(1.) The petitioner (P.W. 14) is a permanent resident of Sambalpur town, and was an elector in the Sambalpur Constituency in the last General Election held in February, 1967. The respondent (R.W. 10) was one of the candidates contesting from the Sambalpur Assembly constituency to the Orissa Legislative Assembly. He applied for Congress ticket on 29-8-1966 and got it in the last week of December, 1966. On 20-1-1967 he filed his Nomination. The 21st of February 1967 was the date of Poll. Results were announced on 23-2-67 before midnight and the respondent was declared elected. The respondent became Minister of Law on 2nd October 1963 when Sri Biren Mitra was the Chief Minister. Sri Sadasiv Tripathy became Chief Minister in February, 1965 when the respondent got the additional portfolio of Urban Development. In October, 1966 the respondent again got the additional portfolios of Industry and Public Health Engineering of the Works Department and continued as a Minister till 7-3-1967. In the election petition under Section 81 of the Representation of the People Act, 1951 (hereinafter referred to as the Act) various corrupt practices were pleaded. At the time of argument, Mr. Srikanta Mohanty, the leading counsel for the petitioner pressed only the following items of corrupt practice and abandoned the rest. It is, therefore necessary to refer only to the items on which Mr. Mohanty ultimately placed reliance. Those items are as follows : (i) Respondent engaged workers for his election work in Attabira area before 29-4-66 and gave out through them to some residents of Attabira that he was going to stand as a candidate from the Sambalpur Assembly constituency of which Attabira was a pan and that he would come to Attabira on 29-4-1966 to discuss the matter with them and asked them to meet him at the Attabira Inspection Bungalow on 29-4-1966. (ii) On 29-4-66, the respondent told the S. I of Attabira, P.S. (P.W. 8) inside the I.B that he had decided to stand as a candidate from the Sambalpur constituency in the coming election and asked him to collect political information having bearing on his election campaign. (iii) On 29-4-1966 the respondent declared before the officials, and non-officials gathering at the Attabira I. B that he would be a candidate from the Sambalpur Assembly constituency in the next election and he asked the people to vote for him promising that in return he would do certain development and welfare work for the people of the locality (iv) The respondent declared to the villagers of Lederpalli on 29-4-1966 that he would be a candidate in the next election and that he would do certain welfare work for the villagers if in return they would vote for him. (v) On 30-4-1966 the respondent told the Superintendent of Police (P.W. 1) over phone that he would stand as a candidate from the Sambalpur constituency in the next election and requested P.W. 1 to withdraw criminal cases arising out of the car festival of the year 1965 as the accused were the respondents supporters and as his election prospects would be effected, unless the oases were withdrawn. (vi) On 18-6-1966 the respondent discussed election matters with P.W. 1 on phone. He asked P.W. 1s assistance for furthering his election prospects by withdrawal of cases against Sri Ramlal Agarwalla, Sri Narayan Misra and a proceeding under Section 107 Cr. P.C. between the villagers of Manapada and by taking steps to curb the political activities of Dr. Jhasaketan Sahu who was respondents political opponent. (vii) The respondent declared sometime in May and June, 1966 at village Kud-Gunderpur that he was going to be a candidate in the next election. He promised to the villagers that a lift irrigation scheme would be introduced to relieve them from the scarcity of water and in exchange for the benefit to be so conferred upon he asked them to vote for him.

(2.) Respondents defence broadly is that he engaged no workers for election purpose until his nomination was accepted, he did not talk about election on 29-4-66 at Attabira 01 Lederpalli or in May and June in village Kud-Gunderpur and he had no phone talks much less regarding election on 30-4-66 or 1R-6-66 with the S.P. (P.W. 1) Essentially the defence is one of denial.

(3.) The following issues were framed on 21-8-1967 : (1) Is the respondent guilty of corrupt practices, as alleged in election petition (2) Is he guilty of taking the help of Government servants in furtherance of the prospects of his election (3) Did the respondent declare his wish to be a candidate for the Orissa Legislative Assembly from the Sambalpur constituency on or about April 66 (4) Are the allegations of undue influence made in the election petition true If so, do they constitute undue influence The Draft issues - filed by the parties not covered by the aforesaid issues were abandoned by them.

(4.) Issue No 4 - This issue was not pressed and doe not arise for discussion. There is hardly any evidence in support of this issue. Issues Nos. 1 to 3 - All these issues are inter-connected. It would be convenient to discuss them together. Though the trial of election cases is to be done in accordance with the provisions of Civil Procedure Code the quantum of proof required for setting aside any election would be as in a criminal case. The burden of proving that the election of a successful candidate is to be set aside, for corrupt practices lies heavily upon the petitioner. The corrupt practice and the fact that the successful candidate was responsible for the corrupt practice must be established by cogent and reliable evidence beyond reasonable doubt. See Ghasiram Majhi v. Onkar Singh, 34 Cut LT 328 : (AIR 1968 Ori 99 [LQ/OriHC/1968/2] ). Each item of charge would be examined in the light of this principle.

(5.) Item No. (1) - The first charge is that the respondent engaged workers for his election work in Attabira area and gave out through them to some residents of Attabira that he was going to stand as a candidate and that he would come to Attabira on 29-4-66 to discuss the matter with them and asked them to come to Attabira Inspection Bungalow. Such a charge levelled at the evidence stage is not to be found in the election petition itself in support of the contention Mr. Mohanty relied upon paragraph 4 of the petition which runs thus

"That in the month of April, 1966, the respondent gave out to the Constituency his intentions to contest as a candidate from the Sambalpur constituency to the Orissa Legislative Assembly in the General Election to be held at any time subsequent to that day." The averment is too general and vague. There is no reference in it to the fact that the respondent had engaged workers for furthering his prospects and gave out through them that he was going to be candidate in the next election. The respondent, denied having engaged any worker to further his election prospects before his nomination was accepted in January, 1967. His clear stand is that he did not engage any worker in April to June, 1966. The first charge must fail on the simple ground that there was no pleading to that effect and the petitioner cannot be allowed to adduce any evidence in support of such a plea. Section 83(1) of the Act runs thus : "83(1) - An election petition (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; XX XX XX"

In 34 Cut LT 328 : (AIR 1968 Ori 99 [LQ/OriHC/1968/2] ) this Court examined the scope and ambit of this section and observed thus :

"A distinction must be made between "omission to state material facts" and "omission to give full particulars" If material facts are omitted a party should not be allowed to raise a contention on a particular point even if some materials are available in the evidence. If, on the other hand, material facts have been pleaded, but full particulars have not been given, the Court may permit the points to be raised on the basis of evidence unless thereby the respondent is materially prejudiced. The first relates to a question of jurisdiction and the second to one of procedure."

Reliance was placed for the aforesaid view on AIR 1960 SC 200 [LQ/SC/1956/18] , AIR 1960 SC 770 [LQ/SC/1960/50] and (1960) 22 Ele LR 358 (SC). On the aforesaid test, in the absence of pleading, the first charge must fail.

(6.) Even assuming that the petitioner is entitled to rely upon the evidence led on this question, it is necessary to examine whether there is any reliable evidence in support of the charge. Reliance is placed on the evidence of P.Ws. 8, 12 and 13 in this regard (His Lordship then considered the evidence of these witnesses and continued) : To sum up, the first charge must fail not only on the ground that it was not pleaded but also on the ground that it has not at all been proved, much less beyond reasonable doubt.

(7.) [Ommited]

(8.) [Ommited]

(9.) [Ommited]

(10.) Item No (vi) : Petitioners case is that on 18-6-1966 respondent discussed with P.W. 1 on phone regarding election matters. He asked P.W. 1s assistance for furthering his election prospects by withdrawal of cases against Ramalal Agarwalla, Narayan Misra and a proceeding under S. 107 Cr. P.C. between the villagers of Manapada and by taking steps to curb the political activities of Dr Jhasaketan Sahu who was respondents political opponent. The respondent denies to have any talk with P.W. 1 on phone and denies to have requested P.W. 1 for withdrawal of the aforesaid cases. It is to be noted that this aspect of the petitioners case was pleaded in paragraph 9 of the petition. The date of the phone talk was mentioned to be in April, 1966 and at the evidence stage it has been shifted to 18-6-1966. In paragraph 12 of his deposition, the substantive evidence of P.W. 1 runs thus :

"On 18-6-66 the Law Minister discussed with me on the following matter which 1 have referred to m a D. O. to the D.I.G. Shri N. Chand dated 24-4-66 marked Ext 7. In that letter 1 had stated that the Law Minister wanted that the proceeding under S. 107 Cr. P.C. started against the villagers of Manapada should not be further continued. I did not agree for reasons given in that letter. He told me that the election was only 8 months ahead and that Manapada in Attabira P.S. was included in his constituency and that he was diffident of getting votes from that area if that case continued. I said that the case was pending before the Magistrate and it would not be possible for me to withdraw it. He told me that the executive Magistrate was adverse to the party in which he (Shri. Banamali Babu) was interested and that unless the case was dropped, his election prospects would be affected. He told me that he was interested in the party which constituted the majority of the village The Law Minister suggested to me that they (the villagers) undertook to execute a bond in favour of the S.P.I. replied that if they were willing to execute a bond in my favour, it would be better for them to execute the bond in favour of the Magistrate. He told me that the Maharaja of Kalahandi was likely to be a candidate for the Parliament seat from the Sambalpur constituency and for this reason there would be all the more difficulty for him (the Law Minister) to get rote from Attabira. He asked me whether as S.P.I had any definite information about the candidature of the Maharaja of Kalahandi for the Parliament seat from the Sambalpur constituency I told him that I had no definite information. Thereafter the Law Minister told me about the withdrawal of a case against Ramlal Agarwalla who was involved in a motor car accident case. By mistake, I mentioned in the letter the name as Ramprasad Agarwala. The Minister told me that he would much depend upon Ramlal Agarwala for his election and the case against, him should be withdrawn. I did not agree. The Minister told me that all his (sic) in the election were getting into troubles in various cases and would not help him in the election. I told him that I would look into the case impartially and each case should be judged on its own merits x x x x. Two cases had been stated against Narayan Misra of Rengali, who was a dealer in controlled commodities, xx xx The Law Minister wanted me not to further proceed with the cases. I did not agree as the matter was the occasion of a long drawn out adjournment motion in the Orissa Assembly and there was heated discussion about the matter in the Assembly. Again he spoke to me about Dr. Jhasakatan Sahu who was contemplating to be a candidate from the Sambalpur constituency. He asked me to control his activities. I said I would look to the matter."

The question for consideration is whether the evidence of P.W. 1 regarding phone talk on 18-6-66 is acceptable. There is no dispute that the aforesaid cases were in fact pending by this date, though the charge sheet against Kailash Prasad Agarwalla, nephew of Ramlal Agarwalla had not been submitted till 14-8-66 Ramlal Agarwalla was admittedly the counting agent of the respondent during the last election. P.W. 5s version is corroborated by the letter Ext. 6 dated 23-6-66 of Sri N. Chand (P.W. 5) D.I.G., Sambalpur to P.W. 1. The letter runs thus :

"My dear Anantachari, Please refer to our discussion in my office on 19-6-66 regarding your discussion with the Law Minister at his residence at Sambalpur centering round the political developments and the election prospects and let me have a detailed report as early as possible. Yours sincerely, Sd. N. Chand. 2-3"

This letter generally corroborates the evidence of P.W. 5 in Court excepting the slight mistake that the discussion of P. W. 1 with the Law Minister was not at his residence but on phone as has been clarified by Ext. 7. Serious attack has been levelled against the veracity and reliability of P.W. 5. It was argued that he is a resident of Ex-State of Kalahandi and was educated by the Maharaja of Kalahandi at some stage and due to his loyalty to the Maharaja, who is one of the leaders of the Swatantra party and due to the act that the respondent was also moving for the transfer of P.W. 5 on account of his unsatisfactory work, he has come forward to depose falsely, P.W. 5 does not make any secret that Maharaja of Kalahandi had subscribed to his education. I am not inclined to accept the criticisms levelled against P.W. 5 as being enough to brand him as a liar. He is a man of high position. I am not also inclined to believe that under the influence of Sri Nilamoni Routray the then Deputy Chief Minister, the letter (Ext 6) was prepared to create evidence against the respondent in anticipation of the election case. In Ext. 7 dated 24-6-1966, P.W. 1 submitted a detailed note, with regard to which he deposed in Court (para 12 of his deposition). It is not necessary to extract the whole of this long letter. Portions of it where there is reference to election are quoted hereunder.

"x x x x Thereupon he tried to persuade me by saying that since there were only 8 more months left for the general elections and that he was diffident about getting many votes from Attabira Area, it was necessary for him lo get this done. x x x x According to the Minister if Sri P.K. Deo would contest the Election from Sambalpur Parliamentary Constituency, Sri Kisan Patnaik may be accommodated with a seat in the Kalahandi district x x x x The Minister, however, insisted, that apart from the question of fairplay, the more important question from his point of view was his interestedness in view of the forthcoming elections x x x x In the end the Minister told me that in view of the forthcoming general elections and also the difficulties he may face in getting the votes from all areas, particularly from Attabira, I should help him out in the above matters, x x x x x."

The aforesaid extracts from Ext. 7 clearly corroborate the evidence of P.W. 1 in Court that in course of the talk on phone on 18-6-1966, the Minister gave out to P.W. 1 that he was going to stand from the Sambalpur constituency and that P.W. 1 should officially help him in different ways for being successful in the election. There is nothing in the evidence of the District Magistrate (P.W. 9) on this point. The reference to election campaign in his letter Ext. 43 dated 26-6-1966 has no connection with the phone talk of 18/6. It relates to the view of the District Magistrate.

(11.) Mr. Sahu advanced trenchant criticism against P.W. 1 assailing his character and asked the court to discard his evidence. To appreciate his criticism as a whole, a slight chronology of events may be given. The respondent is alleged to have a phone talk with P.W. 1 on 18-6-1966 for withdrawal of cases against Ramlal Agarwalla, Narayan Misra and a 107 - proceeding. The S.P. (P.W. 1) had insisted upon the trustees of the cars to take out licences for pulling the cars on Rath Jatra day which fell on 20th of June, 1966. The trustees had not taken licences. The District Magistrate, however, permitted the cars to be pulled even without licences. Accordingly, some cars were pulled but not others. On the 20th of June, 1966, the Law Minister was absent from Sambalpur and had gone out to the mo f fusil area in connection with drought relief on the 21st of June, 1966, there was a meeting amongst the respondent, the S.P. (P.W. 1), D.I.G (P.W. 5) District Magistrate (P.W. 9) and some members of the public to resolve the impasse. The evidence of the S.P., is that on the 19th of June. 1966, he had a verbal talk with the D.I.G. regarding the telephonic talk between himself and the respondent on 18-6-1966. The S.P. did not address any letter to the D.I.G. regarding this telephonic call until the D.I.G. asked by his letter (Ext 6) dated 23rd June, 1966 to give details of the talk. The details were supplied by d letter of the S P (Ext. 7) dated 24th June, 1966 Mr. Sahu argues that the S.P., D.I.G. and the District Magistrate were irritated over the remarks of the respondent on 21st June 1966 that he had no trust in the S.P. as a private individual He argues that the S. P. is unreliable and power-conscious and out of vindictiveness and in conspiracy with the D.I.G Exts. 6 and 7 have been prepared to create evidence against the respondent to defeat him in election case if he was returned successful. It is to be noted that the date 18-6-66 was not pleaded though facts relating to phone talk were averred in paragraph 9 of the petition. The date was given as sometime in April, 1966. Mr. Sahu contends that on this simple ground, the story of the telephonic talk on 18-6-66 must be discarded. He further contends that on the S.P.s own evidence, that he did not oblige the Minister be acceding to his requests on 26-1-1966 and 30-4-1966, it would be difficult to accept the version that the Minister would be brazen-faced again to make a further request to the S.P. on 18-6-1966. Criticism is also levelled against the conduct of the S.P. that he did not write to the D.I.G. on that very day on 19th regarding this telephonic talk relating to election. It is urged that it is only when the S.P. was offended by the Minister on 21st of June, 1966, that a plot was hatched between the S.P. and the D.I.G. and lest this version would appear belated, the D. I. G. set the matter in motion by asking for details under Ext. 6 on 23rd of June, 1966. It is also commented that though the D.I.G. wrote Ext. 5 on 22-6-1966, he did not at all refer to the phone talk of 18-6-1966 discussed between the respondent and P.W. 1 on 19-6-1966. P.W. 1s story is that when the Minister was talking with him on phone, he scribbled out the different items of talk on a chit (Ext 1(d)), which contains no date. It, however, contains some other items which were admittedly not the subject matter of the talk and the S.P. could not explain why those matters were noted in that chit. It is further said that there was no case against Ramprasad Agarwalla and the case against Kailas Prasad Agarwalla, nephew of Ramprasad Agarwalla was charge-sheeted as late as 14-8-1966 (P.W. 8s evidence para 1) and ac such where was no question of withdrawal of case against Ramlal or Ramprasad Agarwalla two months earlier. It is said that Narayan Misra belongs to Bengali which was outside the Sambalpur Assembly constituency He is a man of Bijoy Pani with whom the respondent was not on good terms Dr. Jhasaketan Sahu was inciting agitation by violence for which he should have been arrested either under the Defence of India Rules of detained under the Preventive Detention Act. There was no necessity for the Minister for requesting the S.P. to control his activities. It is contended that the judgement in Section 107 Cr. P.C. Proceeding (Ext Z(40)) shows that there was nothing in the case and that there was no reason for Banamali Babu to make an unusual request to the S.P.

(12.) After having examined with anxious considerations, the criticisms levelled against the S.P. and the D.I.G. that they were out to create documents against the respondent to unseat him in the election due to the pressure of Sri Nilamoni Routroy, the then Deputy Chief Minister, Maharaja, of Kalahandi and from the knowledge that the respondent was trying for their transfers; I am inclined to accept the evidence of P.W. 1 as reliable with regard to the phone talk on 18-6-1966. Each of P.Ws. 1, 5 and 9 were subjected to marching cross-examination for a number of days. I was, impressed with their answers and am of opinion that they are bold and straightforward officers, Wherever I have discarded the evidence of P W. 1, it was for other reasons as discussed at different places and act due to his unreliability. The petitioner has established beyond reasonable doubt that the respondent have out to P.W. 1 in 18-6-1966 that he was going to be a candidate in the next election and he also sought the assistance of P.W. 1 for advancing his election prospects. Question is whether it is a corrupt practice under Section 123(7),

(13.) Section 123(7) deals with one of the corrupt practices and runs thus :

"The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or by any other person with the consent of a candidate or his election agent any assistance other than the giving of vote for the furtherance of the prospects of that candidates election, from any person in the service of the Government and belonging to any of the following classes namely : x x x x x x (d) members of the police force."

The Superintendent of police is a member of the Police force and if there was an attempt to obtain hit, assistance for the furtherance of the election prospects of the respondent, the corrupt practice would be committed provided the respondent was a candidate by 18-6-1966. This takes us to an examination of the meaning of the expression "candidate" defined in Section 79(b) of the Act "Candidate" means a person who has been or claims to have been duly nominated as a candidate at any election, and any such person shall be deemed to have been a candidate as from the time when with the election in prospect he began to hold himself out as a prospective candidate. Indisputably the respondent had been duly nominated as a candidate at the election. But the corrupt practice alleged against him was not committed on or after his nomination but long before it that is on 18-6-66. In order to come within the mischief of the expression "candidate" the respondent must be brought within the meaning of the deeming clause It is, therefore, necessary to see whether by 18-6-1966 the election was in prospect and whether the respondent held himself out as a prospective candidate. There are abundant materials on record that the election was in prospect by then. The mid-term election for the Orissa Assembly took place in June, 1961. The general elections throughout the country and the Parliamentary elections in Orissa took place in 1962. The next general election throughout the country must accordingly fall in 1967. On 27th of September 1966, the Delimitation commission passed orders in respect of delimitation of Parliament and Assembly constituencies in Orissa. Attabira Police station was included in the Sambalpur constituency then. On the 10th of December, 1965 the Home Minister made a statement in the Parliament declaring Governments decision to postpone separate general election for Orissa Legislative Assembly till the country-wide general election to be held early in 1967. On the 20th of December 1965 the Election Commission despatches letter to the Chief Electoral Officer in Orissa communicating the aforesaid decision of the Government of India. It would be apparent from the aforesaid facts that it was well known that there would be no mid-term election in Orissa in 1966 but that the election to the Orissa Legislative Assembly would take place in early 1967 alone with the general election throughout the country. The life of the Orissa Assembly was accordingly extended till 1-3-67 by the Orissa Legislative Assembly Extension of Duration Act 1966 passed on 29-5-1966. Thus, by 18-6-1966, the election was in prospect. The next question for consideration is whether the respondent held himself out as a prospective candidate. If the version given by the Superintendent of Police (P.W. 1) is believed, clearly, the respondent held himself out as a prospective candidate. P.W. 1 was however, not an elector. The question for consideration is whether holding out to a person who is not an elector amounts to holding out within the meaning of Section 79(b) The matter is concluded by S. Khader v. Munnuswami, AIR 1955 SC 775 [LQ/SC/1955/55] . The constitution of Section 79(b) directly came up for consideration. In paragraph 4 their Lordships observed thus :

The question when a person becomes candidate must be decided on the language of S. 79(b) Under that section, the candidature commences when the person begins to hold himself out as a prospective candidate. The determining factor therefore is the decision of the candidate himself, not the act of other persons or bodies adopting him as their candidate. x x x x When, therefore, a question arises under Section 79(b) whether a person had become, a candidate at a given point of time, what has to be seen is whether at that time he had clearly and unambiguously declared his intention to stand as a candidate, so that it could be said of him that he held himself out as a prospective candidate. That he has merely formed an intention to stand for election is not sufficient to make him a prospective candidate because it is of the essence of the matter that he should hold himself out as a irrespective candidate. That can only be if he communicates that intention to the outside world by declaration or conduct from which it could be inferred that he intends to stand as a candidate."

If the statement of the respondent made to the S.P. is accepted, there is clear and unambiguous declaration of the candidates intention to stand as a candidate communicated to the S.P. The question whether a declaration other than that the constituency would constitute holding out was answered in paragraph 6 thus :

"It may be that the holding out which is contemplated by the section is to the Constituency; but if it is the Central Committee that has to decide who shall be adopted for election from the concerned constituency, any declaration made to the Committee is, in effect, addressed to the constituency through its accredited representative."

In view of the aforesaid observation of their Lordships, it is clear that the holding out must be to an elector or to the electorate. "Declaration" to a person who is not an elector about the prospective candidature is not holding out within the meaning of Section 79(b). Even if the version of the S.P. is accepted that the respondent made an unambiguous declaration before him that he would be a prospective candidate in the next election, it does not amount to holding out as by 18-6-1966, the respondent was not a candidate within the meaning of Section 79(b). Section 123(7) envisages the commission of the corrupt practice by a candidate. If by 18-6-66 the respondent was not a candidate, then he would not be hit by Section 123(7), even though he attempted to obtain the assistance of the S.P. to advance his election prospects in the coming election. The matter being concluded by the Supreme Court decision it is unnecessary to refer to English authorities. On a pure question of law the charge would fail.

(14.) Item No. (vii). - Petitioners case is that the respondent declared sometime in May and June 1966 at village Kud-Gunder-pur that he was going to be a candidate in the next election. He promised to the villagers that a lift irrigation scheme would be established in the village to relieve them from scarcity of water and in exchange for the benefit to be so conferred he asked them to vote for him. Respondent admits that as a Minister he visited Kud-Gunderpur once during the months of May and June 1966. He, however, denies the story of election talks. Chaturbhuja Purohit (P.W. 10) is the only witness on the point and his evidence is not corroborated by any other evidence. During 1961 mid-term election he was the polling agent of and was canvassing for Sri Shradhakar Supkar the contestant of the respondent in that election. It is not necessary to discuss his evidence at length. He does not seem to be reliable. The petitioner has failed to establish this item beyond reasonable doubt.

(15.) To sum up, charges under items (i) to (v) and (vii) have not been factually proved beyond reasonable doubt. Though the charge under item No. (vi) has been established beyond reasonable doubt, it is not a corrupt practice under Section 123(7) as the respondent did not hold out to an elector that he would be a prospective candidate.

(16.) In the result, the election petition fails and is dismissed with costs. The hearing covered 35 days. Hearing fees assessed at Rs. 2000 (Rupees two thousand). Petition dismissed. High Court Of Gauhati