Judgment

FAZAL ALI, J.:- This election appeal is directed against a judgment dated April 10, 1980 of the Patna High Court setting aside the election of the appellant mainly on the ground that he had been found guilty of indulging in corrupt practice in the election held on 10-6-77 to the Bihar Legislative Assembly from 241-Goh Assembly constituency. The result was announced on 16-6-77 in which Ram Sharan Yadav (appellant), a candidate sponsored by the Communist Party of India, was declared elected after polling 28,783 votes as against 16,458 votes polled by Thakur Muneshwar Nath Singh (the first respondent herein). An election petition was filed by the respondent in the High Court for setting aside the election of the appellant on the ground that he had indulged in corrupt practices as envisaged in S. 123(2) of the Representation of the People Act, 1951 (hereinafter referred to as the Act). The plea of the respondent found favour with the High Court which set aside the election of the appellant. Hence, this appeal to this court.

2. Several decisions of this Court have laid down various tests to determine a corrupt practice and the standard of proof required to establish such corrupt practices and it is not necessary for us to repeat the dictum laid down by this Court and the approach to be made in detail because the matter is no longer res intergra but is concluded by a large number of authorities. To quote a few recent ones : Daulat Ram Chauhan v. Anand Sharma (1984) 2 SCC 64 (at P. 73 para 18) Manmohan Kalia v. Shri Yash (1984) 3 SCC 499 (P. 502 para 7) A. Younus Kunju v. R. S. Unni (1984) 3 SCC 346 (P. 349) as also an earlier decision of this Court in Samant N. Balakrishna v. George Fernandez (1969) 3 SCR 603 (at Pp. 618-619).

3. The sum and substance of these decisions is that a charge of corrupt practice has to be proved by convincing evidence and not merely by preponderance of probabilities. As the charge of a corrupt practice is in the nature of a criminal charge, it is for the party who sets up the plea of undue influence to prove it to the hilt beyond reasonable doubt and the manner of proof should be the same as for an offence in a criminal case. This is more so because once it is proved to the satisfaction of a court that a candidate has been guilty of undue influence then he is likely to be disqualified for a period of six years or such other period as the authority concerned under S. 8A of the Act may think fit. Therefore, as the charge, if proved, entails a very heavy penalty in the form of disqualification, this Court has held that a very cautious approach must be made in order to prove the charge of undue influence levelled by the defeated candidate.

4. Another well settled principle is that before the allegation of undue influence can be proved, it must be shown that undue influence proceeds either from the candidate himself or through his agent or by any other person either with his consent or with the consent of his election agent so as to prevent or cloud the very exercise of any electoral right.

5. We have heard counsel for the parties at great length and have also gone through the very well-considered judgment of the High Court which has dwelt on various aspects of the matter and has held that the charge levelled by the respondent has been fully proved. Normally, this Court in appeal does not interfere on a finding of this type unless there are prima facie good grounds to show that the High Court has gravely erred, resulting in serious prejudice to the returned candidate.

6. The facts of the case lie within a very narrow compass and have been fully narrated in the judgment of the High Court and it is not necessary for us to repeat the same all over again. Even so, we would like to point out just a few clinching facts which fully fortify the conclusions of the High Court.

7. The main allegation against the appellant is that he had through his agents, supporters and other people, duly instructed by him, made an at