S. BALDEV SINGH MANNversusS. GURCHARAN SINGH, MLA AND ORS.

j

                       S. BALDEV SINGH MANN                                        A
                                 v.
                 S. GURCHARAN SINGH, MLA AND ORS.'

                              FEBRUARY 5, 1996

           [J.S. VERMA, N.P. SINGH AND FAIZAN UDDIN, JJ.]                          B

          Representation of People Act, 1951-Section 123 r/ws 135-A-Conupt
    Practices-Standard of proof-Strict proof required.

          Sections 123(8) & 135-A-Booth capturing-Offence of-Act of                C
    threatening polling agent of a candidate-Whether amounts to conupt practice
    of booth capturing-Held, No.

           Representation of the People Conduct of Election Rules, 1961-Rule
    9rlnspection of marked copies of electoral rolls and packets of counterfoils
    of used ballot papers-Prayer f 01~Allegation of booth capturing not estab-     D
    lished-Non-compliance of P & H High Court Rules-Application for inspec-
    tion liable to be dismissed.

           The appellant challenged the election of the returned candidate,
    respondent No. 1 to the Punjab Legislative Assembly, by presenting an
                                                                                  E
    election petition under Part VI of the Representation of People Act, 1951,
    for declaring his election as void and to declare that the appellant was the
    duly elected candidate in place of the first respondent. The appellant
    questioned the election of the respondent on the allegations that he had
    indulged in the commission of the corrupt practice of booth capturing by
    himself and through his agents within the meaning of Section 123(B) r/ws F
    135-A of the Act and that the respondent No. 1 had spent over Rs. 2,00,000
    on his election in violation of the ceiling limit on expenses provided u/s 77
    of the Act r/w rule 90 and the return of expenses filed by the first
    respondent was totally false. The High Court dismissed the election peti-
    tion while holding that the allegations of the corrupt practice levelled G
    against the returned candidate were not only vague but indefinite and that
    the appellant had failed to substantiate the same against the first respon-
    dent. Hence this appeal.

          The appellant submitted that there was sufficient and reliable
    evidence on record to establish the allegations of booth capturing by the      H
                                        99
    100                   SUPREME COURT REPORTS                   [1996) 2 S.C.R.

A respondent No. 1 himself and through his agents.
           Dismissing the appeal, this Court

        HELD : 1.1. An allegation of corrupt practices within the meaning
  of sub-sections (1) to (8) of section 123 of the Representation of People
B Act, made in the election petition are regarded quasi-criminal in nature
  requiring a strict_proof of the same because the consequences are not only
  very serious but also penal in nature. On the proof of any of the corrupt
  practices as alleged in the election petition it is not only the election of the
  returned candidate which is declared void and set aside but besides the
C dis-qualification of the returned candidate, the candidate himself or his
  agent or any other person as the case may be, if found to have committed
  corrupt practice may be punished with imprisonment under Section 135-A
  of the Act. Therefore, the Court insists upon a strict proof of such
  allegation of corrupt practice and not to decide the case on preponderence .
  or probabilities. The evidence has, therefore, to be judged having regard
D to these well settled principles. (105-B-D]
          1.2. In the election petition the allegation made is that the respondent
    No. 1 in the company of 50 supporters went to the polling booth and
    threatened polling agent of the appellant in the presence of some electors
E and asked him not to go inside the polling station and not to raise objec-
    tions regarding the identity of persons. The High Court took the view that
    these allegations could not be treated to be a corrupt practice of booth
    capturing. Appellant was unable to specify as to under which sub-section of
    Section 123 these allegations amounted to a corrupt practice. The alleged
    threat may be an offence but it does not fall within the ambit of corrupt
F . practice as defined in sub-section (8) of Section 123. The election agent of
    the appellant who was said to have been threatened was not examined by the
    appellant as a witness to support this allegation. (105-E-G)

         1.3. According to the allegations made in the election petition there
  were incidents of a large number of booth capturing by the respondent No.
G 1, his agent and supporters who were alleged to be variously armed but
  neither any oral nor a written complaint was made to the Returning
  Officer, Presiding Officer, or other officers and police personnel who ~ere
  on election duty at the respective polling booths. The appellant did not
  examine election agent as a witness tO support the allegations who was
H supposed to have first hand information as to what was happening inside
~.·
                     S.B. SINGH MANN v. S. GURCHARAN SINGH                       101

      the polling booth. The evidence of all the witnesses was found to be A
      unconVin.cing and unreliable to establish the allegations. The appellant
      had miserably failed to bring home the allegations of corrupt practice ·
      either by the respondent No. 1, his agent or any other person with his
      consent or at his instance. On the contrary there was consistent, convinc-
      ing and satisfaciory evidence adduced by the respondent No. 1 to show that B
      the polling was peaceful throughout t'1e day and no complaint of any
      nature whatsoever oral or in writing was received from any quarter, in view
      of these facts and circumstances the High Court had taken a view consis-
      tent with the evidence on record and there were no reasons to take a
      different view. [106-C, 107-B-C]
                                                                                        c
            1.4. The appellant could not establish the charge of over spending.
      The High Court made a detailed scrutiny of the evidence on record and
      arrived at a definite conclusion that the allegation was groundless. [107-F]

             1.5. The appellant had failed to show even prima facie that there was
      any booth capturing and, therefore, the question of inspection of the             D
      desired electoral rolls and packets of counter foils did not arise at that
      stage of the case. The documents sought to be summoned also could not
      be allowed in view of the fact that the said application was made when the
      appellant had already concluded his evidence and the election petition was
      posted for respondent's evidence. The said application was not main-              E
      tainable for non-compliance of the rules contained in Chapter 4-GG of the
      Rules and orders of Punjab & Haryana High Court, Volume V, of which
      prescribed rules of procedure on the non-compliance of which the docu-
      ments sought to be summoned for purpose of cross examination can not
      be ordered. Therefore, the order of the High Court dated August 23, 1993
      rejecting the application, under Rule 93 for inspection of marked copies          F
      of electoral rolls as well as the packets of counterfoil of used ballot papers,
      cannot be said to be erroneous. [108-B-D]

              CIVIL APPELLATE JURISDICTION: Civil appeal No. 4616 of
      1994.                                                                             G
           From the Judgment and Order dated 8.11.93 of the Punjab &
      Haryana High Court in Election Petition No. 13 of 1992.

            S.K Dholakia, M.S. Khera, Ashish Dholakia, Ms. Promila Choud-
      hary and Ms. Naresh Bakshi for the Appellant.                       H
    102                  SUPREME COURT REPORTS                 [1996] 2 S.C.R.

A         Ashok Grover for the Respondents.

          The Judgment of the Court was delivered by

          FAIZAN UDDIN, J. 1. This appeal under Section 116-A of the
    Representation of People Act, 1951 (hereinafter referred to as the Act)
B   has been directed against the judgment dated November 8, 1993 passed by
    the High Court of Punjab & Haryana at Chandigarh dismissing the Elec-
    tion Petition No. 13 of 1992 filed by the appellant herein challenging the
    election of the returned candidate S. Gurcharan Singh, the first respon-
    dent.
c        2. The election for Punjab Legislative Assembly was held in
  February, 1992. The appellant was sponsored by Shriromani Akali. Dal as
  a candidate from 87-Dirba Constituency while the respondent No. 1 S.
  Gurcharan Singh was fielded by the Congress party ·and the respondent
  No. 2 Chet Singh was a candidate set up by Bahujan Samaj Party. The
D respondent No. 3 S. Amarjit Singh contested the election from the said
  constituency as an independent candidate. The date of polling· was
  February 19, 1992 and the result was declared next date i.e. on February
  20, 1992 according to which the respondent No. 1 secured the highest
  number of votes having polled 3072 votes while the appellant had secured
E only 2624 votes. The respondent No. 2 had polled 1925 votes and the
  respondent No. 3 polled only 75 votes. The respondent No. 1 having
  secured higher number of votes was declared elected from 87-Dirba Con-
  stituency.

          3. The appellant challenged the election of the returned candidate,
F respondent No. 1 herein by presenting an election petition under Part VI
  of the Act for declaring his election as void and to declare the appellant
  himself as duly elected candidate for the said constituency in place of the
  first respondent. The appellant called in question the election of ·the
  respondent No; 1 on the allegations that the had indulged in the commis-
  sion of the corrupt practice of booth capturing by himself and through his
G agents within the meaning of Section 123(8) read with Section 135-A of the
  Act. The details of the allegations with regard to various booth capturing
  are pleaded in sub-paras I, II, III, IV, V and VI of para 3 of the election
  petition which have also been reproduced verbatim by the High Court in
  the impugned judgment. It is, therefore, not necessary to catalogue all
H those allegations herein again.
 . !!




            S.B. SINGH MANN v. S. GURCHARAN SINGH [FAIZAN UDDIN, J.] 103

-              4. The second ground on which the appellant based his election A
        petition challenging the election of the first respondent was that the
        respondent No. 1 had in fact spent over Rs. 2.00 lacs on his election in
        violation of the ceiling limit on expenses provided under Section 77 of the
        Act read with rule 90, which also amounts to corrupt practice within the
        meaning of Section 123 (6) the Act. The appellant has alleged that the B
        Return of expenses filed by the first respondent was totally false as bills
        filed by him were grossly under valued not representing the correct price
        and quantity of goods purchased and services hired by him. He also alleged
        that the first respondent concealed various expenses which were actually
        made from 31.1.1992 to 20.2.1992 but were not included in the Return. The
        details of alleged items of expenses which are alleged to be not included C
        in the Return are stated in sub-paras 1, II, III, IV & V of para 4 of the
        election petition which have also. been reproduced verbatim by the High
        Court in the impugned judgment and therefore it is not necessary to
        mention their details herein again.
.,             5. The respondent No. 1 resisted the election petition by specially D
        traversing all adverse allegations made against him. He specifically deriied
        to have indulged or committed any of the corrupt practices of booth
        capturing either by himself or through his agents. He also denied the
        allegation with regard to the election expenses exceeding the prescribed
        limit or the under valuation of the bills or concealment or any expenses E
        which were actually made by him or his election agent.

              6. The High Court on the basis of the pleadings of the parties framed
        the following issues :

                1. Whether the election of respondent No. 1 is liable to be declared   F
                void on the grounds pleaded in the petition?

                2. Whether the petition is liable to be rejected for non-compliance
                of the provisions of Rules 12(f), Chapter 4-GG of the High Court
                Rules and Orders, Vol. V & Section 81(3) of the representation
                ~~~~                                                                   G
                3. Whether the petition does not disclose any cause of action?

                4. Relief.

        Issues No. 2 and 3 reproduced above were decided on 28th November,             H
    104                   SUPREME COURT REPORTS                  [1996] 2 S.C.R.

A   1993 by order dated January 28, 1993 as preliminary issues and were
    answered against the first respondent. Thus the impugned judgment deals
    with only issue No. 1 quoted above. On a close scrutiny and critical analysis
    of the parties' evidence on regard the High Court came to the conclusion
    that the allegations of the corrupt practice levelled against the returned
B   candidate are not only vague but indefinite and that the appellant had
    failed to substantiate the same against the first respondent. The High Court
    also recorded the finding that from the evidence adduced by the appellant
    it could not be concluded that the first respondent made expenses beyond
    the prescribed limit. The High Court observed that the appellant had
    cooked up false please . for setting aside the election of the returned
C   candidate and that he fabricated evidence with impunity to- support the
    allegations. The High Court, therefore, dismissed the election petition with
    costs by the impugned judgment against which this appeal has been
    directed.

           7. Learned counsel appearing for the election petitioner/appellant
D   submitted that there is sufficient and reliable evidence on record to estab-
    lish the allegations of booth capturing by the respondent No. 1 himself and
    through his agents and, thetefore; the negative findings recorded by the
    High Court are liable to be set aside. He also submitted that the High
    Court seriously erred in holding that the allegations contained in para 3(1)
E   of the election petition do not constitute a corrupt practice. According to
    the petitioner/appellant the allegations as are set out in para 3(1) to (VI)
    relating to booth capturing amount to a corrupt practice within the mean-
    ing of sub-section (8) of Section 123 read with Section 135-A of the Act.
    Section 123 (8) reads thus :

F           123. Corrupt. Practices. - The following shall be deemed to be
            corrupt practices for the purposes of this Act :



             (8) Booth capturing by a candidate or his agent or other person.-
G
    The relevant part of section 135-A reads as follows :

             135-A offence of booth capturing. - Whoever commits an offence
             of booth capturing shall be punishable with imprisonment for a
H            term which shall not be less than six months but which may extend
   S.B. SINGH MANN v. S. OURCHARAN SINGH [FAIZAN UDDIN, J.] 105

        to two years and with fine, and where such offence is committed A
        by a person in the service of the Government, he shall be punish-
        able with imprisonment for a term which shall not be less than one
        year but which may extend to three years and with fine."

       8. It is well settled that an allegation of corrupt practices within the
meaning of sub-sections (1) to (8) of Section 123 of the Act, made in the
                                                                                  B
election petition are regarded quasi criminal in nature requiring a strict
proof of the same because the consequences are not only very serious but
also penal in nature. It may be pointed out that on the proof of any of the
corrupt practices as alleged in the election petition it is not only the
election of the returned candidate which is declared void and set aside but       C
besides the dis-qualification of the returned candidate, the candidate him-
self or his agent or any other person as the case may be, if found to have
committed corrupt practice may be punished with imprisonment under
Section 135-A of the Act. It is for these reasons that the Court insists upon
a strict proof of such allegation of corrupt practice and not to decide the       D
case on preponderance or probabilities. The evidence has, therefore, to be
judged having regard to these well settled principles.

       9. In sub-para (1) of para 3 of the election petition the allegation
made is that on 19.2.1992 at about 7.30 AM the respondent No. 1 in the
company of 50 supporters went to the Government High School Building, E
Dirba Where polling booths No. 62 to 69 were located and threatened
J oginder Singh, polling agent of the appellant in the presence of some
electors and asked him not to go inside the polling station and not to raise
objections regarding the identity of persons. The High Court took the view
that these allegations cannot' be treated to be a corrupt practice of booth p
capturing. Learned counsel for the appellant was unable to specify as to
under which sub section of Sectlon 123 these allegations amount to a
corrupt practice. In our opinion the alleged threat may be an offence but
certainly it does not fall within the ambit of corrupt practice as defined in
sub-section (8) of Section 123. This apart it is interesting to note that
J oginder Singh the election agent of the appellant who is said to have been G
threatened was not examined by the appellantas a witness to support the.
said allegation.

      10. It may be noticed that to establish the allegations of booth
capturing made in sub-paras II, Ill IV, V & VI of para 3 of the election          H
                                                                                '_j,
    106                  SUPREME COURT REPORTS                [1996) 2 S.C.R.

A petition were sought to be proved by the appellant from the evidence of
  Zora Singh, PW 6, Sher Singh, PW 7, Kashmira Singh, PW 11, Saadha
  Singh, PW 12, Kapur Singh, PW 13, Tehsil Singh, PW 14 Jarnail Singh, PW
  15 and Surjit Sirigh, PW 16. The evidence of all these witnesses has been
  minutely analysed and scrutinised by the High Court and found the same
  to be unconvincing and unreliable to establish the allegations. The most
B striking feature is that the appellant did not examine election agent
  Joginder Singh as a witness to support the allegations who is supposed to
  have first hand information as to what was happening inside the polling
  booth. According to the allegations made in the election petition there
  were incidents of a large number of booth capturing by the respondent No.
c 1, his agent and supporters who are alleged to be variously armed but
  surprisingly enough neither any oral nor a written complaint was made to
  the Returning Officer, Presiding Officers or other officers and police
  personnel who were on election duty at the respective polling booths. _
  There was not even a whisper about the alleged incidents to the members
D of Central Reserve Police who according to the appellant's own evidence
  were very much present out-side the polling station. There is no contem-
  poraneous materials or any record to indicate that the appellant or any one
  on his behalf had raised even a finger on any of any alleged incidents while
  admittedly the Returning Officer, Presiding Officers and the Senior Super-
  intendent of Police were available to entertain the complaints if the respon-
E dent, his election agent or his supporters had committed acts of corrupt
  practice.

        11. The respondent No. 1 has examined the Sub-Divisional
  Magistrate, Shri Meghraj, RW 2 who was the Returning Officer of Dirba
p Assembly constituency in the said election. The respondent also examined
  the Senior Superintendent of Police, Shri Jaswinder Singh, RW 16 who
  categorically deposed that the polling was peaceful throughout the day and
  there were proper security arrangements outside the polling booths. They
  also stated that there were absolutely no such incidents as are alleged by
  the appellant in any of the polling booths and no protest was lodged by              )

G any of the contesting candidates either with regard to the booth capturing
  or regarding illegal casting of votes. The respondent No. 1 had also
   examined Dayal Chand, RW 8, Gurmail Singh, RW 9, Ram Prakash, RW
  10, Karam Singh, RW 11, Sohan Singh, RW 12, Chiranjit Julka, RW 13,
  Govinder Singh, RW 14 and Manjit Singh, RW 16 who were the Presiding
H Officers 9f the Polling booths No. 63 to 69. They all made a consistent and
        S.B. SINGH MANN v. S. GURCHARAN SINGH [FAIZAN UDDIN, J.] 107

     categorical statement that the polling agents of all the contesting can-        A
     didates were present inside the polling booths and none of them had
     disputed the identity of any elector who had come to cast their votes. They
     stated that the polling was peaceful and there was no untoward incidence.
     On a critical examination of the record and the impugned judgment of the
     High Court we find that the appellant had miserably failed to bring home
     the allegations of corrupt practice either by the respondent No. 1, his agent
                                                                                     B
     or any other person with his consent or at his instance. On the contrary
     there is consistent convincing and satisfactory evidence adduced by the
     respondent No. 1 to show that the polling was peaceful throughout the day
     and no complaint of any nature whatsoever oral or in writing was received
     from any quarter. In view of these facts and circumstances the High Court       C
     has taken a view consistent with the evidence on record and there are no
     reasons to take a different view.

            12. Learned counsel for the appellant next urged that there is
     evidence to show that the returned candidate respondent No. 1 herein had        D
     made expenditure far beyond the permissible limit .and the High Court fell
     in serious error in taking a different view. Rule 90 of Conduct of Election
     Rules, 1961 provides that the total expenditure of which account is to be
     maintained under Section 77 of the Act, and which is incurred in connec-
     tion with an election, shall not exceed the amount as specified in the
     corresponding column of the table given therein. But on going through the       E
     evidence and the judgment of the High Court in that behalf, we find that
     there is absolutely no substance in this submission also. The High Court
     has made a detailed scrutiny of the evidence on record in this behalf and
     has arrived at a definite conclusion that the allegation is groundless. We
     have also gone through the relevant evidence and find that the evidence         F

--   adduced by the appellant does not establish the charge of over spending.

           13. Learned counsel for the appellant then urged that before record-
     ing of evidence an application was made on behalf of the appellant under
     Rule 93 of the Election Rules read with Section 151 C.P.C. for inspection       G
     of marked copies of electoral rolls as well as the packets of counterfoils of


--   used ballot papers, in order to prove booth capturing and casting of bogus
     votes by persons in place of real electors, but it was obviously rejected by
     the High Court which caused great prejudice to the appellant's case. He
     also submitted that the appellant had also moved an application for sum-
     moning various documents for purposes of cross-examining the respondent         H
    108                  SUPREME COURT REPORTS                 [1996] 2 S.C.R.'

A No. 1 but it was also unreasonably rejected by the High Court. We have
  perused the orders of the High Court dated 14th May, 1993 and 2Brd
  August, 1993 and find that the High Court was fully justified in rejecting
  both the applications for valid and sound reasons. The appellant had failed
  to show even plima f acie that there was any booth capturing and, therefore,
  the question of inspection of the desired electoral rolls and packets of
B
  counterfoils did not arise at that stage of the case. The documents sought
  to be summoned also could not be allowed in view of the fact that the said      -   I

  application was made when the appellant had already concluded his
  evidence and the election petition was posted for respondent's evidence.
  Secondly, the said application was not maintainable for non-compliance of
C the rules contained in Chapter 4-GG of the Rules and orders of Punjab &
  Haryana High Court, volume v, of which prescribes rules of procedure on
  the non-compliance of which the documents sought to be summoned for
  purpose of cross-examination cannot be ordered. In this view of the matter,
  the order of the High Court dated August 23, 1993 rejecting the applica-
D tion, cannot be said to be erroneous. As discussed above, the appellant has
  miserably failed to prove the allegations made in the election petition and
  the evidence adduced by the· appellant has been found to be unworthy or
  placing any reliance, the appeal deserves to be dismissed.

          14. For the reasons stated above the appeal fails and is hereby
E   dismissed with costs. Rs. 3000 to be paid to respondent No. 1.

    R.A.                                                   Appeal dismissed.
                                                                                  --