Harisingh Pratapsingh Chawda v. Popatlal Mulshanker Joshi & Ors.
F. S. Nariman, P. H. Parekh, Mrs. S. Bhandare and Manju Jaitley
for respondent No. 1.
The Judgment of the Court was, delivered by
ALAGIRISWAMI, J. This appeal arises out of an election petition
questioning the election of 1st respondent in the election held in
March 1971 to the Lok Sabha from the Banaskantha constituency in
Gujarat. In that election the !st respondent, a nominee of the
Ruling Congress was declared elected securing 1,16,632 votes as
against 92,945 votes secured by the 2nd respont!ent, a nominee of the
Organisation Congress. The appellant, a voter in the constituency,
also belonging to the Organisation Congress, filed a petition challeng
ing the validity of the election on various grounds out of which onlv
those covered by issue No. 10. hereinafter set out, survive for consi-
deration : •
"(10) Whether respondent No. I or his agents or/
other persons with his consent made a gift or promise of
gratification to the petitioner with the object directly or
indirectly of inducing the petitioner to vote for respondent
No. I or to refrain from voting for respondent No. 2 ?"
The allegation relating to this charge in the election petition is
that the !st respondent and his agent Maulvi Abdur Rehman and the
.1st respondent's son Bipin Popatlal Joshi with the consent of the !st
Tespondent had made a gift and a promise of gratification to the appel
lant for voting in 1st respondent's favour. The apoellant as well as
-one Madhusudansinhji, who has been examined as P.W. 10, seem to
have been at that time prominent members of the Organisation Con
gress and also leaders of the Kshatriya community which formed
900 SUPREME COURT REPORTS [19761 1 s.c.R.
about 20 to 25 per cent of the votes in the Banaskantha constituency.
It was alleged that on February 9, 1971 the !st respondent and Maulvi
Abdur Rehman came to the appellant's residence and persuaded him
to leave Congress (0) and join Congress (R) offering (!) to secure
a party ticket for the appellant for the election to the Gujarat Legisla
tive Assembly in 1972, (2) to meet all his expenses for that election
and to pay him Rs. 10,000/- in cash towards the said expenses, and
~3) to construct a hostel for the Kshatriya students of the Banas
kantha district. A specific allegation was made that the 1st respon
dent wanted the appellant to vote for him. It was also al!eg'*1 that
the !st respondent asked the appellant to convey to Madhusudansinhji
an offer of a party ticket for th!" Legislative Assembly election in 1972
and to pay him also a snm of Rs. 10,000/-. The Prime Minister was
addressing a meeting at Palanpur on that day. The appellant, his
wife and Madhusudansinhji were taken to the helipad, Palanpur when
the Prime Minister landed there and also to the dais from which the
Prime Minister was addressing a public meeting. One Akbarbhai
Chavda, convener of the District Congress Committee announced that
the appellant and Madhusudanslnhji had joined Congress (R), and
asked the appellant to say a few words. The appellant went to the
microphone, took out the bundle of notes of Rs. 10,000/- given to
him and flung it in the air and told the gathering that he and his
colleagues could not be purchased and that they would remain loyal to
the Organisation Congress.
During the trial of the electioA petition Madhusudansinhii. who
had by that time joined the Ruling Congress and Maulvi Abdur
Rehman were examined as witnesses on behalf of the appellant.
The learned Judge of the High Court after considering the evi
dence before him held that Bipin Popat!al Joshi, son of the !st res
pondent, handed over Rs. 10,000/- to the appellant as a bribe to
bring about the appellant's defection from the Organisation Congress.
But he took the view that the object of the gift was to bring about the
appellant's defection from the Organisation Congress and not induce
directly or indirectly any vpters to cast their votes for the Ruling Con
gress candidate or to refrain from voting in favour of the 2nd respon
dent. As regards the offer to build the hostel for Kshatriya
students he held that the fact that a person who defects from another
party to the Ruling Congress would be expected to work for that
party and would be expected to use his personal influence in support
of the candidate of that party does not mean that the object of bring
ing about the defection was to indirectly induce the Kshatriya voters
to cast their votes for the 1st respondent. He therefore held that pay
ment of such money and holding out such inducement does not
amount to any offence under the Election Law and it was with regret
that he had to decide the case in favour of the 1st respondent.
We are in entire agreement with the finding of the learned Judge
as regards the payment of Rs. 10,000/- to the appellant and also the
9ffer to build hostel for Kshatriya students and do not consider it
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H. p. CHAWDA v. P. M. JOSHI (Alagiriswami, J.) 901
A necessary to go into the evidence in support of that finding. That
findmg 1s supported not only by the eVJaence of Madnusudansinhj1
and !YlaUlv1 Atxlur Rehman but also the Jetter Ex. T, passed by the
latter to tne appetlant ana Maa.nusudansinhji.
The question is whether that finding is enough to establish the
charge ot bnbery against the !st respo$ent. There is still another find
ing necessary m regard to the allegations made in the petition in respect
ot w.h!ch tne learned Judge has given no finding and that is with regard
to what happened on the 9th of February 1971. We are at one with
the view ot the learn<# Judge that the payment of Rs. 10,000/- to
the appellant was with a view to induce hinI to defect from Organisa
tion Congress to the Ruling Congress. It may carry with it the impli-
cation that he was expected to use his influence with the voters to
vote for the candidate set up by the Ruling Congress. It has been
held by this Court in Kalia Singh v. Genda Lal & Ors. (1) to which
two of us (Untwalia & Alagiriswami JJ) are party, that a payment
made to a person in order to induce him to canvass votes on behalf
of the bribe giver would not be bribery within the definition of that
word in section 123(1) of the Representation of the People Act. It
was held that it is only in a case where the payment to a third person
by itself induces the voter to vote for the bribe giver that it would fall
miller s. 123 ( 1). Mr. Andley appearing on behalf of the appellant
tried to persuade us, that that decision requires reconsideration. After
having considered his arguments we are still of the opinion that the
view taken in that decision is correct. The object of providing that
a payment s\lould not be made to a person in order that that payment
should induce some other person to vote for the bribe giver is obvious.
It is apparently intended to cover situations where payment to a hus-
band, wife, son or father is intendeti to induce the wife, husband,
father or son to vote for the bribe giver. That would be indirect
inducement. Otherwise it would be easy for the bribe giver to say
that he did not bribe the voter himself and therefore it is not bribery.
That this provision was not intended to cover a case where money is
paid to a certain person in or<!er to make him induce another person
to vote for the person who paid him the money wouJld be obvious by
looking at the converse case. Under s. 123(1)(B)(b) the receipt of
or agreement to receive, any gratification, whether as a motive or a
reward by any person whomsoever for himself or any other person for
voting or refraining from voting, or inducing or attempting to induce
any elector to vote or refrain from voting, or any candidate to with
draw or not to withdraw his candidature is bribery. Under this clause
any person who receives or agrees to receive any gratification as a
reward for inducing or attempting to induce' any elector to vote etc.
would be receiving a bribe. The law therefore contemolates that
when a person makes any oavment to another person in order to make
him use his influence to induce a third person to vote for him that is
no~ bribery by the person who oavs but the receiot of mnney bv the
second person for inducing or attempting to induce Rnother elector
to vote is bribery. It is also bribery for the voter ·himself to receive
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(!) [1975] 3 S. C.R. 783.
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902 SUPREME COURT REPORTS [ 197 6] 1 s.c.R.
the money. We, therefore, reiterate the view that when a candidat<
Dr anybody on his behalf pays any gratification to a person in order
that the payment made to him may induce the voter to vote for the
bribe giver it is bribery. But where the gratification is paid to a per
son in order that he may induce the other persons to vote for the bribe
giver it is not bribery on the part of the bribe giver. It is, however,
as we have explained above, bribery on the part of the bribe taker
even when he takes it in order to induce an elector to vote for the
bribe giver.
In thls case it is obvious that the primary object of the payment
made to the appellant was to induce him to defect from the Organisa·
tion Congr-oss to the Ruling Congress. That is not a corrupt practice
under the Representation of the People Act. Even if the payment
was received _with the promise that he would induce the voters to vote
for the bribe giver it will not be bribery on the part of the bribe giver
but only bribery on the part the bribe taker. The defection of the
appellant to the Rulillg Congres§, if it took place, might mean that he
was expected to work for the Ruling Congress. Equally it may not.
A person who changes his party allegiance at the time of the election
probably might not command much respect among electors if the
electors knew that he had done so after receiving some money. Other
wise the fact that two important persons the appellant and Madhusu
dansinhji, a younger brother of the ex-ruler of Danta State had joined
the Ruling Congress. might be expected to inflnence the voters to vote
for the canldidate set up by the Ruling Congress. But that would be
not because of the payment made to the appellant and Madhusudan
sinhji. Nor would such payment be bribery. To reiterate, it is the
payment to the appellant that must induce the voters to vote for the
candidate set up by the Ruling Congress in order that it might amount
to bribery. It is not enough that his defection from Organisation
Congress to the Ruling Congress induces voters to vote for the Ruling
Congress candidate. As we said earlier. if the payment to the appel
lant came to be known as the cause for his changing allegiance it may
have a boomerang effect. It is therefore clear that the payment
made to the appellant would not have induceld the voters to vote for
the Ruling Congress candidate. While after his defection therefore the
appellant might have been expected to work for the Ruling Congress
candidate or equally might not have been, it is perhaps implicit that
he would also vote for the Ruling Congress candidate. Is this enough
to make the payment made to the appellant bribery ? The payment
was made not for the purpose of inducing him to vote but to make
him defect to the Ruling Congress. That was the purpose for which
the payment was made. That incidentally he might vote for the
Ruling Congress candidate does mean that the payment was made to
him in order to make him vote for the Ruling Congress candidate.
The bargain was not for his vote, the bargain was for his defection.
Therefore. on this point we agree with the learned Judge of the High
Court. But if there was a specific request by the 1st respondent to
the appellant that he should vote for him then the position would be
different. In that case it would be bribery and even bribery to one
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H. P. CltAWDA v. P. M. JOSHI (Alagiriswami, !.) 903
person is enough to make an election void. A specific allegation to
that effect has been made iu the election petition and that has not been
considered by the learned Judge of the High Court. We shall now
proceed to do so.
The appellant gave evidence to the effect that the 1st respondent
asked him on 9th February to vote for him and made the three pro
mises earlier referred to. He was not cross-examined on that point
but the 1st respondent in his turn denied this when he gave evidence.
Maulvi Abdul Rehman speaks t_q his having met the appellant on
February 9, 1971 but he says that the 1st respondent was not with him
at that time.· Madhusudansinhji says that he had met the appellant
before the 14th and that at that time the appellant told him that the
Maulvi and the I st respondent were insisting (hat the appellant and
he (Madhusudansinh) should join Congress (R). He also denied a
suggestion put to him in cross-examination that it was not true that
the appellant hakl told him before the 14th of February anything
about the Maulvi or the !st respondent telling the appellant that the
appellant and he (Madhusudansinh) should join the Congress (R)
on certain terms. This is the e.vidence relied on to show that on the
9th the !st respondent also had met the appellant. If the appellant
and Madhusudansinhji had met at Palanpur before the 14th and the
appellant then told him that Maulvi and the !st respondent were insist·
ing that they shoulU join the Ruling Congress the meeting should have
been on the 13th or earlier and the request to him on the 12th or
earlier. Naturally having chosen to examine Madhusudansinhji, who
had by that time joined the Ruling Congress, as his witness the appel
lant would not have risked putting questions about the exact date on
which Maulvi and the !st respondent had met him. Quite possibly
there was no such meeting on the 9th of February and that was why
that question was not specifically put to him. When that question
was put to Maulvi Abdul Rehman, who was examined as P.W. 8 a
little earlier, he denied that the !st respondent was with him on the
9th February. Coming to the conversation which the appellant and
Madhusudansinhji had before the 14th, if the Maulvi and the I st res
pondent were insisting either on the 13th or earlier that the appellant
should join the Ruling Congress there should have been a meeting
between them a little earlier than the 13th and it should have been
on the 9th is the argument on behalf of the appellant. But there are
many imponderables in this argument. If the Maulvi and the 1st
respondent were insisting that the appeJlant and Madhusuldansinhii
should join the Ruling Congress it does not mean that they both did
so at the same time. They could have been doing it on different
occasions separately. Nor does it follow that the Maulvi and the
1st respondent met him on the 9th. Nor does it follow that on that
date the 1st respondent asked the appellant to vote for him. The
statement of Madhusudansinh is too s~ender a foundation on which this
argument could be built. It is thus a case of the appellant's oath
against 1st respondent's oath and in a case of a serious charge like
bribery we would not be satisfied merely on the basis of an oath
:against oath to hold that it has been satisfactorily established that the
1st respondent asked th.e' appellant on 9th February to vote for him.
H~ may a1so mention that with regard to the alleged visit of the
Mau1v1 and the 1st respondent to the appellant three other possible
witnesses including the appellant's wife, Pushpaben. who could have
been exalllined to establish that the 1st respondent accompanied the
Maulvi to the appellant had not been exarruned. A further tact which
improbabilises this story is that in the election petition it is stated that
the 1st respondent told the appellant that he would arrange for a
ticket for Madhusudansinh in the 1972 clcqtions and pay him
Rs. 10,000/- if Madhusudansinh left Organisation Congress and
joined the Ruling Congress and voted and worked for him (1st respon
dent) and asked him to convey the offer to Madhusudansinh. No
evidence was let in about the voting and what is more Madhusudan
sinh was nQt a voter in the Banaskantha Constituency. This shows
that the allegation regarding the request to appellant to vote for 1st
respondent is of the character as the request to Madhusudansinh and
put in merely for the purposes of the election petition anll not a fact.
On broader considerations also it is very unlikely that when the talk
was about the appellant and Madhusudansinh defecting to the Ruling
Congress from the Organisation Congress there would have been any
talk about the voting itself. All parties would have proceeded on the
understanding that when they defected to the Ruling Congress they
would both work and vote for the Ruling Congress. The distinction
between a gift or offer combineld with the request to vote and the gift
or offer to a person asking him to work for him with the incidental
resnlt that that person might vote for him should always be kept in
mind. In such a case there is no specific bargain for the vote. Were
it not so it would be impossible for persons standing for election to
get any person to work for them who is not also a voter in the cons
tituency. This was brought out by this Court in the decision in
Onkar Singh v. G/zasiram Maj/zi(1). We would, therefore, hold that
the case that 1st respondent bargained for the appellant's vote has
not been satisfactorily made ou\.
On behalf of the 1st respondent it was urged that the actions of
the appellant and Madhusudansinhji immediately after the payment of
Rs. 10,000/- anld the dramatic developments at the meeting addressed
by the Prime Minister show that there would not have been any bar
gaining for the appellant's vote. The points relied upon were (1)
that it was not said by the appellant when he threw the money into
the crowd on the 18th that he was asked to vote for the 1st res
pondern, (2) that it was not mentioned in the statement (Ex. 5) made
by the "ppellant and Madhusudansinh.ii on 18-2-1971, (3) that that
was not mentioned in the interview given to the newspaper reporters
found in Ex. 7 or in the newspaper report Ex. 8. We do not consider
that these things arc of much importance. At that time the most im
portant factor was the attempt to persuade the appellant and Madhusu
dansinhji to defect to the Ruling Congress and any request to the
appellant to vote for the 1st respondent would have been insignificant
ill 39 M.CR.An
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H. P. CH;AWDA v. P. M. JOSHI (Alagiriswami, !.) 9e5.
even as we have held that when requesting the appellant and Madhu
sudansinhii to defect to the Rulin!J Congress it is not likely that they
would have been asked to vote for the !st respondent. The reference
to the piece of evidence just mentioned cannot be sai.\! to establish
that there was no request made to the appellant to vote for the 1st
respondent. That would have to be decided on other factors and
other evidence and on the basis of that evidence we have already held
that it is not established that the 1st respondent requesteU the appel
lant to vote for him.
Now remains the question of the offer to build a hostel for Ksha-·
triya boys. Strictly speaking this does not arise on issue 10. This.
is probabilised by the evidence of Madhusudansinhji, Maulvi Abdul
Rehman and the appellamt as well as Ex. T. Whether it was to be iTu
Danta or Banaskantha does not make much difference as long as it
was for the Kshatriya boys. The two places are near to each other
though in different Parliamentary constituencies and in whichev~r
place it was situate it will benefit Kshatriya boys and there is no·
doubt that if the hostel were constructed by respondent No. 1 or the
Ruling Congress party at his instance that would induce the voters to·
vote for the Ruling Congress candidate. But before that happens the
matter should come to the knowledge of the voters. Only if the
voters knew that the promise had been made to the appellant and
Madhnsudansinhji that promise would induce the voters to vote for
!st respondent. But the knowledge of the promise remained confineld
to the appellant and P.W. 10, in addition of course to Maulvi Abdul
Rehman and the !st respondent's son. If the payment or the pro
mise was to induce the voters, it cannot induce the voters uHle'ss they
come to know about the payment or the promise. There is no evi
dence here that the voters knew about the promise to build the hostel.
The bargain in such cases as we have mentioned in the iud~ment
delivered by us today in S. Iqbal Singh v. Gurdas Singh & Ors. (1) is
really an offer on the part of the bribe giver that he would do such a
thing if the voters would vote for him. It is not necessary that the
voters should have accepted it. But the voters should have a know
ledge about the offer. Then only it would be a bargain. An offer
contemplated and retained in the mind of the offerer and not articulated
and made known to the offeree will not be a bargain. It therefore
follows that in this case the offer to build a hostel does not also amount
to bribery.
In the result we upheld the judgment of the High Court and dis
mise this appeal. We make no order as to costs.
P.H.P. Appeal dismissed.
(1) [1976] I S.C.R. 884.
1