri Abdul Gaffor Khan, Seerat 2,786 committee (Independent)Shri Satya Prakash, 5. 2,057 independent shrimati Nagangi Devi, 6. 500 independent in the petition it was alleged that the petitioner was guilty of corrupt practices of the nature mentioned in Sub-sections (3), (3a), (5) and (7) but the Tribunal found that the only charge proved against him was that he had procured truck No. R. J. R. 2326 in which some electors were conveyed to Rangbari polling station at 2 P. M. on 22-2-62 by one Shankerlal. The Tribunal further held that Shankar Lal was an agent of Shri Krishna Kumar and that he so conveyed the electors by truck with his implied consent. The contention on behalf of the appellant was that these findings are erroneous. On behalf of the respondent the findings of the Tribunal on the above points were supported and further it was contended that it erred in disbelieving the other evidence adduced by him to prove other instances of the corrupt practice under section 123 (5) and to prove that on 21-2-62 Shri Krishna Kumar directed Shanker lal to convey voters from Lakhava, Anandpura, Shivpura, Amli Rojhadi and nayagaon to Kisliorepura and Rangabari polling stations. The findings of the tribunal that the corrupt practices of the nature specified in Subsections (3), (3a) and (7) of Section 123 had not been proved, were however not challenged before us.
(2.) BEFORE dealing with the evidence produced by the respondent we would like to express our opinion on some questions of law which arise in the case. One of these is the standard of proof required in such cases. On behalf of the appellant it was contended, and rightly so in our opinion, that proceedings for getting an election declared void are quasi-criminal in nature and the standard of proof required is similar to that in criminal cases. The following decisions were referred to : badri Narain v. Kamdeo Prasad, AIR 1961 Pat 41 : 21 Ele LR 64; Braj bhushan v. Anand Brahma, AIR 1961 All 356; Ahmedmiya Sherumiya v. Chhippa Ibrahim, 17 Ele LR 218 (Bom); Jamuna Prasad v. Ramniyas, air 1959 Madh Pra 226, Amjad Ali v. Hazmul Haque, AIR 1961 Assam 81; V. B. Raju v. V. Ramchandra Rao, 21 Ele LR 1 (AP), Harish Chandra v. Triloki Singh, 12 Ele LR 461 : (S) AIR 1957 SC 444. The learned counsel for the respondent was unable to cite any decision of any High court in which a contrary view was taken. When a candidate for election, either to the State Legislature or the Parliament, is charged with the commission of any corrupt practice, the charge is almost in all respects similar to a criminal charge as the law prescribes severe punishment for it. Hence the criterion to assess the evidence must also be the same as in a criminal case and the evidence must establish the charges conclusively beyond all reasonable doubt.
(3.) NEXT, we come to the question of interpretation of the provisions of Section 100 and Section 123 of the Representation of the People Act, 1951 as amended by Act no. 27 of 1956 and Act No. 58 of 1958 relating to the corrupt practice specified in section 123 (5), namely, the hiring or procuring of a vehicle for the conveyance of the electors to and from a polling station. Under the Representation of the People Act, 1951, as originally enacted, two kinds of corrupt practices were recognised, namely, major corrupt practices and minor corrupt practices. The corrupt practice of transporting voters by vehicles was a minor corrupt practice under Section 123 (5) of the Act as it then stood. It ran as follows : "the hiring or procuring, whether on payment or otherwise, of any vehicle, or vessel by a candidate or his agent or by any other person with the connivance of a candidate or his agent for the conveyance of any elector. . . . . " "agent" was defined under Section 79 (a) as including an election agent, a polling agent and a counting agent and any person who, on the trial of an election petition or of an offence with respect to any election was held to have acted as an agent in connection with the election with the knowledge or consent of the candidate. The election was to be declared void on account of this corrupt practice under Section 100 (2) (b) if the Tribunal were of the opinion that it had been committed by a returned candidate, or his agent, or by any other person with the connivance of a returned candidate or his agent. After the amendment of the Representation of the People Act 1951 by Act 27 of 1956 the distinction between major and the minor corrupt practices was removed. Further the hiring or procuring of vehicles for the conveyance of voters by any other person was made a corrupt practice even if the act was done without the connivance of the candidate or his agent. The definition of "agent" was incorporated in Section 123 and this definition was made applicable to Section 100 also. The definition was however substantially the same as was contained in section 79 (a) of the original Act. Section 100 was re-drafted as follows: "grounds for declaring election to be void (1) Subject to the provisions of Sub-section (2), if the Tribunal is of opinion : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (d) that the result of the election in so far as it concerns a returned candidate, has been materially affected :. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (ii) by any corrupt practice committed in the interests of the returned candidate by a person other than that candidate or his election agent or a person acting with the consent of such candidate or election agent, or. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Tribunal , shall declare the election of the returned candidate to be void. (2) If in the opinion of the Tribunal, a returned candidate has been guilty by an agent, other than his election agent of any corrupt practice but the tribunal is satisfied: (a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent of the candidate or his election agent: (b) that all such corrupt practices were of a trivial and limited character or took the form of customary hospitality which did not affect the result of the election; (c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and (d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the Tribunal may decide that the election of the returned candidate is not void. " This section was not happily worded. Whereas Section 123 referred to acts of a candidate or his "agent" or of "any other person" Section 100 referred to the acts of the candidate, his election "agent" or "any other person". It did not expressly refer to the acts of an "agent" other than an election agent and thus created some difficulty as Sub-section (1) was subject to the provisions of Sub-section (2) which dealt only with corrupt practices committed by "agents" other than election agents. There. can however be no doubt that "agent" was included in the expression "any other person" in Clause (b) and in the expression "a person other than that candidate or his election agent" in Clause (d) (ii) of Subsection (1 ). Subsection (2) which dealt only with corrupt practices committed by an agent other than the election agent without the consent of the candidate or his election agent was thus a proviso only to Clause (d) (ii) of Sub-section (1) of Section 100. This was the view taken by this Court in Sheopat Singh v. Narishchandra, AIR 1958 Raj 324. The same view was taken by the Allahabad, Bombay and Assam High Courts in Rustom Satin v. Dr. Sampoornanand, 20 Ele LR 221 (All), Sudhir Hendre v. Shripat Dange, AIR 1960 Bom 249 and Khagendranath v. Umesh Chandra, AIR 1958 Assam 183. An appeal was preferred against the decision of the Assam High court in the above case before the Supreme Court but the correctness of the above view was not challenged. The decision is reported as Sarat Chandra v. Khagendranath, AIR 1961 SC 334. The result of the above interpretation was that when a corrupt practice was committed by a returned candidate or his election agent the question of consent did not arise hut if it was committed by "any other person" which expression would include an agent other than an election, agent then it had to be shown that the corrupt practice had been committed with the consent of the returned candidate or his election agent before an election was rendered void. The Mysore High Court dissented from the above view in Anjaneya Reddy v. Gangi reddy, 21 Ble LR 247 (Mys ). That decision was examined by the Kerala High Court in Abdul Majeed v. Bhargavan, AIR 1963 Kerala 18 and it was found that the reasoning adopted by the Mysore High Court was defective. The Kerala High Court arrived at the same conclusions as the majority of High Courts by an independent line of reasoning. The Representation of the People Act, 1951 was again amended by Act 58 of 1958. Section 123 (5) was amended by adding the words "with the consent of the candidate or his election agent" after the expression "any other person" so as to qualify the latter expression. The result of this amendment is that if the act in question is committed by an agent of the candidate without his consent it is a corrupt practice but if it is committed by any other person without his consent it is not a corrupt practice. A consequential amendment was made in Clause (d) (ii) of Section 100 (1) which now reads : "by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent. " the combined effect of the existing provisions with regard to corrupt practices committed by persons other than candidate may be summarised as follows : (1) Acts of election agents-- Corrupt practices committed by election agents have the same effect as those committed by the candidate himself; whether the candidate has consented or not is immaterial. (2) Acts of other agents : (a) if done with the consent of the candidate or his election agent-- election will be void; (b) if done without such consent; (i) election will be void if result is materially affected; (ii) election will not be void if the conditions in Section 100 (2)exist. 3. Acts of persons other than election agents or agents : (i) if done with the consent of candidate or election agent -election is void; (ii) if done without such consent -- They do not come within the definition of corrupt practice and the election is not void even if the result is materially affected. It is therefore clear that before an election can be declared to be void on account of a corrupt practice committed by an agent other than the election agent it has to be proved that the act was done with the consent of the candidate or his election agent or that it materially affected the result of the election. In the present petition it has not been alleged that on account of the acts of shankar Lal the result of the election was materially affected. All that has been alleged is that Shankar Lal committed the corrupt practice with the consent of Shri krishna Kumar thereby rendering the election void under Section 100 (1) (b ). It is therefore immaterial whether Shankar Lal was an agent of the appellant as defined in Section 123, or was some person other than agent.;