RAMJI PRASAD SINGH . v. RAM BILAS JHA & FOUR ORS. September 24, 1976 [Y. V. CHANDRACHUD, P. K. GOSWAMI AND A. C. GUPTA, JJ.] Represe11tation 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 A.:t 1951-Every person on electoral roll whether e11titled to vote even if name not brought in accordance with law-Sec. lOO(l)b-Sec. 123 (l)(A)b- Bribery-Proof of-Quasi-criminal in nature-Interference with appreciation of evidence by Hig/1 Court.
Bihar and Orissa Municipal Act 1922-S. 389. In March, 1972, the Election Commission issued a notification calling upon the Muzaffarpur Local Authorities Constituency to elect one member to the Bihar Legislative Council.
One of the constituencies was1 the notified area com- mittee of Dumm. The· last date fon filing1. nomination was 5-4-1972. The poll was held on 30-4-1972 and the result was declared on 1st May, 1972. Respon- dent no. 1 an independent 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 alil! on the following two grounds : (1) 40 voters 'of the Dumra Notified Area Committee were illegally prevented from exercising their franchise
which materia.lly affect- ed the result of the election. (2) Respondent no. 1 attempted to bribe two voters. The Government of Bihar had nominated 40 persons to be th~ 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 Noti- fied 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 persons who were nominated earlier were removed from the electoral 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.
SectiOI\ 389 of the Bihar & Orissa Municipal Act 7 of 1922 em- powers the State Government to make appointments to Notified Area Committee. Section 15'of the Representation of the People Act 1950 provides that for every constituency there shall be an electoral roll which shall be prepared in accord- ance 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 amendment, trans- position, or deletion of any entry shall be made under
section 22 and no direction for the inclusion of a nam~ 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 (I) of the Representation of People Act, 19 51 provides that no perrnn who is not and except as expressly provided by this Act every person c:
H1 [ 1977] I S.C.R. .A who i>. for the time being entered in the electoral roll ol any constituency sha!I be entitled to vote in that constituency and, therefore, since tbe names of the 41l new perrnns 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. JOO (l)(b) read with sec. 123 p)(A)fbJ of the Representation of the People. :.ct 1951.
·C Dismissing the appeal, HELD : I. It is implicit in section 62 ( 1) that ·the name of the person who claims to be entitled to vote in a constituency must have been en~ered in the electoral roll of that particular constituency iri accordance with law. If the
n;ime of a. person is entered in the electoral roll'in violation of section 23(3) he can have no right to vote by reason merely of the entitlement conferred by section 62(1). [749 A-CJ
Kabul Singh v. K1111da11 Sin~h & Ors. [1970] v. S.C.R. 845; B. M. Rama- s11·amv v. B. M. Krish11a11111rthr and Ors. f]9631 3 S.C.R. 479 explained. Baidw111ath, Panjiar v. Sitart1111 Matha & Ors. [1970] 1 SCR 839 followed. 2. The eiectoral 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 Elecrion Commb- ,ion of India was within its right in withdrawing the polling booth at the Dumra Committee office in order that the new members may not vote at the elec- tion. [750 B, CJ
•+. 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 ni.cre pre- pondcrence of probabilities but beyomj a reasonable doubt. 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 witness on snch 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 docs not embark on a detailed assessment of oral evidence. [751 B-C] CIVIL APPELLATE JuRISDICTION: 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. Gohurdhan and L. R. Sinha, for the Appellant D. V: Patel, U. P. Singh, R. P. Singh and S. N. Jim, for rcspon- pondcnt No. 1. The Judgment of the Court was delivered by
CHANDRACHUD, ].-This is an appeal under section 116A of the Rcprc>cntaticn of the People Act, 1951 from the judgment of the P:;tna High Ccurt dated May 9, 1974 in Election Pctifon No. 42 of 1972.
0!1 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 RA!vl.JI PD. SINGH v. RAM BILAS .IHA (Chandrnchud, ].) Lalganj and the Notified Area Committees of Mahnur and Dumra. \Ve 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 fiHng nominations was April 5, 1972. The poll was held on April 30 and the result of the election was de- clared on May 1, 1972.
Respondent 1 Ram Bilas Jha, an indepen- dent canGlidatc, secured the highest number of votes, namely 61 where- as his nearest rival respondent 5, Mahanth Raghunath Das, a Con- gress (R) candidate, secured 36 votes..
Respondent 1 was accord- ingly declared elected. The ~tipcllant 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 petition 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 :- (I) Forty voters of the Dumra Notified Area Commit- tee 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 ( l) (b) read with section 123 ( 1) (A) (b) of
the Act of 1951. The High Court having rejected these contentions the election pcti- t~oner has filed this appeal. · It is necessary to state certain important facts for a proper appre- ciation of the question involved in the first of the two points men- tioned 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 Muza- ffarpur Local Authorities constituency.
On April 4, 1972 the State Government issued a Notification, No. 2934, cancelling the notifi- cation dated May 5, 1971. By another notification, No. 2935. of even date, viz., April 4, 1972 the State Government 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 notification:s, filed writ petition No .. 150 of 1972 in the Patna High Court challenging the
validity of the notifications. A rule was issued in that writ petition on April 14, 1972 and by an interim order, the operation of noti- fication No. 2934 by which the notification of May 5, 1971 was can- celled, was stayed till the disposal of the writ petition. .. .
iD [1977) 1 S.C.R. After ~he High Court issue~ t~e stay order, a petition was moved ?efore Shn A. M. Bose, the D1stnct Magistrate of Muzaffarpur, ask- mg that the names of the 40 members which were removed from the electoral. roll pursuant to the notification issued by the State Govern- ment should bo ·re-incorporated therein.
Shri Bose who was func- tioning ex-officio as the District Election Officer, Electoral Registra- tion Officer and the Returning Officer for the. purposes of the particu- lar election sent a Teleprinter message (Ex. 7) on April 21, 1972 to the Chief Electoral Officer, Patna, stating that since the last date for filing nominations was long since past, the names of the old members which were already removed from the elec_toral roll could no~ be re- incorporated therein but that it would be in contempt of tli.e 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 Com- mission 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 be- cause 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 tbeir 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 exercis- ing 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 mem- bers, 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 de- fections 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 Provin- cial and District Congress Committees through circular letters, Bxs. 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.
RAMJI PD. SINGH v. RAM BILAS JHA (Chandrachud, J.) 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 ot 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 Muni- cipal 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 Notified Area.
The notifi- cations 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 Government 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. Sec- tion 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 con- trol of the Election Commission.
Section 16 prescribes disqualifi- .cations for registration in an electoral roll. Section 21 deals 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 ()n 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 consti- tuency shall be given under this section, after the last date for making nominations for an election in that consti,tuency or in the parliamentary constituency within which that cons- tituency is comprised and before the completion of that elec- tion."
As mentioned above the State Government issued two notifica- tions 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 Notified Area Committee.
As a result of these notifications (Bxs. lOA and 10 respectively), it became neces- sary for the Electoral Registration Officer to delete from the electoral roll the names of 40 persons who were appointed und-.r the notifi- cation 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 rea~on of section 23 (3), be made after April 5, 1972 which was the last date for making nominations to the election.
No direction also could have been given for the inclusion of these names in the electoral roll, after the last date for making1 nominations. The point, thus, for consideration is whether the
c c .D I 4 6 (J 977] 1 S.C.R. amendm.ent to the electoral roll was made in the instant case by iri- corporatmg the names of the 40 new members therein on or b..:fore the 5th Apr;! or whether the roll was amended after the expiry of that date.
lt 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 juris- diction of the Electoral Registration Officer.
The best evidenc'c on. this question would of course be of Shri Bose himself who beincr the b District Mag,stratc of Muzaffarpur, was functioning ex-officio as the Electoral Registration Oflker.
Ex. I is the electoral roll for 1972 on the basis of which the bien-· nial election to the Bihar Legislative Assembly 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 Notification No. 2935 (Ex. JO) dated Apr~l 4, 1972 arc included in that roll at Serial Nos. 31 to 70.
These names, ac- cording to the learned counsel of the election petitioner, were entered in the roll soon after the Electoral Registration Officer received the two notifications (Exs. lO and JOA) whcih 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 rol! on !he 6th. It seems to us impossible to accept the contention of the election petitioner that the names cf the new members were entered in ihc electoral roll immediately after Shri Bose, the Electoral Registration Officer, received the notifications Exs. JO an cl 1 OA dated April 4. It is true that Si1ri 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 includ- ing the names of the new members in the electoral roll on the strength o( the notifications because, in so far as he knew, an amendment in the electoral roll could not be made unless a list of members for in- clusic:1 in the electoral roll was received by him from the Cha;rman of the local body concerned.
That unquestionably 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 maintain the electoral roll correct- ed up-to-date. The section _furth.er provides that on. receipt of suer.
information the Electoral Registration Officer shall stnke off fro'11 the electoral roll the names of persons who have ceased ta be and include therein the names of persons who have become, members of
th<o RAMJI PD. SINGH v. RAM BILAS JHA (Chandrachud, J.) · particular local authority. Shri Bose, therefore, could not have in- cluded the new names in the electoral roll merely on the strength of the Government notifications which he received 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 Com- mittee. At the relevant time Shri Durga Prasad, the Sub-Divisional Officer of Sitamarhi, District Muzaffarpur, was functioning ex-officio as the Chairman of the Dumra Notified Area Committee and was therefore the "Chief executive officer" of that local authority, within the mean- ing of sa:tion 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 'emer- gent meeting' of the newly nominated members· of the Dmnra Com- mittee 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 endorsement 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 of 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 specification of the authority on the basis of which the names of voters are incorpora- ted in the Electoral Roll. In regard to the names of the 40 new members with which we are concerned in this appeal, the authorisa- tion 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 Electo- ral 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 ll-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 c
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 wouid in the normal course of business do, directing that the names of new members contained in the list ac- companying the letter should be incorporated in the roll.
Jn fact 16-1234SCI/76 c ( 1977) 1 S.C. R. the letter was "diarised" by Shri Bose's office on the 6th. Even on the ~th, ~hen an endrosement was made on the letter regarding its diarisa- tJon m the relevant office fiie, the letter did not bear any direction of the Electoral Registration Officer that the new names should be in- cluded 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 tl1e neces- sity of curing the infirmity by hurrying with the implementation of the notifications.
But it was top late and the law had already put its seal on the electoral roll as it existed on the 5th April. It "ould not be touched thereafter, until the completion of the election .. The entry at Serial No. 33 in the letter, Ex. M, on which the appel- lant relies to show that orders were issued on the 5th itself for inclu- sion of new names in the electoral 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 examin- ed in the case and Shri Bose to whom the letter was addressed bas 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 notification, Ex. 10, by which the appointment of new members was made was printed and published on April 7, 1972. Evidently, there was inadequate res- ponse to the urgency of the processual 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 mis- hap occurred m_ainly because of the last-minute decision of the Govern- ment to cancel the previous notification and to issue a new one in its place. The new notification, Ex. 10, was lacking in essential parti- culars 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 ho 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 appel- lant's counsel relies principally on section 62 ( 1) of the Representa- tion 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 is an electon11 roll of a constituency shall not be entitled to vote in RAMJI PD. SINGH v. RAM BILAS JHA (Chandrachud, J.)
;that constituency. Secondly it provides that, except as expressly pro- vided 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 constituency in ac- cordance with law.
Section 23(3) of the Representation of the People Act, 1950 provides that no amendment, transposition or dele- tion 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 tl)at 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 electoral 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 deci- sion 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 whetlier any person is or is not entitled to be registered in an electoral roll for a consti- tuency 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. Ramaswamy 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 regis- tered 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 the 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 can- not 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 chal- lenge to the right of a voter to be registered in an electoral roll and the jurisdiction of an authority appointed under the Act to enter a name in the electoral roll.
That jurisdiction has perforce to be exercised (I) [1970] I S.C.R. 845. (2) [1963] 3 S.C.R. 479. c c (1977) 1 S.C.R. ~onsistently ~ith ~he provisions of the law governing the election and m case there 1s failure to do so, the action of the officer would be open to challe~ge on the ground of want of jurisdiction. If, as here, the elect- oral roll is amended after the time-limit set down in section 23(3) of the .Act of .1950, the amendment would be without jurisdiction con- ~errmg no nght to vote on the persons whose names are thus included m the roll.
As held by this Court in Baidyanath Panjiar v. Sitaram Mahto & Ors.,(') 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 hfterfering with the electoral process under the prescribed circumstances. There- fore, when there is a breach of section 23(3), the question is not of an irregular 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 p~lling booth at the Durma 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 ultimate 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 com- plain 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 Com- mittee should have been dismembered on the eve of the elections, ap- parently without rhyme or reason. The State Government undoubted-
ly possesses the power under section 389(c) of the Bihar and Oriss11. Municipal Act, 1922, to make appointments to the Notified Area Com- mittees 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 penultimate 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 l'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 ~ake appomtmen~ to Area Com- mitees will itself become suspect, sappmg thereby the faith of the people iri 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 l's election is vitiated because he attempted to (1) [1970] 1 S.C.R. 839.
RAMJI PD. SINGH v. RAM BILAS JHA (Chandrachud, .I.) 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 wit- nesses on such a serious charge.
The charge of bribery is quasi- crimin~ 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 probabilities but beyond a reasonable doubt.
That proof is lacking 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 dismissed. c