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PETITIONER: S. BALDEV SINGH MANN

       Vs.

RESPONDENT: S.GURCHARAN SINGH MLA & ORS.

DATE OF JUDGMENT:       05/02/1996

BENCH: FAIZAN UDDIN (J) BENCH: FAIZAN UDDIN (J) VERMA, JAGDISH SARAN (J) SINGH N.P. (J)

CITATION:  1996 AIR 1109            JT 1996 (1)   692  1996 SCALE  (1)683

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Faizan Uddin, J. 1.   This appeal  under Section  116-A of the Representation of People Act, 1951 (hereinafter referred to as the Act) has been directed  against the  judgment dated  November 8, 1993 passed by  the High  Court of Punjab & Haryana at Chandigarh dismissing the Election Petition No. 13 of 1992 filed by the appellant herein  challenging the  election of  the returned candidate S. Gurcharan Singh, the first respondent. 2.   The election  for Punjab  Legislative Assembly was held in February, 1992. The appellant was sponsored by Shriromani Akali Dal  as a  candidate from  87-Dirba Constituency while the respondent  No. 1  S. Gurcharan Singh was fielded by the Congress party  and the  respondent No.  2 Chet  Singh was a candidate set  up by Bahujan Samaj Party. The respondent No. 3 S.  Amarjit Singh  contested the  election from  the  said constituency  as  an  independent  candidate.  The  date  of polling was  February 19,  1992 and  the result was declared next date  i.e. on  February 20, 1992 according to which the respondent No.  1 secured the highest number of votes having polled 3072  votes while the appellant had secured only 2624 votes. The  respondent No.  2 had  polled 1925 votes and the respondent No.  3 polled only 75 votes. The respondent No. 1 having secured  higher number  of votes was declared elected from 87-Dirba Constituency. 3.   The appellant  challenged the  election of the returned candidate, respondent No. 1 herein by presenting an election petition under part VI of the Act for declaring his election as void and to declare the appellant himself as duly elected candidate for  the said  constituency in  place of the first respondent. The appellant called in question the election of the respondent No. 1 on the allegations that he had indulged in the commission of the corrupt practice of booth capturing by himself  and through  his agents  within the  meaning  of

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Section 123(8)  read with  Section 135-A  of  the  Act.  The details of  the allegations  with regard  to  various  booth capturing are  pleaded in sub-paras I, II, III, IV, V and VI of para  3 of  the election  petition which  have also  been reproduced verbatim  by  the  High  Court  in  the  impugned judgment. It  is, therefore,  not necessary to catalogue all those allegations herein again. 4.   The second  ground on  which the  appellant  based  his election petition  challenging the  election  of  the  first respondent was  that the  respondent No. 1 had in fact spent over Rs.  2.00 lacs  on his  election in  violation  of  the ceiling limit  on expenses  provided under Section 77 of the Act read  with  rule  90,  which  also  amounts  to  corrupt practice within  the meaning  of Section 123 (6) of the Act. The appellant  has alleged that the Return of expenses filed by the  first respondent was totally false as bills filed by him were  grossly under  valued not representing the correct price and  quantity of goods purchased and services hired by him. He  also alleged  that the  first respondent  concealed various expenses  which were actually made from 31.1.1992 to 20.2.1992 but  were not  included in the Return. The details of alleged  items of  expenses which  are alleged  to be not included in  the Return  are stated in sub-paras I, II, III, IV &  V of  para 4  of the election petition which have also been reproduced  verbatim by  the High Court in the impugned judgment and  therefore it is not necessary to mention their details herein again. 5.   The respondent  No. 1 resisted the election petition by specifically traversing all adverse allegations made against him. He  specifically denied  to have  indulged or committed any of  the corrupt  practices of  booth capturing either by himself or through his agents. He also denied the allegation with  regard   to  the   election  expenses   exceeding  the prescribed limit  or the  under valuation  of the  bills  or concealment of  any expenses which were actually made by him or his election agent. 6.   The High  Court on  the basis  of the  pleadings of the parties framed the following issues:-      1.Whether the election of respondent No. 1 is liable to be declared void on the grounds pleaded in the petition?      2.Whether the  petition is  liable to  be rejected  for non-compliance of the provisions of Rule 12(f), Chapter 4-GG of the  High Court  Rules and Orders, Vol. V & Section 81(3) of the Representation of People Act?      3.Whether the  petition does  not disclose any cause of action?      4.Relief. Issues No.  2 and  3 reproduced  above were  decided on 28th November,  1993   by  order   dated  January   28,  1993  as preliminary issues  and  were  answered  against  the  first respondent. Thus the impugned judgment deals with only issue No. 1  quoted  above.  On  a  close  scrutiny  and  critical analysis of  the parties  evidence on  record the High Court came to  the conclusion  that the allegations of the corrupt practice levelled  against the  returned candidate  are  not only vague  but indefinite and that the appellant had failed to substantiate  the same  against the first respondent. The High Court  also recorded the finding that from the evidence adduced by  the appellant it could not be concluded that the first respondent  made expenses beyond the prescribed limit. The High  Court observed  that the  appellant had  cooked up false pleas  for setting  aside the election of the returned candidate and  that he  fabricated evidence with impunity to support  the   allegations.  The   High  Court,   therefore, dismissed the  election petition  with costs by the impugned

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judgment against which this appeal has been directed. 7.   Learned   counsel    appearing   for    the    election petitioner/appellant submitted  that there is sufficient and reliable evidence  on record to establish the allegations of booth capturing  by the respondent No. 1 himself and through his agents and, therefore, the negative findings recorded by the High Court are liable to be set aside. He also submitted that the  High Court  seriously erred  in holding  that  the allegations contained in para 3 (I) of the election petition do not  constitute a  corrupt  practice.  According  to  the petitioner/appellant the  allegations as are set out in para 3 (I)  to (VI)  relating to  booth  capturing  amount  to  a corrupt practice  within the  meaning of  sub-section (8) of Section 123  read with Section 135-A of the Act. Section 123 (8) reads thus:-      123.Corrupt     Practices.-     The      following shall  be  deemed  to  be      corrupt practices  for the purposes      of this Act:      ...........      (8)Booth capturing  by a  candidate      or his agent or other person.- The relevant part of Section 135-A reads as follows:-      135-A Offence  of booth capturing.-      Whoever commits an offence of booth      capturing shall  be punishable with      imprisonment for a term which shall      not be  less than  six  months  but      which may  extend to  two years and      with fine,  and where  such offence      is committed  by a  person  in  the      service of the Government, he shall      be punishable with imprisonment for      a term which shall not be less than      one year  but which  may extend  to      three years and with fine." 8.   It is  well  settled  that  an  allegation  of  corrupt practices within  the meaning  of sub-sections (1) to (8) of Section 123  of the  Act, made  in the election petition are regarded quasi  criminal in  nature requiring a strict proof of the  same because  the consequences  are  not  only  very serious but also penal in nature. It may be pointed out that on the  proof of  any of the corrupt practices as alleged in the election  petition it  is not  only the  election of the returned candidate  which is declared void and set aside but besides the  disqualification of the returned candidate, the candidate himself  or his  agent or  any other person as the case may be, if found to have committed corrupt practice may be punished  with imprisonment  under Section  135-A of  the Act. It  is for  these reasons that the Court insists upon a strict proof  of such allegation of corrupt practice and not to decide  the case  on preponderance  or probabilities. The evidence has, therefore, to be judged having regard to these well settled principles. 9.   In sub-para  (1) of para 3 of the election petition the allegation made  is that  on 19.2.1992  at about 7.30 AM the respondent No. 1 in the company of 50 supporters went to the Government High  School Building, Dirba where polling booths No. 62  to 69  were located  and threatened  Joginder Singh, polling agent  of the  appellant in  the  presence  of  some electors and  asked him not to go inside the polling station and not  to  raise  objections  regarding  the  identity  of persons. The High Court took the view that these allegations cannot  be  treated  to  be  a  corrupt  practice  of  booth capturing. Learned  counsel for  the appellant was unable to

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specify as  to under  which sub section of Section 123 these allegations amount to a corrupt practice. In our opinion the alleged threat  may be  an offence but certainly it does not fall within the ambit of corrupt practice as defined in sub- section (8)  of Section 123. This apart it is interesting to note that Joginder Singh the election agent of the appellant who is  said to have been threatened was not examined by the appellant as a witness to support the said allegation. 10.  It may  be noticed that to establish the allegations of booth capturing  made in  sub-paras II,  III, IV,  V & VI of para 3  of the election petition were sought to be proved by the appellant  from the  evidence of  Zora Singh, PW 6, Sher Singh, PW  7, Kashmira  Singh, PW  11, Saadha  Singh, PW 12, Kapur Singh, PW 13, Tehsil Singh, PW 14 Jarnail Singh, PW 15 and Surjit Singh, PW 16. The evidence of all these witnesses has been minutely analysed and scrutinized by the High Court and found  the same  to be  unconvincing and  unreliable  to establish the allegations. The most striking feature is that the appellant  did not examine election agent Joginder Singh as a  witness to  support the allegations who is supposed to have first  hand information as to what was happening inside the polling  booth. According to the allegations made in the election petition  there were incidents of a large number of booth capturing  by the  respondent No.  1,  his  agent  and supporters  who  are  alleged  to  be  variously  armed  but surprisingly enough  either any oral nor a written complaint was made  to the  Returning Officer,  Presiding Officers  or other officers  and police  personnel who  were on  election duty at  the respective polling booths. There was not even a whisper about  the  alleged  incidents  to  the  members  of Central Reserve  Police who according to the appellant’s own evidence  were  very  much  present  out  side  the  polling station. There is no contemporaneous materials or any record to indicate  that the appellant or any one on his behalf had raised even  a finger  on any of the alleged incidents while admittedly the Returning Officer, Presiding Officers and the Senior Superintendent  of Police were available to entertain the complaints  if the respondent, his election agent or his supporters had committed acts of corrupt practice. 11.  The respondent  No. 1  has examined  the Sub-Divisional Magistrate, Shri Meghraj, RW 2 who was the Returning Officer of Dirba  Assembly Constituency  in the  said election.  The respondent  also   examined  the  Senior  Superintendent  of Police,  Shri  Jaswinder  Singh,  RW  16  who  categorically deposed that the polling was peaceful throughout the day and there were  proper security arrangements outside the polling booths. They  also stated that there were absolutely no such incidents as  are alleged  by the  appellant in  any of  the polling booths  and no  protest was  lodged by  any  of  the contesting  candidates  either  with  regard  to  the  booth capturing  or   regarding  illegal  casting  of  votes.  The respondent No.  1 had  also  examined  Dayal  Chand,  RW  8, Gurmail Singh, RW 9, Ram Prakash, RW 10, Karam Singh, RW 11, Sohan Singh,  RW 12, Chiranjit Julka, RW 13, Govinder Singh, RW 14  and Manjit  Singh,  RW  15  who  were  the  Presiding Officers of the Polling booths No. 63 to 69. They all made a consistent and categorical statement that the polling agents of all  the contesting  candidates were  present inside  the polling booths and none of them had disputed the identity of any elector  who had  come to  cast their votes. They stated that the  polling was  peaceful and  there was  no  untoward incidence. On  a critical  examination of the record and the impugned judgment  of  the  High  Court  we  find  that  the appellant had miserably failed to bring home the allegations of corrupt  practice either  by the  respondent No.  1,  his

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agent or  any other  person  with  his  consent  or  at  his instance. On the contrary there is consistent convincing and satisfactory evidence  adduced by  the respondent  No. 1  to show that the polling was peaceful throughout the day and no complaint of  any nature  whatsoever oral  or in writing was received from  any quarter.  In  view  of  these  facts  and circumstances the  High Court  has taken  a view  consistent with the evidence on record and there are no reasons to take a different view. 12.  Learned counsel for the appellant next urged that there is evidence  to show  that the returned candidate respondent No. 1 herein had made expenditure far beyond the permissible limit and  the High  Court fell in serious error in taking a different view.  Rule 90  of Conduct of Election Rules, 1961 provides that  the total  expenditure of which account is to be maintained  under Section  77 of  the Act,  and which  is incurred in  connection with  an election,  shall not exceed the amount  as specified  in the corresponding column of the table given  therein. But  on going through the evidence and the judgment  of the High Court in that behalf, we find that there is  absolutely no  substance in  this submission also. The High  Court has made a detailed scrutiny of the evidence on record  in this  behalf and  has arrived  at  a  definite conclusion that  the allegation  is groundless. We have also gone  through  the  relevant  evidence  and  find  that  the evidence adduced  by the  appellant does  not establish  the charge of over spending. 13.  Learned counsel  for  the  appellant  then  urged  that before recording  of evidence  an application  was  made  on behalf of  the appellant under Rule 93 of the Election Rules read with  Section 151 C.P.C for inspection of marked copies of electoral rolls as well as the packets of counterfoils of used ballot  papers, in  order to  prove booth capturing and casting of bogus votes by persons in place of real electors, but it  was previously  rejected by  the  High  Court  which caused great  prejudice to  the appellant’s  case.  He  also submitted that  the appellant  had also moved an application for summoning  various  documents  for  purposes  of  cross- examining the  respondent No. 1 but it was also unreasonably rejected by  the High  Court. We  have perused the orders of the High  Court dated  14th May,  1993 and 23rd August, 1993 and  find  that  the  High  Court  was  fully  justified  in rejecting both the applications for valid and sound reasons. The appellant had failed to show even prima facie that there was any  booth capturing  and, therefore,  the  question  of inspection of  the desired  electoral rolls  and packets  of counterfoils did  not arise  at that  stage of the case. The documents sought to be summoned also could not be allowed in view of the fact that the said application was made when the appellant  had   already  concluded  his  evidence  and  the election petition  was  posted  for  respondent’s  evidence. Secondly, the said application was not maintainable for non- compliance of  the rules  contained in  Chapter 4-GG  of the Rules and  orders of  Punjab & Haryana High Court, volume v, of which prescribes rules of procedure on the non-compliance of which  the documents sought to be summoned for purpose of cross-examination cannot  be ordered.  In this  view of  the matter, the  order of  the High  Court dated August 23, 1993 rejecting the  application, cannot  be said to be erroneous. As discussed  above, the  appellant has  miserably failed to prove the  allegations made in the election petition and the evidence adduced  by the  appellant has  been  found  to  be unworthy of  placing any reliance, the appeal deserves to be dismissed. 14.  For the  reasons stated  above the  appeal fails and is

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hereby dismissed  with costs.  Rs.  3000/-  to  be  paid  to respondent No. 1.