IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.421 of 2010 RAJESHWARI DEVI W/O SRI RAHUNANDAN PRASAD YADAV R/O VILLAGE - JAGATPUR , P.O TEYAR , P.S - AKBARPUR, DISTRICT- NAWADA … Petitioner-Appellant Versus 1. THE STATE ELECTION COMMISSION, SONE BHAWAN, BIRCHAND PATEL PATH, PATNA THROUGH THE STATE ELECTION COMMISSIONERS. 2. THE DISTRICT ELECTION OFFICER (PANCHAYAT), NAWADA, DISTRICT - NAWADA 3. THE RETURNING OFFICER (PANCHAYAT) AKBARPUR BLOCK, DISTRICT - NAWADA 4. MD. ANWAR KHAN S/O SHAMSHUL HODA KHAN R/O VILLAGE - PITHAURI , TOLE - ITKORI , P.O - PITHAURI, P.S- AKBARPUR , DISTRICT - NAWADA 5. MAHBOOB ALAM S/O MD. HANIF R/O VILLAGE - PITHAURI , TOLE - ITKORI, P.O - PITHAURI, P.S- AKBARPUR , DISTRICT- NAWADA 6. RAM RATAN PRASAD S/O BARU YADAV R/O VILLAGE- JAGATPUR , P.O- TEYAR, P.S- AKBARPUR, DISTRICT- NAWADA 7. SHANTI DEVI W/O LATE KEDAR NATH SINGH R/O VILLAGE- TEYAR, P.O- TEYAR, P.S- AKBARPUR , DISTRICT- NAWADA … Respondents-Respondents ----------- For the Appellant : Mr. S.B.K.Mangalam, Adv. For S.E.C. : Mr. R.S.Pradhan, Sr.Adv. with Mr. Rajeev Lochan, Adv. ---------- 2. 22.3.2010 Heard counsel for the parties. In this intra-Court appeal the assail is to an order of the learned Single Judge dated 4.2.2010 dismissing the writ petition of the appellant- writ petitioner questioning the judgment and order dated 22.9.2007 passed by the Munsif, Nawadah in Misc. Case 2 (Election) No. 22 of 2006, whereby and whereunder he had dismissed the election petition of the appellant- writ petitioner challenging the election of respondent no.4 Md. Anwar Khan. Mr. S.B.K.Mangalam, learned counsel for the appellant- writ petitioner, had submitted that once this fact was established by the appellant- writ petitioner with the help of evidence that in three booths polling was to the extent of 85.4%, 77% and 84% respectively and in which the successful candidate, respondent no.4, had secured almost cent-percent votes, the allegation of corrupt practice as made in the election petition by the appellant- writ petitioner had stood automatically proved and the Election Tribunal therefore had committed an error in holding that the charge of corrupt practice was not proved. The learned Single Judge has gone into the aforesaid issue at a great length and his findings are as follows : - “ There can be no dispute that if the returned candidate has obtained vote by adopting corrupt practice then in view of Section 139 and 140 of the Act, 2006, his 3 election would be declared void and the next candidate can be declared elected. Thus, the vital issue is whether respondent no.4 resorted to corrupt practices including capturing of booth. It would appear from the impugned judgment that petitioner did not make any complaint much less one of booth capturing. A complaint was made by one Satish Prasad Sinha, who has not been examined as a witness. Respondent no.3, the Returning Officer stated that he had received letter no. C 848 dated 21.5.2006 of State Election Commission, which was also before him. He made due enquiry in respect of the allegations and did not find them substantiated. He submitted his report to the Sub-divisional Officer, Rajauli as directed by letter no. 36/ Mu Rajauli dated 22.7.2006. The petitioner nowhere controverted before the Election Judge that the allegations enquired by the Block Development Officer was any different than the allegations in respect of which a report was sought by the Election Commission in view of complaint made by Satish Prasad Sinha. So even if non- examination of Satish Prasad Sinha is ignored, the same would not improve the case of petitioner, as the enquiry report 4 revealed that allegations contained therein were not correct. Further more, polling of 85.4%, 77% and 84% of the total votes on three booths in favour of a candidate, wherein 90% of the population belonged to the same community cannot be said to be all impossibility. In this view of the above, I do not find any illegality in the impugned judgment of the Election Judge, as such this application is dismissed.” On being invited by Mr. Mangalam we have also perused the entire materials on record which were brought in the writ application and from them also we are satisfied that the Election Tribunal had considered the matter at great length in its well considered 17 pagers of judgment. The Tribunal has discussed the oral evidence and documentary evidence and has come to a finding that the appellant- writ petitioner- election petitioner had never filed any application herself alleging corrupt practice and she had relied on an application filed by one Satish Prasad Sinha. The Election Tribunal has, however, drawn adverse inference on this aspect, inasmuch as Satish Prasad Sinha was never examined by 5 the appellant- writ petitioner in course of election case. Even the alleged application filed by him was not exhibited in course of election case. The allegation of booth capturing was also gone into by the Election Tribunal and it was found that no such application alleging booth capturing was ever filed at the time of polls or till conclusion of counting. In such circumstances, the mere ipsi dixit of the appellant- writ petitioner with regard to the booth capturing of booth Nos. 33, 34 and 40 had rightly been found to be not proved by the Election Tribunal. The Election Tribunal in fact had also looked into the circular of the Election Commission as with regard to polling of more than 90% votes at one booth and had found that at none of three booths no. 33, 34 and 40 the polling had exceeded 90% and as such, there was no violation of the circular of the Election Commission. This Court in fact would find no error in the approach of the Election Tribunal that out of 85.4%, 77% and 84% of votes at booths no. 33, 34 and 40 there was every possibility of the returned candidate, respondent no.4, of getting majority of votes, inasmuch 6 as he had belonged to a certain community which was dominantly present in those areas. The Election Tribunal in this respect has analyzed from the voter list that more than 90% of the voters at these booths no. 33, 34 and 40 were Muslim voters, a community to which respondent no.4 had belonged and therefore, it was not impossible for him to get cent-percent votes in these three booths. The Election Tribunal in fact has also rightly held that the appellant- writ petitioner has lost by a big margin of 848 votes and once the charge of corrupt practice could not be established by her, the election result in favour of respondent no.4 could not have been disturbed on mere speculation and/or surmises and conjectures of the appellant- writ petitioner. The charge of corrupt practice while adjudicating an election petition has severe consequences inasmuch as it can also disqualify a person to contest the next election for a specified period apart from setting aside his election. Such serious charge, therefore, has to be proven beyond hilt and reasonable doubt by one who alleges the same in the election petition. 7 In our considered view the appellant- writ petitioner being the petitioner in the election case and confining her challenge to declaration of respondent no.4 as an elected candidate only on the allegation of corrupt practice has miserably failed to prove such charge. s In that view of the matter, we do not find any error in the view taken by the Election Tribunal while dismissing the election petition of the appellant- writ petitioner or its affirmance by the learned Single Judge. In the result, we find no merit in this appeal and the same is, accordingly, dismissed. There would be, however, no order as to costs. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Surendra/