Abdul Majeed vs Shamsuddin and Others

M.A. Ansari, C.J.—This appeal is against the order by the Election Tribunal, Quilon, whereby the Election Petition, No. 8/60, has been dismissed. The appellant was one of the three persons who had contested at the 1960 February Election the General seat to the State Legislature from the Varkala Constituency the other three having fought for the reserved seat from the same Constituency. The appellant had polled 49,862 votes and had lost, because first respondent to the Election Petition had secured 50,231 votes. The third contestant for the General seat, who is the 2nd respondent to the petition, had obtained only 400 votes. The order in which the six persons had contested is given below and the list further shows their numbers as the respondents to the petition before the lower Tribunal.

(1)

Abdul Majeed.

(Appellant)

(2)

Kunjan.

(Respondent No. 4)

(3)

Neelakandan (Ummini).

(Respondent No. 2)

(4)

Neelakandan (Velu).

(Respondent No. 3)

(5)

Balakrishnan.

(Respondent No. 5)

(6)

Shamsuddin.

(Respondent No. 1)

At this stage we may state that they represented three parties one candidate from each party contesting for his party each seat from the aforesaid double member constituency. Thus the appellant and Balakrishnan (Respondent No. 5) were seeking election on behalf of the Communist Party. Neelakandan (Ummini), respondent No. 2, and Neelakandan (Velu), Respondent No. 3, were fighting on behalf of the Kerala Socialist Party. Shamsuddin the 1st and Kunjan the 4th (respondents) were put forward by the United Front. The candidates on behalf of the Kerala Socialist Party had polled very small number of votes; and have not attempted to further challenge the election results. Of the remaining four a contestant from each of the remaining two parties has succeeded in winning a seat for his party. As already mentioned Respondent No. 1 has won the seat for the United Front, having been put forward by the Congress Party; whereas, Kunjan (Respondent No. 4) lost the reserve seat to Respondent No. 5, who has won on behalf of the Communist Party.

It is admitted that the Returning Officer worked at counting the votes from 8 A.M. on February 2, 1960 to 10-30 A.M. on February 3, I960, when the results were announced and this continuous work, with a break of only an hour for dinner on the night following February 2, 1960, has been made a ground of attack in the election petition as the reason for the recount of the votes being directed by the Tribunal. In the election petition the appellant has further taken other grounds for avoiding the election of the 1st respondent as well as for the declaration of his being properly elected. These other grounds can be grouped into three groups. The first consists of averments of corrupt practices u/s 123, Sub-sections (1), (3), (4) and (5) of the Representation of the People Act, 1951, hereafter referred to as the Act, which are alleged to have been committed either by the 1st respondent or his recognized agents. The next head is the improper acceptance of the nomination paper of the 2nd respondent, which is claimed to have caused the appellant the loss of 400 votes cast in favor of the aforesaid respondent, which the appellant swears he would have secured for himself. The third is the charge of impersonation of voters and of election expenses having been exceeded. Of the aforesaid grounds the last on which issue Nos. 23 and 22 had been framed, were not pressed before the Election Tribunal. So also the complaints of corrupt practice u/s 123(1) and (4) of the Act were given up. Therefore two sub-heads of the complaints of corrupt practice i.e., of the successful candidate having obtained votes by bribery, or hired vehicles to convey voters, on which issue Nos. 13 and 14 were framed by the Tribunal need no longer be considered.

The parties keenly fought before the Election Tribunal issues concerning the remaining two sub-heads, i.e., of corrupt practice, and the irregularities committed by counting officers, and these disputes have been continued before us. The complaint of the improper acceptance of the nomination paper of the 2nd respondent, was not so keenly pressed before us,, because the appellant''s learned advocate admitted that even assuming the case of the improper acceptance of the nomination paper be made out, it would not help unless it be established that the votes, which the concerned respondent polled would have been secured by his client. That proposition is well settled by Vashit Narain Sharma Vs. Dev Chandra and Others, where it has been held that improper acceptance is not to be regarded as fatal to the election, unless the Tribunal be of opinion that the result has been materially affected. The learned advocate did toot abandon the plea, and we would deal with it. Very broadly speaking, the case is that the nomination paper of the second respondent was improperly accepted, because he was not the voter, whose description in the Electoral Roll, Part XV, of Varkala Constituency, was serial No. 394, with house No. 5-171, Vayalil House, that being a person different to the second respondent. The appellant''s learned advocate has urged before us that the third respondent in his written statement to the election petition, supports the petitioner''s case about the probability of the votes obtained by the second respondent going to the appellant. But P. W. 29, who is the second respondent himself, in his cross-examination has admitted that it is not correct that if he had not stood as a candidate, the election petitioner would have got all the votes, which the witness had polled. It follows that the Election Tribunal has rightly held in this case that the result of the election was not shown to have been materially affected by the acceptance of the 2nd respondent''s nomination paper.

That leaves two heads of controversy between the patties. We will first deal with the complaint of corrupt practice, and then of the irregularities by the Returning Officer.

The complaint and the evidence in support of it are that:

(i) a systematic campaign on grounds of caste, community and religion was carried against the Communist Party by the leaders of political parties such as the Congress, Praja Socialist Party, and that:

(ii) pamphlets been printed and circulated at the instigation and with the consent of the first respondent, appealing to the religious feelings of the voters against the Communist Party as a whole.

Before deciding how far such a case been proved it would be of advantage to extract Section 123(2) and (3) of Act 1951, which reads as follows:

The following shall be deemed to be corrupt practices for the purposes of this Act;-

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(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:

Provided that:-

(a) Without prejudice to the generality of the provisions of this clause any such person as is referred to therein who-

(i) threatens any candidate, or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or community; or

(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;

(b) a declaration of public policy, or a promise of public action or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause.

(3) The systematic appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent, to vote or refrain from voting on grounds of caste, race, community or religion or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of that candidate''s election.

* * *

The evidence in support of the aforesaid case can best be dealt by being classified into two groups; the first of these comprising of oral evidence concerning speeches made at the election in contravention of the provisions quoted above, and the second consisting of evidence about the publication and the circulation of pamphlets appealing to the religious beliefs of the electors against the Communist Party. The appellant''s learned advocate has further urged that the speeches of some of the persons amount to exercise of undue influence as well u/s 123(2) inasmuch as some persons have described the Communist Party as the Fifth columnists, and has prejudiced the electors'' minds precluding from judging for themselves as to which of the person best deserved the votes being cast in his favor. We think it would be better when dealing with such oral appeals to the electorate to adjudicate as well whether they amount, assuming their having been made, to corrupt practices u/s 123(2) and (3) of the Act. Of such speeches the appellant''s learned advocate had insisted that those by Shri Morarji Desai, Finance Minister of India, and by Shri S. K. Patii, Central Food Minister amount to such practices. It follows that the conclusions of the Tribunal concerning the speeches by Shri Mannath Padmanabhan are not challenged and the finding that they were not directed against the communal and religious sentiments of the voters should stand. That leaves the speeches by the two Central Ministers and it is urged that there is credible evidence of P. Ws. 1 to 3 and 19 about Shri Morarji Desai stating at the election meeting at Vilabhagam that the Communists are non-believers and as such they should not be voted to power. It is argued that the evidence of P. W. 19 has been misread and the Tribunal has wrongly held the statement of P. W. 19 not to be credible. This witness has stated Shri Morarji Desai saying about the Communists being irreligious people with no faith in God and therefore it being unwise to vote for their candidates. The Tribunal has held that P. W. 19 has been contradicted by P. W. 1, who is the election petitioner, but the learned advocate has urged that there was no contradiction between the two because P. W. 1 has not said anything which is contrary to what P. W. 19 says. It is well known that this State is well served by newspapers; and it is to be expected that speeches of important persons, would be reported at least by the Press of the Party, whose candidates the speeches were meant to support. It further follows that had such a speech been made, the reports of its having been made were bound to appear in the newspapers. But no newspaper been produced containing any such speech and the absence of any complaint by the papers favorably disposed towards the appellant against such a speech further renders the oral depositions to prove the speeches not reliable. Therefore the depositions have rightly been discarded. That apart it is dear that such a speech cannot be treated to be hit by Section 123(2). In Ram Dial Vs. Sant Lal and Others, while drawing the distinction between undue influence vitiating election under the English law and that under Indian law, it has been stated:

There cannot be the least doubt that a religious leader has the light freely to express his opinion on the comparative merits of the contesting candidates and to canvass for such of them as he considers worthy of the confidence of the electors. In other words, the religious leader has a right to exercise his influence in favor of any particular candidate by voting for him and by canvassing votes of others for him. He has a right to express his opinion on the individual merits of the candidates. Such a course of conduct on his part, will only be a use of his great influence amongst a particular section of the voters in the constituency; but it will amount to an abuse of his great influence if the words he uses in a document, or utters in his speeches, leave no choice to the persons addressed by him, in the exercise of their electoral rights.

If the speech by a religious leader which leaves the choice to the electors would not amount to undue influence nor amount to corrupt practice as defined by Section 123(2) of the Act, a similar speech by a political leader cannot be differently treated. Obviously the speech complained against when fairly read contains do direction to the voters to select only those belonging to the United Front nor is the choice when those of the Communist Party are excluded limited as there were still two persons in the field who belonged to neither of the aforesaid parties. It follows that the complaint of the speech amounting to undue influence fails.

Nor can the speech be treated as covered by corrupt practice as defined by Section 123(3) of the Act. In this connection it will be useful to recall the distinction between the two sub-sections pointed out in Shubnath Deogram Vs. Ram Narain Prasad and Others, where Sarkar J. has described the difference in these words:-

But where, as we shall show later it happened in this case, this kind of appeal is made systematically to a large section of the electors, as when the leaflet is given a large circulation, it would, come within Section 123(3) of the Act. it would then be a corrupt practice of a systematic appeal on grounds of religion. It would seem clear that an appeal that it would be a religious act to vote in a certain manner would be an appeal on grounds of religion. If so, it seems equally clear that an appeal that a failure to vote in a certain manner would be against religion, would also be an appeal on grounds of religion.

It appears to us that the legal position under this sub-section as welt would not be different, where the speech be leaving the elector the choice; for, should appeals to twenty individuals by twenty persons having religious influence, but leaving the choice to the twenty electors would not amount to corrupt practice, the position cannot be different where one person addresses twenty persons in the same words. Moreover, the disapprobation of the anti-religious creed of a party would be like disapproval of the party" any other tenet and would hardly be appeal of not voting for its candidate on personal religion of the voters. We would refer in support to K.C. Sharma Vs. Krishi Pandit Rishab Kumar and Others, wherein it was held that an appeal made to religious-minded people generally, and not to the followers of a particular religion is not an appeal to vote on the ground of religion. The appellant''s learned advocate has, however, relied on Abdul Jalil v. Rathindranath ( A. I. R. 1958 Ass 51 at p, 56) where it has been stated as follows:

It appears to be abundantly clear that he asked for votes on the ground of community or religion and the corrupt practice as defined in Section 123(3) has been fully established....

These observations were made, where the appeals were to the personal religion of the voters, and, therefore, justified in that context. We think the intention of the Legislature in enacting Section 123(3) is to exclude appeals to vote or not to vote on the personal religion of the electors, and not to preclude criticism of anti-religious creed of a particular political party or a candidate. Therefore the speech complained against in this case has been rightly treated as not amounting to corrupt practice u/s 123(3) of the Act.

We next come to the speech attributed to Shri S. K. Patil, which he is stated to have made at Kadakkavoor, of which Ext. P. 2 is said to be a report. The speech consists mainly of criticism of the Communist Party, which has been described as a tree with its roots in Russia. The speaker is further reported to have said that the party has no love of the mother country and that when China attacked the country the members of the Party went about shouting "China Bhai". P. W. 20 is a person who had heard that speech. We think the respondent''s learned advocate is right in urging that such a speech cannot be treated as amounting to exercise of undue influence, because it does not prevent the elector from selecting whom he likes nor does it amount to a command to vote for a particular candidate. We further think that notwithstanding the distinction between the English and the Indian law on the rules concerning undue influence, the rule governing the freedom of speech under both law is the same, and the limit of the right is not transgressed where the electors will is still not controlled nor compelled to adopt a particular course. The fact of the speaker being holder of a public office would not deprive him of the right to speak out what he honestly believes. Also the speech would not amount to the corrupt practice of undue influence, where the speaker does not paralyze the free will or the reasonable and probable consequences of the speech is not to cause such a paralysis. We therefore hold that the allegations of corrupt practice through speeches are not established in the appeal.

We should now decide the complaint about the article published earlier by a Moulavi being reprinted, about this having been done at V. V. Press, Quilon, in form of a pamphlet, and about the pamphlets being circulated by and on behalf of the successful candidate for the general seat. In this connection, the relevant allegations are that Secretary of Esharul Haque Samajam got the article printed at the press and P. W. 22 and P. W. 26 were produced to prove the printing. A large number of witnesses have next been produced to prove the pamphlet being distributed at several places and such witnesses are P. Ws. 2, 3, 7, 14, 15, 18, 20 and 22. The appellant''s learned advocate has further complained that P. W. 19''s evidence had been misread by the lower court, when there is no contradiction between him and P. W. 1, and that the deposition of this witness been wrongly discarded. The learned advocate has further furnished us with the translation of the document which contains the following passage:

The Holy Koran has proclaimed thus: "Assist good conduct and discipline. You shall not assist enemies and sinful conduct." Prophet, (peace be with him) has proclaimed "if a man assists sinful conduct-even if it is by a part of his word-he becomes a partner of that sinful act". In the light of the above quotation from the Holy Koran and saying of Prophet it is evident that to give votes for the Communist Party candidate, to hold the flag on behalf of the Communist Party, to shout slogans and speak in public meetings, to give money for the party fund, albeit to give even waver to the Communist workers is sinful act and such persons will become like the Communists the objects of Divine anger of Allah.

We feel the aforesaid passage clearly amounts to an appeal not to vote on religious ground and the appellant would have a strong case had its circulation by or on behalf of the successful candidate been proved. Obviously the pamphlets being printed by or on behalf of the 1st respondent is not established and its being distributed by or on behalf of the respondent has next to be determined. In this connection it would be useful to recall the statutory requirement of Section 83 of the Representation of the People Act, which provides that an election petition should set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. That requirement is of importance not only because the opposite party gets particulars of what the case against him is and affords him ample opportunity of succeeding the case but the requirement also furnishes a fair safeguard against the case being embellished during the proceedings before the Election Tribunal. Now the election petition in the appeal before us contains no particulars about the places and date where the pamphlets been circulated and the omission is notwithstanding large number of witnesses who deposed to the distribution of the leaflets of whom the appellant''s election agent is one. Such an omission leads to the inference of this part of the case being subsequent embellishment and of the witnesses not being truthful. In any case, the charges of corrupt practice are complaint of quasi-criminal nature, and should be established like all criminal complaints. That has been held in Rulia Ram Vs. Multan Singh, , Muthiah Chettiar v. Ganesan ( A. I, R. 1960 Mad 85) and Badri Narain Singh and Others Vs. Kamdeo Prasad Singh and Another, . It follows that the benefit of doubts should be given to the person complained against, and in this case reasonable doubts about the evidence in support of this part of the case of corrupt practice does arise because of the omission in the election petition has made a number of other complaints that have not been substantiated, and for such a petition to omit details of the circulation does require explanation. But we have no explanation of how with such evidence the appellant failed to observe the legal rule, and in such circumstances the case of corrupt practice put forward by the witnesses cannot be held to be true. Indeed, the case fails on the ground of not being free from exaggeration and embellishment, and has been properly rejected by the Tribunal.

We next come to the irregularities attributed to the Returning Officer and certain facts in this part of the case are not disputed. One such fact is that the counting took place in the hall of the Varkala N. E. S. Block Office measuring 30'' x 16'', where there were 25 tables, each having one counting supervisor with two counting assistants, there being also present in the room about 15 to 20 agents. The next set is that the counting began in such a place from 8 A.M. on February 2nd, 1960, and finished at 10-30 A.M. on February 3rd, 1960, with one break for dinner at about 9 P.M. The third is that the Returning Officer refused to adjourn the counting and rejected appellant''s application D1 presented at 4-30 A.M. on February 3, 1960. The facts which are not admitted are that there was not proper supervision due to the Returning Officer sitting in the verandah of the building all the time, and his refusing to give the appellant some time to file a written application seeking recount after all the votes been counted and the officer was about to sign the final result. On the aforesaid admitted and other facts the several heads of irregularities on which recount by the Tribunal was claimed are that the place where the counting was being made was not sufficient; that counting was continuous with the result of the officer and agents being sleepy and unable to do the work properly; and that there was improper supervision with the refusal to give time to claim recount at the final stages.

Taking these seriatim we would deal first with the place where the counting was done. Apart from the Area there was in the room three rows of tables with one such row breadthwise, at which tables the counting staff of 75 persons worked, the agents of the contestants being also seated there. It was urged that under the aforesaid arrangement it would hardly be possible for the candidates or their agents or the counting staff to do the work properly. Yet it is not disputed that under Rule 53 of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1956, the officer has at least a week before notified to fix the place, at which the counting of votes would be done; and that no complaint had been about such a notice not being given and that the appellant had not objected about to the place being unfit for counting. It follows that there was the assent to the place being suited to the purpose. That the arrangement was adequately, is supported by no objection being taken till Exhibit 1 was filed. Even then the request was to adjourn the counting, and no objection was taken to that the room bring not fit a place, or to its otherwise impairing the proper counting of votes. Therefore this ground is not made out.

The next head is that the counting has been continuous, which exhausted the counting agents as well as the staff, and, having regard to the form for counting for the double member constituency, and the narrow margin of success the probability of mistake cannot be excluded. Now the facts are that there was no objection to the counting being continued till 9 p.m. on February 2, 1960, the complaint against the continuity came at 4-30 A.M. on February 3rd 1960 Ext. D. 1 does not allege any mistake having till then occurring. Because of the application and order rejecting it, the counting work was stopped and this took 2 hours, with the result that some respite had been given and when the work was resumed only six polling stations remained whose lumbers are given in the rejection order. There is no case of mistake having occurred in the subsequent stages. Moreover, in the; order rejecting the application it is stated that At about 8-45 P.M. On February 2nd 1960, the returning Officer asked the candidates including the appellant of their willingness to Continue counting till its completion, and nobody objected. It is also stated the order that till the application was made there was no request either by the appellant or by his election agent to adjourn on the ground that the staff were unable to attend then. There facts we feel rob the argument of all its force.

Nor is there anything in the system of the counting followed by the officer to lead us to a different conclusion. That System has been deposed to by him as P. W. 28 in these words:-

At the first round of counting the boxes are opened and the ballot papers are sorted, candidate-wise according to the first Votes cast in the ballot paper. These are arranged according to bundles of fifty for each candidate. There will also be doubtful bundles which also will be brought and another bundle of exhausted ballot paper i.e., paper in which only one vote was exercised. As each Polling Booth''s first round is finished the papers of that booth will be brought to me for checking. The doubtful bundle is first examined and if it is a case where the vote can be accepted it is added to the bundle of the concerned candidate. Those which cannot be accepted are rejected and the reasons are recorded on the ballot paper either by a rubber seal or by writing; The exhausted papers are also added to the concerned candidate and the ballot paper account is modified by a plus and minus entry. After the first round votes are counted and checked by me the second round will start for that table. The doubtful votes will come to me in a bundle and not individually. The counties agents can come to me and see the invalid votes. Nothing stands in the way.

It is obvious that with such a method being followed which is also according to the directions given to the Returning Officer, the supervision and direction of the officer over the counting would not be absent even though he be sitting in the verandah adjoining the counting room and the case is not that the aforesaid method was not being observed. In any event in the application at 4-30 A.M. on February 3, 1960, there is no complaint of a mistake having been till then committed, and had the position been otherwise such a complaint would have been made. Nor the application states that any ballot paper was laying on the ground. Nor the fact that another candidate of the appellant''s party has any complaint to make against the counting of votes in the same constituency strengthens the appellant''s case. Indeed, with the close fight between the several contestants their agents would be neither sleepy nor inclined to let any error be committed, which would jeopardize his candidate''s success. Further, had there been an error, a written prayer for recount would have been made under Rule 64 of the Representation of the People Rules 1956, before the Form No. 22 was signed and it is common ground that no such written request was made. The absence of such a request is explained by the refusal of the Returning Officer to give three minutes time in order to prepare written application and make it under Rule 64. But the Returning Officer denies any such request and we are inclined to accept his evidence when the probabilities are in P. W. 28 stating facts correctly. There is no case of any error having been committed after the application was rejected and as already mentioned there is no averment of any error in the application. Indeed, had there been any genuine grievance one would expect a written application being ready to be handed over soon after the result was made known. It was argued before us that the appellant''s being first name in the ballot paper the chances of error in counting his votes would be greater; but it is equally obvious that the fight between the two candidates for the General Seat being close, the appellant''s agent would not allow such a mistake being committed, nor omit to make it grounds of recount at the proper occasion. Therefore, we do not think sufficient grounds have been made out to interfere with the finding of reasonable ground being absent in the case and without such a ground recount should not be ordered. In Achutha Menon v. Election Tribunal, Trichur (1960 K.L.J. 1398) it was held that recount can be ordered only on grounds satisfactory to the Election Tribunal, and that view has been followed by our learned brother C. A. Vaidialingam in Kunju Raman v. Krishna Iyer & Another (1961 K.L.J. 16). The same view has been taken in Seshaiah v. Koti Reddi (1953 (3) E.L.R. 39) and R. Swaminatha Mercondor v. S. Ramalingam (1952(2) E.L.R. 51), which say that the charges should be definite and must be substantiated by reliable prima facie evidence. The same rule has been stated in M. Lakshumanayya and Others Vs. S. Rajam Ayyar and Others, . The evidence in support are of P. Ws. 1, 2, 3, 5 and 6, but against that is the circumstances narrated above and we find no sufficient ground to accept the evidence which have not been accepted by the Tribunal. It follows the ground to order recount also fails. Therefore this appeal fails and is dismissed with costs. Counsel fee Rs. 300/-.