Holding

All three statutory ingredients of Section 123(5) are proved; the respondent procured the jeep and used it for free conveyance of voters, making him guilty of corrupt practice.

Summary

Dharmesh Prasad Verma appealed against the election of Faiyazal Azam to the Bihar Legislative Assembly, alleging that Azam committed a corrupt practice under Section 123(5) of the Representation of the People Act, 1951 by procuring a jeep from his friend Kabir Ahmed and using it to convey voters to the polling station free of cost. The trial judge held that the evidence only showed an attempt, not a completed corrupt practice, and dismissed the petition. The Supreme Court examined the three statutory requirements—procurement of the vehicle by the candidate or his agent, its use for free conveyance of electors, and that the conveyance was indeed free—and found that the evidence satisfied all of them. The Court rejected the argument that the vehicle’s seizure away from the booth negated the offence and held the petition maintainable despite procedural objections. Consequently, the appeal was allowed and Azam was declared guilty of corrupt practice under Section 123(5).

Issues considered

The trial court's interpretation of Section 123(5) of the Representation of the People Act, 1951 and whether the elements of hiring/procuring, by the candidate or his agent, and free conveyance of electors are satisfied.
Whether the seizure of the jeep at a distance from the polling booth constitutes only an attempt or a completed corrupt practice.
Whether the election petition is maintainable despite alleged non‑compliance with Sections 81, 82, 83, Order VI Rule 15 CPC and Section 117 of the Act.

Legislation cited

Code of Civil Procedures. Order VI Rule 15
Representation of the People Act, 1951s. 117, s. 123(5), s. 81, s. 82, s. 83

Subjects

Corrupt practiceSection 123(5)Free conveyance of votersElection petitionRepresentation of the People ActEvidenceQuasi‑criminal proceedingsVehicle procurement

Judgment

A
11

DHARMESH PRASAD VERMA

v.
B
FAIYAZAL AZAM

July 17, 1984

[S. MURTAZA f AZAL ALI, A. VARADARAJAN AND RANGA NATH c
• MIS!tA, JJ.J

The Representation of the People Act 1951, Section 123 (5).

Corrupt practice-Procuring of vehicle for free conveyance of voters- D
Evidence and proof.

Je1p belonging to friend of candidate-Carrying of voters in jeep-Whe 4

ther corrupt practice.

The respondent was elected to a State Assembly Constituency. The E
appellant who ha_d contested the election pleaded four items of corrupt praclice
in his Election Petition filed against the respondent.

The Legislative Assembly to which the respondent was elected has been
dissolved and a fresh election has been held. Notwithstanding, the fresh
eiection the appellant pursued his election p<!tition in order to prove corrupt F
practice on the part of the respo11dent.

In his election petition, the appellant pleadea that the respondent com·
mitted a corrupt practice falling under se-ction 123 (5) of the Representation of
the People Act, 1951 by procuring and using a jeep for the free conveyance of
voters to the po11ing station on the date of poll. The respondent denied the G
. charge and contended· that the appellant had not complied with the mandatory
provisions of sections 811 82 and 83 of the Act read with Order VI. Rule 15 of
the Code of Civil Procedure and section 117 of the Act and the election peti·
tion was therefore liable to be dismissed. \

The Judge who tried the petition, followed this Court's ruling in Rahim H
Khan v. Khurshid Ahmed [1975) 1 SCR 653 that Proceedings arising out jof
12 SUPREME COUllT RBPOllTS [!985J I s.C.k,
A election petitions are quasi-criminal in nature and that evidence relating to
corrupt practices should be scrutinized with scrupulous care and merciless
severity; considered the evidence adduced by the parties, and found that the
jeep bearing No. USJ 5226 while carrying five ladies including P.Ws. 10, 11,
42 who were voters, free of cost, for casting votes on be ha If of the respondent
was seized by the District Magistrate and the Superintendent of Police about
1& miles from the pJlling booth and that at the time of the seizure, the jeep
B
v:as driven by a close friend of the respondent and that this friend had worked
for the respondent in the election and was present in the booth on the date of
the p)lling and that the respondent's polling agent stood surety for the release
of the jeep. The Judge held that these facts were not sufficient to hold that
""" the respondent procured the jeep, and that since the jeep with the voters was
caught not at the polling station but at som·e distance way from it, it was only
c a case of an attempt at corrupt practice and not corrupt practice itself under
section 123 (5) of the Act, and dismissed the election Petition.

Allowing the appeal, this Court,

HELD: I. The requiren1ent of the law in regard to corrupt practice
D under section 123 (5) cf the Representation of the People Act_)951 is that in
addition to proving the hiring or proc.>uring of any vehicle or vessel for the
carriage of voters to and from any polling Station it should also be proved that
the electors used the vehicle or vessel free of cost to themselves. [17A~B]

2. .Section 123 (S) requires three things, (1) hiring or procuring of a
E vehicle; {2) by a candidate or his agent etc. and (3) for the free conveyance of
an elector. [ 16H] ·

Joshibhai Chunibhai Patel v. Anwar Beg Mirza, [19691 2 SCR 97, Razik
Ram v. Jaswant Singh Chauhan, [1975] 4 SCC 769 at 775 and Dadasahib Datta-
traya Pawar v. Pandurang Raoji Jagtap, [1978] 2 SCR 524 at 528, refereed to.
F
3. The appellant has proved satisfactorily all the three requirements of
clause (5) of section 123 of the Act. The respondent has therefore to be held
guilty of corrupt practice falling under this clause which is ordinarily difficult
to prove. [27F]

0 In the instUnt case, the evidence of P.Ws. 6, 16 and 43 reveal that the
respondent had procured the j~ep USJ 5226 from his close friend, Kabir
Ahmed for the free conveyance of his electors and that the jeep was, there·
after, used for that purpose on the day of poll, and seized by the Officials,
P.W. 69 District Magistrate, P.W. 73-Superintendent of Police and P.W. 81-
Station House Officer when it was being used for the conveyance of the
11 electors p .Ws. 10, 11, 42 and others inciuding P .W. 67 free of cost to them-
selves. The appellant's case that the respondent committed corrupt practice
is clearly established. [270-E]
D.P. VERMA v. F. AZAM (V aradarajan J.) 13

4. Corrupt practice such as in the instant case is very largely resorted A
to in the elections and could be avoided by either locating polling booths
within walking ·distance of the electors or by having mobile polling stations.
[27GJ

CIVIL APPELLATE JURISDICTION Civil Appeal No. 3011 of
1979. B

From the Judgment and Order dated the 7th September, 1979
of the Patna High Court ·in Election Petition No. 4 rf 1977.

Shanti Bhushan and M. P. Jha for the Appellant.
c
S. K. Sinha for the Respondent.
I •
The Judgment of the Court was delivered by

VARADARAJAN, J. This election appeal is directed against the
judgment of the Patna High Court dismissing Election Petition No. D
4 of 1977 with costs of Rs. 1000/-. The appellant Dharmesh Prasad
Verma, who is stated to have contested the election as a Janata
· candidate, had pleaded four items of corrupt practice in his election
petition filed against the respondent Faiyazal Azam who is stated
to have contested the election as a Congress-I candidate. The poll
E
in this case was held on 12.6.1977 for the election ofa member of
the Bihar Legislative Assembly from No. 5 Sikta Constituency in
West Champaran district. The appellant secured 1795 votes while
the respondent secured 28324 votes and was d·eclared elected on
15.6.1977. The election petition was filed on 18. 7.1977. The
Legislative Assembly was dissolved in 1980 and fresh election had F
been held in that year and the respondent is stated to have contes-
ted as a non-Congress-I candidate and t.o have been elected from
the same constituency. The appellant is, however, interested in
pursuing this election petition relating to the election of the year
1977 in order to prove corrupt practice on the part of the respon-
dent. G

Mr. Shanti Bhushan, Senior Counsel, appearing for the
appellant, restricted his arguments to the first charge alone and
that too regarding the use of the jeep USJ 5226 which is alleged
to have belonged to one Kabir Ahmed. That charge is that
respondent committed the corrupt practice falling under s.123(5) H
of the Representatio11 of the People ~c\, 1951 (her,einafter
14 SUPRBME COURT REPORTS [1985] I s,C.R.

A referred to as the "Act") by procuring and using the jeep for the
free conveyance of voters to the polling station on the date of
poll. The respondent denied the charge in his written statement
and contended that the appellant had not complied with the
mandatory provisions of ss. 81, 82 and 83 read with Order VI,
Rule 15 of the Code of Civil Procedure and s. I I 7 of the Act and
B that the election petition is, therefore, liable to be dismissed.

The learned Single Judge who tried the election petition,
after observing that it is common knowledge that every politician
realises the impJrtance of vehicles during general elections, noticed
c this Court's observations in Rahim Khan v. Khurseed Ahmed(')
that proceedings arising out of election petitions are quasi-criminal
in nature and that the evidence relating to corrupt practices should
be scrutinized with scrupulous care and merciless severity, and
then proceeded to consider the evidence adduced by the parties.
On the evidence the learned Judge found that the jeep bearing No.
D USJ 5226 while carrying five ladies was seized by the District
Magistrate and the Superintendent of Police of the district from a
road near a' canal situate about If or 2 miles away from the
Sarkiatola booth on the date of the poll and that the five ladies
including Muratiwa@ Deokalia (P.W. 19), Mehrunnissa (P. W.l I)
and Rasulia (P.W.42) were voters who were being carried free
E
of cost for casting votes on behalf of the respondent. The learned
Judge found that at the time of the seizure ,of the jeep it was
driven by Kabir Ahmed's nephew Tabrez Ahmed and that Kabir
Ahmed was a great friend of the respondent and he and his
father worked for the respondent in the election and were present
F in the booth on the date of the poll and that the respondent's
polling agent Manager Prasad stood surety for the release of the
jeep. However, the learned Judge held that these facts are not
sufficient by themselves to hold that the respondent himself
procured the jeep from Kabir Ahmed. The learned Judge
further found that since the jeep with the voters was caught not
G at the polling station but at some distance away from it, in any
event, it was only a case of an attempt at corrupt practice and not
corrupt practice itself as per s.123(5) of the Act. Thus tbe
learned Judge rejected the appellant's case in regard to this
instance of corrupt practice as also the other instances and dis·
missed the election petition.
H
(ll [1975),1 _$CR!643.
D.P. VERMA v. F. AZAM (Varadarajan, J.) 15

Section l23(5J of the Act read thus: A

"S.123. The following shall be deemed to be
corrupt practice for the purpose of this Act : .

(I)
B
(2)
(3)
•
(4)

(5) The hiring or procuring, whether on payment or
c
other wise, of any vehicle or vessel by a candidate or his
agent or by any other person with the consent of a candi·
date or his election agent, or the use of such vehicle or
vessel for the free conveyance of any elector other than
the candidate himself, the members of his family or his D
agent, to or from any polling station provided under
section 25 or a place fixed under sub-section( I) of section
29 for the poll:

Provided that the hiring of a vehicle or veseel by an
elector or by several electors at their joint costs for the E
purpose of conveying him or them to and from any such
polling station or place fixed for the poll shall not be
deemed to be a corrupt practice under this clause if the
vehicle or veseel so hired is a vehicle or vessel not pro·
pelled by mechanical power:
F
Provided further that the use of any public transport
vehicle or vessel ·or any tramcar or railway carriage by
any elector at his own cost for the purpose of going to or
coming from any such polling station or place fixed for
•• the poll shall not be deemed to be a corrupt practice
G
under this clause.

Explanation :-
In this clause, the expression 'vehicle' means any vehicle
used or capable of being used for the purpose of road transport,
whether propelled by mechanical power or otherwise and whether
used for drawing other vehicle, or otherwise." H ·
16 SUPREME COURT REPORTS (1985] I S.C.R.
A In clauses (5) of s.123 the word "or" is used in several
places and the word "and" is used in two places in the first
proviso and the explanation. Prima fade, Parliament must
be deemed to have used tbe word "or" and "and" for different
purposes or objects. If the matter is res integra it could be said
that the main clause (5) consists of two· separate parts, namely
B (I) the hiring or procurring, whether on payment or otherwise, of
any vehicle or vessel by a candidate or his agent or by any other
person, with the consent of a candidate or his election agent for
the free conveyance of any elector to or from any polling station •.
or (2) the use of any vehicle or vessel by any candidate or his
agent or by any other person with the consent of a candidate or bis
election agent for the purpose of free conveyance of any elector to
or from any polling station. It is true that in the latter part of
clause (5) the word "such" isused before the words "vehicle or
vessel for the free conveyance of any elector to or from any
polling station". But the matter is no longer res integra. In
D Joshibhai Chunibhai Patel v. Anwar Beg Mirza 11\ Hidayattullah, C.J.
speaking for himself and G.K. Mitter, J. has observed:

"This brings us to the examination of s.123(5) with a
view to finding out what are its requirements. We have
already indicated that in our opinion the electi?n petitio·
E ner must prove in addition to the other ingredients of lhe
seetion that the vehicle was used for free conveyance of
voters which ingredient we have stated was not attemted.
to be established ln the case ...
This section defines one of the corrupt practices and it
consists of hiring and procuring whether on payment or
F
otherwise of any vehicle. This hiring and procuring
must be by any other person with the coment of the
candidate or his election agent and the hiring according
to the section must be for the free conveyance of an:'

G
elector other than the candidate himself or members of ·
his family or his agent to and from any polling station.
It will, therefore, appear that the section requires three
- ..
things, (I) hiring or procuring of a vehicle ; (2) by a candi·
date or his agent etc. and (3) for the free conveyance of
an elector. It will be noticed thal the section also speaks
of the use but it speaks of the use of such vehicle which
H

(1) [1969]~2 SCR 97.
D.P. VERMA v. F. AZAM (Varadarajan, J.) 17
A
connects the two parts, namely, hiring or procuring of
vehicle and the use. The requirement of the law there-
fore is that in addition to proving the hiring or procur-
ing and the carriage of electors to and from any polling
station, it should also be proved that the electors used B
tlie vehicle free of cost to themselves."

• In Razik Ram v. Jaswant~Singh Chouhan,11\ Sarkaria, J. speak-
ing for himself and Alagiriswami, J. has observed; ·

c
"On analysis, clause (5) of Section 123 falls into two
parts. The requirements of the first part are; (i) The
hiring or procuring, whether on payment or otherwise,
of any vehicle or vessel for the free conveyance of voters
(ii) Such hiring or procuring must be by a candidate or
~
' his election agent or by any other person with the consent D
of a candidate or of his election agent. The second part
envisages the "use of such vehicle or vessel for the free
conveyance of any elector (other than the candidate
himself, the members of his family, or his election agent)
to or from any polling station". The two parts are connec-
E
ted by the conjunction "or" which is capable of two
constructions. In one sense, it is a particle co-ordinating
the two parts of the clause and creating an alternative
between them. In the other sense which is akin to the
sense of "and" ·it catt be construed as conjoining and
combining the first part of the clause with the second. F
• The latter construction appears to comport better with
the aim and object of the amendment of 1966. In this
connection, it is not worthy that even before the amend-
ment, this Court in Ba/wan Singh v. Lakshmi Narain
[1960] 3 S.C.R 91, held that in' considering whether a
corrupt practice described· in Section 123(5) is committed G
conveying of electors cannot be dissociated from the
hiring of a vehicle.

Even if the word "or" is understood as a co-ordina ..
ting conjunction introducing alternatives then also a H
petitioner in order to succeed on the ground of a corrupt
(ll [1975] 4 sec 769 at 775.
18 SUPREME COURT REPORTS [1985] I s.c.R.
A
practice under the second part of the clause, must prove,
in addition to the use of the v~hicle or vessel for the free
conveyance of any elector to or from any polling station,
the hiring or procnring of that vehicle or vessel. This is so
because the word "such" in the phrase introduced by the
B 1966 amendm~nt, expressly imports these elements of the
first into the second part of the clause. •

In the view we take we are fortified by the dictum
of this Court in Joshibhai Patel v. Anwar Beg Mirza
[1969] 2 SCR 97, wherein Hidayatullah, C.J., speaking
c for the Court analysed the requirements of the clause,
thus: /

It will be noticed that this section also speaks of the
use of such vehicle which connects the two parts, namely, '
D hiring or procuring of vehicle and its use. The require-
ment of the law therefore is that in addition to proving
the hiring or procuring ane the carriage of electors to
and from any polling station, it should also be proved
that the electors used the vehicle free of cost to them-
selves.''
E
In Dadasahib Dattatraya Pawar v. Pandurang Raoji, Jagtap,m J.·
Jaswant Singh, J. speaking for the Court has observed:

In regard to section 123(5) of the Representation of
F People Act, 1951 whieh before its amendment by Act 47
of 1966 was identical in terms with section l44-I(3) of
the Act, it was held hy this Court in Shri Ba/want Singh I '
v. Shri Lakshmi Narain('! that in considering whether a
corrupt Jlractice described in section 123(5) is committed
conveying of electors cannot be dissociated from the
G
hiring of a vehicle.

It has also been held by this Court in Ch. Razik Ram
v. Ch J.S. Chouhan and Ors. [1975] 4 S.C.C. 769] that

H
(I)~ [1978] 2 S.C.R. 524 528.
(2) [1960P s.c.R. 9J.
-D.P. VERMA v. F. AZAM (Varadarajan, J.) 19

to establish the corrupt practice under section 123(5) of A
the Representation of the People Act, 1951, it is necessary
for an election petitioner to prove (i) that any vehicle or
vessel was hired or was procured, whether on payment or
otherwise 'by the returned candidate or by his election
agent or by any other person with the consent of the B
candidate or of his election agent; (ii) that it was used for
conveyance of the electors to or from any oolling station
and (iii) that such conveyance was free of cost to the
electors. Failure to substantiate any one of these ingre-
. dients leads to the collapse of the whole charge."
c'
We shall now proceed to consider the evidence adduced by
the parties alleged by the appellant. On the day of poll, 12.6.1977
' J.K. Dutta, P.W. 69, the then District Magistrate, West
Cbamparan was proceeding to Sikta in a jeep accompanied by
D
the Superintendent of Police in the course of his duties in relation
to the election. Finding a jeep carrying some ladies, P.W. 69
instructed the Superintendent of Police tp make the necessary
enquiry. After the necessary enquiry was made by the police
the jeep with the occupants and the driver was taken to the
police statian by the Station House Officer, Sikta Police Station, E
who faund the jeep having been detained by the District Magistrate
and the ~uperintendent of Police on the road near a canal situate
about 1~ or 2 miles away from the Sarakiatola booth when he was
proceeding towards Parsa village with some policemen. Sub-
sequently, the ladies who were in the jeep were taken from the
police station by a government jeep to the place from where the F
private jeep with the occupants and the driver was taken by the
officials to the Sikta Police Station. Anil Kumar, P. W. 73, the
I" then Superintendent of Palice, Betti?h who accompanied P.W. 69,
~ has given a little more detailed evidence regarding what happened
r when he wa~ accompanying ·P.W. 69 tb Sikta. He has deposed
that since they suspected that the four or five rustic' ladies who
G
were being carried by the jeep could not be its owners, he seized
the jeep, evidently under the impression that the ladies were
boing carried free of charge to the booth, near a canal situate
about l l or 2 miles from the booth and took it alongwith the
driver and its occupants to the police station. After the state- H
ments of the ladies and the driver were recorded by the Station
House Officer at the Si~ta Police Station, they were taken back
20 SUPREME COURT REPORTS [1985] I s.c.R
A by .a government jeep to the place from which the private jeep in
which they were travellmg earlier was sei zed so that they could
go and cast their votes. P.Ws. 69 and 73 do not remember the
number of the jeep and P.W. 69 does not know to whom the
jeep belonged. Amal Ranjan Sarkar, P.W. 81, is the Station
B House Officer who took the jeep with its occupants and the
driv~r to the police station after he found the jeep having been
detamed by P.Ws. 69 and 73. Kabir Ahmad's nephew Tabrez
Ahmad was driving the jeep. ·P.W. 81 obtained the statement,
Ex. 13, written and signed by Tabrez Ahmad as also the state-
ments of five ladies who were found travelling in the jeep. The
c jeep USJ 5226 which was take" into custody was later released to
Kahir Ahmad on 17.6.1977 under Ex. (c) after one Managar
Prasad, who is prov :d to have been the polling agent of the
respondent, furnished security under Ex. 14 (b). There is evidence
of Sheikh Ejazul, P.W. 8 that the jeep USJ 5226 which was used
in the election belonged to Kabir Ahmad and that it was driven '
D by Tabrez Ahmad. There is evidence to show that Kabir
Ahmad's brother Nazir Ahmad was another polling agent to the
respondent like Managar Prasad. The learned Trial Judge has
found that Managar Parasad was the respondent's polling agent.
This fact, to which our attention was drawn by Mr. Shanti
E Bhushan, was not disputed by the respondent's learned counsel.
The respondent, R.W. 45 has admitted that Kabir Ahmad's
brother Nazir Ahmad was his polling agent and that Tabrez
Ahmad is the nephew of Kabir Ahmad and Nazir Ahmad. But
he has stated that be does not know if Managar Prasad whom he
knows was his polling agent or whether he had furnished security
F fbr the rele~se of the jeep by the Police to Kabir Ahmad. D.N.
Pandey, P.W. 75 the then Anchal Adhikari of Sikta who had
been deputed to work as the Sub-Zonal Officer during the'
election in 1977 has also deposed about the seizure of Kabir \ '
Ahmad's je.ep driven by Tabrez Ahmad. He was present at the ~
G Sikta Police Station when the jeep with some women sitting in it l
was brought to the police station. He has stated that Kabir
Ahmad, who was very firiendly with respondent, came to the
police station to get the women and the jeep released from the
custody of the police. The evidence of Muratiwa @ Deokl;a,
P.W. JO, Mehrunoissa, P. W. 11 and Rasulia, P.W. 42 who travelled
H in the jeep alongwith two other ladies includin!J Queresha P.W. 67
b.P. VERMA v. F. AZAM (Jiaradarajan, i) :h
A
is that Kabir Ahmad got them released from the police station
0 ,1 the day of the poll afte.r they and tbc two other ladies who
were travelling with them by the jeep had been taken to the
police station. The aforesaid evidence of P.Ws. 69, 73, 81; 75,
10, 11 and 42 which has not been se<iously challenged in the cross-
examination establishes satisfactorily that the jeep USJ 5226 B
belonging to Kabir Ahmad was seen being driven by Kabir
Ahmad's nephew Tabraz Ahmad with five women electors
including P.Ws. 10, 11, 42 and 67 on the road near a canal situate
about Ii or two miles away from the Sarakiatola booth on the
•
day of the poll, that the jeep with the ladies and the driver was
seized on wspicion that it was being used for carrying electors c
·to the booth free of cost, that the statements of the five ladies
and the driver Tabrez Ahmad were recorded at the Sikta Police
Station by the Station House Officer, P.W. 81, in the presence
of P.Ws. 69, 73 and 75, that Kabir Ahmad got the ladies
released from police custody on the same day and they were D
thereafter brought by a government jeep from. the police station
to the place from where they had been previously taken to the
police station in Kabir Ahmad's jeep, that the jeep was relased
to Kabir Ahmad on 17.6.1977 under Ex. 14(c) and that the
respondent's polling agent Managar Prasad furnished security
under Ex. l 4(b) for the release of the jeep to Kabir Ahmad. E
The apP.ellant's contention 'is that the respondent procured the
jeep USJ 5226 from Kabir Ahmad and it was used for the con-
veyance of electors free of cost to themselves for the purpose of
casting votes in favour of the respondent and that the respondent
is thus guilty of corrupt practice under s. 123(5) of the Act. The
evidence referred to above establishes the requirement of clause F
(5J of s. 123 that the vehicle USJ 5226 which is proved to belong
to the repondent's close friend Kabir Ahmad was used for the
conveyance of electors who were proceeding to cast votes in favour

·r ·, of the respondent on the day of the poll. It is not possible to
agree with the learned Trial Judge that what this evidence estab-
lishes is only an attempt to convey electors to the polling booth
G

' and not actual conveyancp of the electors merely because the
jeep with the electors wh0 were being carried in it was intercepted
at a distance of I! or 2 miles away from the booth and taken to.
the police station by the official who had suspected that an election
H
S:JPR.E\1E C·.JU.tr REP,J:trs rt935] l s.c. <
A
offence had been committed. The jeep was seized when it was
being used for carrying electors who were proceeding to vote for
the respondent, no doubt at a distance of It or 2 miles away
from the polling booth. Even the learned counsel for the respon-
dent dicl not contend before us that what has been established is
B only an attempt at conveying electors by the jeep of Kabir Ahmad
to the polling booth and not actual concvyance.

There is overwhelming evidence on record including that
of the Anchal Adhikari, P.W. 75 who had worked as the Secretary
of a Cement Committee of which the respondent was the •
c President, to show that the respondent is a good friend of Kabir
Ahmad, whose brother Nazir Ahmad was admittedly th~ respon-
dent's polling agent. The respondent bad used to him for the
purchase of a motor cycle for the benefit of Nazir Ahmad who
admittedly advanced the money required for its purchase and was
D using the vehicle which stood nominally registered in the name of
the respondent. The respondent has professed ignorance in his
evidence whether Kabir Ahmad owned the jeep USJ 5226 at all
•
and he has denied that the jeep was used for earring electors for
casting votes in his favour on the day of poll. A reading of the
evidence of R. W. 45 shows that his evidence is totally unreliable.
E We may state at this stage that the respondent's learned
counsel Mr. S.K. Sinha found it practically impossible to
deny any aspect of the appeJlant's case in regard ·to this
item of corrupt practice except the part relating to the
procurement of the jeep USJ 5226 by the respondent from its
owner Kabir Ahmad. We find that this part of the appellent's
F
case relating to this item of corrupt practice is clearly established
by the evidence referred to above.

The next point for consideration is whether the elctors were
carried free of cost to themselves by the jeep USJ 5226 on the
G day of poJJ. On this aspect of the appellants case there is
direct evidence of the electors P.Ws. 10, 11 and 42 besides ''
that of some other evidence. The appellant's poJling agent Jang
Bahadur Mian, P. W .6, has stated in his -evidence that the jeep

H
b.J>. VERMA v. F. AZAM (Varadarajan, J.) 23
USJ 5226 was being used for carrying electors to cast votes in A
favour of the res;iondent, that the respondent met the expenses of
electors and that the jeep was seized by the District Magistrate
and the police on the day of poll. He has denied the suggestion
that the jeep USJ 5226 was not used for carrying electors at all.
Jn view of the other evidence referred to above we are of the
B
opinion that there is no substance at all in this suggestion made
P. W. 9 who was an elector from Parsa village in the election held in
1977 has stated in his evidence that electors were carried by Kabir
Ahmad's jeep on behalf of the respondent. The suggestion made to
him and denied by him is that he has given false evidence. The
electors P.Ws. IO, II and 42 belong to same Parsa Village. P.W. 10 c
has stated that Kabir Ahmad has asked her to vote for the candidate
• whose symbol consisted of cow and calf, i.e. the respondent, that
she and four other women electors were being carried in Kabir
Ahmad's jeep driven by Kabir Ahmad's nephew when the jeep was
seized and taken to the police station and that they did not
pay anything to the owner or the driver of the jeep for D
their conveyance. To the same effect is the evidence of P. Ws. 11
and 42 who also have stated clearly in their evidence that they
did not pay anything for their conveyance to the owner or the
owner or the driver of the jeep and that they and the other women
were carried in the jeep free of cost to themselves. What has
been elicited from P.W. 10 in the cross-examina:ion is that she E
does not know the names of the other ladies who travelled with
her in the jeep. P.W. 11 has denied the suggestion that she has
been tutored to give false evidence:' P.W. 42 has denied the
suggestion that she was not an elector at all and that she has given
false evidence. P.W. 10 is a Hindu while PWs. 11, 42 and 67 are
F
Muslims. Yaqub Mian, PW 43, the husband of P.W. 42 also has
stated in his evidence that the electors were carried by the jeep
free of cost and that after learning that the jeep had been taken
to the police station he went .to the police station and found that

}
Kabir Ahmad had already obtained the release of the electors
from the police. He too has denied the suggestion that he has G
been tutored to give false evidence and that be had worked for
the appellent in that election. We are of the opinion that
there is no reason for disbelieving the evidence of P. Ws.
10, I I, 42 and 43 that the electors who travelled by the jeep
which was .int<rcepted by the officials and taken to the police

H
24 SUPREME ClJURT REPORTS (193 5] 1 s.C.R.

station were being carried to the rolling booth free of cost to
themselves for casting their votes r~ favour of the respondent.
This part of the appellant's case is clearly proved by the evidence
of.· these four witnesses. We may state that the respondent's
B learned coun.sel has not disputed that the e~idence of these four
witnesses proves that the electors were being carried to the booth by
the jeep USJ 5226 for casting their votes in favour of the respondont
free of cost to themselves. We find that the evidence referred to
above proves the second requirement of clause (5) of s. 123 of
the Act.
c
The third point which alone is seriously disputed by the ,lear-
ned counsel for the respondent is the question of procuring Kabir
Ahmed's jeep USJ 5226 by the respondent for carrying electors to
vote for him. Since it has been found that the jeep USJ 5226 be-
D longing to the respondent's close friend Kabir Ahmed was actully
used for the conveyance of voters who were proceeding to cast
votes in favour of the respondent free of cost to themselves, the
jeep could have been put in use for the purpose either by Kabir
Ahmed himself or some other person without reference to the res·
pondent or his agent or it could have been procured by the respon-
E dent. It could not have become ayailable for carrying electors who
were proceeding to vote for the _respondent in any other manner. It
is not the respondent's case that Kabir Ahmed or any other person
put the jeep to use for carryir,g electors to vote for him free of cost
to themselves without any reference whatsoever to him. The details
relating to the jeep USJ 5226 had been given in the election peti·
F tion. The respondent could have made necessary 'enquiries from
Kabir Ahmed, the owner of the jeep and pleaded that the jeep was
used for carrying electors for his benefit without any reference to
him voluntarily by its owner Kabir Ahmed or by any other person
if that were so. The respondent has not come forward with any
G slich plea. Therefore, it is not possible to accept the submission
of the respondent's learned counsel Mr. S.K. Sinha that in view of
the fact that it is the appellant's case that Kabir Ahmed is a very
_close friend of the respondent, Kabir Ahmed himself could have ,
put his jeep to use for carrying electors for the benefit of the res·
p.:indent without any request for the use or the jeep on the part of
H
0.P. VERMA v. F. AZAM (Jiaradarajan, J.) 25
A
the respondent. Therefore, the onLy other p ossiblity is that the res-
pondent or someone else acting as his agent had procured the jeep
from Kabir Ahmed for the purpose of using it for the benefit of the
respondent in connection \\ ith the election, namely, to carry electors
for voting in his favour free of cost to themselves. Having regard B
to this probability we are of the opinion that even slight evide-
nce in this regard would be sufficient for proving this aspect of
the appellant's case.

Regarding this aspect of the appellant's, case on the side of
D
the respondent there is the interested evidence of the respondent
alone and he has stated that he had not asked for any jeep or any
other help from Kabir Ahmed in connection with the election held
in 1977 and that Kabir Ahmed did not help him in any way in that
election. The evidence of the respondent is absolutely unreliable
as stated earlier having regard to the fact that it is clearly establi- c
shed by the evidence that the jeep , USJ 5226 belonging to Kabir
Ahmed was actually used for carrying electors who were proceeding
to vote in favour of the respondent free of cost to themselves and
that it was seized by the officials when it was being driven by· Kabir
Ahmed's nephew Tabrez Ahmed, white the electors seated in the
jeep. The evidence on record clearly proves and it is not challenged E
by the respondent's learned counsel but is on the other hand conce-
ded by him that Kabir Ahmed had helped the respondent by allo-
wing his jeep USJ 5226 driven by his own nephew Tabrez Ahmed
for the free conveyance of electors who were proceeding to the
booth for voting in favour of the respondent. The appellant's poll- F
ing agent P. W. 6 has stated in his evidence that the respondent had
borrowed Kabir Ahmed's jeep for the conveyance of electors fwm
their respective places to the booth had for their return to their pla-
ces from the booth. He has also stated that one of the two jeeps
used for carrying electors to vote for the respondent is USJ 5226.
He has denied the suggestion that the jeep USJ 5226 was not used G
at all for carrying electors on the day of poll. Sahib Mian, P.W.
16 is a muslim barber beionging to Haripur, which is alse known as
Sikta. He was an elector who had cast his vote in the election held
in 1977. He knows the respondent as w,ell as Kabir Ahmed who
H
26 SUPREME COURT REPORTS (198SJ I S.C.R.

owns a jeep and a mill at Parsa. He has deposed that when he was
given a share to Kabir Ahmed at his mill in Parsa, three persons in-
cluding the respondent went there, and that the respondent asked,
Kabir Ahmed agreed to give it to him. He has denied the sugges-
t10n that he has given false evidence. P. W. 43 has stated in his e vi-
B dence that the respondent and Kabir Ahmed went to his village on
day prior to the day of the poll and asked him to vote for the res-
pondent and told him that a jeep had been borrowed from Kabir
Ahmed to carry voters and that accordingly a jeep driven by Tab·
rej Ahmed came on the next day and carried famale electors. No
doubt, P.W. 43 and his wife P.W. 42 are casual labourers. P.W. 43
c has denied the suggestion that he had worked for the appellant in
that election and that he has been tutored to give false evidenc.
There is no satisfactory reason for disbelieving the evidence of these
three witnesses P.Ws. 6, 16 and 43 of whom P.W. 6 was no doubt
the appellant's polling agent. It is not possible to reject the evi-
dence of P. W. 6 merely because he was admittedly the appellant's
0
polling agent, especially having regard to the fact that his evidence
is in a way corroborated by the evidence of P.Ws. 16 and 43. The
respondent R.W. 43 has admitted in his evidence that Kabir Ahmed
and others own a mill and that Kabir Ahmed is a partner in
that mill bossiness. As stated earlier, he has admitted that Kabir
E Ahmed's brother Nazir Ahmed was his polling agent and that
Tabrez All'Ucd is the nephew of Kabir Ahmed and Nazir Ahmed.
The evidence of P. W. 75 shows that Tabrej Ahmed did not even
hold driving licence when he was found to be driving the jeep USJ
5226 carrying electors to the booth on the day of p~ll and that
he was prosecuted seperetly for that offence under the .tylotors
F Vehicles Act. There is evidnce of Daroga Mahato, P.W. 56, to
show that the respondent and Kabir Ahmed wer~ good friends
and that Kabir Ahmad's father Sharif Ahmad was sitting about
JOO yards away from the booth on the day of poll. The learned
Trial Judge has found that Kabir Ahmad is a good friend of the
respondent and that he and his father had worked for the res·
G
pondent in the election held in 1977. Inspite of all these facts the
respondent has not called Kabir Ahmad as his witness to deny that
he had procured the jeep USJ 5116 from Kabir Ahmed for the con-
veyance of his electors. He. has not examined even Tabrez Ahmad
though he had been admittedly named as one of his witnesses in
H
D.P. VERMA v. F. AZAM (Varadarajan, J.) 27
'
the list of witnesses submitted on his behalf. He would say that to A
the best of his knowledge Kabir Ahmad did not possess any jeep
and that he submitted the list of witnesses by merely looking into
the voters list without applying his mind because he was pressuri-
zed by his lawyer to file a tentative list of witnesses as soon as
possible and was infomed by his lawer that if he did not file his list B
of witnesses he would lose his case on that ground alone. It is not
possible to accept this evidence of the respondent as well having
regard to the fact that it is stated without any denial that he himself
is a lawyer, it is improbable that he would have been pressurdize by
his lawyyer and that he filed the list of witnesses merely by booking
c
into the voters' list without applying his mind as to who should
he cited as his witness. In these circumstances, we are of the opi-
nion that it is not possible to place any reliance on the interested
evidence of the respondent R. W. 45 on the question of procuring D
the jeep USJ 5226 from its ow~er Kabir Ahmad" The evidence of
P.W. 16 is most natural and reliable. There is absolutely no rea-
son whatsoever for rejecting his evidence which could not be
outred evidence. We accept the evidence of P.Ws. 6, 16 and 43 on
this aspect of the appellant's case and find that the respondent had E
procured the jeep USJ 5226 from his close friend Kabir Ahmad for
the free conveyance of his electors and that the jeep was, thereafter
used for that purpose on the day of poll and seized by the
officials P.Ws. 69, 73 and 81 when it was being used for the conve-
yance of the electors P.Ws. 10, II, 42. and others including P.W. F
67 free of cost to themselves.

The app~llant has thus proved satisfactorily all the three re-
quirements of clause (5) of s. 123 of the Act. The respondent has
therefore, to be held guilty of corrupt practice falling under that G
clause which is ordinarily difficult to prove. _We think that such
corrupt practice which is very largely resorted to in the elections
could be avoided by either locating polling booths within walking
di;tance of the electors or by having moblie polling stations. We
accordingly allow this appeal in regard to this item of corrupt prac· H
tice alone with co_sts q111tili:J at R;. 5,0J~ and hold that the res-
28 SUPREME COURT REPORTS [I 985] I s.c.k.
A
pondent was guilty of corrupt practice under s. 123(5) of the Act in
regard to his election in 1977 as a member of the Bihar Legislative
Assembly from No. 5 Sikta Constitbency in West Champaran dist-
trict.

Appeal a/low~d.
c N.V.K.