Surajmal Narayanji vs Sunderlal Mannalal and another

V.R. Newaskar, J.

This appeal is directed against the decision of the Election Tribunal, Ratlam, in Election Petition No. 210 of 1962.

Petitioner Surajmal s/o Narayanji Tugnawat is a resident of the village Hatunia. He was a Congress Party candidate for the Manasa Assembly Constituency. Respondent No. 1 Sundarlal was also a candidate who stood on behalf of Jan Sangh. Respondent No. 2 Virendrasingh was also one of the candidates who had filed his nomination paper along with two others namely Radheshyam and Ramchandra Porwal. The last mentioned two candidates withdrew their candidature before the prescribed time of withdrawal. The poll took place on 21-2-1962 and Respondent No. 1 Sundarlal Mannalal Patwa was declared elected to the Manasa Assembly seat on the ground of his having obtained majority of votes. The Petitioner in his petition attributed corrupt practices to respondent No. 1 for securing his success at the polls. The alleged corrupt practices, which are material for the purpose of the present appeal, can be put in five categories:

I. That the Respondent No. 1, his agents and Ors. with his consent offered illegal gratifications to voters for procuring votes in furtherance of the prospects of successful results at the election. The details pertaining to this head, as set out in Schedule ''A'', which are sought to be pressed by the Learned Counsel for the Petitioner whose election petition has been dismissed by the Election Tribunal are as follows:

(i) that on 18-2-1962 Respondent No. 1''s father Mannalal Patwa offered Rs. 200 to Manna Bhajja Gujar of Lasudia Antri for procuring all votes of his community (Gujar).

(ii) The same Mannalal Patwa on 20-2-1962 offered Rs. 150 to Nagga Naik of the village Danta for procuring votes in general and of his community in particular.

(iii) Respondent No. 1 Sundarlal Patwa on 20-2-1962 gave Rs. 200 to Ratangir Sadhu of Bhatkhedi for procuring the votes of the voters in the community in general.

(iv) Respondent No. 1''s father Mannalal promised Rs. 100 to Mangilal Banjara of Amarpura on 20-2-1962.

II. Respondent No. 1 offered illegal gratification to Ramchandra Porwal for securing his withdrawal as a candidate at the election.

III. Respondent No. 1 Sundarlal Patwa and his agents with his consent brought voters from their respective villages to the polling booths in cars, tractors and trucks procured by them as detailed in Schedule ''C'', The details of the corrupt practices under this head as given in Schedule ''C'' are as follows:

(i) On 22-2-1962 Sampatlal Patwa brother of Respondent No. 1 brought voters from Juna Pani and Amarpura to Kukreshwar polling centre in his car.

(ii) On 21-2-1962 one Radheshyam Sharma, who was the agent of Respondent No. 1, brought voters from Bhatkhedi to Kukreshwar polling centre by a tractor.

(iii) On 21-2-1962 a truck was engaged by Respondent No. 1 to convey voters from adjoining villages to vote at the polling centres of Kukreshwar and Jannod. The villages wherefrom the voters had been brought are Bhagoni and Kundalia for the polling centre at Jannod and from Juna Pani, Daulai and Kodi for the polling centre at Kukreshwar.

IV. The Respondent No. 1 and his agents with his consent made appeals to the voters to vote for Respondent No. 1 in the name of Respondent No. 1''s caste (community) and also in the name of religion as detailed in Schedules ''D'' and ''E''. These details are:

(i) That the Respondent No. 1 appealed to voters of Antri on 10-2-1962 in the name of a Jain community to which Respondent No. 1 belongs to vote for him and not to vote for the Petitioner who is a non-Jain.

(ii) On 18-2-1962 the Respondent No. 1 addressed people at two places viz. Antri and Bampura by using expressions detailed in Paras 1 and 2, Schedule ''E'' which are calculated to appeal them to vote by reference to their religious sentiments and exorting them to vote appealing to their religious sentiments. Similarly on 19-2-1962 Respondent No. 1 appealed to the voters at Manasa on similar basis. The exact expressions used by him being detailed out in Para. 3 of Schedule ''E''.

V. The Respondent No. 1 and his agents with his consent obtained or attempted to obtain the assistance of persons under the service of the Government of Madhya Pradesh in furtherance of the prospects at this election the full particulars of corrupt practice under this head is set out in Schedule ''F'' the details whereof are as follows:

(i) On 2-2-1962 Respondent No. 1 alongwith the Tehsildar of Manasa Shri R.N. Chaturvedi called Kaluram Patel of Devrikhawasa at Manasa Tehsil and both the Tahsildar as well as Respondent No. 1 canvassed for voting for Respondent No. 1.

The learned Member of the Election Tribunal who decided this petition relied upon the principle as laid down in V.B. Raju v. v. Ramchandra Rao 21 Ele. Law Rep. 1, as also in the decision of the Division Bench of this Court reported in Smt. Sarla Devi Vs. Birendra Singh and Others, . It also took into account the decisions of the Supreme Court in Sarwan Singh Vs. The State of Punjab, and Jnanendra Nath Ghose Vs. The State of West Bengal, , for the purpose of assessing oral evidence of witnesses produced on behalf of the Petitioner for establishing the alleged corrupt practices. He found against the Petitioner as regards all the five heads of corrupt practices alleged by him after a careful scrutiny of the evidence and rejected the petition. The present appeal is directed against that decision.

A preliminary objection is raised on behalf of the Respondent that the appeal is barred by limitation. The impugned decision was pronounced on 19-11-1962. The Appellant applied for the copy on 20-11-1962. The copy was ready on 1-12-1962. The Appellant appeared and paid the deficiency on 3-12-1962. It was delivered to him the same day. These statements appear on the face of the copy of the judgment filed along with the memorandum of appeal. The preparation of the copy does not appear to have been delayed due to failure on the part of the Appellant to pay the deficiency in the copying charges. The particular entry regarding the date on which the Appellant was required to pay the deficiency in copying charges was left blank. However at the hearing a certified copy of the entry in the register maintained regarding details as to copying was filed on behalf of the Respondent contending that the Appellant had in fact been given date for paying the deficiency in copying charges and it was 23-11-1962 but that on that day the Appellant did not appear. There was actual remark on the back of the copy that the delay in supplying copy was due to pressure of work. No affidavit was filed on behalf of the Respondent that it was due to default on the part of the Appellant that there was delay in supplying copy to an extent greater than permissible under the rules. An application was submitted at the hearing on behalf of the Appellant praying for condonation of delay found to have been caused in preferring the appeal on the ground that the counsel for the Appellant had reason to be misled by what appeared to be the position with reference to time requisite for copying on the face of the copy of the judgment in question. The appeal was actually filed on 2-1-1963.

Now proviso to Section 116-A which confers powers on the High Court to entertain an appeal after the expiry of period of 30 days provided by Clause (3) of the section if it is satisfied that the Appellant had sufficient cause for not preferring the appeal within such period. In computing the period of limitation for filing appeal time required in obtaining copy of the judgment under appeal is liable to be excluded u/s 12 of the Limitation Act. It is therefore necessary to consider whether there is sufficient cause for the Appellant for not preferring appeal within the period allowed by law. It is not disputed that in case the time requisite for obtaining copy of the judgment appealed against as permitted by Section 12 of the Limitation Act is computed from the date of the application for copy namely 20-11-1962 upto the date of delivery of the copy to the Appellant namely 3-12-1962 the appeal would be just within limitation. On the other hand if notice is taken of the fact as appears from the certified copy of the copying register that the Appellant was required to deposit full copying charges by 23-11-1962 but he actually deposited them on 3-12-1962 and obtained the copy on the same day and no allowance is given to him in respect of the period from 24.11-1962 to 2-12-1962 the appeal would be barred by time.

It seems that had the delay in preparing copy been caused due to the negligence on the part of the Appellant in failing to pay full copying charges on the appointed date namely 23-12-1962 we would have been constrained to hold that the delay thus caused by the Appellant''s own negligence in the matter of preparation of the copy of the decision could not be considered as ''time requisite'' within the meaning of the phrase as used is Section 12 of the Limitation Act and in that case we would have been required to treat the appeal as barred by time and there would have been no justification for condoning the delay caused by the Appellant''s own negligence. But it appears from the endorsement on the back of the copy of the judgment under appeal as also from the relevant copy of the copying-register filed here on behalf of the Respondent that the delay caused in preparing copy was not due to failure on the part of the Appellant to deposit copying charges by 23-11-1962 but was due to ''heavy pressure of work'' and the copy had already been prepared by 1-12-1962 and was delivered on receiving copying charges on 3-12-1962 which was the date fixed for delivery. Whether the Copying Department was justified in proceeding with the work of preparing copy in the absence of deposit of full copying charges is a different question but the fact remains that on reading the endorsement and in the absence of anything else there would be justification for holding that the period from 20-11-1962 upto 3-12-1962 was time requisite for preparing copy and the period consequently will have to be treated as allowable u/s 12 of the Limitation Act as the Appellant could not have knowledge that the copy was ready on 1-12-1962 he being told to attend on 3-12-1962. In the circumstances of this particular case therefore there would be justification for holding that even if the Appellant had paid full copying charges on 23-11-1962 the same amount of time would have been required to prepare the copy. The period from 20-11-1962 to 3-12-1962 ought to be excluded in computing the period of limitation. Besides what is said above it seems to us that the counsel, it is not unlikely, might have depended upon his power of computation and could have reasonably been misled regarding the time occupied in the preparation of the copy. We would consequently overrule the preliminary objection.

As regards the merits it is submitted on behalf of the Appellant by Mr. Dabir that apart from the submissions he was going to make as regards the correctness of the findings of the learned Tribunal he would contend that the Tribunal''s approach in the matter of assessment of evidence regarding alleged corrupt practices which the Appellant sought to establish at the trial was erroneous. According to the Learned Counsel the Tribunal was not right in treating these quasi-criminal proceedings on the same plane as a criminal trial in the matter of weight to be given to the evidence of an accomplice. He submitted that the degree of corroboration needed in a criminal trial as in the case of a murder is much greater than what can be expected in a civil case such as the present and more particularly where a Tribunal is required to consider the corrupt practices of bribery at an election. From the nature of things, it is submitted, the persons who are likely to fall victims to bribery are persons of no education, no status and those who care more for money than for their light to vote at a democratic election. Moreover he pointed out that acts of bribery can only be done in secrecy and not openly and consequently it is not easy to secure independent corroboration both as regards the actual transaction as also the connection of the successful candidate with the same.

As regards the factual aspect of the case the Learned Counsel read out to us in extenso material parts of the statements of particular witnesses bearing on each of the alleged corrupt practices or the details thereof set out in the earlier part of this judgment and submitted that the oral evidence of these witnesses ought to have been relied upon and the petition should have been accepted.

On the question of law raised regarding the nature of approach which an Election Tribunal ought to have in assessing evidence of witnesses who are more or less in the position of accomplices the matter appears to be well settled by authorities.

Section 133 of the evidence Act provides ''an accomplice is a competent witness against an accused person and a conviction is not illegal because it proceeds upon uncorroborated testimony of an accomplice''.

This provision however has to be considered along with another rule of prudence or caution suggested in Illustration (b) given u/s 114 of the Evidence Act which permits a Court to make certain presumptions having regard to common course of natural events, human conduct and public and private business in their relations to facts of a particular case. Both rules in terms appear to be confined to criminal cases and though apparently not quite in unison are really so. They merely represent different stages in the judicial assessment of evidence against an accused person against whom evidence produced consists of the statement of his alleged accomplice. Section 114 of the Evidence Act permits a presumption to be made when an accomplice''s statement is put before a Court in relation to the particular offence which an accused person is alleged to have committed, and the circumstances in which it is so done. The power u/s 114 being discretionary it is possible to conceive of a case where the Court might in a particular case consider it unnecessary to secure corroboration of what the accomplice has stated though such occasions may be rare. In such a case if on the basis of uncorroborated testimony of an accomplice an accused is convicted the conviction would not be illegal. Section 133 of the Evidence Act depicts rather an exception to the general rule of prudence indicated in Illustration (b) u/s 114 of the Evidence Act and it may safely be accepted as a workable rule that except where there are special reasons and exceptional circumstances the ordinary rule of caution indicated above has to be considered first in relation to facts of a particular case by a Court.

In Sarwan Singh Vs. The State of Punjab, , the Supreme Court in dealing with the position of an approver, who is alleged to have participated in the commission of a crime, observed that there was absolutely no doubt that the fact that he had participated in the commission of the offence introduces a serious stain in his evidence and Courts would naturally be reluctant to act merely on such tainted evidence unless it is corroborated in material particulars by other independent evidence. This independent evidence, it was pointed out, may not cover the whole of the prosecution story culminating in the offence in question but it would broadly support the prosecution case in some of the material points and should at the same time connect the accused with the crime. It is needless to say that in such a case the Court should naturally be satisfied that the evidence of an accomplice is intrinsically worthy of acceptance and at the same time it should receive independent corroboration in material particulars.

The next question to be considered is whether this rule of prudence or caution ought to be applied with same rigour in civil actions as well particularly when the Legislature has chosen to confine it to criminal actions. As regards this it seems that the rule illustrated under Illustration (b) of Section 114 of the Evidence Act being a rule of prudence rather than a statutory inhibition has to be applied wherever considerations similar to those indicated therein arise for consideration. The propriety of applying the principle underlying the above rule cannot from the nature of things depend upon the nature of particular Tribunal which is required to consider it but rather upon the nature of the issue involved. If in a civil case the defence is that a document on which Plaintiff''s suit is based had been forged and evidence is given of a person who, it is alleged, had participated in the commission of forgery by the Plaintiff how should the Court approach the matter? Will it say that it is unnecessary to resort to any rule of prudence or caution and hold that the document is forged because an alleged participator in its forgery says so or will it require independent corroboration. I think even in such a case, while assessing evidence, the Court ought to require corroboration not because for any other reason than that the witness, there, has a serious stain upon his evidence as a participator in a nefarious act.

In cases of election where the charge is of bribery the person who offers bribe is an accomplice as in the case of a criminal offence of bribery. In AIR 1948 245 (Nagpur) , Sen J., following the decision in AIR 1944 66 (Federal Court) , and other cases, held that a person who offers bribe to a public servant is as accomplice and the position could not be other-wise where the question is as regards the value of such tainted evidence.

While considering the question as to the necessity of stating with sufficient precision and clarity the charges of corrupt practices alleged in an election petition it was observed by their Lordships of the Supreme Court in Harish Chandra Bajpai Vs. Triloki Singh, :

It should not be forgotten that the charges of corrupt practices are quasi-criminal in character, and that the allegations relating thereto must be sufficiently clear and precise to bring home the charges to the candidate.

These observations not only emphasise the quasi-criminal nature of the alleged corrupt practices but further indicate that they should be sufficiently brought home to the candidate by reliable evidence. This will be all the more so particularly where the charges relate to alleged acts of bribing the voters of the constituency from where the candidate stood and had been returned. It is no doubt true that purity of election process has to be safeguarded but it is equally true, that the success of a candidate who has won at an election ought not to be lightly interfered with unless the charges of corrupt practices attributed to him are clearly and affirmatively established and a successful candidate ought not to be unseated or condemned on mere suspicion which can never take the place of proof. These principles have been clearly enunciated and approved in V.B. Raju v. v. Ramchandra Rao 21 E L Rule 1. It would thus appear that where the charges are of bribery we should expect some independent evidence apart from the evidence of the alleged taking of bribe to satisfy us that the Respondent No. 1 had in fact procured success at the election by resort to that practice.

Another principle which as a Court of appeal we have to bear in mind is that the Tribunal trying the matter possesses an advantage which a Court of appeal does not namely that of seeing the witnesses while giving evidence and noting their demeanour.

We now propose to consider the evidence in light of what is said above.

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[After discussing the evidence in the case and agreeing with the view of the Election Commission which disbelieved the evidence the judgment proceeds-]

The petition, therefore, is rightly rejected. There is no error, in the matter of correct approach to the questions raised in the petition, on the part of the Tribunal. The appeal, is therefore, without force and is dismissed with costs. Counsel''s fee shall be taxed at Rs. 100.