EP/1/2004 1/69 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD ELECTION PETITION No. 1 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE =============================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? =============================================== DR. PRABHABEN KISHORSINH TAVIYAD. Versus SHRI KATARA BABUBHAI KHIMABHAI. =============================================== Appearance : MR JITENDRA MALKAN for the Petitioner. MR YF MEHTA for HL PATEL ADVOCATES for the Respondent. =============================================== CORAM : HONOURABLE MR.JUSTICE A. L. DAVE Date : 08/08/2008 ORAL JUDGMENT :- 1. This Election Petition is preferred under Section 81 EP/1/2004 2/69 JUDGMENT of the Representation of Peoples Act, 1951 (hereinafter referred to as “the Act”), calling in question the election of respondent, Katara Babubhai Khimabhai, the returned candidate of 17-Dohad (S.T.) Parliamentary Constituency for the election to the Lok Sabha seat held on 20th April, 2004. 2. The petitioner was a candidate sponsored by Indian National Congress (INC) whereas the respondent was a candidate sponsored by Bharatiya Janata Party (BJP). From the said constituency, there were two more candidates contesting the elections. They were Katara Sigjibhai Jaljibhai, who was sponsored by Communist Party, Marxist (CPM) and Somjibhai Damor, who was sponsored by Bharatiya Navshakti Party (BNP). 2.1 The Lok Sabha was dissolved in February, 2004, whereupon the Election Commission of India announced the general elections for constituting the 14th Lok Sabha. As per the election programme announced by the Election Commission of India, the poll for 17-Dohad (S.T.) Parliamentary Constituency was scheduled to be held on 20th April, 2004 and the counting was to take place on 13th May, 2004. Dohad Constituency is a reserved constituency for EP/1/2004 3/69 JUDGMENT Scheduled Tribe and casting of votes was scheduled to take place on 20th April, 2004 from 7.00 A.M. to 5.00 P.M. The constituency comprises of seven assembly segments, namely, Santrampur, Jhalod, Limdi, Dahod, Limkheda, Devgadhbaria and Randhikpur. The Collector, Dahod was appointed as the Returning Officer for Dohad Parliamentary Constituency. There were about 1321 Polling Booths spread over the constituency, where electronic voting machines were placed. 2.2 On the election results being declared after counting, the respondent was declared to have secured 2,28,154 votes, whereas the petitioner was declared to have secured 2,27,793 votes. Katara Sigjibhai Jaljibhai (CPM) was declared to have secured 16,301 votes, whereas Somjibhai Damor (BNP) was declared to have secured 45,597 votes. Thus, the respondent having secured highest number votes was declared as successful candidate. The difference of number of votes secured by the petitioner and the respondent was 361. 2.3 The petitioner has preferred this petition under Section 81 of the Act mainly on the ground that the respondent or his election agents or other persons, with the EP/1/2004 4/69 JUDGMENT consent of the respondent or his election agents, committed corrupt practice as contemplated under Section 123(8) read with Section 135-A of the Act. It is the case of the petitioner that the result of the election, so far as it relates to the returned candidate, has been materially affected by the corrupt practice of booth capturing committed in the interest of the returned candidate by the agents, who were working for the election of the returned candidate with his consent. 2.4 It is the case of the petitioner in the petition that all BJP workers and many of the sympathisers as well as relatives, friends and other associates of the respondent were working for his election with his knowledge and consent. Amongst such relatives were respondent's son, Bhavesh, and his brother-in-law, Raman Ranji Damor, who were working for the election of the respondent. The said Raman Ranji Damor was, at the relevant time, working as a Clerk in a Secondary School of village Chitrodiya (Jhalod). The said school was being run by a trust, which was controlled by the respondent. Both Bhavesh and Raman Ranji were also BJP workers and they actively propagated and canvassed for the election of the respondent throughout the election campaign with the knowledge and consent of the respondent. EP/1/2004 5/69 JUDGMENT 2.5 Both Bhavesh and Raman, along with their 25 to 30 supporters, armed with weapons like gun, sticks, Daria, swords, etc., captured following booths and cast bogus votes affecting the orderly conduct of the election :- (1) Polling Station No.158, Chitrodiya-1 (Jhalod Assembly Constituency). (2) Polling Station No.159, Chitrodiya-2 (Jhalod Assembly Constituency). (3) Polling Station No.150, Fulpura-1 (Jhalod Assembly Constituency). (4) Polling Station No.151, Fulpura-2 (Jhalod Assembly Constituency) (5) Polling Station No.160, Therkha-1 (Jhalod Assembly Constituency). (6) Polling Station No.161, Therkha-2 (Jhalod Assembly Constituency). EP/1/2004 6/69 JUDGMENT (7) Polling Station No.162, Therkha-3 (Jhalod Assembly Constituency). (8) Polling Station No.117, Gheswa (Jhalod Assembly Constituency). All these Polling Stations were located within a radius of 15 kms. and were connected with roads. 2.6 It is the case of the petitioner that Bhavesh, son of the respondent, was working for the election of the respondent. Both Bhavesh and the respondent stay in the same residential house at Chitrodiya and also at Jhalod. Bhavesh is a headstrong person involved in anti-social and criminal activities. There were newspaper items which appeared in Gujarat Samachar and Sandesh, Panchmahals Edition of 10th April, 2004 that Bhavesh had fired a gun on one Parsingbhai Taviyad, who was the President of BJP, Fatepur Taluka. It is further the case of the petitioner that Bhavesh along with Raman Ranji Damor and about 25 to 30 supporters armed with gun, Dharia, swords, sticks and other weapons seized the aforesaid Polling Stations and forcibly captured voting machines and cast bogus votes in favour of the respondent EP/1/2004 7/69 JUDGMENT and affected the orderly conduct of the election. By the aforesaid acts and conduct, they prevented registered voters from free exercise of this right to vote and also coerced or forced or intimidated and threatened directly or indirectly the electors and prevented them from going to the Polling Stations to cast their votes. It is alleged that both the said persons were working for the election of the respondent and they had committed corrupt practice of booth capturing with the consent of the respondent. 2.7 It is alleged that Polling Station No.159, Chigrodiya-1 and Polling Station No.159, Chitrodiya-2, Bhavesh and Raman Ranji Damor along with 25 to 30 supporters, armed with weapons like gun, Dharia, swords, sticks, etc., arrived at about 7.00 A.M. and seized both the Polling Stations. Parsingbhai Rangabhai Katara, nominated Polling Agent of the ptitioner for Booth No.158 and Dalabhai Rangabhai Katara, nominated Polling Agent of the petitioner for Booth No.159 were threatened by Bhavesh Babubhai Katara and his supporters and prevented them from producing their agent nomination forms before the appropriate authority. Both these agents of the petitioner were asked to leave the Polling Station or to face dire consequences and they, therefore, left the Polling Stations without presenting their nomination forms and also without casting their votes. Thereafter, the said Bhavesh seized the Polling Booth, forcibly took the voting machines and cast votes of registered voters of the aforesaid two Polling Stations in favour of EP/1/2004 8/69 JUDGMENT the respondent. Bhavesh had pointed his gun on the head of Vasaiya Maheshkumar Motilal, Assistant Presiding Officer of Polling Booth No.159 and, as a result, all the persons at both the Polling Stations were frightened. Smt. Ramilaben Vachhiyabhai Vasaiya, who was the Sarpanch of Village Chitrodiya along with her husband Vachhiyabhai Vasiya had visited the Polling Booth to cast their votes between 7.30 A.M. and 8.00 A.M. At that point of time, she saw Bhavesh pointing his gun on the head of the Assistant Polling Officer, Shri Vasaiya Maheshkumar Motilal. Ramilaben mustered courage and requested Bhavesh to remove the gun from the head of the Assistant Polling Officer since his purpose of booth capturing and casting of bogus votes was already served. At that time, Bhavesh threatened Ramilaben and her husband and asked them to leave the Polling Booth immediately or to face dire consequences. Bhavesh also told Ramilaben and her husband to tell the village people not to visit the Polling Booth since their votes were already cast by Bhavesh and his supporters. Both the booths were captured from about 7.00 A.M. to 11.00 A.M. At Polling Booth No.158, out of 888 votes, 837 votes were recorded and at Polling Booth No.159, out of 898 votes, 845 votes were recorded. It is indicated that, at Polling Booth No.158, out of the 837 votes recorded, respondent secured all the 837 votes, whereas in Polling Booth No.159, out of 845 votes recorded, 844 votes were recorded in favour of the respondent and only one vote was recorded in favour of Katara Sigjibhai and none of the other contesting EP/1/2004 9/69 JUDGMENT candidates secured any vote. 2.8 Bhaveshkumar Babubhai Katara, Raman Ranji Damor and their supporters left the village at about 11.00 A.M. and reached Polling Station No.117-Gheswa, which is at a distance of about 15 kms. from village Chitrodiya, at about 11.30 A.M. One Ranchhodbhai Dalabhai Rathwa, who was a Teacher in Utter Buniyadi High School, Mirakhedi, Jhalod, was the Presiding Officer at the aforesaid Polling Station No.117. He was threatened by Bhavesh and his supporters, who were armed with weapons. Bhavesh and his supporters forcibly captured the voting machine and affected the orderly conduct of election by their casting bogus votes on behalf of genuine registered voters. In the said Polling Station, the total number of votes were 489 and out of which, 400 votes were recorded. Out of the said 400 votes recorded, 290 votes were in favour of the respondent and 80 votes were in favour of the petitioner. 2.9 Bhavesh Katara and Raman Ranji Damor and their supporters armed with weapons left village Gheswa at about 1.00 P.M. and reached village Therkha at about 2.00 P.M. At village Therkha, there were three Polling Stations, being Polling Station No.160-Therkha-1, Polling Station No.161-Therkha-2 and Polling Station No.162-Therkha-3. In Polling Station No.160, the total number of votes were 720, out of which 670 votes were recorded. EP/1/2004 10/69 JUDGMENT Out of 670 votes recorded, 557 votes were in favour of the respondent and 90 votes were in favour of the petitioner. In Polling Station No.161, the total number of votes were 781, out of which 706 votes were recorded. Out of the said 706 votes recorded, 566 votes were recorded in favour of the respondent and only 95 votes were recorded in favour of the petitioner. In Polling Station No.162, the total number of votes were 1240, out of which 1102 votes were recorded. Out of the said 1102 votes recorded, 766 votes were recorded in favour of the respondent and 283 votes were recorded in favour of the petitioner. All the three Poling Stations, namely, Polling Booth Nos.160, 161 and 162 were within the radius of about 50 feet. It is alleged that Dilip Harji Suvera, Head Master of Navapanibar Primary School was the Polling Officer at Booth No.160-Therkha-1. At about 2 o' clock, about 5-6 persons entered into the said Polling Booth and snatched forcibly the voting machine from him and threatened the Polling Officer with dire consequences. Likewise, other Polling Booths were captured by other supporters of Bhavesh Katara. One Ratanbhai Surtanbhai Damor was postd as Peon in Polling Station No.160- Therkha-1 and one Shanker Visabhai Damor was posted as Gram Rakshak at Polling Station No.161-Therkha-2. Both of them tried to prevent Bhavesh Babubhai Katara and his supporters from capturing the voting machines, but they were threatened of dire consequences. Bhavesh and his supporters left Therkha at about 3.00 P.M., threatening the officers of dire consequences if any EP/1/2004 11/69 JUDGMENT action was taken or any complaint was filed. 2.10 Bhavesh Katara and his supporters left village Therkha armed with weapons at about 3.00 P.M. and reached village Fulpura, which is at a distance of 10 to 12 kms., at about 3.30 P.M. At village Fulpura, there were two Polling Booths, viz. Polling Booth No.150-Fulpura-1 and Polling Booth No.151-Polling Booth No.151-Fulpura-2. The petitioner's Polling Agents, Damor Maknabhai Virjibhai (Polling Booth No.150-Fulpura-1) and Charel Banjibhai (Polling Booth No.151-Fulpura-2) were on duty. Bhavesh Babubhai Katara and his supporters seized the Polling Booths Nos.150 and 151 at about 3.00 P.M. Bhavesh and his supporters forced the Polling Agents to leave the Polling Booths. Bhavesh and his supporters captured the voting machines and cast bogus votes of registered voters who had not cast their votes by that time. 2.11 According to the petitioner, one Madhubhai Manyabhai Damor, Sarpanch of village Sabli, was working for the furtherance of the prospects of the election of the returned candidate with the knowledge and consent of the respondent. The said Madhubhai Manyabhai Damor along with 50 to 60 supporters captured Polling Station No.190 (Sabli). It is also alleged that Polling Booth No.190 (Sabli) was captured at about 1.00 A.M. by the said Madhubhai Manyabhai Damor, Sarpanch of village Sabli, who was a BJP worker, with the help of 50 to 60 supporters and threatened EP/1/2004 12/69 JUDGMENT Abhesing Tarar, who was the Polling Officer at the said Polling Station 190. At the said Polling Booth, the total number of votes was 1217, out of which 971 votes were recorded. Out of the said 971 votes, 962 votes were recorded in favour of the respondent and only 9 votes were recorded in favour of the other contesting candidates. 2.13 According to the petitioner, the respondent was returned only by a margin of 361 votes. The alleged acts have affected the result as contemplated under Section 100, sub-section (1), clause (d) of the Act, by virtue of corrupt practice adopted by the respondent or his supporters with his consent. The petitioner, therefore, has made following prayers in the petition :- “(a) the election of the respondent-returned candidate Shri Babubhai Katara, be quashed and declared as void; (b) pass such other and further reliefs including costs as the Hon'ble Court may deem fit in the facts and circumstances of the case;” 3. On the petition being presented and registered, the Registry informed the Under Secretary (Legal), Election Commissioner of New Delhi, by communication dated 1.7.2004 informing about the presentation of Election Petition No.1 of 2004, EP/1/2004 13/69 JUDGMENT as required under Rule 12(iii) of the Election Rules framed by this Court. 4. The respondent filed his affidavit-in-reply at Exhibit 14, inter alia, denying all the allegations made in the petition. 5. On the basis of the pleadings of the parties, the Court framed issues at Exhibit 25, as under :- “(1)(a) Whether the election-petitioner proves his case regarding corrupt practice committed by returning candidate or his Election Agent or any other person with the consent of the returned candidate or his Election Agent in connection with the polling booths; and (b) whether the applicant is able to prove that any bogus voting took place at the polling stations mentioned in paragraph 6.2 of the Election Petition, i.e. Polling Station No.158, Chitrodiya-1, Polling Station No.159, Chitrodiya-2, Polling Station No.150, Fulpura-1, Polling Station No.151, Fulpura-2, Polling Station No.160, Therka-1, Polling Station No.161-Therka-2, Polling Station No.162-Therka-3, Polling Station No.117, Gheswa? (2) Whether the election-petitioner proves that the respondent or his Election Agent or any other person with the consent of the returned candidate has committed corrupt practice as contemplated under Section 123 (8) read with Section 135-A of the Representation of Peoples Act, 1951 as per the averments in paragraphs 6 and 7 of the election EP/1/2004 14/69 JUDGMENT petition in connection with the aforesaid polling booths? (3) If yes, whether the election of the returned candidate is void? (4) What relief can be granted to the petitioner?” 5.1 The questions that arise from the issues can be stated thus and answered accordingly. Issue (1) (a) In the negative. (b) In the negative. Issue (2) In the negative. Issue (3) Does not survive. Issue (4) None. 6. My findings on the issues, for the reasons stated hereinafter, are as under :- R E A S O N S Issues No.1 to 4 7. Since the issues are inter-connected, they are taken up for discussion together. 8. At Exhibit 26, the petitioner submitted list of 13 witnesses as required under Rule 297 of the High Court Rules, as EP/1/2004 15/69 JUDGMENT under :- (1) Dr. Prabhaben Kishorsinh Taviyad, Gokul Society, Chakalia Road, Dahod. (2) Shri Maheshkumar Motilal Vasaiya, Amrut Adivasi Society, Limdi, Taluka Zalod, District Dahod. (3) Smt. Dalabhai Rangabhai Katara, At Post Chitrodiya, Taluka Zalod, District Dahod. (4) Shri Parsingbhai Rangabhai Katara, At Post Chitrodiya, Taluka Zalod, District Dahod. (5) Shri Punabhai Bhurabhai Damor, At Post Chitrodiya, Taluka Zalod, District Dahod. (6) Shri Ranchhodbhai Dalabhai Rathva, Uttar Buniyadi Ashram Shala, Mirakhedi, Taluka Zalod, District Dahod. (7) Shri Dilipbhai Harjibhai Suvera, At & Post Navapanibar Prathmik Shala, Taluka Meghraj, District Sabarkantha. (8) Shri Ratanbhai Surtanbhai Damor, At & Post Khakharia, EP/1/2004 16/69 JUDGMENT Taluka: Zalod, District Dahod. (9) Shri Bhanjibhai Khatubhai Charel, At & Post Fulpura, Taluka Zalod, District Dahod. (10) Shri Maknabhai Virjibhai Damor, At & Post Fulpura, Taluka Zalod, District Dahod. (11) Shri Bharatbhai Kidiyabhai Damor, At & Post Fulpura, Taluka Zalod, District Dahod. (12) Smt. Dhankiben Kidiyabhai Damor, At & Post Fulpura, Taluka Zalod, District Dahod. (13) Shri Abhesinh Nanjibhai Tarar, At & Post Shangal, Taluka Meghrej, District Sabarkantha. 8. The respondent submitted list of witnesses at Exhibit 27, indicating his witnesses as under :- (1) Babubhai Khimabhai Katara, EP/1/2004 17/69 JUDGMENT Mandir Falia, Zalod, Taluka and District Dahod. (2) Mukeshkumar Vichand Limadi, District Dahod. (3) Dineshbhai Maganbhai Hadia, Assistant Returning Officer, 112, Zalod Taluka Panchayat, Zalod, At present DDO, Dahod. (4) Shri R T Bhuria, Zonal Officer, Sarvodaya Society, Zalod. (5) Shri B C Yadav, Zonal Officer, Arts & Commerce College, Zalod. (6) Shri K S Ad, Assistant Presiding Officer, AT Muvada, Zalod. (7) Shri Dalsingji Shamjibhai Baria, At & Post Fulpura, Taluka Zalod. (8) Shri Samabhai Tihabhai Khant, At & Post Fulpura, Taluka Zalod. (9) Shri Fatabhai Parsingbhai Kamol, At Ruthi, At Post Therka, EP/1/2004 18/69 JUDGMENT Taluka Zalod. (10) Shri Bablabhai Laljibhai Sangada, At & Post Chitrodia, Taluka Zalod. (11) Shri Surpalbhai Bhusabhai Bhedi, At & Post Chitrodia, Taluka Zalod. (12) Shri Kalsingbhai Himabhai Katara, At & Post Chitrodia, Taluka Zalod. (13) Shri G S Vyas, PSI, Zalod. 9. The respondent preferred Election Application No.1 of 2005 for dismissal of the petition on preliminary grounds. Instead of going into details, suffice it to say that the petitioner filed reply in Election Application on 30th March, 2005 and, ultimately, the Court passed an order on 22nd June, 2005 in Election Application No.1 of 2005 by a detailed C.A.V. Judgment, rejecting the said application. 10. The parties led their evidence, whereby the petitioner examined following witnesses and decided not to examine other witnesses. (1) Dr. Prabhaben Kishorsinh Taviyad (Exhibit 37). EP/1/2004 19/69 JUDGMENT (2) Dilipbhai Harjibhai Suvera (Exhibit 101). (3) Damor Ratsansinh Surtan (Exhibit 102). (4) Ranchhodbhai Dalabhai Rathwa (Exhibit 105). (5) Charel Bhanjibhai Katubhai (Exhibit 106). (6) Dalabhai @ Arvindbhai Rangabhai Katara (Exhibit 107). (7) Maheshkumar Motilal Vasaiya (Exhibt 110). (8) Abhesinh Nanji Taral (Exhibit 111). 11. The respondent examined following witnesses and decided not to examine other witnesses :- (1) Katara Babubhai Khimabhai (Exhibit 120). (2) Hadiya Dineshchandra Maganbhai (Exhibit 137). 12. On 29th January, 2007, the petitioner preferred Election Application No.1 of 2007 seeking a direction for report of the F.S.L. On the finger prints in 17-A Register of the Polling Booths in question, which came to be rejected by order dated 9th March, EP/1/2004 20/69 JUDGMENT 2007. The order has attained finality. 13. Later, the petitioner preferred Election Application No.2 of 2007 for recalling the petitioner as a witness. The said application was tendered on 1.4.2007, which again came to be dismissed by order dated 24th August, 2007. The order has attained finality. 14. After the parties closed their evidence and when final arguments were in the process of being heard, learned Judge hearing the petition came to be transferred around April, 2007 and the petition came to be assigned to the undersigned, whereafter Election Application No.2 of 2007 was tendered, heard and decided. The final arguments of the learned Advocates were thereafter heard commencing from 31st August, 2007 till 17th April, 2008 on piecemeal basis, as per the convenience of the parties and the Court, so also an earlier order passed by the Court. 15. Learned Advocate, Mr. Malkan, appearing for the petitioner, in his course of arguments, submitted that the petition is founded on allegations of corrupt practice in the form of booth capturing, which has affected the result. Mr. Malkan submitted that, if the evidence is seen, the respondent, during cross- examination, has admitted that the election was not properly conducted. He has also admitted that he did not cast vote at EP/1/2004 21/69 JUDGMENT Chitrodiya, whereas his vote seems to have been cast at Chitrodiya. 15.1 Mr. Malkan submitted that seven independent eye- witnesses have in their depositions narrated incidents of booth capturing in their evidence. There is no reason to doubt the truthfulness or trustworthiness of these witnesses because five of them are Government servants and two of them are the Polling Agents of the petitioner. 15.2 Mr. Malkan submitted that the allegation of booth capturing is supported by other circumstantial evidence as well. He submitted that it has come in evidence that the villages in the constituency are certified to be 100 per cent educated and, therefore, the thumb marks appearing in 17-A Register would go to show that they are tampered with. Otherwise, there would have been signature of the voters. In this regard, he emphasized on Exhibit 153, the report made by the petitioner after examining 17-A Register showing that there are number of thumb impressions, which were identical, which is not possible in human being scientifically. Mr. Malkan submitted that when the report was submitted by the petitioner, the petitioner was offered for cross- examination by passing a Purshis, which opportunity the respondent did not avail of and, therefore, the respondent cannot either object to or assail the said report on the ground that it is not tested on the touch stone of cross-examination. EP/1/2004 22/69 JUDGMENT 15.3 Mr. Malkan submitted further that booth capturing is alleged to have been undertaken by Bhavesh, son of the respondent. Bhavesh is a person with a chequered background. There are a number of complaints against him. He can be presumed to be going with the consent of the respondent for the reason that he himself is a BJP worker; that he and the respondent stay together in the same house; and the votes secured by the respondent at the booths allegedly captured by Bhavesh and his supporters indicate that majority votes have gone in favour of the respondent. 15.4 Mr. Malkan submitted that it has come in evidence that, in the constituency, there are number of schools and Ashram Shalas and people are educated, may be not highly educated, but they are not so illiterate so as to be not able to sign. The evidence regarding educational status of the population in the area has gone unchallenged during cross-examination and may, therefore, be accepted. 15.5 Mr. Malkan submitted that the report submitted by the petitioner on the thumb impressions in the 17-A Register may be accepted. Relying on Dr. Parikh's Text Book of Medical Jurisprudence, 6th Edition, and Dr. Modi's Medical Jurisprudence, 23rd Edition, Mr. Malkan submitted that for understanding the EP/1/2004 23/69 JUDGMENT science of thumb impression or finger prints, no specialized training is necessary nor any high-tech machinery is required. Mr. Malkan submitted that study of finger prints is a part of the curriculam for MBBS study and the petitioner had the advantage of studying the same and, therefore, the report at Exhibit 153 made by the petitioner on finger