http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 12

CASE NO.:

Appeal (civil) 7194 of 1993

PETITIONER:

C. NARAYANASWAMY

RESPONDENT:

CK. JAFFAR SHARIEF AND ORS.

DATE OF JUDGMENT: 09/08/1994

BENCH:

KULDIP SINGH & P.B. SAWANT & N.P. SINGH

JUDGMENT:

JUDGMENT

WITH

PRAMILA NESARGI Vs. CK. JAFFER SHARIEF AND ORS

With Civil Appeal No. 2543/93.

1994 SUPPL. (2) SCR 463

The Judgment of the Court was delivered by

N.P. SINGH, J. These appeals have been filed against the judgment of the

High Court dismissing , two election petitions filed on behalf of the

appellants, questioning the validity of the election of respondent C.K.

Jaffar Sharief (hereinafter referred to as "the respondent") to the Lok

Sabha from Bangalore North Lok Sabha Constituency.]

The appellants challenged the election of the respondent, primarily on the

grounds (i) that the respondent arranged large scale mass free feedings for

the electors during the election, which amounted to a corrupt practice

within the meaning of Section 123(1) (A) of the Representation of the

People Act, 1951 (hereinafter referred to as "the Act") (ii) that the said

respondent incurred expenditure at the said election in contravention of

Section 77 of the Act which amounted to a corrupt practice within the

meaning of Section 123(6) of the Act; and (in) that the declaration of the

result of the respondent was in violation of the provisions of the Act

inasmuch as several thousand votes which should not have been counted in

his favour and ought to have been rejected as invalid, were counted in

favour of the respondent, which has materially affected the result of the

election of the respondent and as such his election is liable to be

declared void Under Section 100(l)(d)(iii) & (iv) of the Act. The relevant

part of Section 123(1) is as follows :

"Corrupt practices- The following shall be deemed to be corrupt practices

for the purposes of this Act:

(1) "Bribery", that is to say .-

(A) any gift, offer or promise by a candidate or his agent or by any other

person with the consent of a candidate or his election agent of any

gratification, to any person whomsoever, with the object, directly or

indirectly of inducing-

(a).........

(b) an elector to vote or refrain from voting at an election............

Explanation- For the purposes of this clause the term "gratification" is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12

not restricted to pecuniary gratifications or gratifications estimable in

money and it includes all forms of entertainment and all forms of

employment for reward but it does not include the payment of any expenses

bona fide incurred at, or for the purpose of, any election and duly entered

in the account of election expenses referred to in section 78" (emphasis

supplied)

In View of Section l23(i)(A)(b), any gift, offer or promise by a candidate

or his agent or by any other person with the consent of a candidate or his

election agent, of any gratification, with the object of "directly or

indirectly" inducing a voter to vote, shall be deemed to be "bribery" and

as such shall amount to a corrupt practice. Mass feeding of the electors

after the process of election has commenced and before the date of poll may

induce directly or indirectly the electors to vote in favour of the

candidate who has arranged such feast for them in course of the election.

In the case of Mohan Singh v. Bhanwarlal, A.I.R. (1964) SC 1366 a

Constitution Bench of this Court, while commenting on the expression

"gratification" in Section 123(1)(A), held that:

"............"Gratification" in its ordinary Connotation means

satisfaction. In the context in which the expression is used, and its

delimitation by the Explanation, it must mean something valuable which is

calculated to satisfy a person's aim, object or desire, whether or not that

thing is estimable in terms of money;.........."

It was further stated that Explanation to sub-section (1) of section 123 of

the Act extends the expression "gratification" to include all forms of

entertainment.

In the case of Rajendra prasad Jain v. Sheel Bhadra Yajee & Ors,, A.I.R.

(1967) SC 1445, this Court said :

"..,.... In our opinion, when considering the scope of the words "offer of

bribery" in the Election Law, we should not place a narrow construction on

that expression. In fact, the scope of that expression should be extended

in order to ensure that elections are held in an atmosphere of absolute

purity, and a wide meaning should be given to the expression "offer of

bribery''."

The Explanation to Sub-Section (1) of Section 123 says specifically that

the term "gratification" includes all forms of entertainment. Even

Explanation to Section 171-E of the Indian Penal Code says that "treating"

means that form of bribery where the gratification consists of food, drink,

entertain-ment Or provision.

In view of the Explanation to Section 123(1) of the Act, there should be no

difficulty in holding that after the process of election has commenced and

before the electors have exercised their right of franchise, mass feeding

of electors arranged by the candidate or his agent or any other person with

the consent of the candidate or his election agent in order to induce

directly or indirectly the electors to Vote, shall be a corrupt practice

within the meaning of the said section. Particularly with the existing

economic conditions prevailing in the country feeding of electors may

induce them to vote in favour of the candidate arranging it. As such if the

Court is satisfied that the mass feeding had been arranged in order to

directly or indirectly induce the electors to vote for the candidate in

question, the charge of 'bribery' shall be deemed to have bees established.

The next aspect which needs examination is as to whether before arranging

any such mass feeding, or in course thereof, the facium of any negotiation

between the electors oil one side, and candidate or Ms agent or any person

arranging such mass feeding on behalf and with the consent of the candidate

or his election agent on the other side has to be proved. The framers of

the Act while specifying as to what shall be deemed to be "bribery", did

not provide that the negotiation between the candidate or his agent or any

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 12

other person with the consent of such candidate or his election agent on

the one hand and the elector on the other should be proved Section 123(1)

(A) says that any gift, offer or promise by a candidate or his agent or any

other person with the consent of such candidate or his election agent, of

any gratification made to the elector "with the object, directly or

indirectly of inducing' such an elector to vote, shall be deemed to be

'bribery. Section 123(1)(A) does not require the electors to express or

convey their acceptance or assurance that they shall vote for such can-

didate. On the material on record, of course the court has to be satisfied

that such gift, offer or promise of any gratification has been made to the

electors with the object directly or indirectly to induce the electors to

vote in favour of such candidate. A nexus, between the gift, offer or

promise of gratification and the inducement to vote has to be established.

This can be established even by circumstantial evidence. The Election

Petitioner is riot required to prove any direct negotiation between the

candidate or his agent on the one hand and the electors on the other.

In the case of S.B. Adityan v. S. Kandaswami & Ors., A.I.R (1958) SC 857,

it was said ;

"..........The words "gift, offer or promise by a candidate or his agent or

by any other person, of any gratification" clearly shows that what is

contemplated is the malting of a gift. These words are wholly inappropriate

to describe the acceptance of a gift. The words "with the object, directly

or indirectly, of inducing" also indicate that only the making of a gift is

contemplated, for the object is of the person making the gift, and clearly

not of the person accepting it......."

A Three Judges Bench in the case of B. Rajgopala Rao & Anr. v. Appayya Dora

Hanumanthu & Ors., A.I.R. (1990) SC 1889, said :

"It Was urged by Mr. Rao, learned counsel for the appellants that in the

impugned judgments, the High court has incorrectly taken the view that in

order to amount to bribery within the meaning of the said term in S. 123(1)

(A), the transaction must amount to a bargain by the candidate with a view

to get votes. It was pointed out by him that the said view has been taken

in the impugned judgments, relying upon the decision of a Bench com-prising

two learned judges of this Court in Ghosi Ram v, Dal Singh, [1968] 3 SCR

102 at pp 109- 110 : AIR (1968) SC 1191 at p;. 1196. We have gone through

the relevant portion of that judgment (at pages 109 and 110 (of SCR) : at

p.1196 of AIR of the said report). A Careful perusal of the said judgment

shows that what has been really held in that case is that if the promises

given or made amount to a bargain entered into by a candidate for a vote or

votes, that would amount to a corrupt practice, but it has not been held

there that unless the act alleged amounts to such a bargain, it could not

amount to a corrupt practice. In our view that judgment does not lay down

that in order to: amount to a corrupt practice, the transaction must amount

to a bargam for getting a vote. It was pointed out by Mr. Rao, however,

that such a view seems to have been taken into other decisions rendered by

two Benches, each comprising two learned Judges of this Court in Bhanu

Kumar Shastri v. Mohan Lai Sukhadia, [1971] 3 SCR 522 at p. 543=AIR (1971)

SC 2025 at p. 2038 and Harjit Singh Mann v. S, Umrao Singh, [1980] 2 SCR

501 at p. 510=AIR (1980) SC 701 at p. 706 and these judgments need to be

overruled. We do not propose to go into the correctness Of otherwise of

this view because, even on the footing that in order to amount to a corrupt

practice under the aforesaid provision the alleged acts need not constitute

a bargain, the acts established in the present ease, in our opinion , do

not amount to a corrupt practice."

Mr. Prashant Bhushan, learned counsel appearing for one of the appellants

rightly pointed out that in the case of Laxmi Narayan Nayak v. Ramratan

Chaturvedi & Ors., (1990) 2 S.C.C. 173, the attention of the two learned

Judges of this Court, was not drawn to the case, referred to above and

because of that an observation was made, viz. ''element of 'bargaining' is

completely absent in the present case". If an election petitioner is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 12

required to prove that the gift. offer or promise of gratification was

accepted by the electors by assuring to vote in favour of such a candidate,

the provisions of Section 123(l)(A)(b) shall become redundant and shall

have to be read as a pious wish of the framers of the Act to eliminate the

role of 'bribery' in the elections. The framers of the Act were quite

conscious that in many cases it will be difficult to get direct evidence of

inducement to the electors to vote. and because of that they have provided

that inducement to voter may be indirect as well. This is so even where

before poll, cash, clothes, cycles, blankets etc., are distributed amongst

the electors by the candidate or his agent. Once the Court comes to the

conclusion that such gifts were made to induce the electors to vote in

favour of the candidate concerned, a corrupt practice: within the meaning

of Section 123(1)(A) shall be deemed to have been committed.

But before the charge of bribery, as contemplated in Section 123(1)(A) of

the Act, is held to have been proved, against the candidate concerned,

because of mass feeding arranged by him or his agent or any other person

with his concept or the consent of this election agent, it must be

established that the object of such mass feeding was directly or indirect-

ly to induce the electors to vote in favour of such candidate. In some

eases, on material being produced, this charge can be established directly

if the candidate or his agent of any other person with the consent of the

can-didate or his election agent, at such mass feeding of the electors,

seeks their support and votes at the election in question. But there may be

cases, where the inducement to vote is not direct but only indirect one.

The candidate or his agent or any other person who has arranged such mass

feedings With the consent of the candidate or his election agent, may not

make a direct appeal to the electors either before during or after the

feast.

In the present case, it has been alleged in the election petition, filed on

behalf of the appellant in Civil Appeal No. 7194 of 1993, that the election

for the said parliamentary constituency, was to be held on 26.5.1991, but

it was adjourned by three weeks by the Election Commissioner, because of

the assassination of Rajiv Gandhi. It was ultimately held on 15.6.1991.

During the interval between 26.5.1991 and 15.6.1991 under the guise of

observing obsequies of the assassinated former Prime Minister, large scale

free mass feedings of the electorate in the slum areas in the city and the

poor localities in the villages were arranged by the respondent, his

election agent and other persons with his consent with a view to induce the

electors to vote in favour of the respondent. Thousands of voters of the

constituency participated in such mass feedings. On behalf of the

appellant, reliance was placed on an advertisement published on 8.6.1991 in

paper SANJFVANI (Ext. p. 10) which is as follows :

"ANNADANA

PHOTOGRAPHS OF :

SHRI RAJIV GANDHI C.K. JAFFER SHARIEF

SMT. INDIRA GANDHI KJ GEORGE

In memory of Rajiv who died for the country under the auspecies of Bharati

Nagar constituency, Indira Congress Mass Feeding is organised tomorrow

Sunday (9.6.91)

President: Shri KJ. George

Annadana distributed by: Shri C.K. Jaffar Sharief.

Maruthi Sevanagar : Morning 11.30, Cox Town : 12 Noon, Bharati Nagar :

After Noon 12.30 , Nehru Puram : Afternoon 1 o'clock. Shavanna Chetty

Garden : After Noon 1.30, Ulsoor : 2, Murphy Town : After Noon 2.30.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 12

Published By : Bharati Nagar Block Youth Congres (I) Committee.

Bharati Nagar Block Youth Congress (I) Committee.

All are requested to participate in these programmes.''

It was urged that although in the advertisement, it was mentioned that mass

feeding had been organised on 9.6.1991 at different places mentioned in the

said advertisement, in the memory of Shri Rajiv Gandhi, who died for the

country the real object behind such mass feeding was to influence and to

induce the electors to vote in favour of the respondent.

Election petitioner examined himself as PW 1. He stated that 'Annadana was

arranged in the entire constituency on several days under the leadership of

the respondent in connection with 'Punya Thithi' of Shri Rajiv Gandhi. This

'Annadana' was held by making publication in newspapers and in some cases

even without such publication. The 'Annadana' used to be organised like a

public function and food used to be served. The respondent himself used to

offer food to the persons who came as guests. According to PW 1 such mass

feedings were organised to get votes from poor people. He also claimed to

have seen the mass feedings at COT Town, Maruthi Seva Nagar, Murphy Town

and other places, details whereof have been stated by him in his evidence.

Similarly, PW 2 also stated that election campaign had been carried on in

several ways, including 'mass feeding' in connection with the obsequies of

Shri Rajiv Gandhi. He also stated that through advertisement and other

media announcements were made about 'Annadana' to be held on 9.6.1991 at

different places. According to him, in the mass feeding at Maruthisevanagar

on 9.6:1991, 800 persons were fed. PW5 also stated that 'Annadana' took

place in Vijayapura Town in the Town Hall on 31.5.1991 and hand bills had

been printed in that Connection. He also stated that such mass feeding took

place after the assassination of Shri Rajiv Gandhi, in Harijan and Muslim

colonies. According to him 'Annadana' was performed to secure votes. PW 8

stated that on 31.5.1991 food was distributed in the Town Hall after wide

publicity, ostensibly in connection with the obsequial ceremony of late

Shri Rajiv Gandhi, People of Vijayapura town and surrounding villages

participated at such mass feeding. Similarly PW 14 stated in his evidence

that on the ostensible reason of holding of obsequial ceremony of Shri

Rajiv Gandhi there was distribution of food in some slum areas. In respect

of such 'Annadana' announcement had been made in the different segments of

the constituency. Several leaders were present including the respondent at

such distribution of food to poor people. PW 15 also supported the said

allegation. But at the same tune, he also stated that the mass feedings

were held in connection with the obsequial ceremony of late Shri Rajiv

Gandhi, in which he saw the respondent distributing the food. PW 18, the

other witness, examined on behalf of the appellant, also stated about the

advertisement in the newspaper Sanjevani On 8.6.1991 about 'Anaadana' to be

held on 9.6.1991. PW IS was examined to prove the advertisement aforesaid

(Ext.P.10) in the Sanjevani Newspaper. PW 22 also stated about the mass

feeding at Gymkhana ground. He stated that 500 to 600 persons were present

to whom food was served by the respondent He also stated that there Was a

poster of Shri Rajiv Gandhi at that place.

It appears to be an admitted position that the mass feeding, which was

described as 'Annadana' in the advertisement referred to above had been

arranged only after the postponement of the election, due to the

assassination of Shri Rajiv Gandhi from 26.5.1991 to 15.6.199L No mass

feeding had been held prior to 26.5.1991. In the advertisement, which was

published in the Sanjevani on 8.6.1991, it was specifically stated that

mass feeding was being organised at different places on 9.6.1991 "in memory

of Rajiv who died for the country". The mass feeding was described as

Indira Congress Mass Feeding". In the advertisement, it was mentioned that

it was being published by Bharati Nagar Block Congress (I) Committee and

Bharati Nagar Block Youth Congress (I) Committee.

According to the appellant, the ostensible object was to observe the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 12

obsequies of Shri Rajiv Gandhi, but the real object was to arrange feasts

for electors, to induce them to vote in favour of the respondent: It Is

well settled that charge of corrupt practice has to be proved by the

election petitioner and the proceedings in the Election Petition are quasi

criminal in nature. Reference in this connection may be made to Devi Prasad

v, Malluram Singhania, [1969] 3 SCC 595; Rahim Khan v. Khurshid Ahmed, AIR

(1975) SC 290; Bir Chandra v. Anil Sarkar, AIR (1976) SC 603, Lakshmi Raman

v. Chandah Singh, AIR (1977) SC 587 and Amolek Chand v. Bhagwandas, AIR

(1977) SC 813. As such unless the Court is fully satisfied that the object

of the mass feeding so arranged was only to induce the participants at such

mass feeding to vote for the respondent, a finding of corrupt practice on

that account cannot be recorded against the responded. It may be pointed

out that although during the evidence, the witnesses have stated as already

referred to above, that the respondent himself was present and was

distributing the food, surprisingly, in the petition there is no such

averment. It has been simply stated there:-

"During the interval between 26th May and 15th June 1991 under the guise of

observing obsequies of the assassinated former Prime Minister a large Scale

free-feeding of the electorate in the slum areas in the City and the poor

localities in the villages was arranged by the 1st respondent, his election

agent, his political party and other persons with the consent of the 1st

respondent or his election agent in furtherance of prospects of election of

the 1st respondent."

Thus there is no allegation that at any of such mass feeding, the

respondent was present. It has simply been staled that it had been arranged

by him, his election agent, his political party and other persons with the

consent of the said respondent or his election agent. On behalf of the

respondent, an objection was taken in respect of the pleading with respect

to the mass feeding in para 17 of the election petition, that it was

absolutely vague inasmuch as full particulars of the corrupt practice i.e.

bribery by way of mass feeding had not been set forth as required by

Section 83(1) (b) of the Act. It was pointed put that when the appellant

stated in the election petition that a large scale free feeding of the

electorate in the slum areas in the city and the poor localities in the

villages, was arranged by the 1st respondent, his election agent, his

political party and other persons with the consent of the respondent or his

election agent', the statement Was a mere reproduction of Section 123(1)(A)

of the Act. It did not amount to a statement of material facts or to

setting forth full particulars of the corrupt practice. There is substance

in this contention. The pleading that "the mass feeding was either arranged

by the respondent or his election agent or his political party or other

persons with the consent of the respondent or his election agent" cannot be

held to be in accordance with the requirements of Section 83(l)(a)(b) of

the Act. It is vague and does not give any particulars. The elected

candidate cannot meet such allegation. This Court from time to time has

laid down as to how the requirement of Section 83(1) has to be complied

with. Reference can be made to the cases of Samant N. Balkrishna v. George

Fernandez, [1969] 3 SCR 603, Udhav Singh v. M..R. Scindia, [1976] 2 SGR

246, Daulat Ram Chauhan v. Anand Sharma, [1984] 2 SGR 419, Azhar hussain v.

Rajiv Gandhi, [1986] 2 SCR 782, Dhartipakar Madan Lal Aganval v. Rajiv

Gandhi, [1987] 3 SCR 369, FA. Sapa v. Singora, [1991] 2 SCR 752, where it

has been pointed put by .this Court that requirement of sub-section l(a)(b)

of Section 83 of the Act regarding statement of materials facts and setting

forth of full particulars of any corrupt practice has to be complied with

in the election petition. Apart from that, as already mentioned above, the

advertisements as well as the witnesses on behalf of the appellants have

stated categorically that such mass feeding had been arranged after

26.5,1991 the original date fixed for the election, "in the memory of Rajiv

who died for country". In the election petition it has not been stated that

respondent or any person on his behalf requested the persons participating

at the mass feeding, to vote in favour of the respondent. Same is the

position so far the oral evidence adduced on behalf of the appellant is

concerned. If the mass feeding had not been held against the background of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 12

the assassination of Shri Rajiv Gandhi, this Court could have examined as

to whether arranging feasts before or during the election amounted to the

corrupt practice. The High Court has rightly come to the conclusion that in

the special facts and circumstances of the present case, it is not possible

to hold the respondent guilty of the charge of bribery, by arranging mass

feeding.

Regarding the charge of excessive expenditure at the said election in

contravention of Section 77 of the Act is concerned, it has been stated by

the appellant C Narayanaswamy in paragraphs 21 to 26 of the election

petition as to how the respondent incurred expenditure beyond the limit of

Rs. 1,50,000 as fixed under rule 90 of the conduct of Election Rules, 1961

read with Section 77 of the Act. It has been stated that the respondent

published advertisement in Newspapers in Kannada, English, Urdu and Tamil,

appealing to the voters to vote in his favour. Such advertisement had been

published under the signature of the respondent. According to the

appellant, the advertisement charges in respect of such advertisement alone

shall be far in excess of the ceiling limit of Rs. 1,50.000. The said

expenditure has not been included in the election expenses submitted by the

respondent. It has been stated that the respondent got printed posters in

multi colours with his portrait appealing to the voters to cast their votes

in his favour. The cost of printing of such posters on a modest estimate

would be not less than a rupee per copy. It has been asserted that the

minimum number of such posters would not be less than one lakh. The

expenditure incurred on advertisements and printing of posters had not been

included in the election expenses submitted by the. respondent. It has been

stated that statement at the foot of the advertisements and the posters to

the effect that it had been issued by "the General Secretary, Karnataka

Pradesh Congress (I) Committee, Bangalore" was false; as a matter of fact,

it was the respondent who had paid for those advertisements and posters. It

has also been stated that booklets in Kannada, English, Urdu and Tamil

containing the achievements of the respondent, during his membership of the

Parliament had also been published. The number of copies of such booklets

in each language was hot less than 50,000, Even if the cost of each booklet

is calculated at rupee one each the estimated total cost of publish-ing the

booklets in four languages shall be not less than Rs. 2 lakhs. In the

return showing the expenditure incurred by the respondent, the cost of

printing of booklets had not been included. It has been stated in the

election petition, that big cutouts of resondem and the then President of

the Congress (I) party were put up through out the constituency. The cost

of each of the cutout was hot less than a thousand rupees and on a modest

estimate the cost of making and erecting a hundred of such cutouts would

not be less than Rs. 1 lakh. This expenditure has also not been included in

the election expenses submitted by the respondent; The respondent had also

got several paintings on the different walls within the constituency,

appealing to the voters to vote in his favour. Expenditure incurred in

respect of such wall paintings has also not been included in the return

filed by the respondent. It has been stated that apart from the

advertisement, posters, booklets, cutouts, wall paintings, hoardings of

different sizes, the biggest size being 15' x 10' and the smallest being 3'

X 2' had been put on throughout the constituency. The cost of erection and

painting of the hoardings of the size 15'x 10' would not be less than Rs,

10,000, According to the appellant, the cost of these huge hoardings would

be not less than Rs. 50,000 and the cost of small hoardings shall also be

not less than Rs. 50,000. These expenses were also not included in the

return submitted by the respondent.

The Stand of the respondent is that whenever elections are held, respective

Congress Committees take the responsibility of campaign and publicity on

behalf of the party candidates. All India Congress Committee assists the

candidates contesting from the party, by providing posters, banners,

manifestoes, pamphlets and handbills and various other kinds of materials

in different languages. The campaign materials are distributed to different

Congress Committee right from the All India level to the unit level.

Pradesh Congress Committee supports such candidate in campaign. Depending

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 12

on the local needs, they provide the necessary publicity materials.

Respondent stated that he did not make any request to Kar-nataka Pradesh

Congress Committee (I) to issue any advertisements on his behalf Me also

churned that he had not incurred any expenditure other than what had been

disclosed in the return of the expenditure (Ex. P. 20). When the

advertisements issued in newspapers were shown to his, he stated in his

evidence that he had not incurred any expenditure on those advertisements

and the expenditure had been incurred for the same by the party, He also

denied to have published the booklets in English, Tamil or Kan-nada. He

also denied to have got the wall posters printed or any cutouts made or got

them installed in any part of the constituency. He stated that he had not

incurred any expenditure in relation to cutouts, Wall paintings, hoardings;

The factum of several advertisements issued in different newspapers,

publication of booklets, cutouts, wall posters, hoardings, ap-pealing to

voters to vote in favour of the respondent does not appear to be in

dispute. The stand of the respondent is that the party has incurred all the

expenses and he has not incurred any expenses beyond what has been shown in

the statutory return.

Section 123(6) says that the incurring or authorising of expenditure in

contravention of Section 77 shall be deemed to be a corrupt practice, for

the purpose of the said Act. The relevant part of Section 77 is as follows:

-

Section.77(1)"Account of election expenses and maximum there-of.- (1) Every

candidate at an election shall, either by himself or by his election agent,

keep a separate and correct account of all expenditure in connection with

the election incurred or authorized by him or by his election agent between

the date on which he has been nominated and the date of declaration of the

result thereof, both dates inclusive.

Explanation 1. Notwithstanding any judgment, order or decision of any court

to the contrary, any expenditure incurred or authorized in connection with

the election of a candidate by a political party or by any other

association tit body of persons or by any individual (other than the

candidate or his election agent) shall not be deemed to be, and shall not

ever be deemed to have been expenditure in connection with the election

incurred or authorized by the candidate or his election agent for the

purposes of this sub-section.

Explanation (1) aforesaid was introduced by Act No.58 of 1974 w.e.f.

19.10.1974. It may be mentioned that this Court on 3.10.1974, in the case

of Kanwar Lal Gupta v. Amor Nath chawla, [1975] 3 SCC 646, while examining

the scope of Section 77 (1) had observed :

"When the political party sponsoring a candidate incurs expenditure in

connection with the election, as distinguished from ex-penditure on general

party propaganda, and the candidate knowingly takes advantage of it or

participates in the programme or activity or fails to disavow the

expenditure or consents to it or acquiesces in it, it would be reasonable

to infer, save in special circumstances, that he impliedly authorised the

political party to incur such expenditure and he cannot escape the rigour

of the ceiling by saying that he has not incurred the expenditure, but his

political party has done so. A party candidate does not stand apart from

his political party and if the political party does not want the candidate

to incur the disqualification, it must exercise control over the

expenditure which may be incurred by it directly to promote the poll

prospects of the candidate. The same proposition must also hold good in

case of expenditure incurred by friends and supporters directly in

connection with the election of the can-didate. This is the only reasonable

interpretation of the provision which would carry out its object and

intendment and suppress the mischief and advance the remedy by purifying

our election process and ridding it of the pernicious and baneful influence

of big money;'1

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 12

To take away the effect of the judgment of this Court in the case of

'Kanwar Lal Gupta (Supra) the explanation aforesaid was introduced saying

that notwithstanding any judgment, order or decision of any Court to the

contrary, any expenditure incurred OT authorised in connection with the

election of a candidate by a political party or by any other association or

body of persons or by any individual (other than the candidate or his

election agent) shall not be deemed to have been, expenditure in connection

with the election, incurred or authorised by the candidate or by his

election agent for the purposes of the said sub-section.

The validity of the said explanation was questioned before this Court. A

Constitution Bench of this Court in the case of P Nalla Thampy Terah v..

Union of India, [1985] Supp. SCC 189, observed that petitioner in that case

was not unjustified in cirticising the provision contained in Explanation 1

as diluting the principle of free arid fair elections, which is the corner

stone of any democratic polity, but Was riot for the Court to lay down

policies in matters pertaining to elections. As the said amendment in sub-

section 1 of Section 77 of the Act did not violate the constitution, it

could not be declared to be invalid although this Court may not approve the

policy, which underlines it. It was further said :-

"While we are on this question, we would like to point out that if any

expenditure which purports to have been incurred, for example, by a

political party, has in fact been incurred by the candidate Or his election

agent, Explanation 1 will not be attracted. It is only if the expenditure

is in fact incurred or authorised by a political party or any other

association of body of persons, or by an individual (other than the

candidate or his election agent) that the Explanation will come into play.

The candidate cannot place his own funds in the power or possession of a

political party, or a trade union or some other person and plead for the

protection of Explanation 1. The reason is that, in such a case, the

incurring of the expenditure by those others, is a mere facade. In truth

and substance, the expenditure is incurred by the candidate himself

because, the money is his. What matters for the purpose of Ex-planation 1

is not whose hand it is that spends the money. The essence of the matter

is, whose money it is."

It is true that .right to elect or to be elected is pure and simple a

statutory right and in the absence of the statutory provision neither a

citizen has a right to elect nor has he a right to be elected, because such

right is neither a fundamental right nor a common law right. The same is

the position so far as the right to challenge an election is concerned. It

flows from the provisions of the Act itself. As such the right of a person

to question the validity of an election is dependent on the conditions

prescribed in the different sections of the Act and the rules framed

thereunder. It was open to the Parliament to any that any expenditure

incurred by a political party or by any other association or body of

persons or by any individual other than the candidate or his election

agent, shall not be deemed to be expenditure in connection with the

election, incurred or authorised by the candidate or his election agent for

the purpose of sub-section (1) of section 77 read with rule 90 aforesaid.

At the same time we cannot resist from observing that sub-section (6) of

section 123 which makes incurring or authorising expenditure in

contravention of Section 77, a corrupt practice because of the aforesaid

Explanation 1 to Section 77(1) has become nugatory and redundant. Sub-

section (6) of Section 123 read with the Section 77 and rule 90, purports

to restrict the unlimited flow of money power, and makes expenditure in

excess of the limit fixed, a corrupt practice, but legality and sanctity

has been given to such excess expenditure by explanation 1 aforesaid, which

fixes no limit on the expenditure in connection with the election of a

candidate. Neither the candidate nor the political party nor the persons

who incur such huge expenditure, for the candidate are required to disclose

the same to anyone, It need not be impressed that it is not always possible

for the election petitioner to prove or even for the Courts to record a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12

finding that the fantastic expenditure in the election, has been incurred

or authorised by the candidate concerned or by his election agent, although

the court is satisfied on the material on record that the limit fixed by

the Act and the rules has been far exceeded in any particulars case.

In England, before the passing of the Representation of People Act, 1949,

the view had been expressed that expenses incurred without the authority of

the candidate or election agent for promoting or procuring the election of

a candidate might not require to be returned as election expenses provided

the expenses were incurred by person who were out-siders and not agents and

accordingly did not have any part in the conduct or management of the

election. In order to put a stop to the practice by which such expenses

were incurred by third parties but were not reflected in the candidate's

election expenses, it has been provided that certain expenses with a view

to promoting or procuring the election of a candidate at an election must

be incurred by any person other than the candidate, his election agent or

the person authorised in writing by the election agent. If any person

incurs, or aids, abets, counsels or procures any other person to incur any

expenses in contravention of this provision, he is guilty of a corrupt

practice. If any person not engaged or payment or promise of payment by the

candidate or his election agent incurs any expenses re-quired to be

authorised by the election agent, he must within fourteen days after the

publication Of the result of the election make a return of the expenses and

a declaration verifying the return. (See Halsburys Laws of England, 4th

Edn., Vol. 15, Paragraphs 721-722),

As the law stands in India today anybody including a smuggler, criminal or

any other anti social element may spend any amount over the election of any

candidate in whom such person is interest, for which no account is to be

maintained or to be furnished and any such expenditure shall not be deemed

to have been expenditure in connection with the election, incurred or

authorised by the candidate or by his election agent for the purpose of

subjection (1) of Section 77, so as to amount to a corrupt practice within

the meaning of sub-section (6) of Section 123. It is true that with the

rise in the costs of the mode of publicity for support of the candidate

concerned, the individual candidates cannot fight the election without

proper funds. At the same time cannot be accepted that such funds should

come from hidden sources which are not available for public scrutiny.

According to as, sub-section (6) of Section 123 declaring "incur-ring or

authorising of expenditure in contravention of Section 77 a corrupt

practice has lost it significance an utility with the introduction of the

Explanation 1 aforesaid which encourages corruption under hand methods, if

the call for "purity of elections" is not to be reduced to a lip service or

a slogan, then the persons investing funds, in furtherance of tie prospect

of the election of a candidate must be identified and located. The

candidate should not be allowed to plead ignorance about the persons, who

have made contributions and investments for the success of the candidate

con-cerned at the election. But this has to be taken care of by the

Parliament.

So far the facts of the present ease are concerned PW1 the election

petitioner has supported in his evidence the allegations made in the

election petition regarding excessive expenses over the advertisements,

posters, booklets, cut outs, hoarding s and wall posters. He has also

pointed out that in many of the advertisements, appeal had been made,

soliciting votes in the name of the respondent. On the basis be took a

stand that those advertisements, appeals and posters had not been issued on

behalf of Congress (I) party but the respondent and as such he should have

shown tie expenses incurred over the same in his return of the expenses of

the election. As the law exist today, it is not possible for the Court to

hold that such expenditure had been actually incurred by the respondent. On

behalf of the respondent, it was pointed out that in most of the

advertisements, cutouts and hoardings, it had been mentioned that they were

being issued on behalf of the party, to which the respondent belonged.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12

Sub-section (1) of Section 77 requires every candidate at an election to

keep a separate and correct account of all expenditure in connection with

the election "incurred or authorised by him or by his election agent".

Explanation 1 is in the nature of a provision to the said sub-section (1)

of Section 77, inasmuch as it provides that if the expenditure has been

incurred by a political party or by any other association or body of

persons or by any individual other than the candidate or his election

agent, it shall not be deemed to be expenditure in connection with the

election incurred or authorised by the candidate or his election agent, for

the purpose of sub-section (1) of Section 77, The initial onus is on the

election petitioner to satisfy the court on basis of the materials produced

by him, that the candidate concerned has incurred expenditure in connection

with the election in excess of the limit fixed by the rule 90 aforesaid. If

it appears that such expenditure has been incurred by the candidate or has

been authorised by the candidate or his election agent, then the

explanation being in the nature of a proviso to sub-section (1) of Section

77, the onus will shift on the candidate to show to the Court that the

excess expenditure beyond the limited fixed by rule 90 has been incurred

either by the political party or by any other association or a body of

persons or by any individual other than the candidate or his election

agent.

As in the present case, the appellant, who was the election petitioner

before the High Court except stating the details of g expenditure, over

different advertisements, posters, booklets, cutouts, hoardings etc., in

con-riection with the election, has not produced any evidence to satisfy

even in a prima facie manner that expenditure over such advertisements,

booklets, cutouts, hoardings, posters, etc., had been actually incurred by

the respondent. Although in the advertisements and posters it had been

specifically mentioned that they were being issued on behalf of the

political party, to which the respondent belonged, the appellant has not

discharged the onus placed on him. The appellant was required to produce

some materials in support of his assertion. The oral statement made by the

appellant has been contradicted by the respondent, by stating on oath that

expenditure over such advertisements, posters, cutouts, booklets,

hoardings, etc., had been incurred by the political party and as such the

case is covered by explanation 1 to sub-section (1) of section 77 of the

Act.

The appellant in Civil Appeal No. 2543 of 1993, who appeared before us in

person, took a stand that in the present case, the declaration of the

result of the respondent itself was in contravention of the provisions of

the Act, inasmuch as several thousand of votes, which should have been

rejected, were counted in his favour, which has materially affected the

result of the election. The result as per form No. 20E (Ex. P.3) is as

follows: -

"RESULTS AS PER FORM NO. 20E: (Ex. P. 3]

(a) Total number of voters 13,33,426

(b) Total number of votes polled 6.04,604

(c) Total number of votes rejected 12,748

(d) Votes polled in favour of Sri Jaffer Sharief (Respondent No.l)

2,52,272

(e) Votes polled in favour of Sri C. Narayanaswamy (Appellant in C.A. No.

7194 of 1993) 1,91,955

(f) Votes polled in favour of Smt. Pramila Nesargi (Appellant in C.A. No.

2543 of 1993)" 1,45,074

It is alleged that respondent got printed with the help of the Returning

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12

Officer more than 2 lakhs ballot papers in excess and those ballot papers

have been pushed in the ballot boxes, either at the polling station or

during transmission or while counting.

It appears that the Chief Electoral Officer addressed a letter on 23.4.1991

to the director of Printing and Stationery, requesting him to make

arrangements for printing of: ballot papers at the Government Central

Press, Bangalore under strict security. The Director of Printing and

stationery had also received a copy of the telex message sent on 24.10.1989

in regard to the printing of number on the ballot papers in respect of

Parliamentary constituencies, where the voters consisted of more than 10

lakhs. It was indicated therein, to print the ballot papers upto 999999 in

six digits. Therefore, to start a new series in six digits with prefix'A'.

One N.K Narayan, Deputy Secretary, BDA, was deputed for proof reading,

super-vision, checking and bundling of ballot papers in respect of

Bangalore North Parliamentary constituency: A direction was given to supply

13, 78,000 ballot papers serially as indicated in the letter aforesaid.

DW3, the Director of Printing and stationery, has stated the details of the

procedure regarding the printing and other information connected with tie

printing of the ballot papers. He has denied the allegation made by the

appellant that he got printed over 2 lakhs ballot papers in excess of the

actual requirement and allowed the respondent to take away those ballot

papers, He has stated that with the printing facility available at

Bangalore, the ballot papers up to 999999 in six digits were printed. In

absence of availability of seven digits printing machine after ten lakhs,

letter'A' was prefixed to the numbers. In other words after 10 lakhs the

ballot papers for the said constituency again were numbered as, 000000 with

a prefix 'A' to distinguish them from the ballot papers of the same number

printing within 10 lakhs. According to the appellant, these ballot papers

with a prefix 'A' were spurious and respondent got them printed to insert

in different ballot boxes in his favour. This argument has been advanced on

the basis of Form 16 submitted in connection \007with the counting of ballot

papers. In many of such Form 1.6 in connection with ballot papers above 10

lakhs instead of 'A', 'I' has been noted. The High Court has dealt with

this question in detail. It appears that in Form 16 by mistake instead of

'A' as prefix 'I' has been mentioned. The forms 16 were examined by us also

during the hearing of the appeal in presence of the appellant, The stand of

the Director of printing and Stationery appears to be correct that after 10

lakhs, the remaining ballot papers were printed starting from 000000 with a

prefix 'A', which were used at the said election and they are not spurious

ballot papers. It appeared to be an admitted position that in Bangalore

there was no facility of printing ballot papers in seven digits and because

of that 'A' was added as prefix to the ballot papers printed beyond 10

lakhs. As such we are in agreement with the finding of the High Court that

merely because in the Form 16, instead of 'A 'I' has been mentioned as

prefix to the numbers 6f ballot papers beyond the first 10 lakhs, it cannot

be held that ballot papers beyond the number of 999999 were spurious and

duplicate and were used by respondent in surreptitious manner, which has

materially affected the result of the election.

Accordingly, the appeals are dismissed. But in the facts and circumstances

of the case, there shall be no order as to costs.