I959

Ranjit Singh v.

Tlic State of Punjab

J; apur j.

I959

April 21.

734 SUPREME COURT REPORTS [1959] Supp.

The appellant relied upon a judgment of the Allahabad High Court in Emperor v. Lachmi Narain (1). But unless there was something peculiar in the facts of that case it cannot be considered to be good law. It does not even take into consideration Explanation 2 of s. 191.

Lastly it was urged that the procedure adopted by the Magistrate was erroneous in that he did not hold an enquiry as requiredunder ss. 200 and 202, Criminal Procedure Code, the former of which is expressly mentioned in sub-section 2 of s. 476, Criminal Procedure Code. That contention is equally untenable because under s. 200, proviso (aa) it is not necessary for a Magistrate when a complaint is made by a court io examine the complainant and neither s. 200 nor s. 202 requires a preliminary enquiry before the Magistrate can assume jurisdiction to issue process against the person complained against.

In our opinion the appellant has been rightly convicted and we would therefore dismiss this appeal.

Appeal dismissed .

ANDHERI MAROL KURLA BUS SERVICE

& ANOTHER v.

THE STATE OF BOMBAY

(JAFER IMAM and J. L. KAPUR, JJ.)

Industrial Dispute-Conciliation proceedings-Pendency of- Whether terminate on expiry of I4 days-Industrial Disputes Act, I947 (XIV of r947) SS. I2(6), 20(2), JI(I) and 33(I).

Conciliation proceedings were started in January r952 with respect to some disputes between appellant l and its workmen. On May g, 1952, the Union and on June 2, 1952, the appellant l indicated to the Conciliation Officer that the negotiations had failed.

In the meantime on March 18, 1952, the appellant 1 dismissed

(1) I.L.R. 1947 All. 155

one of its workmen.

The two appellants and three others were r959 prosecuted under s. 31 of the Industrial Disputes Act, 1947, for a breach of s. 33 for dismissing a workman during the pendency of Andheri Marol the conciliation proceedings.

The appellants contended that Kurla Bus Service since s. 12(6) required the report of the conciliation proceedings & Another to be submitted within r4 days of the commencement thereof, v. the proceedings had terminated on the expiry of the 14 days and The State of the dismissal was, therefore, not during the pendency of the con- Bomb2y ciliation proceedings.

Held that, in cases where no settlement was arrived at the conciliation proceedings terminated when the report of the Conciliation Officer was received by the appropriate Government and not on the expiry of 14 days from the commencement of the proceedings. The commencement and termination of conciliation proceedings were determined bys. 20 and not bys. 12(6). The dismissal of the workman was during the pendency of the conciliation proceedings and the appellants were guilty under s. 31(1) of the Act.

Workers of the Industry Colliery, Dhanbad v. Management of the Industry Colliery, [r953] S.C.R. 428; Colliery Mazdoor Congress, Asansol v. New Beerbhoorn Coal Co. Ltd., 1952 L.A.C. 219, applied.

CRIMINAL

APPELLATE

JURISDICTION: Criminal Appeal No. 46 of 1957.

Appeal by special leave from the judgment and order dated the February 4, 1955, of the Bombay High Court in Criminal Appeal No. 1256 of 1954, arising out of the judgment and order dated June 19, 1954, of the Chief Presidency Magistrate, Bombay, in Case No. 176/S of 1953.

Hardayal Hardy, for the appellants.

H.J. Umrigar and R.H. Dhebar, for the respondent.

1959. April 21.

The Judgmen~ of the Court was delivered by KAPUR, J.-This is an appeal by special leave against the judgment and order of the High Court of Bombay reversing the judgment of the Chief Presidency Magistrate, Bombay, and thus convicting accused Nos. 1 & 5 under s. 31(1) read withs. 33(1) of the Industrial Disputes Act (XIV of 1947) (hereinafter called the Act) and sentencing accused No. 1 to a fine of Rs. 250 and accused No. 5 to a fine of Rs. 50.

Kapur].

'959 The appellants are the Andheri Marol Kurla Bus

. M 1 Service who was accused No. I (now app'ellant No. I) An "' "'° . d M H M l'h I d N 5 Kuda Bu' service an its anager .. . '- an w lO was accuse I o. "°Another (now appellant No. 2).

Some disputes arose between v. the appellant No. I and its workmen. On December The State of 13, 1951, the Conciliation Officer wrote to the appel- Bombay !ant No. I and enclosed the demands of the Union

Kapur]. which were dated August 9, 1951. On December 31, 1951, the appellant No. l was asked to appear before the Conciliation Officer on January 9, 1952, and after getting one adjournment the appellant No. I appeared before the Conciliation Officer on January 17, 1952, and filed its Written Statement and raised various objections. The next date of hearing was January 31, 1952, and the proceedings went on till June 2, 1952, when the appellant No. 1 wrote to the Conciliation Offi.cer saying that no useful purpose would be served by holding any further meetings. On May 9, 1952, the Union had also indicated to the Conciliation Officer that the negotiations had failed.

On March 18, 1952, the appellant dismissed Louis Pereira, a bus conductor 1tnd proceedings were taken on a com plaint by Assistant Commissioner of Labour under s. 33 read with s. 31 of the Act against 5 accused persons the two appellants and the partners of appellant No. I. The Chief Presidency Magistrate acquitted all the accused including the appellants and held that as the conciliation proceedings had continued for a period of more

th; rn 14 days as from January 17, 1952, further proceedings for conciliation were illegal and therefore the accused persons could not be convicted under s. 31(1) of the Act. The State took an appeal to the High Court and the judgment of acquittal was reversed and of the accused persons the two appellants were convicted and the others were acquitted. The two appellants have appealed by special leave.

The question for decision is whether the conciliation proceedings could be said to be pending when Louis .Pereira was dismissed. If the answer is in the affirmative then the appellants have been properly convicted and if not the conviction must be set aside.

Section 31(1) makes the contravention of the provisiun

of s. 33 of the Act an offence punishable with x959 imprisonment for a period which may extend to six h

. M 1 months or with fine or with both. Section 33(1) prog:,~= ; s ;;,:ice vides: & Another S. 33(1) "During the pendency of any conciliation v. proceedings before a conciliation officer or a Board or The State of of any proceeding before a Labour Court or Tribu- Bombay nal or National Tribunal in respect of an industrial dispute, no employer shall:-

(a) in regard to any matter connected with the dispute, alter to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or (b} for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending".

Therefore the question reduces itself to the meaning of the words " pendency of any conciliation proceedings before a conciliation officer". , The argument raised on behalf of the appellant is that the object of conciliation is to get a settlement made with expedition and therefore under s. 12 the _Conciliation Officer was bound to make his report within 14 days of the commencement of the conciliation proceedings or within such shorter period fixed by the appropriate Government. From this it was submitted that as 14 days had expired before March 18, 1952, the dismissal could not be said to be one within the words " pendency of conciliation proceedings". The Act provides for commencement and conclusion of conciliation proceedings under s. 20 but the first sub-section of s. 20 dea}s with what are called utility services and sub-s. 2 of that section provides as to when the conciliation proceedings conclude. That sub-section is as follows :-

S. 20(1) " ..................................................... .

(2) A conciliation proceeding shall be deemed to have concluded-

I<apur ].

'959

(a) where a settlement is arrived at, when a

h . 1 memorandum of the settlement is signed by the par- And eri Maro • h d" Ku,/a Bus Smice ties to t e ISpute;

& Anoth"

(b) where no settlement is arrived at, when the v. report of the conciliation officer is received by the The State of appropriate Government or when the report of the Bombay Board is published under s. 17, as the case may be; or

Kapu. J.

(c) when a reference is made to a Court, Labour Court, Tribunal or National Tribunal under section 10 during the pendency of conciliation proceedings".

The provisions of sub-section 2 apply to all conciliation proceedings whether in regard to utility services or otherwise. All conciliation proceedings under this sub-section shall be deemed to have concluded in the case where no settlement is reached, when the report of the Conciliation Officer is received by the appropriate Government. The conciliation proceedings therefore do not end when the report under s. 12(6) is made by the Conciliation Officer but when that report is received by the appropriate Government. It was contended that the conciliation proceedings should be held to terminate when the Conciliation Officer is required under s. 12(6) of the Act to submit his report but the provisions of the Act above quoted do not support this contention as the termination of the conciliation proceedings is deemed to take place when the report is received by the appropriate Government.

This is how s. 20(2)(b) was interpreted in Workers of the Industry Colliery,. Dhanbad v. Management of the Industry Colliery (1).

It was next contended that on this interpretation the conciliation proceedings could be prolonged much beyond what was contemplated by the Act and the termination would depend upon how soon a report is received by the appropriate Government. It is true that s. 12(6) of the Act contemplates the submission of the report by the Conciliation Officer within 14 days but that does not affect the pendency of the conciliation proceedings and if for some reason the Conciliation Officer delays the submission of his report his action

(1) [1953) S.C.R. 428.

may be reprehensible but that will not affect the '959 interpretation to be put on s. 20(2)(b) of the Act.

A dh

. M . 1 Section 12 lays down the duties of the Conciliation Kur7a ; s ;:,:ice officer. He is required to bring about settlement & Another between the parties and must begin his investigation v. without delay and if no settlement is arrived at he is to The •State of submit his report to the appropriate Government. No Bombay doubt s. 12 contemplates that the report should be Kapur 1. made and the proceedings closed within a fortnight and if proceedings are not closed but are carried on, as they were in the present case, or if the Conciliation Officer does not make his report within 14 days he may be guilty of a breach of duty but in law the proceedings do not automatically come to an end after 14 days but only terminate as provided in s. 20(2)(b) of the Act.

Colliery M azdoor Congress, Asansol v. New Beerbhoom Coal Co. Ltd (1).

As the conciliation proceedings were pending at the time when Louis Pereira was dismissed the appellants were rightly convicted under s. 31(1) read with s. 33 of the Act.

The appeal is therefore dismissed.

Appeal dismissed.

THE STATE OF AJMER (now RAJASTHAN) v.

SHIVJI LAL

(B. P. SINHA, P. B. GAJENDRAGADKAR and

K. N. WANCHOO JJ.)

Public Servant-Teacher. in railway school-Whether public servant-Taking of money promising to procure a job-Whether illegal gratification-Criminal misconduct in the discharge of dutyl ndian Penal Code (Act 45 of I86o), ss. 2I, cl. 9, I6I-Prevention of Corruption Act, I947 (2 of Ig47), ss. 4(I), S(I)(d), (2).

The respondent who was a teacher in a railway school was prosecuted under s. 161 of the Indian Penal Code and s. 5(2) read withs. 5(1)(d) of the Prevention of Corruption Act, 1947. The

(1) [1952] L.A.C. 219, 222.

April n.

s. 191

ss. 200 and 202

Criminal Procedure Code

section 2

s. 476

Criminal Procedure Code

s. 200

s. 200

s. 202

THE STATE OF BOMBAY

JAFER IMAM

L. KAPUR, JJ.

Industrial Disputes Act

s. 31

Industrial Disputes Act, 1947

s. 33

s. 12(6)

s. 31(1)

s. 31(1)

Industrial Disputes Act

s. 33

s. 31

s. 31(1)

Section 31(1)

s. 33

Section 33(1)

S. 33(1)

s. 12

s. 20

s. 20

s. 2

S. 20(1)

s. 17

section 10

section 2

s. 12(6)

s. 12(6)

s. 20(2)(b)

s. 12(6)

s. 20(2)(b)

Section 12

s. 12

s. 20(2)(b)

s. 31(1)

s. 33

Penal Code

ss. 2I

cl. 9

Prevention of Corruption Act

ss. 4(I)

s. 161

Indian Penal Code

s. 5(2)

Prevention of Corruption Act, 1947


(2) S.C.R.

SUPREME COURT REPORTS 739

may be reprehensible but that will not affect the '959 interpretation to be put on s. 20(2)(b) of the Act.

A dh

. M . 1 Section 12 lays down the duties of the Conciliation Kur7a ; s ;:,:ice officer. He is required to bring about settlement & Another between the parties and must begin his investigation v. without delay and if no settlement is arrived at he is to The •State of submit his report to the appropriate Government. No Bombay doubt s. 12 contemplates that the report should be Kapur 1. made and the proceedings closed within a fortnight and if proceedings are not closed but are carried on, as they were in the present case, or if the Conciliation Officer does not make his report within 14 days he may be guilty of a breach of duty but in law the proceedings do not automatically come to an end after 14 days but only terminate as provided in s. 20(2)(b) of the Act.

Colliery M azdoor Congress, Asansol v. New Beerbhoom Coal Co. Ltd (1).

As the conciliation proceedings were pending at the time when Louis Pereira was dismissed the appellants were rightly convicted under s. 31(1) read with s. 33 of the Act.

The appeal is therefore dismissed.

Appeal dismissed.

THE STATE OF AJMER (now RAJASTHAN) v.

SHIVJI LAL

(B. P. SINHA, P. B. GAJENDRAGADKAR and

K. N. WANCHOO JJ.)

Public Servant-Teacher. in railway school-Whether public servant-Taking of money promising to procure a job-Whether illegal gratification-Criminal misconduct in the discharge of dutyl ndian Penal Code (Act 45 of I86o), ss. 2I, cl. 9, I6I-Prevention of Corruption Act, I947 (2 of Ig47), ss. 4(I), S(I)(d), (2).

The respondent who was a teacher in a railway school was prosecuted under s. 161 of the Indian Penal Code and s. 5(2) read withs. 5(1)(d) of the Prevention of Corruption Act, 1947. The

(1) [1952] L.A.C. 219, 222.

April n.

'959

Stale of Aj1nc1

Shivji Lal

prosecution case was that the respondent offered to secure a job for the complainant in the Railway I<unning Shed at Abu Road, if the latter paid him Rs. 100, that the complainant agreed to this, and that on October 5, 1954, the complainant wrote out an application addressed to the Divisional 'Mechanical Engineer, Abu Road, and banded it to the respondent and gave him Rs. 50 promising to pay the balance of Rs. 50 after the job had been secured. The Special Judge who tried the case accepted the prosecution story and convicted the respondent on both the charges, but, on appeal, the High Court acquitted him on the ground that he was not a public servant. The State appealed to the Supreme Court. It was contended for the respondent that even if he were considered to be a public servant he could not be held guilty on either of the charges framed against him. It was found that neither in the charge framed under s. 16! of the Indian Penal Code nor in the evidence was there anything to show that the respondent intended to approach any pnblic servant in order to secure a job for the complainant.

Held: (1) that the respondent was a public servant within the meaning of the ninth clause of s. 21 of the Indian Penal Code as he was in the service of Government, was being paid by it and was entrusted with the performance of a public duty inasmuch as he was a teacher in a school maintained by Government and it was part of his public duty to teach boys.

G. A. Monterio v. The State of Ajmer, [1956] S.C.R. 682, followed.

(2) that in view of the words "by otherwise abusing his position" read along with the words "in the discharge of his duty" ins. 5(1)(d) of the Prevention of Corruption Act, 1947, an offence under that section requires that the public servant should misconduct himself in the discharge of his duty.

In the present case, as the respondent was only a teacher it was not part of his duty to make appointments in the Railway Running Shed at Abu Road, and consequently when he took money for procuring a job for the complainant he was not committing misconduct in the discharge of his duty. Accordingly, a conviction under s. 5(2) read withs. 5(1)(d) of the Prevention of Corruption Act, 1947, was not valid.

(3) that the mere fact that a person takes money in order to get a job for another person somewhere would not by itself be an offence under s. 161 of the Indian Penal Code and that as the charge under s. 161 did not" disclose who was the public servant whom the respondent would have approached for rendering or attempting to render service to the complainant in securing a job for him, the prosecution under that section was not maintainable; and,

(4) that the presumption under s. 4(1) of the Prevention of Corruption Act, 1947, could not arise in the present case as s. 161 of the Indian Penal Code was not applicable.

CRIMINAL APPELLA'rE JURISDIC'l'ION: Criminal r959 .

Appeal No. 3 of 1957.

State of Ajnzcr Appeal from the judgment and order dated .August v. 14, 1956, of the former Judicial Commissioner's Court, Shivji Lal Ajmer, in Criminal 1\.ppeal No. 2 of 1956, arising out of the judgment and order dated January 11, 1956, of the Special Judge, Ajmer, in Criminal Case No. 1 of 1955.

R. Ganapathy Iyer and R. H. Dhebar, for the appel. lant.

B. D. Sharma, for the respondent.

1959. April 22.

The Judgment of the Court was delivered by W ANCHOO, J.-This appeal is on a certificate grant- Wanchoo J. ed by the J udieial Commissioner of Ajmer. One Shivji Lal Joshi (hereinafter called the accused) was prosecuted under s. 161 of the Indian Penal C9de and s. 5 (2) of the Prevention of Corruption Act, No. II of 1947.

He was convicted by the Special Judge on both counts and sentenced to suffer rigorous imprisonment for a total period of six months. He filed an appeal before the Judicial Commissioner of Ajmer.

The appeal was allowed on the ground that the accused was not a public servant, though the Judicial Commissioner agreed with the findings of the Special Judge so far as the facts were concerned. The State applied for a certificate under Ai't, 134 (1) (c) of the Constitution to enable it to appeal to this Court. This certificate was granted; and that is how the appeal has come before us.

The facts which have been found by both the eourtH are these. The accused was a teacher in the railway school at Phulera. Prem Singh who was the complafoant was known to the accused for about a year before the incident which took place on October 6, 1954.

He was in search of a job and the accused had told him a number of times that he would procure a job for him in the Railway Running Shed at Abu Road, if Prem Singh paid him Rs. 100. On October 5, 1954, the accused had met Prem Singh at Kaiserganj

r959

Stale of Aj11wr

v. 5 liivji .ial

Wanchoo f.

in Ajmer and told him that Dusehra holidays were approaching and if he paid Rs. 100 the accused would go to Abu Road to secure a job for him.

Eventually it was agreed between the two that Prem Singh would pay him Rs. 50 on the next day while the remaining Rs. 50 would be paid after the job had been secured.

After this agreement, Prem Singh went to the Deputy Superintendent Police (Special Police Establishment), and made a complaint to the effect that the accused had told him that he could secure employment for hi!'J1 at Abu Road Loi; io Shed as he bad considerable influence there and had demanded Rs. 100 as illegal gratification for that purpose. Prem Singh also said that it had been settled that he would pay Rs. 50 in advance and Rs. 50 after his appointment.

Consequently, Prem Singh wrote out an application addressed to the Divisional Mechanical Engineer, Abu Road, and also produced five ten-rupee notes before the Deputy Superintendent Police. The numbers of these notes were noted down and the Deputy Superintendent Police arranged that one Nathu Singh should accompany Prem Singh as a cousin when Prem Singh met the accused next day to pay him the money. On October 6, 1954, Prem Singh accompanied by Nathu Singh met the accused as arranged and the accused asked him for an application. Prem Singh gave him the application which he had already written out and the accused said that that would serve the purpose.

The accused then asked Prem Singh for the money and he handed over the five ten-rupee notes, adding that he would pay the remaining Rs. 50 after getting service and assuring him that he would keep to his part of the bargain. Thereafter Prem Singh gave the pre-arranged signal and the police party headed by the Deputy Superintendent of Police arrived. The Deputy Superintendent Police disclosed his identity and searched the person of the accused. In that search, the application which Prem Singh had written for the Divisional Mechanical Engineer, Abu Road, and the five ten-rupee notes were recovered.

Thereafter the accused was prosecuted as already mentioned above.

The accused admitted that the application as well as the five ten-rupee notes were recovered from him by the police.

His explanation was that one Jiwan Ram had given him the application which was in English and which was said to be a letter for a friend of Jiwan Ram at Abu Road. The accused did not know English and took the application to be a letter to be delivered to the friend of Jiwan Ram. Jiwan Ram also gave him five ten-rupee notes to be given to that very friend of his when the accused went to Abu Road.

As alreatly stated, both the courts below have accepted the prosecution version set out above and disbelieved the explanation given by the accused. The Special Judge convicted the accused on the basis of the prosecution story. The Judicial Commissioner, though he accepted the prosecution story to be true, held that the accused was not a public servant and therefore ordered his acquittal. The main question that has been raised on behalf of the appellant therefore in this appeal is that the Judicial Commissioner erred in holding that the accused was not a public servant within the meaning of s. 21 of the Indian Penal Code.

The question whether the accused is a public servant under s. 21 of the Indian Penal Code depends upon the interpretation of the last part of the Ninth clause of that section, which is in these terms:-

" -......... every officer in the service or pay. of the Government or remunerated by fees or commission for the performance of any public duty." .

The Judicial Commissioner seems to have overlooked this part of the Ninth clause, for he says that it had not been shown that it was the duty of the accused to take, receive, keep or expend any property on behalf of the Government so that he may come under the Ninth clause of s. 21.

This only refers to the earlier part of the Ninth clause and the last part which we have set out above does not seem to have l;/een considered at all. This very question came up for consideration in this Court in G. A. Monterio v. The State of Ajmer (1) and it was laid down that the true

(r) [1956] S.C.R. 68~.

r959

Stale of Ajmer

Shivji Lal

Wanchoo j.

I959

State of Aj1ner

Shiv}i Lal

fVanchoo ].

test in order to determine whether a person is an officer of the Government, is: (1) whether he is in the service or pay.of the Government and (2) whether he is entrusted with the performance of any public duty.

It is not disputed in this case that the accused was in the service of Government and was being paid by Government. It cannot also, in our opinion, be doubted that he was entrusted with the performance of a public duty inasmuch as he was a teacher in a school maintained by Government and it was part of his public duty to teach boys. In these circumstances the Judicial Commissioner was in error in holding that the accused was not a public servant within the meaning of the Ninth clause of s. 21.

This, however, does not dispose of the matter.

Learned counsel for the accused has urged that even if the accused is held to be a public servant, he cannot be held guilty on either of the charges framed against him. \Ve shall first take the charge under s. 5(2) of the Prevention of Corruption Act read with s. 5(1) (d).

The charge was that the accused by corrupt or illegal means or by abusing his position as a public servant obtained pecuniary advantage for himself inasmuch as he took Rs. 50 from Prem Singh on October 6, 1954.

Mere receiving of money by a public servant even if it be by corrupt means is not sufficient to make out an offence under s. 5 (2) read with s. 5(l)(d). The relevant part of s. 5(l)(d) reads as follows:- " A public servant is said to commit the offence of criminal misconduct in the discharge of his duty, if he, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage". _ The offence under this provision consists of criminal misconduct in the discharge of his duty. In order, therefore, that this offence is committed there shonld be misconduct by the public servant in the discharge of his duty. In other words the public servant must do something in connection with his own duty and thereby obtain money for himself or for any other person by corrupt or illegal means or by otherwise abusing

his position. If a public servant takes money from a third person in order to corrupt some other public servant and there is no question of his misconducting himself in the discharge of his own duty, that action may be an offence under s. 161 of the Indian Penal Code but would not be an offence under s. 5(2) read with s. 5(l)(d) of the Prevention of Corruption Act.

The essence of an offence under s. 5(2) read with s. 5(l)(d) is that the public servant should do something in the discharge of his own duty and thereby obtain any valuable thing or pecuniary advantage for himself or for any other person by corrupt or illegal means or by otherwise abusing his position. The words " by otherwise abusing his position " read along with the words "in the discharge of his duty" appearing in s. 5(l)(d) make it quite clear that an offence under that section requires that the public servant should misc conduct himself in the discharge of his own duty. In the present case, the accused was a teacher and -it was no part of his duty to make appointments in the Running Shed at Abu Road. There would, therefore, be no question of his committing misconduct in the discharge of his duty wh\)n he took money for procuring a job for Prem Sin\gh in the gunning Shed. So

far therefore as the charge under s. 5(l)(d) is concerned, we are of opinion that there was no question of the accused misconducting himself in the discharge of his own duty in the circumstances of this case and it must fail.

Now we turn to the charge under s. 161 of the Indian Penal Code.

The relevant part of that section (omitting the unnecessary words) for the purpose of this case is in these terms :

" Whoever, being a public servant, accepts from any person for himself any gratification whatever other than legal remuneration as a motiveor reward for rendering or attempting to render any service or disservice to any person with any public servant".

This requires that the person accepting the gratification should be (1) a public servant, (2) he should accept gratification for himself, and (3) the gratification

, 94

I959

State of Ajmer v.

Shivji Lal

Wanchoo ].

State of Aj1ner

Shivji Lal

Wanchoo ].

should be as a motive or reward for rendering or attempting to render any service or disservice to any person with any other public servant. The charge under s. 161 of the Indian Penal Code which was framed in this case stated that the accused being a public servant accepted on October 6, 1954, a sum of Rs. 50 from Prem Singh " as illegal gratification as a motive for securing a job for him in the Hail way Running Shed". Now the first two ingredients set out above are clearly established in this case; but the third ingredient, (namely, that the gratification should have been taken as a motive or reward for rendering or attempting to render any service with any public servant) is not even charged against the accused. The charge merely says that he took the money as a motive for securing a job for Prem Singh in the Railway Running Shed, Abu Road. It does not disclose who was the public servant whom the accused would have approached for rendering or attempting to render service to Prem Singh in securing a job for him .. Even in the complaint made by Prem Singh to the Deputy Superintendent Police all that was said was that the accused told Prem Singh that he would secure a job for him at Abu Road because he had considerable in'fluence there. It was not disclosed as to who was the public servant on whom the accused had influence and whom he would approach in order to render service to Prem Singh. In his statement also Prem Singh did not say that the accused had told him that he had influence on any particular public servant at Abu Road who in he would influence in order to render this service to Prem. Singh, namely procuring him a job.

It is true that the application was addressed by Prem Singh to the Divisional Mechanical Engineer and was given to the accus~ who said .that it was all right; but Prem Singh did not even say that the accused had asked him to address the application to the Divisional Mechanical Engineer. It seems that the application was addressed to the Divisional Mechanical Engineer, simply because he was obviously the officer in-charge of the Railway Running Shed at Abu Road. Thus Prem Singh did not say either in his complaint or in

his statement that the accused had told him that he would render service to him by approaching a particular public servant. In the charge.sheet submitted by the police as well as in the charge framed by the court, it was not disclosed whether any public servant would be approached to render service to Prem Singh, i.e., by securing him a job. In the circumstances one of the ingredients of the offence under s. 161 was neither alleged nor charged nor proved against the accused. The mere fact that a person takes money in order to get a job for another person somewhere would not by itself necessarily be an offence under s. 161 of the Indian Penal Code unless all the ingredients of that section are made out. As in this case one of the main ingredients of that section has not been made out, the accused would be entitled to acquittal.

However, it has been urged on behalf of the State that presumption under s. 4(1) of the Prevention of Corruption Act arises in this case as money passed hands from l'rem Singh to the accused ands. 4(1) provides that if an accused person has accepted any gratification for himself or for any other person, it shall be presumed unless the contrary is proved that he accepted that gratification as a motive or reward as is mentioned in s. 161 of the Indian Penal Code.

Assuming that this presumption can be raised even when all that is proved is mere passing of money, the question still remains whether a presumption as to the motive or reward such as is mentioned in s. 161 of the Indian Penal Codecan be raised in this case at all, when we know as a fact that Prem Singh never said in the complaint that the accused had told him that he would influence any public servant and did not even say so in his statement in court and there was no mention in the charge-sheet by the police or in the charge framed by the court that the accused was going to influence any public servant in order to secure a job for Prem Singh at Ahu Road. We are of opinion that if the evidence had disclosed that the accused had indicated that he would influence any public servant in order to secure a job for Prem Singh a presumption as to the motive or reward might have

I959

State of Ajmer

Shivji Lal

Wanchoo ].

I959

Stale of Ajnier

Shivji Lal

Wanchoo ].

I959

April 23.

been drawn under s. 4(1), assuming again that such a presumption can be drawn where there is simple passing of money.

But when there is no indication whatever that any public servant was to be approached or influenced by the accused there can, in our opinion, be no question of making a presumption that the pay. ment was as a motive or reward for rendering service with any public servant. In this view of the matter we are of opinion that the offence under s. 161 of the Indian Penal Code is not made out against the accused, for one of its essential ingredients is missing and no presumption can be drawn in the circumstances in that connect.ion.

We therefore dismiss the appeal though for reasons different from those which commended themselves to the learned Judicial Commissioner.

Appeal dismissed.

RAM DIAL v.

SANT LAL AND OTHERS

(B. P. SINHA, J. L. KAPUR and

M. HIDAYATULLAH, JJ.)

Election Petition-Allegation of corrupt practice-Mandate to voters by religious leader-Undue influence-Representation of the

People Act, r95r (27 of r95r), s. r23(2), proviso (a)( ii).

This appeal was directed against concurrent orders of the Election Tribunal and the High Court on appeal, setting aside the appellant's election to the Punjab Legislative Assembly on an election petition filed by the respondent No. r, on the ground of corrupt practice of undue influence within the meaning of proviso (a)(ii) to s. r23(1) of the Representation of the People Act, r95r. A large number of voters of the constituency were Namdhari Sikhs and the appellant, under the auth'ority of the supreme religious leader of the Namdhari Sikhs and his son, issued the following poster and distributed it widely throughout the constituency,-

s. 20(2)(b)

Section 12

s. 12

s. 20(2)(b)

s. 31(1)

s. 33

THE STATE OF AJMER (now RAJASTHAN

SHIVJI LAL

B. P. SINHA

P. B. GAJENDRAGADKAR

K. N. WANCHOO JJ.

Penal Code

ss. 2I

cl. 9

Prevention of Corruption Act

ss. 4(I)

s. 161

Indian Penal Code

s. 5(2)

Prevention of Corruption Act, 1947

s. 16

Indian Penal Code

s. 21

Indian Penal Code

Prevention of Corruption Act, 1947

s. 5(2)

Prevention of Corruption Act, 1947

s. 161

Indian Penal Code

s. 161

s. 4(1)

Prevention of Corruption Act, 1947

s. 161

Indian Penal Code

s. 161

s. 5

Prevention of Corruption Act

s. 21

Indian Penal Code

s. 21

Indian Penal Code

s. 21

s. 21

s. 5(2)

Prevention of Corruption Act

s. 5(1)

s. 5

s. 5(l)(d)

s. 5(l)(d)

s. 161

Indian Penal Code

s. 5(2)

s. 5(l)(d)

Prevention of Corruption Act

s. 5(2)

s. 5(l)(d)

s. 5(l)(d)

s. 5(l)(d)

s. 161

Indian Penal Code

s. 161

Indian Penal Code

s. 161

s. 161

Indian Penal Code

s. 4(1)

Prevention of Corruption Act

s. 161

Indian Penal Code

s. 161

s. 4(1)

s. 161

Indian Penal Code

Representation of the People Act


I959

Stale of Ajnier

Shivji Lal

Wanchoo ].

I959

April 23.

748 SUPREME COURT REPORTS [1959] Supp.

been drawn under s. 4(1), assuming again that such a presumption can be drawn where there is simple passing of money.

But when there is no indication whatever that any public servant was to be approached or influenced by the accused there can, in our opinion, be no question of making a presumption that the pay. ment was as a motive or reward for rendering service with any public servant. In this view of the matter we are of opinion that the offence under s. 161 of the Indian Penal Code is not made out against the accused, for one of its essential ingredients is missing and no presumption can be drawn in the circumstances in that connect.ion.

We therefore dismiss the appeal though for reasons different from those which commended themselves to the learned Judicial Commissioner.

Appeal dismissed.

RAM DIAL v.

SANT LAL AND OTHERS

(B. P. SINHA, J. L. KAPUR and

M. HIDAYATULLAH, JJ.)

Election Petition-Allegation of corrupt practice-Mandate to voters by religious leader-Undue influence-Representation of the

People Act, r95r (27 of r95r), s. r23(2), proviso (a)( ii).

This appeal was directed against concurrent orders of the Election Tribunal and the High Court on appeal, setting aside the appellant's election to the Punjab Legislative Assembly on an election petition filed by the respondent No. r, on the ground of corrupt practice of undue influence within the meaning of proviso (a)(ii) to s. r23(1) of the Representation of the People Act, r95r. A large number of voters of the constituency were Namdhari Sikhs and the appellant, under the auth'ority of the supreme religious leader of the Namdhari Sikhs and his son, issued the following poster and distributed it widely throughout the constituency,-

"A command from Shri Sat Guru Sacha Padshah to the Namdharies of Halqa-Sirsa".

"Every Namdhari of this Halqa is commanded by Shri Sat Guru that he should make every effort for the success of Shri Ram Dayal Vaid, a candidate for the Punjab Vidhan Sabha, by giving his own vote and those of his friends and acquaintances, it being our primary_ duty to make him successful in the election. The election symbol of Shri Vaid is a riding horseman.

Sd. Maharaj Bir Singh S/o. Sat Guru Maharaj Pratap Singh, Jiwan Nagar (Hissar)." Both the Tribunal and the High Court found that the religious leader not only issued the said hukam or command, but also delivered speeches to the effect that every Namdhari must vote for the appellant implying that disobedrence of his mandate would carry divine displeasure or spiritual censure and practically left no free choice to the Namdhari electors.

Held, that the case clearly fell within fhe purview of proviso (a)(ii) to s. 123(2) of the Representation of the People Act and the appeal must be dismissed.

The law in England relating to undue influence at elections, was not the same as the law in India. While the law in England laid emphasis upon the individual aspect of the exercise of undue influence, under the Indian law what was material was not the actual effect produced but the doing of such acts as were calculated to interfere with the free exercise of an electoral right. .

North Durham's case, (1874) 2 O'M. & H. 152, referred to.

Decisions of the English Courts in this regard, therefore, could not be used as precedents in India.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 108 of 1959.

Appeal from the judgment and order dated November 25, 1958, of the Punjab High Court in F.A.O. No. 173 of l!J58.

A. V. Viswanatha Sastri and Naunit Lal, for the appellant.

M. 0. Setalvad, Attorney-General for India, V. A.

Syed M oharmnud and M. K. Ramamurthi, for respondent No. 1.

R.H. Dhebar, for respondent No. 3. • 1959.

April 23.

The Judgment of the Court was delivered by

I959

Ram Dial v.

Sant Lal

cS- Others

I959

Jla1n Djal v.

Sanl La.l & Others

Sinha ].

SINHA, J.-When the hearing of the appeal had been concluded on March 18, 1959, we had informed the parties, as also the counsel for the Election Commission of India, that the appeal is dismissed with costs, and that the reasons would follow.

We now proceed to give our reasons.

This is an appeal on a certificate of fitness granted by the High Court of Judicature for the State of Punjab at Chandigarh, against the judgment and order dated November 25, 1958, of that Court, dismissing an appeal against the /order of the Election Tribunal, Hissar, dated September 14, 1958, setting aside the appellant's election to the Punjab Legislative Assembly. The appellant was the successful candidate from the general seat which was a doubl, e-member constituency of Sirsa, the.other successful candidate being a Harijan candidate-respondent No. 2 in this Court.

The first respondent contested the general seat. The Election Commission of India was added as the third respondent by an order of this Court, dated February 27, 1959, when this Court was moved in the stay matter. This Court directed the case itself to . be heard before the date fixed for the fresh election as a result of the order of the. Election Tribunal.

It appears that for the double-member constituency of Sirsa, there were a large number' of candidates. One of the two seats was reserved for members of the scheduled castes. After the usual withdrawals, sixteen candidates were left in the field to contest the two seats, eight candidates being for the general seat, and the other eight, for the reserved seat.

We are not here concerned with the seat reserved for members of the scheduled castes. In respect of the general constituency, the appellant secured 27,272 votes, whereas the first. respondent secured 23,329, as a result of the election which took place on March 12 and 14,

1957. The result of the election was declared on March 17, 1957.

The first respondent filed an election petition on April 28, 1957, challenging the election of the appellant. The election was challenged on a large number uf grounds-practically exhausting all available

grounds under the election law-but as a result of the findings of the Election Tribunal and of the High Court, we are only concerned with the allegations relating to "corrupt practices'', contained in subparas. 1 to 3 of para. 13B of the election petition, which formed the basis for issue No. 4.

The relevant allegations may be stated in extenso in the words of the election petition, as under :-

" (B) : That respondent No. 1 himself, his agents and other persons with the consent of the respondent No. 1 and his agents have committed the corrupt practice of undue influence by interfering directly or indirectly with the free exercise of the electoral right of the electors of this constituency. 'rhe known details of these corrupt practices are given in the various clauses under the sub-para.:-

(i) Sat Guru Maharaj Pratap Singh of Jiwan N agar, the religious head of N amdharis sect of the Sikhs had some personal grievances against Shri Devi Lal of Chautala a prominent Congress Leader of tho constituency, and the chief supporter of the petitioner at this election.

Respondent No. 1 folly knowing of this grievance of the Sat Guru approached him and through him also approached Maharaj Charan Singh of Sikanderpur the religious head of the Radha Swami Samaj and got issued Farmans (orders) by both these religious heads to their followers in this constituency to the effect that their Dharma required them to wholeheartedly support respondent No. 1 and to oppose the candidature of the petitioner and that if any of the followers dared to act against their ]'armans, the wrath of the aforementioned Gurus would fall upon him and he would be the object of Divine displeasure.

These Farmans of the two Gurus were orally conveyed, through the' Su bas' of Namdharis, Shri Bir Singh the son of Sat Guru Partap Singh and N aginder Singh and Shri Purshotam Singh followers of Guru Charan Singh, throughout the Constituency wherever the followers of these two sects resided from the day of withdrawal till the polling began, during their canvassing tours for respondent No. l,_Shri Bir Singh, Purshotam Singh and Naginder Singh aforesaid and Sant Teja

r959

Ram Dial v.

Sant Lal & Others

Sinha J.

I959

Ra1n Dial v.

Sant Lal & Others

Sinha ].

Singh JVI.L.C. in Diwans held in the various villages and towns of the Constituen-0y during their canvassing tour, besides repeating these 'Farmans' of the two Gurus also threatened the followers with expulsion from the sect and Samaj if they went against the wish of the Gurus in this matter.

(ii) That Sat Guru Pratap Singh himself in the presence of respondent No. 1 in the Big-Diwan of his followers held on the 25th of February, 1957, at Sirsa in Radha Swami Sat-Sangh Hall, preached and commended all those present that it was the primary Dharma of all his followers to help the candidature of respondent No. 1 and to oppose the petitioner with all their might by giving their own votes and by canvassing among their area of influence in the constituency.

The Sat Guru himself held Diwans at villages Tharaj on the 6th of March, 1957, at village Dhiwan on the 5th March, 1957, at village Rori on the 6th March, 1957, and" at Phaggu on the 6th March, 1957. In these Di wans he besides repeating his Farmans aforesaid also relied upon the strong appeal of his relationship, he being the son of the daughter of village Tharaj. A very big diwan of his followers also held at Khairpur on the 26th February, 1957, for the same purpose where the Sat Guru himself commended his followers in the like tune.

(iii) That respondent No. 1 got issued posters in thousands printed on both the sides in Hindi and Gurumukhi scripts on the 26th of February, 1957, containing_ the orders 'Farmans' of Satguru Partap Singh under he signa, ture of Shri Maharaj Bir Singh son of Satguru Partap Singh. These posters were got published at the instance of respondent No. 1 at Bansal Press Hissaria Bazar, Sirsa. These posters contained in verbatim the orders 'Farmans' of the Satguru to the effect that it was the primary Dharma of every Namdhari of this constituency to give his own vote as well as to canvass votes of their all acquaintances for Shri Ram Dayal candidate respondent No. 1. A copy of the poster in original together with its English translation is attached with the petition and may be read as to form its part. These posters were distributed

throughout the constituency after the same were got printed till the polling day in all the villages where N amdhari reside."

In support of all his alilegations quoted above, the first respondent adduced a large volume of oral evidence, besides some documentary evidence as well.

The Tribunal came to the conclusion that Maharaj Pratap Singh had issued farmans to his satsanghis that he, who will not vote for the appellant, would suffer not only in this world but in the next also, but it found it not proved that the f armans or orders of the two religious heads of the Namdharis and Radhaswamis, were orally conveyed through Maharaj Bir Singh, son of Maharaj Partap Singh, Naginder Singh and Shri Parshotam Singh, to the followers of the two Gurus in the constituency, or that they, while conveying the farmans of the Gurus, threatened the followers with expulsion from the sect, if they went against the wishes of the Gurus, except what Naginder Singh had said in the Diwan at Sirsa and at other places.

It also recorded the finding that the Diwans were held for the purpose of canvassing in favour of the appellant at the time and place mentioned in the petition, .and that those Diwans were addressed by Maharaj

Pa.rtap Singh and others. It was also found that' Maharaj Partap Singh actively supported the candidature of the appellant, and addressed his followers on the basis of religion and asked them to vote for the appellant, and that all this was done at the instance and in the presence of the appellant. It was further found that posters, like exh. P. 1, were issued by the appellant under the authority of Maharaj~~Bir Singh

and his father, Maharaj Partap Singh, and widely distributed throughout the constituency. The Tribunal also discussed the question as to whether, on those findings, the provisions of s. 123(2) of the Representation of the People' Act, 1951 (which will hereinafter be referred to as 'the Act J, relating to "undue influence", could be said to have been satisfied; and alternatively, whether those findings would bring the case within the provisions of cl. (3) of s. 123 of the A0t,

I959

Ram Dial

Sant Lal b Others

Sinha ].

I959

Rani Diut

Sant Lril & Other.~

relating to systematic appeal on grounds of caste, race, community or religion, etc.

The Tribunal appeared to be inclined to the view that a command in terms of exh. P. 1, emanating from a religious head, like the Sat Guru, to his followers-mostly illiterate and ignorant persons..,.-may well be construed as" undue influence" ..

But alternatively, it also held that even if the provisions of cl. (2) of s. 123 of the Act, had uot been satisfied, the case had been brought well within the purview of cl. (3) of s. 123. Other issues were either not pressed or were decided against the petitioner in t.hat court. The Tribunal, therefore, declared the appellant's election void under s. lOO(l)(b) of the Act..

In view of the fact that the petitioner had failed to substantiate many of his allegations, the Tribunal directed the parties to bear their own costs.

The appellant preferred an appeal which was heard by a Division Bench (Falshaw and Dua, JJ.) of the High Court of Judicature for the State of Punjab at Chandigarh.

The High Court substantially affirmed the findings of the Election Tribunal on issue No. 4 aforesaid.

The High Court also accepted the oral evidence adduced on behalf of the respondent, with particular reference to the publication and wide distribution of the poster, exh. P. I. In the course of its judgment, the High Court observed:

"The language of the mandate and the general background and circumstances of this case including the obvious consciousness of Maharaj Pratap Singh and Ram Dial of the probable and likely effect of such commands on the illiterate, ignorant and credulous followers of the Maharaj can lead but to one conclusion that it was intended to convey to them the threat of divine displeasure and spiritual censure if they dared to disobey the f arman of their supreme spiritual and religious head." In answer to the contention that the f arman had been motivated not by religious considerations bnt by a personal grievance, the High Court did not attach any importance to the alleged differenc'!l in the motive, and observed: . " If the influence exercised by the religious and

spiritual head has the effect of creating in the minds of the voters a feeling of divine displeasure or spiritual censure then whatever the motive, the influence \vould amount to undue influence.

The contents of the poster reproduced earlier unequivocally establiRh the mandatory nature of the command. Religious sanction is, in my opinion, implict in it and I think, on a reasonable construction of its contents, it must be held that Maharaj Pratap Singh intended to convey to his followers who are mostly illiterate, igtiorant, credulous and unsophisticated villagers, ha viug blind and implicit faith in their religious head that if they did , not vote for Ram Dial, they would incur. divine displeasure and spiritual censure.

With this class of villagers the displeasure of the religious head is usually associated with divine displeasure." Dealing with the scope of s. 123(2), it held that the language of the poster, exh. P. 1, construed in the light of the oral evidence, left the Court in no doubt that Maharaj Partap Singh's Jarman did necessarily imply divine displeasure and spiritual censure for those who chose to disobey the Jarman.

In its view, therefore, the facts, as found, attracted the provisions of s. 123(2) of the Act. It also held that the evidence led in the case, established that the meetings addressed by Maharaj Partap Singh and others, in support of the election of the appellant, induced the belief that the voters would incur divine diRplcasurc or spiritual censure if they did not vote ip accordance with the mitndate issued by the Maharaj; thus, clearly establishing the commission of corrupt practice of "undue influence ". The High Court also examined the question whether the corrupt practice falling under cl. (3) of s. 123 of the Act, had been established, and decided the question in the negative, though not without some hesitation. It further held that the publication of the poster, exh. P. 2, did not bring the case within the purview of s. 123(4) of the Act. In the result, the High Court agreed with the conclusion of the Tribunal, declaring the election void, and dismissed the appeal with costs.

The appellant applied to the High Court, praying for the necessary certificate that the

I959

Ra, m lJial v.

Sant Lal & Others

Sinh~ } .

r959

Ram Dial v.

Sant Lal & Others

Sinha J.

case was a fit one for appeal to this Court, and that Court granted the certificate. Hence, this appeal.

After the decision of the Tribunal and of the High Court, the only question for determination in this appeal, is whether, on the findings of fact recorded, as stated above, the corrupt practice of" undue influence", as defined ins. 123(2), has been made out. It has been argued on behalf of the appellant that the main cl. (2) of s. 123, is out of the way of the parties in this case, because it applies only to threats of injury to person or property and not to what may be termed "spiritual undue influence",· which is specifically covered by sub-cl. (ii) of proviso (a) to cl. (2) of s. 123.

It was further argued that the word " deemed " would show that the proviso is by way of an addition to the main provision of cl. (2) of s. 123; that is to say, what was not actually covered by the main cl. (2), has been added to the ambit of the definition by the proviso. It has further been argued that cl. (2) is directed against unduly influencing individual voters, and reliance was placed upon the cases of Cheltenham (1 ), Nottingham(') and North Durham('). Reference was also made to the observations in ".Rogers on Elections"('), and it was argued that an electoral right, as defined in s. 79(d) of the Act, is a personal individual right, including the right to vote or to refrain from voting at an election.

Hence, there should have been pleading by the petitioner and finding by the Court on evidence that certain named individuals had been subjected to the corrupt practice of undue influence. Secondly, in the absence of any such pleading or finding, a general allegation of the corrupt practice of undue influence, without :reference to individuals, is not enough in law to vitiate an election.

The corrupt practice of undue influence has been defined in cl. (2) of s. 123 of the Act, in these terms:-

" (2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other

(1) (1869) l O'M. & H. 62, 64.

(2) (1869) 1 O'M, & H. 245, 246.

(3) (1874) 2 O'M, & J-l, 152, 156.

(4) Vol,, II 20th Ed, p. 329.

person, with the consent of a candidate or his election agent, with the free exercise of any electoral right : Provided that-

(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who-

(i) threatens any candidate, or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or community; or

(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;

(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause".

It should be observed, at the outset, that the law in England, relating to undue influence at elections, is not the same as the law in India, as will appear from the following definition of" undue influence " contained in s. 2 of 46 & 4 7 Viet. c. 51, which substantially re-enacted the former s. 5 of 17 & 18 Viet. c. 102 :-

"Every person who shall directly or indirectly, by himself or by any other person on his behalf, make use of or threaten to make use of any force, violence, or restraint, or inflict or threaten to inflict, by himself or by any other person, any temporal or spiritual injury, damage, harm, or loss upon or against any person in order to induce or compel such person to vote or refrain from voting, or on account of such per. son having voted or refrained from voting at any election, or who shall by abduction, duress, or any fraudulent device or contrivance, impede or prevent the free exercise of the franchise of any elector, or shall thereby compel, induce, or prevail upon any

Ram Dial v.

Sant Lal & Others

Sinha ].

Ram Dial

Sant Lal 6' Others

Sinha j,

758 SUPltEME COURT REPORTS [1959) Supp.

elector either to give or to refrain from giving his vote at any election, shall be guilty of undue influence".

The words of the English sta.tute, quoted above, Jay emphasis upon the individual aspect of the exercise of undue influence. It was with reference to the words of that statute, that Bramwell, B., made the following observations in North Durham('):-

"When the language of the Act is examined it will be found that intimidation to be within the statute must be intimidation practised upon an individual ''.

The Indian law, on the other hand, does not empha- • sise the individual aspect of the exercise of such influence, but pays regard to the use of such influence as has the tendency to bring about the result contemplated in the clause.

What is material under the lndian law, is not the actual effect produced, but the doing of such acts as are calculated to interfere with the free exercise of any electoral right.

Decisions of the English Courts, based on the words of the English statute, which are not strictly in pari materia with the words of the Indian statute, cannot, therefore, be used as precedents in this country.

In the present case, we are not concerned with the threat of temporal injury, damage or harm. On the pleadings and on the findings of the Tribunal and of the High Court, we are concerned with the undue exercise of spiritual influence which has been found by. the High Court to have been such a potent influence as to induce in the electors the belief that they will be rendered objects of divine displeasure or spiritual censure if they did not carry out the command of their spiritual head. It was argued that exh. P. l, on which so much stress was laid by the Tribunal and by the High Court, did not contain any such direct threat as would bring the case within the second p; uagraph of proviso (a) to s. 123(2). Exhibit P. 1, as officially translated, is in these terms:-

"A command from Shri Sat Guru Sacha Padshah to the Namdharies of Halqa-Sirsa ".

"Every Namdhari of this Halqa is commanded by Shri Sat Gnru that he should make every effort for

(t) (1874) 2 O'M. & H. 15z, 156.

the success of Shri Ram Dayal Vaid, a candidate for the Punjab Vidhan Sabha, by giving his own vote and those of his friends and acquaintances, it being our primary duty to make him successful in the election.

The election symbol of Shri Vaid is a riding horseman.

Sd. Maharaj Bir Singh S/o Sat Guru Maharaj Partap Singh,

Jivan Nagar (Hissar) ".

We have looked into the original document also, and we agree with the High Court that the crucial words, like hukam of Shri Sat Guru Sacha Padshah, etc., have been printed in very bold letters, conveying the distinct impression to the large number of Namdharis, who are voters in the constituency, that it was a matidate from their spiritual guru who wielded great local influence amongst them, that it was their bounden duty, under the strict orders of their religious leader, not only to cast their own votes in favour of the particular candidate, but also to exert their influence amongst their friends and acquaintances in favour of that candidate; and that any infringement of that mandate had implicit in it divine displeasure or spiritual censure. It was contended on behalf of the appeUant that a religious leader has as much the right to freedom of speech as any other citizen, and that, therefore, his exhortation in favour of a particular candidate should not have the result of vitiating the election. There cannot be the least doubt that a religious leader has the right freely to express his opinion on the comparative merits of the contesting candidate and to canvass for such of them as he considers worthy of the confidence of the electors. In other words, the religious leader has a right to exercise his influence in favour of any particular candidate by voting for him and by canvassing votes of others for him. He has a right to express his opinion on the individual merits of the candidates. Such a course of conduct on his part, will only be a use of his great influence amongst a particular section of the voters in the constituency ; but it will amount to an abuse of his great influence if

Ram fJial v.

Sant Lal

Q>. 01hers

SiHha ].

I959

Rani Dial v.

Sant Lal & Others

Sinha ].

the words he uses in a document, or utters in his speeches, leave no choice to the persons addressed by him, in the exercise of their electoral rights. If the religious head had said that he preferred the appellant to the other candidate, because, in his opinion, he was more worthy of the confidence of the electors for cert:lin reasons good, bad or indifferent, and addressed words to that effect to persons who 1_Vere amenable to his influence, he would be within his rights, and his influence, however great, could not be said to have been misused.

But in the instant case, as it appears, according to the findings of the High Court, in agreement with the Tribunal; that the religious leader practically left no free choice to the Namdhari electors, n.ot only by issuing the hukam or f arman, as contained in exh. P. I, quoted above, but also by his speeches, to the effect that they must vote for the appe!Iant, implying that disobedience of his mandate would carry di vine displeasure or spiritual censure, the case is clearly brought within the purview of the second paragraph of the proviso to s. 123(2) of the Act. This :1spect of the case has been dealt with at length by the High Court in a well-considered judgment, and we do not think it necessary to repeat all those observations, beyond saying that we agree with them. •In that view of the matter, it is not necessary for us to consider the further question whether cl. 2 of s. 123 of the Act, apart from the proviso-para. (ii), discussed above-covers a case, like the present, where the. undue influence is of a spiritual character as distinguished from threats of irijury to person or property.

As t.he main ground urged in support of the appeal against the judgment of the High Court, fails, the appeal must be dismissed with costs to the respondent No. I.

Appeal dismissed.

s. 4(1)

s. 161

Indian Penal Code

RAM DIAL

SANT LAL AND OTHERS

B. P. SINHA, J.

L. KAPUR

M. HIDAYATULLAH, JJ.

Representation of the People Act

s. 123(2)

Representation of the People Act

s. 123(2)

s. 123

s. 123

s. 123

s. 123(2)

s. 123(2)

s. 123

s. 123(4)

s. 123

s. 123

s. 123

s. 79(d)

s. 123

s. 2

s. 5

s. 123(2)

s. 123(2)

cl. 2

s. 123