S.B. Adityan vs S. Kandaswami And Ors.

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 20 May, 1958

Coram: A.K. Sarkar

The case titled S.B. Adityan versus S. Kandaswami and others was decided on 20 May 1958 by the Supreme Court of India, and the judgment was authored by Justice A.K. Sarkar. In the general elections of 1957, nine individuals filed nomination papers to contest the Madras Legislative Assembly seat for the Sathankulam constituency, and every nomination was deemed valid on scrutiny. Among those nine were the appellant, the respondent identified as Kandaswami, and two additional candidates named M. R. Meganathan and G. E. Muthu. Meganathan, Muthu and three further candidates, whose names are omitted because they do not figure in the present appeal, withdrew from the contest before polling day. Consequently, the actual contest was between the appellant, the respondent Kandaswami, and two other candidates who are also irrelevant to the present appeal. The appellant secured a majority of the votes and was formally declared elected on 6 March 1957. On 15 April 1957, the respondent Kandaswami, hereinafter referred to as the respondent, instituted an election petition under the Representation of the People Act, 1951, seeking a declaration that the appellant’s election was void. In that petition the appellant was named as the first respondent, whereas Meganathan and Muthu were not included as parties to the petition. Certain other candidates who had taken part in the election were joined as respondents, but details of those individuals are unnecessary for the purposes of this appeal. The petition was subsequently referred to an Election Tribunal for trial. The appellant then filed an application before the Election Tribunal, designated as I.A. No. 1 of 1957, requesting dismissal of the petition pursuant to section 90(3) of the Act. Section 90(3) provides that a tribunal shall dismiss an election petition that fails to comply with the requirements of sections 81, 82 or 117. The appellant’s argument was that the petition had not complied with section 82, which mandates that a petitioner must join as respondents any other candidate against whom allegations of corrupt practice are made in the petition. The appellant asserted that the petition contained allegations of corrupt practice against Meganathan and Muthu, and therefore those individuals ought to have been made parties under section 82; their omission, he contended, rendered the petition non‑compliant and therefore subject to dismissal under section 90(3). It is undisputed that non‑compliance with section 82 necessitates dismissal of an election petition. The respondent countered that the petition made no allegation of corrupt practice against either Meganathan or Muthu. The Election Tribunal accepted the respondent’s position and rejected the appellant’s application for dismissal. Following that decision, the appellant proceeded to approach the Madras High Court with two separate applications: one seeking a writ of certiorari to set aside the tribunal’s order dismissing his application, and another seeking a writ of prohibition to restrain the tribunal from continuing with the substantive hearing of the election petition. The High Court, by its judgment dated 1 November 1957, denied both applications, adopting the same view as the Election Tribunal, which gave rise to the present appeal.

The appellant filed two separate applications before the High Court: one seeking a writ of certiorari to set aside the Tribunal’s order dismissing his earlier application, and the other seeking a writ of prohibition directing the Tribunal not to continue hearing the election petition. The High Court, in its judgment dated 1 November 1957, rejected both applications, adopting the same reasoning that the Tribunal had employed, and consequently the appellant appealed that decision. It is not contested that both Sri M. R. Meganathan and Sri G. E. Muthu were candidates in the election, for a candidate is defined in section 179 of the Act as, among other things, a person who has been duly nominated as a candidate at any election, and each of them had indeed been duly nominated.

The sole issue presented for determination in this appeal concerned whether the election petition alleged any corrupt practice against Meganathan and Muthu. The petition contains statements that the Court characterises as allegations of bribery, quoted as follows: “IV‑A. The returned candidate has committed the following acts of bribery‑corrupt practices under section 123(1) of Act 43 of 1951… (2) Sri M. R. Meganathan was a candidate for the Sattankulam and Tiruchandur Assembly constituencies. The first respondent and his election agent paid him a gift of Rs 10,000 to induce his withdrawal as candidate from Sattankulam, and consequently he withdrew his candidature… (4) Sri G. E. Muthu, a candidate in this constituency, received a gratification of Rs 5,000 from the first respondent and his election agent to cause him to retire from the contest, and he thereafter retired.” In summary, the petition alleges that the appellant and his election agent paid Rs 10,000 to Meganathan and Rs 5,000 to Muthu with the purpose of inducing each to abandon the election, and that each candidate indeed accepted the money and subsequently withdrew from the contest. The question that arises is whether an allegation that a candidate accepted money offered to induce his withdrawal, and actually did so, constitutes an allegation of corrupt practice against the candidate. The High Court held that such an allegation does not amount to a corrupt practice, reasoning that only the act of giving a bribe is a corrupt practice and not the receipt of it. This Court agrees with that conclusion. The Act provides for several categories of corrupt practices, defined in section 123, and the petition specifically alleges the practice of bribery. Bribery can take various forms, and the present case concerns a gift given to a candidate for the purpose of inducing him to abandon his candidature.

The Court observed that the statute expressly defines the corrupt practice of bribery in relation to a candidate’s candidature. Section 123 of the Act declares that the following shall be deemed corrupt practices for the purposes of the Act: “(1) Bribery, that is to say, any gift, offer or promise by a candidate or his agent or by any other person, of any gratification to any person whomsoever, with the object, directly or indirectly of inducing (a) a person to stand or not to stand as, or to withdraw from being, a candidate, or to retire from contest, at an election …” The provision is followed by an explanatory note which states that, for the purposes of this clause, the term “gratification” is not limited to pecuniary or monetary benefits. It also includes all forms of entertainment and all forms of employment for reward, but it expressly excludes any payment that is a bona‑fide expense incurred at or for the purpose of any election and that is duly entered in the account of election expenses referred to in section 78. The Court then considered whether the acceptance of a bribe—understood as a gift made with the specified intention—falls within this definition of a corrupt practice. It concluded that the definition focuses on the act of giving a gift, offer or promise, not on the receipt of such a gift. The language “gift, offer or promise by a candidate or his agent or by any other person” clearly points to the maker of the gratification, and the phrase “with the object… of inducing” refers to the purpose of the giver, not the receiver. Counsel for the appellant argued that the words “by a candidate or his agent or by any other person” should be read only with “offer or promise” and not with “gift”. The Court found this interpretation untenable, noting that even if read in that manner, the provision still requires a gift to be made to any person, thereby covering only the giving, not the acceptance, of the gratification.

The Court further noted that the exclusion of acceptance from the definition is confirmed by the earlier version of the Act, which contained section 124. That section, before its deletion by amendment under Act XXVII of 1956, made the receipt of, or an agreement to receive, a gift with the same object as described in section 123 a corrupt practice. Because legislative provisions are not duplicated, the removal of section 124(3) indicated that receipt or agreement to receive a gratification was not intended to be a corrupt practice under section 123(1) as it stood before the amendment. Hence, the Court held that section 123(1) does not contemplate the acceptance of a gift as a corrupt practice.

The amending Act removed the provision that made the acceptance of a bribe or an agreement to accept a bribe a corrupt practice, yet it did not amend section 123(1) to bring those situations within its scope. Consequently, section 123(1) cannot be interpreted as covering the acceptance of a bribe within the definition of a bribe. By deleting section 124(3) from the Act, Parliament clearly intended that the acceptance of a bribe should no longer be treated as a corrupt practice. In light of this explicit legislative intention, it would be futile to speculate on the reasons why Parliament chose to exclude acceptance of a bribe from the definition of a corrupt practice. If the omission was inadvertent, the remedy lies with Parliament to correct it through appropriate legislation. The Court must not allow any inquiry into the motive behind the omission to alter the plain language of section 123(1).

Mr Sastri argued that, under the Transfer of Property Act, a gift cannot exist without the donee’s acceptance, and therefore any reference to a gift in section 123(1) necessarily includes both the giving and the acceptance of the thing gifted. He contended that this interpretation makes the corrupt practice of bribery by a gift include the acceptance of the gift. While it is correct that a gift involves both a transfer and an acceptance, these are distinct acts, and Parliament may assign legal consequences to one act without attaching them to the other. Accordingly, Parliament was free to legislate that only the act of giving a gift constitutes a corrupt practice, and it did so by expressly excluding the receipt of a gift from the list of corrupt practices. Thus, although a gift cannot be completed without acceptance, the acceptance itself has not been made a corrupt practice. Mr Sastri further submitted that section 99 of the Act demonstrates that receipt of a bribe is a corrupt practice. Section 98 requires the Tribunal, at the conclusion of an election petition trial, to make one of several specified orders. Section 99 adds that, in certain situations, additional orders must also be made. The operative part of section 99 states that when an order is made under section 98, the Tribunal must also order that, where a charge of any corrupt practice is raised in the petition, it should record a finding on whether any corrupt practice has been proved to have occurred.

Section 99 requires the Tribunal, at the time it makes an order under section 98, to also record a finding on any charge of a corrupt practice that has been made in the petition. Specifically, the Tribunal must state whether a corrupt practice has been proved to have been committed by, or with the consent of, any candidate or his agent at the election, and must describe the nature of that corrupt practice. It must also list the names of all persons, if any, who have been found at trial to be guilty of any corrupt practice and must specify the nature of each such practice.

Mr Sastri argued that, under this provision, the Tribunal is obliged to record a finding on whether a corrupt practice was committed with the consent of a candidate. He maintained that when a candidate accepts a gift offered for the purpose of inducing him to withdraw his candidature, that acceptance amounts to the candidate’s consent to the corrupt practice of bribery. Consequently, he asserted that the candidate should be named under section 99. Mr Sastri further contended that, for a candidate to be so named, the election petition must contain a specific charge of the corrupt practice against that candidate. He reasoned that once such an allegation is made, section 82(b) becomes applicable, thereby requiring the candidate to be made a party to the petition. He indicated that similar allegations had been made against the individuals identified as Meganathan and Muthu.

The Court found this contention to be clearly erroneous. It observed that section 99 does not itself define what constitutes a corrupt practice; the definition is set out in section 123. Therefore, the reference in section 99 to a corrupt practice committed with a candidate’s consent must be understood as referring to a corrupt practice as defined in section 123, which has been committed and to which a candidate has consented. The Court clarified that a candidate’s consent to another person’s commission of a corrupt practice, irrespective of the consequences envisaged by the Act, does not, in itself, create a new category of corrupt practice. Accordingly, the mere acceptance of a gift intended to induce the candidate to withdraw his candidature does not constitute the candidate’s own commission of a corrupt practice. Such a statement in an election petition does not amount to an allegation of corrupt practice against the consenting candidate. As a result, the requirements of section 82(b) do not oblige the Tribunal to make that candidate a party to the petition. The Court emphasized that it was not expressing the view that a candidate who accepts such a gift is consenting to a corrupt practice, but rather that the law does not treat that consent as the commission of a corrupt practice.

The counsel for the appellant, identified as Mr. Sastri, contended that the expression “gratification” in section 123 was to be given a very broad construction. He maintained that the act of a candidate withdrawing his own candidature in order to induce another candidate to contest an election fell within the ambit of “gratification.” According to his submission, the provision of such a gratification would therefore amount to a corrupt practice as defined in section 123. He further urged that the petition had alleged that the respondents, Meganathan and Muthu, had engaged in such corrupt practices and consequently, that they ought to have been impleaded as parties to the election petition under the provisions of section 82(b). The Court, however, expressed a complete disagreement with the proposition that a candidate’s withdrawal of his candidature for the purpose of inducing another candidate to stand could be characterised as “gratification” within the meaning of section 123. Even assuming, for the sake of argument, that such a withdrawal constituted gratification, the Court observed that this hypothetical construction would not assist the appellant. The petition did not contain any allegation that Meganathan and Muthu had withdrawn their candidature with a view to inducing the appellant to contest the election; consequently, there was no allegation that they had committed a corrupt practice by withdrawing their candidature. In the absence of such an allegation, the Court found no basis for requiring that Meganathan and Muthu be joined as parties under section 82(b). In a further submission, Mr. Sastri argued that section 82(b) refers to “allegations of any corrupt practice” and therefore should encompass any allegation relating to or concerning a corrupt practice. He asserted that the election petition alleged that Meganathan and Muthu had accepted gratifications paid to them for withdrawing their candidature and that they had indeed withdrawn, and consequently that section 82(b) compelled their inclusion as parties. The Court clarified that when section 82(b) speaks of allegations of corrupt practice against a candidate, it necessarily means allegations that the candidate himself has committed a corrupt practice. An allegation can be said to be “against” a person only if it imputes some wrongdoing to that person. Thus, the Court held that allegations of corrupt practice against a candidate must signify that the candidate was guilty of such practice. Moreover, the Court could not accept the view that an allegation that a candidate accepted a gratification for withdrawing his candidature amounted to an allegation relating to a corrupt practice. The Court reiterated its earlier finding that the corrupt practice lies in the act of giving the gift, not in the acceptance of it, and therefore the alleged acceptance did not relate to any corrupt practice.

Having considered all the submissions and the applicable legal provisions, the Court concluded that the appeal could not be sustained. Accordingly, the appeal was dismissed and the appellant was ordered to bear the costs of the proceeding. The dismissal of the appeal with costs reflected the Court’s determination that the arguments raised did not establish any ground for overturning the decision of the lower tribunal. The order therefore terminated the appeal, leaving the original decision unchanged and imposing the cost liability on the appellant.