Judgment

ALAGIRISWAMI,J.:- I agree with the conclusions of our learned brother Krishna Iyer. But I think it necessary to say something on my own.

2. The appeal relates to the election to the Assam Legislative Assembly from Dhing constituency. The appellant was declared elected by a majority of l185 votes. The respondent filed an election petition making three charges of corrupt practices against the appellant. The learned Judge of the Gauhati High Court held that the Charges were made out and allowed the election petition. Hence this appeal.

3. The first charge was the offer of a bribe, to P.W, 12. The second charge was that the appellant was guilty of a corrupt practice under Section 123 (3) of canvassing for votes on the basis of his religion. The third charge was that he exercised undue influence by holding out the threat that the people who voted for the respondent would be identified and subjected to the same treatment as the people of Bangladesh by the Pakistanis.

4. Regarding the first charge all that is necessary to do is to refer to the evidence of P.Ws. 12 and 13 P.W 12 stated that the appellant offered him Rs. 2000 d he worked for him in the election in the two villages in which he happened to be a Mulla. P.W, 13 stated that the appellant told him that he had offered Rs. 2000 to P.W, 12 for helping him in the election campaign but that he had rejected the offer and therefore requested him (P.W. 13) to collect the money and make it over to P.W. 12 and prevail upon him to work for him (appellant). Clearly this does not fall under Section 123 (1). I consider it, therefore, unnecessary to discuss whether if money is paid or offered as consideration for votes promised to be secured by a person using his influence it is bribery or not. It is a good policy not to discuss in a judgment questions which do not arise out of the facts of the case.

5. As far as the second charge is concerned it is said that the appellant s mother was a Kachari , one of the tribes in Assam. But admittedly she was converted to Islam before she married the appellant s father. Some witnesses say that the appellant canvassed for votes claiming that he was a Hindu. Some others say that he claimed votes on the basis that his mother was a Kachari. All that is necessary to say about this part of the case is that apart from the fact that in a constituency where 80 per cent of the voters were Muslims it is not at all likely that the appellant would have canvassed the votes on any such basis, there is no doubt that the appellant being a Muslim he could not be said to have canvassed for votes on the basis of his religion, he not being a Hindu.

6. As regards the third charge, in spite of the three amendments made to the election petition material particulars were not given on the basis of which the evidence regarding this charge could have been admitted. I agree with the conclusions of my learned brother on the basis of the evidence which he has discussed that the case of undue influence is not satisfactorily established.

7. I agree that the appeal should be allowed and the election petition dismissed with costs.

KRISHNA IYER, J.: 8. (on behalf of himself and Sarkaria, J.) In the current Indian socio-geographic context with its delightfully and distressingly diverse, traditional and complex humanity, we have to appreciate the three grounds of corrupt practice levelled through this election appeal against the Congress candidate who secured a lead of l185 votes but was allegedly guilty of several malpractices at the polls of which three have found favour with the High Court and have been challenged before us. Briefly, they are :

(a)that the petitioner offered Rs. 2,000/- to one Jabbar Munshi (PW 12) to collect votes for him which this righteous soul spurned and therefore the proffered payment did not materialise although the corrupt practice under S. 123 (1) was nevertheless committed;

(b) the petitioner, of the same Islamic faith as his opponent though, canvassed vote