Govind Singh Vs Harchand
Kaur
JUDGMENT
GYAN SUDHA MISRA, J.
1.
This
appeal has been preferred under Section 116A of the Representation of People
Act, 1951 (hereafter referred to as the Act of 1951) assailing the Judgment and
Order of the High Court of Punjab and Haryana dated April 28,2006 delivered in
Election petition No. 22/2002 as a consequence of which the election of the
appellant, Govind Singh as MLA to the Punjab Legislative Assembly held on
February 13, 2002 from the reserved 82-Sherpur (S.C.)Assembly Constituency was
declared void and hence was set aside awarding a cost of Rs.50,000/- to the
respondent Smt. Harchand Kaur.
2.
2.
The election of the appellant was challenged by the respondent- Smt. Harchand
Kaur who is the defeated candidate and although she had secured third position
in the polling, she challenged the election of the appellant alleging corrupt
practice against him within the meaning of Section 123 (1) (A) of the Act of
1951.
3.
The
essential details of the Election petition which formed the basis of challenge
to the election of the appellant, disclose that on June 26, 2001 the Governor
of Punjab issued a notification under Section 15 of the Representation of
People Act, 1951 calling for election of MLAs from all constituencies in Punjab
to constitute the Punjab Legislative Assembly. The appellant-Govind Singh, at
the relevant time was functioning as a Minister of Social Security, Women and
Child Development and the party in power to which the appellant belonged was Shiromani
Akali Dal (Badal). However, the appellant admittedly resigned on January 12,
2002 from the primary membership of Akali Dal as he was denied party ticket to
contest the election from the said Assembly Constituency. The Election
Commission published the election schedule which stated that the last date for
filing nomination would be January 23, 2002 and the date for scrutiny of nominations
was fixed for 24.01.2002. The schedule further indicated that the last date for
withdrawal of candidature would be January 28, 2002 after which the poll was to
be held on February 13, 2002 and finally the counting of votes on February 24,
2002.
4.
In
view of the aforesaid schedule fixed by the Election Commission, the appellant
- Govind Singh and nine others filed nominations for contesting the election
for the reserved 82-Sherpur (S.C.) Assembly Constituency. The appellant had
filed nomination as an independent candidate since he had resigned from the membership
of the Shiromani Akali Dal (Badal) party.
5.
5.
The election to the concerned constituency was held as per schedule on13th
February, 2001 and the process was finally complete on February 24, 2002after
counting of the votes when the appellant was declared elected to there served
82-Sherpur (S.C.) Assembly Constituency since he had securedhighest number of
votes which was 30132. The nearest rival to the returned candidate i.e. the
appellant-Govind Singh, was Piara Singh of the Shiromani Akali Dal (Badal) in
whose favour 26525 votes had been polled and the contesting respondent - Smt.
Harchand Kaur secured third position in whose favour 19439votes had been
polled. The total number of votes polled was admittedly 90882 in the Assembly
Constituency where all these three candidates had contested.
6.
The
Respondent - Smt. Harchand Kaur, having been defeated in the election felt
aggrieved of the election result as she apprehended, which obviously was a late
realisation on her part to the effect that the elected candidate i.e. the appellant
herein, Govind Singh, had indulged in corrupt practices in the election process
due to which she could not emerge as a victorious candidate. This prompted her
to file an Election petition in the High Court of Punjab and Haryana bearing
Election petition No. 22/2002 wherein she challenged the petitioner's election
alleging illegal acts of omission and commission at the instance of the appellant
which amounted to indulgence in corrupt practice within the meaning of Section
123 (1) read with Section 100 (1) (b) of the Act of 1951.
7.
Elaborating
the details of her alleged plea of corrupt practice on the basis of which the
respondent Smt. Kaur had filed the Election petition in the High Court challenging
the election of the appellant -Govind Singh, it was stated that there turned
candidate while holding the charge of Social Security Minister in the State
Cabinet misused his power with an intention to gain benefit in the election2002
violating the procedure as he sanctioned and released the old age/widow/handicapped
pensions in favour of the residents of Sherpur Constituency and this was
clearly with a view to secure votes of the electorates in the ensuing election.
A list of 16 persons with their addresses was furnished along with a few forms
pertaining to those persons indicating that the petitioner had sanctioned their
pension directly.
8.
The
respondent herein Smt. Harchand Kaur further alleged that there turned
candidate, the appellant herein, while holding the post of Cabinet Minister in
charge of Social Security Department misused his power and got various women
voters of his Constituency employed as Anganwadi Workers for the period upto
28.2.2002 and they were employed in service with a motive tocompel them to
undertake the work of his election and cast their votes as also manage other
votes in his favour in the constituency in the election scheduled to be held on
13.2.2002. A list of 13 women with their addresses was given along with the
true translated copy of one such appointment letter. Relying on these facts,
the respondent alleged that the appellant is guilty of committing corrupt
practice with a view to secure votes in the election which is covered under Section
123 of the Act of 1951.
9.
The
Respondent Smt. Harchand Kaur levelled a third allegation also alleging corrupt
practice by stating that the returned candidate Govind Singh- the Appellant
herein, distributed money among the voters in exchange of their promise to vote
for him directly as well as through his agents with his consent in the presence
of respectable village persons who stood surety on their behalf. The appellant
had also promised to facilitate construction of drains and many pacca pavements
and streets in case he was voted and emerged as a victorious candidate.
Elaborating further on this aspect, the respondent herein alleged that the
appellant Shri Gobind Singh paid cash at various places for getting votes a informed
by the respectable persons of that area, namely, Avtar Singh, S/o Baldev Singh,
Balbir Singh, S/o Budh Singh, both r/o village and Post Office adda, Tehsil
Dhuri, District Sangrur; Jaspal Singh, Sarpanch village BirMamgarh, Tehsil
Malekotla, District Sangrur and Ramzan Khan Sarpanch, villageJatewal, Tehsil
Malerkotla district Sangrur. However, only Balbir Singh out ofthese persons was
cited in the list of witnesses filed later on by the respondent in her Election
petition. He was subsequently cited as a witness who could not prove the
allegation of cash for votes but was cited as a witness only to prove the allegation
that the petitioner had delivered speeches at various places to promote enmity
on the ground of religion. He, however, was finally never examined by the respondent.
10.
Thus,
the sum and substance of the entire allegations levelled by the defeated
candidate Smt. Harchand Kaur - the respondent herein, is to the effect that the
appellant-returned candidate Shri Gobind Singh with the active support of his
supporters indulged in corrupt practice and offered bribery in the form of gift
and promise to give cash to those who voted in his favour. This vitiated the election
and hence he is guilty of committing corrupt practice which is covered under
Section 123 (1) A (b) and B (b) of the Act of 1951 due to which the election held
on 13th February, 2002 deserves to be quashed and set aside since the corrupt
practice at the instance of the appellant is covered under Section 123 of the
Act of 1951.
11.
The
appellant Shri Singh responded to the Election petition by filing his written
statements to the petition on August 12, 2002 wherein he initially took the preliminary
objection that no material facts and material particulars had been pleaded in
the petition concerning the allegations of corrupt practice and no time, date
and place had been mentioned and hence the contents were liable to best truck
off as no cause of action was disclosed by the petitioner/respondent herein. It
was further averred that no attested or true copy of the Election petition had
been served on the petitioner nor the verification of the petition was done as per
the 1951 Act as well as the Code of Civil Procedure due to which the same was
also defective as the affidavit had not been filed in support of the
allegations of corrupt practice, in terms of the requirements of the Act of
1951. In so far as the merits of the allegations in the petition are concerned,
they were denied and it was clarified that the returned candidate / the
appellant herein had already resigned from the Government as Minister of Social
Security as also from the primary membership of the Shiromani Akali Dal on
January 12, 2002. The appellant submitted that the sanction or release of
pensions was done by the District level authorities and the appellant who was
then a Minister at the most, had recommended acceptance which was always
subject to the legal norms for such pension. It was further stated that all the
documents annexed by the respondent with her Election petition in the High
Court pertained to the period2001, and therefore, were irrelevant to the period
of the election that is January23, 2002 to February 24, 2002. The pass books of
the pension receivers annexed by the respondent merely showed the normal flow
of pensions into the pension accounts in 2001 without even a statement that
these were sanctioned by the petitioner in 2002 since this was inherently
impossible after his resignation. It was further stated therein that none of
the allegations contained the relevant material facts and the material
particulars as to the date, time and place which could substantiate the
allegation.
12.
The
Respondent Smt. Harchand Kaur thereafter filed rejoinder to the written
statement wherein the facts stated in the Election petition were reiterated in
order to contend that the appellant in fact indulged in corrupt practice to
ensure his victory in the election.
13.
13.
The learned single Judge on the aforesaid case and counter case of the contesting
parties initially framed as many as nine issues but ultimately confined to the
following issues: Whether the respondent is guilty of corrupt practices committed
by him or with his consent as enumerated 8 in paras No. 12,13,14,17,18, 19,
20, 21, 22, 23, 24, 25 and 26 which materially affected the result of election and
his election deserves to be set aside.6. Whether any corrupt practice
(bribery, offer any gift or money as a reward to an Elector for having voted or
refrain from voting, gives a gratification to any person with the object of
inducing him to exercise any other Elector right) has been committed by
returned candidate or his election agent or any other person with the consent
of a returned candidate or his election agent under Section 123 of the
Representation of the People Act, 1951?7. Whether disbursement of money under
the pretext of old age pension etc. between the day of nomination and polling
day by the returned candidate or by his consent by other persons through
department of Social Security Women and Child Development, of which he was a Minister,
to induce the electors in his constituency to vote for him, amounts to a
corrupt practice under Section 100(1)(b)?9. Whether the returned candidate
himself or on his behalf or with his consent, large number of fresh appointments
as Anganwari workers were issued for specific period, by the department of
Social Security Women and Child Development to induce the voters in his
constituency to vote for him and thus committed a corrupt practice under the
Act?
14.
Thus,
the High Court although initially framed nine issues on the basis of the
Election petition filed by the Respondent, the same was eventually confined to the
challenge to the election of the returned candidate only on the ground of corrupt
practices as envisaged under Section 123 (1) read with Section 100 (1)(b) of
the Act of 1951 wherein `bribery' has been considered to be a corrupt practice
i.e. any gift, offer or promise by a candidate or his agent or by any other person
with the consent of a candidate or his election agent of any gratification, to any
person whomsoever, with the object, directly or indirectly inducing him to vote
or refrain from voting at an election or as a reward to an election for having
voted or refrain from voting. Hence, the analysis of oral and documentary
evidence made by the High Court has been confined to the issues nos. 5, 6, 7
and 9 quoted herein before as to whether the returned candidate is guilty of
corrupt practices alleged against him or has been committed by him or his election
agent or any other person with the consent of the returned candidate-the
appellant herein. The analysis made by the High Court also indicated that it
took into consideration issue no. 7, as to whether disbursement of money under
the pretext of old age pension etc. between the day of nomination and polling
day by the returned candidate or with his consent by other persons through The
Department of Social Security Women and Child Development of which he was a
Minister, induced the electorate in his constituency to vote for him so as to
bring it within the ambit and scope of corrupt practice laid down under Section
100 (1) (b) of the Act of 1951.
15.
The
High Court further proceeded to consider issue no. 9 as to whether the returned
candidate himself or on his behalf or with his consent, large number of ladies
were recruited as fresh Anganwadi Workers for a specific period by the Department
of Social Security women and Child Development in order to induce the voters in
his constituency to vote for him and thus committed a corrupt practice under
the Act.
16.
The
learned single Judge of the High Court who tried the Election petition therefore
scrutinized the oral evidence led by the contesting parties as also the documents
produced and on its scrutiny in the light of the submissions advanced by the
contesting parties, recorded a finding that the returned candidate/the appellant
Gobind Singh had used the tool of payment of pension to bribe the voters. The
learned Judge went on to record that the election petitioner had succeeded in
establishing that the returned candidate had committed corrupt practice within
the meaning of Section 79 (2) of the Act by inducing the voters to vote for him
in consideration of payment of cash named as pension on 10.2.2002,11.2.2002 and
12.2.2002 when the polls were to be held on 13.2.2002. The learned Judge
further found considerable merit in the submission of the election petitioner-the
respondent herein to the effect that the case concerning corrupt practices had
been sufficiently pleaded in the Election petition at paras 17 to 21,24, 26 and
30. The learned Judge further proceeded to observe that the affidavit in the
prescribed form in support of the allegations of corrupt practice and the particulars
thereof which was required to be attached with the petition, had also been
done. The learned single Judge was therefore of the view that the broad and
basic features of the case of the election petition stands established and the corrupt
practice committed by the returned candidate is fully covered by Section 123
(1) (A) of the Act. The money in the name of pension was presented as a gift to
the voters directly for inducing the voters to vote in favour of the returned candidate
which would be clearly covered by the aforementioned provision of theAct.
17.
The
High Court was further pleased to observe that the resignation of the appellant
from the Cabinet or from the primary membership of the Shiromani AkaliDal had
no connection with the distribution of cash in the name of pension on10.2.2002,
11.2.2002 and 12.2.2002 when voting was to take place on 13.2.2002.Hence, the
election of the returned candidate to 82-Sherpur (SC) Assembly Constituency to
which the appellant Gobind Singh had been declared elected was declared void
and consequently was set aside. It was, therefore, directed that the Election
Branch of the Registry with regard to the disqualification of there turned
candidate to contest any further election be communicated. The Election
petition thus was allowed with cost which was determined at Rs.50,000/-.
18.
The
returned candidate Shri Govind Singh-the appellant herein, obviously felt
aggrieved with the judgment and order of the High Court setting aside his election
and hence has preferred this appeal assailing the judgment and order of the
High court. However, we were informed that during pendency of this appeal the
appellant has already completed his term as a member of the Legislative Assembly
but this appeal could not be treated as infructuous since the appellant is
bound to suffer the consequence of disqualification on account of the setting aside
of his election on the alleged indulgence in corrupt practice in the previous election
which will affect his candidature to contest any election in future.
19.
19.
Assailing the judgment and order passed by the High Court, it was submitted at
the threshold by learned senior counsel for the appellant- Shri Hansaria, that
the allegation of the respondent herein, while challenging the election of the
appellant, relates to the acts attributed to the appellant as Minister prior to
filing his nomination on 23.1.2002 as in paragraphs 17, 18 and 19 the respondent
alleged that the appellant Shri Gobind Singh got released pension to various
persons by misusing his position as a Minister, Social Security Department. In
paragraph 20, it has been alleged that the appellant misused his power as
Social Security Minister and violated the procedure in sanctioning/releasing
the old age/widow/handicapped persons. In para 21 of the election petition, the
Respondent has further alleged that the appellant being the Cabinet Minister
holding the charge of Social Security Department misused his power and got
various women voters of his Constituency employed as anganwadi workers.
20.
20.
In order to demolish the case of the respondent, a sure shot argument advanced
by the counsel for the appellant was that none of the aforesaid allegations
even if assumed to be correct - although the same are disputed, would amount to
corrupt practice within the meaning of Section 123 (1) (A) of the Act asthose
acts related to the period when the appellant was holding the charge of the Social
Security Minister and the acts were in discharge of his official duties which was
perfectly legal and justified. In support of this submission, reliance was placed
by the learned counsel on the decision delivered in the matter of Mohan Rawale
v. Damodar Tatyaba @ Dadasaheb,1994 (2) SCC 392, wherein it was held that any
allegation made with reference to a period prior to nomination as a candidate,
does not amount to corrupt practice. It was submitted that in the instant case,
the appellant resigned as a Minister on 12.1.2002 and became a candidate for
the election only on 23.1.2002 when he filed his nomination for contesting the
election as an independent candidate. Hence, it was contended that any act
attributed to the appellant in his capacity as a Minister, even if assumed to
be correct, although the same are disputed, would not come within the ambit of
the allegation of indulgence in corrupt practice. It was further averred that
the sanction, approval or grant of pension by a Minister does not amount to bribery
under clause (1) of Section 123 of the Act as it is not a gift, offer or promise
of any gratification which is sine qua non for attracting the said provision. It
was still further submitted that the act of approval of appointment of some women
as anganwadi workers by a Minister is also not covered by the provision of
Section 123 of the Act as there is no evidence on record, either oral or documentary,
that the appellant appointed any anganwadi workers. The only material relied
upon by the respondent in this regard is Exhibit PW-1/46 to PW-1/70 which are
applications for appointment of anganwadi workers. In any event, all these 25
applications except 6 of them (Ext. PW-1/52,58,62,66,68and 69) are undated.
Even the 6 applications which bear date are from22.2.2001 (Ext. PW1/62) to
24.12.2001 (Ext.PW1/69), i.e. prior to the appellant becoming a candidate in
the election. In addition, only 2 of 25 applications (Ext.PW-1/50 and 70) bear
endorsement by the appellant and both of them are undated. There is also no
whisper in paragraphs 17 to 21 that the appellant distributed any amount in
cash by way of pension.
21.
While
challenging the finding recorded on corrupt practice, it was further elaborated
that the averments made at paragraph 24, 26 and 30 are vague and lack in
material facts with full particulars as section 83(1) (a) (b) of the Act mandates
that Election petition must contain material facts and if there are allegations
of corrupt practice, it must also contain full particulars. This is the mandatory
requirement of law and no election petition can be entertained without full
particulars of material facts. In order to substantiate this contention, it was
stated that in paragraph 24, 26 and 30 alleging that the appellant distributed money
in cash amongst voters, no particulars about the date, time and place where
money was allegedly distributed, nor the name of the people to whom it was
distributed have been mentioned. It was, therefore, contended that the averments
are vague, general and omnibus and hence the averments relating to allegation
of corrupt practice made in paragraph 24, 26 and 30 cannot be looked into and
are fit to be ignored. Reliance was placed by the learned counsel in support of
this submission, on the ratio of judgments delivered in the matter of Ram Sukh
Vs. Dinesh Aggarwal reported in 2009 (10) SCC 541, Anil Vasudev Salgaonkar Vs.
Naresh Kushali Shigaonkar reported in 2009 (9) SCC 310,Ananga Uday Singh Deo
Vs. Ranga Nath Mishra & Ors. Reported in 2002(1) SCC499 and Azhar Hussain
Vs. Rajiv Gandhi reported in 1986 (Supp) SCC 315. It was still further submitted
that material facts as well as material particulars have not been supplemented
by the respondent election petitioner in spite of specific objection taken by
the appellant in preliminary objections 1 and 2 and the respondent having
opportunity to supplement and amplify the material facts and particulars not
doing it could not have been allowed to adduce evidence beyond the pleadings as
the evidence which is led beyond the pleadings, is liable to beignored.
22.
22.
Objections have also been raised by the returned candidate-appellant herein by
placing reliance on Section 83 (1) (c) of the Act on the plea that this provision
requires that every petition shall be verified in the manner laid down in the
CPC and proviso thereof requires filing of an affidavit in the prescribed form
in support of the allegation of corrupt practice. Order VI Rule 15 (2) CPC
requires that the persons verifying shall specify, by reference to numbered
paragraphs of the pleading, what he verifies of his own knowledge and what he
verifies upon information and believed to be true. Rule 94A of the Conduct of
Election Rules,1961 provides that the affidavit in terms of proviso to Section
83 (1) shall be in Form 25. Form 25 requires the Election petition to
separately state which allegations of the corrupt practice are true to his
knowledge and which allegations are true to his information. On these averment,
it was submitted that the respondent in the present case has stated in the
verification of the Election petition, that the contents of paragraph 17, 18,
20, 21, 24 and 30 are true to his knowledge as well as information and contents
of paragraph 19 and 26 are true and correct being
reproduction/reference to the provisions from the Representation of
People Act/Constitution of India/Registration of Electors Rules,1960. It was,
therefore, submitted that such a verification is no verification in the eye of
law as the same facts cannot be both true to knowledge and also true to information.
It was further stated that paragraph 19 has not been verified at all as the
said paragraph does not contain any reproduction/reference of any provision of
law; whereas this paragraph contain specific averment regarding release of pension
by the appellant to ineligible persons.
23.
In
substance, it was contended that the issue of defective verification and affidavit
in the written statement in paragraph 4 and 5 are specific issues which were
framed by the High Court being issue No.3 and 4 as preliminary issues. Yet, the
High Court proceeded to record evidence without deciding the aforesaid preliminary
issues and recorded finding on merits. It was, therefore, sub mitted that
merely because the High Court has considered the case on merits, the same is no
ground to ignore defective pleading, verification and affidavit in the Election
petition so as to consider the evidence on merits. In support of this
submission, reliance was placed by learned counsel for the appellant on the
ratio of the decisions delivered in the matter of Ramakant Mayekar v. Celine
D'Silva, 1996 (1)SCC 399, Ananga Uday Singh Deo v. Ranga Nath Mishra, 2002 (1)
SCC 499,and M. Chinnasamy v. K.C. Palanisamy, 2004 (6) SCC 341.
24.
Learned
counsel finally submitted that in the present appeal, this Court is exercising
power under Section 116A of the Act, which is an appeal both on law and fact as
mentioned in the aforesaid section itself. Hence, the contention of the respondent
that this Court should be slow in interfering with the finding of fact arrived
at by the High Court is untenable. This Court, as the first appellate court is
entitled to re-assess and re-appreciate the entire pleading and evidence on its
own and come to an independent conclusion. In any event, the impugned judgment
of the High Court suffers from inherent legal infirmities and recorded perverse
findings and hence the judgment is liable to be set aside and the appeal is fit
to be allowed. Learned counsel therefore invited the attention of this Court to
the evidence of PWs 1, 2, 4, 5, 6 as also 9, 10, 11 and 12 relied upon heavily
by the Respondent and commented extensively on the value of the testimony of
oral evidence as well as documentary evidence.
25.
25.
Countering the submissions advanced on behalf of the appellant, learned counsel
for the respondent Ms. Kamini Jaiswal submitted that on a bare perusal of the
Election petition, it is apparent that the verification of the Election
petition was proper and the same was done on the proper format and in
compliance of the settled law on that issue. It specifically provided the paras
which were based on the knowledge and the paras which were based on the
information gathered from the various sources. The verification also provides
the exact source of the information which was mentioned in the appeal paper
book. It was stated that the election petition is in the appropriate format in
form 25 as per the Rule 94 A of the Conduct of Rule 1961. The format required
the affidavit to state distinctly as to which are the paragraphs of the
Petition based on the knowledge and which are the paragraphs based on the
information and the same has been done in the manner as required in the appeal
paper book. It was, therefore, urged that the Petition should be read in its
entirety and not in isolation which disclosed that the petitioner immediately
before the dates of 25.01.2002 and 11.02.2002 was the Cabinet Minister holding
the charge of Social Security and Development Department and had exercised his
influence over the officials to get amounts released to the residents of his
Constituency in the name of the pension for the old aged, handicaps etc. The
pension was not only released to the eligible pensioners but the ineligible
persons also who received money in the name of pension. The Petitioner although
had ceased to be a Minister and may not have had the official authority to
approve the grant of pension, he had enough clout as he held the charge as a
Minister for all these years and hence with a view to allure the voters, he
exercised his influence by recommending the applications of the residents of
his Constituency, during the period immediately before the election which
resulted in payment of money to as many as 27856 persons in the Sherpur
Constituency. PW-1 Smt. Paramjit Kaur- Child Development Officer, Dhuri admitted
that the petitioner during the period of January and February 2002,had signed
on the applications, approving them and this fact has not been contested in
cross-examination. Learned counsel asserted that PW-9, PW-10,PW-11 had
stated categorically that the public meetings were called and forms were filled
and the amount of Rs. 600 to 1200 were paid to various people in the name of
pension, during a public meeting. It was therefore submitted that the grounds
contended are not such that this Hon'ble Court in the exercise of its appellate
jurisdiction would set aside a well reasoned order of the High Court. The said
witnesses are truthful and would not come to make a false statement. The witnesses
are material and truthful which would be evident from the evidence ofPW-9,
PW-10, PW-11 and the learned counsel also critically analysed the evidence of
these witnesses in support of the contention that these witnesses who supported
the plea of the respondent in regard to her allegation of corrupt practice, are
reliable witnesses.
26.
Learned
counsel submitted that PW-9 Ram Singh who was a Tailor Masterde posed that in
the gathering held on 13.2.2002 and 11.2.2002, Rs. 600 or Rs.800 were paid and
Shri Kanjla also gave Rs. 1200 to some of them. In his cross-examination, he
has further accepted that the amount of Rs. 1200 was given as pension but he
did not ask anyone in his family to accept Rs. 1200 for casting votes. He has
further also deposed that it is wrong to suggest that pension was only for the
old age pension but it was also for the handicapped persons like him. This
witness further has stated in his cross-examination that after the election was
held, he told Bibi Harchand Kaur that he would be prepared to appear as a witness
that the votes were cast in consideration of money. He accepted that he was a
frequent visitor to the House of Bibi Harchand Kaur whom he knew since long.
She also knew all his family members for the last 5/6 years. He further accepted
the fact that he along with Bibi Harchand Kaur had come in the car for deposition
and the whole expenses of travel as well as eatables had been born by her. He
also denied suggestion that being an associate with the party of BibiHarchand
Karu and being related to her community, he was making a falsestatement.
27.
Learned
counsel for the respondent further placed reliance on PW-10Jaspal Singh son of
Sarwan Singh who deposed that Shri Gobind Singh Kanjlaa long with a group of
people with him came for the purposes of filling up pension forms. The pension forms
were filled up on 12.2.2002, although he had been coming to his village
earlier. The work of filing up the forms for pension was executed opposite to
State Bank of India, Sandhaur Branch at about 6.30 to 7.00p.m. The Minister was
calling the ladies and made the entries in the pension books from Rs. 200/- to
Rs. 600/-. This witness stated that payment used to be made in cash and he
claimed to identify this signatures of Shri Gobind Singh Kanjla. The signatures
of Exs. PW1/1 and PW1/3 in green ink were that of Shri Gobind Singh Kanjla and
signature on other documents also were of Shri Gobind Singh Kanjla.
28.
This
witness stated that he was a Sarpanch and had been performing the duties of
attesting applications for fee concession and admission forms. He also accepted
that the old age pension forms were attested by the Sarpanch, he also had been
attesting the old age forms. This witness deposed that Shri GobindSingh Kanjla
had directed him to attest certain forms and he denied that he was attesting
forms for money consideration. He deposed that Gobind Singh Kanjlahad been
forcing him to attest those forms. Although, he was not a Minister but still he
was acting like a Minister. But he did not report this matter to any quarter viz.
the Police, D.G., S.D.M. or anywhere else with regard to forcible signature
onpension forms at the instance of Shri Gobind Singh Kanjla but he reported the
matter to Harchand Kaur-the election petitioner. The report could not be
lodgedas he was physically beating the reporters. Nobody was coming forward to
report the matter against Shri Gobind Singh Kanjla. He also admitted that he
did not report the matter with regard to payment of certain amount of Rs. 200/-
to Rs.600/- to any quarter as it is a usual phenomena.
29.
Reliance
was also placed by the Respondent on the evidence of PW-11,Davinder Singh who
deposed that Mr. Gobind Singh Kanjla the appellant/returned candidate had
visited his village before the election. Firstly, he came on7.1.2002 and second
time on 10.2.2002 to attend the Bhog of Akhand PathSahib. The Bhog Ceremony was
kept by one Gurmail Singh, Zimindar. When he came on 7.1.2002, he had opened
the account of various persons and distributed the copies concerning pensions
like old age pension and handicap pension. On10.2.2002, when he came for the
second time, an announcement was made on the loudspeaker inviting the villagers
to come over and collect the pension and in the form of pension Rs. 500 each
was given to various persons. He denied having given back this amount but he
deposed that Shri Kanjhla was exhorting the voters to cast their votes in his
favour and the pension would be doubled from Rs. 500 to Rs. 1500. He denied the
suggestion that being a Congressman, he was deposing falsely in support of the
allegation that the amount of pension was distributed and no passbooks were
prepared.
30.
The
counsel for the Respondent submitted that all material facts and material
particulars were stated in the petition and what constitute material facts and
the material particulars depend on the facts of each case and no general rules
can be laid down. Learned counsel placing reliance in this regard on the
decision reported in Mahadeorao Sukaji Shivankar v. Ramaratan Bapu & Ors.,
2004 (7) SCC 181 submitted that if there are more than one allegations and the
material facts are sufficient with regards to one of such allegations, the
petition is maintainable and cannot be thrown out. Learned counsel also placed
reliance on the case of Subhash Desai Vs. Sharad J. Rao - AIR 1994 SC 2277 in
support of his submission. It was, therefore, contended that the findings
arrived at by the High Court are fit to be sustained and the appeal was fit to
be dismissed.
31.
In
order to test the relative strength and weaknesses of the plea of the contesting
parties, while considering an election appeal which is directed against a
judgment and order by which the election of a returned candidate has been set aside
on the allegation of corrupt practice, it would be worthwhile to recollect at this
stage that although the High Court has the jurisdiction and competence to declare
the election of a returned candidate to be void on the allegation of corrupt practice,
it is well settled by now in view of the ratio laid down in a catena of decisions
of the Supreme Court that the mandate of the people in a democracy as expressed
by the result of the election must prevail and be respected by the Courts and,
therefore, heavy onus lies on the election petitioner seeking the setting aside
of the election of a successful candidate and therefore he has to make out a
clear case for such relief both in the pleading and at the trial. The electoral
process in a democracy undoubtedly is too sacrosanct to be permitted or allowed
to be polluted by corrupt practice and if the Court arrives at a finding of commission
of corrupt practice by a returned candidate or his election agent or by any
other person with the consent of a returned candidate or his election agent, then
the election of the returned candidate shall be declared to be void since the underlying
principle is that the corrupt practice having been committed, the result of the
election does not echo the direct voice of the people. But, at the same time, it
cannot be overlooked as was observed by the Supreme Court in the case of R.P.
Moidutty Vs. P.T. Kunju Mohammad & Anr. reported in 2000 (1) SCC 481that
the consequences flowing from the proof of corrupt practice at the election are
serious and hence the onus of establishing commission of corrupt practice lies
heavily on the person who alleges the same. The onus of proof is not discharged
merely on preponderance of probabilities but the standard of proof required is
akin to that of proving a criminal or a quasi criminal charge. Hence clear cut
evidence, wholly credible and reliable is needed to prove beyond doubt the
charge of corrupt practice.
32.
The
aforesaid principle laid down by the Supreme Court in the aforesaid authority
has adequately been taken care of in the election petitions which are filed alleging
corrupt practice wherein utmost caution and care are applied while dealing with
the allegation of indulgence in corrupt practices at the instance of their turned
candidate, but in the process, mis0appreciation of evidence and hence error of
judgment in coming to a definite conclusion cannot be ruled out due to which
appeals are preferred against the judgment and order of the High Court delivered
in election petitions. The instant appeal also is one such appeal where the
election of the returned candidate has been set aside by the High Court vide impugned
judgment on the findings of corrupt practice which is under challenge and hence
we have carefully scrutinized the evidence led by the contesting parties and
critically considered the submissions of the counsel for the respective parties
in the light of the settled law laid down, before the election of a returned candidate
is allowed to be quashed and set aside.
33.
The
counsel for the appellant although has primarily challenged the judgment and
order of the High Court in order to assail the findings recorded on the charge
of corrupt practice, the counsel had also submitted that the respondent had
filed the Election petition without disclosing `material facts' with `full particulars'
which is envisaged under Section 83(1)(a)(b) of the Act which mandates that the
Election petition must contain material facts and it must also contain full
particulars. It was contended that this is the mandatory requirement of law and
no Election petition can be entertained without material facts with full particulars
in absence of which it is not fit to be entertained.
34.
In
our view, the submission of the counsel for the appellant to the effect that
the petition lacked material facts with material particulars, is clearly in the
nature of preliminary objection affecting maintainability of the Election
petition and hence we consider it appropriate to deal with this contention,
before we proceed further to examine the correctness of the pleas raised in
regard to challenge to the allegations of corrupt practice.
35.
On
the plea of lack of `material facts' with `material particulars', It was submitted
on behalf of the appellant that in paragraphs 24, 26 and 30 of the Election
petition, it has merely been stated that the appellant distributed money in cash
to the voters but no specific particulars about the date, time and place where money
was allegedly distributed, nor the name of the persons to whom it was distributed
have been mentioned. The counsel, therefore, had contended that the averments
of the election petitioner are vague, general and omnibus and thus cannot be
looked into and were fit to be ignored. Developing his arguments further on
this plea, it was submitted that material facts as well as material particulars
had not been supplemented by the respondent - election petitioner in spite of
specific objection taken by the appellant in his preliminary objections bearing
numbers 1 and 2. The respondent although had opportunity to supplement and
amplify the material facts and particulars, he failed to do the same and hence
the averments of the respondent-election petitioner should not have been
allowed to lead evidence beyond pleadings as the evidence which is led beyond
pleadings, is liable to be ignored. To reinforce this submission, the counsel
for the appellant relied upon several pronouncements of this Court which include
the matter of Ram Sukh v. Dinesh Aggarwal reported in 2009 (10) SCC541, Anil
Vasudev Salgaonkar v. Naresh Kushali Shigaonkar reported in 2009 (9)SCC 310,
Ananga Uday Singh Deo v. Ranga Nath Mishra & Ors. reported in2002(1) SCC
499 and Azhar Hussain v. Rajiv Gandhi reported in 1986 (Supp)SCC 315.
36.
The
counsel for the respondent Ms. Jaiswal however countered the aforesaid
submission and submitted that the plea of the appellant regarding the lack of
`material particulars' and `material facts' is not sustainable and on this count,
it was submitted that the election petition should be read in its entirety and not
in isolation since the petition in question in fact categorically stated that
the appellant candidate immediately before the date of filing nomination on
25.1.2002 and prior to resigning from the portfolio of Minister holding the
charge of Social Security Department had exercised his influence over the
officials to get amounts released in his constituency in the name of pension
for the old age widow and handicapped people and the averments to that effect
have specifically been pointed out in para 17 of the Election petition. In the
alternative, the counsel for the respondent submitted that even if the Election
petition lacked extensive details regarding `material particulars', the same
was not enough to reject a petition and in support of this submission, the
counsel for the respondent on her part also relied upon several authorities of
the Supreme Court which are Ram Sharan Yadav v. Thakur Muneshwar Nath Singh,
1984 (4) SCC at page 649, Mohan Rawale v. Damodar Tatyaba @ Dadasaheb, 1994 (2)
SCC atpage 393, Mahadeorao Sukaji Shivankar v. Ramaratan Bapu & Ors., 2004
(7)SCC at page 181, Regu Mahesh v. Rajendra Pratap Bhanj Dev, AIR 2004 SC at page
42 and 43 and Ram Sukh v. Dinesh Aggarwal, 2009 (10) SCC at page 548and 549.
37.
37.
Dealing with this preliminary question as to whether the election petition filed
by the respondent was fit to be dismissed on the ground of the lack of` material
facts' with `material particulars', we are fully conscious of the well-settled legal
position to the effect that if the election petition fails to disclose any cause
of action and there is non-compliance of the mandatory requirements of Section
83of the Representation of People Act 1951 which requires that the election
petition should contain material facts on which the petitioner relies, it
should set forth full particulars of any corrupt practice including full
statement of the names of the parties which is alleged to have been committed
along with the specific date and place of the commission of such corrupt
practice. But it would also be equally appropriate to bear in mind that
although the expression `material facts' has neither been defined in the Act of
1951 nor in the Code of Civil Procedure, it has been understood by the courts
in general terms to mean the entire bundle of facts which would constitute a
complete cause of action. Their Lordships of the Supreme Court in 2009 (10) SCC
at page 548 have observed thus: "`material facts' are facts upon which
the plaintiff's cause of action or the defendant's defence depends. Broadly
speaking, all primary or basic facts which are necessary either to prove the
cause of action by the plaintiff or defence by the defendant are `material facts'.
Material facts are facts which, if established, would give the petitioner the
relief prayed for. But again what could be said to be material facts would depend
upon the facts of each case and no rule of universal application can be laid
down". This authority has also taken note of the ratio of the decision in
the case of Samant N. Balkrishna v. George Fernandez wherein the three Judge
Bench headed by the then Chief Justice M. Hidayatullah laid down five criteria
which are mandatory under Section 83 of the Act for determination as to whether
the Election petition discloses that it does not lack in material facts and
particulars. It was laid down therein that it is mandatory to first of all
record a concise statement of material facts and then the fullest possible
particular. Any omission of even a single material fact leads to an incomplete
cause of action and statement of claim would be treated as bad. The function of
particulars is to present in full, a picture 28 of the cause of action and to
make the opposite party understand the case he will have to meet. The learned
Judges further held therein that the `material facts' and` material
particulars' are distinct matters and while the material facts will mention statements
of fact, the particulars will set out the names of persons with date, time and
place while stating the material facts as it will not be sufficient merely to
quote the words of the section since the efficacy of the material facts in that
event would be lost.
38.
While
dealing with the question of material facts and material particulars, we also
considered it appropriate to take into account the ratio of the decision delivered
in the case of Mahadeorao Sukaji Shivankar Vs. Ramaratan Bapu andOrs. reported in
2004 (7) SCC 181 wherein the three Judge Bench of this Court had been pleased
to consider the question as to what would constitute material facts and
material particulars and also discussed its concept and the distinction between
the two. In this authority too, it was emphasized and held that what particulars
would amount to `material facts' would depend upon the facts of each case and
no rule of universal application can be laid down. It was also held that material
particulars, on the other hand, are details in support of material facts and the
expression material facts although have not been defined in the Act nor in CPC,
it will have to be inferred that material facts are those facts upon which the party
relies for his claim or defence. In other words, material facts are facts upon which
the plaintiff's cause of action or the defendant's defence depend. But what particulars
ultimately will be said to be `material facts' would depend upon the facts of
each case and no rule of universal application can be laid down. 29 Particulars,
on the other hand, are details in support of material facts pleaded by the
party. This amplify, refine and embellish material facts by giving finishing touch
to the basic contours of a picture already drawn so as to make it full, more clear
and more informative. Thus, material particulars ensure conduct of fair trial which
would not take the opposite party by surprise.
39.
The
ratio that can be deduced from the aforesaid three authorities of the Supreme
Court has further been reiterated in the case of Samant N. Balkrishna v.George
Fernandez and latter on in Mahadeorao Sukaji Shivankar v. Ramaratan Bapu &
Ors., 2004 (7) SCC 181 as also in Ram Sukh (supra) wherein it has been once
again held that although, it is the legal requirement under Section 83 of the Act
of 1951 to clearly set out material facts and material particulars in the
election petition, ultimately it has been unequivocally held that there can be
no rule of universal application which can be laid down as to what would
constitute `material facts' and `material particulars' and ultimately it is the
facts of each case which will be relevant for determination as to whether the
election petition was fit to be rejected on the plea of lack of material facts and
material particulars or it was fit to be entertained if the same disclosed a
cause of action for consideration by the Court.
40.
We
have, therefore, carefully considered the correctness of the assertion of the
counsel for the appellant whether the election petition in the case at hand was
fit to be rejected for want of material facts and material particulars and we
have noticed that the respondent has categorically stated the date, time and
place of 30 occurrence of the alleged corrupt practice at the instance of the
appellant and has also given out the names of the witnesses who were to support
the election petition filed by the respondent. But what exactly would be the
worth of the evidence of witnesses relied upon by the counsel was a matter to
be considered at the appropriate stage during trial, but to contend that the
election petition lacked in material facts and material particulars due to
which the election petition filed by the respondent was fit to be rejected on
the ground of lack of material facts and material particulars, would not be
legally correct and justified. In fact we have noticed that the High Court in
the impugned judgment and order has not even addressed this issue as to whether
the petition was fit to be rejected on this ground or not, but the counsel for
the appellant seems to have acquiesced with the same. However, since the
counsel for the parties have addressed this Court on this issue which is
clearly in the nature of a preliminary objection, we considered it just &
appropriate to deal with this issue but for the reasons stated herein before,
we do not accept the contention of the counsel for the appellant that the
Election petition was fit to be rejected for lack of material facts and
materialparticulars.
41.
41.
The next question on which the entire edifice of the election petition rests,
which has been the core issue on which the counsel for the parties have addressed
this Court, is the question as to whether the appellant –returned candidate had
indulged in corrupt practice or not while contesting in the Assembly
Election of Sherpur Constituency. As already stated hereinbefore, learned
counsel had, first of all, submitted that the corrupt practice of bribery 31 defined
in Section 123 (1) will be attracted only if it had been committed by the candidate
after filing his nomination paper. It was submitted that the appellant had
resigned as Social Security Minister on January, 12 2002 and filed his nomination
subsequently on 23rd January, 2002. Hence, there could be no question of
misuse of power by him after he resigned from the post of Social Security
Minister as also the party and subsequently became a candidate for the election.
Consequently, the allegation of corrupt practice of bribery is not made out as
the alleged action relates to the period when he was no longer holding the charge
of Social Security Minister. The counsel further elaborated on this aspect and
submitted that the period of misuse of power alleged by the respondent herein
pertain to the period between January 23, 2002 to 9th, 10th and 11thFebruary,
2002 during which the petitioner was admittedly not a Minister. Hence, the
Petition has a fatal contradiction between the allegation and the time period
to which the allegation pertained as the petitioner had admittedly resigned as
a Minister on January 12, 2002. The counsel, therefore, submitted that the
alleged corrupt practice pertains to the period when the appellant herein was
the Minister which position he relinquished before becoming a candidate in the
election and hence, there could be no question of distribution of pension by
him during the election when he ceased to be a Minister. It was submitted that
in the present case none of the witnesses can be relied upon to come to a
conclusion that the appellant had committed corrupt practice as PW-9, Ram Singh
was summoned to prove that the appellant had delivered speeches at village
Ladda promoting feeling of enmity on the ground of religion, caste and community
and further to influence people not to vote for the party belonging to which
the respondent 32 belonged. It was submitted that this witness did not depose
for the purpose for which he was called to give evidence which was the issue of
illegal distribution of pension by the appellant to his voters.
42.
42.
The counsel for the respondent, on the other hand, relied upon the evidence of
PWs - 9, 10 and 11 referred to hereinbefore and submitted that these witnesses
have stated categorically that the public meetings were called and forms were
filled and the amount of Rs. 600 to Rs. 1200 were paid to various people in the
name of pension during a public meeting. The counsel for the respondent,
therefore, urged that these three witnesses ought to be relied upon in support
of the plea that the appellant had misused his official position and got the pension
distributed which was clearly with a motive to influence the voters in his favour.
The counsel has taken us to the evidence of PW-9, Ram Singh and cross-examination
of PW-10, Jaspal Singh who was a Sarpanch of village Ibrahimpur from 1992 to
2003 and had failed in the Assembly Election of 2002which was held on
13.2.2002, as also in his cross-examination. The counsel further has taken us
through the evidence of PW-11, Davinder Singh who was a voter in village
Gathala which falls in Sherpur Constituency.
43.
43.
On a careful analysis of the case and counter case of the returned candidate
that is the appellant herein and the defeated candidate – respondent herein, it
is patently clear that the allegation of corrupt practice in regard to distribution
of pension can be divided into two parts - the first part relates to the
distribution of pension which pertains to the period prior to 12.1.2002 and the
33 second part pertains to three dates which is 10/11/12.2.2002 when the
appellant was a candidate for the election but was no longer a Minister so as
to distribute old age widow/handicapped persons. In factual aspects of the
matter this clearly indicate that even if the plea of the respondent - election
petitioner with regard to the allegation of distribution of pension amounting
to corrupt practice which pertained prior to the period of January 12, 2002 is
taken into consideration, the same cannot by any legal yardstick or even
ordinary prudence would constitute indulgence in corrupt practice by the
appellant as he was duly holding the portfolio of Social Security as Minister
who had the legal authority to approve distribution of pension as part of his
official duty. It is not difficult to infer that the distribution of pension to
the eligible persons in the constituency or even outside the constituency was
part of the discharge of official duty as Minister and it is nobody's case that
this distribution did not lie within the legal domain of the Minister who could
order distribution of pension to the eligible persons in the are a who were
either old, handicapped or widow. Therefore, distribution of pension to old
age/widow/handicapped persons which was ordered or approved ensuring its distribution
could not possibly be inferred as an action which could amount to indulgence in
corrupt practice. We, therefore, find sufficient reason and force in the plea
of the counsel for the appellant to the effect that the corrupt practice of bribery
as defined in Section 123(1) would be attracted only if such act had been committed
by a candidate after filing of his nomination paper and the ratio of the judgment
relied upon by the counsel for the appellant in the case clearly adds weight to
his submission.
44.
We,
thus, do not agree with the High Court that although the appellant had resigned
as Social Security Minister on January 12, 2002, the same would not have any
bearing on his defence that he had not indulged in corrupt practice, at least
in so far as distribution of pension from to 12th January, 2002 is concerned and
the same would clearly be in favour of the appellant as any distribution of pension
that was made prior to the filing his nomination on 23rd January, 2002whether
in the capacity as a Minister or otherwise, would clearly not amount to indulgence
in corrupt practice. In the decision relied upon by the counsel for the appellant
delivered in the case of Mohan Rawale v. Damodar Tatyaba @ Dadasaheb - 1994 (2)
SCC 392 also, it was held that the expression `candidate' in Section 79(b) of
the Act completely excludes the acts by a candidate up to the date he is
nominated as a candidate. Therefore, the allegations relating to the period
anterior to the commencement of the candidature cannot be relied upon to establish
corrupt practice proprio vigore.
45.
Reliance
was also placed by the counsel in the matter reported in Kona Prabhakara Rao v.
M. Seshagiri Rao -1982 (1) SCC 442 wherein it was contended that any act
attributed to the appellant in his capacity as a Minister, even if assumed to
be correct although the same are disputed, would not come within the ambit of
corrupt practice as sanction, approval or grant of pension by aMinister during
his tenure as a Minister cannot amount to bribery under clause (1)of Section
123 of the Act as it is not a gift, offer or promise of any gratification which
is a sine qua non for attracting the said provision. Sanction and approval for
grant of pension as a Social Security Minister clearly would be within the
ambit of 35 the authority of the Minister to get it distributed as not
distributing pension whiledischarging the functions of a Minister would on the
contrary amount to non-performance on the part of the Minister in the State
which could also include his constituency and to hold that even though the
Minister had the authority to sanction and approve old age/widow/handicapped
pension the same was done inorder to lure the persons of his constituency so as
to vote for him in any future election which he might contest and the same
would amount to offer or promise of any gratification, would be wholly
unrealistic and a far fetched allegation. In fact it has not even been
contended and rightly so, that the appellant herein who wasthen a Minister, had
no authority to sanction and approve the distribution of pension although he
was a Minister. What has been contended, is that the same had been done with an
oblique motive to influence the voters of his constituency so that they would
vote for him in the ensuing election. This allegation would be difficult to
accept and hold it as proved as the candidature of the appellant had not even
been announced in the year 2001 although it could be perceived as a mere possibility
that he might contest in future election. In any case, it was difficult to anticipate
from which constituency he would be contesting and whether he would be
contesting under the banner of any party or would be contesting as an independent
candidate. Hence, it is not difficult to hold that the allegation of corrupt
practice on the ground that he had distributed pension in his constituency although
he was holding the portfolio of a Social Security Minister upto 12th January,
2002 is illogical, bereft of reasoning and hence illegal.
46.
As
already recorded hereinbefore, this Court in a series of decisions out of which
two have been referred to hereinbefore, have taken the view that any act performed
by a candidate prior to his becoming a candidate would not amount to indulgence
in corrupt practice. However, we do not wish to be understood so as to endorse
that even if any illegal act has been done by a candidate prior to his filing
of nomination which is not within the legal discharge of duty, would not amount
to corrupt practice so as to protect himself from the charge of corrupt practice.
But where the appellant in discharge of his official duty distributed, sanctioned,
approved or permitted the grant of old age/widow/handicapped pension prior to
the filing of his nomination which was 23rd January, 2002 in the case at hand,
it cannot be construed as indulgence in corrupt practice and hence, we find
sufficient force in the contention of the counsel for the appellant on this count
to the effect that he cannot be held to have committed corrupt practice if he had
distributed pension amount even in his constituency upto 12th January,
2002which was clearly within his legal and official domain as he was not a
candidate in the election.
47.
However,
the respondent - election petitioner has also alleged that even after filing
his nomination on 23rd January, 2002 and immediately before the dateof polling
on 13.2.2002, the appellant had gone to his constituency and in brazen defiance
of the Code of Conduct of Election, distributed pension through his agent on
10/11/12.2.2002 and this part of the allegation which may be treated as second
part of the allegation obviously would have a serious bearing on the allegation
of corrupt practice against the appellant in case it is held to be proved, 37 since
the distribution of money under the garb of pension immediately prior to the date
of polling, will have to be treated clearly and unambiguously as corrupt practice
within the meaning of Section 123 of the Act of 1951. But we have to bear in
mind that this serious allegation will have to pass through the litmus test in
the light of the evidence of the witnesses led by the respondent in support of
his allegation so as to arrive at a conclusive finding whether the witnesses
are fit to be relied upon in order to uphold the allegation of corrupt
practice.
48.
48.
At this stage, it would be worthwhile to recollect the well-settled legal position
that a charge of corrupt practice is in the nature of a quasi-criminal charge,
as its consequence is not only to render the election of the returned candidate
void but in some cases (as in the instant one) might incur disqualification
from contesting even the next election. The evidence led in support of the
corrupt practice must therefore, not only be cogent and definite but if the
Election petition has to succeed, it must establish definitely and to the
satisfaction of the court, the charge of corrupt practice which the defeated
candidate leveled against the returned candidate. The onus lies heavily on the
election petitioner to establish the charge of corrupt practice and in case of
doubt the benefit goes to the returned candidate. It is well acknowledged
that in the case of an election petition, based on allegations of commission of
corrupt practice, the standard proof generally speaking is that of a criminal
trial, which requires strict proof of the charge beyond reasonable doubt and
the burden of 38 proof is on the candidate who alleges corrupt practice and
that burden does not shift. This was the view expressed by their Lordships in
the case of Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe reported in 1995
(5) SCC 360 wherein their Lordships had placed reliance also on the case of
Nihal Singh v. Rao Birendra Singh & Anr. - 1970 (3) SCC 239, Om Prabha Jain
v. Charan Das -1975 (4) SCC 849, Daulat Ram Chauhan v. Anand Sharma - 1984 (2)
SCC 64and Quamarul Islam v. S.K. Kanta -1994 Supp (3) SCC 5 wherein the same
vie whad been taken. However, the Courts have been cautioned to hold that even though
the burden is on the petitioner to prove the charge of corrupt practice, it should
not be understood to mean or imply that the returned candidate is absolved from
his liability to bring forth the evidence on the record to revert the case of
the petitioner and particularly prove such facts which are within the especial
knowledge of the elected candidate.
49.
It
was further held in the case of Surinder Singh v. Hardial Singh- 1985 (1)SCC
pg. 91 & 97 : AIR 1985 SC 89 that the charges of corrupt practice are to be
equated with criminal charges and proof thereof would not be preponderance of probabilities,
as in civil action, but proof beyond reasonable doubt and if after balancing
the evidence adduced, there still remains little doubt in proving the charge,
its benefit must go to the returned candidate. Various tests have been laid down
by the High Courts and by the Supreme Court to determine the burden of proof
required to establish a corrupt practice. The most well accepted test however
is that the charge must be established fully to the satisfaction of the Court.
But while insisting upon the standard of strict proof beyond a reasonable doubt,
the courts are not required to extend or stretch the doctrine to such an extreme
extent as to make it well nigh impossible to prove any allegation of corrupt
practice as was observed in the case of S. Harcharan Singh v. S. Sajjan Singh -
1985 (1) SCC 370 : AIR 1985 SC 236 wherein it was held that such approach would
defeat and frustrate the very laudable and sacrosanct object of the Act for
maintaining purity of the electoral process.
50.
50.
Bearing the aforesaid principle and the aforesaid legal proposition of law in
mind, we have examined the evidence led by the election petitioner/the respondent
herein as to whether the allegation of distribution of pension
on10/11/12.2.2002 which was immediately prior to the date of polling has been
held to be proved or not. As already noted, the respondent in this context has
relied upon PW-9, PW-10 and PW-11 which has been extensively related
hereinbefore.
51.
51.
However, when we scrutinized the evidence of PW-9, we have noticed thatPW-9 has
not stated as to what are the entries that are made and who are the persons for
whom the entries have been made. This witness in his cross-examination has
merely stated that he disclosed to the respondent about payment of Rs. 1200
after about a month of the incident and he was paid amount to Rs.1200 but there
is no evidence on record that PW-9 is a pension holder or is entitled to grant
of pension. No document has been produced to show that he is entitled to
pension as per Government policy or any pension was ever sanctioned to him.
Thus, there is no corroboration to the evidence of PW-9 to allege payment of
Rs. 1200. PW-9 has also stated in his cross- examination that he came to the 40
High Court to give evidence with the respondent in her car and the whole expenses
of travel as well as eatables were borne by her. It, therefore, cannot be ruled
out that PW-9 is a highly interested witness belonging to the village of election
petitioner who had been brought before the Court in the car of the election
petitioner.
52.
The
evidence by PW-10 Jaspal Singh is also not free from blemish. When the first
list of witness filed by the respondent Jaspal Singh was summoned to prove that
the appellant distributed cash at various places for getting votes, the name of
Jaspal Singh had been deleted in the revised list of witnesses and in any event,
there were no details as to the date and place of alleged distribution of cash
regarding which this witness was to depose. On perusal of the deposition of
this witness, it is evident that he has not stated the name of any person to whom
cash was allegedly paid as was claimed by him. No pension book entry made by
the appellant had been produced on record and the pension book which was
produced on record bearing Exhibit PW-4/1, PW-4/84 does not have any entry made
by the appellant. This witness has also not stated that the appellant has made
any entry in the aforesaid book produced on record and no other pension book
except aforesaid are on record. The witness also appears to be highly
interested as he admitted that he belongs to the party to which the respondent
belongs.
53.
PW-11
had stated in his evidence that the appellant came to his village on7.1.2002
and opened accounts of various persons and distributed copies of 41 passbook
concerning pensions. It was submitted that opening of accounts and or
distribution of paper is not a corrupt practice even if such evidence is
believed it pertains to the period when the appellant was functioning as
Minister and hence was legally authorized to approve of the sanction. PW-11 has
further deposed that on 10.2.2002 appellant came to his village for the second
time and invited the villagers to come over and collect the pension in the form
of Rs. 500 each. But the names of persons by whom the alleged amount of Rs.
500 was given have not been mentioned. This witness has not stated that any
amount was given to him. It was, therefore, submitted that no reliance ought
to have been placed on this vague statement by this witness that cash was given
to person in the absence of identity of those persons. This witness also
appears to be highly interested witness as he has admitted that his wife was
given ticket for Panchayat Samiti election by the party to which the respondent
belongs. It was, therefore, submitted by the counsel for the appellant that
reliance ought not to have been placed on the evidence of PW-9, PW-10 and PW-11
for recording of finding of corrupt practice of testimony of these witnesses.
It was also pointed out that PW-12 the respondent herself has not given any
evidence and her evidence is only hearsay. Therefore, her evidence is of no
worth or value so as to prove the charge of corrupt practice.
54.
In
so far as the documentary evidence relied upon by the High Court is concerned,
it was submitted that Exhibit PW 1/1 to PW 1/45 are the applications for grant
of pensions. It was stated that these applications pertain to the period
of28.2.2001 to 4.12.2001 when the appellant was a Minister and the appellant 42
became a candidate for the election on 23.1.2002 when he filed his nomination paper
and thus any action taken by him prior to this date cannot amount to corrupt
practice within the meaning of Section 123 of the Act. Furthermore, these applications
also bear the endorsements of (a) Village Sarpanch (b) Halka Lambardar, (c)
village Patwar, (d) Block Development Project Officer, (e) Clerk in the office
of the Sub Divisional Magistrate, and (f) Sub Divisional Magistrate, who are
the sanctioning authorities. It was, therefore, submitted that these exhibit sought
not to have been relied upon to conclude that the appellant had committed corrupt
practice.
55.
From
the aforesaid critical analysis made by the counsel for the contesting parties
on the evidentiary value of the witnesses for proving and disproving the alleged
charge of corrupt practice, it is evident that in so far as the alleged distribution
of cash on 10/11/12.2.2002 is concerned, the oral evidence of PW-9,PW-10 and
PW-11 alone are on record but the documentary evidence which has been placed by
the respondent has absolutely no connection and link in regard to distribution
of pension on 10/11/12.2.2002 and it is not difficult to notice the reason for
non-production of these documents as admittedly, the appellant had ceased to be
a Minister on that date. Hence, if any endorsement of the distribution of
pension even if it were made for 10/11/12.2.2002, the same cannot be attributed
to the appellant in order to prove the charge of corrupt practice alleging
distribution of cash to the voters. Thus, the allegation of the distribution of
cash on 10/11/12.2.2002 rests only on the oral testimony of PW-9, PW-10
andPW-11 as even the defeated candidate Smt. Harchand Kaur PW-12 has not been 43
able to state anything which would prove the charge of distribution of cash on these
three dates prior to the date of election.
56.
But
having analyzed the oral evidence relied upon by the High Court, we have
noticed that the High Court has placed heavy reliance on the evidence ofPWs-9,
10 and 11 but has failed to take into account the evidence of PW-1-Smt.Paramjit
Kaur, Child Development Project Officer, Dhuri, PW-2-Shri DevinderKumar,
Superintendent Social Security in the office of District Programme
Office,Sangrur, PW-4 - N.K. Kapur , Assistant Manager, State Bank of Patiala,
GhanauriKalan, PW-5 - Shri Satish Kapur son of Shri Sohan Lal Kapu, District
Social Security Officer, Sangrur and PW-6 -Jagmail Singh, C.D.P.O. Block
Malrerkotla-IIand PW-7 - Pritpal Singh, C.P.D.O. Block Sherpur. These witnesses
have deposed which unambiguously are in the nature of rebuttal of the evidence
ofPW-9, PW-10 and PW-11 who have been relied upon by the High Court yet
theevidence of PW-1, PW-2, PW-4 and PW-6 have been brushed aside althoughthey
were competent authorities for distribution of pension and hence independent
witnesses who were more trustworthy in comparison to the four witnesses i.e.
PW-9, PW-10 and PW-11 who are clearly interested witnesses asthey themselves
have admitted their link to the Respondent Smt. Kaur.
57.
On
scrutiny of the evidence of PW-1 Smt. Paramjit Kaur who was the Child Development
Project Officer, Dhuri and had produced the record of old age pension of voters
of Sherpur Constituency in respect of 12 villages indicate that it pertained to
January/February, 2002 and had been exhibited as PW-1/1 to PW- 44 1/4. This
witness has deposed that old age pension is given to the males of 65years and
females of 60 years. The application in this regard had to be submitted to the
Child Development Project Officer for grant of pension which was to be forwarded
to the Sub-Divisional Magistrate who was the sanctioning authority. The pension
letters were issued after the sanction was accorded by the Sub-Divisional
Magistrate. The attention of this witness was drawn to the words(Parwan)
written in the Punjabi script which in English means approved and underneath
the words `Parwan', the signatures were alleged to be of the appellant herein
Govind Singh. This signature was alleged to have appeared in all the applications
Exhibits PW-1/1 to PW-1/45 but this PW1-Child Development Project Officer
deposed that a Minister is not directly involved in sanctioning the old age pension
and if an applicant is not eligible and does not fulfill the requirement of getting
pension, then even on the asking of the Minister such a person cannot be granted
pension. She has further admitted familiarity with the returned candidate as
she had been meeting the appellant as a Minister in the official meetings. Thus,
this witness can clearly be treated as an independent witness who has not supported
the case of the respondent in regard to distribution of pension at the hands of
the appellant.
58.
Similarly
PW-2 Shri Devinder Kumar, Superintendent Social Security in the office of
District Programme Office, Sangrur has conceded in the cross-examination that
approval letters were in respect of the whole District of Sangrurand not of
Sherpur Constituency alone and the orders did not have the signatures of the
returned candidate.
59.
PW-4
Shri N.K. Kapur, Assistant Manager, State Bank of Patiala, who was posted at
Ghanauri Kalan Branch of the Bank had produced on record the original ledger
and photocopies of samples from the original ledger in respect of 84persons
belonging to village Ghanauri Kalan and Ghanauri Khurd. These documents were
exhibited as Exs. PW-4/1 to PW-4/84. This witness stated that no other amount
could be credited in these accounts except the pension received by the person
concerned from the Social Security Department. In his cross-examination, this
witness stated that those accounts were opened on 7.9.2001,6.8.2001 and on some
other dates. But this witness has further deposed that he was not in a position
to state whether any deposit had been made in these accounts in the year 2002
and in one of the accounts no transaction has been recorded showing any credit.
In another account opened on 25.2.2002 he denied the opening of account by him
or the procedure for releasing the pension or personal knowledge about the
identity of any of the 84 persons.
60.
PW-5
Shri Satish Kapur son of Shri Sohan Lal Kapur, District Social Security
Officer, Sangrur stated that pension was released from November 2001to March
2002 and the payments have been made from August, 2001 to February, 2002. He
had produced copies of compilation made from originals as well as the original
themselves. He showed his inability to explain as to who had sanctioned the
pension by stating that he was not posted at Sangrur. The compilation placed on
record had been duly certified by the District Social Welfare Officer, Sangrur.
61.
61.
PW-6 Jagmail Singh, C.D.P.O. Block Malrekotla-II, had produced
92applications in respect of pension out of which 86 belong to old age pension,
5 of handicapped and only 1 belonged to widow category. These applications were
submitted before July, 2001 which was admitted by this witness himself.
Similaris the position with regard to the pension record pertaining to the year
2001 which had been produced by PW-7 Pritpal Singh, C.P.D.O. Block Sherpur.
62.
62.
All the aforesaid witnesses namely PWs 1, 4, 5, 6 and 7 therefore who can clearly
be treated as non-partisan witnesses and were competent to depose as to how the
pension applications were sanctioned have not supported the case of the respondent
that any illegality had been committed by the appellant while distributing
pension which started from the year 2001 and continued up to March2002. In
spite of this, the High Court has not given any weight age to the depositions
of these witnesses but has chosen to rely only on the evidence of PW-9 Ram
Singh, PW-10 Jaspal Singh, PW-11 Devinder Singh and PW-12Harchand Kaur who can
clearly be treated as interested witnesses. The depositions of these witnesses
clearly stand contradicted by the evidence of PW-1-Child Development Project
Officer, Dhuri who had deposed and stated the procedure and the manner in which
the application for grant of pension had to be approved. As indicated
hereinabove, she has stated that the application had to be submitted to the
Child Development Project Officer for grant of pension and the same was
forwarded to the Sub-Divisional Magistrate who is the sanctioning authority and
after sanction was accorded by the Sub-Divisional Magistrate, the pensions are
issued. It is difficult to appreciate as to how the statement of this witness
can be treated less trustworthy than PW-10 Jaspal Singh who was the Sarpanch
and claims to have identified the signature of the appellant herein when the
competent authority PW-1- Child Development Project Officer could not recognize
the signature of the appellant. PW-1-Child Development Project Officer, Dhuri
in comparison to PW-10 was more competent who is a sarpanch and cannot be
treated to be the competent authority to sanction the application for grant of
pension who could be relied by the High Court when the competent authority
Child Development Project Officer has not supported the evidence of PW-10. The
sarpanch PW-10 Jaspal Singh as per his own version was a supporter of the party
to which the respondent belong and hence the credibility of this witness cannot
be more weighty than the credibility of PW-1 –Child Development Project Officer
who was competent to approve the application after which it was forwarded to
the Sub-Divisional Magistrate for grant of pension. The value of the evidence
of PW-10 definitely, therefore, cannot be treated to be more weighty and worthy
of credence than the evidence of PW-1.
63.
63.
PW-11 Devinder Singh although has supported the case of defeated candidate Smt.
Kaur in regard to grant of old age and handicapped pension but the also has
conceded that the election petitioner i.e. the defeated candidate Smt.Kaur /
respondent herein had helped his wife during the election and she secured ticket
for his wife. Thus this witness has also clearly admitted personal allegiance to
the respondent herein and hence his evidence cannot be treated to be more trust
worthy than the evidence of the officers who were PW-1, PW-2, PW-4, PW-5 48 and
PW-6 who have not supported the case of the respondent and Smt. Kaur herself
has not been able to depose anything which could improve her case in any
manner. Thus, while comparing the evidence of PW-9, PW-10, PW-11 andPW-12
relied upon by the respondent Smt. Kaur with the evidence of PW-1, PW-2, PW-4,
PW-5 and PW-6, it is not possible to attach more weight to the witnesses relied
upon by the respondent herein as we cannot overlook the well-settled position
that the behaviour, character and demeanor of the witnesses who had been
examined at the stage of trial has to be taken into account and is of prime
consideration. In view of this position, the evidence of PW-1, PW-2, PW-4,PW-5
and PW-6 is clearly more reliable than PW-9, PW-10 and PW-11.
64.
In
so far as the allegation of appointment of some ladies as Anganwadi workers is
concerned, PW-1-Child Development Project Officer, Dhuri who is Smt.Paramjit
Kaur had deposed that applications of various candidates who sought appointment
as Anganwadi workers which has been exhibited as Exs. 1/46 toPW-1/70 were given
appointments till 2002 and in her cross-examination she further stated that she
was not posted at Dhuri which covered the Constituency in question when these
appointments were made. She further deposed that a Selection Committee on the
basis of the instruction issued in the year 1988 was constituted. The Child
Development Project Officer as well as the Senior Medical Officer used to be
the members. The Anganwadi workers were required to be selected from the
village or at the most from the adjoining village. No MLA or Minister was the
member of the Selection Committee. She has given details of marks which had
been allocated in the interview. The witness was confronted with the
instructions dated 31.5.2000 to show the allocation of marks for various qualifications
and the document was taken on record as Exs. PW-1/71, she has candidly and
unequivocally accepted that all applicants were appointed before11.11.2001 and
no one was appointed thereafter and it may be reiterated here in that even if
the Anganwadi workers were appointed in the year 2001, the same cannot clearly
be held to be illegal as the appellant was admittedly a Social Security
Minister at the relevant time and therefore any appointment made during this
period cannot be alleged to be indulgence in corrupt practice in order to impress
the voters as these appointments were made in the year 2001 much before the
appellant became the candidate in the election. We, therefore, find substance
in the plea that the exhibits relied upon by the appellant alleging illegal appointment
of the Anganwadi workers do not strengthen the case of the respondent in any
manner. As already stated hereinbefore, we fail to comprehend as to how the
appellant could be held to be instrumental in appointing the applicants as
Anganwadi workers when he had ceased to be a Minister and had already declared
his candidature as an independent candidate as he had no legal authority to
appoint Anganwadi worker after he had resigned from the post of Minister on
12.1.2002 and had filed his nomination on 23.1.2002. The counsel for the
respondent also has not laid much emphasis on this plea and the arguments that
have been advanced by the counsel for the parties are primarily on the allegation
of corrupt practice regarding distribution of cash as pension amount while he
was a Minister and even after he had been declared as a candidate
65.
Thus,
we have noticed serious infirmities, inconsistencies in the evidence of the
three witnesses i.e. PW-9, PW-10 and PW-11 relied upon by the High Court in
support of the case of the respondent herein who could not be treated as independent
and trustworthy witnesses as against PW-1, PW-2, PW-4, PW-5 andPW-6 discussed
hereinbefore who were the competent authorities/officials to sanction pension
applications as also in regard to grant of appointment to Anganwadi workers in
the year 2001 when the appellant was a Social Security Minister and not a
candidate in the election so as to brush aside their evidence and prefer to
rely upon the evidence of PW-9, PW-10 and PW-11 which were extremely shaky,
subjective and fragile. Besides this, the High Court has clearly mixed up the alleged
charge of corrupt practice which pertains to the period prior to the filing of
nomination of the appellant which was on 25.1.2002 and had been pleased to set
aside the election of the appellant not after a careful and meticulous scrutiny
of the evidence but on an overall view that the appellant had indulged in
corrupt practice on the evidence primarily of three witnesses only whose
testimony were neither independent nor free from inconsistencies and at the
most were general in nature.
66.
66.
Thus, on a threadbare scrutiny of the evidence which we have carefully analyzed,
it is not difficult to notice that the election of the appellant could not have
been set aside only on the testimony of PW-9, PW-10, PW-11 who had failed to
stand the test of scrutiny to the extent that even though the appellant was alleged
to have indulged in corrupt practice, the same for the reasons assigned hereinbefore
do not lead to the irresistible conclusion that the appellant had indulged in
corrupt practice merely on account of the fact that he had distributed old age
pension or handicapped and widow pension to the voters of his constituency
although he was the Minister holding the portfolio of Social Security Minister
within whose domain lay the approval and distribution of pension which was in
clear discharge of official duty. The alleged case that this was done even after
he ceased to be a Minister and after he had filed his nomination for contesting
election, could not be proved with unimpeachable evidence since there was no
reason for the appellant to ensure compliance of formality of filling pension
forms for distribution of cash as he had ceased to be a Minister on those dates.
As the specific case of the respondent is that pension was distributed to influence
the voters, then any distribution made in the capacity as a Minister could not
be legally faulted as long as the same was distributed during his tenure as Minister
and after the appellant had ceased to be a Minister, he was not legally
entitled to distribute the pension and hence ensuring compliance of formality of
filling up pension forms with the aid of PW-10- Sarpanch by pressurizing him to
fill up pension forms makes no sense or reason so as to prove the charge of
illegal distribution of pension amounting to corrupt practice.
67.
In
view of the unsatisfactory analysis of the evidence and erroneous approach of
the High Court while recording the finding on the issue of corrupt practice, we
consider this appeal fit to be allowed as no conclusive inference can be drawn
that the respondent Smt. Kaur who had secured only third position in the
election has succeeded in proving the charge of corrupt practice against their turned
candidate-the appellant herein and the same at best can be held to be based on
allegations which desperately required unimpeachable evidence of trust worthy
nature adduced by independent witnesses which could not be treated as tainted
or evidence of doubtful nature. Since the charge of corrupt practice has to be
proved beyond reasonable doubt and not merely by preponderance of probabilities,
the evidence relied upon by the High Court cannot be held to be of such
probative value which do not reflect on the credibility of the witnesses relied
upon by the High Court, so as to interfere with the election result by which
the appellant had been elected. Consequently, we set aside the judgment and
order of the High Court and allow this appeal. However, the parties are left to
bear their own cost.
........................................J
(J. M. Panchal)
........................................J
(Gyan Sudha Misra)
New
Delhi,
November
22, 2010
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