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REGISTERED No. D-(D)-72

The Gazette of India

EXTRAORDINARY

PART II—Section 3—Sub-section (ii)

PUBLISHED BY AUTHORITY

No. 388] NEW DELHI, MONDAY, AUGUST 30, 1976/BHADRA 8, 1898

Separate paging is given to this Port in order that it may be filed

as a separate compilation

MINISTRY OF LAW, JUSTICE AND COMPANY AFFAIRS

(Legislative Department)

NOTIFICATION

New Delhi, the 30th August 1976

S.O. 576(E).-The following Order made by the President is published for gene- ral Information:—

ORDER

Whereas Shri Hardeo Narain Singh, the returned candidate from 251-Gaya Muffasil Constituency in the State of Bihar at the general election held In 1969 to the Bihar Legislative Assembly, has incurred disqualification for a period of six years under section 8A of the Representation of the People Act, 1951 (hereinafter referred to as the said Act), as it stood immediately before the commence neat of the Election Laws (Amendment) Act, 1975 (40 of 1975);

And Whereas the said period of disqualification has not expired. And Whereas the said Shri Hardeo Narain Singh has submitted a petition to the President under sub-section (2) of section 8A of the said Act for the removal of the disqualification for the unexpired portion of the said period.

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And Whereas the President has sought the opinion of the Election Commission on the said petition in pursuance of sub-section (3) of section 8A of the said Act;

And whereas the Election Commission has given its opinion (vide Annexure) that the disqualification Incurred by the petitioner should not be removed for the unexpired portion of the period of six years;

Now. Therefore, I, Fakhruddln Ali Ahmed, President of India, in exercise of the powers conferred on me under sub-section (2) of section aA of the suid Act do hereby reject the petition of the said Shrt Hardeo Narain Singh.

FAKHRUDDIN ALI AHMED,

President of India.

Rashtrapati Bhavan, New Delhi, the 13th August, 1976.

ANNEXURE

ELECTION COMMISSION OF INDIA

BEFORE THE CHIEF ELECTION COMMISSIONER OF INDIA

In the matter of;

PETITION UNDER SECTION 8A(2) OF THE (REPRESENTATION OF THE: PEOPLE ACT, 1951, BY Sum HARDEO NARAIN SINGH

In this case, under section 8A(3) of the Representation of the People Act, 1951. the opinion of the Election Commission has been sought by the President on a petition submitted to him by Shri Hardeo Narain Singh, Secretary, Bihar Pradesh Congress Committee, for the removal, for the unexpired portion of the six years period, of a disqualification incurred by him under Section 8A of the Representa- tion of the People Act, 1961, as it stood immediately before the commencement of the Election Laws (Amendment) Act, 1975.

2. The relevant facts are briefly as under:—

(i) Shri Hardeo Narain Singh (hereinafter referred to as the petitioner) contested the general election to the Bihar State Legislative Assembly in 1989 from 251-Gaya Muflasil constituency as a Congress candidate and was declared elected. His election was challenged by one Shri Suraj Deo Singh (hereinafter referred to aa the election petitioner) before the Patna High Court on various grounds of corrupt practices. By its judgment dated 5 March. 1970, the High Court set aside his election on the ground of the commission of corrupt practices of undue influence within the meaning of section 123(2) and of obtaining assistance for the furtherance of the prospects of his elec- tion from a person in the service of the Government, within the mean- ing of section 123(7) of the Act.

(ii) According to the findings of the High Court on the charge of the com- mission of the corrupt practice under section 123(2), both the peti- tioner, Shri Hardeo Narain Singh and his proposer at the election, Shri Nagendra Prasad Singh, accompanied by some others were moving in a jeep near Kaiya polling station in the constituency on the day of poll and Shri Nagendra Prasad Singh wag seen carrying a gun in his hand by a Sub-Inspector of Police (P.W. 40) who was on duty at that Dolling station. It was also in evidence that there was an attempt made to persuade the collected voters to vote for the petitioner and that failing in this, a cry of "maro, maro" was raised by persons accompanying the petitioner and Shri Nagendra Prasad Singh in the Jeep. A gun shot was heard and one Shri Dukhan Yadav a voter at the said poilinK station, was injured. On hearing the gun shot, many of the other voters got scared and left the polling station without casting their votes. The High Court held on weighing the evidence that the onus of proving the corrupt practice of undue influence, which was on the election petitioner, had been successfully discharge.

(Hi) On the allegation of the corrupt practice under section 123(7) of the Representation of the People Act, 1051, the High Court examined the evidence given by various witnesses and held that Shri J. N. Singh,

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the Block Development Officer Gaya Town Block, had, In fact, can- vassed for votes in favour of the petitioner Shri Hardeo Naraln Singh, and was also moving in the company of Shri H. N. Singh, on several occasions.

(iv) As result of these findings, the High Court set aside election of Shu Hardeo Narain Singh.

3. An appeal was preferred by Shri Singh In the Supreme Court against the order of the High Court and pending the hearing and final disposal of the appeal, the Supreme Court, by its order dated 22nd April, 1970, granted stay of the opera- tion of the order of the Patna High Court. By its judgment dated 12 August, 1971; the Supreme Court confirmed the findings of the High Court. The following observations ol the Supreme Court are relevant;—

"There was some commonplace comment at the trial about tde witnesses namely that they were inimical or partisan or they were not consistent about the lime of the occurrence. Mr. Gupte however did not rely on such comments on the evidence. He put it quite squarely Van. it was really a question as to belief of the evidence on behalf of the pelkmer. The broad and basic features of the petitioner's case have teen estab- lished beyond doubt.

The First Information Report Exhibit 4 was recorded at 4.15 P.M. on 9 February, 1969. It was really the most contemporaneous documentary evidence which supported the case of the election petitioner. There is no evidence whatever to suggest that Dukhan Yadav manufactured a case against the appellant. The appellant and Nagendra Singh were together. Nagendra Singh was carrying a gun. The appellant asked .Nagendra Singh to shoot. Nagendra Singh fired the gun. Dukhan ladav received a pellet injury from the gun shot. Many voters were waiting In a queue to cast their vote. The gun shot and the cry of maro maro' raised by Sakaldip Singh and Nand Bihari Singh scared ^ " ^ iT v o t e r s- T hc report of the Presiding Officer also indicates mat the number of persons who cast their votes prior to the firing incident was large."

4. In his petition to the President under section 8A(2) oi' the Representation oi the People j\ct, 1951, Shri Hardeo Narain Singh has urged various pleas in support of his prayer for the removal of his disqualification for the unexplred portion.

5. According to the usual practice of the Commission, the petitioner was offered an opportunity to appear in person or through an authorised representative and plead his case. At the hearing held on 18 July, 1976. Shri K. P. Varma, Senior Advocate, assisted by Shri S. C. Misra, Shri K. K. Prasad and Shri R. N- Roy, Advocates appeared on behalf of Shri Singh and made oral submissions.

6. The grounds urged by Shri Varma for the removal of the disqualification of

Shri Singh are briefly stated here;

The six year period of disqualification of Shri Hardeo Narain Singh commenced on 12 August 1971 and will come to an end on 12 August, 1977. There Is. there- fore roughly only one year still left. By its limited stay granted on 22 April, 1970, the Supreme Court debarred Shri Singh from enjoying all the privileges that ore normally available to a member of the Legislative Assembly except that he was allowed to attend the Bihur Legislative Assembly for a minimum number of days neceesarv to keep his seat going. Shri Singh was, therefore virtually suffering from the disqualification with effect from 22 April. 1970 i.e. the date on which the limited stay order was passed by the Supreme Court. If this is take^ into account, Shri Singh had already completed the G year period of disqualification. A criminal case was Hied against' Shri Nagendra Prasad Singh and Shri Hardeo Narain Singh under sections 324 and 109 of the I.P.C. and section 27 of the Arms Act before the Fourth Additional Sessions Judge, Gaya, covering the same incident at Kaiya polling station which was the subject matter before the High Court and the Supreme Court in the election case. There is u difference of opinion between the criminal Court on the one hand and the High Court and the Supreme Court on the other regarding the allegation against Shri Hardeo Narain Singh.. Attention of the Commission was also drawn to paragraph 5 of the judgment of the Sessions Court. The Additional Sessions Judge had held that the prosecution had failed to estab- lish the charges against the accused who were given the benefit of doubt and aequited. There is nothing in the judgment, of the Sessions Court to 'indicate the

direct guilt of Shri Singh and no inference of undue influence can bo drawn against him. The petitioner has rendered long services to the country from 1942 onwards. Because of disqualification, he could not contest the general elections oi' 1971 and i.i)T2 and various ©lections to the Council of States and to the Legislative Council of the State since August, 1071. In these circumstances, there 13 a stronK case for the iemoval oi the disqualification for the unexpired portion. Shri Varma did not advance any arguments on the findings of the High Court in regard to the corrupt practice under section 123(7) of the Representation of the People Act, 1951.

7. I have carefully examined the petition, the supporting documents and the oral arguments advanced by Shri K. P. Varma. It is not in dispute that there was a tiring near Kaiya Polling Station as a result of which one voter was injured and many voters, who were walling in the aueue to exercise their franchise had been scared away. On the basis of the evidence of P.W. 46, i.e., the Sub-Inspector, who was present at the time of the firing, both the High Court and the Supreme Court had clearly held that Shri Nagendra Prasad Singh was carrying a. pun and he was moving in a jeep with Shri Hardeo Narain Singh near the Kaiya polling station on the day of poll. According to the judgment of the Supreme Court, the report of the Presiding Officer also indicated that the number of persons who cast their votes prior to the firing was large a& compared to the number after the firing inci- dent. The ingredients that would go to establish, the commission of a corrupt practice of using undue influence and the criminal charge under sections 324 and 109 LP.C. and Section 27 of the Arms Act are different. The gravamen of the charge in the election petition was that Shri Hardeo Narain Singh and Shri Nagendra Frasad Singh had gone to Kaiya polling station in a jeep, carrying a gun and had caused a scare among the voters who were waiting in a queue to exercise their votes; and as a result of the firing incident, many voters left the polling station without voting. Tills was sufficient to establish the charge of undue influence against them. There- fore, the findings of the High Court and the Supreme Court are in no way ailected by the judgment of the Criminal court acquitting the accused by giving them the benefit of doubt. The criminal court held that it had not been established that Dukhan Yadav sustained an injury from a pellet flred from Nagendra Prasad Singh and so acquitted the latter as well as the petitioner. In democratic elec^ons any kind of itlmldation of the voters. Interfering with the free exercise of their fran- chise, is a serious matter. It is not in evidence whether there was or was not any prohibitory order In regard to the carrying and or use of fire arms or other lEthal weapons during- the election period. However; the carrying of fire arms and firing them during an election would obviously scare awav simple rural voters. This would definitely be an attempt to vitiate free and fair elections end act as a grave threat to the freedom of choice of voters in a democracy. Such practices should be visited with the utmost rigour of the law. As both the High Court an'd the Supreme Court have found that there was the exercise of undue irf i tnce I find it difficult to accept the arguments of Shri Varma that as a result of the acauittal in the criminal case there are circumstances in favour of the petitioner.

8. The petitioner has stated in the petition before the President that so far as section 123(7) is concerned, the charges and evidence were based on the provision of law which has already been amended with retrospective effect; and that apart, the allegation on the face of it was technical and the evidence adduced on the point was shaky. This Is not factually and legally correct. The amendment to section 123(7) made by the provisions of the Election Laws (Amendment) Act 1975 relates to the arrangements made by an officer In the discharge or purported discharge of hiF official duty which shall not be deemed to be assistance for the furtherance of the prospects of the candidate's election. This amendment has nothing to do with the corrupt practice under section 123(7) found proved against the petitioner. The corrupt practice which has been proved against the petitioner was that Shri J. N. Singh, a Block Development Officer cqnvassod votes for the petitioner, and moved with the petitioner in his jeep on an electioneering campaign. There is nothing in the appreciation of evidence by the High Court and the Supreme Court to show that the evidence was shaky. The other grounds urged by the petitioner for the removal of the disqualification cannot be considered as mitigating factors in this case

0. For the above reasons, I am of the view that there are no circumstances in the instant case which would justify the exercise of a discretion to show clemency. I therefore, tender opinion under section 8A(3) of the Representation of the People Act, 1951 that the misdemeanour of the elected candidate Shri Hardeo Narain Singh, should be punished with the full rigour of the law and that this is not a fit

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case for removing the disqualification for the unexpired portion of the period of six years effective from 12 August, 1971 during which Shri Singh would remain dis- qualified, under the original section BA. of the Representation of the People Act, 3951.

(Sd.) T. SWAM1NATHAN,

Chief Election Commissioner.

New Delhi, July 21, 1976

[No. F. 7(15)/76-Leg. II]1

E. VENKATESWARAN, St. Secy.

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H U B UI BY THE aKOT&AL MANAQEH, OOVXBITMENT Or INDIA. PWBBO, MINTO MM0.

NEW DELHI ANO PUBLISHED BY THE CONTROr LER OF PUnUCATTONS, DELHI, 15>7£