RAM SHARAN YADAVversusTHAKUR MUNESHWAR NATH SINGH AND ORS.

                                                                          tos~

                                                                                    A

                        RAM SHARAN YADAV
                                      v.
      THAKUR MUNESHWAR NATH SINGH AND ORS.
                                                                                    B
                              October 30, 1984

       [S. MURTAZA FAZAL ALI AND SABYASACHI MUKHARJ!, JJ.)

        Representation of the People Act, 1951, Section 123 (2)-Corrupt
Practice a.,d undue influence in election law. standard of proof required-
lnterference by Supreme Court under Article J 36 of the Constitutioni in election   c
cave, when permissible and wh·:n benefit of doubt can be given.

       Ram Sharan Yadav, the appellant and a candidate sp()nsored by the
Commuaist Party of ladia, w.ts declared olected on 16.6.1977, to the
 Bihar LegislatiTe Assembly from 241-Goh Assembly constituency, after
polling 28,783 votes as against 16,458 votes polled by respondent No. 1
~ bakur l\.1uneshwar Nath Singh. An election petition was filed by the
                                                                                    D
respondent No. 1 in the High Coort for setting aside the election of the
appellant o:i tbe ground that b" had indulged in corrupt practices as
envisaged io sec. 123(2) of the Representation of the People Act. 1951.
It was alleged that che appellant through his agents, supporters and other
people, duly instructed by him made an attempt to set at naught the
electoral process by putting the voters in serious fear as they were threa.
teaed, assaulted and even firing was resorted to. The High Court found 1hat         E
the said acts which undoubtedly amount to undue influence bad been corn-
mitted not only- at the instance but in the presence of the appellant and
therefore allowed the petition and set aside the election of the people.
Hence the appeal by Special Leave of the Court.

       Dismissing the appeal, the Court
                                                                                    F
       HELD: 1 :1. A charge of corrupt practice bas to be proved by
c~nvincing evjdence and not' merely by preponderance of probabilities.
As the charge of corrupt practice is in the nature or 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           G
undue infiuence then be is likely to be disqualified for a period of 6 years
or such other period as the authority concernr.d under section SA of the
Act may think fit. Therefore, as the charge, if proved, entails a very
heavy penalty in the form of disqualification the Supreme Court has beld
that a very cautious approach must be made in order to prove the charge
 of undue influence levelled b1 the defeated candidate. [1092C-E)

       I : 2.   Another well settled principle is that before the allegation        H
    1090                  SUPREME couRt RBPORtS                     f!985} 1 S.C.R.
A    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 bis consent or with the consent of his elction agent
     so as to prevent or cloud the very exercise of any electoral right. L1092F]

            I : 3. Where a11egations of fraud or undue influence are made
     while insisting on standard of strict proof, the Court should not extend or
B    stretch the doctrine to such an extent to make it well-nigh impossible to
     prove an allegation of corrupt practice. Such an approach would defeat
     and frustrate the very ,laudable and sacrosanct object of the Act ia main-
     taining purity of the electoral process. [l093F]
                                                                                       (,

            1 : 4. By and large, the Court io such cases while appreciating or
    analysing the evidence must be ~uided by 1the following considerations:[l093G]
c
           (1)   the nature, character,   respectability and credibility    of tbe
                 evidence; [1093H)

           (2) the surrounding circumstances and the improbablities appearing
               in the case ; [1093H)

D          (3)   the slowness of the appellate court to disturb a finding of fact
                 arrived at by the trial court who had the initial advantage of
                 observin1 the behavior. character and derneanor of the witnesses
                 appearing before it, and [l094A)

           (4) the totality of the effect of the entire evidence which leaves
               a lasting impression regarding the corrupt practices aUeged.
E                                                                        [1094B)
            1:5. There is no ritualistic formula nor a cut-and-dried test to
     lay down as to how a charge of undue influence can be proved but if all
     the circumstances taken together lead to the irresistible inference that the
     voters were pressurised, threatened or assaulted at the instance of either
     the candidate or his supporters or agents with his consent or with his
F    agents consent that should be sufficient to vitiate the election of the return~
     ed caodidate. The state of evidence in the present case, is both complete and
     conclusive. All the witnesses who appeared to prove the allegation of
     undue influence have in one voice categorically stated that voters werC
     threatened, assaulted and even a bo.:nb was hurled so that they may not
     cast their vOtes. The witnesses have also said that all this was done in
     the presence of the appellant. [1093D-E ; 1094C-D)
G
            1:6. The plea of alibi, to the effect that the appellant did not go
     to the polling booth cannol be accepted, inasmuch as (a) such a plea was
     not taken in the written statement and \b) such a self imposed restriction
     not to leave the village and find out what wa.s happening in his constituency
     is both unnatural and improbable. A close scrutiny of the evidence makes
     it clear that the appeJlant was undoubtedly present at the Bburkunda
     Polling booth at the tixne when the voters were going to cast their votes
H    and bis agents or supporters indulged in acts of assault, hurling of bombs
             R. s. YADAV v. t. M:. N. SINGH (Fazal Au J.)               1091
etc. in his presence and he did not stop them from doing so from which          A
a conclusive inference can be drawn that the acts of assault, aroscn, etc.
were committed with the positive knowledge and consent of thr. party him-
self or his agent.;. Clearly it is not a case where two views were possible
so that the appellant could be, given the benefit of doubt.
                                                  (1096A·B, 1097A-B, 1098B]

      Dau/at Ram Chau\an v. Anand Sharma [1984] 2 S.C.C. 64, (p, 73 para        I!
18); Manmohan Kalia v. Yash and Ors. (1984] 3 S.C.C. 499 (p. 502 para 7);
A. Younus Kunju v. R. S. Unni ond Ors. [1984] 3 S.C.C, 346 (p. 349) ; and
Sarnant N. Balakrishna etc. v. George Fernandez and Ors. [1969] 3 S.C.R.
603 (pp. 618-619); followed.

        2. Normally, the Supreme Court in appeal does not interfere on a
finding of this type unless there are prima facie good grounds to show,
                                                                                c
 that the High Court bas gravely erred, resulting in serious prejudice to the
.1eturned candidate. [1092H; 1093A]

     CJVIL APPELLATE JURISDICTION               Civil   Appeal    No. 893
of 1980.
                                                                                D
     From the Judgment and Order dated the 10th April, 1980 of
the Patna High Court iu Election Petition No. 20 of 1977.
      R.K. Garg and V.J. Francis for the Appellant.

      L.R. Singh and A. Sharan for the Respondent.
                                                                                E
      The Judgment of the Court was delivered by
       FAZAL Au, J. The •lection appeal is directed against~ judg-
 ment dated April 10, 1980 of the Patna High Court setting aside
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             F
the Bihar Legislative Assembly from '241-Goh Assembly consti-
tuency'.    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 16,453 votes polled by Thakur Muneshwar Nath Singh (the
first respandent herein). An election petition was filed by the
respondent in the High Court for setting aside the election of the              G
ap:iellent 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 respon-
dent found with the High Court which set aside the election of the
appellant. Hence, this appeal to this Court.
     Serveral decisions of this Court have-laid down various tests              H
                     SWPREME COURT R~l>ORTil             lt985J 1 s.C.R.
A   to determine a corrupt practice and the standard of proof required
    to establish snch 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 integra and is
    concluded by a large number of authorities. To quote a few recent
    ones : Dau/at Ram Chauhan v. Anand Sharma,(') Manmohan Katia
B
    v. Yash &i Ors.,(') A. Younus Kunju v. R.S. Unni and Ors.(') as also
    an earlier decision of this Court in Samant N. Balakrishna etc. v.
    George Fernandez and Ors. etc.(')

           The sum and substance of these decisions is that a charge of
c    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 criminal charge, it is for the party
     who sets up the plea of 'undne influence' to prove it to the hilt"
    beyond reasonable donbt and the manner of proof should be the
    same as for an offence in a criminal case. This is more so because
D   once it is proved to the satisfaction of a court that a candidate has
    been guilty of 'undue influence' than he is likely to be disqualified
    for a period of six years or such other period as the authority con-
    cerned under s. SA 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
E   must be made in order to prove the charge of undue influence
    lavelled by the defeated candidate.

          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 c:andidate himself or through
F   his agent or by any other perrnn 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.

          We have heard counsel for the parties at great length and have
    also gone through the very well-considered judgment of the High
G   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

       (1)   [1984] 2 S.C.C. 64 (p, 73 para 18).
       (2)   [1984] 3 S.C.C. 499 (p. 502 para 7).
       (3)   [1984] 3 s.c.c. 346 (p. 349).
H      (4)   [1969] 3 SCR 603 (pp. 618°619).
                R. s. YADAV v. T. M. N, SINGH (Fazal Ali J.)        1093
    this type unless there are prima facie good grounds to show that the    A
    High Court has gravely erred, resulting in serious prejudice to the
     returned candidate.

           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,     B
    we would like .to point out just a few clinching facts which fully


-   fortify the conclusions of the High Court.

           The main allegation against the appellant is that he had
    through his agents, supporters and other people, duly instructed by
                                                                            c
    him, made an attempt to set at naught the electoral process by
    putting the voters in serious fear as they were threatened, assaulted
    and even firing was resorted to. On the finding of the High Court,
    it is further proved that the acts mentioned above, which undoub-
    tedly amount to 'undue influence', had been committed not only at
    the instance but in the presence of the appellant. There is no          D
    ritualistic formula nor a cut-and-dried test to lay down as to how
    a charge of undue influence can .be proved but if all the circum-
    stances taken together lead to the irresistible inference that the
    voters were pressurised, theatened or ·assaulted at the instance of
    either the candidate or his supporters or agents with his consent or
    with his agents' consent that should be sufficient to vitiate the
    election of the returned candidate.                                     E

           We would, however, like to add a word of caution regarding
    the nature of approach to be made in cases where allegations of
    fraud or undue influence are made. While insisting on standard
    of strict proof, the Court should not extend or stretch this doctrine
    to such an extreme extent as to make it well-nigh impossible to prove   F
    an allegation on corrupt practice. Such an approach would defeat
    and frustrate the very laudable and sacrosanct object of the Act in
     maintaining purity of the electoral process.

          By .and larg~, the Court in such cases while appreciating
    or analysmg the evidence must be guided by the following considera-     G
    tions:

          (I) the nature, character, respectability ~d credibility of
              the evidence,

          (2) the surrounding oircumstancos and the impraobilities
              appearing in the case,                                        H
           1094             SUPREME COURT REPORTS                (1985) I S.C.R.
    A
                  (3) the slowness of the appellate court to distmb a finding
                      of fact arrived at by the trial court who had the initial
                      advantage of observing the behaviour, character and
                      demeanor of the witnesses appearing before it, and
                  (4) the totality of the effect of the entire evidence which
    ll                leaves a lasting impression regarding the corrupt prac-
                      tices alleged.

                More than this we would not like to say anything at this
          stage. We have already pointed out that the learned High Court
          Judge has very carefully marshalled the evidence and in doing so
c         has faithfully followed the aforesaid principles enunciated by us.

                 The state of evidence in the ,present case appears to be both
          complete and conclusive. All the witnesses who appeared to proved
           the allegation of undue influence have in one voice categorically state
D         that the voters were threatened, assaulted and even a bomb was
          hurled so· that they may not cast their votes. The witnesses have
          also said that all this was done in the presence of the appellant. In
          rebuttal, the appellant has produced himself and two witnesses to
          support his case that he did not indulge in any corrupt practice.
          Tn other words, his evidence is just a bare denial of the allegations
E         made against him. The High Court has very thoroughly scanned
          and weighed the evidence and pointed out that the respondent has
          produced independent witnesses to show that undue influence was
          practised with the direct connivance of the appellant.

                  Without, therefore, going into further details we would just
F          indicate the dominant features of the findings of the High Court with
           which we entirely agree. The evidence led by the respondent con·
           sists mainly of PWs 1, 27, 32, 35, 39 and 41. Out of these witnesses,
           PWs 27, 32, 35, 39 and 41 are independent voters, not belonging to
           any party. Their evidence stands corroborated by the PIR lodged
          in the police station soon after the occurrence as a result of which
          the police reached the spot of occurrence and found that there
G         was a lot of trouble in the Bhurkunda booth where the voters were
          pressurised and intimidated. As a sample, PW-39 (Kamta Prasad
          Singh), who was a voter in the aforesaid election, has stated that
          he bad gone to cast bis vote at about 11.30 a.m. and was standing
          in the queue alongwith 20-25 other voters. He further testifies
         that he saw the respondent at the booth and that be also knew the
         appellant (Ram Sharan Yadav). He goes on to narrate that he
         s11w 011e R,am J,'rase4 yadav of ~brahimpur at tb,e booth; t!\e

                                                         '
                   R. s. YADAV v. T. M. N. SINGH (Fazal Ali J.)             1095

      appellant appeared on the scene and asked Ram Prasad Yadav as                 A
      to how the polling was going on, to which be was informed that
      the polling did not appear to be favourable to him: Thereupon,
      the appellant ordered Ram Prasad Yadav to capture the booth and
      after giving this instruction be left the place. It is clear from the
      evidence of this independent witness that the threatening and
      obstructing of the voters was done at the orders of the appellant             B
      himself which amply proves the allegation of undue influence. The
...   witness goes on to state that after the appellant had left the place,
      about 300-400 men of the appellant surrounded the booth and
      removed the voters, including the witness, from the queue and
      therefore they could not cast their votes. Among the persons who
      had acted in such a fashion, the witness identified, Babu Chand,
                                                                                    c
      Ram C)landra Mahto, Bisheshwar Yadav, Ram Prasad Yadav and .
      Surajdeo Yadav. In cross-examination, the witness clarified that
      he made an oral complaint to the Presiding Officer that he was not
      allowed to cast vote and a written complaint was given by the
      sarpanch of the village. He could not inform the respondent because          D
      be was himself surrounded by the mob.
             After perusing his evidence, it seems that the witness (PW 39)
       has given a very starightforward evidence which bears a ring of
      truth and does not appear to have been shaken in cross-examination
      on any vital point. The witness being an independent voter had                E
       no axe to grind against the appellant and there is no reason why he
      should have come forward to depose falsely. Similar is the· evidence
      of PWs 27, 32 and 35 which has been fully scanned and considered
      by the High Court. Another independent witness, PW 41, has
      also fully corroborated the evidence of other independent witnesses
      indicated above. To the same effect is the evidence of PW 62,                 F
      Ramdeo Singh, who has also stated that he was informed that men
      of Ram Skaran. Yadav had snatched away the ballot papers and
      torn them and created all sorts of disturbance. He further stated
      that Mnkhlal Singh, Advocate, who was the polling agent of Ram
      Sharan Yada v, h3d led the mob of miscreants at the booth. Similar
      is the evidence of other witnesses who have not been in any way              G
      broken of shattered in cross-examination. The High Court has
      rightly . pointed out that the FIR clearly gives the details of the
      incidents soon after they had happened.

            As against the overwhelming evidence adduced by the respon-
      dent, the evidence of Ram Sharan Yadav (appellant) . himself is one
      of a plea of alibi who stated that he did not go· to Bhurkunda
                                                                        .
      polling booth at &II aQ<l that on the date of poll l\e was at )lis village
                                                                              .
                                                                                   ll
     1096                  SUPREME COURT REPoRTS              [1985) l S.C,R.
A     Haspura in his party's election office. lt is difficult to believe that
      being a candidate himself why did he choose to impose a self-mad
     restriction not to leave the village and find out what was happenin;
     in his constituency. Such a conduct is both unnatural and impro-
     bable and speaks volumes against the defence of the appellant. It
     is interesting to note that this plea of alibi, viz., that he did not
B
     go to the polling booth was not taken in his written statement. He
     seems to have given a very lame explanation for his absence from
     the polling booths end the High Court has rightly pointed out thal
     this is an afterthought. In this connection, the High Court observed       •
     thus:
c
                  "I am, therefore, of the poinion, that the aforesaid
             alibi has been invented by respondent No. 6 for the first
            time when he came in the witness box with a view to con-
            trovert the evidence adduced on behalf of the petitioner that
            on the date of poll he had gone to Bhurkunda Booth at
D           about 11.30 a.m ...... In his cross-examination he has plead-
            ed ignorance if his workers had surrounded the petitioner
            on thc;,_date of . poll at B~urkund~ ~ooth, and he has
            further pleaded ignorance 1f any cnmmal case concerning
            the incident at the Bhurkunda Booth was instituted by
            Shri Ramesh Chandra Raman, the Magistrate-in-charge
            of the striking force, or if any weapon like Iathi, grasa, ·
E           etc. was recovered from the arrested persons at Bhurkunda
            Booth."
          Having regard to his evidence, the High Court concludes as
    follows :
F             "In view of the overwhelming evidence adduced on
         behalf of the petitioner, which I have already discussed
         above, I am also not prepared to place any reliance on the
         aforesaid feigned ignorance of respondent No. 6."

          As regards the evidence of Kailash Yadav (R W 12), he has
G   merely stated that when he reached the Bhurkunda booth at 11.30
    a.m. he found the poll to be peaceful. In order to explain away
    the exact happenings at the said booth he stated that after casting
    bis vot~ he left his village at about 3.00 p.m. and remained out
    for about a month.
          After a close scrutiny of the evidence we are fully satisfied
H   niat the appellant was un4oubtedly present 11t the Bhurkunda pollin3
           •
          R. s. YADAV v. T. M. N. sil'lo11 '(Fazal Ali, J.)       1097

booth at the time when the voters were going to cast their votes and     A
his agents or supporters indulged in acts of assault, hurling of
bombs, etc., in his presence and he did not stop them from doing
so from which a conclusive inference can be drawn ·that the acts of
assault, arson, et::.. were committed with the positive knowledge and
consent of the appellant himself or his agents. As the High Court
has very carefully considered the evidence of each witness, it is        B
not necessary ror us to tread the some ground all over again. The
final finding arrived at by the High Coilrt may be extrated thus :

          "Thus I have examined and discussed above the oral
     and documentary evidence adduced by the parties with
     regard to 79-Bhurkunda booth, from which it is clear that           c
     there is abundance of reliable evidence ·on the record to
     prove the petitioner's case that on the date of poll. at about
     11.30. a.m. Respundent No. 6 Ram Sharan Yadav, had
     arrived at Bhurkunda Booth in his jeep and enquired about
     the trend of the poll from his man, Ram Prasad Yadav
                                                                         D
     of village Ibrahimpur, who told him that the poll at the
     booth was poor in his favour and thereupon Respondent
     No. 6, Ram Sharan Yadav, ordered his men and supporters,
     who were standing at the polling booth, to capture the
     booth by scaring away the voters and also to surround the
     both and the petitioner, and, after giving the said order,          E
      he left both and, .thereafter his workers and supporters
     surrounded the booth and scared away the voters and
     prevented them from exercising their right of franchise
     and also surrounded the petitioner and held him up there,
     and the same is nowhere shaken by the merger and unbe-
     lievable evidence adduced on behalf of Respondent No. 6
     in this regard. Therefore, it is held that respondent No. 6         F
     and his workers, with consent, did commit that corrupt
     practice of undue influence at Bhurkunda booth by inter-
     fering with the free exercise of the electoral rights of the
     voters to cast their votes according to their choice."
      We might mention here that the High Court has rejected all         6
the allegations regarding other grounds and his confined its attention
only to Bhurkunda booth which, if proved, is by itself sufficient
to prove that the appellent was guilty of indulging in the corrupt
practice of 'undue influence'.
      Mr. Garg, appearing for the appellant, submitted that the
allegMion of f\!tacking or harassing the voters or driving them out      H
    1098                SUPREME COURT REPORTS              (1985] I s.c.R.

A   is a make-believe story but he has not been able to show as to'why
    the allegation deposed to by the witnesses should be disbelieved
    particularly when the independent witnesses examined by the res-
    pondent have positively proved the presence of the appellant.
B
          After a careful perusal and discussion of the evidence we
    entirely agree with the conclusions arrived at by th,o High Court and
    hold that there is no reason to interfere with the judgment of the
c   High Court so as to take a different view. In our opinion, it is
    not a case where two views were possible so that the appellant
    could be gjven benefit of doubt.

         For the reasons given above, the judgment of the High Court
    is upheld and the appeal is dismissed but in the circumstances
D   without any order as to costs.




     S.R,                                               Appeal dismissed-