Bachan Singh vs Prithvi Singh - 1975 Supreme(SC) 45

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1975 Supreme(SC) 45

SUPREME COURT OF INDIA
A. ALAGIRISWAMI AND R.S. SARKARIA, JJ.
Bachan Singh and another, Appellants
Versus
Prithvi Singh and others, Respondents.
Civil Appeal No. 186 of 1973, D/- 5-2-1 975.
Advocates appeared
M/s. Kapil Sibal. N. D. Bhargava and S. K. Gambhir, Advocates, for Appellants; Mr. S. N. Marwah, Sr. Advocate (Miss Lalita Kohli and M/s. K. C. Dua and Naunitlal, Advocates with him), for Respondent No. 1.

Advocates:
K.C.DUA, KAPIL SIBAL, LALITA KOHLI, N.D.BHARGAV, NAUNIT LAL, S.K.Gambhir, S.N.MARVAH

Headnote:“undue influence” — definition - publication of posters bearing photographs of prime minister and central ministers below congress symbol — whether amount to undue influence
       – doubtless the definition of “undue influence” in sub-section (2) of Section 123 is couched in very wide terms, and on first flush seems to cover every conceivable act which directly or indirectly interferes or attempts or attempts to interfere with the free exercise of electoral right. In one sense even election propaganda carries on vigorously, blaringly and systematically through charismatic leaders or through various media in favour of a candidate by recounting the glories and achievements of that candidate or his political party in administrative or political field, does meddle with and mound the independent volition of electors, having poor reason and little education, in the exercise of their franchise. That such a wide constructio would not be in consonance with the intedment of the legislature is discernible from proviso to this clause. The proviso illustrates that ordinary interference with the free exercise of electoral right involves either violence or threat of injury of any kind to any candidate or an elector or inducement or attempt to induce a candidate or elector to believe that he will become an object of divine displeasure or spirit censure. The prefix “undue” indicates that there must be some abuse of influence. “Undue influence” is unsed in central distinction to “proper influence”. Construed in the light of the proviso, clause (2) of Section 123 does not bar or penalise legitimate canvassing or appeals to reason and judgment of voters or other lawful means of persuading voters to vote or not to vote for a candidate. Indeed such proper and peaceful persuasion is the motive force of our democratic process, as held in Bachan Singh v. Prithvi Singh, AIR 1975 SC 926; see also decision in Asad Lal v. Kanshi Ram, AIR 1980 SC 1358. See decision in N.C. Zeliang v. Aju Newmari, AIR 1981 SC 8. As held in the case of Janak Sinha v. Mahant Ram Kishore Das, AIR 1972 SC 357, when a voter is prevented from exercising is vote by the supporters of the appellant and in his presence and without any attempt made by the latter to stop his supporters from doing so, it amounts to direct interference with the free exercise of electoral right and so held that the appellant has committed the corrupt practice of undue influence under Section 123(2), it follows that it must be held that his election has to be set aside on this ground. As held in N.E. Horo v. Jahan Ara Jaipal Singh, AIR 1972 SC 1840, the essential ingredient of the provision under Section 123(7) is to obtain, procure etc. by a candidate of any assistance (other than the giving of a vote) for the furtherance of the prospects of that candidate’s election from any person in service of the Government and belonging to the classes mentioned in the sub-section. See also decision in Narbada Prasad v. Chhaganlal , AIR 1969 SC 395.
       As held in the case of Baburao Patel v. Dr. Zakir Hussain, AIR 1968 SC 904, any voluntary action which interferes with or attempts to interfere with such free exercise of electoral right would interferes with or atttempts to interfer with such free exercise of elecotral right would amount to “undue influence”. The definition of undue influence is wider in the Representation of People’s Act.

       – see decision in Bachan Singh v. Prithvi Singh, AIR 1975 SC 926. The Supreme Court was unable to appreciate how the publication of such posters interfered or was calculated to interfere with the free exercise of the electoral right of any person. There was nothing in it which amounted to threat of injury or undue inducement of the kind inhibited by Section 123(2) nor could the publication of such posters fall within the ambit of Section 123(7).

Judgment

SARKARIA, J.: - Prithvi Singh Azad (thereinafter referred to as the returned candidate), Bachan Singh, Naurang Singh and Lachchman Singh contested the election to Punjab Vidhan Sabha from the Khanna (Reserved) Assembly constituency. Azad was the nominee of the Congress Party and Bachan Singh of the Akali Dal.

2. The poll was held on March 11, 1972. On March 12, 1972, Azad was declared elected. He secured 25984 votes, whereas Bachan Singh appellant No. 1 polled 24,865 votes. The other two forfeited their securities.

3. On April 26, 1972, Bachan Singh, the unsuccessful candidate and one elector, Harcharan Singh, jointly filed an election petition under the Representation of the People Act, 1951 challenging the election of the returned candidate on several grounds. In the event of Azad s election being set aside, Bachan Singh claimed a further declaration under Section 101 of the Act of his own election.

4. The petition was dismissed by the High Court. Hence this appeal by the petitioners.

5. Before us only two grounds have been pressed into argument by Mr. Kapil Sibal, learned Counsel for the appellants.

6. Firstly, it is contended that the returned candidate had obtained the assistance of one Lance Naik Gurdev Singh, a member of the Armed Forces of the Union, in his election and was thus guilty of committing the corrupt practice defined in S. 123 (7).

7. In this connection, the petitioner tried to establish two facts: (a) that Lance Naik Gurdev Singh was appointed as his polling agent by the returned candidate and the former acted as such at the polling station Rahon Majra; (b) that the Lance Naik actually canvassed for votes in the company of the returned candidate. In regard to the first fact, the petitioners relied upon the statement of L/N Gurdev Singh, who was examined as C. W. 1 and the certified copy Ex. P. W. 30/4, of the Polling Agents Form Regarding the second fact, they examined P. W. 6 Subedar Bachan Singh, P. W. 7 Bant Singh, P.W. 8 Bhagat Singh, P. W. 9 Rulda Singh, P.W. 10 Sadhu Singh, P. W. 11 Bachan Singh, P. W. 12 Arjan Singh, P. W. 13 Harcharan Singh. They also sought support from the statement of C. W. 1.

8. On both these points, the learned Judge of the High Court found against the petitioners. In his opinion, the person who had been appointed as his polling agent by the returned candidate was another Gurdev Singh (RW-2) and not L/N Gurdev Singh (C. W. 1). He further held that the oral evidence adduced by the petitioners to substantiate the allegation of canvassing by the Lance Naik in association with the returned candidate, was of a partisan character, and in the absence of corroboration from any independent source , could not be accepted.

9. Mr. Sibal contends that the High Court grievously erred in holding that it was R.W. 2 and not C.W. 1 who had been appointed as his polling agent by the Respondent. According to the Counsel, there are clinching circumstances in this case which show that it was Lance Naik Gurdev Singh who had been appointed and acted as the polling agent of the Respondent: that the certified copy, Ex. P.W. 30/1 obtained by the petitioner was a true copy of the original Form. R.W. 2, it is submitted, is an impostor and the Polling Agents Form P.W. 30/4, was a false and fabricated document. Once it is held, proceeds the argument, that L/N Gurdev Singh (C.W. 1) had acted as the Polling Agent of the Respondent, that would lend assurance to and probabilise the account given by P.Ws. 9 to 14.

10. The contention cannot be accepted.

11. Firstly, we do not think that the finding of the High Court that R. W. 2-and not C.W. 1 - was the Polling Agent of the Respondent, can be said to be palpably wrong necessitating a reappraisal of the evidence by this Court Secondly, even on the assumption that L/N Gurdev Singh C.W. 1, was the person who had been appointed as the polling agent, the evidence on the record was not sufficiently clinching to bring home the charge to the Respondent.

12. L/N Gurdev Sing

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