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SUPREME COURT OF INDIA
A.N.Ray : C.A.Vaidialingam
Nepal Chandra Roy
Versus
Netai Chandra Das
Case No. : 1248 of 1970
Date of Decision : 7/19/71
Representation of the People Act, 1951 – Sections 116, 123 – Election Petition – Corrupt Practices – Appeal under S. 116-A of Representation of the People Act, 1951 is from the order and judgment, of the Calcutta High court in election petition No. 1 of 1969, setting aside the election of the appellant from the 130-Jorabagan Assembly Constituency after declaring the same void. – Held, Court have already referred to the observations of the learned Judge that most of the witnesses called by the election petitioner were not only partisan and tutored but also reckless and without any respect for the oath they had taken in the witness box. – For instance in discussing the question whether the appellant had an election office at No. 5, Jadulal Malik Road and where the posters Ens. A and C were printed and circulated, the learned Judge was prepared to accept the evidence of one Gajju, who has been characterised by the court as a despicable character and anti-social element. – Court was prepared to believe the evidence of one Deo Narain Chawdhary, an employee of the Official Receiver, in whose incharge the press was at the relevant time, notwithstanding the fact that the witness admitted that Gajju was a rowdy element and a dangerous character and that he was terribly afraid of Gajju. – Regarding another witness of the election petitioner, namely, witness No. 3, the court has observed that it had considerable doubt whether the appellant would have taken witness into his confidence to the extent claimed by the latter as he was an incorrigible supporter of the third respondent – Judge was not justified in acting on such evidence and setting aside the election of the appellant. – Finding of Judge with reference to the allegations contained in sub-paragraphs (J), (k), (1) and (m) of Paragraph 7 of the election petition cannot be sustained, and we accordingly hold that the appellant is not guilty of any corrupt practice. – There is no allegation that the appellant made any statement reasonably calculated to prejudice the prospects of the third respondent in the election. – There is no evidence let in this regard. – Judge has also not considered at all this aspect and given a finding one way or the other. – Court is referring to this aspect because under S. 123(4) of the Act this is one of the essential ingredients to be established. – In this respect also the judgment of the learned Judge suffers from a serious defect. – Election Petition Dismissed
Vaidialingam, J
(1) THIS appeal under S. 116-A of the Representation of the People Act, 1951 (hereinafter to be referred as the-Act) is from the order and judgment, dated 25/03/1970, of the Calcutta High court in election petition No. 1 of 1969, setting aside the election of the appellant from the 130-Jorabagan Assembly Constituency after declaring the same void. After hearing arguments in the appeal, we passed on February 9, 1971, the following order :
"THE appellant was a successful candidate in the mid-term election held in 1969 tor theJorabagan Assembly constituency. The first respondent herein filed election petition case No. 1 of 1969, in the High court of Calcutta for setting aside the election of the appellant on various grounds. But it is seen that at the stage of final arguments, the first respondents counsel gave up all allegations in the petition except those in Paragraphs 7(b)(1) and (2), 7(c) and (J), (k),(l) and(m). The learned Judge in his judgment under attack has held that the first respondent has not succeeded in proving the allegations made in Paragraphs 7(b)(1) and (2) and (c).
THE learned Judge, however, held that the appellant is guilty of corrupt practices alleged in sub-paragraphs (J), (k), (1) and (m)of Paragragh 7 of the election petition. On the basis of this finding, the learned Judge declared the election of the appellant void and set aside the same.
WE have heard learned counsel on both the sides and we have also been taken through the judgment of the learned Judge as well as the material, oral and documentary, bearing on the points arising for decision in this appeal.
WE are not inclined to agree with the view of the learned Judge that the appellant is guilty of the corrupt practices found against him and referred to above. In our opinion, the appellant is not guilty of any corrupt practice. The judgment of the learned Judge is hereby set aside and the appeal allowed. The reasons for this order will be given in due course. Suitable directions regarding costs will be given along with the reasons." We proceed to give our reasons for our decision.
(2) IN the mid-term elections held on 9/02/1969, the appellant Nepal Chandra Roy was the Congress candidate for election to the Legislative Assembly from 130-Jorabagan Assembly constituency situated in the State of West Bengal. The third respondent Har Prasad Chatterjee, contested the election as the candidate of the Communist Party of India (Marxist). Respondents Nos. 2 and 4 were also candidates in the said election. Both of them were defeated and we are not concerned with them in these proceedings. "The poll respondent got 28,315. As the appellant received 1,066 more than the next contesting candidate, namely, the third respondent, the appellant was duly declared elected. The first respondent Netai Das as an elector of the 130-Jorabagan Assembly constituency, Calcutta, filed on 24/03/1969, election petition No. I of 1969, challenging the election of the appellant on various grounds. He alleged that the appellant was guilty of various acts of corrupt practice. Such allegations were made by him in Paragraph 7, sub-paragraphs (a) to (c) as well as Paragraphs 8, 12 and 15 of the election petition. The first respondent prayed for setting aside the election of the appellant after declaring it void. He also prayed for a declaration that the third respondent has been duly elected in the said election to the West Bengal Legislative Assembly. Though the election petitioner alleged in the election petition various acts of corrupt practice, yet during the trial and at the final stage of hearing of the election petition he gave up several of these allegations. Ultimately he pressed for the relief only on the basis of the allegations made inparagraphs 7(b) (1) and (2), 7(c), 7(j), 7(A), 7{l) and 7(m). The appellant contested the allegations made by the election petitioner. The material allegations of corrupt practice as well
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