(iii) Equal attention was paid to all the three constituencies and there
was proportionate use of the vehicles for the three constituencies.
Mr. Shanti Bhushan would have us to accept the first or the third possibility
and would rule out the second. If so, it was , in my opinion, essential for the
respondent to lead some evidence regarding the use of the 23 vehicles. He did
nothing of the kind. Neither the owners nor the drivers of the those vehicles
were examined as witnesses. There was also, as mentioned earlier, no other
cogent evidence to show that those vehicles or any of them were used for the
appellant’s election in the Rae Bareli constituency, and if so, to what extent.
The respondent himself did not come into the witness box to substantiate the
charge against the appellant regarding the use of the 23 vehicles. The fact
that Dal Bahadur Singh was not examined as a witness on behalf of the
appellant would not warrant the filling in of the gaps and lacunae in the
evidence adduced by the respondent by a process akin to guess work. It is no
doubt true that by using a vehicle for the furtherance of the prospects of
candidates in more than one constituency one should not be allowed to
circumvent the salutary provisions of the RP Act in this respect. To prevent
such circumvention, it is essential that evidence should be led to show as to
what was the extent of the user of the vehicle in the constituency concerned.
In Hans Raj v. Pt. Hari Ram, (1968) 40 Ele LR 125 (SC) a jeep hired by the
Congress Committee during elections was used in more than one
constituency, including that of the returned candidate who was a Congress
nominee. Question arose as to whether the expense incurred in connection
with that jeep could be included in the election expenses of the returned
candidate. While answering the question in the negative, Hidayatullah, C.J.
Observed:
‘‘The bill stands in the name of the Congress Committee and was
presumably paid by the Congress Committee also. The evidence, however, is
that this jeep was used on behalf of the returned candidate and to that extent
we subscribe to the finding given by the learned judge. Even if it be held that
the candidate was at bottom the hirer of the jeep and the expenditure on it
must be included in his account, the difficulty is that this jeep was used also
for the general Congress propaganda in other constituencies. As we stated,
the jeep remained in Chalet and at Mubarakpur. No doubt Chalet is the
home town of the returned candidate and his office was situated at
Mubarakpur but that does not indicate that the jeep was used exclusively on
his account. The petrol chart shows that petrol was bought at several pumps,
both inside the constituency and outside. This shows, as does the evidence,
that the jeep was used not only in this constituency but also in the other
constituencies. If this be true, then, it is almost impossible on the evidence as
it exists in this case to decide how much of the use went for the benefit of the
returned candidate and how much for the use of candidates in the other
constituencies also put up by the Congress Committee. In this situation it is
difficult to say that the whole of the benefit of the jeep went to the returned
candidate and once we hold that the entire benefit did not go to him, we are
not in a position to allocate the expenses between him and the other
candidates in the other constituencies.’’
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