TMI Blog1974 (10) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... context by a great writer. Judging by the general trend of vice and violation organised as election strategy, only glimpses of which Judges get in election cases, we wonder whether parties and individuals who practise these oblique techniques, fully realise the moral of the Frankenstain's monster episode. These dark forebodings, however, do not deter us from applying the sound tests laid down by a long line of cases in interpreting the provisions and evaluating the evidence in election cases. Out task has, however, become more uneasy because both sides have liberally contributed dubious testimony in a bid to win their respective cases. 2. A brief diary of events will bring into focus the issues over which the forensic controversy has raged. Sixteen persons filed nomination papers from the Chamarajpet constituency, six discreetly withdrew and the surviving ten went into battle on March 5, 1972 the date set for the poll. The voting strength of this constituency was 97,379 but the actual votes polled was only 52,720. While the D.M.K. and the Muslim League made a relatively good showing securing over 7,000 votes each, the real bout was between the appellant, an Independent glam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the forces at work better if we also remember that there are sizable Tamil and Muslim groups in Bangalore. Some of the corrupt practices alleged are linked up with Tamil presence in the City. While economic grievances and social backwardness are the basic causes of what, on the surface, shows up as language or parochial chauvinism, the fact remains that the masses are easily inflamed by economic-linguistic appeals peppered by provincialism. 5. We may now proceed to set out briefly the charges leveled against the appellant, highlighting only those which have found favour with the trial Judge. However, the structure of Section 123 of the Representation of the People Act, 1951 (hereinafter called the Act, for short) is such that where a candidate is guilty of one or many of the enumerated corrupt practices, his election must be set aside and he should be visited, under Section 77 of the Act, with a six-year period of disqualification. In that view, it may well be that if we are satisfied about one of the several charges, the appellant must lose. However, we shall deal with the allegations and evidence concisely, so that the conspectus of the case may not appear distorted, althou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he (the appellant) was lured, 'taking advantage of the 1st respondent's age and vanity' and were cleverly fobbed off on the Court in hopeful proof of the offending February gift of Rs. 500/-. The agent used for this purpose was P.W. 30 and the learned Judge assessed him thus: P.W. 30 Raghunath Singh is a creature of the petitioner, who acted as a spy in the opposite camp -a fifth column tactic hardly fair, if it is true. A suspicious February edition of a newspaper called Karmika Vani (Ex. P. 10) carrying two photos taken in April have also been introduced by the 1st respondent Dayananda Sagar. He has also placed a make-believe letter Exhibit P. 26, signed by the appellant as evidence of car hire payment although the trial Judge has seen through the 1st respondent's sharp practice. Vatal Nagaraj, invited to a school function, gave his post-election autograph to children in an exercise note book which page was later perverted to appear as a letter forwarding part of the car hire charges. This shady species of conduct in election litigation by seemingly important persons make us wonder whether character assassination cannot be self inflicted. 9. We will now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absent, party viz., the silent constituency. This Court, in Bhagwan Datt Shastri v. R. JR. Gupta 11 E.L.R. 488 set out the true rule: The question in such a case would not be one of absence of jurisdiction but as to whether there has been any material prejudice occasioned by the absence of particulars. It is in that light that the validity of the objection raised by the appellant in this behalf before us had to be judged. It is, therefore, necessary to scrutinise the nature of the evidence on which this finding has been arrived at and to see whether the appellant had a fair opportunity of meeting it. 12. Having heard Shri Desai at length, we are not persuaded that the infirmities he complains of have validity in the case on hand. No prejudice has been sustained by the change in the numbers of the taxi cars and no integral element in the ground of corrupt practice viz., excessive expenditure for the election has been kept back. Indeed, even most of the particulars have been correctly set out. 13. Before proceeding to examine the evidence, we must make a further cautionary observation. When the trial Court (here a Judge of the High Court) has had an overall view of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust know that there exists an initial presumption in favour of the poll verdict and the whole constituency is invisibly party to the Us, their voice being interfered with only if their votes were illegally procured. As earlier indicated, this leaflet imputation may, in order of probative importance, be considered at a later stage since we are satisfied that its impact is somewhat indirect and its proof a shade inconclusive, notwithstanding the use to which Shri A. K. Sen has sought to put it in supporting the declaration, under issue No. 11, that his client obtained as the returned candidate. 16. The critical issue which, in our view, is fatal to the appellant's election, is the layout on hiring cars. By itself, that item exceeds Rs. 10,000/- and if true, the election must be set aside, without more Issue 9 (b) relates to this subject and paragraph 14(b) of the petition sets out this ground. As stated earlier, while the numbers of the ten cars are enumerated therein, the last six do not tally with the documents produced or the Bangalore City Cooperative Transport Society which was the bailor. The case is that the above Transport, Society had fallen on evil days and so had au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se two dubious beings have been frequently friendly with falsehood does not destroy the acceptability of their testimony to the extent it accords with other authentic documentary material and reliable verbal testimony. Indeed the trial Judge has discerningly observed: I am placing dependence mainly on the documentary evidence under this issue, supported by the testimony of P.W. 7, Swaminath. This, we think, is a flawless approach. We are constrained to remark that experience proves the wisdom of scepticism in assessing oral evidence in Court. In the words of Osborn ('The Problem of Proof -Albert S. Osborn. pp. 22.23 New York, Methew Bender Co. 1926-quoted in (2) ibid, p. 226): The astonishing amount of perjury in courts of law is a sad commentary on human veracity. In spite of the oath, more untruths are probably uttered in court than anywhere else. This deviation from veracity ranges from mere exaggeration all the way to vicious perjury. Much of this untrue testimony grows directly out of human nature under unusual stress and is not an accurate measure of truth speaking in general. In order to shield a friend, or help one to win in what is thought to be a just cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... li Kendra Mandali to support him and they might well have covered the area on bicycles. May be, being militantly identified with an agitational issue (Kannada for Kannadigas, to capsule the movement in a slogan) his monetary inputs might have been puny compared to his more prosperous Congress rival. Even so, the Padayatra programme, eschewing automobile journeys altogether, is too unrealistic and mendacious to be taken seriously. Moreover, there is other documentary evidence in proof of payment of hire charges. Exhibits P-23, P-24 and P-25 deserve probative credit, in this context, P.W. 8, Sampangi, is seen to have signed them and even if we disbelieve the integrity of P.W. 30 who is alleged to have carried Exhibit P-23 or of P.W. 8, who, admittedly, has signed that letter, there is no gainsaying the fact that documentary evidence of advance payment of Rs. 3,000/- is forthcoming. Exhibit P-24, dated February 12, 1972 is a letter written by Swaminath to Nagaraj and Exhibit P. 24A is the office copy. Exhibit P-25 further clinches the matter since it acknowledges the delivery of the cars and bears the signature of P.W. 8, Sampangi, appended on behalf of his principal, Nagaraj. Not P.W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the whole case which can safely float on other tested testimony. All cobwebs of suspicion are brushed away by Ex. P. 28 and P. 29. Finding a large sum outstanding from Nagaraj by way of car hire, P.W. 7 Swaminath, a financially weak person, wrote to the treasurer of the Mandali pleading that since the appellant, the President, had owed a substantial amount in connection with the election where the Mandali had backed him the treasurer Lakshmipathi had better make good the money and adjust with the President later. Pat came the reply Ex. P. 29 from Lakshmipathi disowning liability from the Mandali. Again, Swaminath (P.W. 7) pursued his claim by writing for balance payment to the appellant with a copy to P.W. 8 (vide Ex. P. 30). What followed (it rings true) may be rendered in the words of P.W. 7: I received the reply Ex. P. 31 from Sampangi. It is dated 22-4-1972. Through the reply Ex. P. 31 Sa. Kru. Sampangi asked me to accept Rs. 8,000/- from 1st respondent Vatal Nagaraj in full settlement. I went and collected Rs. 8,000/- from Sa. Kru. Sampangi on behalf of the 1st respondent Vatal Nagaraj on 24-4-1972, issued a temporary receipt. The office copy of that receipt is Ex. P. 32. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ambition is not merely to destroy the declaration of the appellant but to install himself as the Chamarajpet MLA through the judicial process. There's the rub . Of course, if the law allows it he must get it. 26. Exhibits P-4 and P. 5 are two handbills in Kannada and Tamil, respectively and exhibit P-9 is the election manifesto of the appellant says the 1st respondent. Of course, the appellant has denied responsibility for this offending literature and has gone to the extent of contending that the alleged printer P.W. 2 was a vegetable vendor injected into the scene by the 1st respondent as an evanescent lessee of a press who, ostensibly, appeared on the scene about the time of the election, engaged himself solely in printing the appellant's election matter and vanished from the printing scene back to his vegetable vendors job after the election. May be the story, prima facie, is suspect, but, on a closer scrutiny especially with Ex. R. 6 in mind, the finding of the trial court must pass muster. There is also some evidence of these leaflets being distributed by the workers of Nagaraj. Considerable debate there was at the bar as to whether Exhibit P-4, even if true, am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must stand. 29. The only bitter bone of contention between the parties which survives is covered by issue No. 11. The sanctity of the poll verdict will stand violated if the tribunal, without the strictest compulsion of statutory provisions, substitutes for an elected representative a Court picked candidate. The relevant part of Section 101 may well be set out at this stage: 101. Grounds for which a candidate other than the returned candidate may be declared to have been elected:- If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion. * * * (b) That but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the High Court shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected. The insistent requirements of the section are that firstly the returned candidate must have obt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, for reasons Which are not difficult to guess. In T. Nasappa v. T. C. Basappa AIR1955SC756 this Court had to deal with a case where the lead of the winner was only 34 votes, there was cogent proof of about 60 voters having been transported by the offending candidates to the polling booth of whom 47 voted for him so that, if their votes were struck out, the margin of difference would disappear and the loser would have secured the larger number of valid votes. There the learned Judges were at pains to point out that the petitioner got only 34 votes less than the respondent and that the tribunal (by a majority) had found that the bus procured by respondent No. 1 did carry to the polling booths about 60 voters, leading to the legitimate presumption that the majority of them did vote for respondent No. 1. Under those circumstances; the Court did not care to interfere with the Tribunal's factual view that if the votes attributable to the corrupt practice were left out of account, the petitioner would have gained an undisputed majority. In that very case while pointing out that the High Court should not have upset a finding of fact of the Tribunal, this Court cautiously added that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onto obtaining the definite votes was necessary. On the other hand, all that he states is that as a result of the hate campaign against the Muslims and the Tamils, alleged to have been carried on by the appellant and his agents, the Tamil speaking people thought that it would be to their advantage to support the D. M. K. candidate and the Muslim population thought that they would be protected only if the Muslim League candidate was returned to the Election. Therefore what? After adding that these two candidates had secured a large number of votes from the Tamils and the Muslims, b2 the petition makes a puzzling statement: These votes would have been polled by the petitioner and the Congress party but for the corrupt practices under Section 123 committed by the 1st respondent, his election agent and the agents of the 1st b2 respondent.... The abstruse logic, the bare assertion and the total absence of a tie-up between specific corrupt practices and the number of votes obtained thereby lead us to an outright rejection of the relief, not merely for want of proper averments but also for a total void in proof. Absent visible welding of the electoral vice established into the numeri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was observed there: We feel that there are distinct advantages at the present time when election is to play so important a part in the new public life of India that the public conscience should be markedly drawn in relation to the franchise whether that franchise relates to legislative or other bodies. 34. Elections, constituency-wise, are the cornerstone of our parliamentary culture and if the law is to reflect and ensure the democratic norms set by the nation in this strategic area, serious political consensus (not sanctimonious platitudes) on heavy cut-back on poll outlay by Parties and candidates and basic morality in the electioneering methodology must emerge-a consummation devoutly to be wished. If campaigns run berserk and expenses unlimited become the rule general elections become national nightmares and the fabric of our freedom shakes. Courts come in only when specific cases are filed and cannot arrest this cultural contamination. We can only express the wish, with a sense of social awareness, that campaign finances reform, imposing, realistic limitations on spending on behalf of candidates directly or vicariously seem necessary if inequality of influence is not to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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