KRISHNA KUMAR Vs. KRISHNA GOPAL

JUDGEMENT

(1.) THIS is an appeal under Section 116-A of the Representation of the People Act, 1951, by Shri Krishna Kumar, against an order of the Election Tribunal, Kota, declaring void his election to the Rajasthan Legislative Assembly from the Kota city Assembly Constituency and holding him guilty of the corrupt practice mentioned in Section 123 (5 ). The appeal is contested by the respondent Shri krishna Gopal who had filed the election petition to challenge Shri Krishna Kumar's election. Shri Krishna Gopal is an elector of the constituency who had worked for the furtherance of the prospects of the Congress candidate Shri Rameshwar Dayal in the election. The candidature of Shri Krishna Kumar was sponsored by the Jan sangh party. The votes polied by the contesting candidates at the polling which took place on 22nd February 1962 were as follows : 1. Shri Krishna Kumar, Jan Sangh 11,886 shri Rameshwar Dayal, 2. 9,414 congress 3. Shri Purshottam Das, Socialist 6,261 4. Shri Abdul Gaffor Khan, Seerat 2,786 committee (Independent)Shri Satya Prakash, 5. 2,057 independent shrimati Nagangi Devi, 6. 500 independent in the petition it was alleged that the petitioner was guilty of corrupt practices of the nature mentioned in Sub-sections (3), (3a), (5) and (7) but the Tribunal found that the only charge proved against him was that he had procured truck No. R. J. R. 2326 in which some electors were conveyed to Rangbari polling station at 2 P. M. on 22-2-62 by one Shankerlal. The Tribunal further held that Shankar Lal was an agent of Shri Krishna Kumar and that he so conveyed the electors by truck with his implied consent. The contention on behalf of the appellant was that these findings are erroneous. On behalf of the respondent the findings of the Tribunal on the above points were supported and further it was contended that it erred in disbelieving the other evidence adduced by him to prove other instances of the corrupt practice under section 123 (5) and to prove that on 21-2-62 Shri Krishna Kumar directed Shanker lal to convey voters from Lakhava, Anandpura, Shivpura, Amli Rojhadi and nayagaon to Kisliorepura and Rangabari polling stations. The findings of the tribunal that the corrupt practices of the nature specified in Subsections (3), (3a) and (7) of Section 123 had not been proved, were however not challenged before us.

(2.) BEFORE dealing with the evidence produced by the respondent we would like to express our opinion on some questions of law which arise in the case. One of these is the standard of proof required in such cases. On behalf of the appellant it was contended, and rightly so in our opinion, that proceedings for getting an election declared void are quasi-criminal in nature and the standard of proof required is similar to that in criminal cases. The following decisions were referred to : badri Narain v. Kamdeo Prasad, AIR 1961 Pat 41 : 21 Ele LR 64; Braj bhushan v. Anand Brahma, AIR 1961 All 356; Ahmedmiya Sherumiya v. Chhippa Ibrahim, 17 Ele LR 218 (Bom); Jamuna Prasad v. Ramniyas, air 1959 Madh Pra 226, Amjad Ali v. Hazmul Haque, AIR 1961 Assam 81; V. B. Raju v. V. Ramchandra Rao, 21 Ele LR 1 (AP), Harish Chandra v. Triloki Singh, 12 Ele LR 461 : (S) AIR 1957 SC 444. The learned counsel for the respondent was unable to cite any decision of any High court in which a contrary view was taken. When a candidate for election, either to the State Legislature or the Parliament, is charged with the commission of any corrupt practice, the charge is almost in all respects similar to a criminal charge as the law prescribes severe punishment for it. Hence the criterion to assess the evidence must also be the same as in a criminal case and the evidence must establish the charges conclusively beyond all reasonable doubt.

(3.) NEXT, we come to the question of interpretation of the provisions of Section 100 and Section 123 of the Representation of the People Act, 1951 as amended by Act no. 27 of 1956 and Act No. 58 of 1958 relating to the corrupt practice specified in section 123 (5), namely, the hiring or procuring of a vehicle for the conveyance of the electors to and from a polling station. Under the Representation of the People Act, 1951, as originally enacted, two kinds of corrupt practices were recognised, namely, major corrupt practices and minor corrupt practices. The corrupt practice of transporting voters by vehicles was a minor corrupt practice under Section 123 (5) of the Act as it then stood. It ran as follows : "the hiring or procuring, whether on payment or otherwise, of any vehicle, or vessel by a candidate or his agent or by any other person with the connivance of a candidate or his agent for the conveyance of any elector. . . . . " "agent" was defined under Section 79 (a) as including an election agent, a polling agent and a counting agent and any person who, on the trial of an election petition or of an offence with respect to any election was held to have acted as an agent in connection with the election with the knowledge or consent of the candidate. The election was to be declared void on account of this corrupt practice under Section 100 (2) (b) if the Tribunal were of the opinion that it had been committed by a returned candidate, or his agent, or by any other person with the connivance of a returned candidate or his agent. After the amendment of the Representation of the People Act 1951 by Act 27 of 1956 the distinction between major and the minor corrupt practices was removed. Further the hiring or procuring of vehicles for the conveyance of voters by any other person was made a corrupt practice even if the act was done without the connivance of the candidate or his agent. The definition of "agent" was incorporated in Section 123 and this definition was made applicable to Section 100 also. The definition was however substantially the same as was contained in section 79 (a) of the original Act. Section 100 was re-drafted as follows: "grounds for declaring election to be void (1) Subject to the provisions of Sub-section (2), if the Tribunal is of opinion :