Assuming that the finding of fact recorded by the High Court in this
respect, is correct the appellant can still be not guilty of the commission of
corrupt practice under Section 123 (7) of the RP Act in view of the new
proviso which has been inserted at the end of clause (7) of Section 123 and
which reads as under. "Provided that where any person, in the service of the
Government and belonging to any of the classes aforesaid in the discharge or
purported discharge of his official duty, makes any arrangements or provides
any facilities or does any other act or thing, for, to or in relation to any
candidate or his agent or any other person acting with the consent of the
candidate or his election agent, (whether by reason of the office held by the
candidate or for any other reason), such arrangements, facilities or act or
thing shall not be deemed to be assistance for the furtherance of the
prospects of that candidate's election." The above proviso has also a direct
bearing on the allegation of the respondent that the appellant committed
corrupt practice under Section 123 (7) of the RP Act in as much as she or her
election agent procured the assistance of members of armed forces of the
Union for furtherance of her election prospects because of fact that the
members of the armed forces arranged planes and helicopters of the Air Force
for her flights to enable her to address meetings in her constituency.
223. It has been argued by Mr. Shanti Bhushan that the words "in the
discharge or purported discharge of his official duty" in the above mentioned
proviso have reference only to statutory duty and not to other duty
performance of which takes place in pursuance of administrative
instructions. I find it difficult to accede to the above submission as there is
nothing in the above proviso to confine the words "official duty" to duty
imposed by statute. Official duty would include not merely duties imposed by
statutes but also those which have to be carried out in pursuance of
administrative instructions.
224. Mr. Shanti Bhushan during the course of arguments made it plain
that apart from his submission with regard to the validity of Act 40 of 1975,
his objection relating to the applicability of Act 40 of 1975 was confined to
two matters, namely, the connotation of the word ‘‘candidate’’ and the
meaning to be attached to official duty. Both these objections have been found
by me to be not tenable. I would, therefore, hold that subject to the question
as to whether the provisions of Act 40 of 1975 are valid, the grounds on which
the High Court has declared the election of the appellant to be void no longer
hold good for declaring the said election to be void.
225. We may also before dealing with the validity of Act 40 of 1975 refer
to one other change brought about by that Act which has a bearing upon the
present case. It was the case of the respondent that the appellant and her
election agent made extensive appeals to the religious symbol of cow and calf
and thereby committed corrupt practice under Section 123 (3) of the RP Act.
Corrupt practice has been defined in that provision as under:‘‘(3) The appeal by a candidate or his agent or by any other person with
the consent of a candidate or his election agent to vote or refrain from voting
for any person on the ground of his religion, race, caste, community or
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