Case: S. Baldev Singh Mann Vs. S. Gurcharan Singh

there were incidents of a large number of booth capturing by Respondent 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 of Central Reserve Police who according to the appellants own evidence were very much present outside the polling station. There is no contemporaneous material or any record to indicate that the appellant or anyone on his behalf had raised even a finger on any of the alleged incidents while admittedly the Returning Officer, Presiding Officers and the Senior Superintendent of Police were available to entertain the complaints if the respondent, his election agent or his supporters had committed acts of corrupt practice. 11. Respondent 1 has examined the Sub-Divisional Magistrate, Shri Meghraj, RW 2 who was the Returning Officer of Dirba 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 any of the contesting candidates either with regard to the booth capturing or regarding illegal casting of votes. Respondent 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 15 who were the Presiding Officers of the Polling Booths Nos. 63 to 69. They all made a consistent and categorical statement that the polling agents of all the contesting candidates 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 incident. 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 Respondent 1, his agent or any other person with his consent or at his instance. On the contrary there is consistent, convincing and satisfactory evidence adduced by Respondent 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 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 1 herein had 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 connection with an election, shall not exceed the amount as specified in the corresponding column of the table given therein. But on going through the 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 adduced by the appellant does not establish the charge of overspending. 13. Learned counsel for the appellant then urged that before recording of evidence an application was made on behalf of the appellant under Rule 93 of the Election Rules read with Section 151 CPC for inspection 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 erroneously rejected by the High Court which caused great prejudice to the appellants case. He also submitted that the appellant had also moved an application for summoning various documents for purposes of cross-examining Respondent 1 but it was also unreasonably rejected by the High Court. We have perused the orders of the High Court dated 14-5-1993 and 23-8-1993 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 prima facie that there was any booth capturing and, therefore, the question of inspection of the desired electoral rolls and packets of 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 application was made when the appellant had already concluded his evidence and the election petition was posted for respondents evidence. Secondly, the said application was not maintainable 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 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 23-8-1993 rejecting the application, 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 of placing any reliance, the appeal deserves to be dismissed.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]8. It is well-settled that an allegation of corrupt practice within the meaning of sub-section (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 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 case on preponderance or probabilities. The evidence has, therefore, to be judged having regard to these well-settledIn sub-para (i) of para 3 of the election petition the allegation made is that on 19-2-1992 at about 7.30 a.m. Respondent 1 in the company of 50 supporters went to the Government High School Building, Dirba where Polling Booths Nos. 62 to 69 were located and threatened Joginder Singh, polling agent of the appellant in the presence of some lectors 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 capturing. Learned counsel for the appellant was unable to specify as to under which sub-section of Section 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 Joginder Singh the election agent of the appellant who is said to have been threatened was not examined by the appellant as a witness to support the saida 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 Respondent 1, his agent or any other person with his consent or at his instance. On the contrary there is consistent, convincing and satisfactory evidence adduced by Respondent 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 has taken a view consistent with the evidence on record and there are no reasons to take a different90 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 connection with an election, shall not exceed the amount as specified in the corresponding column of the table given therein. But on going through the 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 adduced by the appellant does not establish the charge ofhave perused the orders of the High Court dated 14-5-1993 and 23-8-1993 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 prima facie that there was any booth capturing and, therefore, the question of inspection of the desired electoral rolls and packets of 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 application was made when the appellant had already concluded his evidence and the election petition was posted for respondents evidence. Secondly, the said application was not maintainable 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 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 23-8-1993 rejecting the application, cannot be said to bediscussed 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 of placing any reliance, the appeal deserves to be dismissed