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Sub-Post Office, yet, the learned Judge preferred the evidence of Shri R. K. Singh (PW 42) for the
election- petitioner despite the infirmity in this evidence that it was neither consistent with the tour
programme of the Central Government Minister sent in advance for this function nor with the
unshaken evidence of those who organised the function.
4. It was alleged that Shri Kapur on January 19, 1971, again in the company of Prof. Sher Singh, the
Central Government Minister, mentioned above, attended a meeting held in Lalganj. So far as this
particular allegation is concerned, the learned Judge thought that it could not be accepted because it
was supported only by one highly partisan witness, Shri G. N. Pandey, against 4 faultless witnesses :
Abdul Jabbar (RW 25), Fatesh Bahadur Singh (RW 26), Ishwar Chand (RW 27) and Ranjit Singh
(RW 28).
5. On January, 19, 1971, Shri Kapur was said to be present at the inaugural function of the telephone
exchange at Behta Kalan and is said to have delivered a speech there. The learned trial Judge
accepted the evidence of Pt. Shashank Misra (PW 32), admittedly a highly partisan witness, who was
believed because of a question put to him in cross-examination suggesting that there was uproar
when Shri Kapur started speaking so that nobody could hear what he said. The learned Judge held
that this amounted to an admission of Shri Kapur's presence and participation in this evening.
6. Shri Kapur was alleged to have delivered a speech on January 18, 1971 at the foundation laying
ceremony of a new post office building at Rae Bareli in the company of Prof. Sher Singh, the Central
Government Minister, mentioned above. This allegation was not accepted on the ground that it was
not supported by any evidence whatsoever.
436. All that the witnesses could remember of Shri Kapur's speech, on each occasion, was that he
supported the original respondent's candidature. Out of allegations of acts said to have been
committed on 6 occasions by Shri Kapur in this period, the learned Judge found only 4 instances
proved. Out of these, it was clear that Shri Kapur could not have done anything in furtherance of the
original respondent's election on January 17, 1971, when, according to the election-petitioner's
witnesses, he was not even allowed to speak. Even if all the election-petitioner's witnesses accepted
by the learned Judge are to be implicitly believed for this period the position is :(a) On three
occasions in this period, from January 14, 1971 to January 25, 1971, Shri Kapur is shown to have
made a speech supporting the original respondent's candidature.
(b) There is no evidence whatsoever from any source that Shri Kapur did so on any of these three
occasions either after having been requested by the original respondent to do so or with her
knowledge or consent or approval.
(c) The only evidence in the case, on the decisive question, coming from the side of the original
respondent, is that Shri Kapur did, whatever he did, entirely on his own initiative and in his private
and individual capacity, without the slightest solicitation, request, or suggestion from the original
respondent who did not even know what he was doing at Rae Bareli. And, this evidence, being
uncontroverted, could not be rejected. In fact, it was not rejected by the trial Court. It was ignored
by it presumably under erroneous belief that it was not material.
439. In Rustom Satin V. Dr. Sampoornand it had been held by a Division Bench of the Allahabad
High Court (V. Bhargava and J. N. Takru, JJ.), inter alia (at p. 243) "So far as the election law in this
country is concerned it is a creation of statute and as such has to be interpreted in accordance within
the provisions of that statute. Section 100 of the Act clearly refers to corrupt practices committed by
four classes of persons only viz., the candidate, his election agent, persons acting with the consent of
the candidate or his election agent, and those acting without such consent. The corrupt practices
committed by the first three classes of persons are covered by Section 100(1) (b), while those
committed by persons falling in the fourth class are provided against in Section 100(1) (d) (ii)."
The same Bench of the Allahabad High Court in J. P. Rawat v. K. D. Paliwal 135 had held (at p. 456)
:
"..... even in the case of admitted workers in whose case also general consent to work for the
candidate may be implied, the consent of the returned candidate to corrupt practice or practices
complained against have to be separately proved, and reliance upon general consent, express or
implied, to work legitimately for the candidate is not deemed sufficient."