IN THE HIGH COURT OF GUJARAT AT AHMEDABAD ELECTION APPLICATION No. 1 of 2005 In ELECTION PETITION No. 1 of 2004 For Approval and Signature: THE HON'BLE MR.JUSTICE P.B.MAJMUDAR ========================================================== 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 of any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================== DR. PRABHABEN KISHORSINH TAVIYAD - Petitioner(s) Versus SHRI KATARA BABUBHAI KHIMABHAI - Respondent(s) ========================================================== Appearance : MR MK VAKHARIA for Petitioner No(s).: 1. MR YF MEHTA for Mr. Vijay Patel for respondent ========================================================== CORAM :THE HON'BLE MR.JUSTICE P.B.MAJMUDAR Date : 22/06/2005 C.A. V. JUDGMENT 1.The petitioner of Election Petition No. 1 of 2004 has challenged the election of the Returned 1 Candidate, Mr. Katara Babubhai Khimabhai on the ground that there was corrupt practice adopted by the Returned Candidate during the election, by way of booth capturing and bogus voting. As per the averments made in the Election Petition, the margin of difference of votes between the Election Petitioner and the Returned Candidate is only 361 votes, and as per the averments in the Election Petition, there was a booth capturing and bogus voting at the instance of the Returned Candidate, and accordingly, the result of the election has been materially affected by corrupt practice. 2.The Returned Candidate was elected as a Member of Parliament in the election which took place in April 2004. The Election Petitioner was one of the candidates contesting election from 17- Dohad [ST] Parliamentary Consistency. The election was held on 20th April 2004. The Election Petitioner contested the election as a candidate sponsored by Indian National Congress while the returned candidate contested the election as a candidate sponsored by Bharatiya Janta Party [BJP]. The counting of the votes took place on 13th May 2004 wherein the returned candidate was declared elected, and according to the Election Petitioner she lost the election by a margin of only 361 votes. The 2 election of the returned candidate is challenged only on one ground, i.e. corrupt practice by way of booth capturing and bogus voting. The Election Petition is filed within the period of limitation. 3.In response to the notice issued by this Court in the Election Petition, the returned candidate, Mr. Katara Babubhai Khimabhai has filed his affidavit-in-reply to the Election Petition at exh. 14. By the said reply, the returned candidate has denied the allegations made in the Election Petition. It is denied by the returned candidate that the election agents of the returned candidate, namely: Bhavesh and Raman, along with other supporters have captured polling booths or that any bogus voting had taken place.\ 4.This Court, thereafter, has framed the issues in the Election Petition on 27th January 2005. The issues were framed with the consent of the parties. The issues framed by this Court are as under: “[1]. Whether the election-petitioner proves his case regarding corrupt practice committed by returning candidate or his Election Agent or any other person with 3 the consent of the returned candidate or his Election Agent in connection with the polling booths, and 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 sec. 135-A of the Representation of Peoples Act, 1951 as per the averments in paragraphs 6 and 7 of the Election 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 4 petitioner.” 5.The matter was thereafter adjourned for recording evidence. 6.Thereafter on behalf of the returned candidate an application being Election Application No. 1 of 2005 is preferred. By filing the said application, the returned candidate has prayed that the Election Petition is required to be dismissed on preliminary grounds. As per the averments in the said application, the Election Petitioner has produced certain documents on 4th November 2004 [at the stage of production of documents]. As per the averments in the application, the said documents were not produced along with the Election Petition, and, therefore, the Election Petition is defective in nature, and therefore, the same is required to be rejected at the threshold. It is also further alleged in the application that the documents which are produced on record are produced without any foundation. It is also further stated in the application that the Election Petitioner has not given any explanation as to why the documents at Sl. No. 1, 2, 3, 4 and 5 are produced at a late stage. It is also alleged in the application that the item at Sl. No. 6, which is in connection with 5 the outgoing calls from the mobile number 9426004702 could not have been produced without appropriate authentication, and, therefore, the same is not admissible in evidence. It is also the say of the applicant of Election Application No. 1 of 2005 that the documents produced by the Election Petitioner are the integral part of the Election Petition, and since they become part and parcel of the Election Petition, if such documents are taken on record, then the same are submitted after the period of limitation, and therefore, the Election Petition is required to be dismissed as time barred. It is also averred in the application that if the documents are taken out from the record, the petition becomes defective, as there is no other material or allegation. It is also averred in the application that when all these documents were in existence at the time when the Election Petition was filed, yet they were not annexed to the Election Petition. Therefore, the Election Petition is defective, and on that ground, the same is required to be rejected. It is also the say of the applicant that the documents referred to and produced at sl. no. 9 – affidavit of six persons, were not supplied to the respondent along with the Election Petition and, therefore, the Election Petition is defective, as non-supply of the said 6 affidavit along with the Election Petition has made the Election Petition defective, and, therefore, the same is required to be rejected. It is the further say of the applicant that some of the documents were already in existence at the time when the Election Petition was filed and yet such documents were not filed along with the petition – such as affidavit of six persons referred to above. The returned candidate, therefore, by preferring the aforesaid application, has prayed that this Court may frame the following issues, as issues No. 1 (A to 1 (C). “1(A). Whether the Election Petition filed by the petitioner is found to be materially defective as the copy of the petition supplied to the returned candidate / respondent do not contain the documents referred in the Election Petition alleging malpractice in the election, and now produced along with the list on 03/11/2004? 1(B). Whether respondent is entitled to ask for dismissal of the Election Petition at this stage on this preliminary ground? Holding that there is non-supply of the copy of the Election Petition to the respondent as required under law. 7 1(C). Whether on any of the contentions raised in the application this Election Petition is defective in material particulars, and is required to be dismissed at this stage. 7.The applicant therefore prayed that the aforesaid issues may be framed as preliminary issues, and the Election Petition may be dismissed accordingly. 8.The Election Petitioner resisted the said application by filing a reply. In the said reply, it is stated that the application is filed with malafide intention to delay the hearing of the Election Petition, especially when the petition was fixed for recording of evidence. It is averred in the reply that none of the documents produced by the petitioner along with the list of documents is part and parcel of the petition. On this and such other grounds, the aforesaid election application is resisted on behalf of the Election Petitioner. 9.Both the learned advocates have argued the matter at great length so far as the aforesaid election application is concerned. 10.Mr. Mehta for Mr. Patel for the applicant submitted that as per the averments made in 8 paragraph 6.1 of the petition, the Election Petitioner received the information from Congress workers or agents, but no particulars are given about the same, and no names of any Congress worker or any agent is disclosed. Mr. Mehta further submitted that the source of information is not disclosed in the Election Petition as to from which source the petitioner has gathered the information and on that ground the petition is required to be dismissed in limine. 11.It is submitted by Mr. Mehta that the affidavit at pages 209-212 are not annexed with the petition, and, therefore, the Election Petition is required to be dismissed as it is a fatal mistake. It is also argued by Mr. Mehta that along with the list of documents FIR is produced in connection with the activities of some headstrong persons but the same is not annexed with the Election Petition. It is submitted by Mr. Mehta that there is a breach of section 83 of the Act, as affidavit, which is an integral part of the petition, is not attached along with the petition. It is also argued by Mr. Mehta that the affidavit at pages 21 to 23 is not in conformity with Form 25 read with Rule 94.A of the Rules. It is submitted that as appropriate particulars are not given, there is breach of section 83 of the Act, which 9 is mandatory. It is submitted by Mr. Mehta that in the affidavit the Election Petitioner has merely stated that the fact is based on information, and not on personal knowledge. It is submitted that such information is not disclosed by giving appropriate particulars, and, therefore, such affidavit cannot be said to be a proper affidavit as per Form 25, and the said mistake is not curable. It is submitted by Mr. Mehta that in view of proviso to sec. 83, the petition is required to be rejected at the threshold. 12.It is further submitted by Mr. Mehta that material facts are not disclosed about the alleged corrupt practice, and it is submitted that the affidavit of two persons, which is produced along with the list of documents should have been mentioned in the Election Petition itself, and such affidavit should have been annexed along with the Election Petition, as the same is an integral part of the petition, and in view of the fact that the same is not annexed along with the Election Petition, the petition is required to be dismissed. 13.In order to substantiate his say on the aforesaid points, Mr. Mehta has relied upon the following judgments: 10 (1). 2000 (8) SCC 191 (2). AIR 2000 SC 388 (3). 2000 (1) SCC 398 (4). AIR 2000 SC 694 14.Mr. Mehta submitted that the Election Petition is required to be dismissed in limine on the grounds that the affidavit filed by the petitioner at pages 21-23 is not in consonance with Form 25 of the Rules read with rule 94.A of the Rules; that proper particulars regarding the alleged corrupt practice are not disclosed in the Election Petition; and that the affidavit which is produced along with the list of documents is not produced along with the Election Petition eventhough it is an integral part of the Election Petition. 15.On the other hand, on behalf of the petitioner, it is pointed out by learned advocate Mr. Vakharia that the documents produced on record cannot be said to be an integral part of the Election Petition. It is submitted that all the particulars regarding alleged mal-practice adopted by the returned candidate at the time of election is stated in the Election Petition. It is submitted that proper particulars are already given in connection with the said allegation and it cannot be said that the Election Petition is 11 filed on vague allegations. It is submitted by him that the returned candidate has already filed a detailed reply resisting the petition on merits, and even in the reply no such ground is taken, and after issues were framed, and the matter was adjourned for recording of evidence, this application is filed. According to Mr. Vakharia, therefore, the application is required to be rejected and the Election Petition is required to be proceeded on merits. 16.It is further submitted that by Mr. Vakharia that it cannot be said that the petition filed by the Election Petitioner is defective in any manner, and it cannot be dismissed on the so called preliminary grounds. Mr. Vakharia, further submitted that the application is given with ulterior motive to delay the proceedings. It is submitted by Mr. Vakharia that the Election Petition was filed in June 2005 and the respondent, the returned candidate, filed affidavit-in-reply after 3 months. He further submitted that with the consent of the parties, the issues were framed by this Court on 27th January 2005. Mr. Vakharia submitted that even the other side also gave suggested issues. He further submitted that the present application is filed in March 2005, when the matter was posted for recording of evidence. Mr. Vakharia, 12 therefore, vehemently submitted that this application at a belated stage cannot be entertained, and requires to be rejected, and the Election Petition is required to be proceeded with. 17.Mr. Vakharia further submitted that in the Election Petition, all particulars about the alleged corrupt practices are already mentioned, and all the material particulars are already stated in the Election Petition. It is submitted by Mr. Vakharia that certain affidavits were received by the petitioner at a later point of time and since the said affidavits were not available when the petition was filed, naturally such affidavits were filed along with a separate list of documents. He further submitted that the petitioner got possession of affidavits of certain persons at a later point of time, and simply because such affidavits are ante-dated, i.e. prior to the date of filing Election Petition, would not mean that the petitioner was in possession of the documents at the time of filing the petition as such affidavit cannot be said to be a public document. It is submitted by Mr. Vakharia that in reply to the Election Application, the Election Petitioner has clearly stated that the said affidavits were not in possession of the Election Petitioner at 13 the time of filing the Election Petition. Mr. Vakharia submitted that the application is devoid of any merits, and is required to be rejected, and the Election Petition is required to be decided on merits. Mr. Vakharia submitted that so far as the affidavits in question are concerned, the same are filed only by way of documentary evidence, and the same are not filed in support of the original petition. 18.Mr. Vakharia has relied upon the following judgments in support of his contentions: (1). AIR 1990 SC 924 (2). [2005] 2 SCC 188 (3). AIR 1975 SC 290 (4). AIR 2000 SC 388, 19.It is argued by Mr. Vakharia that the Election Petitioner has already given proper particulars in paragraphs 5 and 6 of the Election Petition, and as per pages 21 to 23 of the Election Petition, there is a proper affidavit. Mr. Vakharia submitted that without prejudice to his rights and contentions he is tendering a further affidavit by giving additional particulars, if at all it is found that the earlier affidavit is not in order. 20.Mr. Mehta, on the other hand submitted that such particulars now cannot be given for curing 14 the defect. He submitted that if the verification is not as per Form 25, the same is a fatal mistake, and in view of the judgment reported in 2005 [2] SC 188, further affidavit cannot be permitted to be filed. 21.I have heard the learned counsel in detail. It is required to be noted that in the Election Petition, in paragraphs 6.3.2, 6.4 and 6.4.1, the petitioner has made the following averments: “6.3.2 During the Lok Sabha election, in daily Sandesh – Panchmahals-Dohad edition dated 10th April 2004, there was a press report reporting a firing by Shri Bhaveskumar, son of Babubhai Katara. As per the aforesaid press report, Bhavesh, son of BJP candidate Babubhai Katara fired upon one Parsingbhai Taviyad, who is President of BJP-Fatepur Taluka. 6.4 Shri Bhaveshkumar Babubhai Katara and Shri Raman Ranji Damor, along with their 25-30 supporters armed with weapons like gun, dharia, swords, sticks and such other weapons, seized the aforesaid polling stations and forcibly captured voting machines and cast bogus votes in favour of 15 the respondent and affected the orderly conduct of election. By their aforesaid acts and conduct, they have prevented registered voters from free exercise of their right to vote and also coerced and/or forced and/or intimidated and threatened directly or indirectly the electors and prevented them from going to the polling station to cast their votes. Both the aforesaid persons were working for the election of the respondent and they had committed corrupt practice of booth capturing with the consent of the respondent. The particulars of the aforesaid corrupt practice are as under: 6.4.1. In village Chitrodiya of Jhalod Assembly Constituency, there are two polling stations, viz. Polling Station No. 158, Chitrodiya-1 and Polling Station No. 159, Chitrodiya-2. Both the polling stations are located in village primary school and they are adjoining to each other. Shri Bhaveshkumar Babubhai Katara and Shri Raman Ranji Damor along with their 25-30 supporters armed with weapons like gun, dharia, swords, sticks and other weapons had arrived at the aforesaid primary school at about 7 am and seized both the polling stations. The petitioner had appointed one Shri Parsingbhai 16 Rangabhai Katara of village Chitrodiya as her polling agent for poling booth no. 158 and one Shri Dalabhai Rangabhai Katara of village Chitrodiya for polling station No. 159. Both of them were threatened at the polling stations by Bhaveshkumar Babubhai Katara and his supporters and prevented them from producing their agent nomination forms before the appropriate authority. Both of them were asked to leave the polling station, or to face dire consequences. Under the said threat, both the poling agents of the petitioner had left without presenting their agent nomination forms and also without casting their votes. After seizing the aforesaid polling booths, they had forcibly taken over the voting machines and cast votes of registered voters of the aforesaid two polling stations in favour of the respondent. Bhaveshkumar Babubhai Katara had pointed his gun on the head of Shri Vasaiya Maheshkumar Motilal, Assistant Presiding Officer of Polling Booth No. 159 and as a result all persons at both the polling stations were frightened. Smt. Ramilaben Vichhiyabhai Vasaiya who is the Sarpanch of village Chitrodiya along with her husband Vichhiyabhai Vasaiya had visited the polling booth to cast their 17 votes between 7.30 am and 8 am. When she had seen Bhaveshkumar pointing his gun on the head of the Assistant Presiding Officer Shri Vasaiya Maheshkumar Motilal, Smt. Ramilaben mustered courage and requested Bhaveshkumar to remove the gun from the head of Assistant Presiding Officer since his purpose of booth capturing and bogus voting was already served. Bhaveshkumar threatened Ramilaben and her husband and asked them to leave polling booth immediately or to face dire consequences. Bhaveshkumar also informed Ramilaben and her husband to tell the village people not to visit polling booth since their votes are already cast. Both Ramilaben and her husband were prevented from exercising their electoral right and instead Bhaveshkumar and his supporters have cast their bogus votes. Bhavesh, Raman and their supporters had also warned Vashiya Maheshkumar, Ramilaben and her husband and others not to take any action or inform anyone regarding booth capturing and threatened them with serious consequences. All the votes recorded at the aforesaid polling stations are not the votes cast by genuine voters, but by Bhaveshkumar Babubhai Katara and his supporters. Both the polling booths were 18 captured from about 7 O' Clock to 11 am and all recorded votes were cast by Bhaveshkumar and his supporters during the aforesaid period at the aforesaid polling booths and genuine registered voters were prevented from exercising their votes. At polling booth no. 158 the total number of voters are 888, out of which 837 votes were recorded. Likewise at polling booth no. 159, the total number of votes are 898 out of which 845 votes were recorded. The percentage of voting at polling booth no.158 is 94.25% and at polling booth no. 159 is 95.15%. Out of 837 votes recorded at polling booth No. 158, the respondent had secured 837 votes while the other three contesting candidates had secured nil votes. Likewise, out of 845 votes recorded at polling booth no. 159, 844 votes are recorded in favour of the respondent and one vote is recorded in favour of Katara Sigjibhai and no votes are recorded in favour of the petitioner and other contesting candidate Somjibhai Damor. The percentage of voting at the aforesaid two polling booths and number of votes secured by the respondent are by themselves indicate booth capturing.” 22.As stated earlier, the election is challenged 19 only on one ground, i.e. Booth Capturing and bogus voting at the instance of the Returned Candidate. In the Election Petition, the Election Petitioner has averred various factual aspects in connection with so called alleged booth Capturing or bogus voting. In paragraph 7 and 7.1 it is averred as under:- “7. The petitioner states that one Shri Madhubhai Manyabhai Damor, Sarpanch of village Sabli, who is a BJP worker and supporter of the respondent-returned candidate was working for the furtherance of the prospects of the election of the returned candidate, within the knowledge and with the consent of the respondent herein. The aforesaid Madhubhai Manyabhai Damor along with his 50-60 supporters had captured polling station no. 190, village Sabli of Jhalod Assembly Constituency and captured voting machine and cast bogus votes as if genuine voters have voted. Shri Madhubhai Damor had seized polling station No. 190-Sabli and committed corrupt practice as contemplated under section 123 (8) read with section 135.A of the Act with the consent of the respondent. The particulars regarding the said incident are as under: 7.1 Polling booth no. 190, Sabli in Jhalod 20 Assembly Constituency was captured at about 10 a.m. By Shri Madhubhai Manyabhai Damor, Sarpanch of village Sabli, who is a BJP worker along with his supporters. Sarpanch Madhubhai Manyabhai Damor was working for the election of respondent Babubhai Katara within his knowledge and with his consent. He along with his 50-60 supporters threatened Shri Abhesing Tarar who was polling officer at the aforesaid polling station 190, Sabli and other officers on duty. Abhesing Tarar is the Headmaster of Shangal Prathmik School, Meghraj Taluka,Sabarkantha District and he was posted as polling officer at the aforesaid polling station. Sarpanch Madhubhai Manyabhai Damor and his supporters forcibly snatched the voting machine and gave threat of dire consequences to Abhesing Tarar and other officers on duty and cast bogus votes as if genuine voters have voted. In the said polling station the total number of voters are 1217, out of which 971 votes are recorded.