LexVATAL NAGARAJ versus R. DAYANAND SAGAR
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VATAL NAGARAJ v R. DAYANAND SAGAR October 11, 1974 [H: R. KHANNA, M. H. Bro AND V. R. KRISHNA IYER, JJ.] Representation of the People Act (43of1951), ss. 77, 101 and 123(6)--Dif/emice "-twiien f11cts constituting corrupt practice and illustration of corrupt practice- Approach of trim Coiut to poll 1•erdic1-Approach of appellate Court to evidence- Declaration in favour of rival candi.1ate, when permissible-Reform of election law 1i1 relation to expenditiue, suggested. The appellant was declared elected to the State I..egfalative Assembly and the first J:e!'pondent, who get the next highest number of votes, challenged his election on various gro1111ds and also prayed that he should be declared elected in the appe- llant's place. One of the grounds alleged against the appellant was that by hiring JO cars for campaigning, and spending money for printing election materials, he ~pent by way of election expenses, money beyond the legal limit, and thus coca- mitted the corrupt practice under s. 123( 6) of the Representation of the People Act. 1951. The High Court held this ground proved and also that some of the printed hafldbills contained libellous matter, and set aside the election and declared the first respondent elected. In appeal to this Court, HELD : The setting aside of the appellant's election by the High Court should be confirmed, but the declaration in favour of the first respondent shOuld be set a5ide. (399 B-C] (I) The numbers of the some of the cars hired as set out in the petition were different from those given in evidence. But the infipnity would not have any effect on the first respondent's case since no prejudice has been sustained by the appellant by the change and no integral element in the ground of corrupt practice, namely excessive expenditure for the election, has been kept back. In the Jaw of election. facts constitutive of corrupt practice must be averred in the petition itself or brought in by amendment by leave of court within the limitation period. But particulars illusttative of cOrruPt practices alleged st!llld on a different footing. Proof at minor variance with alleged particulars may be allowed by the court provided the opposite party has not sustained any prejudice and is given an opportunity for adducing re- butting evidence. [388 G-389E) Bhagwan Datt Shastri v. R. R. Gupta, 11 E.L.R. 448, 456 followed. (2) Where the trial coun has watched the delivery or testimony by the wit- nesses its opinion on their credibility is entitled to much cr•:dit by the appellate i:OUrt. (389G-H] (3) An election tribunal mu~t know that there exists an initial presumption in favour of the! poll verdict; apd that the whole constituency is Invisibly party to the Jir. The voice of the voters will be interfered with only if the vote< in favour of the elected candidate were illegally procured. In the present case, the High Court has weighed the evidence fairly and correctly. The approach of the court to the evidence is ilnpeccable. There may have been adulteration of evidence; but, after full consideration of the entire material, the finding of the High Court that the appe. Dant had committed the Corrupt practice under a. 123(6) must be confirmed. [390 C-D, B--F; 39'4H-39SA) A B c D E F G (4) But usll1Dil14 that some or the allqations in the hand bill5 had undoub. tedly amounted to clwacter ·IW&Sination of' the first respondent and injured his H poll prospects, and aroup. disaffection or threat, as stipulated in s. 123, could be read into them the Anctlty or the poll verdict will stand violated, if the tribunal without the atrict comp~on of statutoi:y provisions, au. bstitutes for an elected rePiaeat&tJw Ii coarr picked '3Ddidate. The erqulrements UDder a. 101 before the c D E VATAL ·NAGAllAJ 11. l!.. D. SAGAR, (Krishna Iyer, !.) 385 cow't can declare a rival candidate as the returaod candidate, ar ~. (a) the returned Clllli:idBte must have obtained votes by operation of corrupt practices, (b) such tainted vote5 must be quantified with judicial assurance, and (r.) after deduction of such void votes the petitioner or some other candidate must be shown to have secured a majority of the valid votes. Therefore, in the present case the decisive factor would be satisfactory proof of the number of votes1 if any, attracted by the appe. Dant into his ballot box by the corrupt means provea against him. But there is no evidence to show how-many votes were d
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