Judgment

BHARGAVA, J.: This appeal under section l16-A of the Representation of the People Act, 1951 (hereinafter referred to as "the Act") has been filed by Bishwanath Rai whose election to the Legislative Assembly of Bihar from the Ramgarh Assembly Constituency No. 219 in the mid-term elections held in February, 1969, has been set aside on the ground of commission of corrupt practices. The Election Commission issued the notification calling for election on the 1st January, 1969. The last date for filing nomination papers was 8th January, 1969, the date of scrutiny was 9th January, 1969, and the date of withdrawal of nomination papers was 11th January, 1969. Polling took place on the 9th February, 1969 followed by the counting of the ballot papers and declaration of the result on 11th February, 1969. Nine candidates, including the appellant, and the respondent Sachhidanand Singh who filed the election petition, filed their nomination papers. One candidate withdrew his candidature on the 11th January, 1969. On counting of ballot papers, the appellant was found to have received 21,143 votes, while the respondent-election-petitioner received 19,356 votes. The remaining candidates got very few votes ranging between 7 and 494. The election of the appellant was challenged by the respondent on various grounds, of which we need mention only two grounds which have been accepted by the High Court of Patna and on the basis of which the election of the appellant has been set aside. These grounds relate to commission of the corrupt practices, of undue influence under Section 123 (2) and of making appeal on the ground of caste under Sec. 123 (3) of the Act.

2. The pleading in respect of the first ground of undue influence, which has been found against the appellant, relates to the incidents in two villages, Dumduma and Mukhraon. In the election petition, there was a general pleading that the appellant managed to use force in order to check the workers and innocent voters, who were supporting the candidature of the respondent, from going to the villages and the polling stations to canvass and cast their votes and he further managed to get bogus votes polled in his favour in place of those voters as well as other voters. It was further pleaded that the appellant, through his agents and workers, did not even allow the respondent and his voters and workers to move and meet other voters in several villages by using force, lathi, dhola and gherao, etc. and, in this way, the appellant, his workers and agents, with the consent of the appellant, not only terrorised the voters and workers of the respondent, but also restrained them from canvassing, working for the respondent, securing votes for him, or voting for him. In the particulars forming part of Schedule 2, this corrupt practice was alleged to have been committed in three villages, Kurhani, Dumduma and Mukhraon. However, no evidence was led during the trial in respect of village Kurhani. Evidence was led to the effect that the appellant and his workers with his consent restrained the workers of the respondent from proceeding to do canvassing in village Dumduma on 30th January, 1969 and, for that purpose, surrounded them, threatened them with lathis, and threw brickbats at them. Evidence was further led that on 31st January, 1969, the workers of the appellant with his consent restrained and prevented the workers of the respondent from entering village Mukhraon for the purpose of canvassing in that village and threw brickbats at them. These are the two charges which have been held proved by the High Court against the appellant. These charges, according to the High Court, constitute the corrupt practice of undue influence committed by, or with the consent of, the appellant, so that the commission of this corrupt practice is one of the grounds on which the election of the appellant has been set aside.

3. The second ground of appeal on the ground of caste is based on the allegation that the appellant