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Mange Ram Vs. Brij Mohan and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtPunjab and Haryana High Court
Decided On
Case NumberElection Petn. No. 8 of 1982
Judge
Reported inAIR1985P& H6
ActsRepresentation of People Act, 1951 - Sections 30, 98, 100(1), 123, 123(1) and 123(4); Contempt of Courts Act
AppellantMange Ram
RespondentBrij Mohan and ors.
Cases ReferredPaokai Haokip v. Rishang
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....orderthe notification calling upon the various constituencies of the haryana legislative assembly, including jind (48) legislative assembly constituency, to elect their representatives was published on 17-4-1982. the election commission appointed the following dates under s. 30 of the representation of people act, 1951 (hereinafter called the act):-(a) last date for making nominations 24.4.1982(b) date for scrutiny of nominations 26.4.1982(c) last date for withdrawal 28.4.1982(d) the date of poll 19.5.1982 in all 26 persons filed nomination papers for seeking election to the jind constituency. on scrutiny 24 nomination papers were found to be valid. out of them ten persons withdrew their candidature within the time allowed by law.2. in all 14 candidates remained in the field as contesting.....
Judgment:
ORDER

The Notification calling upon the various constituencies of the Haryana Legislative assembly, including Jind (48) Legislative Assembly Constituency, to elect their representatives was published on 17-4-1982. The Election Commission appointed the following dates under S. 30 of the Representation of People Act, 1951 (hereinafter called the Act):-

(a) Last date for making nominations 24.4.1982(b) Date for scrutiny of nominations 26.4.1982(c) Last date for withdrawal 28.4.1982(d) The date of poll 19.5.1982

In all 26 persons filed nomination papers for seeking election to the Jind Constituency. On scrutiny 24 nomination papers were found to be valid. Out of them ten persons withdrew their candidature within the time allowed by law.

2. In all 14 candidates remained in the field as contesting candidates. Their names, symbols allotted to each of them and their party affiliations are given below:-

S.No 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. Name of the Candidate. Sh. Mange Ram S.o. Sh. Patram Dass Sh. Brij Mohan Sh. Rishi Raj Sh. Om Prakash Sh. Karan Singh Sh. Gulab Singh Mr. Janki Sh. Diwana Sh. Devi Dyal Sh. Mange Ram S/o. Sh. Badri Prasad Sh. Raj Kishan Sh. Ram Kumar Sh. Ram Charan Sh. Hawan Singh Symbol Hand Famer ploughing field Horse and Rider Lion Hurricane Lamp Two Leaves Tractor Chair Elephant Bow and Arrow spade and Stocker Bicycle Camel Scale Party Congress (I) Lok Dal Independent ' ' ' ' ' ' ' ' ' ' Congress (J)

3.The voting took place on 19-5-1982. The counting of votes was held on 20-5-1982. The result declared by the Returning Officer indicating the number of votes alleged to have been received by each candidate is as follows:-

1. Sh. Mange Ram S.o. Sh. Patram Dass 2. Sh. Brij Mohan 3. Sh. Rishi Raj 4. Sh. Om Prakash 5. Sh. Karan Singh 6. Sh. Gulab Singh 7. Mr. Janki 8. Sh. Diwana 9. Sh. Devi Dyal 10. Sh. Mange Ram S/o. Sh. Badri Prasad 11. Sh. Raj Kishan 12. Sh. Ram Kumar 13. Sh. Ram Charan 14. Sh. Hawan Singh 26,899 27,045 194 222 160 100 375 353 516 78 215 115 1,036 540

4. Consequently, Sh. Brij Mohan Singla respondent 1 was declared elected by the Returning Officer. Sh. Mange Ram petitioner, who was a candidate of the Congress (I) party and who had obtained the next highest votes, has filed the instant petition challenging the election of respondent 1. The petitioner has alleged that respondent 1 committed corrupt practices of bribery as defined in S. 123(1) of the Act, as well as the corrupt practice of publication of various statements of facts which were false and which related to the personal character of the petitioner. It has further been alleged that the result of the election insofar as it relates to the returned candidate has been materially affected on account of en masse violation of the statutory provisions. The petitioner also claims that there was large scale reception of votes in favour of the returned candidate which were void and if these votes were excluded it would be found that the petitioner and not the returned candidate obtained a majority of the votes. On the basis of the grounds aforementioned, the petitioner claims the following three reliefs:-

(a) That the election of respondent No. 1 be declared to be void on the grounds mentioned in the petition.

(b) That it be declared that respondent No. 1 has been guilt of commission of currupt practices and is therefore liable to be disqualified for six years.

(c) A further declaration that the petitioner has been duly elected may also kindly be made.

5. The material facts on which the charge of bribery rests are given in para 9 of the petition. The first instance of this corrupt practice relates to payment of Rs. 10,000/- to Sh. Mange Ram respondent 9 for getting his consent to stand as a candidate in this election with the promise that the returned candidate shall meet all his election expenses. In para 9(a) of the petition, it has been averred that the returned candidate accompanied by Sh. Sita Ram, Comrade Ram Kishan, Sh. Mahavir Prasad and Sh. Amrit Lal approached Sh. Mange Ram respondent 9 at his shop in Puhara Chowk at Jind on or about 20-4-1982 and took him to his house. Sh. Ved Prakash, Sh. Ramdhari and Sh. Hari Kishan also accompanied them. The returned candidate asked Sh. Mange Ram respondent 9 that he should stand as a candidate. The said respondent initially declined to do so because according to him he had no chance to succeed. However, the other persons accompanying respondent 1 persuaded respondent 9 to accept this suggestion. The returned candidate assured Sh. Mange Ram respondent 9 that he would meet all his election expenses and handed over Rs. 10,000/- to him on the spot. The petitioner alleges that the object of respondent 1 to put up Sh. Mange Ram respondent 9 as a candidate was to confuse the voters as this respondent was the name-sake of the petitioner. It is also alleged that subsequently respondent No. 1 used Sh. Mange Ram respondent 9 for corrupt practice of publication of false statement in relation to the candidature of the petitioner.

6. The second instance of corrupt practice and bribery is mentioned in para 9(b) of the election petition. It is alleged that on or about 21-4-1982 the returned candidate accompanied by Dr. S. D. Bindlish, Sh. Sita Rama father of the returned candidate, Sh. Adish Jain Advocate and some other persons went to Sh. Ram Charan respondent 12 at Bharat Cinema. At that time, Dr. Prem Jain and Shri Khan Chand were also present. The returned candidate and the persons accompanying him prevailed upon Shri Ram Charan respondent 12 to stand as a candidate. The said respondent had earlier shown his disinclination to do so on the ground that he had no funds to waste, upon which the return candidate told him that he had brought Rs. 20,000/- and was willing to pay the said amount to him provided he stood as a candidate and earnestly contested to obtain the votes of Balmikis and scheduled caste voters. When Sh. Ram Charan respondent 12 agreed to do so, the returned candidate paid him a sum of Rs. 20,000/- on the spot. Not only that, respondent 1 got appointed Sh. Gulshan Bhardwaj as election agent of Sh. Ram Charan respondent 12. It is alleged that Sh. Gulshan Bhardwaj was a covering candidate of the Lok Dal party which had set up respondent 1 as its candidate.

7. The 3rd item of bribery is mentioned in para 9(c) of the petition. It is alleged that on or about 22-4-1982 the returned candidate accompanied by his father Sh. Sita Ram, Comrade Ram Kishan and Sn. Amrit Lal saw Sh. Om Prakash respondent 3 at his shop in Saree Market, Jind. At that time, Sh.Sham Lal and Sh. Manohar Lal were also present there. The returned candidate told Sh. Om Prakash respondent 3 to stand as a candidate because the returned candidate wanted to utilise his candidature for appointing some polling and counting agents out of his workers and supporters. This respondent agreed to do so and was paid Rs. 5,000/- as bribe. Later on, the returned candidate appointed his close relation Sh. Brahamanand as the election agent of Sh. Om Prakash respondent 3. It is alleged that some other supporters of Bhariya Janta Party, which was supporting the Lok Dal party in this election, were also appointed as polling agents of this respondent.

8. The next charge of bribery mentioned in part 9(d) of the petition relates to the alleged payment of a sum of Rs. 5100/- to Sh. Dalip Singh, Sarpanch of village Panchayat, Kandela, and Sh. Dewan Singh, Secretary of the Backward Classes. It is stated that on 16-5-1982 the returned candidate accompanied by his father Sh. Sita Ram, Comrade Ram Kishan and Sh. Amrit Lal visited village Kandela. There they contracted Sh. Dalip Singh, Sarpanch of the village Panchayat, and Shri Dewan Singh, Secretary of the Backward Classes community. The electors of the Backward Classes were collected in the house of one Dharam Singh. At that place, the returned candidate appealed to them that they should vote for him. They plainly told him that they had been voting for the Congress (I) party and they were intending to vote for the party during the election in dispute also. The returned candidate then had a talk with Sh. Dalip Singh and Sh. Daram Singh separately and then told the gathering that he had been informed that they needed some money for their temple and he was prepared to pay Rs. 5100/- as donation. The electors thanked him. The returned candidate paid a sum of Rs. 5100/- to the Sarpanch of the village Panchayat who handed it over to Sh. Dharam Singh and Sh. Dewan Singh. Thereafter, all the electors assured the returned candidate that they would vote for him and ensured that every vote belonging to their class would go in his favour.

9. The last item relating to the charge of bribery is mentioned in para 9(a) of the election petition. It is said that on 30-4-1982 the returned candidate accompanied by his father Sh. Sita Ram, Sh. Amrit Lal and Comrade Ram Kishan went to village Shahpur and collected the electors including Shri Banarsi Dass, Shri Shurta, Shri Mange Ram. Sh. Puran and Sh. Dewana at the site of the Mandir. The returned candidate made an appeal that the electors of the village should cast their votes in his favour. The voters, however, told him that they would vote for the petitioner because as a Minister he had helped them in the construction of the Mandir. The returned candidate promised that he would donate double the amount if he was assured that the voters would vote for him. The returned candidate also told them that either no receipt be issued for the donation and if at all one was to be issued, the same should be issued for a smaller amount. The returned candidate then sent his donation to Sh. Banarsi Dass of this village. Upon this the voters of this village voted for him.

10. The particulars regarding corrupt (practice?) of publication of false statements as defined in S. 123(4) of the Act are given in para 10 of the petition. Firstly, it is alleged that on 9-5-1982 the returned candidate through his workers and supporters, including Prakash and Harbans Singh PW. 97 got announcement made that the symbol of Shri Mange Ram Gupta had been changed to 'Bow and Arrow' instead of the 'Hand' and that the electors should carefully note that they in order to vote for Shri Mange Ram Gupta should mark their ballot papers on the symbol of 'Bow and Arrow'. This proclamation was publicly made and the loudspeaker used for this purpose was that of Chaman Tent House. On coming to know of this mischievous and false propaganda, the petitioner filed a complaint before the District Election Officer through his election agent. One copy of this complaint was also sent to the Station House Officer, Jind.

11. It was then averred that Bhartiya Janta Party was supporting the candidature of respondent 1--the returned candidate. This party brought out a pamphlet in March, 1982, against the petitioner containing some allegations about the cancellation of a plot allotted to an educational institution. The pamphlet bore the captain 'Bharat Mata Ki Jai' and contained false allegations against the character of the petitioner. Along with this pamphlet, another pamphlet was brought out during the period in the name of Akhil Bhartiya Yuva Sangh. It was titled 'Swal Tatha Appeal'. The questions posed in this pamphlet were-

(a) Whether the voters would vote for the Minister who had given jobs to his relations ?

(b) Whether the electorate would vote for a corrupt minister who used to use the car of a charitable institution and who forcibly forfeited the land of S. D. High School and Dharmashala ?

It goes on to state--

'If not, it is essential in order to save Jind to remove the present corrupt Minister who in his pride claims that he will have cut the hand of the person who raises his finger'.

12. The petitioner claims that these statements were in relation to his personal character, which respondent 1 himself did not believe to be true. According to the petitioner these statements were published to prejudice his prospects at the election. Then, there are three instances mentioned in the petition regarding the distribution of these pamphlets by respondent 1 as well as his workers and supporters.

13. It has also been averred that the returned candidate got stencils cut from Sharma Arts, Jind, and had it printed on the walls throughout the constituency. The stencil in English read 'Don't. vote for corrupt Minister', and the stencil in Hindi read 'Bhirisht Mantri Ko Vote Mat Den'. It is alleged that one Satish Kumar, a relation of the returned candidate, was made in charge of these operations. It has also been alleged that the returned candidate kenw that these solgans were false and yet he had them widely published.

14. The petition then goes on to state some allegations about the misconduct of the Returning Officer and the Presiding Officers at some polling stations. I do not deem it necessary to give details of these facts because it has been stated in the petition that the petitioner was not relying on these facts for the purpose of proving any corrupt practice but was stating them in support of his ground for claiming a recount of the votes. It suffices to mention that some instances have been given of duplicate voting. Voting by others in the name of persons who were dead on the date of the poll, and some who were not present in the constituency on the date of the poll. The petitioner has also mentioned some facts in support of the plea that at the time of the counting the Returning Officer did not act in a fair manner and allowed a situation to arise which greatly benefited the returned candidate.

15. These allegations have been denied by the returned candidate.

16. On the pleas raised in the petition and the written statement, the following issues were framed with the consent of the learned counsel for the parties:-

1. Whether respondent No. 1 is guilty of commission of corrupt practices of bribery under S. 123(1) of the Re-presentation of People Act, as alleged in para 9 of the petition Opp.

2. Whether respondent 1 is guilty of corrupt practice of publication of statements of false facts in relation to the personal character and conduct of the petitioner and in relation to the candidature of the petitioner as defined in S. 123(4) of the Act as alleged in para 10 of the petition Opp.

3. Whether the certain electors were registered at two places as alleged in para 11-B of the petition and they exercised their votes at both the place? If so, whether they voted for respondent 1 and their votes are liable to be excluded from counting from the account of respondent 1 on the ground of being void votes? Opp.

4. Whether the persons mentioned in para 11-C of the petition were dead on the date of poll and still the ballot papers were issued in their names and marked in favour of respondent 1 and if so, whether the same are liable to be excluded from the account of the respondent 1 on the ground that the same are void votes Opp.

5. Whether the electors mentioned in para 11-d of the petition were absent from the constituency on the date of poll and their ballot papers were obtained by impersonation and marked in favour of respondent 1, if so whether their votes are liable to be excluded from the account of respondent 1 on the ground of these being void votes Opp.

6. Whether any ballot papers marked in favour of the petitioner were or wrongly rejected as alleged in para 13 of the petition? Opp.

7. Whether there has been any improper reception of any votes in favour of respondent No. 1, if so how many Opp.

8. Whether there has been any non-compliance with the provisions of the Act and Rules and orders, which resulted in inflating the numbers of votes in favour of respondent 1, and reducing the numbers of votes in favour of the petitioner, if so, how may votes are to be excluded from the account of respondent 1, and how many votes are to be added in the account of the petitioner as alleged in para 14 of the petition? Opp.

9. Whether any postal ballot papers received in time had not been counted as alleged in para 17 of the petition? Opp.

10. Whether the result of the election in so far as respondent 1 is concerned has been materially affected on the basis of the findings on issues Nos. 1 to 9? Opp.

11. Whether the petitioner has made out a case for recounting in para 11 to 21of the election petition, if so, to what extent and in what stages Opp.

12. Relief.

17. At this stage, I would like to mention that issues Nos. 3, 4 and 5 relate to persons--

(a) who allegedly exercise their right of vote at more than one place ;

(b) who were dead on the date of poll and still votes were cast in their names; and

(c) who were not present in the constituency on the date of the poll and yet the votes were case in their names.

18. Issues Nos. 6 and 7 relate to improper rejection and improper reception of votes. Issue No. 8 is also on the same subject. On issue No. 9, no evidence was led. Issue No. 11 relates to the prayer for recount made by the petitioner.

19. After going through the evidence led by the parties on these issues, I declined the prayer for recount vide my order dt. 7-4-1984. In coming to this conclusion, I was persuaded by the fact that the number of votes which had been prima facie wrongly received were less than the margin of votes by which the returned candidate had defeated the petitioner. I do not propose to repeat my findings on these issues.

20. Issues Nos. 1, 2 and 8 remain to be decided. Issue No. 1 relates to corrupt practice of bribery. The instances of bribery are mentioned in para 9 of the election petition. It has been alleged that the returned candidate gave bribe to Mange Ram respondent 9, Ram Charan Respondent 12 and Om Prakash respondent 3 for persuading them to stand at the election. It has also been averred that the returned candidate gave bribe to some residents of villages Kandela and Shahpur for soliciting their votes.

21. For proving that sum of Rs. 10,000/- was paid by the returned candidate to Mange Ram respondent 9, the petitioner has produced Hari Kishan P.W. 132. This witness stated that the petitioner was his collateral and related to him as an uncle. Mange Ram respondent 9 was the son of his maternal uncle. When both of them offered themselves as candidates, he and his elder brother Ram Dhari came from Rohtak to persuade one of them to him that he should exercise his influence so that the two Mange Ram, who were closly related, should not contest the election and spoil each other's chances. All three of them them went to the shop of Mange Ram respondent 9. At that time, the returned candidate, his father Sita Ram,. Comrade Ram Kishan and Amrit Lal were sitting there. Mange Ram respondent 9, however, took them to his house. At his house the returned candidate suggested that Mange Ram respondent 9 should continue to fight and Lala Sita Ram, his father, paid a sum of Rs. 10,000/- to Mange Ram respondent 9 in his present. After this amount was paid, Amrit Lal obtained the signatures of Mange Ram Repsondent 9 on the proposal form. In cross-examination this witness admitted that he did not relate this incident to the petitioner. Again, the allegations contained in the petition are somewhat different. Therein it has been mentioned that the returned candidate accompanied by Sita Ram, Comrade Ram Kishan, Mahavir Prashad and Amrit Lal approached Mange Ram respondent 9 at his shop in Puhara Chowk at Jind on 20-4-1982. The latter took them to his house. There the returned candidate asked Mange Ram respondent 9 that he should stand as a candidate. This candidate refused to be a candidate because according to him he had no chance to succeed but the persons accompanying the returned candidate persuaded respondent No. 9 to agree to his suggestion. The returned candidate also assured Mange Ram respondent 9 that he would meet all his election expenses and handed over Rs. 10,000/- on the spot to him to meet the initial expenses. In other words, according to Hari Kishan P.W. 132 the amount of Rs. 10,000/- was paid by Sita Ram, father of the returned candidate and if I were to go by the pleadings, this man was paid by the returned candidate himself. In this situation, it becomes very difficult for me to accept the solitary statement of Hari Kishan P.W. 132 on this point.

22. Regarding the alleged payment of Rs. 20,000/- to Ram Charan respondent 12, the petitioner has produced Dr. Prem Jain P.W. 95. According to this witness, Ram Charan respondent 12 had told him that the returned candidate had offered him Rs. 20,000/- for contesting the election and had also promised to make further contributions. The amount was to be paid on 21-4-1982. Ram Charan respondent 12 told him that he should remain available at the time. This amount was paid to this respondent at the gate of the cinema. The reason given by Dr. Prem Jain P.W. 95 about his presence at the time of payment also looks odd inasmuch as he stated that he had some doubts whether the returned candidate would make this payment or not. On the basis of this statement, I cannot hold that a sum of Rs. 20,000/- was paid by the returned candidate to Ram Charan respondent 12 as an inducement to the latter to stand at the election.

23. No witness has been produced by the petitioner on the point that some money was paid by the returned candidate to Om Prakash respondent 3 in his presence.

24. The learned counsel for the petitioner has argued that it is very difficult to get witnesses on the point of actual payment of money and that there are some other circumstances which go to indicate that the returned candidate offered some other form of help to the aforementioned three respondents from which fact an inference could be drawn that these three respondents had stood up as candidates after receiving some gratification from the returned candidate. In this connection, regarding the payment of bribe to Mange Ram respondent 9, the learned counsel drew my attention to the statement of Harbans Singh P.W. 97 who stated that he had been engaged by the returned candidate to do munadi work and at his instance he had been making proclamations in the constituency that the symbol of Mange Ram respondent 9 had been changed from 'Hand' to 'Bow & Arrow'. It is submitted that the evidence of this witness clearly shows that the returned candidate not only put up Mange Ram respondent 9 as a candidate but also incurred expenses in connection with his election campaign. I am unable to accept this submission. Apart from the bald statement of Harbans Singh P.W. 97, there is no other evidence on the record to show that the returned candidate had engaged this witness for making munadi. Even otherwise if munadi was being made openly some respectable persons in the bazar of Jind would also have heard it. No such person has been produced in the witness-box. Besides, I was myself not impressed by the demeanaour of Harbans Singh P.W. 97. This plea made on behalf of the petitioner is therefore rejected.

25. It was then suggested by the learned counsel for the petitioner that some of the polling and counting agents of the aforementioned three respondents and the returned candidate were common and from this fact I should assume that the returned candidate and the aforementioned three respondents were in league with each other for ulterior motives. The learned counsel also drew my attention to the documentary evidence placed on record which goes to show that some of the persons did work as agents for the returned candidate and the aforementioned three respondents, Mr. Sibal submitted that no such plea was raised in the petition and names of the agents and workers were not put to respondent 1 when he appeared as his own witness.

26. This argument of Mr. Sibal is not of much merit. Firstly, in para No. 9(a), (b) and (c) of the petition some of the names have in fact been given. If respondent 1 felt that these were cryptic, he could have asked for better particulars at that stage. After the evidence has been led, no such objection can be entertained. Secondly, at least two of these instances were indeed put to the returned candidate. He admitted in cross-examination that he had appointed Ram Kumar Jindal as his polling agent at Booth No. 87, Jind. When it was put to him that the said Ram Kumar Jindal was also appointed counting agent to Ram Charan respondent 12, the returned candidate initially denied knowledge of this fact. At that stage, at the request of the learned counsel for the petitioner, polling agent from Ex. RW. 1/1 and counting agent from /Ex. RW 1/2 were shown to him and he was asked to state whether these forms had been signed by one and the same person or not. The returned candidate replied that he could not make any statement on this point. The Court then inspected these two forms and concluded that they had been signed by the same person. The returned candidate also admitted that one Bir Bhan, Municipal Commissioner, Jind was his polling agent at Booth No. 78. He was then questioned on the point whether the said Bir Bhan was also appointed as a counting agent of Ram Charan respondent 12. At that stage polling agent form Ex. R. W. 1/3 and counting agent form Ex. R. W. 1/4 were shown to him and his opinion was elicited whether these forms had been signed by one and the same person or not. The returned candidate again submitted that he was not in a position to make any statement on that point. These forms were then examined by the Court and they appeared to have been signed by the same person. In this view of the matter, it cannot be properly contended on behalf of respondent 1 that he had been taken unawares and had no opportunity to explain the position. There is unmistakable evidence on the record to show that there was some unity of purpose exhibited by some of the agents of the returned candidate as well as some of the agents of respondents 3, 9 and 12. But the proof of these allegations does not take us anywhere. If the evidence regarding the actual payment of bribery to a candidate for inducing him to stand at the election is itself of weak character, such evidence cannot be buttressed by the instances of the type relied upon by the learned counsel for the petitioner. For, ought we know, the returned candidate might have allowed some of his workers to wok for some other candidates also either in good faith or for the purpose of seeing that the votes of his main opponent were divided. If such help is given innocently, it does not amount to a corrupt practice. For reasons aforementioned, I am of the view that the allegations regarding the payment of bribe to Mange Ram respondent 9, Ram Charan respondent 12 and Om Prakash respondent 3 remain unsubstantiated.

27. I would not deal with the allegations of bribery in village Kandela. According to the petitioner, respondent 1 his father Sita Ram and Com. Ram Kishan visited Kandel on 16-5-1982, and met Sh. Dalip Singh Sarpanch and Dewan Singh P.W. 16, Secretary of the backward classes community, in the house of one Dharam Singh and paid Rs. 5100/- as subscription for the construction of a temple belonging to the backward communities in consideration for getting votes of this community. The petitioner has examined Dewan Singh P.W. 16, Mauji Ram P.W. 90, Fateh Singh P.W. 91 and Prehlad P.W. 92 in support of this allegations. Dewan Singh P.W. 16 appeared before me on 25-11-1982. Respondent 1 was also present in Court on that day. The witness made an oral complaint whereupon I recorded the following order:-

'When this witness was given the oath, he made a statement that when the Commission appointed by this Court approached him to get the register, he complied with the order. Thereafter, he has received orders of his suspension and his place of posting has been changed to Narnaul, which is at a distance of 200 miles from his present place of posting. In this connection, the witness produced before me letter dt. Nov. 23, 1982, issued by the District Education Officer, Jind.

When the record in possession of this witness was summoned by this Court, it became known to all and sundry that he would be summoned as a witness. The impugned order passed by the District Education Officer, Jind, suspending and transferring the witness, prima facie, appears to be an order imposing punishment on the witness. The District Education Officer, Jind, is prima facie guilty of Contempt of Court. Let a notice be issued to him to show cause why he be not dealt with and punished in accordance with law. Telegraphic orders to be issued to him ordering him to appear before me on Monday i.e. on Nov. 29, 1982. In the meantime, the order dated Nov. 23, 1982, passed by the Distirct Education Officer, Jind, shall remain suspended. Let a copy of this order be forwarded to the Secretary, Education Department, Haryana Government as early as possible. 'On the basis of this order proceedings under the Contempt of Courts Act were initiated against the District Education Officer, Jind.

These proceedings were closed with the following order:-

'Present: Mr. Harbhagwan Singh, Advocate-General, Haryana, for the respondents.

The learned Advocate-General, Haryana, states that the order of suspension and the order transferring the person concerned would be cancelled.

In view of the undertaking given by the learned Advocate-General, Haryana, I do not propose to proceed furhter in the case. The rule stands discharged.

Sd/-

(M. R. Sharma)

March 31, 1983 Juge'.

28. Apparently, the order of suspension of the witness and his transfer to a place which was at a distance of about 200 miles from his home town was passed even when there was no departmental case against him. An attempt had been made to overawe this witness so that he may not appear as witness in this case. The question arises as to who was responsible for this. When respondent 1 appeared as witness, he was questioned on the subject. The relevant record reads as under:-

'Q. Is it a fact that when Dewan Singh P.W. 16 was cited as a witness by the petitioner, you got him suspended and also got him transferred to another district against the service rules?

A: No. I did not do any such thing. One Excise Inspector has appeared as a witness against me and I have not taken any action against him.

(The witness clarified that the gentleman assisting Shri Mool Chand Jain is also a Government employee, being Legal Advisor in the Haryana Roadways, and that he did not propose to take any action against him for making an unauthorised appearance).

Q: I put it to you that contempt proceedings were initiated by this Court on account of the transfer of Sh. Dewan Singh P.W. 16 and in those proceedings the Government Officials came and swore affidavits that the action was taken at the instance of the Deputy Minister and not by them.

A. I do not know anything about that case'.

29. I have already noticed that when proceedings under the Contempt of Courts Act were ordered to be initiated, respondent 1 was present in Court. In this situation, it is difficult for me to believe that he remained unconcerned about the matter and did not know anything about those proceedings. Interestingly enough respondent 1 even when given an opportunity did not tender any explanation of the type that some Government Officials who were inimically disposed towards him had created that situation to harm his interests. The witness had been summoned to depose with regard to a charge of bribery against respondent 1. It was in his interest to see that this evidence did not come on record. If illegal pressure was brought to bear on a witness who had come to the Court to depose about this charge, the normal inference and presumption would be that the pressure had been brought to bear upon him either by the party which was interested in seeing that damaging evidence was not led against him or by someone else at his instance. I am clearly of the view that respondent 1 had somehow or other secured the order of suspension and transfer of Dewan Singh P.W. 16.

30. In Wills' Circumstantial Evidence, 1936 Edition, the following passage appears at page 145:-

'Amongst the most forcible of presumptive indications may be mentioned, all attempts to pollute or disturb the current of truth or justice, or to prevent a fair and impartial trial, bu endeavors to intimidate, suborn, bribe or otherwise tamper with the prosecutor, or the witnesses, or the officers or ministers of justice, or by the concealment, suppression, destruction or alteration of any article of real evidence; any of which acts, clearly brought home to the prisoner, or his agents, are of a most prejudicial effect, as denoting on his part a consciousness of Guilt and a desire to evade the pressure of facts tending to establish it '.

31. In the 'Law of Evidence' by Woodroffe & Ameerali, 12th Edition, at page 2261, Rule 115 appearing under the head 'The Presumption in disfavour of Innocence' read as under:-

'Rule 115--Also the fact of the destruction concealment or fabrication of evidence by the accused omnia praesumuntur contra spoliatorem'.

32. In Udai Pal Singh v. State of U.P., 1971 Cri App R (SC) 427: (AIR 1972 SC 54) an inference was drawn against an accused person when a false report had been made to the police to create evidence of alibi in his favour. In Criminal Appeal No. 673-DB of 1982. Tej Prakash v. State of Haryana, decided on 13-2-1984, a Division Bench of this Court observed--

'It is thus obvious that the appellant not only tried to suborn the evidence but also tried to create false documents to put the police on the wrong track. Under the law, a strong presumption arises against a party who suppresses or destroys evidence. The applicability of the maxim omnia praesumnutur contra spoliatorem is so strong that it sometimes displaces even the presumption of innocence in favour of an accused person'.

33. There is a slight difference in the mode of proof in civil and criminal cases. Whereas in a civil case a finding can be given on the basis of preponderance of probabilities, in a criminal case a finding of guilt can only be recorded if there is sufficient evidence which proves the guilt of an accused person beyond any shadow of doubt. Even though charge of bribery in an election is akin to a criminal charge, yet in the very nature of things it is a civil dispute. If the plea of innocence raised by an accused person gets shattered on account of an act of misconduct on his part. I see no reason why a respondent arrayed in civil proceedings on a quasi-criminal charge should be treated differently. The evidence led by the parties about these allegations would have to be considered in the light of the principles enunciated above.

34. Dewan Singh P.W. 16 stated that a temple was being constructed by the members of the backward classes. He was the Secretary of the Managing Committee of that temple. On May 15, 1982 respondent No. 1 attended a meeting of the backward classes convened in the house of one Dewan Chand when he volunteered to pay Rs. 5100/- as subscription for the construction of this temple provided the members of the backward classes cast their votes in his favour. This matter was taken up by the members of the community on 16-5-1982. On that day there was some difference of opinion between the members who attended this meeting. This witness suggested that votes should not be cast after accepting money. some other persons put forth the view in the election in any event, there was no harm if money was obtained for a good cause. The witness further stated that a sum of Rs. 5100/- was paid by one Madan Lal who was accompanying respondent 1 to Dharam Singh, who was the president of the Temple Committee. The witness made entry Ex. P.W. 16/2 in the cash book of the Committee Ex. PW. 16/1. He also clarified that respondent 1 accompanied by Sarpanch Dalip Singh, who was his personal assistant, Amrit Lal and Madan Lal had approached them for this matter on 14-5-1982 in the house of Dewan Chand.

35. Mauji Ram P.W. 90 stated that the members of the iron-smith and carpenter communities collected in the house of Diwana carpenter on 14-5-1982. Respondent 1, his father and one Dalip Singh Sarpanch requested the members of the meeting to cast their votes for respondent 1. The people assembled there told them that they will discuss this matter among themselves and let them know. On May 16, 1982, respondent 1 and some other people visited this village again and asked the villagers to vote for respondent 1. The villagers told him that if he paid Rs. 5100/- they would do so. Respondent 1 accordingly paid Rs. 5100/- to Dharma Luhar in the name of the temple.

36. The next witness on the point is Fateh Singh P.W. 91. He also stated that a meeting was held in the house of Diwana Khati, which was attended by respondent 1, his father, Sarpanch Dalip Singh and one Madan Son of Charanji. Respondent 1 and his companions offered to make donation for the temple provided the people present in the meeting and other members of their community would vote for him. The matter was adjourned to the following day. On that day, the people assembled in the house of Dharma ironsmith. Madan Lal who was accompanying respondent 1 paid Rs. 5100/- to Sarpanch Dalip Singh who passed on this amount to Dharma Luhar. The latter promised that the members of his community would vote for him.

37. Prahlad P.W. 92 also stated that in the earlier meeting respondent 1 and his companions promised to make some contributions towards the temple fund provided the members of the backward community voted for him. This matter was adjourned and on 16-5-1982 another meeting was held in the house of Dharma who was the President of the Temple Committee. On that occasion, respondent 1, Madan Lal and sarpanch Dalip Singh were also present. Respondent 1 told Madan Lal to give the money whereupon the latter paid Rs. 5100/- to Dalip Sarpanch who in turn paid this amount to Dharma Luhar. There are of course some minor discrepancies in the statement of these witnesses but all of them categorically stated that respondent 1 offered to pay Rs. 5100/- for the construction of a temple belonging to the backward classes communities provident hey voted for him and this amount was in fact paid when respondent 1 paid another visit to the village on 16-5-1982. One cannot lose sight of the fact that most of the witnesses are simple village folk and they were deposing about this incident more than a year after it had occurred.

38. The learned counsel for respondent 1 argued that there was no mention in the election petition about the earlier meeting in which respondent 1 and his companions are said to have offered the bribe and it must be held that the evidence led is contrary to the pleadings. I do not accept this submission. The non-mention of the earlier meeting in the election petition is at best an omission. It is no doubt true that the affidavit sworn by the petitioner indicates that he had received the relevant information from Dewan Singh P.W. 16 but the petitions are sometimes drafted in a hurry and by the time the information trickles down to the counsel drafting the petition some of it usually gets lost on the way.

39. The learned counsel for respondent 1 then argued that the witness produced on this point did not stand the test of cross-examination. About Dewan Singh P.W. 16, it was stated that according to this witness the sum of Rs. 5100/- was paid to Dharam Singh whereas in the petition it has been mentioned that respondent 1 paid Rs. 5100/- to the sarpanch of the village Panchayat who handed it over to Dharam Singh and Dewan Singh P.W. 16. Similar criticism has been leveled against the other witnesses. I am, however, of the view that when a large number of persons are present in a meeting, the money paid sometimes passes one or two hands and the witnesses who come to depose about such an incident sometimes do falter about the details. It was then argued by the learned counsel for respondent 1 that the statement made by Dewan Singh P.W. 16 about his own contribution was at variance with the entries appearing in the register Ex. P.W. 16/1. On this point, I would like to observe that when this witness appeared in Court he was under an order of suspension and transfer to a far off place. In this situations, it was quite likely that he had lost his composure. Besides, it would be unreasonable to expect members of the backward classes to maintain registers with the efficiency of a businessman. In Jagir Singh v. Jasdev Singh, 1975 Cur LJ (SC) 276: (AIR 1975 SC 1627), speaking for the highest Court of the land, Alagiriswami, J. observed (at p. 1630)--

'Though there are certain suspicious features in this case which the learned advocate for the Ist respondent tried to magnify and blow out of all proportions so as to obscure the real picture, we are satisfied that the central point in the case as to the responsibility of the 1st respondent in getting the offending poster printed has been established beyond all reasonable doubt. Once that is done the question of distribution falls into its proper place'.

40. The existence of suspicious features is much more a serious matter than the existence of mere discrepancies in the statements of the witnesses. Mere discrepancies cannot be equated with suspicious circumstances.

41. What has particularly impressed me about Dewan Singh P. w. 16 is that even though he was a member of the backward classes, he had the courage to withstand the pressure. On the other hand, respondent 1 on more than one occasion took shelter behind loss of memory for instance, he was asked in cross-examination whether he knew Comrade Ram Kishan of Jind. His reply was in the affirmative but when he was put a question 'whether the said Comrade Ram Kishan used to accompany him when he went on door to door canvassing, 'his reply was, 'I do not remember'.

42. In cross-examination, respondent No. 1 stated--

'It is correct that immediately after getting myself elected to the Assembly, I defected over to Congress (I) party.

Q. Is it a fact that you defected because a promise was held out to you that you would be getting a ministerial portfolio?

A. No. No such promise was held out to me. Shri Mange Ram Gupta had also defected from his original party at one stage. Shri Mange Ram Gupta was elected as an independent candidate and he defected over to Congress(I) party. Thereafter, he joined in the Janta party and then again joined the Congress(i) party. These facts have been admitted by the petitioner at page 12 of the election petition'.

43. Not much of intelligence is needed to infer whether a promise for a ministerial portfolio was made to respondent 1 or not at the time of his defection. It is his right to change over from one political party to another if there is a genuine difference of principle. But if he does so for bettering his own prospects, he has also to suffer the consequence that in case he appears as a witness in a Court of law his evidence would be interpreted as that of a political opportunist. Such a person does not mind making investments and adopting all types of means for achieving his goal. Nor is he inclined to lend his services to anybody without charging price for the same. The charge of bribery if levelled against such a person does not necessarily involve that much of burden of proof as is involved when the same is levelled against a person whose conduct is otherwise blemishless.

44. I might also add that respondent 1 admitted in cross-examination that he appointed Dalip Singh Sarpanch of village Kandela as his Political Assistant and after some time relieved him of this job and appointed his brother in his place. did he dole out this favour to a person who served his cause during the election by bringing the members of the backward classes of his village to his fold The answer appears to be in the affirmative. This person took pivotal part in the transaction and yet respondent 1 did not choose to put him in the witness box. I am clearly of the opinion that the denial of respondent 1 about the charge of bribery at village Kandela is meaningless and the evidence led by the petitioner on this point is cogent and convincing. For reasons aforementioned, I hold that respondent 1 is guilty of committing the corrupt practice of bribery as defined in S. 123 of the Act.

45. I may now come to the allegation of bribery in village Shahpur. The petitioner claims that when he was a Minister he made a grant of Rs. 5000/- out of his discretionary amount for a temple to be built at this village. Respondent 1 in order to secure the votes of this village proclaimed that he would donate doubt the amount. The amount actually donated is not mentioned in the petition. The petitioner examined Krishan Lal P.W. 15, Surta P.W. 93, Puran P.W. 94, and Prem Chand P.W. 109 in support of this charge. Krishan Lal P.W. 15 stated that the petitioner contributed Rs. 5000/- towards the cost of construction of the temple in village Shahpur. He further stated that nobody out of the persons sitting in the Court on that day had made any contribution towards this fund. On that day, respondent 1 was also sitting in the Court. He, however, produced a Bahi in which there was a mention that one Sita Ram of Village Brah had contributed Rs. 1100/-. The witness stated that the said Sita Ram was probably the father of respondent 1. In cross-examination, he admitted that the contribution was not made in his presence and he had made the entry in the Bahi on the basis of information conveyed to him by one Kehri. The alleged contribution was entered in the Bahi after making an erasion. At the instance of the learned counsel for the petitioner, I put a question whether in entry Ex. P.W. 15/2 originally the words 'Rs. 10,000/- ' were written which were erased and then Rs. 1100/- were written, the witness answered this question in the negative and asserted that nobody paid Rs. 10,000/-

46. The next witness on the subject is Surta P.W. 93. According to him, respondent 1 came to his village and paid Rs. 1100/- to one Kehri Jat and promised to pay Rs. 10,000/- more. This witness was not a member of the Temple Committee and was not likely to be present when the alleged payment was made.

47. Puran P.W. 94 stated that Rs. 1100/- were paid on 15-5-1982 and Rs. 10,000/- were promised to be paid later. He was, however, not able to state the date on which the petitioner had made a contribution of Rs. 5,000/-.

48. Prem Chand P.W. 109 is another witness on the subject who admitted in cross-examination that he was a supporter of the petitioner in the election in dispute. On the basis of this evidence it is not possible for me to hold that respondent 1 has paid any bribe in village Shahpur in order to secure the votes of the residents of that village.

49. The facts giving rise to issue No. 2 are given in para 10 of the petition. The allegations made fall into the following three categories--

(a) Harbans Singh P.W. 96 and Kulwant Rai Sharma P.W. 97, at the instance of respondent 1 made false announcement in the constituency that the symbol of Mange Ram respondent No. 9 had been changed to one of 'Hand' instead of 'Bow and Arrow'.

(b) Posters Exs. P.W. 1/1 and P.W. 1/2 containing false allegations against the character of the petitioner were issued by the Bhartiya Janta Party and distributed in the constituency.

(c) Respondent 1 acquired the services of Sharma Arts, Jind, to cut stencils in English and Hindi for making writings on the walls--'Do not vote for a corrupt Minister'.

50. I have already expressed my opinion that Harbans Singh P.W. 96 was not an acceptable witness. The other persons who deposed about the Munadis made by this witness were Jai Bhagwan P.W. 133--a counting agent of the petitioner, Ishwar Chand P.W. 134--a supporter and a counting agent of the petitioner, and Ram Karan P.W. 135--his election agent. These three persons were highly interested in the petition and I feel it would be wholly unsafe to rely on their statements.

51. Regarding the publication of the posters by the Bhartiya Janta party, the petitioner has produced Sharm Lal P.W. 29 who stated that he was a member of this party and his party did issue these posters. The petitioner has only produced his own agents and supporters, namely Jai Bhagwan P.W. 133, Ishwar Chand P.W. 134 and Ram karan P.W. 135. I am not prepared to rely on the statements of these witnesses.

52. Regarding the cutting of stencils, the petitioner has relied upon the statement of Kulwant Rai Sharma P.W. 97. In examination-in-chief this witness stated that respondent 1 paid him the charges for cutting these stencils. In cross-examination he, however, admitted that one Billa son of Rajinder Gupta had directed him to cut these stencils and that Billa had paid him charges for doing this work. The petitioner has led no evidence to show any connection of that Billa with respondent 1. I am accordingly of the opinion that the evidence led on this point is wholly insufficient to prove this allegation. Issue No. 2 is, therefore, decided against the petitioner.

53. I may now come to issue No. 8. The learned counsel for the petitioner has argued that there was large scale violation of the statutory rules regarding the appointment of polling agents, marking of electoral rolls and the manner in which counting was down. He also submitted that scrutiny made by the Court of the rejected votes indicated that at least one vote was marked with stump of wood and 7 votes were marked with the seal of the Presiding Officer and marking made on these 8 ballot papers show that the same were probably intended to be cast in favour of the petitioner. On this basis, it was argued that the result of the election in so far as it concerned the returned candidate had been materially affected. There is no merit in this plea. It suffices to mention that the decision on this point stands concluded against the petitioner by a decision of the highest Court of the land reported as Paokai Haokip v. Rishang, AIR 1969 SC 663. In that case, the polling stations were changed from the original buildings to some other buildings of which due notification was not issued earlier. The result was that the voters who went to vote at the old polling stations found no arrangements for poll and rather than going to the new polling stations they went away without casting their votes. There was evidence to show that the polling was rather meagre and at least at two polling stations no votes were cast at all. The defeated candidate who lost by 1541 votes only filed an election petition and contended that because of non-compliance with the statuary provisions of the Act and the Rules, the result of the election as far as the returned candidate was concerned had been materially affected. This contention prevailed with the learned Judicial Commissioner who decided the election petition. The matter was taken in appeal to the Supreme Court, which observed as under (Para 12):--

'In our opinion, the decision of the learned Judicial Commissioner that the election was in contravention of the Act and the Rules was correct in the circumstances of this case; but that does not alter the position with regard to S. 100(1)(d)(iv) of the Act. That section requires that the election petitioner must go a little further and prove that the result of the election had been materially affected. How he has to prove it has already been stated by this Court and applying that test, we find that he has significantly failed in his attempt and therefore the election of the returned candidate could not be avoided. It is no doubt true that the burden which is placed by law is very strict; even if it is strict it is for the Courts to apply it. It is for the Legislature to consider whether it should be altered. If there is another way of determining the burden, the law should say it and not the Courts. It is only in given instances that, taking the law as it is, the Courts can reach the conclusion whether the burden of proof has been successfully discharged by the election petitioner or not. We are satisfied that in this case this burden has not been discharged'.

Issue No. 8 is therefore decided against the petitioner.

54. For reasons aforementioned, I hold that respondent 1 committed the corrupt practice of bribery by contributing Rs. 5100/- towards the cost of construction of a temple for the backward classes in village Kandela for getting the votes of the members of the said communities at this election. In exercise of powers under S. 98 of the Act. I declare the election of respondent 1 to be void. The petition is allowed with costs, counsel fee Rs. 5000/-.

55. The operation of this judgment shall remain stayed for a period of two months to enable respondent 1 to challenge its correctness in appeal. However, the appeal if any, filed by respondent 1 comes up for hearing before the Supreme Court on an earlier date, this order shall automatically lapse.

56. Petition allowed.


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