IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER Gyandev Ahuja Versus Juber Khan & others Election Petition No. 2/2004, under section 81 read with section 100 of Representation of People Act, 1951 and Conduct of Election Rules, 1961, challenging election of respondent No.1-Juber Khan from Ramgarh (Alwar) Legislative Assembly Constituency. Date of Order : March 18, 2008 PRESENT HON'BLE MR JUSTICE ASHOK PARIHAR Mr SR Surana – for petitioner Mr RP Singh Mrs Sheetal Mirdha Miss Anupama Parashar – for respondents BY THE COURT: Rajasthan Legislative Assembly Elections were held on 1.12.2003. Nine candidates, including petitioner and respondents, contested the election for Ramgarh (District-Alwar) Assembly constituency. The results were declared on 4.12.2003. Respondent No.1-Juber Khan was declared elected to the above Ramgarh Assembly Constituency by a margin of 783 votes. Petitioner contested the election on behalf of Bhartiya Janta Party, whereas, respondent No.1-Juber Khan contested the election as a candidate of Indian National Congress. Present election petition has been filed challenging election of respondent No.1 mainly on the grounds of assistance been sought from the government officials, booth capturing and voters belonging to weaker sections of the society been deprived of casting their vote been threatened and intimidated by the supporters of the winning candidate affecting the above elections materially. As per pleadings of the parties, following issues were framed by this Court vide order dated 1.11.2004:- “1.Whether the pleadings of the Election Petition are sufficient as required under the law and raises issues connected with requirement of section 100 of the Representation of People Act, 1951? 2.Whether large scale booth-capturing was done by respondent No.1 and his workers with his consent as alleged in the Election Petition and no effective steps were taken by the authorities in spite of written complaints made by the petitioner and his workers? 3.Whether assistance of gazetted officers was taken by the respondent No.1 for prospect of his election as alleged in the Election Petition? 4.Whether forged and frivolous casting of votes took place in various manners as alleged in the Election Petition? 5.Whether the Electronic Voting Machine stopped working at 9.30 AM after 150 votes had already been cast at Polling Station No.44 and second voting machine having installed there, however, the votes cast in the first voting machine were not counted by the Returning Officer as alleged in the Election Petition? 6.Whether the application of re-counting of votes submitted by the petitioner was improperly rejected and improper counting of votes, as alleged in the Election Petition, was done? 7.Whether on account of non-compliance of provisions of the Representation of People Act, 1951 and the Conduct of Election Rules, 1961 and by commission of corrupt practice the result of election as far as respondent No.1 is concerned has been materially affected? 8.Relief?” As per request made by learned counsel for the parties, issue No.1 was also to be decided at the time of final hearing. 20 witnesses, including the petitioner himself, were examined in support of election petition, whereas, respondent No.1 examined 33 witnesses. Certain documents have also been filed on behalf of both the sides. Petitioner, in his affidavit, did not press the allegations mentioned in the election petition covered by issues No.3, 4 and 6. Mr SR Surana, learned counsel for the petitioner, submitted that every citizen of the country has a right to cast vote without fear and favour, however, in the present case, there have been large scale affray, assault and threatening to voters by respondent No.1, his agents and supporters as well. It has been submitted that large number of voters belonging to weaker section of society in respective areas were deprived of casting their vote. It has further been submitted that in spite of repeated complaints been made by the petitioner before and during the course of election, sufficient preventive measures were not taken by the authorities concerned. As per evidence produced on behalf of petitioner, respondent No.1 and his agents not only threatened voters but indulged in creating large scale chaos by throwing stones and giving beating by lathies and certain booths were almost captured by respondent No.1 himself and his agents. Some of the witnesses sustained injuries and deprived of casting their vote have clearly named respondent No.1 and his agents, however, no cross examination to that extent has been made of such witnesses on behalf of respondent No.1, as such, the statements made by the witnesses have to be accepted. It has also been submitted that though the plea of alibi has been taken by respondent No.1, however, it has not been proved at all in so far as the witnesses produced on behalf of the petitioner have not been cross examined on the point of presence of respondent No.1 and his agents at particular place where booth capturing has been alleged. While relying on various judgments of Supreme Court, Mr Surana has submitted that apart from statements of witnesses, injury reports and complaints to the concerning authorities as also police have been submitted on behalf of the petitioner, however, the evidence so produced on behalf of the petitioner have not been properly rebutted by the respondent No.1 at all. Mr RP Singh, learned counsel appearing on behalf of respondent No.1, on the other hand, has submitted that the election petition is liable to be dismissed on issue No.1 itself since the same is lacking material particulars. It has been submitted that issues No.3, 4 and 6 been abandoned by the petitioner, the burden heavily lies on the petitioner to prove the allegations of booth capturing, threatening and intimidation by the respondent No.1, his agents and supporters, more so, when booth capturing is also a criminal offence and has to be proved beyond reasonable doubts. Even if there has been some disturbance at particular polling booths after closing of the voting, consent of a candidate or his agent in any such disturbance as alleged has to be proved. Mr Singh further submitted that there have been material contradictions in the statements made by witnesses produced on behalf of the petitioner but even the documents so produced in support of the allegations do not carry confidence. Mr Singh has also submitted that so far as allegations of Electronic Voting Machine (EVM) at Polling Station No.44 having been stopped due to some mechanical defect is concerned, the voting machine at the above polling station was immediately replaced and all voters, who had earlier cast their vote were again allowed to cast their votes on the new electronic voting machine. Even otherwise, the number of votes already cast on the defective voting machine will not materially affect the ultimate result of the elections. Further, no complaint, whatsoever, was made by any individual voter that he was not allowed to cast his/her vote again on the voting machine so replaced. Mr Singh further submitted that presence of respondent No.1 on the alleged place of incident has specifically been denied, however, even above allegations are falsifies from the FIR lodged on behalf of the petitioner to the extent that name of respondent No.1, who was the main contesting candidate, had been shown much lower in the list of accused and further in the same FIR the charge sheet has been filed by the police against a different person by the name of Juber Khan as is evident from father's name of respondent No.1 as also Juber Khan against whom the charge sheet has been filed. Having considered submissions of counsel for the parties, I have carefully gone through the material on record, relevant provisions of law as also judgments cites at the Bar. Relevant provisions of Representation of the People Act, 1950 (hereinafter to be referred to as 'the Act of 1950') as applicable in the present matter are reproduced hereasunder:- “83.-Contents of petition. - (1) An election petitioner - (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings: Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petitioner. 100. Grounds for declaring election to be void.-[(1) Subject to the provisions of sub-section (2) if [the High Court] is of opinion - (a)... (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c )... (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected - (i)by the improper acceptance or any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate [by an agent other than his election agent], or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, [the High Court] shall declare the election of the returned candidate to be void.] 123. Corrupt practices.- The following shall be deemed to be corrupt practices for the purpose of this Act:- (1) to (7) ..... [(8) Booth capturing by a candidate or his agent or other person.] 135A. Offence of booth capturing.-(1) Whoever commits an offence of booth capturing shall be punishable with imprisonment for a term which [shall not be less than one year but which may extend to three years and with fine, and where such offence is committed by a person in the service of the Government, he shall be punishable with imprisonment for a term which shall not be less than three years but which may extent to five years and with fine.” As per provisions of section 83 only a concise statement of the material facts on which petitioner relies is to be given in the election petition. The petitioner may also give full particulars of any corrupt practice as also statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. A bare reading of the election petition would show that petitioner has tried to give all the material facts and particulars as alleged in support of his election petition so as to comply with the conditions of section 83 of the Act of 1951. The particulars and allegations can only be proved by way of evidence at subsequent stage. Under the circumstances, issue No.1 is decided in favour of petitioner. Issues No.3, 4 and 6 have already been abandoned by the petitioner, as such, only issues No.2, 5 and 7 are now remain to be decided. It may be pertinent to mention here that only contesting candidates have been impleaded as party to the election petition. As has been admitted on behalf of both the sides, a Central District Observer, an IAS officer from Kerala cadre, 12 Zonal Magistrates and 2 Area Magistrates were deputed to supervise the election in the constituency in the present matter. There have been Returning Officers on each Polling Station as also the police personnel to maintain law and order. Though, it has been alleged that petitioner and his agents have been making regular complaints to the authorities concerned prior to and during the course of election, in spite of serious allegations made against the authorities also, none of the authorities have been impleaded as party to the election petition nor any documents or record whatsoever have been summoned in support of the allegations so made by the petitioner. If there would have been any disturbance or law and order problem, only official record could have supported the allegations made by the petitioner, more so, when there is no allegation of official record been manipulated by the authorities of the Election Commission. It appears that in absence of any record to substantiate the allegations made against the officials, petitioner abandoned and did not press the allegations made in regard to issues No.3, 4 and 6. So far as issue No.5 is concerned, it has been submitted on behalf of the respondent No.1 that Electronic Voting Machine at Polling Station No.44 was immediately replaced by the authorities and all voters, who had already cast their votes, were again allowed to cast their votes. In absence of any evidence as to how many voters were not allowed to cast their votes after replacement of the voting machine the allegations so made cannot be held to be proved. Thus, issue No.5 is decided against the petitioner. As regards issue No.2, the petitioner has examined 12 witnesses, who have stated that while standing in queue for casting their votes, the respondent No.1 and his agents, all of a sudden, attacked them by throwing stones and giving beating by lathies. They were forced to run away from the polling booth depriving from casting their votes. Some of the witnesses had also alleged to have sustained injuries. There are other witnesses produced on behalf of the petitioner who have tried to prove the presence of respondent No.1 and his agents on the place of alleged occurrence. Only one witness has proved the certified copies of two FIRs as also photo copies of injury reports of some of the injured persons in the alleged incident. Copies of some of FAX messages and complaints made by the petitioner and his agents to the authorities prior to and during the course of election have also been submitted. There have been two sets of witnesses and the respective affidavits submitted in both the sets appears to be cyclostyled. One of the witnesses has also submitted the list of voters entered twice in the voters list, list of voters already dead at the time of election and list of voters either in jail or hospital. On the other hand, respondent No.1 has produced all those persons against whom allegations have been made in the election petition. They have categorically denied the allegations made by the petitioner. The witnesses produced on behalf of the respondent No.1 have also denied presence of respondent No.1 categorically at the time and place of alleged incident. Statement of none of the witnesses, so produced on behalf of the respondent No.1, has been shattered so far. Some of the witnesses produced on behalf of the respondent No.1, has also given names of persons who alleged to have been deprived from casting their votes but, in fact, had cast their votes on the date of polling. Hon'ble the Supreme Court in the case of 'Manohar Joshi Versus Damodar Tatyaba' reported as (1991) 2 SCC 350 has held that where a corrupt practice is alleged the trial of election petition on such charge is of a quasi-criminal nature and a heavy burden rests on the person alleging the corrupt practice to prove strictly all the ingredients of the charge. This is as it should be, since the naming of a person as having committed corrupt practice has a serious consequence of disqualifying him from being chosen as or from being member of any House of Parliament or of the Legislative Assembly or Council of a State for a period up to 6 years. In case of 'Baldev Singh Mann versus Gurcharan Singh' reported as (1996) 2 SCC 743 the Hon'ble Supreme Court has further observed as under:- “It is well settled that an allegation of corrupt practice within the meaning of sub-sections (1) to (8) of Section 123 of the 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. 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 besides the disqualification 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 135A 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 case on preponderance or probabilities. The evidence has, therefore, to be judged having regard to these well settled principles.” Apart from material contradictions in the statements made by the witnesses of the petitioner in regard to nature and time of alleged incident, in absence of any official record or witness, which could be summoned by the petitioner, allegations so made cannot be held to be proved. Elections are held under the supervision of the Election Commission and there is a legal presumption that the Election Commission and the authorities working thereunder hold and supervise the entire election independently. Some areas, in the present matter, had already been declared either sensitive or very sensitive by the Election Commission and apart from Central District Observer been deputed, 12 Zonal Magistrates and 2 Area Magistrates were also there to supervise the entire elections in the constituency in question besides the District Magistrate as also the Additional District Magistrate. Except for sending the complaints by FAX messages directly to the Election Commission no complaint, whatsoever, had been made on behalf of the petitioner to the above authorities. Though, photo copies of some injury reports have been submitted by one of the witnesses produced on behalf of the petitioner, however, signatures on the injury reports of the injured person have not been proved so far nor any such injured persons have been produced and, even if produced, they have not proved their signatures on the respective injury reports. Even presence of respondent No.1 on the place of incident is falsified from the fact that in the FIRs, as produced before this Court, the name of respondent No.1, who was main contesting party and against whom all the allegations have been made, has been shown much lower in the list of accused. It has also come on record that there have been five persons in the constituency in question by the name of Juber Khan and, in view of categorical denial on behalf of the respondent No.1 and the witnesses produced on his behalf in regard to his presence and involvement in the alleged incident the allegations so made by the petitioner cannot be held to be proved. On the other hand, as per evidence on record, a valid presumption of alibi can be taken. Having considered entire facts and circumstances, since allegations in regard to booth capturing done by respondent No.1 and his workers with his consent cannot be held to be proved, the issue No.2 is decided against the petitioner. In view of the discussions already made above, the issue No.7 also stands decided against the petitioner. Since issues No. 2, 5 and 7 have been decided against the petitioner and issues No.3, 4 and 6 not been pressed by the petitioner himself, no relief, as sought, can be granted to the petitioner. The election petition is dismissed accordingly as having no merits. There will be no order as to costs. (Ashok Parihar) J. bnsharma