PETITIONER:
RAMJI PRASAD SINGH
Vs.
RESPONDENT:
RAM BILAS JHA & FOUR ORS.
DATE OF JUDGMENT24/09/1976
BENCH:
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
GUPTA, A.C.
CITATION:
1976 AIR 2573 1977 SCR (1) 741
1977 SCC (1) 260
ACT
Representation of the People Act 1950--Sec. 15, 21, 22,
23--Preparation and revision of electoral roll--Amendment,
transposition or deletion of entries in electoral
roll--Provision of Sec. 23 if mandatory--Representation of
the People Act 1951---Every person on electoral roll whether
entitled to vote even if name not brought in accordance with
law---Sec. 100 ( 1 ) b--Sec. 123 ( 1 ) (A)b-Bribery--Proof
of--Quasi-criminal in nature Interference with appreciation
of evidence by High Court.
Bihar and Orissa municipal Act 1922--S. 389.
HEADNOTE
In March, 1972, the Election Commission issued a notifi-
cation calling upon the Muzaffarpur Local Authorities Con-
stituency to elect one member to the Bihar Legislative
Council. One of the constituencies was the notified area
committee of Dumra. The. last date for filing nomination
was 5-4-1972. The poll was held on 30-4-1972 and the result
was declared on 1st May, 1972. Respondent no. 1 an-independ-
ent candidate secured the highest number of votes, namely
61, whereas his nearest rival respondent no. 5 secured 36
votes.. The appellant Ramji Prasad Singh, a voter, filed an
election petition challenging the election of respondent no.
1 inter alia on the following two grounds:
(1) 40 voters of the Dumra Notified Ares Commit-
tee were illegally prevented from exercising their
franchise which materially affected the result of
the election.
(2) Respondent no. 1 attempted to bribe two voters.
The Government of Bihar had nominated 40 persons to be
the members of the Dumra notified Area Committee by its
notification dated 5-5-1971. All of them were duly enrolled
as voters in the electoral roll. On 4-4-1972 the State
Government issued a notification cancelling the notification
dated 5-5-1971 and nominating 40 other persons mentioned
therein as members of the Dumra Notified Area Committee. In
a Writ Petition filed by some of the sitting members, the
High Court passed an interim order staying the operation of
the notification dated 5-5-1971. The names of the 40 per-
sons who were nominated earlier were removed from the elec-
toral roll and it was alleged that the names of 40 new
members were included. The old members were not permitted
to vote on the ground that their names were not on the
electoral roll and the new members were not permitted to
vote on the ground that the High Court had issued the stay
order. Section 389 of the Bihar & Orissa Municipal Act 7 of
1922 empowers the State Government to make appointments to
Notified Area Committee. Section 151of the Representation,
of the People Act 1950 provides that for every constituency
there shall be an electoral roll which shall be prepared in
accordance with the provisions of the Act. Section 21 deals
with the preparation and revision of the electoral roll.
Section 22 provides the procedure for correction of entries
in electoral rolls. Section 23(3) provides that no amend-
ment, transposition, or deletion of any entry shall be
made under section 22 and no direction for the inclusion of
a name in the electroal roll of a constituency shall be
given after the last date for making nominations for the
election.
The High Court dismissed the election petition.
The appellant contended:
1. Section 62(1) of the Representation of People Act,
1951 provides that no person who is not and except as ex-
pressly provided by this Act every person
742
who is, for the time being entered in the electoral roll of
any constituency shall be entitled to vote in that constitu-
ency and, therefore, since the names of the 40 new persons
were in the electoral roll and since’ they were illegally
prevented from voting which has materially affected the
result of the election, the election must be set aside.
2. The elected candidate attempted to bribe two voters
and thereby rendered his election void under sec. 100 (1)(b)
read with sec. 123 (a)(A)(b) of the Representation of the
People,Act 1951.
Dismissing the appeal,
HELD: 1. It is implicit in section 62(1) that the name
of the person who claims to be entitled to vote in a con-
stituency must have been entered in the electoral roll of
that particular constituency in accordance with law. If the
name of a person is entered in the electoral roll in viola-
tion of section 23(3) he can have no right to vote by reason
merely of the entitlement conferred by section 62(1). [749
A--C]
Kabul Singh v. Kundan Singh & Ors. [1970] v.S.C.R. 845;
B.M. Ramaswamy v. B.M. Krishnamurthy and Ors. [1963] 3
S.C.R. 479 explained.
Baidyanath, Panliar v. Sitaram Matho & Ors. [1970] 1 SCR 839
followed.
2. The electoral roll was amended after 5th April, which
was the last date for filing the nomination. [745 G]
3. The provisions of section 23(3) are mandatory. The
Election Commission of India was within its right in with-
drawing the polling booth at the Dumra Committee office in
order that the new members may not vote at the election.
[750 B, C]
4. The charge of bribery is quasi-criminal in nature and
in a series of cases this Court has held that such a charge
must be proved not by a more preponderance of probabilities
but beyond a reasonable doubt. In the absence of any evi-
dence of unimpeachable nature and particularly in the ab-
sence of any contemporaneous complaint in regard to the
allegation of bribery it would be unsafe to accept the bare
word of the appellant and his witness on such a serious
charge. The High Court having considered the evidence on
the question of bribery fully and carefully, this Court did
not find any reason to depart from the well established
practice that except for substantial reasons. this Court
does not embark on a detailed assessment of oral evidence.
[751 B--C]
JUDGMENT
Civil Appeal No. 1147 of .1974
(From the Judgment and Order dated 9.5.1974 of the Patna
High Court in Election Petition No. 42/72).
D. Goburdhan and L.R. Sinha, for the Appellant
D.V. Patel, U.P. Singh, R.P. Singh and S.N. Jha, for
respondent No. 1.
The Judgment of the Court was delivered by
CHANDRACHUD, J.--This is an appeal under section 116A of
the Representation of the People Act, 1951 from the judgment
of the Patna High Court dated May 9, 1974 in Election Peti-
tion No. 42 of 1972.
On March 29. 1972 the Election Commission issued a
notification calling upon the Muzaffarpur Local Authorities
Constituency to elect one member to the Bihar Legislative
Council.. That Constituency consists of the Municipalities
of Muzaffarpur, Sitamarhi, Hajipur and
743
Lalganj and the Notified Area Committees of Mahnur and
Dumra. We are concerned in this appeal with the Notified
Area Committee of Dumra only. According to the programme
notified by the Election Commission, the last date for
filing nominations was April 5, 1972. The poll was held on
April 30 and the result of the election was declare,5 on May
1, 1972. Respondent 1 Ram Bilas Jha, an independent candi-
date, secured the highest number of votes, namely 61 whereas
his nearest rival respondent 5, Mahanth Raghunath Das, a
Congress (R) candidate, secured 36 votes.. Respondent 1 was
accordingly declared elected.
The appellant Ramji Prasad Singh was a voter for the
election being a member or commissioner of the Sitamarhi
Municipality. On June 14, 1972 he filed an election peti-
tion in the Patna High Court challenging the election of
respondent 1 on various grounds. Before us, appellant
restricted his challenge to the following two grounds :--
(1) Forty voters of the Dumra Notified Area
Committee were illegally prevented from exercising
their franchise, which materially affected the
result of the election; and
(2) Respondent 1 attempted to bribe two
voters, Sri Narain Prasad and Ram Swarath
Raut thereby rendering his election void under
section 100(1)(b) read with section
123(1)(A)(b) of the Act of 1951.
The High Court having rejected these contentions the elec-
tion petitioner has filed this appeal.
It is necessary to state certain important facts for a
proper appreciation of the question involved in the first of
the two points mentioned above. By Notification No.
2708/LSG dated May 5, 1971 the Government of Bihar had
nominated 40 persons to be members or commissioners of the
Dumra Notified Area Committee. All of them were duly
enrolled as voters in the electoral roll of the Muzaffarpur
Local Authorities constituency. On April 4, 1972 the State
Government issued a Notification, No. 2934, cancelling the
notification dated May 5, 1971. By another notification,
No. 2935, of even date, viz., April 4, 1972 the State Gov-
ernment nominated 40 other persons named therein as members
of the Dumra Notified Area Committee.
Immediately after the issuance of the two notifications
of April 4, 1972 some of the sitting members of the Dumra
N.A. Committee, who ceased to be members by reason of these
notifications, filed writ petition No. 150 of 1972 in the
Patna High Court challenging the validity of the notifica-
tions. A rule was issued in that writ petition on April 14,
1972 and by an interim order, the operation of notification
No. 2934 by which the notification of May 5, 1971 was can-
celled, was stayed till the disposal of the writ petition.
744
After the High Court issued the stay order, a petition
was moved before Shri A.M. Bose, the District Magistrate of
Muzaffarpur, asking that the names of the 40 members which
were removed from the electoral roll pursuant to the notifi-
cation issued by the State Government should be
reincorporated therein. Shri Bose who was functioning ex-
officio as the District Election Officer, Electoral
Registration Officer and the Returning Officer for the
purposes of the particular election sent a Teleprinter
message (Ex. 7) On April 21, 1972 to the Chief Electoral
Officer, Patna, stating that since the last date filing
nominations was long since past, the names of the old
members which were already removed from the electoral roll
could not be reincorporated therein but that it would be in
contempt of the High Court if elections were to be held on
the basis of the amended roll, as the High COurt had stayed
the operation of the notification issued by the Government
on April 4, 1972 cancelling the notification of May 5, 1971.
"In this anomalous situation", Shri Bose asked the Chief
Electoral Officer to seek the instructions of the ELection
Commission of India. By his Telex message (Ex.8), the Chief
Electoral Officer sought the directions of the Election
Commission which opined that since the old members could not
vote as their names were not on the electoral roll and since
the new members also could not vote because of the stay
order issued by the High Court, the polling station at the
Dumra Notified Area Committee office should be withdrawn and
cancelled. Pursuant to this directive, there was no polling
booth where the members of the Dumra Committee could cast
their votes. Consequently, neither the old 40 members whose
names were removed from the electoral roll nor the new 40
members whose names were included therein could cast their
votes in the election held on April 30. It is on this
background that the election petitioner raised the point
that the new 40 members were illegally prevented from
exercising their franchise and that such prevention had
materially affected the result of the election as those
members would have voted for respondent 5, the Congress (R)
candidate.
It may, we think, be accepted that the 40 newly enrolled
members, had they been permitted to cast their votes, would
have mostly voted for respondent 5. Thirty-four out of the
40 were examined as witnesses and they protested their
loyalty to respondent 5. Out of these 34 witnesses, 27 are
members of Congress (R) and though defections cannot be
totally ruled out, there is no reason to discard their
evidence that they were pledged to support respondent 5 who
was their party candidate. It may be assumed that members
of the party would not have disobeyed the mandate issued by
the Provincial and District Congress Committees through
circular letters, Exs. 3 and 3/a, that they must vote for
the party candidate, respondent 5. The remaining 7 out of
the 34 may be taken at their word that they would have voted
for respondent 5 since they thought that he was the most
eligible candidate amongst the contestants. There is also
evidence showing that the newly enrolled members had gone to
the polling station to cast their votes but had to return
without exercising their franchise as there was no booth
where they could cast their votes.
745
The question which then remains to be considered is
whether the newly enrolled members of the Dumra Committee
were prevented illegally from casting their votes in the
poll of 30th April. The power to make appointments to
Notified Area Committee’s is derived by the State Government
under section 389 of the Bihar and Orissa Municipal Act, 7
of 1922. That section provides by clause (c) that the State
Government may by notification appoint a Committee or make
rules for the appointment or election of a Committee for
carrying out the purposes of the Municipal Act in the Noti-
fied Area. The notifications of May 5, 1971 and April 4,
1972 nominating 40 persons as members or commissioners of
the Dumra Notified Area Committee were issued by the Govern-
ment of Bihar in exercise of the power conferred by section
389(c). The State Government did have the power to issue
the 2nd notification as much as the first and their juris-
diction in that behalf has not been questioned.
An interesting question however arises by reason of the
provisions contained in the Representation of the People
Act, 43 of 1950. Section 15 of that Act provides that for
every constituency there shall be an electoral roll which
shall be prepared in accordance with the provisions of the
Act under the superintendence, direction and control of the
Election Commission. Section 16 prescribes disqualifica-
tions for registration in an electoral roll. Section 21
dels with the preparation and revision of the electoral
roll. Section 22 prescribes a procedure for correction of
entries in electoral rolls and section 24 provides for an
appeal from any order passed under section 22. Section 23(3)
which has an important bearing on the point raised behalf of
the election petitioner reads thus :--
"23. (3) No amendment, transposition or
deletion of any entry shall be made under section
22 and no direction for the inclusion of a name in
the electoral roll of a constituency shah be given
under this section, after the last date for making
nominations for an election in that constituency or
in the parliamentary constituency within which that
constituency is comprised and before the completion
of ’that election."
As mentioned. above the State Government issued two
notifica’lions on April 4, 1972, one by which the earlier
notification of May 5, 1971 was cancelled and the other
making fresh appointments of 40 members to the Dumra Noti-
fied Area Committee. As a result of these notifications
(Exs. 10A and 10 respectively), it became necessary for the
Electoral Registration Officer to delete from the electoral
roll the names of 40 persons who were appointed under the
notification of May 5, 1971 and to. include in their place
the names of the 40 new members who were appointed to the
Committee under the Notification (Ex. 10) of April 4, 1972.
But these corrections or amendments could not, by reason of
section 23(3), be made after April 5, 1972 which was the
last date for making nominations to the election. No direc-
tion also could have been given for the inclusion of these
names in the electoral roll, after the last date for making
nominations. The point, thus, for consideration is
whether the
746
amendment to the electoral roll was made in the instant case
by incorporating the names of the 40 new members therein on
or before the 5th April or whether the roll was amended
after the expiry of that date. If the roll was amended
after the 5th April, the inclusion of the new names would be
clearly in breach of the mandate contained in section 23(3)
of the Act of 1950 and therefore beyond the jurisdiction of
the Electoral Registration Officer. The best evidence on
this question would of course be of Shri Bose himself who,
being the District Magistrate of Muzaffarpur, was function-
ing ex-officio as the Electoral Registration Officer.
Ex. 1 is the electoral roll for 1972 on the basis of
which the biennial election to the Bihar Legislative Assem-
bly from the Muzaffarpur Local Authorities constituency was
held in this case. The names of the 40 members of the Dumra
Notified Area Committee who were appointed under Notifica-
tion No. 2935 (Ex. 10) dated April 4, 1972 are included in
that roll at Serial Nos. 31 to 70. These names, according
to the learned counsel of the election petitioner, were
entered in the roll soon after the Electoral Registration
Officer received the two notifications (Exs. 10 and 10A)
which was at about 8-15 a.m. on. the 5th April. On the
other hand, learned counsel for respondent 1 says that in
the very nature of things the names could not have been
entered in the electoral roll before the expiry of the
crucial date, 5th April. At best, according to him, the
names might have been entered in the roll on the 6th.
It seems to us impossible to accept the contention of
the election petitioner that the names of the new members
were entered in the electoral roll immediately after Shri
Bose, the Electoral Registration Officer, received the
notifications Exs. 10 and 10A dated April 4. It is true that
Shri Bose received these notifications through a special
messenger on the 5th at about 8-15 a.m. But he says in his
evidence that immediately after receiving the notifications,
he endorsed them to the Assistant District Electoral Officer
and then to the Deputy Collector in charge of the General
Section for necessary action. He has further stated that he
could not have taken any action for including the names of
the new members in the electoral roll on the strength of the
notifications because, in so far as he knew, an amendment in
the electoral roll could not be made unless a list of mem-
bers for inclusion in the electoral roll was received by him
from the Chairman of the local body concerned. That unques-
tionably is the true legal position because under section
27(2)(d) of the Representation of the People Act, 1950 it is
the duty of the Chief Executive Officer of every local
authority (by whatever designation he may be known) to
inform the Electoral Registration Officer immediately about
every change in the membership of the local authority, in
order to enable the Electoral Registration Officer to main-
tain the electoral roll corrected up-to-date. The section
further provides that on receipt of such information the
Electoral Registration Officer shall strike off from the
electoral roll the names of persons who have ceased to be
and include therein the names of persons who have become,
members of the
747
particular local authority. Shri Bose, therefore, could not
have included the new names in the electoral roll merely on
the strength of the Government notifications which he re-
ceived on the morning of the 5th. For doing so, he had to
await an official communication from the Chief Executive
Officer of the Dumra Notified Area Committee.
At the relevant time Shri Durga Prasad, the Sub-Divi-
sional Officer of Sitamarhi, District Muzaffarpur, was
functioning ex-officio as the Chairman of the Dumra Notified
Area Committee and was therefore the "Chief executive offi-
cer" of that local authority, within the meaning of section
27(2)(d) of the Act of 1950. Just as Shri Bose had received
the two Government notifications on the 5th, so had Shri
Durga Prasad. On receiving the notifications he convened an
’emergent meeting’ of the newly nominated members of the
Dumra Committee which, as shown by the proceedings Ex. E,
was held in the Committee’s office at 8 p.m. on the 5th.
Shri Durga Prasad has stated in his evidence that after the
meeting was over he sent a letter (No. 62) to Shri Bose
stating that the old list of members should be treated as
cancelled and the names of members mentioned in the new list
should be included in the electoral roll. Shri Bose has
stated in his evidence that he received that letter (Ex.
A/3) at 11-30 p.m. through a special messenger and in token
thereof made an appropriate endorsement on it. That en-
dorsement is Ex. J which shows that the letter was received
at 11-30 p.m. on the 5th April, Shri Bose also made another
endorsement (Ex. K) on that letter saying that in the new
list of members sent along with the letter Ex. A/3, the
addresses members at Serial Nos. 8, 16 and 29 to 37 were not
noted. Shri Bose has testified to these endorsements in
his own evidence.
Column No. 5 of the Electoral Roll requires the specifi-
cation of the authority on the basis of which the names of
voters are incorporated in the Electoral Roll. In regard to
the names of the 40 new members with which we are concerned
in this appeal, the authorisation for including their names
in the roll is stated as letter No. 62 dated April 5, 1972
of the Chairman of the Dumra Notified Area Committee. That
letter, as stated above, was received by the Electoral
Registration Officer at 11-30 p.m. on the 5th.
The fact of the receipt of Shri Durga Prasad’s letter by
Shri Bose at 11-30 p.m. on the 5th and the entry in column 5
of the Electoral roll that the new names were incorporated
therein on the authority of that letter make it impossible
to accept the half-hearted claim of Shri Bose that he had
passed orders for inclusion of the new names on the 5th
itself. Time was running fast and only half an hour was
left for the last date to expire for making amendments in
the electoral roll.. The endorsement, Ex. K, made by Shri
Bose on letter No. 62 Ex. A/3, shows that he treated the
list of members as incomplete in necessary particulars since
the addresses of certain members were not mentioned in the
list. Shri Bose did not make any endorsement on the letter,
which he would in the normal course of business do, direct-
ing that the names of new members contained in the list
accompanying the letter should be incorporated in the
roll. In fact
16--1234SCI/76
748
the letter was "diarised" by Shri Bose’s office on the 6th.
Even on the 6th, when an endorsement was made on the letter
regarding its diarisation in the relevant office file, the
letter did not bear any direction of the Electoral Registra-
tion Officer that the new names should be included in the
electoral roll. The fact of the matter seems to be that
the notifications of the 4th April came too late for being
acted upon before the dead-line, which was the 5th. The red
tape moved slowly, the due date expired and then every one
awoke to the necessity of curing the infirmity by hurrying
with the implementation of the notifications. But it was
too late and the law had already put its seal on the elec-
toral roll as it existed on the 5th April. It could not be
touched thereafter, until the completion of the election.
The entry at Serial No. 33 in the letter, Ex. M, on
which the appellant relies to show that orders were issued
on the 5th itself for inclusion of new names in the elector-
al roll is ambiguous and relates, in all probability, to the
superseded list of May 5, 1971. The Assistant District
Election Officer who is the author of the letter was not
examined in the case and Shri Bose to whom the letter was
addressed has admitted very fairly that he is "doubtful
about serial No. 33" in Ex. M.
Coupled with these facts is the evidence of witnesses
from the Government Printing Press showing that the notifi-
cation, Ex. 10, by which the appointment of new members was
made was printed and published on April 7, 1972. Evidently,
there was inadequate response to the urgency of the proces-
sual matters governing the electoral process.
We must, however, make it clear in fairness to Shri
Durga Prasad and Shri Bose, that neither of them is to be
blamed for non-inclusion of the names in the electoral roll
within the appointed time. They acted with the promptitude
possible in the circumstances and the mishap occurred mainly
because of the last-minute decision of the Government to
cancel the previous notification and to issue a new one in
its place. The new notification, Ex. 10, was lacking in
essential particulars and in transposing some of the
not so easily identifiable names of new members to the
electoral roll, whether it was done on the 6th, 7th or
later, the Electoral Officers did the best of a bad bargain.
We see no substance in the argument that since the new
names have found their way into the electoral roll, the
entries are conclusive of the right of those members to vote
at the election and accordingly, the Court has no power or
jurisdiction to go behind the entries and inquire into their
validity. In support of this argument the appellant’s
counsel relies principally on section 62(1) of the Represen-
tation of the People Act, 1951 which provides that "No
person who is not, and except as expressly provided by this
Act, every person who is, for the time being entered in the
electoral roll of any constituency shall be entitled to vote
in that constituency." This sub-section may be split up
into. two parts so as to make its meaning and intendment
clear. It provides, in the first ..place, that a person Who
is not entered in an electoral roll of a constituency shall
not be entitled to vote in
749
that constituency. Secondly it provides that, except as
expressly provided by the Act, every person who is for the
time being entered in the electoral roll of any constituency
shall be entitled to vote in that constituency. It is
implicit in these provisions that the name of the person who
claims to be entitled to vote in a constituency must have
been entered in the electoral roll of that particular con-
stituency in accordance with law. Section 23(3) of the
Representation of the People Act, 1950 provides that no
amendment, transposition or deletion of any entry shall be
made and no direction for the inclusion of a name in the
electoral roll of a constituency shall be given after the
last date for making nominations for an election in that
constituency and before the completion of the election. If
the name of a person is entered in the electoral roll in
violation of the mandate contained in this section, he can
have no right to vote by reason merely of the entitlement
conferred by section 62(1) of the Act of 1951. Putting it
briefly, the words "for the time being entered in the elec-
toral roll" in section 62( 1 ) of the Act of 1951 must be
taken to mean "for the time being entered in the electoral
roll in accordance with law."
Learned counsel for the appellant invited our attention
to a decision of this Court in Kabul Singh v. Kundan Singh &
Ors. (1) which says that in view of section 30 of the Act of
1950, entries found in the electoral roll are final and that
no civil court has jurisdiction to entertain or adjudicate
upon any question as to whether any person is or is not
entitled to be registered in an electoral roll for a con-
stituency or to question the legality of any action taken by
or under the authority of an Electoral Registration Officer
or of any decision given by any authority appointed under
the Act for the revision of any such roll. In B.M. Ramaswa-
my v. B.M. Krishnamurthy and Ors.(2) also this Court had
come to the conclusion that the finality of the electoral
roll cannot be challenged in a proceeding in which the
validity of the election is questioned. These decisions
cannot assist the appellant for two reasons. Firstly, the
question which arises for consideration before us is not
whether any one or more of the 40 members whose names are
included in Ex. 10 are entitled to be registered in the
electoral roll. The question is, assuming that they are so
entitled, were their named entered in the roll within the
time limited by law? Secondly, the legality of the action
taken by the Electoral Registration Officer in entering the
new names in the roll after the expiry of the last date for
making nominations, was in issue before High Court in the
Election Petition itself filed by the appellant, under
section 81 of the Act of 1951, Section 30(b) of the Act of
1950 cannot affect the jurisdiction of the High Court, while
dealing with an election petition, to set aside an election
on the grounds mentioned in section 100(1) of the Act of
1951, one of which is that the result of the election was
materially affected by the improper reception, refusal or
rejection of any vote. There is a clear distinction between
a challenge to the right of a voter to be registered in an
electoral roll and the jurisdiction of an authority appoint-
ed under the Act to enter a name in the electoral roll.
That jurisdiction has perforce to be exercised.
(1) [1970] 1 S.C.R. 845. (2) [1963] 3 S.C.R. 479.
750
consistently with the provisions of the law governing the
election and in case there is failure to do so, the action
of the officer would be open to challenge on the ground of
want of jurisdiction. If, as here, the electoral roll is
amended after the time-limit set down in section 23(3) of
the Act of 1950, the amendment would be without jurisdiction
conferring no right to vote on the persons whose names are
thus included in the roll. As held by this Court in Baidya-
nath Panjiar v. Sitaram Mahto & Ors., C) the provision
contained in section 23 (3) is mandatory not merely because
of the language employed in that sub-section but more so in
view of the purpose behind the particular provision. The
sub-section does not deal with any mode or procedure in the
matter of registering voters. It interdicts the concerned
officer from interfering with the electoral process under
the prescribed circumstances. Therefore, when there is a
breach of section 23(3), the question is not of an irregu-
lar exercise of power but of the lack of power itself.
It is thus clear that the Election Commission of India
was within its rights in withdrawing the polling booth at
the Dumra Committee office in order that the new members may
not vote at the election. The reason which weighed with the
Election Commission were evidently different but its ulti-
mate decision can seek its justification in what we have
stated above. It is unfortunate that the existing 40
members of the Committee also were prevented from voting but
they did not complain of the deprivation of their franchise,
probably because they thought that their names, in any
case, were deleted from the roll on the 5th itself.
It is a sad reflection that the sitting members of the
Dumra Committee should have been dismembered on the eve of
the elections, apparently without rhyme or reason. The
State Government undoubtedly possesses the power under
section 389(c) of the Bihar and Orissa Municipal Act, 1922,
to make appointments to the Notified Area Committees but
that power, it ought to be remembered, must be exercised’
for carrying out the purposes of that Act, not for defeating
them. The issuance of the two notifications on the penulti-
mate day, the feverish activity following in their wake and
the unseemly haste and hurry with which the enrolment of new
members was attempted to be rushed through on the eventful
evening of the 5th April lend great weight to the contention
of respondent 1’s counsel that the cancellation of the old
members and their replacement by the new ones was motivated
by considerations foreign to the good governance of the Area
Committee. We feel greatly uneasy that local machinations
should have eventually led in this case to a denial of the
valuable right of franchise to the whole body of 40 members
who constituted the Area Committee. Such occurrences, we
hope, will not happen once too often. If they do, the power
of the State Governments to make appointments to Area Com-
mittees will itself become suspect, sapping thereby the
faith of the people in the working of what are believed to
be the nurseries of democracies.
That leaves the second of the two contentions to be
considered, namely, that respondent s election is vitiated
because he attempted to
(1) [1970] 1 S.C.R. 839.
751
bribe the voters Sri Narain Prasad and Ram Swarath Raut.
Having considered the evidence of these two witnesses who
are respectively P.Ws. 11 and 71 and the evidence of the
appellant himself, it seems to us impossible to accept the
allegation of bribery. The two witnesses, P.Ws. 11 and 71,
are members of a local authority and it is unlikely that an
attempt would be made to bribe them. In the absence of any
evidence of unimpeachable nature and particularly in the
absence of any contemporaneous complaint in regard to the
allegation of bribery, it would be unsafe to accept the bare
word of the appellant and his witnesses on such a serious
charge. The charge of bribery is quasicriminal in nature
and in a series of cases this Court has held that such a
charge must be proved not by a mere preponderance,of proba-
bilities but beyond a reasonable doubt. That proof is
tacking here. Besides, the High Court has considered the
evidence on the question of bribery fully and carefully and
we do not see any reason for departing from our established
practice that, except for substantial reasons, this Court
will not embark upon a detailed assessment of oral evidence.
In the result, the appeal fails and is dismissed with
costs in favour of respondent 1.
P.H.P. Appeal dis-
missed.
752