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Shiv Chand Vs. Ujagar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtSupreme Court of India
Decided On
Judge
Reported in(1980)2SCC197; 1980(12)LC261(SC)
ActsRepresentation of the People Act, 1951 - Sections 116A, 123(3), 123(4) and 127A(2)
AppellantShiv Chand
RespondentUjagar Singh and ors.
Cases ReferredShiv Chand v. Ujagar Singh and Anr.
Excerpt:
.....court rightly considered that to be an important circumstance against the appellant and rightly rejected his unconvincing explanation that he did not do so as he did not know that the copy had to be filed with the petition. his explanation that the lapse occurred because of rush of election work, is quite unconvincing as he did not send the copies even after the election was over. 17. the trial court has taken into consideration the fact that there were about 19 per cent harijan voters in the constituency, and out of them only 2 per cent were mazhabi sikhs, and there could possibly be no good reason for the respondent to read or distribute the offending poster at meetings which consisted of persons belonging to other castes also for that would have alienated their support to his..........dated may 25, 1979, dismissing the elections petition by which he had challenged the election of ujagar singh, respondent no. 1, hereinafter referred to as the respondent, to the punjab legislative assembly from the balauna (reserve) constituency. the election was held in pursuance of the notification which was issued under section 15(2) of the acton may 11. 1977. the result of the election was declared on june 14, 1977, according to which the appellant received 18748 votes while the respondent received 21262 votes. the appellant challenged the respondent's election by a petition dated july 29, 1977. it was dismissed by the trial court on october 12, 1977, on a preliminary objection of the respondent. an appeal was brought to this court against the dismissal and was allowed by this.....
Judgment:

P.N. Shinghal, J.

1. This appeal by Shiv Chand under Section 116A of the Representation of the People Act, 1951, hereinafter referred to as the Act, arises from a judgment of the Punjab and Haryana High Court dated May 25, 1979, dismissing the elections petition by which he had challenged the election of Ujagar Singh, respondent No. 1, hereinafter referred to as the respondent, to the Punjab Legislative Assembly from the Balauna (Reserve) constituency. The election was held in pursuance of the notification which was issued under Section 15(2) of the Acton May 11. 1977. The result of the election was declared on June 14, 1977, according to which the appellant received 18748 votes while the respondent received 21262 votes. The appellant challenged the respondent's election by a petition dated July 29, 1977. It was dismissed by the trial Court on October 12, 1977, on a preliminary objection of the respondent. An appeal was brought to this Court against the dismissal and was allowed by this Court's judgment dated August 31, 1978, which has since been reported in Shiv Chand v. Ujagar Singh and Anr. : [1979]1SCR520 . The matter went back to the trial Court which framed six issues on November 20, 1978, and ultimately dismissed the election petition as aforesaid.

2. The petition was filed mainly on the grounds that the election expenses incurred by the respondent were far in excess of the amount prescribed in Section 77(3) of the Act, that the respondent procured the assistance of revenue officer. Vijay Kumar Chri for the furtherance of his prospects at the election that he offered bribe to Harijans of villages Tahliwala Jattan and Birj Hanumangarh, that he published a poster in which he appealed to voters to vote for him on the ground of caste and community, that he used a car, a jeep and other vehicles for carrying voters from one village to another, and that the respondent and his election agent, with one other person, went to the house of one Mal Singh and persuaded him to withdraw from the contest by offering him Rs. 10,000/- as illegal gratification etc.

3. The respondent traversed the allegations and denied, inter alia, the allegation regarding the publication of the poster by him or his election or other agent, or the distribution thereof at the villages mentioned in the petition.

4. As has been stated, six issues were framed by the trial Court on November 20, 1978. Of these, issues Nos. 1, 5 and 6 were not pressed at the time of the arguments in the trial Court. The trial Court therefore gave its findings on the remaining issues Nos. 2, 3 and 4. As it happens, learned Counsel for the appellant has not challenged the findings of the trial Court on issues Nos. 2 and 3, so that we are only concerned with its finding on issue No. 4. That issue reads as follows:

Whether respondent No.l is guilty of corrupt practice as defined in Section 123(3) and Section 123(4) of the Act, as alleged in paragraphs 19 and 20 of the petition?

The issue as framed makes a mention of Sub-sections (3) and (4) of Section 123 of the Act but it is not disputed before us that Sub-section (4) was not applicable to the controversy as it relates to publication of any statement of fact which is false, and which is believed to be false on is not believed to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election. A reference to paragraphs 19 and 20 of the petition will bear out that the alleged corrupt practice really related to Sub-section (3) of Section 123 of the Act and the controversy before us has been confined to it.

5. The allegation in paragraph 19 and 20 of the election petition was as follows:

19. That respondent Ujagar Singh published a poster in which he appealed to the voters asking them to vote in his favour on the ground of caste and community. Shri Ujagar Singh is Mazhabi Sikh and in the poster he asked the Mazhabi Sikh voters of the ilaqa to vote for him to safeguard the interests of the community. The poster was printed, published by Sidhana electric Press, Abo-har. Shri Ujagar Singh, respondent, held a public meeting in village Bruj Hanumangarh on 9-6-1977 at 5.00 P.M. in Harijan Dharam-shala. Shri Ujagar Singh read out the contents of the poster and distributed the same also among the villagers. Balraj Singh son of Charan Singh and Tek Singh son or Sardara Singh were present among others in the meeting. Similarly on the same day at 7.00 P.M. a meeting was held in village Tahliwala in Harijan Dharam-shala. The contents of the poster were read and an appeal was also made by Ujagar Singh to vote for him because he was Mazhabi Sikh. There is a large number of Mazhabi Sikhs in the Balauna Constituency.

20. That on 8th of June, 1977 Shri Ujagar Singh respondent visited village Aslamwala and he addressed a public meeting in the village school at 5.00 P.M. There also he made an appeal in the name of the community and also distributed posters. Among others Pargar Singh, Sarpanch was also present in the meeting. The same day Ujagar Singh held a public meeting in Chopal of the village Mdradwala Dal Singh. The posters were distributed among the people and Ujagar Singh appealed to the voters to vote for him as it would be in the interest of the Mazhabi Sikh Community. Among others Harmohinder Singh was also present in the meeting.

As has been stated, the respondent denied the above allegations, and the trial Court recorded the finding that the petitioner had not been able to prove beyond reasonable doubt the printing of the alleged poster Ex. PW 14/4 at the instance of the respondent or its existence before the date of the poll. The Trial Court observed that on account of that finding, it was not really necessary for it to go into the question of publication of the poster but; even so, it examined that aspect of the controversy also and recorded the further finding that it could not be established that the poster was published by the respondent in the manner alleged in the election petition. The trial Court therefore dismissed the election petition as aforesaid.

6. The appellant examined several witnesses in regard to issue No. 4 and produced some documentary evidence including cash memo Ex. PW 14/1 with the allegation that if formed part of the return of the election expenses of the respondent. He also placed reliance on cash memo book Ex. PW 14/2, the alleged manuscript Ex. PW 14/3 of the printed poster Ex. PW 14/4 and some other documents.

7. It is not disputed before us that the appellant did not file poster Ex. PW 14/4 with his election petition dated July 29, 1977, although he stated during the course of the cross-examination that he came to know about its distribution as early as June 12, 1977, from Balraj Singh and Tek Singh of village Burj Hanumangarh and that they handed over two or three copies of it to him. So when the appellant claimed that he was in possession of copies of the poster on June 12, 1977, which was the date of the poll, there was no reason why he should not have enclosed at least one such copy with the election petition which was filed on July 29, 1977. The trial Court rightly considered that to be an important circumstance against the appellant and rightly rejected his unconvincing explanation that he did not do so as he did not know that the copy had to be filed with the petition. What is worse, the appellant admitted in his cross-examination that he did not even show a copy of the poster to his lawyer, so that on his own showing,he took the hazard of filing the election petition on the ground, inter alia, that the respondent had committed a corrupt practice under Sub-section (3) of Section 123 of the Act, without filing a copy of the offending poster and without even showing it to the lawyer who prepared the election petition.

8. It is significant that when an objection was taken by the Dy. Registrar of the trial Court that the election petition was not accompanied by the Form 'B' list of documents, the appellant took the stand that that was so as no document was being attached with the petition. He went to the extent of stating in the Form that he had 'Nil' document to file with the election petition. The trial Court cannot therefore be blamed if it arrived at the conclusion that the appellant was really not in possession of the poster upto the date of the filing of the election petition.

9. There was one more way of ascertaining whether poster Ex. PW 14/4 was at all is existence and was with the appellant upto the date of the filing of the election petition, namely, to find out whether its contents, or the substance thereof, had been mentioned in the election petition, Paragradhs 19 and 20, which have been extracted above, show, however, that the allegation there in was quite general and vague and there is nothing in them to show that they had been drawn up with specific reference to poster Ex. PW 14/4. The trial Court therefore rightly took the non-production of the poster at the proper stage of trial, as a circumstance against the appellant.

10. It may further be mentioned that although the written statement of the respondent was filed. August 31, 1977, and it was specifically pleaded there that no poster of the nature alleged in the election petition was published by him and that if it had at all been in existence the appellant would have attached a copy of it with the election petition, the appellant did not,even then file a copy of the poster in the trial Court. He did not in fact do so until after the case went back on remand by this Court's order dated August 31, 1978. The case was then taken up in the trial Court on November 3, 1978, and issues were framed on November 20, 1978, and it was thereafter that poster Ex. PW 14/4 was produced by the appellant for the first time on November 27, 1978.

11. All these facts go to show that there is justification, for the argument of the learned Counsel for the respondent that the poster was not is existence until long after the filing of the election petition and that the trial Court rightly reached the conclusion that the claim of the appellant that he had seen or read it on June 12, 1977, was not correct.

12. An attempt was made by the appellant to prove that the poster was really in existence at the relevant time be examining Deputy Superintendent of Police Harbans Lal Vij P.W, 2. The witness was examined to prove that the poster had been seen by the senior staff of the Police on June 10, 1977. He admitted however that he was not posted for duty in the area at the relevant period of time and the constable who was alleged to have seen the poster has not been examined. It cannot therefore be said that the existence of the poster on June 10, 1977, has been proved by satisfactory evidence. Even as it is, the alleged endorsement of the concerned Police Inspector on the poster was that it was 'Routine election propaganda' poster. The Inspector has not been examined. Even as it is, it appears that he did not find anything objectionable in the poster and it cannot be said that the statement of the Dy. Superintendant of Police has established the existence of the offending poster at the relevant time.

13. It has been provided in Section 127A of the Act that no person shall print or publish any election pamphlet or poster which does not bear on its face the names and addresses of the printer and the publisher thereof. As it happens the offending poster does not contain the name of the publisher. Moreover, it has been admitted by Dina Nath P.W. 14, who has stated that the poster was printed in his Sidhana Electric Press Abohar, that he did not comply with the requirement of Clause (b) of Sub-section (2) of Section 127A of the Act for sending one copy thereof to the authorities concerned. His explanation that the lapse occurred because of rush of election work, is quite unconvincing as he did not send the copies even after the election was over. The witness has admitted that he considered the subject-matter of the poster to the objectionable, and obtained the signature of the respondent on the manuscript for the reason but, if that was really so, there was no reason for him to contravene the requirement of Sub-section (2) of Section 127A on pain of trial and punishment by a criminal Court. The trial Court was therefore justified in rejecting the statement of Dina Nath and the other evidence of the appellant about the printing of the poster by or at the instance of the respondent.

14. The appellant heavily relied on voucher Ex. PW 14/1 as to cash memo for the printing work which was done by Dina Nath P.W. 14 for the respondent and it was the appellant's case that it was enclosed by the respondent with the return of his election expenses. The entry in the voucher was to the effect that the subject-matter of the poster was an appeal by the respondent to the Mazhabi Sikh brothers. That was, therefore, prima facie, a self-inculpatory assertion on the part of the respondent and if, as was alleged by the appellant it had really been filed by the respondent alongwith his return of election expenses, the appellant would have relied on its evidentiary value while filing the election petition but that was not so. It was the case of the respondent that voucher Ex. PW 14/1 was a forged document and had been surreptitiously replaced for the genuise voucher in his returns of expenses. The trial Court has carefully examined this aspect of the controversy and has dealt with it adequan-tely. The voucher was examined by Kedar Nath Prasad R.W. 10 who was Junior Scientific Officer (Documents) in the Central Forensic Science Laboratory, Chandigarh, and he has given adequate reasons for his opinion that there was sufficient evidence to conclude that the voucher Ex. PW 14/1, its perforated part left in the cash memo book and the counterfoil did not originate from the cash book Ex. PW 14/2 from which, it was stated by Dina Nath P.W. 14, to have originated. The witness categorically stated that the voucher Ex. PW 14/1 had been substituted later one The trial Court rightly came to the conclusion that this was really so, and that the statement of Dina Nath about the printing of the offending poster Ex. PW 14/4 at the instance of the respondent is unbelievable.

15. The appellant admitted during the course of his statement in the trial Court that he had inspected the original return of the respondent's election expenses before the filing of the election petition. If so, he must have inspected voucher Ex. PW 14/1 also, and if it really contained the entry which prima facie went to show that the respondent had made an appeal to Mazhabi Sikhs on the ground of caste or religion, there was no reason why he should not have placed reliance on it for proving the alleged corrupt practice. But Form BB shows that he did not do so, and this was another justificable reason for the trial Court to reject the case which the appellant tried to set up regarding the printing and publication of the offending poster Ex. PW 14/4 by or on behalf of the respondent.

16. It is not disputed that the respondent had contested three earlier elections to the Assembly, and the trial Court was not unjustified in taking the view that, being a man of some experience in election matters, he would not have filed voucher Ex. PW 14/1 when, on the face of it, it went to show that he had committed a corrupt practice under Sub-section (3) of Section 123 of the Act. It may be stated further that the appellant's contention, which he tried to establish on the basis of the statement of Dina Nath P. W. 14 that he obtained the signature of the respondent on manuscript Ex. P.W. 14 of the poster, has also been disbelieved by the trial Court and we see no reason to take a different view A reading of Dina Nath's statement leaves the clear impression that he is an untrusthworthy witness.

17. The trial Court has taken into consideration the fact that there were about 19 per cent Harijan voters in the constituency, and out of them only 2 per cent were Mazhabi Sikhs, and there could possibly be no good reason for the respondent to read or distribute the offending poster at meetings which consisted of persons belonging to other castes also for that would have alienated their support to his candidature.

18. For the reasons mentioned above, we have no doubt that the finding of the High Court that the appellant had not been able to prove the printing of the offending poster Ex. PW 14/4 at the instance of the respondent or its existence before the date of the poll, is quite correct and does not call for any interference. In this view of the matter, it is not necessary for us to refer to the evidence of the witnesses who have been examined by the appellant to prove the distribution of the copies of the poster. The trial Court has considered all that evidence, and we see no reason to disagree with its finding that the alleged distribution has also not been proved,

19. In the result, we find no merit in this appeal and it is hereby dismissed with costs.


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