ABDUL RAHIMAN KHAN Vs. RADHA KRUSHNA BISWAS ROY

JUDGEMENT

(1.) THIS appeal under Section 116a of the Representation of the People Act (Act No. 43 of 1951) (hereinafter referred to as 'the Act') is directed against an order or shri B. C. Das, sole member of the Election Tribunal, Berhampur (Ganjam), dated 8-1-1958, dismissing the appellant's petition challenging the election of the returned candidate (respondent) to the Orissa State Legislative Assembly on grounds of corrupt practices of bribery, undue influence by threat and intimidation, systematic appeal in the name of religion and the use of religious symbols and publication of several pamphlets on grounds of religion and community, containing false statements of fact affecting the personal character and conduct of the petitioner which he either believed to be false or did not believe to be true.

(2.) THE appellant and the respondent were the only two Candidates who contested the last general election held on 12-3-1957, from the Omerkote Constituency in the District of Koraput. In the aforesaid election the petitioner-appellant secured 6679 votes whereas the respondent", the returned candidate, secured 7190 votes. Thus, the difference was only 511. The appellant, admittedly was contesting the election on Ganatantra ticket, whereas the respondent was contesting on a congress ticket. According to the appellant, the Congress has very little hold on the electors in that constituency and it is only because of the above corrupt practices that the respondent was declared elected. According to his calculations, he would have got 90 per cent of the votes if the corrupt practices us mentioned above were not practised. It was further alleged that the returned candidate was guilty of contravention of Section 77 of the Act. This election case was first referred by the Election Commission in his notification no. 82/443/57 dated New Delhi, the 31st May, 1957, to the Election Tribunal, Puri, for trial but subsequently by another notification N84/t. A. 57/443/57 dated 5-111957, it was transferred to the Election Tribunal, Berhampur, and was eventually tried there.

(3.) THE tribunal framed as many as nine issues including a preliminary issue regarding the non-compliance with the requirements of the provisions of Section 117 of the Act. The Tribunal, on a detailed discussion of the preliminary issue came to the conclusion that there has been full compliance with the requirements of Section 117 of the Act. The corrupt practice of bribery during the election was the second issue in the case. This issue was not pressed before the Tribunal and no evidence was led. Accordingly, the Tribunal decided it in favour of the returned candidate. Hence, the only corrupt practices left were undue influence (issue No. 3)systematic appeal to the electors on grounds of community and religion and the use of religious symbols (issue No. 4), the publication, of pamphlets containing false statements in relation to the personal character and conduct of the petitioner (issue No. 5), and contravention of the provisions of Section 77 of the Act (issue no. 6 ). The only other relevant issue was: Can the election of the respondent be declared void and can the petitioner be declared as duly elected in his place (issue No. 8)".