Research › Browse › Judgment

Supreme Court of India · body

1960 DIGILAW 122 (SC)

Abdul Hamid Choudhury v. Nani Gopal Swami

1960-04-11

K.C.DAS GUPTA, K.N.WANCHOO, P.B.GAJENDRAGADKAR

body1960
JUDGMENT : P.B. Gajendragadkar, J. 1. The appellant Abdul Hamid Chaudhury had been duly declared elected at the election held on March 2, 1957, for the Assam Legislative Assembly from the South Karimganj Constituency. At the said election Respondent 1 Nani Gopal Swami and Respondent 2 Akhlakur Rahman Choudhury had also offered themselves as contesting candidates. It appears that the appellant was the candidate of the Congress whilst Respondent 1 had been adopted by all the leftists who had joined in alliance as the Leftist Front, while Respondent 2 stood as an independent. The result of poll showed that the appellant secured 13,402 votes and Respondents 1 and 2 11,382 and 749 votes respectively. he result of the election was announced Respondent 1 filed an election petition in which he challenged the validity of the appellant's election on several grounds. At the hearing three grounds were seriously pressed before the Election Tribunal. The first ground was that one Abdul Bari, a teacher of the local L.P. School of Village Dullavpur was an agent of the appellant and had been caught redhanded in possession of 17 ballot papers issued to different voters on the date of the poll. The respondents' case was that these ballot papers had been secured by Abdul Bari from the respective voters on payment of Rs. 1 per ballot paper delivered to him. This corrupt practice had been adopted by the appellant's agent in order to prevent the electors from exercising their franchise at the election. The second ground urged was that the appellant Jehad had declared amongst the muslim community and told his co-religionists at several meetings that the impending election was a religious war which the muslims had to fight against Respondent 1 who was a Hindu kafir. This appeal was made by the appellant at several meetings prior to the election. The Jehad thus declared constituted a corrupt practice. The third contention raised by Respondent 1 was that an article had appeared in the Congress weekly paper Navasakti on February 20, 1957, under the caption "Muslim Rusiar" "Bamponthidaler Parikalpana". This paper was published by the Congress organisation at Karimganj and Respondent 1 urged that the article had been published at the instance of the Congress Party and amounted to corrupt practice on the part of the appellant. This paper was published by the Congress organisation at Karimganj and Respondent 1 urged that the article had been published at the instance of the Congress Party and amounted to corrupt practice on the part of the appellant. According to Respondent 1 the said three corrupt practices had been resorted to by the appellant and/or with the consent of the appellant by his agents and other persons. The appellant denied these allegations. He did not admit that Abdul Bari was his agent or canvassed for him, and he denied that Abdul Bari had ever got hold of any ballot paper as alleged or that he did so with his consent. He urged that he had not declared any Jehad and in fact had not addressed any meetings as alleged by Respondent 1 and he disowned any connection with the publication of the article in Navasakti on which Respondent 1 relied. 2. On the pleadings filed before it by the respective parties the Tribunal framed various issues, and it answered all of them in favour of the appellant. The result was that the election petition filed by Respondent 1 was dismissed. Respondent 1 then preferred an appeal to the Assam High Court. The High Court has held that Abdul Bari was the agent of the appellant and that he was found in possession of certain voting papers as alleged by Respondent 1. It, however, found that there was no direct evidence adduced in the case which would show that Abdul Bari had secured the said voting papers by offering a bribe. Statements (Exs. 12, 13 and 16) made by three voters on which Respondent 1 relied were held by the High Court, in agreement with the Tribunal, to be inadmissible in evidence. The High Court no doubt thought that the Tribunal could in the interest of justice have compelled the three voters in question to appear before it to give evidence; but on the evidence as it stood on the record the High Court found that the corrupt practice alleged in regard to the said voting papers had not been proved. The High Court no doubt thought that the Tribunal could in the interest of justice have compelled the three voters in question to appear before it to give evidence; but on the evidence as it stood on the record the High Court found that the corrupt practice alleged in regard to the said voting papers had not been proved. Then, as regards the Jehad which, according to Respondent 1, had been declared by the appellant in several meetings held on behalf of the appellant prior to the election, the High Court agreed with the Tribunal that the evidence given on behalf of Respondent 1 in regard to a large number of meetings at which Jehad was alleged to have been declared was unsatisfactory; however, it came to the conclusion that on the evidence in regard to three meetings about which Respondent 1 gave evidence it could be safely held that the appellant had declared a Jehad and made statements in support of the said call thereby committing corrupt practice under Section 123, sub-section (3) and Section 123, sub-section (2)(b)(iii) of the Representation of the People Act, 1951 (hereinafter called the Act). Even in regard to the case of Respondent 1 in respect of the publication in Navasakti the High Court deferred from the Tribunal and held that the appellant was responsible for the said publication and that also constituted a corrupt practice under the Act. Before the High Court it was conceded that the impugned article was objectionable. Thus the High Court differed from the Tribunal on two of the three pleas raised by Respondent 1 and in consequence it allowed the appeal preferred by Respondent 1 and held that the appellant had not been validly elected at the general election in question. Aggrieved by this decision the appellant applied for and obtained a certificate of fitness from the High Court and it is with this certificate that he has come to this Court. 3. The first point which Mr Agarwala, for the appellant, has raised for our decision is that the petition filed by Respondent 1 was materially defective inasmuch as no details had been given about the corrupt practice in regard to Jehad on which Respondent 1 relied. He has invited our attention to the allegations made in para 8 of the petition in support of this argument. He has invited our attention to the allegations made in para 8 of the petition in support of this argument. In para 8 Respondent 1 has alleged that in various election meetings held by the appellant which were attended by a large number of muslim voters he delivered speeches the effect of which was to tell the muslim voters that the election was a religious war in which they must support him against Respondent 1 who was a kafir. These meetings were held between February 1, 1957 up to March 1, 1957. Mr Agarwala has placed considerable reliance on the fact that verification of the petition shows that the allegations contained in para 8 were true to the knowledge of Respondent 1, and he contends that if Respondent 1 knew about the meetings in question he ought to have given details about the time and place of the meetings and particularised his allegations in that behalf. The appellant denied these allegations in his written statement and in fact alleged that he had attended no meeting at all as suggested by Respondent 1. 4. It is true that under Section 83, sub-section (1)(b) the election petition has to set forth full particulars of any corrupt practice alleged by the petition including the date and place of the commission of each such corrupt practice. Under Section 90, sub-section (5) the Tribunal is empowered to allow the particulars of any corrupt practice alleged in the petition to be amended or amplified as it may deem necessary and just. Mr Agarwala's grievance is that in the absence of any particulars the petition itself was incompetent in respect of the particular corrupt practice and the Tribunal should not have framed Issue 4 in that behalf. It would have been open to the appellant to urge before the Tribunal that Issue 4 in respect of the corrupt practice in question should not be framed until and unless Respondent 1 furnished the relevant particulars; but the appellant did not choose to adopt that course. Issue 4 was framed and evidence was led by both the parties in regard to the said issue. In fact no such contention was raised either before the Tribunal or before the High Court. Issue 4 was framed and evidence was led by both the parties in regard to the said issue. In fact no such contention was raised either before the Tribunal or before the High Court. On these facts it is difficult to entertain the appellant's grievance that the trial of this issue is either completely void or should in any case be held to have caused prejudice to him. As has been held recently by this Court in Balwan Singh v. Lakshmi Narain, Civil Appeal No. 411 of 1959. D/d. 23.2.1960 "if the parties go to trial despite the absence of full particulars of the corrupt practice alleged, and evidence of the contesting parties is led on the plea raised by the petition, the petition cannot thereafter be dismissed for want of particulars, because the defect is one of procedure and not one of jurisdiction of the Tribunal to adjudicate upon the plea in the absence of particulars". We must, therefore, reject the first contention raised by Mr Agarwala. 5. The next argument which Mr Agarwala has pressed before us is that in the present case the issues raised for the decision of the Tribunal were issues of fact, and the decision of the Tribunal on the said issues was based on appreciation of oral evidence; in such a case the High Court should not have interfered with the conclusions of the Tribunal on questions of fact. Mr Agarwala naturally relies on the fact that the Tribunal had the advantage of watching the witnesses in the box and so its appreciation of the evidence given by the witnesses should not be lightly disturbed. That no doubt is true. But, on the other hand, the appeal to the High Court against the decision of the Tribunal under Section 116-A of the Act is competent on questions of fact as well as law, and so, if, on considering the evidence, the High Court is satisfied that the appreciation of the evidence by the Tribunal is wholly unsatisfactory, or that the reasons given by the Tribunal in accepting or rejecting certain evidence are open to serious objection, then it would certainly be competent to the High Court to interfere with the conclusions of the Tribunal even on questions of fact. This position is not seriously disputed by Mr Agarwala. This position is not seriously disputed by Mr Agarwala. He, however, suggested that the approach adopted by the Tribunal in appreciating the evidence was, on the whole, very satisfactory, and the High Court was not really justified in adopting a different attitude and in reversing the Tribunal's conclusions. 6. Let us, therefore, briefly refer to the general approach adopted by the Tribunal in appreciating the evidence adduced in this case, and see whether the criticism made by the High Court against it is justified or not. Having examined the evidence given by the witnesses of Respondent 1 in detail the Tribunal has passed certain general criticisms against the whole body of that evidence. It has begun its discussion on this point with the observation that it was referring generally to the status of the various witnesses produced by Respondent 1. The Tribunal has commented on the fact that Respondent 1 has relied on the evidence of some disgruntled Congressmen who have come forward to support Respondent 1's case. According to the Tribunal the witnesses belonging to Nath community were also dissatisfied with the Congress since nobody from their community had been adopted as a candidate in the General Election. In other words, the Tribunal thought that some of the witnesses examined by Respondent 1 belonged to his party, the others belonged to the dissatisfied Congress group while some belonged to the community which was dissatisfied with the Congress. The High Court took the view that this approach was not fair or satisfactory. It thought that this facile way of discarding evidence by characterising the groups of witnesses as interested in favour of Respondent 1 or embittered against the Congress was really not fair, and that if such a test was adopted then no conscientious person would venture to assist the Tribunal "because whether he deposes for or against his party, in either event he runs the risk of being disbelieved and his evidence being rejected on that score". In regard to the criticism against the Nath community the High Court has observed that members of the said community according to unimpeachable evidence in fact had worked for the Congress and its nominee, and so it is idle to criticise a witness on the ground that he belonged to Nath community. In regard to the criticism against the Nath community the High Court has observed that members of the said community according to unimpeachable evidence in fact had worked for the Congress and its nominee, and so it is idle to criticise a witness on the ground that he belonged to Nath community. The delay made in citing certain witnesses by Respondent 1 on which the Tribunal very strongly commented did not appear to the High Court to deserve that severe censure. In our opinion, it is difficult to accept Mr Agarwala's argument that the criticism thus made by the High Court against the approach of the Tribunal is not valid. That being so, we cannot accept the plea that the High Court has interfered with the findings of the Tribunal either lightheartedly or without any justification. 7. At this stage we may also refer to some of the comments made by the Tribunal against some witnesses examined by Respondent 1 to show how these comments are wholly unjustified. Abdul Waheb (PW 15) is a fisherman by caste. The Tribunal has begun its comment against this witness by observing that "he calls Respondent 1's family members as `babus' ", and it adds that "he is a fisherman but he says that he did not know how to ply a boat". Evidence does not show that he actually works as fisherman and so it is difficult to appreciate the point of the comment made by the Tribunal. It was put to this witness whether he had been convicted for committing burglary by cutting a singh, and he admitted that he had been so convicted but added that he had been acquitted on appeal. The Tribunal's comment is that there was no evidence to show that he had appealed or that he had been acquitted and that the witness did not remember the name of his Pleader. In our opinion, this comment is wholly unjustified. How a witness should have been ready with a copy of his acquittal in his pocket when he entered the witness box it is impossible to understand. In fact, but for his admission that he had been convicted, there was no other evidence to prove that fact. We see no justification for assuming that the statement about by acquittal was untrue; and yet for such fanciful reasons the Tribunal discarded the evidence of Abdul Waheb. 8. In fact, but for his admission that he had been convicted, there was no other evidence to prove that fact. We see no justification for assuming that the statement about by acquittal was untrue; and yet for such fanciful reasons the Tribunal discarded the evidence of Abdul Waheb. 8. Take another case. Sukhomoy Bhattacharjee (PW 24) gave evidence for Respondent 1 and the Tribunal has commented on his evidence by observing that he was one of those who was suspended from the Congress. How this necessarily goes against the witness it is not easy to appreciate; but apart from that the Tribunal has pointedly observed that the witness had been convicted for abetting the fabrication of a false document but was acquitted by the High Court on appeal and that he is the Chairman of the Cooperative Stores which owes Government arrears of sales tax for which distress warrant goes against him every month. Now if the witness was acquitted 1 by the High Court in appeal it is futile to refer to his conviction which was see aside, and if the cooperative stores is indebted it is irrelevant to refer to that fact against the witness unless the witness was fraudulently responsible for any of those debts. 9. Then, as regards Manoranjan Deb (PW 25) who runs a spinning organisation the Tribunal has referred to some interpellation in the local Assembly in which an allegation was made against him. That again is not a fair way of dealing with the character of the witnesses. We have referred to some of the comments made by the Tribunal which it has included in its general discussion about the evidence of Respondent 1, for the purpose of showing that the High Court was justified in characterising the approach of the Tribunal as unreasonable and unsatisfactory. Besides, it does appear that the Tribunal was inclined to attach undue importance to minor discrepancies in the evidence given by the witnesses of Respondent 1. It is significant that whereas the High Court has severely criticised the appellant for not entering the witness box himself and for not examining Abdul Bari, the Tribunal thought that the said circumstance was of no importance. 10. The High Court has held that the appellant declared Jehad against Respondent 1 in three meetings at which Respondent 1 himself and some other witnesses were present. 10. The High Court has held that the appellant declared Jehad against Respondent 1 in three meetings at which Respondent 1 himself and some other witnesses were present. These meetings were held at Kallyganj, Jatrapur and Kurikhala. The meeting at Kallyganj was held on February 15,1957, at 12 or 12.30 p.m., that at Jatrapur on February 25,1957, at 7.30 or 8 p.m., and that at Kurikhala on February 26, 1957, at 6 or 6.30 p.m. The appellant himself has given evidence about the speeches delivered in all the three meetings. Besides, Bidit Chandra Dutta (PW 21) and Sukhomoy Bhattacharjee (PW 24) have given evidence about the speeches at Kallyganj and Hemendra Kumar Bhattacharjee (PW 8) has deposed to the fact that the meeting had taken place at Kallyganj at the time in question. Evidence about the speeches made at Jatrapur is given by Nabakrishna Pal (PW 7) and Manmatha Nath Dutta (PW 26). The fact that the said meeting took place is deposed by Manoranjan Deb (PW 25). About the meeting at Kurikhala evidence has been given by Ranadhir Bhattacharjee (PW 20), Sukhomoy Bhattacharjee (PW 24), Manmatha Nath Dutta (PW 26), Abdul Samad (PW 13) and Abdul Waheb (PW 15). It is true that the Tribunal thought that the whole of the evidence led by Respondent 1 in regard to the three meetings was unsatisfactory, but the High Court has come to a different conclusion. Mr Agarwala has contended that the evidence given by Respondent 1 and his workers or agents should not have been believed. In our opinion, such a plea cannot be successfully raised before us in an appeal under Article 136. Once it is shown that the High Court was justified in criticising the approach of the Tribunal and in coming to the conclusion that some of the important reasons given by the Tribunal in discarding evidence were unsatisfactory, it was open to the High Court to consider the evidence for itself and reach its own conclusions on the relevant questions of fact. In such a case it would ordinarily not be open to a party to challenge the correctness or the propriety of the findings of fact recorded by the High Court before us in an appeal by special leave. However, we would briefly deal with some of the arguments urged by Mr Agarwala. 11. In such a case it would ordinarily not be open to a party to challenge the correctness or the propriety of the findings of fact recorded by the High Court before us in an appeal by special leave. However, we would briefly deal with some of the arguments urged by Mr Agarwala. 11. Mr Agarwala contended that the evidence of Hardayal Das (RW 1) had not at all been considered by the High Court, and he took us through the whole of this evidence. Mr Agarwala fairly conceded that the Tribunal also does not appear to have referred to this evidence, and if that is so, the High Court cannot be blamed for not considering it, the simple explanation for this omission being that the appellant did not rely upon this evidence at any stage. However, we have looked at this evidence and we find that it cannot materially help the appellant's case. This witness obviously wanted to show that the appellant could not have attended the meeting at Jatrapur as alleged by Respondent 1. It may be pointed out that in this connection the appellant had relied on the evidence of Mr Chaliha who was at the time of the election the President of the Assam Pradesh Congress Committee and has become the Chief Minister of Assam since December 28, 1957. The evidence of this witness which has been believed both by the Tribunal and the High Court shows that he had gone to Karimganj on February 25 where along with the other Congress candidate the appellant met him. According to this evidence except for the period of the meeting which was addressed by him the appellant was with him all the time that the was at Karimganj. He stated that the appellant must have met him between 6 p.m. to 9.30 or 10 p.m. So, on the strength of this evidence the argument was that the appellant could not have gone to Jatrapur to address a meeting when the evidence of Mr Chaliha tended to show that he was at Karimganj at the material time. He stated that the appellant must have met him between 6 p.m. to 9.30 or 10 p.m. So, on the strength of this evidence the argument was that the appellant could not have gone to Jatrapur to address a meeting when the evidence of Mr Chaliha tended to show that he was at Karimganj at the material time. On the other hand, Respondent 1 contended that the distance between Karimganj and Jatrapur being less than 10 miles it was not at all difficult for the appellant to attend, and address the meeting at Jatrapur and go back to Karimganj again; in fact the time taken by the meeting at Karimganj at which Mr Chaliha delivered a speech was long enough to enable the appellant to go to Jatrapur and return to Karimganj in time to meet Mr Chaliha again. The Tribunal accepted the argument of the appellant whereas the High Court has accepted the argument of Respondent 1. Since it was realised that the evidence of Mr Chaliha left the period of one hour or more uncovered Hardayal Das (RW 1) gave evidence. He purported to say that he saw the appellant at Karimganj throughout from 6 in the evening till 9.30 or 10 at night when Mr Chaliha left the place. That is why this witness was asked in cross-examination that he had come to the witness box to fill up the gap left in the deposition of Mr Chaliha, and of course the witness denied the suggestion. Looking at the evidence of this witness it seems very difficult to believe that the appellant managed to be in his presence throughout the period as deposed to by the witness. Apart from the fact that the theory sworn to by the witness appears to be improbable the witness could not seriously deny that he bears a grudge against Respondent 1 who had defeated him in the chairmanship election of the Karimganj Local Board. In fact the witness had made an application against Respondent 1 in regard to that election and had made certain allegations against him. This petition a was subsequently withdrawn by him though the witness denied that he withdrew it because he would not be able to prove his allegation. Thus the witness is both interested in the appellant and is shown to be hostile to Respondent 1. This petition a was subsequently withdrawn by him though the witness denied that he withdrew it because he would not be able to prove his allegation. Thus the witness is both interested in the appellant and is shown to be hostile to Respondent 1. That probably explains why his evidence was not relied upon by the appellant even before the Tribunal. Therefore the failure of the High Court to consider this evidence does not really assist the appellant's case. 12. There is one more witness to whose evidence reference may be made. Abdul Waheb (PW 15) has deposed to the meeting at Kurikhala and the speech made by the appellant at the said meeting. We have already referred to the comments made by the Tribunal against this witness. The High Court considered the evidence of this witness to be very satisfactory. Besides the High Court has observed that he is a muslim and his story that he attended the meeting at which the audience consisted mostly of muslims can be easily believed to be true. This is the evidence given by a person who is not a partisan of Respondent 1 and if the High Court thought that this evidence could be believed no serious objection can be taken against the High Court's conclusion. 13. In regard to the meeting of Kurikhala, however, the appellant relied on the evidence of Birendra Kumar Das. This evidence was intended to show that the appellant could not have attended the meeting at Kurikhala. According to this evidence, on February 26,1957, at about 6.30 p.m. a written information was lodged at the Karimganj Thana stating that there was a riot at about 4.30 p.m. at Kallyganj Bazar by some leftists. On receiving this complaint the witness who was a Police Inspector at once left for Kallyganj Bazar with armed and unarmed constables. There he met the appellant who remained with him all along up to 1 a.m. Now, if this story is true that would supply good evidence to prove the appellant's absence from the meeting at Kurikhala. The Tribunal has just referred to the witness and made no attempt to appreciate his evidence in the light of the several facts brought on the record in his cross-examination. The High Court has examined the infirmities in the evidence of this witness and has shown that he is not at all reliable. The Tribunal has just referred to the witness and made no attempt to appreciate his evidence in the light of the several facts brought on the record in his cross-examination. The High Court has examined the infirmities in the evidence of this witness and has shown that he is not at all reliable. The High Court has noticed the fact that the witness prevaricated as to whether or not he had executed a kabuliyat in favour of the appellant's family without payment of any salami subsequent to this incident or not, and it is pointed out that the witness was obviously interested in the appellant. Besides, according to the High Court the statement of the witness that the appellant remained with him for so many hours when he would normally have been in the midst of his election campaign is extremely improbable. Therefore the High Court thought that the attempt made by the appellant by producing this witness to say that he could not have attended the Kurikhala meeting had failed. We do not see how the appellant can successfully attack this finding of the High Court. We have carefully considered all the arguments urged before us by Mr Agarwala but we do not think that the finding of the High Court on the corrupt practice alleged by Respondent 1 in respect of Jehad declared by the appellant at the three meetings in question is open to any serious objection. If it is shown that Jehad was declared by the appellant in three successive meetings on the eve of the election the conclusion of the High Court that the appellant is guilty of corrupt practice under Section 123(3) as well as Section 123(2)(a)(ii) would be justified. That being so it is unnecessary to consider whether the High Court is also right in its finding that the appellant was responsible for the publication in Navasakti and as such was guilty of another corrupt practice. 14. The result is the appeal fails and is dismissed with costs.