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TMI Blog1984 (10) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... corrupt practice in the main, namely, disturbing a meeting of the Akali Party at a place called Hadur-Shah in Village Gandiwind on May 20, 1980, where the appellant's supporters allegedly used fire-arms and fatally injured one and otherwise inflicted injuries on many others. The relevant allegations in support of this plea are to be found in paragraph 5 of the election petition. The other was an allegation of corrupt practice of bribery with reference to Bagicha Singh Chakiwala. Appellant with his supporters in the course of canvassing is said to have contacted Bagicha Singh on May 28, 1980, at his village Chola-Sahib and asked for votes of his and members of his family. Bagicha Singh was alleged to have told the appellant that uncovered electric wires were dangerously passing over his house and despite his best of efforts he has not been able to get them removed and the sum being demanded for their removal was beyond his means. Bagicha Singh is alleged to have told the appellant that if he got the same removed he would get the votes of himself, members of the family as also of his brotherhood. Appellant promised to get the needful done and approached the Punjab State Electricity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended that it was the practice of this Court in election appeals not to enter into reappreciation of evidence and disturb findings of fact reached by the High Court. Therefore, we should not attempt a re-appreciation of the evidence while dealing with the appeal. He next contended that election disputes were essentially civil in nature. To require the allegations of corrupt practice to be proved as in a criminal charge was not the proper approach. With a view to preserving the purity of the electoral process and sanctity of the democratic system to which our country is wedded, it is meet and proper that charges of corrupt practice should be allowed to be established on the basis of preponderance of probabilities as in civil litigation and not by asking for proof of the allegation beyond reasonable doubt as in a criminal case. We are of the view that these two contentions should be first dealt with in order that a proper approach to the matter can be indicated and once that is done the materials available on record can be assessed for the Purpose of disposal of the appeal. Section 116-C of the Act lays down the procedure in appeal. It provides: "(1). Subject to the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prabodh Chand v. Mohinder Singh; Sumitra Devi v. Sheo Shankar Prasad Yadav Chand Singh v. Shiv Ram; Vital Nagaraj v. R. Dayanand Sagar; and Laxmi Narain v. Chander Singh. In each of these cases, depending on the facts thereof, the Court has made an observation that the trial judge's assessment was entitled to great weight and respect and was, therefore not to be ordinarily interfered with. None of these cases, however, indicated that this Court would not go into the matter if the facts and circumstances warranted a detailed examination or a fresh assessment. We shall presently refer to some of the decisions of the Court where this aspect has also been examined. To start with is the case of Ramabhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji and Ors. disposed of by a five Bench. That was a case prior to amendment of the Act. Under the scheme then prevalent, election disputes were tried by a tribunal and an appeal lay to the High Court and the matter was before this Court by way of appeal by special leave. Dealing with this aspect of the matter, the Court held: "For, as soon as special leave is granted there is an appeal before this Court and while dealing with such an appeal this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents or oral evidence, such evidence will justify this Court to support the contentions of the respondent that the findings of fact arrived at by the High Court are against clear and cogent proof of facts. This Court will, therefore, be justified in recording the correct findings on ample and abundant materials which have been overlooked and ignored by the High Court. In the present case, we have had occasion to deal with these aspects on the rival contentions and recorded our findings." In Sumitra Devi's case (supra), a decision of a three Judge Bench on which Mr. Shanti Bhushan also relied, the Court observed: "It has been the consistent practice of this Court not to interfere with findings on questions of fact unless there is some grave or palpable error in the appreciation of the evidence on the basis of which the findings were arrived at." In Mohd. Yasin Shah v. Ali Akbar Khan, a three Judge Bench referred with approval to the ratio in Laxminarayan v. Returning Officer and said: "The propositions enunciated by this Court are well established and there can be no dispute with the propositions mentioned above. In the instant case, however, we find that the approach of the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of corrupt practice are quasi-criminal charges and the proof that would be required in support of such allegations would be as in a criminal charge. Mr. Shanti Bhushan has canvassed that the standard of proof required in such a case would be dependent upon the gravity of the charge and there is no justification to adopt the rule that in every case of allegation of corrupt practice the standard applicable to a criminal trial involving a grave charge like murder should be adopted. He has drawn support from the observation of this Court in Dr. M. Chenna Reddy v. V. Ramchandra Rao & Ors. It may be pointed out here that the ratio in Chhenna Reddy's case runs counter to the current of judicial thought on the point. In fact, quite close in point of time after Chenna Reddy's case came the case of Magraj Patodia v. R.K. Birla & Ors. Hegde, J. indicated: "It is true that as observed in Dr. M. Chenna Reddy v. V. Ramachadra Rao & Anr., that a charge of corrupt practice cannot be equated to a criminal charge in all respects. While the accused in a criminal case can refuse to plead and decline to adduce evidence on his behalf and yet ask the prosecution to prove its case beyond reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rily is inadequate especially if it is of indifferent quality or orally procurable. In Ch. Razik Ram v. Ch. Jaswant Singh Chouhan & Ors. Sarkaria, J. spoke for this Court in the following terms: "Before considering as to whether the charges of corrupt practice were established, it is important to remember the standard of proof required in such cases. It is well settled that a charge of corrupt practice is substantially akin to a criminal charge. The commission of a corrupt practice entails serious penal consequences. It not only vitiates the election of the candidate concerned but also disqualifies him from taking part in elections for a considerably long time. Thus, the trial of an election petition being in the nature of an accusation, bearing the indelible stamp of quasi-criminal action, the standard of proof is the same as in a criminal trial. Just as in a criminal case, so in an election petition, the respondent against whom the charge of corrupt practice is levelled, is presumed to be innocent unless proved guilty. A grave and heavy onus therefore rests on the accuser to establish each and every ingredient of the charge by clear, unequivocal and unimpeachable evidence beyon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al case... In Manmohan Kalia v. Yash & Ors. a three Judge Bench reiterated; "It is now well settled by several authorities of this Court that an allegation of corrupt practice must be proved as strictly as a criminal charge and the principle of preponderance of probabilities would not apply to corrupt practices envisaged by the Act because if this test is not applied a very serious prejudice would be caused to the elected candidate who may be disqualified for a period of six years from fighting any election, which will adversely affect the electoral process." It is thus clear beyond any doubt that for over 20 years the position has been uniformly accepted that charges of corrupt practice are to be equated with criminal charges and proof thereof would be not preponderance of probabilities as in civil action but proof beyond reasonable doubt as in criminal trials. We are bound by the decision of the larger Bench in Mohan Singh's case (supra) as also by decisions of coordinate benches and do not feel inclined to take a different view. We also find no warrant for the contention of Mr. Shanti Bhushan that a fresh look is necessary in the matter. On the other hand we feel advised to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tures and an election can be declared void only if one or the other of the stated grounds in s. 100 of the Act is attracted. Section 100 (1) (b) provides that if corrupt practice is committed by a returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent, the election of the returned candidate shall be declared void. The relevant provisions in s. 123 may now be extracted: "123. Corrupt practices-The following shall be deemed to be corrupt practices for the purposes of this Act:- (1) 'Bribery', that is to say,- (A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly, of inducing- (a) x x x x x (b) an elector to vote or refrain from voting at an election, or as a reward to- (i) x x x x x (ii) by any person whomsoever for himself or any other person for voting.... or inducing or attempting to induce any elector to vote............ Explanation-For the purposes of this clause the term 'gratification' is not restricted to pecuniary gratificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent No. 1 and caused obstruction in the proceedings of the Jalsa and did not allow S. Lehna Singh Tur to speak. When Piara Singh son of Inder Singh, Daya Singh son of Ishar Singh requested them not to do it and tried to stop them, they got into a rage and started hurling abuses at respondent No. 2, S. Lehna Singh Tur and others and suddenly started firing. On this the people started running for shelter and a shot fired by Gurdial Singh hit Daya Singh son of Isher Singh on his forehead who fell down and the shots fired by the others hit Piara Singh son of Inder Singh, Kehar Sing son of Gujjar Singh and Kewal Singh son of Surain Singh. All the aforesaid persons kept on firing shots which were returned by some people." The Akali Party had organised a meeting in the village to make election propaganda for respondent No. 3 and PW. 4 was the organiser. S. Lehna Singh, PW. 7 who was a sitting Member of the Lok Sabha was to address that meeting. It is the admitted position that the Akali candidate S. Ranjit Singh was not to, and did not, come to the meeting. It is also the common case of both the parties that the appellant who was another contesting candidate also did not come to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rderly manner for the purpose of preventing the transaction of the business for which the meeting was called together, shall be punishable with fine which may extend to two hundred and fifty rupees. (2) This section applies to any public meeting ofa political character held in any constituency between the date of the issue of a notification under this Act calling upon the constituency to elect a member or members and the date on which such election is held...." Undoubtedly the meeting in question is squarely covered by sub-s. (2) of s. 127 and the role assigned to Gurdial Singh and his group would certainly bring it within sub-s. (1) of that section. It is not open to doubt that Gurdial Singh and his supporters in the event of the allegations being accepted had committed an electoral offence within the meaning of s. 127 of the Act. The question that has next to be considered is whether disturbing such a meeting would also amount to undue influence under s. 123 (2) of the Act. Direct or indirect interference or attempt to interfere with free exercise of the electoral right by a candidate, his agent or any person with his consent or the candidate's election agent has been made a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structions given by the appellant to create disturbance at the meeting. The learned trial judge applied his mind to the evidence and came to held: "Whether that omission from the election petition was due to the fact that they had not given these facts to the petitioner, whom, as per their testimony they had met a few days after the announcement of the election result; or had given the version, and the petitioner did not retain in his memory the version that was given to him when instructing the counsel, who drafted the petition. Be that as it may, the fact remains that the version remains omitted from the petition. I am, therefore, out of abundant caution, not prepared to go to the extent of accepting the version of these two witnesses that they had heard respondent No. 1 telling Gurdial Singh and his co-accused to disturb the meeting and the latter having assured him that they would do the needful". We agree with the said conclusion of the learned trial Judge in the facts and circumstances of the case. Mr. Shanti Bhushan next contended that even if the conversation between the appellant and Gurdial Singh and his group is discarded, the fact that the appellant had come to the h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntesting candidates would be present, the Presiding Officer of the polling booth and other public functionaries would also be present. No complaint in writing had been given against the illegal activity of Gurdial Singh within the polling booth. Contemporaneous attention of the Presiding Officer could have been drawn to such nefarious act, if any. There is no evidence that the Presiding Officer or the polling officers had been notified of any such complaint. There is clear evidence also that voting was free and quite a large percentage of the voters had exercised their electoral right. These are circumstances which clearly militate against the allegation of the election petitioners that voters had been threatened and their free exercise of electoral right had been affected. It is difficult for us to accept the submission of Mr. Shanti Bhushan that by appointing a person charged for murder as polling agent the appellant had exercised undue influence. It is not his contention that Gurdial Singh has not the requisite qualification for being appointed as a polling agent and his appointment was bad in law. Mr. Sibal has indicated that until then there was only a charge of murder and he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of his brotherhood also. On this the respondent No. 1 said that he would get the needful done and they should not bother about the expenses involved in case they promised him the votes of his brotherhood. On this Bagicha Singh said that respondent No 2 had also come to him and we had put our problem to him also but he had said that he would help them get the wires shifted after the election. On this the respondent No. 1 said that he would get the needful done before the election and pay the expenses also. On this Bagicha Singh agreed to poll all the votes of his family and also assured that he would help respondent No. 1 in getting the votes of his brotherhood as well". "9. That the respondent No. 1 approached the Punjab State Electricity Board Employees concerned and put pressure on them and also get the amount deposited and the wires were removed on 30. 5. 1980. The respondent No. 1 is guilty of having committed the corrupt practice of bribery as defined under section 123, sub-sections A & B of the Act and his election is liable to be declared void under section 100 of the Act on the ground of this commission of this corrupt practice of bribery. The respondent No. 1 has recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinder Singh said that he would get the needful done before the polling date and that he should not worry. They canvassed two more house and thereafter I left them". The evidence of PW. 12 does not mention anything about the financial aspect involved in the deal though the election petition refers to that part of it. From the documentary evidence it appears that on May 29, 1980, the estimate was prepared and Rs. 944 was required to be deposited. The S.D.O. of the State Electricity Board at Sarhalli sent his estimate to the Executive Engineer whose office was located at Patti, some distance from Sarhalli. The estimate was drawn in the name of Bagicha Singh. The deposit appears to have been made on May 30, 1980, in the name of Bagicha Singh also and the removal was done on the same day. P.W.6 is the S.D.O. who has produced some of the papers and has spoken about events with reference to the record. He was not there at the relevant time and has candidly admitted that he was not personally aware of anything. That an old pending matter where no action was being taken has been done too quickly is not open to doubt. We are prepared to assume on the basis of submissions made by Mr. Shanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegation that he had deposited the amount of Rs. 944 is discarded, his taking up of the cause of Bagicha Singh for early shifting of the electric wires overhanging the first floor of his house would not amount to 'bribe'. At any rate, the evidence on record is only of PW. 12. We do not think that evidence even if accepted as a whole would be sufficient to establish the charge of corrupt practice on this score. This Court has rightly indicated that oral evidence, particularly, coming from a tainted source cannot form the sole basis of proof of corrupt practice. In Younus Kunju's case,(supra) it has been stated: "Admittedly all these witnesses were the workers of the appellant. There is overwhelming material on the record, and even counsel fairly admitted, that the election was fought on party basis and there was sharp division of the electorate on the basis of political parties. That being the position workers at the election with party alignment would necessarily be political supporters of the respective candidates and when called as witnesses they would support their stand. Instances are not uncommon where such witnesses support their respective candidates and their cases though ..... X X X X Extracts X X X X X X X X Extracts X X X X
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