Nand Singh Vs. Ajit Inder Singh
EmailAppeal: Civil Appeal No. 613 of 2000
Petitioner: Nand Singh
Respondent: Ajit Inder Singh
Apeal: Civil Appeal No. 613 of 2000
Judges: Dr. A.S. ANAND, CJI., DORAISWAMY RAJU & SHIVARAJ V. PATIL, J.
Date of Judgment: May 09, 2000
Head Note:
ELECTIONS
Representation of the People Act, 1951,
Section 135A – Election petition – Charge of corrupt practice in elections – Allegation of booth capturing – Nature of proof required to prove the charge. Held, allegation of corrupt practice being a quasi-criminal charge, the evidence in support of the charge has to be not only cogent and definite but should positively establish to the satisfaction of the court, the corrupt practice. Onus is on the election petitioner. In the instant case the petitioner having miserably failed to lead unimpeachable evidence to show that the elected candidate or his agent or any other person with the consent of the returned candidate had committed the corrupt practice. There is no reason to interfere with the order of High Court. Appeal dismissed.
Held:
A charge of corrupt practice is in the nature of a quasi-criminal charge. Evidence to be led in support of corrupt practice, has not only to be cogent and definite but for an election petitioner to succeed, he must also establish definitely to the satisfaction of the Court that the charge of corrupt practice, which he levels against the returned candidate, has been positively established. The onus lies heavily on the election petitioner to establish a charge of corrupt practice. The standard of proof required to set aside election of a returned candidate on a charge of corrupt practice, requires strict proof of the charge – beyond a reasonable doubt. In the present case a careful perusal of the evidence shows that the election petitioner – appellant herein, has failed to discharge the onus of establishing the commission of the alleged corrupt practice by the returned candidate. The appellant was required to lead unimpeachable evidence, which could lead to an irresistible conclusion that the returned candidate or his election agent or any other person with the consent of the returned candidate or his election agent had committed the corrupt practice. He has miserably failed to do so. The High Court, under the circumstances, was justified in dismissing the election petition. We do not find any reason to take a different view.
(Para 13)
JUDGEMENT:
ORDER
1. The appellant put in issue election of the returned candidate – Ajit Inder Singh, respondent no. 1, who had been declared elected to the Punjab State Legislative Assembly from Sardulgarh Assembly Constituency of District Mansa.
2. The gravamen of the charge in the election petition is to the effect that the election agent of the returned candidate – RW-7, Viney Pratap Singh along with his associates and two gunmen, forcibly entered Polling Booth No. 66-A, located at Government Primary School, Danewala on 7th February, 1997 between 4.00 and 4.30 P.M. and captured the booth. It is alleged that as many as 89 ballot papers were snatched by the party from the Presiding Officer at the Polling Booth and RW-7 directed his associates to mark the ballot papers with the symbol of the returned candidate (Sun) and put them in the ballot boxes, which they accordingly did.
3. According to the appellant, the incident of booth capturing was recorded by the Presiding Officer in the Presiding Officer’s Diary, which was later on submitted to the Returning Officer. A First Information Report, being FIR No. 9, was also lodged at Police Station, Jhuneer, in connection with the above offence of booth capturing on 8th Feb., 1997 for offences under Sections 353,186,188, 336, 506,148, 149 of the Indian Penal Code and Sections 25 and 27 of the Arms Act, besides Section 135-A of the Representation of People Act, 1951 against RW-7 and others. On a report from the Presiding Officer, the Election Commission cancelled the poll of Booth No. 66-A and ordered a re-poll of which took place on 9th February, 1997 after due publicity. As a result of the counting, respondent – Ajit Inder Singh was declared elected. In the election petition, facts and particulars of the corrupt practices, allegedly committed by the returned candidate and his election agent and other persons with the consent of the returned candidate or his election agent were detailed in paragraphs 4(i) and 4(ii). The relevant part of the allegations reads thus:
“(ii) That at about 4 P.M. while the polling was going on, Shri Viney Pratap Singh, son of Gurprem Singh, resident of Abul Khurana, the election agent of the respondent, Gurpreet Singh alias Guri S/o Shri Raghbir Singh, R/o Makhewala, Tehsil Sardulgarh, District Mansa along with Balvinder Singh, son of Surjit Singh, Sukhvinder Singh son of Bant Singh both resident of village Moffor along with two gunmen, namely Gurnam Singh, son of Jung Singh alias Jungeer Singh P.S. Lambi, resident of Arniwala and Balvinder Singh son of Puran Singh, resident of Rattakhera, now resident of Abul Khurana, in police uniform came on vehicle, Tata Sumo having no number and at the number plate it was mentioned as A/F outside the Polling Booth No. 66-A, where the polling was going on. Shri Viney Pratap Singh son of Gurprem Singh who is also the Election Agent of the respondent along with Gurpreet Singh alias Guri, son of Shri Raghbir Singh and above mentioned persons and gunmen who came with the election agent of respondent where the polling was going on. The abovementioned Gurpreet Singh alias Guri and other persons mentioned above along with Viney Pratap Singh, election agent and nephew of respondent forcibly entered into the polling station and snatched the ballot papers from the Presiding Officers. Gurpreet Singh alias Guri, started putting the stamps on the ballot papers in favour of the respondent. Shri Karam Singh, the polling agent of respondent and two other agents of the Congress and CPM candidates on Booth No. 66-A who were present there, were folding the ballot papers and putting the same in the ballot boxes. The above mentioned polling agents were also putting thumb impression on counter file (sic) of ballots. Viney Pratap Singh, nephew of the respondent who was having revolver in his hand asked the Presiding Officers, other Polling Officers on duty and Shri Darshan Singh S/o Shri Dalip Singh, the polling agent of Shri Balvinder Singh, SAD candidate to stand quiet on one side of the polling booth and if they tried to interfere they would be killed. The polling staff and the other persons got frightened while the two above mentioned armed persons in police uniform who were the gunmen of the respondent and his election agent, stopped the security personnel and the voters from entering into the Polling Booth No. 66-A. Then the above mentioned election agent of respondent and the supporters of the respondent put about 100 votes into the ballot boxes. These ballot papers were not having the signatures of the Presiding Officer. In the meanwhile, the people started collecting there. Then after putting the votes they started firing in the air and ran away outside the boundary wall of the School where they
had parked the car. The Security personnel tried to prevent them but they ran away.”
4. The election petition was resisted by the returned candidate and in the written statement filed, all the allegations were denied. The learned Single Judge, trying the election petition, framed the following two issues:
“1. Whether the Election Agent of the respondent Ajit Inder Singh and other persons mentioned in the Election Petition with the consent of the returned candidate and his Election Agent committed corrupt practice of booth capturing? If so, its effect? (opp)
2. To what relief, if any, is the petitioner entitled.”
5. Parties led evidence in support of their respective cases.
6. The ace witnesses of the election petitioner – appellant herein, to support the charge of corrupt practices of booth capturing, are the election petitioner – Nand Singh himself, who appeared as PW-1; PW- 8 – Harmel Singh, a voter and Sarpanch of Village Danewala, Polling Officers PW-5 – Shamsher Singh and PW-6 – Anil Kumar besides PW-7 – Milkha Singh, Polling Agent of a defeated candidate.
7. We have been taken through the evidence of PW-1 – Nand Singh. He does not say, let alone explain, how he came to be present at the relevant time at Polling Booth No. 66-A, when he was not to cast his vote at Polling Booth No. 66-A. Even in the election petition he did not disclose how he was present at Polling Booth No. 66-A. Same is the position of PW-8’s evidence. PW-5 – Shamsher Singh, Polling Officer, in his deposition made an attempt to explain the cause for presence of PW-1 and PW-8 at Polling Booth No. 66-A by asserting that both PW-1 and PW-8 had been called by the Presiding Officer to the polling booth to identify doubtful voters. Neither PW-1 – Nand Sigh, nor PW -8, Harmel Singh, Sarpanch, however, stated that they had been called by the Presiding Officer to the polling booth. The Presiding Officer- Sh. Sukhjiwan Singh was not examined. He had been summoned but was given up ostensibly on medical grounds. A careful perusal of statements of Nand Singh- PW – 1 and Harmel Singh – PW-8 go to show that their presence at the relevant time, at the Polling Booth, as alleged in the election petition, is very doubtful. That apart, there is yet another serious lacuna in the evidence. There is unexplained variation between the entry contained in the Presiding Officer’s Diary, the averments in the election petition and evidence of the witnesses led on behalf of the election petitioner – appellant herein regarding the occurrence of booth capturing. Whereas in the Diary of the Presiding Officer the entry reads:
“At 4.15 some armed persons (7-8 persons) came inside and they snatched one copy of ballot papers from the Presiding Officer, which neither had the signature of the Presiding Officer nor the stamp of the polling station. At gun point they also put the stamp of the polling station after snatching and after putting stamp on the symbol of ‘Sun’ put the ballots in the box. In all they put 89 ballot papers from 060412 to 060500 by snatching.’
8. Neither in the election petition nor in the evidence led in support of the election petition, has any averment been made to the effect that ‘7-8 persons’ were armed. It is also not the case either in the election petition or in the evidence that the so called intruders snatched ballot papers which did not have the stamp of the polling station or that the stamp of the polling station was put by the intruders at ‘gun point’, after snatching the ballot papers and before putting the stamp on the symbol of ‘Sun’. The election petition as well as the evidence led in support of it, thus, runs counter to the entry made in the Dairy of the Presiding Officer – Sh. Sukhjiwan Singh. The statement contained in the entry in the diary is not the case of the appellant either in the election petition or in his evidence. The Presiding Officer was not produced at the trial. The discrepancies in the entry and the election petition are quite serious and throw a doubt about the correctness of the allegations. There is no reliable evidence on the record to support the allegations made in the election petition.
9. Thus, the position that emerges is that the appellant has failed to establish the charges levelled by him against RW-7, the election agent of the respondent – returned candidate. As already noticed, evidence of PW-1, the election petitioner – appellant herein, is inherently improbable and cannot be relied upon.
10. The returned candidate – respondent herein, appeared as RW-3. He admitted that he had appointed Sh. Viney Pratap Singh as his election agent but asserted that on the day of the poll, while the returned candidate had kept himself busy on the right hand side of river Ghaggar, the election agent – Sh. Viney Pratap Singh – RW-7 was required to look after Sardulgarh and 18 adjoining villages on the other side of river Ghaggar. RW-3 further deposed that village Danewala, is situated in the area where he himself, and not RW-7, had been looking after the election on the day of the Poll. This assertion, made by the returned candidate has not been challenged in cross-examination. The assertion made by RW-3 has received ample corroboration from the statement of RW-7 – Sh. Viney Pratap Singh, the election agent of the returned candidate also. In his deposition RW-7, asserted that he was looking after the villages situated on the left side of river Ghaggar on the election day and that he was concerned with the polling taking place in Sardulgarh and about 18 villages situated near Sardulgarh where he had also set up his office. He denied that he went to village Danewal at all on the day of the poll. This statement has also remained unrebutted and unchallenged in the cross-examination. The evidence of other witnesses is of a formal nature and we need not detain ourselves to consider the same. The evidence of RW-3 and RW-7 gives a lie to the evidence led by the appellant.
11. The learned Single Judge trying the election petition, after a careful appraisal of the evidence on record, rightly came to the conclusion that the election petitioner – appellant herein had failed to prove the charge of corrupt practice of booth capturing of Polling Booth No. 66-A, village Danewala, by the returned candidate or his election agent – Sh. Viney Pratap Singh or by any other person with the consent of the returned candidate or his election agent.
12. After hearing learned Counsel for the parties and perusing the record, we find ourselves in agreement with the assessment of evidence recorded by the learned Single Judge of the High Court.
13. A charge of corrupt practice is in the nature of a quasi-criminal charge. Evidence to be led in support of corrupt practice has not only to be cogent and definite but for an election petitioner to succeed, he must also establish definitely to the satisfaction of the Court that the charge of corrupt practice, which he levels against the returned candidate, has been positively established. The onus lies heavily on the election petitioner to establish a charge of corrupt practice. The standard of proof required to set aside election of a returned candidate on a charge of corrupt practice requires strict proof of the charge – beyond a reasonable doubt. In the present case a careful perusal of the evidence shows that the election petitioner – appellant, herein, has failed to discharge the onus of establishing the commission of the alleged corrupt practice by the returned candidate. The appellant was required to lead unimpeachable evidence, which could lead to an irresistible conclusion that the returned candidate or his election agent or any other person with the consent of the returned candidate or his election agent had committed the corrupt practice. He has miserably failed to do so. The High Court, under the circumstances, was justified in dismissing the election petition. We do not find any reason to take a different view.
14. The appeal, therefore, fails and is dismissed with costs.
1. The appellant put in issue election of the returned candidate – Ajit Inder Singh, respondent no. 1, who had been declared elected to the Punjab State Legislative Assembly from Sardulgarh Assembly Constituency of District Mansa.
2. The gravamen of the charge in the election petition is to the effect that the election agent of the returned candidate – RW-7, Viney Pratap Singh along with his associates and two gunmen, forcibly entered Polling Booth No. 66-A, located at Government Primary School, Danewala on 7th February, 1997 between 4.00 and 4.30 P.M. and captured the booth. It is alleged that as many as 89 ballot papers were snatched by the party from the Presiding Officer at the Polling Booth and RW-7 directed his associates to mark the ballot papers with the symbol of the returned candidate (Sun) and put them in the ballot boxes, which they accordingly did.
3. According to the appellant, the incident of booth capturing was recorded by the Presiding Officer in the Presiding Officer’s Diary, which was later on submitted to the Returning Officer. A First Information Report, being FIR No. 9, was also lodged at Police Station, Jhuneer, in connection with the above offence of booth capturing on 8th Feb., 1997 for offences under Sections 353,186,188, 336, 506,148, 149 of the Indian Penal Code and Sections 25 and 27 of the Arms Act, besides Section 135-A of the Representation of People Act, 1951 against RW-7 and others. On a report from the Presiding Officer, the Election Commission cancelled the poll of Booth No. 66-A and ordered a re-poll of which took place on 9th February, 1997 after due publicity. As a result of the counting, respondent – Ajit Inder Singh was declared elected. In the election petition, facts and particulars of the corrupt practices, allegedly committed by the returned candidate and his election agent and other persons with the consent of the returned candidate or his election agent were detailed in paragraphs 4(i) and 4(ii). The relevant part of the allegations reads thus:
“(ii) That at about 4 P.M. while the polling was going on, Shri Viney Pratap Singh, son of Gurprem Singh, resident of Abul Khurana, the election agent of the respondent, Gurpreet Singh alias Guri S/o Shri Raghbir Singh, R/o Makhewala, Tehsil Sardulgarh, District Mansa along with Balvinder Singh, son of Surjit Singh, Sukhvinder Singh son of Bant Singh both resident of village Moffor along with two gunmen, namely Gurnam Singh, son of Jung Singh alias Jungeer Singh P.S. Lambi, resident of Arniwala and Balvinder Singh son of Puran Singh, resident of Rattakhera, now resident of Abul Khurana, in police uniform came on vehicle, Tata Sumo having no number and at the number plate it was mentioned as A/F outside the Polling Booth No. 66-A, where the polling was going on. Shri Viney Pratap Singh son of Gurprem Singh who is also the Election Agent of the respondent along with Gurpreet Singh alias Guri, son of Shri Raghbir Singh and above mentioned persons and gunmen who came with the election agent of respondent where the polling was going on. The abovementioned Gurpreet Singh alias Guri and other persons mentioned above along with Viney Pratap Singh, election agent and nephew of respondent forcibly entered into the polling station and snatched the ballot papers from the Presiding Officers. Gurpreet Singh alias Guri, started putting the stamps on the ballot papers in favour of the respondent. Shri Karam Singh, the polling agent of respondent and two other agents of the Congress and CPM candidates on Booth No. 66-A who were present there, were folding the ballot papers and putting the same in the ballot boxes. The above mentioned polling agents were also putting thumb impression on counter file (sic) of ballots. Viney Pratap Singh, nephew of the respondent who was having revolver in his hand asked the Presiding Officers, other Polling Officers on duty and Shri Darshan Singh S/o Shri Dalip Singh, the polling agent of Shri Balvinder Singh, SAD candidate to stand quiet on one side of the polling booth and if they tried to interfere they would be killed. The polling staff and the other persons got frightened while the two above mentioned armed persons in police uniform who were the gunmen of the respondent and his election agent, stopped the security personnel and the voters from entering into the Polling Booth No. 66-A. Then the above mentioned election agent of respondent and the supporters of the respondent put about 100 votes into the ballot boxes. These ballot papers were not having the signatures of the Presiding Officer. In the meanwhile, the people started collecting there. Then after putting the votes they started firing in the air and ran away outside the boundary wall of the School where they
had parked the car. The Security personnel tried to prevent them but they ran away.”
4. The election petition was resisted by the returned candidate and in the written statement filed, all the allegations were denied. The learned Single Judge, trying the election petition, framed the following two issues:
“1. Whether the Election Agent of the respondent Ajit Inder Singh and other persons mentioned in the Election Petition with the consent of the returned candidate and his Election Agent committed corrupt practice of booth capturing? If so, its effect? (opp)
2. To what relief, if any, is the petitioner entitled.”
5. Parties led evidence in support of their respective cases.
6. The ace witnesses of the election petitioner – appellant herein, to support the charge of corrupt practices of booth capturing, are the election petitioner – Nand Singh himself, who appeared as PW-1; PW- 8 – Harmel Singh, a voter and Sarpanch of Village Danewala, Polling Officers PW-5 – Shamsher Singh and PW-6 – Anil Kumar besides PW-7 – Milkha Singh, Polling Agent of a defeated candidate.
7. We have been taken through the evidence of PW-1 – Nand Singh. He does not say, let alone explain, how he came to be present at the relevant time at Polling Booth No. 66-A, when he was not to cast his vote at Polling Booth No. 66-A. Even in the election petition he did not disclose how he was present at Polling Booth No. 66-A. Same is the position of PW-8’s evidence. PW-5 – Shamsher Singh, Polling Officer, in his deposition made an attempt to explain the cause for presence of PW-1 and PW-8 at Polling Booth No. 66-A by asserting that both PW-1 and PW-8 had been called by the Presiding Officer to the polling booth to identify doubtful voters. Neither PW-1 – Nand Sigh, nor PW -8, Harmel Singh, Sarpanch, however, stated that they had been called by the Presiding Officer to the polling booth. The Presiding Officer- Sh. Sukhjiwan Singh was not examined. He had been summoned but was given up ostensibly on medical grounds. A careful perusal of statements of Nand Singh- PW – 1 and Harmel Singh – PW-8 go to show that their presence at the relevant time, at the Polling Booth, as alleged in the election petition, is very doubtful. That apart, there is yet another serious lacuna in the evidence. There is unexplained variation between the entry contained in the Presiding Officer’s Diary, the averments in the election petition and evidence of the witnesses led on behalf of the election petitioner – appellant herein regarding the occurrence of booth capturing. Whereas in the Diary of the Presiding Officer the entry reads:
“At 4.15 some armed persons (7-8 persons) came inside and they snatched one copy of ballot papers from the Presiding Officer, which neither had the signature of the Presiding Officer nor the stamp of the polling station. At gun point they also put the stamp of the polling station after snatching and after putting stamp on the symbol of ‘Sun’ put the ballots in the box. In all they put 89 ballot papers from 060412 to 060500 by snatching.’
8. Neither in the election petition nor in the evidence led in support of the election petition, has any averment been made to the effect that ‘7-8 persons’ were armed. It is also not the case either in the election petition or in the evidence that the so called intruders snatched ballot papers which did not have the stamp of the polling station or that the stamp of the polling station was put by the intruders at ‘gun point’, after snatching the ballot papers and before putting the stamp on the symbol of ‘Sun’. The election petition as well as the evidence led in support of it, thus, runs counter to the entry made in the Dairy of the Presiding Officer – Sh. Sukhjiwan Singh. The statement contained in the entry in the diary is not the case of the appellant either in the election petition or in his evidence. The Presiding Officer was not produced at the trial. The discrepancies in the entry and the election petition are quite serious and throw a doubt about the correctness of the allegations. There is no reliable evidence on the record to support the allegations made in the election petition.
9. Thus, the position that emerges is that the appellant has failed to establish the charges levelled by him against RW-7, the election agent of the respondent – returned candidate. As already noticed, evidence of PW-1, the election petitioner – appellant herein, is inherently improbable and cannot be relied upon.
10. The returned candidate – respondent herein, appeared as RW-3. He admitted that he had appointed Sh. Viney Pratap Singh as his election agent but asserted that on the day of the poll, while the returned candidate had kept himself busy on the right hand side of river Ghaggar, the election agent – Sh. Viney Pratap Singh – RW-7 was required to look after Sardulgarh and 18 adjoining villages on the other side of river Ghaggar. RW-3 further deposed that village Danewala, is situated in the area where he himself, and not RW-7, had been looking after the election on the day of the Poll. This assertion, made by the returned candidate has not been challenged in cross-examination. The assertion made by RW-3 has received ample corroboration from the statement of RW-7 – Sh. Viney Pratap Singh, the election agent of the returned candidate also. In his deposition RW-7, asserted that he was looking after the villages situated on the left side of river Ghaggar on the election day and that he was concerned with the polling taking place in Sardulgarh and about 18 villages situated near Sardulgarh where he had also set up his office. He denied that he went to village Danewal at all on the day of the poll. This statement has also remained unrebutted and unchallenged in the cross-examination. The evidence of other witnesses is of a formal nature and we need not detain ourselves to consider the same. The evidence of RW-3 and RW-7 gives a lie to the evidence led by the appellant.
11. The learned Single Judge trying the election petition, after a careful appraisal of the evidence on record, rightly came to the conclusion that the election petitioner – appellant herein had failed to prove the charge of corrupt practice of booth capturing of Polling Booth No. 66-A, village Danewala, by the returned candidate or his election agent – Sh. Viney Pratap Singh or by any other person with the consent of the returned candidate or his election agent.
12. After hearing learned Counsel for the parties and perusing the record, we find ourselves in agreement with the assessment of evidence recorded by the learned Single Judge of the High Court.
13. A charge of corrupt practice is in the nature of a quasi-criminal charge. Evidence to be led in support of corrupt practice has not only to be cogent and definite but for an election petitioner to succeed, he must also establish definitely to the satisfaction of the Court that the charge of corrupt practice, which he levels against the returned candidate, has been positively established. The onus lies heavily on the election petitioner to establish a charge of corrupt practice. The standard of proof required to set aside election of a returned candidate on a charge of corrupt practice requires strict proof of the charge – beyond a reasonable doubt. In the present case a careful perusal of the evidence shows that the election petitioner – appellant, herein, has failed to discharge the onus of establishing the commission of the alleged corrupt practice by the returned candidate. The appellant was required to lead unimpeachable evidence, which could lead to an irresistible conclusion that the returned candidate or his election agent or any other person with the consent of the returned candidate or his election agent had committed the corrupt practice. He has miserably failed to do so. The High Court, under the circumstances, was justified in dismissing the election petition. We do not find any reason to take a different view.
14. The appeal, therefore, fails and is dismissed with costs.
