PETITIONER:
M. NARAYANA RAO
Vs.
RESPONDENT:
G. VENKATA REDDY & OTHERSand vice versa
DATE OF JUDGMENT03/09/1976
BENCH:
UNTWALIA, N.L.
KHANNA, HANS RAJ
SINGH, JASWANT
CITATION:
1977 AIR 208 1977 SCR (1) 490
1977 SCC (1) 771
ACT
Election--Representation of the people Act, 1951--sec.
123(2)--Sec. 100(1 )(b)--Corrupt Practice--Undue influence-
Conduct of Election Rules 1961 -Rule 39(2) (b)--Ballot paper
containing mark on the reverse of the symbol-Can be rejected
as invalid--Charge of corrupt practice--If quasi criminal
nature--degree of proof--Interference with appreciation of
evidence by High Court--Whether election result can be
lightly interfered with.
HEADNOTE
For the election to the Andhra Pradesh Legislative
Assembly out of 6 candidates 4 withdrew and Reddy and Rao
were the only contestants. Rao was elected by a margin of a
few hundred votes. Reddy challenged election of Rao by
filing an election petition in the High Court on several
grounds of corrupt practice, as well as on the ground that
there were mistakes in counting of the votes. Reddy in his
election petition besides asking for the setting aside of
the election of Rao also claimed that he should be declared
elected in his place. The High Court ordered a recount of
votes. However, even after the recount, Rao had still
majority of votes in his favour although the margin was
reduced.
The Election Petitioner contended that he was the sit-
ting member and was very popular and that he lost election
on account of undue influence, force and violence on a large
scale used by Rao. It was alleged that about 200 supporters
of Rao with the active assistance of respondent No. 2, one
of the candidates who had withdrawn, threatened, beat and
threw stones at the voters and supporters of Reddy; that as
a result of the violence the polling had to be stopped and
the polling took place later on; that about 300 supporters
of Rao armed with sticks, iron rods and other weapons sur-
rounded the hotel where Reddy was staying and forced him to
go out and severely assaulted him; that Reddy had to be
removed to hospital. In the election petition allegations
were made against Rao almost under every sub-section of
Section 123 of the Act. But the only corrupt practice found
by the High Court against Rao was the commission of corrupt
practice of undue influence within the meaning of Section
123(2). The High Court. therefore, set aside the election
of Rao. The High court, however, did not grant the decla-
ration in favour of Reddy since according to the High Court
it was not found that but for the corrupt practice Reddy
would have secured the majority votes. Both Rao and Reddy,
therefore, filed appeals in this Court.
Allowing the appeal of Rao and dismissing the appeal of
Reddy.
HELD: (1 ) That the charge of commission of corrupt
practice has to be proved and established beyond doubt like
a criminal charge or a quasi-criminal charge but not exactly
in the manner of establishment of the guilt in a criminal
prosecution giving the liberty to the accused to keep mum.
The charge has to proved on appraisal of the evidence ad-
duced by both sides especially by the election petitioner.
[500 F-G]
(2) That the election held and results declared on the
choice of the voters should not be lightly interfered with
or set aside by a court of law. After all, in the holding
of a fresh election are involved numerous botherations,
tremendous expenses, loss of public time and money and the
uncertainty of the public representation from a particular
constituency. [500 G-H]
(3) A charge of corrupt practice is easy to level but diffi-
cult to prove. If it is sought to be proved only or
mainly by oral evidence without there being contemporaneous
documents to support it, court should be very careful in
scru
491
tinizing the oral evidence and should not lightly accept it
unless the evidence is credible, trustworthy, natural and
showing beyond doubt the commission of corrupt practice, as
alleged. [501 A-B]
(4) That, this Court ordinarily and generally does not,
as it ought not to, interfere with the findings of fact
recorded by the High Court unless there are compelling
reasons for the same, especially findings recorded on appre-
ciation of oral evidence. [501 B]
(5) This Court. however, does not approve of the finding
recorded by the High Court on a misreading or wrong appreci-
ation of the oral evidence especially when it is unsupported
or runs counter to the contemporaneous documentary evidence.
[501 B-C]
(6) It must always be borne in mind that the conse-
quences of setting aside of an election on the ground of
corrupt practice are very serious for the candidate con-
cerned as well as others involved in it. A court, there-
fore, should reach its conclusion with care and caution
taking into consideration the broad probabilities, the
natural conduct of the persons involved and the special
situation in which a corrupt practice is alleged to have
been committed. [501 C-E]
On appreciation of evidence the Court found that the
High Court wrongly came to the conclusion that the corrupt
practice was committed either by Rao or his agent; that the
main story set up by Reddy does not find support from any of
the contemporaneous documents including statement of Reddy
himself. The genesis of the disturbance was the alleged
assault on the two boys by the Reddy group. The disturb-
ances before the election did take place but it was not a
one sided affair. Both sides were responsible for entering
into dashes. The High Court committed a grave error in
placing reliance on such intrinsically and inherently weak
pieces of oral evidence as against the contemporaneous
documents. [501 H, 505F, 506A, G, 507 C]
No corrupt practice was established to have been commit-
ted by any person with the consent of respondent Rao or his
election agent. The High Court, therefore, wrongly declared
election of Rao to be void under Section 100(1) (b). [508 F]
The ballot papers on which the marks were put on the
reverse side of the symbol and not on the obverse side were
rightly rejected. Rule 39(2)(b) of the Conduct of Election
Rules 1961 requires the elector to make a mark on the ballot
paper on or near the symbol of the candidate for whom he
intends to vote. On a plain reading of the said rule that
the voter is to make the mark on the ballot paper and not
behind the ballot paper. [509 B-E]
Swarup Singh v. Election Tribunal AIR 1960 Allahabad 66
and Dhanpatilal v. Harisingh, AIR 1969 Rajasthan 92, over-
ruled.
A. V. Palaniswami v. The Election Court (District Mun-
sif), Tripura and others (1973) 2 Madras Law Journal 60 and
Mr. Sykes v. Mr. Mc. Arthur, 4 D’Malley and Hardcastle 110.
approved.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 583 and
686 of 1974.
Appeal from the Judgment and Order dated 28-2-74 of the
Andhra Pradesh High Court in Election Petition No. 1/72 and
Civil Appeal No. 686 of 1974.
From the Judgment and Order dated 28-2-74 of the
Andhra Pradesh High Court in Election Appeal No. 52/73.
M.C. Bhandare, K. Krishna Rao, K. Rajindra Choudhary
and Mrs. Veena Devi Khanna for the Appellant in CA 583/74.
492
A.K. Sen, I. Kotireddy and G.N. Rao, for Respondent No.
1 in C.A. 583/74 and also for the Appellant in C.A. 686/74.
The Judgment of the Court was delivered by
UNTWALIA, J. These are two appeals under section 116A
of the Representation of People Act, 1951--hereinafter
referred to as the Act, arising out of an election dispute
concerning the election held on the 5th and 8th of March,
1972 to the Andhra Pradesh Legislative Assembly from Purchur
Constituency. Six persons had filed nominations for stand-
ing as candidates at the election. Four of them, who were
impleaded as respondents 2 to 5 in the election petition,
withdrew in time and did not contest the election. The only
two persons left in the field for a straight contest were
the two appellants in the two appeals namely M. Narayana
Rao, appellant in Civil Appeal No. 583 of 1974--hereinafter
referred to as Rao or respondent no. 1 (for brevity, the
respondent) according to his position in the election peti-
tion and G. Venkata Reddy, appellant in Civil Appeal 686 of
1974 hereinafter to be called Reddy or the election peti-
tioner. Rao was declared elected on the 11th March, 1972
by a margin of a few hundred votes. Reddy challenged
his election by filing an election petition under the Act on
several grounds of corrupt practices said to have been
committed by or on behalf of Rao as also on the ground that
several malpractices and mistakes had taken place in the
counting of the votes. Reddy in his election petition
besides asking for the setting aside of the election of
Rao, also claimed that he should be declared elected in
his place. A learned single Judge of the Andhra Pradesh
High Court in a very long, elaborate, exhaustive, which at
times was exhausting, judgment has accepted the case of the
election petitioner in regard to one type of corrupt prac-
tice having been committed on behalf of the respondent and
set aside his election. Rao has preferred the appeal from
the said order. A recount of the votes polled was ordered
by the learned Judge and even after re-examination of the
validity or invalidity of certain votes, he found on re-
count, that Rao had still majority of votes in his favour
although the margin was further reduced. In that view of
the matter, Reddy’s prayer for being declared elected was
refused by the High Court. Hence Reddy’s appeal. Both the
appeals arising out of the same election petition have
been heard together and are being disposed of by this common
judgment.
We would like to state at the outset that even in
regard to the limited questions which fell for our deter-
mination in these appeals, the judgment of the High Court is
so lengthy and cumbersome, at times suffering from unneces-
sary repetitions and discussions, that while discussing the
main issues in these appeals, we have not thought it neces-
sary to meet and deal with all the reasonings of the High
Court although in arriving at the decision we have taken
them into consideration. If we do so, our judgment will
also be unnecessarily very long. But we must record our
appreciation for the tremendous labour put in the High Court
by lawyers on either side and the very great pains which
the learned Judge has taken in preparing a careful and
exhaustive judgment both on facts and in law.
493
Reddy contested the election as a candidate of the
Indian National Congress Party and Rao was an Independent
candidate. Reddy’s election symbol was "Cow and Calf" while
that of Rao was a "Tractor". The polling in the Constituen-
cy was held on the 5th of March, 1972. Due to disturbances
at the 8 polling booths at Chinna Ganjam with which we shall
be concerned in Rao’s appeal, polling had to be postponed to
the 8th of March, 1972 on which date the polling was com-
pleted at Chinna Ganjam. At the counting of votes done on
the 11th of March, 1972 the Sub Collector, Ongole, who was
the Returning Officer of the constituency, found that Rao
had polled 31,038 votes while the votes polled by Reddy
were only 30,728. Approximately 1,398 votes were declared
as invalid by the Returning Officer. It may just be stated
here that the total number of electorates in Purchur
Constituency was 77,932. Votes polled were quite a good
number amounting to 63,164.
In short the election petitioner’s case was that being a
sitting member of the Assembly from the Purchur Constituency
he was very popular and had great chances of success in the
election in question. The respondent, his supporters and
agents felt that the election petitioner could be defeated
only by use of undue influence, force and violence on a
large scale and not by a fair election. With that end in
view it was averred by Reddy in his election petition that
one Sri Mandava Sitaramayya, an influential worker of his
was assaulted at Purchur on the 2nd of March, 1972 by Yarla-
gadda Subbarao, brother-in-law of the respondent. Although
the beating of Sitaramayya and the illegal activities of the
respondent were brought to the notice of the Deputy Superin-
tendent of Police and Sub Collector, Ongole at 7.00 P.M. on
the 4th of March, 1972 when they were camping at Purchur and
they were requested to take adequate precautions for a fair
and free poll, the Deputy Superintendent of Police failed to
do so. By the 4th of March, 1972, according to the case of
Reddy, the atmosphere was thick with rumours that he and
his men would be beaten and done to death, his supporters
and voters would be prevented from exercising their fran-
chise and that in these endearvours of Rao he and his agents
had the full support and cooperation of the Police Depart-
ment headed by Shri A. Gopal Reddy, Deputy Superintendent of
Police. Chinna Ganjam and its surrounding villages, Reddy
claimed, lay in his stronghold area. Rao and his agents
under the umbrella of protection of the police started an
orgy of violence particularly in Chinna Ganjam and its
surrounding villages. On the 4th of March, 1972 the re-
spondent collected his agents and supporters at his election
office at Chinna Ganjam and instructed them to go ahead by
using undue influence, violence and force to prevent the
voters from casting their votes and not to allow peaceful
conduct of the poll at Chinna Ganjam.
The case of Reddy, the election petitioner, further was
that on the morning of the 5th of March, 1972 Rao’s support-
ers, about 200 in number, gathered from various villages
with the active assistance of J.S. Krishnamurthy (respond-
ent no. 2 in the election petition-one of the candidates who
had withdrawn) and Muddana Rangarao of Alankar Theatre,
Inkollu, started threatening, beating and stone pelting
494
of the voters and supporters of Reddy in Chinna Ganjam near
the polling station and elsewhere. This mob, amongst oth-
ers, included the 18 persons mentioned in paragraph 8(f) of
the election petition. As a result of the violent activities
of the supporters of the respondent and the panic created
thereby, the polling at Chinna Ganjam which had started at
7.30 A.M. on the 5th of March, 1972, was stopped between
9.00 A.M. and 11.30 A.M. When it was resumed again 11.30
A.M. the electors were all scared and there was poor re-
sponse from them. Rao’s agents again started an orgy of
violence at about mid-day. Voters who were waiting at the
polling booths were threatened and dispersed and when
Reddy’s supporters including Marri Subba Reddy of Munnamva-
ripalem were attempting to infuse confidence in the voters,
the mob consisting of persons wearing badges with "Tractor"
symbol, rushed upon the innocent voters and forced them to
flee for their lives. This was all done with the active
support of the police. During the afternoon disturbances,
Reddy’s case has been, the police most unjustly opened fire
upon the dispersing and fleeing persons killing outright
Marri Subba Reddy and seriously injuring, Komatla Rama-
chandra Reddy, a resident of Pedda Ganjam, an innocent
passerby.
Reddy’s case further runs thus. He went to Chinna Gan
jam at about 2.00 p.m. on the 5th of March, 1972 and when he
was taking coffee in a hotel, the hooligans numbering in all
about 300 engaged by Rao including the 18 persons named in
paragraph 8(f) of the election petition armed with sticks,
iron rodes and other weapons surrounded the hotel, forced
Reddy to come out and severely assaulted him. Reddy had to
be removed first to Chirala Government Hospital gad finally
to Guntur Hospital where he remained under treatment for a
few days. As a result of the violent disturbances created
by Rao’s agents and supporters at Chinna Ganjam the voting
was postponed to March 8, 1972 and completed on that date.
The election petitioner had also taken a stand in his
election petition that the respondent and his supporters
went round canvassing from 3.00 p.m. on the 5th of March,
1972 that Reddy was dead or was sure to die and there was no
use casting votes in his favour. The panic created by the
respondent and his men prevented several voters from exer-
cising their franchise or coerced them to cast their votes
in favour of the respondent. Certain other allegations were
made in the election petition alleging that the respondent
had utilised the services of a Government servant, and had
indulged in other various types of malpractices. It is not
necessary to refer to them in any detail as the Trial Judge
has not accepted the election petitioner’s case in regard to
the said allegedly corrupt practices. The findings of the
High Court were not challenged by Reddy before us. We may,
however, state in passing that reckless allegations were
made by Reddy against Rao alleging the commission of corrupt
practices within the meaning of almost every sub-section of
section 123 of the Act. But the only one found by the High
Court against Rao is the commission of corrupt practice of
undue influence within the meaning of sub-section (2) of
section 123.
Reddy in his election petition alleged Commission of
several malpractices, mistakes and irregularities in the
counting of the votes.
495
Several of his valid votes were said to have been wrongly
rejected, several of the invalid votes were wrongly counted
for Rao and so on and so forth. He asserted that the Retur-
ing Officer had wrongly turned down his request for a re-
count and if recount is ordered by the Court it would be
found that he had polled the majority of votes. Upon such
allegations, the details of some of which but not of all,
were given in the election petition, Reddy claimed a decla-
ration for himself of having been elected to the Legislative
Assembly from Purchur.
On the pleadings of the parties the High Court framed
several issues and the relevant ones for the disposal of
these appeals are the following:
"1 (a) Whether the allegations made in para-
graph 8(a) to (k) of the petition constitute cor-
rupt practice of and ’Undue Influence’ envisaged
under Sec. 123(2) of the Representation of the
People Act, and the I st respondent himself or his
agent or any other person with his consent or that
of his election agent committed the same ?
(b) If the allegations made in paragraph 8(a)
to (k) of the petition be true, is the election of
the I st respondent liable to be set aside on the
ground of commission of corrupt practice, namely
exercise of ’Undue Influence’ envisaged under S.
123(2) of the Representation of the People Act?
(c) Whether any such corrupt practice if
proved to have been committed by an Agent of the
1st respondent, other than his Election Agent, has
materially affected the result of the Election in
so far as it concerns the 1st respondent?
6(a) Whether the allegation that the Return-
ing Officer and his staff committed several mis-
takes and irregularities in the matter of counting,
bundling, rejection and reception of votes as
alleged in paragraph 9(a) to (k) of the petition is
true ?
(b) Whether 472 votes said to have been cast
in favour of the petitioner were rejected on the
ground that the mark was put on the back on the
ballot papers and whether such rejection is improp-
er and void ?
(c) Whether the pleading in paragraph 9(b) of the
petition is liable to be struck down for not fur-
nishing the particulars such as serial numbers of
ballot papers etc., ?
(d) Whether the allegations regarding the
irregularities and violations in the rejection or
reception or counting of votes made in paragraph
9(c) to (k) of the petition are vague and are
liable to be struck down for want of material
particulars ?
496
(e) Whether the improper reception of void
votes or improper rejection of valid votes and
mistakes if any in counting of votes has materially
affected the result of the election ?
7 (a) Whether the order of the Returning
Officer rejecting the request of the petitioner for
recount of votes is erroneous and contrary to law ?
If so what is its effect ?
(b) Whether in the circumstances mentioned in
paragraphs 9(a) to (k) of the petition the peti-
tioner is entitled to scrutiny of ballot papers and
recount of votes by this Court ?
8. Whether the election of the 1st respondent
is liable to be set aside on any of the grounds
alleged in the petition ?
9. Whether the petitioner is entitled to be
declared duly elected candidate to the Purchur
Constituency ?"
The High Court states in its judgment:
"Issues l(a), (b) and (c) relate to the
allegations in paragraphs 8(a)to (k) of the
election petition. They cover several allegations
of corrupt practice of undue influence envisaged
by section 123 (2) of the Act."
For the sake of convenience the learned Judge split up issue
1 (a) incidence-wise with reference to each of the alleged
ones. It would be useful to quote the split up issues
from the judgment of the High Court.
1 (a)(i)Whether the allegation made in
paragraph 8(c) of the election petition viz., the
attack on Mandava Seetaramayya, an influential
worker and supporter of the petitioner on 2-3-
1972 by Yarlagadda Subbarao of Karamchadu is true ?
1 (a) (ii) Whether the allegations made in
paragraph 8(f) of the election petition that on the
night of 4-3-1972 the 1 st respondent collected his
agents and supporters in Chinna Ganjam at his
election office and instructed them to use undue
influence, violence and force in preventing the
voters from exercising their franchise and peaceful
conduct of the poll is true ?
1(a)(iii) whether the ’allegation contained in
paragraph 8(g) of the election petition that the
1st respondent’s agents, workers and supporters
including the 18 persons named in the said para-
graph started threatening, beating and pelting
stones on the voters and supporters of the peti-
tioner at Chinna Ganjam Polling Stations and as a
consequence thereof the polling was stopped and the
voters were prevented from casting their votes
between 9.00 A.M. and 11.30 A.M.
1 (a)(iv) Whether the polling was resumed at
11.30 A. M. and the 1st respondent’s agents again
started an. orgy of violence by the 1st respond-
ent’s agents, workers and supporters including
those named in paragraph 8(f) of the
497
election petition and several others wearing
"Tractor Badges" and disturbed the polling and
forced the voters to flee away without casting
their votes and the police most unjustly opened
fire upon the fleeing persons as alleged in para-
graph 8(h) of the election petition ?
1 (a)(v) Whether the petitioner was attacked
by the 300 persons as alleged in paragraph 8(i) of
the election petition ?
1(a)(vi) Whether as alleged in paragraph
8(i) of the petition a little later some of the
petitioner’s voters were threatened and beaten by
the 1st respondent’s supporters including the
persons mentioned in paragraph 8(f) of the
petition ?
1(a) (vii) Whether the allegation in para-
graph 8(j) that the I st respondent and his agents
workers and supporters went round canvassing from
about 3.00 P.M. on 5-3-1972, that the petitioner
was dead or was sure to die and as such there was
no use of casting votes in his favour, is true ?
1(a)(viii) Whether as a result of the above
incident several voters failed to cast their votes
even at the repoll held on 8-3-1972 ?"
Although the High Court has found that Yarlagadda
Subbarao and four others beat Mandava Seetaramayya, it could
not be established that they were the agents of Rao or had
attacked him with his consent. Issue no. 1(a)(i) was decid-
ed against the election petitioner. The finding of the
High Court on Issue no. 1 (a)(ii) is as follows:
"From the above discussion, it is established
that the 1st respondent came to his election office
at Chinna Ganjam on the night of 4-3-1972 accompa-
nied by R.W. 13, Ravipudi Venkatadri, Respondent
No. 2, and one Muddana Rangarao. It is also estab-
lished that at his election office, Koyi Mohanarao,
Karanam Balaram, Karanam Nayudamma, Karanam
Ankamma, Muddana Madana Mohana Rao, Parvathareddy
Narasimharao, Parvathareddy Satyanarayana, Parva-
thareddy Sriramayya, Ghanta Subbayya, Thumalapenta
Venkateswandu, Thummalapenta Venkateswamy, Ghunta
Venkateswarulu, Narahari Venkatasubbarao, Chunduri
Radhakrishna Murty, B.P.R. Vittal were present
alongwith some other persons whose names are not
specially mentioned by any of the witnesses.
It is also proved as alleged in paragraph
8(f) of the election petition that in the presence
of the abovementioned persons, the I st respondent
instructed and advised those persons and others
present there "to go ahead by using undue influ-
ence, violence and force in preventing the voters
from exercising their right of franchise and the
peaceful conduct of the poll as otherwise. he had
little chance of success."
498
Issue no. 1 (a)(iii) was also decided against the
respondent and it was held:
"Though the petitioner’s deposition in this
behalf is based only on the information furnished
by the other witnesses whose evidence has already
been discussed, the other evidence discussed
above clearly establishes that Koyi Mohana Rao,
Karnam Nayudarnma, Karanam Balaram, Karanam
Ankamm, R.W. 13, Ravipudi Venkatadri, B.P.R.
Vittal, Chunduri Radhakrishna Murty, Muddana Madann
Mohana Rao, Parvathareddy Narasimha Rao, Munsif of
Sobhirala and his sons, Satyam, Sriramnlu his
grandson Ghanta Subbayya and Thummalapenta Venka-
taswamy, Narahari Venkata Subbarao and Thummala-
penta Venkateswarlu and some other people of
Chirala and other villages over 100 in number
pelted stones and disturbed the voters in the
queues at the polling booths of Chinna Ganjam as a
result of which polling was suspended from 9.30
A.M. to 11.30 A.M.
While deciding this issue presence of a few persons names in
paragraph 8 (f) of the election petition was not found as
persons taking part in the disturbance.
On Issue no. 1 (a) (iv) the finding of the High
Court is:
"From the evidence discussed above, I find
that the polling which was resumed at about 11.30
A.M., continued peacefully till about 2.00 P.M.,
thereafter the polling was was disturbed by the
persons who are found under Issue no. 1
(a)(iii) to have disturbed the polling in the
morning by violence alongwith others which consti-
tuted a mob of nearly 300 persons armed with
sticks and stones, they pelted stones at the queues
of the voters standing near the polling booths
causing injuries to one Kanna Nagayya and thus
scared them away. The Police apprehending fur-
ther danger opened fire resulting in the death of
Marri Subba Reddy and injuries to Komatla Ramachan-
dra Reddy (P.W. 33). The persons among others
whose identity is clearly established by the
evidence discussed above in the commission of the
act of undue influence are (1) Koyi Mohana Rao, (2)
Karanam Nayadamma, (3) Karanam Balaram, (4)
Karanam Ankamma, (5) R.W. 13, Ravipudi Venkata-
dri, (6) B.P.R. VittaI, (7) Chunduri Radhakrishna
Murty, (8) Muddana Madhans Mohana Rao, (9) Parva-
thareddy Narasimha Rao, Munsif of Sobhirala and
his sons, (10) Satyam, (11) Sriramulu, (22) his
grandson Ghanta Subbayya, (13) Thummalapenta
Venkwataswamy, (14) Narahari Venkata Subba Rao
and (15) Thummalapenta Venkateswarlu."
Issue no. 1 (a)(v) was also decided against Rao the re-
spondent and it was found:
"From the evidence discussed above, in my
view, it is established beyond all reasonable
doubt that the petitioner
499
was attacked after he ran out of P.W. 12’s hotel
and covered a distance of about 10 to 12 yards
towards the Railway level crossing; he was attacked
by an armed mob of over 100 persons some of whom
were wearing "Tractor badges" and among the
assailants of the petitioner were (1) Koyi
Mohana Rao of Nagendla, Mangali Krishna of Chira-
la, Karnam Balaram of Thimma Samudram, Parva-
thareddy Narasimha Rao, Village Munsif of Sobhira-
la, Thummalapenta Venkataswamy of Sobhirala,
Parvathareddy Sriramayya and parvathareddy Sat-
yanarayana the sons of Parvathareddy Narasimha Rao,
the Village Munsif of Sobhirala."
Case against two of the alleged assailants namely Karnam
Nayudamma and Pallapolu Venkateswarlu were not accepted.
In regard to Issue no. 1 (a)(vi) the learned Judge held
against the election petitioner stating "In this state of
evidence, I am reluctant to act on the solitary statement of
P.W. 41 and bold this allegation proved."
Issue no. 1 (a) (vii) was also decided against the
election petitioner and the learned Judge stated:
"I, therefore, hold that the petitioner has
failed to prove that the 1st respondent or his
supporters spread the rumour of the attack on and
the death of the petitioner and that thereby
number of Congress voters left the queues at the
polling booths without casting their votes."
Under Issue no. 1 (a)(viii) the findings recorded by
the High Court against the election petitioner are:
In view of the above discussion, it cannot be
held that several hundred voters failed to cast
their votes even at the re-poll on 8-3-72 on ac-
count of the fear engendered by the violence perpe-
trated. by the 1st respondent or his agents or
supporters on 5-3-72."
Having thus recorded the findings under the various sub-
issues under Issue no. 1 (a) the Court proceeded to advert
to the discussions of (b) and (c) and came to the conclu-
sion:
"In view of the above discussion, I hold that
the acts of
’corrupt practice’ were committed by the per-
sons above named with the consent of the 1st
respondent and therefore the election of the 1st
respondent is liable to be declared void
under s. 100 (1)(b) of the Act. His election is
also liable to be declared void because his
election agent, R.W. 13 is found guilty of
corrupt practice of undue influence. The elec-
tion of the 1st respondent is liable to be
declared void without the further proof that the
result of the election has been materially
affected. Issue 1 (b) is answered accordingly."
In regard to Issue no. 1 (c) the High Court came to the
conclusion that though some of the persons who committed the
corrupt practice
500
of undue influence on 5-3-1972 were agents of the respond-
ent, if R.W. 13, Rao’s election agent, would not have been
among them and if Rao’s consent to the acts of those others
were not established, the election of the respondent could
not have been set aside because there was no proof that the
result of the election had been materially affected on
account of the commission of those corrupt practices. But
since the Court found that undue influence on the 5th March
had been committed not only with the consent of the respond-
ent but also by his election agent himself-he being present
at Chinna Ganjam on that date, the election of Rao was frt
to be declared void without any proof of the result having
been materially affected. The High Court, if correct on
facts, was undoubtedly right in law.
The High Court had decided issue No. 7 in favour of the
election petitioner and ordered recount. After a detailed
discussion of the various allegations made in connection
with the malpractices and mistakes committed in the counting
of the votes under the various subissues of issue no. 6, the
final conclusion of the High Court was that out of 31,038
votes counted for Rao by the Returning Officer, two had to
be deducted as on recount the number was found less and on
various grounds mentioned in the judgment, 129 more were
directed to be deducted from Rao’s count thus leaving the
net result of 30,907 valid votes in favour of Rao as per the
decision of the High Court. For the reasons given in its
judgment the High Court held that 27 votes ought to have
been counted for Reddy which were wrongly not counted. Thus
adding those 27 to his original figure of 30,728 the total
valid votes, according to the High Court polled by Reddy
were 30,755---sti11 short by 100 and odd from those of Rao.
We first take up Civil Appeal 583 of 1974 filed by Rao.
The principles of law governing election disputes and espe-
cially in regard to the charge of a commission of corrupt
practice are well established by several decisions of this
Court--many of which have been noticed in the judgment of
the High Court also. We do not propose to refer to any. We
shall, however, keep the following principles in view in
relation to this appeal:
(1 ) That the charge of commission of corrupt
practice has to be proved and established beyond
doubt like a criminal charge or a quasi-criminal
charge but not exactly in the manner of establish-
ment of the guilt in a criminal prosecution giving
the liberty to the accused to keep mum. The charge
has to be proved on appraisal of the evidence ad-
duced by both sides especially by the elec-
tion petitioner.
(2) That the election held and results declared
on the choice of the voters should not be lightly
interfered with or set aside by a court of law.
After all, in the holding of a fresh election are
involved numerous botherations, tremendous ex-
penses, loss of public time and money and the
uncertainty of the public representation from a
particular Constituency.
501
(3) A charge of corrupt practice is easy to
level but difficult to prove. If it is sought to
be proved only or mainly by oral evidence without
there being contemporaneous documents to support
it, court should be very careful in scrutinizing
the oral evidence and should not lightly accept it
unless the evidence is credible, trustworthy,
natural and showing beyond doubt the commission of
corrupt practice, as alleged.
(4) That, this Court ordinarily and generally
does not, as it ought not to, interfere with the
findings of fact recorded by the High Court unless
there are compelling reasons for the same, espe-
cially findings recorded on appreciation of oral
evidence.
(5) This Court, however, does not approve of the
finding recorded by the High Court on a misreading
or wrong appreciation of the oral evidence espe-
cially when it is unsupported or runs counter to
the contemporaneous documentary evidence.
(6) It must always be borne in mind that the
consequences of setting aside of an election on the
ground of corrupt practice are very serious for the
candidate concerned as well as others involved in
it. A court, therefore, should reach its conclusion
with care and caution taking into consideration the
broad probabilities, the natural conduct of the
persons involved and the special situation in
which a corrupt practice is alleged to have been
committed.
In the background of the above principles we proceed to
examine whether the finding of the High Court against appel-
lant Rao on some parts of issue no. 1 resulting in the
declaration of his election as void is sustainable. Broadly
speaking, the findings against him are (1) that he had
created a tense situation to bring about the defeat of Reddy
before the holding of the poll on the 5th March, 1972; (2)
that he had come to Chinna Ganjam in the night of the 4th
March at about 9.00 p.m. in the company of his election
agent Venkatadri and had instructed his workers to create
violence, use force and not allow a free poll at chinna
Ganjam; (3) that Rao’s election agent Venkatadri was present
in Chinna Ganjam on the 5th March and had taken active part
in the disturbances created on the date of the poll; (4)
that Rao’s election agents, workers and supporters including
more than 100 from outside Chinna Ganjam were responsible
for creating violent disturbances both in the morning as
also in the afternoon on the date of poll i.e. 5th March,
1972; (5) that as a result of the police firing one person
on the side of Reddy was killed and another was seriously
injured. But it may pointedly be stated here that there is
no finding recorded by the learned Judge that the police was
in league with Rao and had deliberately fired on the
fleeing party of Reddy; (6) Reddy was assaulted by the
workers and supporters of Rao at about 2.00 p.m. near the
Railway crossing in the hotel of P.W. 12 Satyanarayana; (7)
the respondent had not been able to establish that he had
not come
502
Chinna Ganjam in the night of 4th of March and had gone
somewhere else or that his case of the genesis of the occur-
rence which led to the disturbances on the 5th March was
true.
Apart from some witnesses being different, here or
there, most of the witnesses to prove the case of Reddy
apropos the findings above, are common and they are P.Ws 12,
29, 30, 31, 32, 42 besides P.W. 27 Reddy himself.
Shorn of details we shall examine the main ingredients
of the case to see how far they have been proved to bring
home the charge of commission of corrupt practice on the
part of Rao. As usual there must have been some tension in
the Constituency because it was a straight contest and neck
to neck fight, as the results show, between Reddy and Rao.
Chinna Ganjam was not the only place where Reddy hoped to
get an absolute majority of votes. The results indicate,
although there is no separate counting of the votes polled
at each booth these days, that in some parts of the Constit-
uency Reddy must have polled majority of the votes and in
some parts Rao must have done 80. How is it then that Rao
took into his head to create disturbances at Chinna Ganjam
only ? Sitaramayya, as the finding of the High Court is,
was assaulted by some person on the 2nd of March, That must
have put Reddy on his guard to meet any eventuality of
force. After all he was a sitting member belonging to the
ruling party who, we are told, was in power in the State of
Andhra Pradesh at the time of the election in question. It
is difficult to accept or imagine that any police officer
especially a person of the rank of a Deputy Superintendent
of Police or the police in general would have gone against
Reddy and favoured and sided with Rao. On the face of it,
it was almost an absurd story and the High Court could not
persuade itself to accept it. On 2-3-1972 Reddy had asked
for police bundobust at several places (vide Ext. A-97,
letter dated 2-3-1972) but had not included Chinna Ganjam in
the list of those places. In the evening of the 4th March,
1972, as the evidence adduced on behalf of Reddy shows, he
was present in the travellers bungalow at Purchur wherein
were also staying the Returning Officer, the Deputy Superin-
tendent of Police and others. There is no evidence to show,
that on receipt of the information from P.W. 31 as to what
had happened in the election office of Rao in the night of
the 4th March, Reddy contacted the Returning Officer or the
Deputy Superintendent of Police and informed them about the
alleged design of Rao and the instructions issued by him in
that regard. It is no doubt true that there were some
persons working for Rao at Chinna Ganjam who did not belong
to that village but were outsiders. That by itself does not
justify the inference that Rao had collected a mob of out-
siders to create violence. Rao was ill-advised to deny in
his written statement that the 18 persons named in paragraph
8(f) of the election petition were his workers or support-
ers. But they were so working from before at Chinna Ganjam
as admitted by P.Ws 12, 29, 31 and 32.
One thing is clear from the evidence in this case that
inhabitants Sobhirals, a hamlet of Channa Ganjam, which
is mostly inhabited by Telgas, had enmity with Reddy.
Chinna Ganjam lay within the
503
Panchayat Samithi of Jetapalom of which Ronda Ramaswami
Reddy was the President. He was an influential man on the
side of Reddy. He had created several enemies including
Balaram. Sobhirala people were inimically disposed towards
him as he had not allowed them to have a separate Gram
Panchayat. In this background, we proceed to examine the
documentary evidence first to find out whether the allega-
tions made by Reddy against Rao as to the alleged happenings
on the 4th and 5th of March, ’72 are correct or not. If
correct, they were very important events and they must have
found place in one document or the other. But conspicuously
they are absent.
In this connection we would first refer to Ext. A-271
--the Returning Officer’s Report dated 5-3-1972. In the
report it is mentioned that Chinna Ganjam village is a
troublesome village and not that Rao had made it troublesome
just before the day of poll. Additional police bundobust
was asked for in this village. It further mentions that at
about 10.00 A.M. there were clashes outside the polling
station when agents of both the candidates were present and
on account of the disturbances, voters were not turning up.
After the voting was resumed, for sometime, it went on
peacefully, but at 3.45 P.M. the Returning Officer received
a phone message from the Election Deputy Tehsildar, Chirala
from Chinna Ganjam that polling was adjourned by all the
Presiding Officers at 2.45 P.M. "consequent on the opening
of fire by the police on an unruly mob gathered at the
Polling Stations which has resulted in injuries to two
persons of whom one was reported to have been seriously
injured". This report further mentions that the election to
Purchur Assembly was a straight contest between Reddy and
Rao and on a complaint made by two boys of Rao’s group at
about 10.00 A.M. that Sri Ramaswami Reddy, President, Pan-
chayat Samithi, Vetapalem and a few of his followers had
assaulted them, "both sides gathered in large numbers and
prepared for a clash." Relating to the afternoon incident
the report states: "The people belonging to both the par-
ties are said to have begun to reassemble near the Polling
Stations with sticks and stones. They exchanged blows with
sticks and hurled stones at each other." Then the report
proceeds--"Apprehending danger to the Polling Material and
polling personnel the Presiding Officers are reported to
have closed the doors of the polling Stations". The report
further states "Apprehending danger to his life as also to
the Polling parties, and danger to the polling material, the
Inspector opened fire on the mob".
It is to be emphasised that if the story set up by Reddy as
to the happening in the election office of Rao in the night
of the 4th March had any semblance of truth, the Returning
Officer must have learnt if from Reddy either the same night
at travellers’ bungalow at Purchur or on the 5th March
before he sent his report to the Election Commission. It
was neither alleged nor found that the Returning Officer
had any animus against Reddy or was favourably disposed
towards Rao. The version given in the report speaks a
volume.
We would now refer to Ext. A-lO6--the First Information
Report drawn on the statement of the Inspector of Police,
Chirala, camping at Chinna Ganjam, in connection with the
firing case. This was drawn
16 --1104SC1/76
504
up at 5.15 P.M. on the 5th of March, 1972. Before we
advert to some portions of this First Information Report,
an admitted position of the topography may be stated
which emerged from the evidence. There were 8 polling
booths in Chinna Ganjam situated in two school buildings.
On the Western side of the building is a road and the
Railway line. On the Northern side of the Railway line is a
railway crossing west of which is village Sobhirala and near
the Railway crossing is the hotel of P.W. 12. Workers
and supporters of Reddy admittedly were on the eastern
side at or near about the time of disturbances and those
of Rao were on the western side--mostly on the road. In
this background, let us see what the Inspector states
in Ext. A-106. He says that on receipt of the information
about the disturbances at Chinna Ganjam D.S.P. Ongole and
he started from Purchur and picked up a striking force on
the way. When they reached China Ganjam they "found a
large gathering on the road and also on the eastern side
of the High Court beyond the High School premises." One
Balaram of Thimmasamudram was leading the gathering,
which was on the west of the High School compound. On
being enquired by the Inspector he said that men of Reddy
had assaulted their people. This was in conection with
the assault on Maddana Madana Mohan Rao and Maddana
Ramasinga Rao--the two boys on the side of Rao:Statement
of Ramasinga Rao recorded by the Inspector is Ext. B-27.
entry on the basis of this statement in the police
papers is B-28. The F.I.R. then states: "At about 2.45 p.m.
the mob began gathering in large numbers on both the sides
and hurling stones at each other. Ramaswamy Reddy was in
the mob, which was hurling stones ........ The mob
belonging to both the candidates viz, Sri Gade Venkata
Reddy and Maddukun Narayana was determined in their violent
attitude and advanced towards the polling station to break
open the same to enter into it to commit all unruly
acts." This report states that in all three rounds were
fired. In the first Information Report as drawn originally
4 persons are named as accused, 3 belonging to the
party of Rao and Ramaswamy Reddy--a staunch and influential
helper of Reddy. The case diary Ext. A-107 of the same
date shows the total number of accused as 42, including
the four mentioned earlier. Mr. M.C. Bhandare,
counsel for Rao and Mr. A.K. Sen, counsel for Reddy drew
our attention to this list of 42 persons which almost evenly
included as members of the mob persons of both sides.
It is remarkable that though Ronda Ramaswami President
of the Panchayat Samithi, Vetapalem is shown as one of the
leading member in the firing case, no where is to be found
in any paper the name of Venkatadri the election agent of
Rao. No paper mentions even his presence at Chinna Ganjam
on the 5th of March. Now comes the most important
document__statement of Reddy himself recorded at 5.55 p.m.
on 5.3.1972 by a Second Class Judicial Magistrate which
could be treated as a dying declaration, if unfortunately,
Reddy would not have survived, but the injuries inflicted on
him were not so severe as to result in his death. On the
basis of this statement, later, a formal First Information
Report was drawn up. This is
505
Ext. A-100. In answer to the Magistrate’s question as to
how did Reddy receive injuries he narrated the story that
when he came to Chinna Ganjam and Ongole road junction he
heard that some 200 persons were brought for hire from
Chirala, Thimmasamudram and other villages to disturb poll-
ing as he commanded 85% of electorate there. The persons who
are said to have Collected the mob are Mohan Rao, Mangali
Krishna Balaram, Krishna Murthy Babu of Chirala, Raghavaiah,
Radha Krishnamurthy of Thimmasamudram, Rangarao, Cinema
hall proprietor of Inkollu and Nayudamma, President of
Chintagumpalli village. Neither Rao is mentioned nor Ven-
katadri’s name is mentioned as the persons who had collected
the mob there. If there was any semblance of truth in the
Reddy’s version of what happened on the night of the 4th in
the election office of Rao, Reddy could not have missed to
refer to that incident. If Venkatadri was present at Chinna
Ganjam on the 4th or the 5th March, his name would have
found first in the statement of Reddy. We deplore and
deprecate the assault on Reddy--a fact which has been found
to be true by the High Court. We were informed and copies
of the judgments were tried to be filed before us showing
that all the cases have ended in acquittal and no person has
been convicted of the alleged offences. But that apart, we
reiterate, even at the risk of repetition, that the main
story set up by Reddy as to what happened on the 4th night
as also on the morning of the 5th and afternoon does not
find support from any of the contemporaneous documents-not
even from the statement of Reddy himself. The statement of
Ramasinga Rao was entered in the Station House General
Diary, Vetapalem and it is Ext. A-128. The entry is Ext.
B-27. The Entry of report is Ext. B-28.
Although it is unfortunate that on behalf of Rao neither
of the two boys said to have been assaulted nor any body
else was examined to prove the incident of assault on them
which led to the further disturbances on the 5th of March,
1972 at Chinna Ganjam, the contemporaneous documents do
indicate that the genesis of the disturbance was the alleged
assault on the two boys. It does not appear to be a case
where a false story of assault on two boys was made a pre-
tence to start assault at Reddy’s workers and voters.
Hardly any voter was injured or examined to state that a
planned attempt was made on behalf of Rao to prevent the
voters from casting their votes in favour of Reddy.
Let us now see what kind of oral evidence is there to
prove the incident. As to what happened in the Rao’s elec-
tion office at Chinna Ganjam in the night of 4th March, P.W.
32 Raju Bali Reddy is the primary witness of the alleged
episode. He had a bunk near the election offices of the two
candidates. We regret to find that Rao had in the beginning
denied that he had any election office at Chinna Ganjam
but he was constrained to admit that such an office had been
opened by his supporters. We also do not appreciate the
attempt on the part of Rao in challenging the claim of P.W.
32 of his running a beedi bunk at Chinna Ganjam near the
houses where the election offices of the two candidates had
been set up. Nevertheless
506
the story told by P.W. 32 is too imaginative and unreal
to inspire any confidence.. The High Court, in our opin-
ion, was wholly wrong in accepting his evidence to be true.
He (P.W. 32) says that he saw the respondent coming in a car
on the 4th of March, 1972 to Chinna Ganjam between 8.30 and
9.00 p.m. to his election office. He was asked to bring
sodas to his election office. He took two dozens of soda
bottles to Rao’s office and there he heard him saying "If
Congress votes are polled I am sure to lose and requested
them to see that votes are not polled if necessary even by
violence". He names certain persons present there. There-
after he was asked to take some soda bottles to the Congress
election office of Reddy. There P.W. 31 asked him "You had
been to the election office of the first respondent, what is
going on there ?". The said sodawala replied "that the
first respondent was telling that if all the votes in Chinna
Ganjam are polled he was sure to be defeated and even by
resorting to violence they should see that votes are not
polled". Is it a natural story ? Is it at all believable ?
Was this conspiracy for creating violence at Chinna Ganjam
suddenly and so openly hatched up in the Rao’s election
office at Chinna Ganjam and in the presence of so many
persons ? Was it so done uttering every relevant word of the
conspiracy in the presence of the sodawala and making it
audible to him ? Is it possible to believe that the sodawala
passed on the words of the conspiracy to create violence at
Chinna Ganjam in a cavalier and casual manner on the
query of P.W. 31 ? All these questions posed above are
suggestive of one and one answer only. The whole story
smacks of nothing but untruth. It could never have happened
in the manner stated by P.W. 32. P.Ws. 29,30, 31 and 42 who
claimed to have heard this story from the sodawala are all
out to support Reddy on any version and they cannot fare any
better if the most unnatural story told by sodawala is too
big to swallow and too incredible to accept .In disagreement
with the findings of the High Court, we hold that Reddy has
failed to prove that Rao and Venkatadri came to Chinna
Ganjam in the evening of the 4th March, 1972 or that they
instructed their agents and workers to deliberately create
violence on the date of poll. We also hold that Venkatadri
was not present at Chinna Ganjam on the 5th of March and had
no part to play in the disturbances which took place on that
date.
It is no doubt true that disturbances did take place at
Chinna Ganjam on the 5th of March. It was not a one side
affair. Both sides were responsible for entering into clash-
es. The High Court has lightly brushed aside one very
significant fact in this connection and which is a very
telling one. How is it that in the police fire two persons
were injured--one of whom died, and both of them were men of
Reddy ? In the circumstances, is it possible to accept that
the police fired only on the fleeing party of about 2,000
persons ? The evidence on the side of Reddy shows that they
did not aim any firing on the aggressors and attackers--the
men of Rao who all were on the western side. Unless one
could go to the absurd extent of saying that members of the
police force had also joined hands with the mob of Rao one
has got to conclude that, mainly, aggressors and attackers
507
were the persons on the side of Reddy. They were the source
of danger and .terror to the polling staff and the materials
of the polling booths and the police had to open fire aiming
at them for the protection of the polling staff and the
materials. It is because of that reason that by the police
firing two persons on the side of Reddy only were injured
and none on the side of Rao. We are inclined to think
strongly and justifiably that because of the disturbances
which took place on the 5th of March, 1972 both in the
morning and in the afternoon at Chinna Ganjam, Reddy felt it
advisable to make a mountain out of it, and apart from many
other unsustainable allegations of corrupt practices, which
are made against Rao, he made use of the incident of dis-
turbances on the date of poll at Chinna Ganjam to connect
Rao and his election agent with them. Without alleging
their active participation or consent he had no material to
succeed merely. on the ground of disturbances. And that led
him to invent two tissues of untrue stories-one the alleged
talk by Rao in his election office in the night of the 4th
March and the other the presence of Venkatadri at Chinna
Ganjam on the 5th. In our opinion none of the two stories
has any semblance of truth. The High Court committed a
gross error in placing reliance upon such intrinsically and
inherently weak pieces of oral evidence as against the
contemporaneous documents. The reports Exts. A-374 to A-381
of the Presiding Officers of the Polling Station at Chinna
Ganjam do not throw any further light except that due to.
rioting polling had to be adjourned. The total number of
electors in Chinna Ganjam was about 6000 and odd and as we
have said above even assuming that a large majority of this
was to cast their votes in favour of Reddy, by creating
disturbances at Chinna Ganjam and preventing the voters from
casting their votes in favour of Reddy or forcing ,them to
cast them in favour of Rao, Rao could not have imagined to
succeed in the election. There is no evidence to indicate
what was the estimated strength of Rao and Reddy in the
remaining 67,000 votes which were to be cast at several
booths other than those at Chinna Ganjam. The date of poll
being the 5th of March in the entire Purchur Constituency it
was not possible even to estimate as to what actually had
happened in other booths to induce Rao to plan the creation
of disturbances at Chinna Ganjam.
We do not agree with the finding of the High Court on
issue No. l(a)(iii) that the polling had to be suspended
because Rao’s people over 100 in number pelted stones and
disturbed the voters in the queues at the polling booths of
Chinna Ganjam. We are of the opinion that it was a sponta-
neous trial of strength on both sides in which were involved
persons on the side of Reddy led by Ronda Ramaswami Reddy
and several others who were helpers and workers of Rao. The
under-current of their participation in the disturbances was
their previous enmity as already alluded to. Similarly we
do not agree with the finding of the High Court as recorded
under issue no..l(a)(iv). If 300 persons armed with sticks
and stones pelted stones on the queues of the voters then
some of them must have been injured by the police firing.
But none was injured. No responsible government servant has
been examined to say anything in support of Reddy’s story of
the disturbances. We were informed
508
by Mr. Bhandare that a magisterial enquiry into the inci-
dent had been made. An Inspector General of Police, Andra
Pradesh had also held an enquiry in respect of the disturb-
ances which took place at Chinna Ganjam on the 5th of March.
By filing an affidavit in the High Court Rao wanted the
reports of the Magistrate and the Inspector General of
Police to be produced. But they were not made available as
according to him the reports must have stated matters going
in favour of Rao and against Reddy. Coming to the finding of
the High Court apropos issue no. l(a)(v) we want to merely
observe that Reddy must have been attacked by the mob in
which must have been Rao’s men. But it was not as a result
of any conspiracy, instructions or consent of Rao or his
election agent. At or about the time when the clashes on
the two sides were at their peak at about 2.00 p.m.--the mob
on the side of Reddy was on the eastern side and that of Rao
was on the western side. Apprehending police firing or on
its start the mob fled helter skelter. The mob on the
western side must have lied towards village Sobhirala for
their safety. In the way, they came across Reddy and as-
saulted him. While condemning in the strongest language the
assault on Reddy, whoever were responsible for this, we do
not find good reasons to connect the assault with Rao or
Venkatadri.
The High Court has presumed consent of the respondent in
what happened on the 5th of March at Chinna Ganjam because
of the respondent’s application Ext. A-273 in connection
with the release of an Ambassador car MSM 2383 engaged in
his election campaign which had been seized by the police
while parked at the railway gate of Chinna Ganjam. It was
just a coincidence that at the time the assault was made on
Reddy, the car happened to be there. The presence of Badugn
Subbarao either in ,the car or near it again may be an
isolated act of Badugu Subbarao but the gap to connect the
incident directly or indirectly with Rao to say that it was
done with his consent is too big to be filled in by refer-
ence to the seizure of the car and the prayer of release of
the Ambassador car.
For the reasons stated above, we hold that the High
Court has not decided issue no. 1 (b) correctly. No corrupt
practice was established to have been committed by any
person with the consent of the respondent or by his election
agent and the election of Rao, therefore, was wrongly de-
clared to be void under section 100(1)(b) of the Act.
Even so, we had to consider whether Civil Appeal 686 of
1974 filed by Reddy is fit to be allowed. Rao may not be
guilty of having committed any corrupt practice yet, if on
recount it could be found that Reddy had polled majority of
votes, he could succeed in both the appeals. Mr. Sen,
learned counsel for appellant Reddy made his submissions in
regard to two types of ballot papers only and urged that if
we were to hold in his favour in that regard the result of
the counting would definitely tilt in favour of Reddy as he
will have polled more votes than those polled by Rao. For
the reasons to be hereinafter stated, we do not accept the
argument of Mr. Sen to be well founded and correct and hold
that the result of the number of
509
votes polled by each candidate arrived at by the High Court
is correct and does not call for any interference by this
Court.
The first objection raised on behalf of Reddy relates to
rejection of 338 votes apparently appearing to have been
cast in his favour but were rejected on the ground that the
marks given on them were on the reverse side of the symbol
and not on the obverse side. Several such votes apparently
cast in favour of Rao were also rejected. Mr. Sen submitted
that 338 votes ought to have been treated as validly polled
by Reddy. We do not accept this contention to be sound. In
our opinion the High Court has rightly maintained their
rejection. Rule 39(2)(b) of the Conduct of Election Rules,
1961--hereinafter referred to as the Rules, requires:
(2) The elector on receiving the ballot paper shall
forthwith;
(a) proceed to one of the voting compartments;
(b) there make a mark on the ballot paper with the
instrument supplied for the purpose on or near the
symbol of the candidate for whom he intends to
vote;"
On a plain reading of the said rule it is clear that the
voter has to make the mark on the ballot paper and not
behind the ballot paper. The symbols are given on the ob-
verse or the front side of the ballot paper and the require-
ment of the rule to mark on the ballot paper on or near the
symbol of the candidate for whom the elector intends
to vote necessarily means marking on the obverse side
either on the symbol itself or so near it as to clearly
indicate the intention of the voter. Putting a mark on the
reverse side even though because of the thinness of the
paper the symbol may be visible is far from complying with
the requirement of the rule. Such a mark will make the
ballot paper in substance and in effect bearing no mark at
all within the meaning of clause (b) of sub-rule (2) of
rule 56 of the Rules or bearing a mark indicating the vote
thereon placed in such a manner as to make it doubtful to
which candidate the vote has been given justifying its
rejection under clause (d). Mr. Sen called our attention to
the recent amendment of the Rules made in 1974 wherein it
has been clearly specified that the mark must be put on the
face of the ballot paper and also that the ballot paper must
be rejected if it does not bear a mark on the face, and
submitted that on the language of the rules as they stood at
the relevant time in this case ballot papers bearing mark on
the reverse side against the symbol of a particular candi-
date indicating the choice of the voter could not be reject-
ed as invalid. We think that the amendment of the rule
merely clarifies what was intended earlier and does not make
any change or departure from the previous position. Since
some High Courts had taken a contrary view while considering
the rules or similar rules, for the sake of clarification
and precision, it appears to us, that amendment of the rule
became necessary. A single Judge of the Andhra Pradesh High
Court dealing with similar Gram Panchayat Rules had taken a
contrary view in W.P. 2851/70, decided on 10-12-1970. The
learned Judge followed the decision of the Allahabad
510
High Court in Swarup Singh v. Election Tribunal(1) and a
decision of the Rajasthan High Court in Dhanpatlal v.
Harisingh(2). We hold that the view expressed in those
cases is not correct. On the contrary the decision of the
Madras High Court in A. V. Palaniawami v. The Election Court
(District Munsif), Tiruppur and others(3) in this regard
expresses the correct opinion. The point in that case, has
been well discussed with reference to various authorities
both in India and other countries. We would like to refer
to the dictum of Baron Pollock in Mr. Sykee v. Mr. Mc Arl-
hur(4) wherein it has been said that the mark must be on the
face of the ballot paper and that the vote bearing cross on
the back being not in compliance with the Act was rightly
rejected. On the basis of the decision aforesaid as also on
some others a passage is to be found at page 140 in Hals-
bury’s Laws of England, Third Edition, Vol. 14 to the fol-
lowing effect:
"A ballot paper marked on the back only
should not be counted, even though the mark shows
through the paper
on to the front".
The High Court has noticed in its judgment paragraph 17(k)
of Chapter VIII of the Hand Book issued and published by the
Election Commission in 1972 for the guidance of the Return-
ing Officers. While indicating the procedure for counting,
the Returning Officers have been instructed to reject a
ballot paper when there is no mark at all on the front or
when the mark is in blank area, that is to say at the back
or entirely in the shaded area. It is no doubt true that
the binding directions either generally or specially could
be issued by the Election Commission under sub-rule (1) of
Rule 56.. Sub-rule (2) does not speak about the issu-
ance of any such directions. Even so in our opinion the
administrative instructions issued by the Election Commis-
sion give a clue to the interpretation of rule 39(2) and
rule 56(2) of the Rules. The instructions so issued are in
onsonance with the interpretation of the rules aforesaid as
put by us.
The second objection relates to the acceptance in favour
of Rao two groups of ballot papers-one group consisting of
186 votes and the other 262 votes. The High Court has
separately dealt with them in its judgment. Out of 186
votes Ext. X-26 contains 135 votes, X.27-11 votes,
X.28-38 votes. X.29-one vote and X.30-one vote. Out of the
other group Ext. X.31 contains 241 votes, X.32 one vote and
X.33-20 votes. The High Court has mentioned the different
types of defects which remained on the two groups of ballot
papers aforesaid. Broadly speaking the defects were an
infraction of rule 38(1) of the Rules making them liable to
be rejected under clause (h) of sub-rule (2) of rule 56.
But then under the first proviso to sub-rule (2) it has been
stated ;
"Provided that where the returning officer
is satisfied that any such defect as is mentioned
in clause (g) or clause (h) has been caused by any
mistake or failure on the part
(1) A.IR. 1960 All. 66.
(2) AI.R. 1969 Rajasthan, 92.
(3) (1973) 2 Madras Law Journal, 60
(4) 4 O’Malley and Hardeastle, 110.
511
of a presiding officer or polling officer, the
ballot paper shall not be rejected merely on the
ground of such defect."
On a consideration of the evidence adduced by the par-
ties and the broad probabilities and the circumstances of
the case the High Court has come to the conclusion, and in
our opinion rightly, that the said two groups of ballot
papers were rightly not rejected by the Returning Officer
and were correctly counted for Rao. The Returning Officer
while accepting a ballot paper, even though, he does so
under the proviso aforesaid, is not required to record any
reasons for acceptance. Reddy had not made out any case
that any objection had been taken on his behalf as respects
the acceptance of the above mentioned votes of the two
groups. No objection was specifically raised in the elec-
tion petition that any of the ballot papers counted in
favour of Rao should have been rejected under rule 56(2)(h)
or that it could not be accepted under the proviso. Reddy
seems to have fished in troubled waters because of the order
of recount made by the High Court in connection with some
other defects which justified the making of such an order.
The finding of the High Court in clearest term, which could
not be assailed before us with any success, is as follows:
"Having regard to the above discussion, it
cannot be held that in the instant case the ballot
papers which did not contain both the distinguish-
ing mark and the signature of the Presiding or
Polling Officer or where either the signature or
the mark was not present were accepted by the
Returning Officer, without satisfying himself as to
whether that defect was due to the mistake or the
failure of the Presiding Officer or Polling Offi-
cer. As that is not established and as it is, also
clear to the Court from the record placed before
it, that these defects have occurred only due to
the failure of the Presiding Officer and further as
there is no doubt aS to the genuineness of these
ballot papers, it is held that the ballot papers
were rightly accepted by the Returning Officer."
In our judgment the High Court is right in arriving at the
respective figures of valid votes ’polled by the two candi-
dates after recount as per the order of the High Court and
in arriving at the conclusion that Rao had polled the major-
ity of the votes.
For the reasons stated above we allow Civil Appeal No.
583 of 1974, set aside the judgment and order of the High
Court declaring the election of M. Narayana Rao--the appel-
lant in that appeal, void. We dismiss Civil Appeal No. 686
of 1974 filed by C. Venkata Reddy. Taking into consideration
the totality of the circumstances of the case, we shall make
no order as to costs in either of the two appeals.
C.A. 583 of 1974 allowed.
P.H.P. C.A. 686 of 1974 dismissed.
512