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

2. The election for Punjab Legislative Assembly was held in February 1992. The appellant was sponsored by Shiromani Akali Dal as a candidate from 87-Dirba Constituency while Respondent 1 S. Gurcharan Singh was fielded by the Congress Party and Respondent 2 Chet Singh was a candidate set up by Bahujan Samaj Party. Respondent 3 S. Amarjit Singh contested the election from the said constituency as an independent candidate. The date of polling was 19-2-1992 and the result was declared on the next date i.e., on 20-2-1992 according to which Respondent 1 secured the highest number of votes having polled 3072 votes while the appellant had secured only 2624 votes. Respondent 2 had polled 1925 votes and Respondent 3 polled only 75 votes. Respondent 1 having secured higher number of votes was declared elected from 87-DirbaThe appellant challenged the election of the returned candidate, Respondent 1 herein by presenting an election petition under Part VI of the Act for declaring his election as void and to declare the appellant himself as duly elected candidate for the said constituency in place of the first respondent. The appellant called in question the election of Respondent 1 on the allegations that he had indulged in the commission of the corrupt practice of booth capturing by himself and through his agents within the meaning of Section 123(8) read with Section 135-A of the Act. The details of the allegations with regard to various booth capturing are pleaded in sub-paras (i), (ii), (iii), (iv), (v) and (vi) of para 3 of the election petition which have also been reproduced verbatim by the High Court in the impugned judgment. It is, therefore, not necessary to catalogue all those allegations hereinThe second ground on which the appellant based his election petition challenging the election of the first respondent was that Respondent 1 had in fact spent over Rs. 2.00 lakhs on his election in violation of the ceiling limit on expenses provided under Section 77 of the Act read with Rule 90, which also amounts to corrupt practice within the meaning of Section 123(6) of the Act. The appellant has alleged that the return of expenses filed by the first respondent was totally false as bills filed by him were grossly undervalued not representing the correct price and quantity of goods purchased and service hired by him. He also alleged that the first respondent concealed various expenses which were actually made from 31-1-1992 to 20-2-1992 but were not included in the return. The details of alleged items of expenses which are alleged to be not included in the return are stated in sub-paras (i), (ii), (iii), (iv) & (v) of para 4 of the election petition which have also been reproduced verbatim by the High Court in the impugned judgment and therefore it is not necessary to mention their details hereinRespondent 1 resisted the election petition by specifically traversing all adverse allegations made against him. He specifically denied to have indulged or committed any of the corrupt practices of booth capturing either by himself or through his agents. He also denied the allegations with regard to the election expenses exceeding the prescribed limit or the undervaluation of the bills or concealment of any expenses which were actually made by him or his electionThe High Court on the basis of the pleadings of the parties framed the followingWhether the election of Respondent 1 is liable to be declared void on the grounds pleaded in the petition ?2. Whether the petition is liable to be rejected for non-compliance of the provisions of Rule 12(f), Chapter 4-GG of the High Court Rules and Orders, Vol. V and Section 81(3) of the Representation of the People Act ?3. Whether the petition does not disclose any cause of action ?4.2 and 3 reproduced above were decided on 28-11-1993 by order dated 28-1-1993 as preliminary issues and were answered against the first respondent. Thus the impugned judgment deals with only Issue 1 quoted above. On a close scrutiny and critical analysis of the parties evidence on record the High Court came to the conclusion that the allegations of the corrupt practice levelled against the returned candidate are not only vague but indefinite and that the appellant had failed to substantiate the same against the first respondent. The High Court also recorded the finding that from the evidence adduced by the appellant it could not be concluded that the first respondent made expenses beyond the prescribed limit. The High Court observed that the appellant had cooked up false pleas for setting aside the election of the returned candidate and that he fabricated evidence with impunity to support the allegations. The High Court, therefore, dismissed the election petition with costs by the impugned judgment against which this appeal has been directed

Court's reasoning:
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