Dr. Y. S. Parmar vs Shhira Singh Paul And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 410 of 1958

Decision Date: 17 October, 1958

Coram: A.K. Sarkar, P.B. Gajendragadkar

In the matter styled Dr. Y. S. Parmar versus Shhira Singh Paul and Another, the judgment was delivered on 17 October 1958 by the Supreme Court of India. The opinion was authored by Justice A.K. Sarkar, with Justice P.B. Gajendragadkar and Justice A.Iyyar forming part of the bench, the latter also joined by Justice T.L. Venkatarama. The petitioner's full name is Dr. Y. S. Parmar and the respondents are Shhira Singh Paul and an additional party. The case is reported in the 1959 volume of the All India Reporter at page 244 and also appears in the 1959 Supreme Court Reporter Supplement (1) at page 213. The citation in the law reports is recorded as D 1975 SC 2299 (412). The controversy concerned alleged corrupt practice under the Representation of the People Act, 1951, specifically sections 46 and 123(7), relating to the procurement of assistance from a government servant for electoral purposes. The headnote summarised that the appellant, a parliamentary candidate, signed a large number of blank polling-agent appointment forms and handed them to a person identified as Kalyan Singh. Kalyan Singh subsequently filled in the name of a particular polling station on three of those forms and gave them to Kashmira Singh, who entered the name of Amar Singh as the polling agent on one of the forms. Amar Singh signed the completed form, lodged it with the presiding officer at the designated polling station and acted as the appellant’s polling agent. Although Amar Singh was a member of the armed forces, neither the appellant nor Kashmira Singh nor Kalyan Singh was aware of his government service. After the election the appellant was declared elected, but an election petition subsequently set aside the result on the ground that the appellant had engaged in corrupt practice by procuring the assistance of a government servant.

The appellant argued that the appointment of Amar Singh as his polling agent was invalid because neither he nor his election agent had made the appointment, and that he could not be held liable for a corrupt practice because he did not know that Amar Singh was in government service, thus lacking the requisite mens rea. The Court held that the appellant had indeed appointed Amar Singh as his polling agent by personally signing the appointment form; the later insertion of the agent’s name by another person after the appellant’s signature did not transform the appointment into one made by that other individual. The Court further concluded that the appellant was guilty of the corrupt practice because his appointment of Amar Singh enabled the latter, acting as polling agent, to assist in furthering the appellant’s electoral prospects. Under section 123(7) Explanation (2) a presumption arises that the appellant, by appointing the agent, procured the assistance of a government servant in furtherance of his election, irrespective of his intention to do so. Accordingly, the appellant’s knowledge of the agent’s status as a government servant was deemed irrelevant, and the mens rea element was not considered a necessary ingredient of the corrupt practice.

The Court observed that it was irrelevant whether the person whose assistance had been obtained was a servant of the Government, and that a guilty mind was not a necessary element of the corrupt practice. The judgment was rendered in the civil appellate jurisdiction in Civil Appeal No 410 of 1958, filed by special leave from the judgment and order dated 31 July 1958 of the Judicial Commissioner’s Court at Simla, Himachal Pradesh, in Civil Miscellaneous First Appeal No 2 of 1958. The appellant was represented by counsel for the State of Uttar Pradesh and by counsel for the appellant, while the first respondent was represented by counsel for the respondent. The judgment was delivered on 17 October 1958 by Justice Sarkar.

This appeal arose out of an election petition filed by the first respondent, Hira Singh Paul, hereinafter referred to as the respondent. The second respondent was the Election Commission, which did not appear, apparently because it had no interest in a matter that involved no claim against it. The sole issue before the Court was whether the appellant had committed a corrupt practice within the meaning of section 123(7) of the Representation of the People Act, 1951, the particulars of which were to be set out later.

In the 1957 General Elections, ten candidates filed nomination papers to contest the Mahasu double-member constituency in Himachal Pradesh. One of the two seats for that constituency was reserved for a candidate from a scheduled caste. Two candidates withdrew, leaving eight candidates to contest the poll. Among those eight were the appellant, the respondent, and a candidate named Nek Ram. Nek Ram was declared elected to the reserved seat, and the appellant was declared elected to the general seat. The respondent obtained the next highest number of votes, behind the appellant.

After the declaration of results, the respondent filed an election petition on 3 August 1957, challenging the validity of the appellant’s election on the ground that the appellant had engaged in various corrupt practices. The Election Tribunal framed eighteen issues concerning the alleged corrupt practices but answered all of them except for issues numbered 8(1), 8(ii) and 11, which were left to be decided against the respondent.

Issue 8(1) questioned whether a person named Amar Singh, described as a member of the armed forces of the Union of India, had worked for and canvassed on behalf of the appellant. Issue 8(ii) asked whether the appellant had appointed Amar Singh as his polling agent. Issue 11 was framed as follows: if any of the issues numbered 8 to 10 were decided affirmatively, whether the respondent had obtained, procured, abetted or attempted to obtain, or procure through himself, his agents or supporters, the assistance of Government servants specified in those issues for the purpose of furthering the prospects of his election.

The Tribunal found against the appellant on issues 8(1), 8(ii) and 11, and consequently declared the appellant’s election void. The appellant then appealed the Tribunal’s decision.

The judicial Commissioner of Himachal Pradesh, in a judgment dated 31 July 1958, reversed the Tribunal’s finding on Issue No 8(1) but upheld the Tribunal’s conclusions on Issues 8(ii) and 11, thereby confirming the declaration that the appellant’s election was void. The appellant subsequently obtained special leave to appeal that judgment before the Supreme Court. As already noted, the only questions that remained for determination were those raised by Issues 8(ii) and 11. The factual background on which the parties agreed could be summarised as follows: the constituency comprised six hundred six polling stations, each of which could accommodate three polling agents, giving the appellant the right to appoint a total of one thousand eight hundred eighteen polling agents. On 28 April 1957, the appellant signed a large number of the standard forms prescribed under the election rules for appointing polling agents, leaving the name fields blank because he had not yet decided which individuals would serve at the many stations. He then delivered these unsigned forms to Kalyan Singh, who in turn passed three of them to Kashmira Singh, inserting the words “polling station No 13, Sheopur” on each of the three. On the day of polling, 25 May 1957, Kashmira Singh completed one of the forms by writing the name of Amar Singh as the polling agent for station 13, Sheopur, and handed the completed form to Amar Singh so that he could act as the appellant’s agent at that station.

Amar Singh subsequently signed the form as required by the rules and submitted it to the presiding officer at polling station 13, Sheopur. On the basis of that submission, he performed the duties of the appellant’s polling agent at that station for approximately two hours, until an objection was raised on the ground that he was a member of the armed forces; following the objection, he withdrew and left the polling station. In fact, Amar Singh was a serving member of the armed forces on the polling day, a fact that the appellant was not aware of at the time. Both Kalyan Singh and Kashmira Singh acted throughout these steps under the authority delegated by the appellant, and the evidence adduced was sufficient to establish these facts. The Advocate-General of Uttar Pradesh, appearing for the appellant, initially argued that Amar Singh had not been validly appointed as the appellant’s polling agent. He contended that, pursuant to section 46 of the Act, a polling agent could be appointed only by the candidate himself or by his election agent, and that the circumstances demonstrated that Amar Singh could not be said to have been appointed by either the appellant or his election agent. Accordingly, he maintained that Amar Singh had not been appointed as the appellant’s polling agent.

In this matter, the Court considered the submission of the appellant’s counsel that the allegation of corrupt practice should be dismissed on the ground that Amar Singh had not been validly appointed as the appellant’s polling agent. The Court first held that this line of argument could not be taken by the counsel. The counsel had previously appeared before the Judicial Commissioner and had expressly conceded that the fact or the validity of Amar Singh’s appointment as the appellant’s polling agent could not be questioned. Because that concession had been made on the record, the Court said it could not permit the appellant to now withdraw it, particularly when the same point had not been raised before the Tribunal. The Court therefore concluded that the appellant could not resile from a clear admission given by his own counsel in the lower proceeding.

The Court next examined the merits of the contention. Assuming, for the purpose of analysis, that the counsel was correct in stating that the Act permits a polling agent to be appointed only by the candidate himself or by the candidate’s election agent, the counsel argued that, on the facts, Amar Singh could not have been appointed by the appellant directly but only by one of the appellant’s other agents, namely Kalyan Singh or Kashmira Singh. Since neither Kalyan Singh nor Kashmira Singh was the election agent, the counsel argued that the appointment was therefore invalid. The Court noted that it was undisputed that neither Kalyan Singh nor Kashmira Singh held the position of election agent and that, in fact, the appellant appeared to have had no election agent at all. The Court held, however, that this circumstance did not affect the validity of the appointment because the appointment was not made by any intermediary agent but directly by the appellant. The reason for this conclusion was that the document effecting the appointment bore the appellant’s personal signature. The fact that another person later entered the name of Amar Singh in the same document after the appellant had signed it did not convert the appointment into one made by that other person acting as the appellant’s agent. The language of the document showed that the appointment was intended to be effected solely by the appellant’s signature, and the other person merely filled in the name with authority already conferred upon that person. No attempt was made by the other person to create a separate appointment. Consequently, the Court could not read the document as evidence of an appointment made by an agent of the appellant. The proper interpretation, according to the Court, was that the appellant himself, by signing the document, appointed the individual whose name was subsequently entered by another authorised person. Accordingly, the Court held that Amar Singh had indeed been appointed as the appellant’s polling agent by the appellant himself. Even under the counsel’s own construction of section 46 of the Act, this constituted a proper appointment.

In this case the Court observed that the appellant had appointed Amar Singh, who was a member of the armed forces, to act as his polling agent and that Amar Singh subsequently performed the functions of a polling agent. The central issue was whether this appointment amounted to a corrupt practice on the part of the appellant. The respondent contended, and the lower courts had accepted, that the appellant’s conduct fell within section 123(7) of the Representation of the People Act, which declares as corrupt practices the obtaining, procuring, abetting, or attempting to obtain or procure, by a candidate or his agent or by any other person, any assistance other than the giving of a vote for the furtherance of the prospects of that candidate’s election from any person in the service of the Government belonging to certain classes, including (c) members of the armed forces of the Union. The section is accompanied by an explanation stating that a person shall be deemed to assist in the furtherance of the prospects of a candidate’s election if he acts as an election agent, a polling agent or a counting agent of that candidate. The learned Advocate-General argued that the procurement or obtaining of assistance from a member of the armed forces could not constitute a corrupt practice unless the candidate knew that the person was in Government service. He reasoned that the words “procure” or “obtain” imply knowledge, and that the phrase “for the furtherance of the prospects of that candidate’s election” reinforces this requirement. Citing evidence that neither the appellant nor Kalyan Singh nor Kashmira Singh were aware at the time of Amar Singh’s appointment that he was serving in the armed forces, the Advocate-General concluded that the appellant could not be said to have procured or obtained any assistance for the purpose of furthering his election prospects. While the Court acknowledged that the appellant and the other individuals indeed lacked such knowledge at the date of the appointment, it held that the Advocate-General’s argument was untenable. The Court pointed out that the second explanation to section 123 makes clear that the very act of serving as a polling agent is itself assistance in furthering the candidate’s election prospects, irrespective of the appointing candidate’s knowledge of the agent’s government service. Consequently, the Court rejected the contention that knowledge was a necessary element for the provision to operate.

The Court observed that Amar Singh, by acting as the appellant’s polling agent, had assisted in furthering the prospects of the appellant’s election. Under the statutory scheme, a person may serve as a polling agent only after being duly appointed by the candidate, and the Court had already found that the appellant had appointed Amar Singh to that role. Consequently, the explanation to the provision generated a statutory presumption that the appellant had procured Amar Singh’s assistance for the purpose of advancing his election prospects. The provision required only that assistance be obtained for the furtherance of the election, and the presumption applied irrespective of the candidate’s actual intention. Counsel for the respondent, Mr Achhru Ram, emphasized that the explanation expressly removed the relevance of intention, even in cases where a candidate appointed a counting agent, whose function occurs after polling. The Court found it difficult to imagine how appointing a counting agent could further any election, yet the statute still created the same presumption. Therefore, in the present situation involving the appointment of a polling agent, the candidate’s subjective intent was immaterial. Accordingly, the appellant’s knowledge of whether Amar Singh belonged to the armed forces or any other specified class of government servants was equally irrelevant. On this basis, the Court concluded that the Advocate-General’s contention regarding the necessity of knowledge failed. The same reasoning also rejected the Advocate-General’s second argument that a corrupt practice, being a criminal offence, required proof of mens rea. The Court held that the appellant could be deemed to have committed a corrupt practice despite lacking any criminal intention when he appointed Amar Singh, because the statutory provision did not hinge on intention. The Court noted that reference had been made to passages from English election-law textbooks, which typically state that establishing a corrupt practice demands proof of corrupt intent. However, the Court observed that those English principles derived from different statutes and did not assist in interpreting the present Indian provision, which expressly excluded any requirement of intention. Having satisfied every element of the section, the Court found that the appellant had indeed committed the corrupt practice as defined by the statute. The statutory language required only that assistance be procured for the furthering of the election, and the existence of the presumption fulfilled this requirement automatically. Thus, the Court affirmed that the appellant’s appointment of Amar Singh fulfilled the statutory conditions, leading to a finding of liability.

In the material before the Court, reference was made to the textbook Schofield’s Parliamentary Elections, second edition, page 402. That source stated: “There is an elementary distinction between a corrupt and an illegal practice. To establish the former it is essential to show that a corrupt intention is present. A corrupt practice is a thing the mind goes along with, whereas an illegal practice is a thing the legislature is determined to prevent, whether it is done honestly or dishonestly.” The Court observed that this view was founded on English election law and on particular English statutes, and therefore it could not assist in interpreting the Indian statute that governed the present matter. The Court reiterated that the Indian provision dealing with the alleged corrupt practice did not require proof of any intention. The Court had already demonstrated that the domestic statute, at least with respect to the type of corrupt practice presented, did not address any issue of intention.

The Court noted that counsel for the appellant had relied on the English statutes underlying the textbook’s statement. Mr Achhru Ram, with his usual industry, supplied those English statutes and pointed out that under those statutes the acts described as corrupt practices had to be committed corruptly and were punishable as crimes. The Court then highlighted that the relevant Indian provisions had been amended in 1956, and that amendment had eliminated the distinction between illegal and corrupt practices. Consequently, only corrupt practices existed under the amended law, and the present case was governed by that amended statute. Accordingly, the Court found that no question of mens rea, intention, or the candidate’s knowledge arose. The Court concluded that the appellant had committed a corrupt practice by appointing Amar Singh, who was a member of the armed forces, as his polling agent, thereby enabling Amar Singh to act in that capacity. As a result, the Court held that the appellant’s election was rightly declared void. The appeal was dismissed with costs.