Barinder Kumar Goyal vs Rajinder Kaur Bhattal

N.K. Kapoor, J.—Petitioner has filed this election petition under Sections 80 and 81 read with Sections 100, 101 and 123 of the Representation of the People Act praying for setting aside the election of the respondent from 89Lehra Assembly Constituency, Punjab Vidhan Sabha held in January/February, 1992 with a further prayer for disqualifying her for a period of six years from contesting any election.

According to the petitioner the respondent is guilty of committing corrupt practice of booth capturing by herself and by others on her behalf but with her consent and connivance. According to the petitioner, respondent is also guilty of committing undue influence in terms of Section 123(2) of the Representation of the People Act and for this reason too, the election petition deserves to be accepted thereby disqualifying her from contesting the election for a period of six years. Respondent is also accused of committing corrupt practice of bribery. These allegations alongwith necessary particulars have been mentioned in the election petition.

Pursuant to the notice issued by the Court, respondent put in appearance and has filed written statement. By way of preliminary objections it has been stated that; i) the election petition though contains allegations of commission of corrupt practices against the respondent but affidavit in support of the aforesaid allegations as mandated by the statute has not been filed. Affidavit filed with the election petition is not in confirmity with the statute and so the election petition is liable to be dismissed on this short ground; ii) the election petition has not been properly verified. In fact, the verification is defective and on this ground too the election petition is not maintainable; iii) the averments made in the election petition pertaining to the commission of corrupt practice of booth capturing lack material facts and particulars. In fact, the election petition does not disclose a complete cause of action and so the same is liable to be dismissed at the threshold; iv) the stereotyped allegations have been concocted for the purposes of election petition. According to the answering respondent a number of defeated B.J.P. candidates have filed a number of election petitions levelling stereotype allegations; and v) the petitioner has not filed attested true copies of the election petition as required under Section 81(3) of the Representation of the People Act.

On merits, each one of the para of the election petition has been appropriately replied, denied or controverted. It was, thus, prayed that the election petition deserves to be dismissed with exemplary costs.

On the pleadings of the parties, the following preliminary issues were framed by the Court vide order dated 29.7.1992:

1) Whether the affidavit filed by the petitioner to support the allegations of corrupt practices is not in accordance with the statute ? If so, its effect.

2) Whether election petition is not properly verified ? If so, its effect.

3) Whether the allegations of commission of corrupt practices and booth capturing, made in the petition, lack in material facts and full particulars ? If so, to what effect ?

Matter remained pending for a pretty long time as one or the other counsel expressed his inability to address the Court on dates already fixed. Ultimately, the Court recorded its findings in respect of the preliminary issues in its order dated 4.7.1994. Issues 1 and 2 were decided against the respondent. Under issue No. 3 the Court held that the averments made in Paras 8 to 10 of election petition are irrelevant as these relate to post election period, namely, March 3, 1992. Accordingly, the Court directed that the averments made in Paras 8 to 10 be struck off under Order 6 Rule 16 CPC. The Court further permitted the respondent to state in writing within two weeks from the passing of the order if any further particulars in respect of any of the grounds pleaded are required, so that the petitioner can be called upon more specifically to furnish those particulars if the same are available with him.

The Court framed the following issues :

1) Whether the respondent has committed corrupt practice of booth capturing as alleged in Para 5 of the election petition ? If so, its effect. OPP.

2) Whether the respondent is guilty of corrupt practice of undue influence as alleged in Paras 7 to 11 of the election petition ? If so, its effect. OPP.

3) Whether the respondent is guilty of committing the corrupt practice of bribery as alleged in Para 12 of the election petition ? If so, its effect. OPP.

4) Whether there was any wrongful reception of votes in favour of the respondent ? If so, its effect. OPP.

5) If issue No. 4 is proved, whether the aforesaid reception of votes has materially affected the result of the election in question ? OPP.

and directed the petitioner to file list of the witnesses within a period of two weeks.

In support of the allegations made in the election petition, the petitioner appeared as his own witness as PW1 and examined Shri Sat Pal Sharma son of Shri Daya Nand as PW2 and Sarjit Singh son of Shri Sarwan Singh as PW3 as his witnesses.

In rebuttal respondent produced Narinder Pal Singh, SSP, as RW1 and appeared herself as RW2 to rebut the allegations levelled by the petitioner against her and closed her evidence on 14.2.1997.

Petitioner while appearing as PW1 has reiterated the allegations of corrupt practices of booth capturing, undue influence and bribery having been committed by the respondent and her men as detailed in the election petition. According to the petitioner, respondent and her supporters on the polling day went to village Sekhuwas and threatened the polling staff and as a result of it the polling staff became afraid and so handed over the unused ballot papers to Mrs. Bhattal. Mrs. Bhattal''s supporters put stamp marks on those ballot papers and put them in the ballot boxes and further put forged signatures on the counterfoils of those ballot papers. This way about 300 votes were cast. The Deputy Superintendent of Police, who was on security duty with the respondent asked Davinder Kumar, polling agent of the petitioner, to leave the place at gun point. After this incident no voter turned up at this polling station to cast the vote. Similarly, booth capturing was done by Mukhtiar Singh with the help of the Sarpanch of village Kalia. These persons forcibly took unused ballot papers, marked them and inserted the same in the ballot boxes. Petitioner''s polling agent Shri Suresh Kumar was threatened to leave the polling station. Similarly, Jawant Singh, fatherinlaw of respondent went to village Arakwas alongwith 1015 supporters fully armed, threatened the polling agent and thereafter in a similar manner forcibly took the unused ballot papers, stamp marked them and inserted in the ballot boxes. A similar incident of booth capturing took place in village Rajal Heri. Thus, the respondent and her supporters almost ransacked all the polling booths, the reference to which has been made in the election petition. Despite the protest lodged by the petitioner no action was taken by the authorities, who in fact connived with the respondent as he was holding a high office in the Government. This way the election process was wholly vitiated.

With a view to prove the charge of practicing undue influence petitioner made reference to her visit to the shop of petitioner''s father known as M/s Nohar Chand Tarsem Chand, Commission Agent, Anaz Mandi, Lehra Gagga where she gave a threat to his father that he should desist his son from contesting the poll, else he would be taught a lesson. Similarly, with a view to gain support respondent indulged in corrupt practice of bribery as in one of her public meetings, she donated a sum of Rs. 11,000/ towards Gareeb Pariwar Fund, Punjab solely with a view to elicit their support and it is on account of this allurement the persons of that society not only whole heartedly voted for the respondent but also gave unflinched support.

Counsel for the respondent with a view to demolish the case set up by the petitioner put him to a gruelling crossexamination.

Shri Sat Pal Sharma, PW2, has been examined by the petitioner to support his plea regarding undue influence exerted by the respondent at the incident which took place at the shop of M/s Nohar Chand Tarsem Chand on 15.2.1992. To the similar effect is the statement made by Shri Sarjit Singh, PW3.

To rebut the evidence adduced by the petitioner, respondent examined Shri Narinder Pal Singh, SSP as RW1 and appeared herself as RW2. Statement of Shri Narinder Pal Singh is to the effect that he was overall incharge of law and order problem of the District and since there was threat by the terrorists to disrupt the poll elaborate security arrangements were made by the State Government for holding these elections peacefully. Thus, while making arrangements with regard to holding of peaceful poll in this Assembly Constituency candidates too were provided with the suitable security arrangements.

Respondent in her statement has emphatically denied the various allegations levelled by the petitioner in the nature of booth capturing, undue influence and bribery. According to the respondent these are false and fabricated. According to the respondent election was conducted in a smooth manner and no complaint was made by either of the contesting candidates. Reliance has been placed upon the statement of Shri Narinder Pal Singh, SSP, PW1, who on the basis of record deposed that special security arrangements were made in the election held in 1992 due to the prevailing situation at that time.

The learned counsel for the petitioner after briefly mentioning the broad allegations levelled by the petitioner in his election petition made reference to the statement of the petitioner as well as to the witnesses examined by him and argued that the allegations of booth capturing, undue influence and corrupt practice of bribery stands proved and so the election petition deserves to be allowed as prayed for.

Counsel for the respondent on the other hand argued that petitioner in fact has miserably failed to prove any one of the allegations levelled against the respondent. Evidence adduced is discrepant, unsupported by any documentary evidence and based on hearsay. Allegations levelled are either vague or otherwise unsupported by any corroborative evidence. In fact, the sole purpose of the petitioner appears to merely harass the respondent. This way the petition deserves to be dismissed with costs.

I have heard the learned counsel for the parties for a while as well as perused the evidence adduced by them in the light of allegations levelled in the petition and the issues framed. Petitioner''s evidence pertains to allegations of corrupt practices of booth capturing, undue influence and of bribery.

Before examining the petition on merits, it would be appropriate to deal with the issue:

"Whether election petition is liable to be dismissed on account of noncompliance of the mandatory provision of Section 81(3) of the Representation of the People Act ?"

During the pendency of the election petition respondent filed an application stating therein that as true copy of the election petition has not been supplied to the respondent, the election petition is liable to be dismissed for noncompliance of mandatory provision of Section 81(3) of the Representation of the People Act. Thus, the aforesaid issue was framed. To prove this issue copy of election petition and its annexures were tendered in evidence. Precise prayer of the respondent is that as per Section 81(3) of the Representation of the People Act every election petition is to be accompanied by as many copies as there are respondents mentioned in the petition and each of these copies is to be attested by the petitioner under his own signatures to be a true copy of the petition. Under Section 86(1) of the Representation of the People Act in case there is noncompliance of Sections 81, 82 or 117 of the Act, such a petition is to be dismissed by the High Court. According to the respondent, as per document exhibit R1, copy of the election petition supplied to the respondent, the copy of affidavit accompanying the election petition has not been attested by the prescribed authority as is required by law. Thus, there has been a noncompliance of Section 81(3) of the Act.

No such objection was taken by the respondent in her written statement. It is only during the crossexamination of the statement of the petitioner that a copy of the election petition received by the respondent was put to him and so exhibited as R1. Whether this was the copy supplied to the respondent by the Registry has not been stated so by the respondent. Thus, it cannot be taken that the copy exhibited as R1 was in fact supplied by the Registry and in any case since the evidence has been adduced by the parties on the merit of the controversy, I overrule the objection raised by the respondent and so decide this issue against the respondent.

Issue No. 1

While levelling the allegation of corrupt practice of booth capturing by the respondent and with her consent and connivance by her supporters, the petitioner has given in detail the booths captured by the respondent and her supporters and such incidents witnessed by his supporters. Allegation of booth capturing has been made in respect of polling booth numbers 25 and 26 at Government School, village Sekhuwas, polling booth No. 51 in Government School, Village Kalia, polling booth No. 24 in village Arakwas, polling booth No. 69 in village Rajalheri, polling booth Nos. 70 and 71 at village Hamirgarh, polling booths at village Khai, village Ghorenab, village Raidharana and village Phoolad. A perusal of the allegations levelled in the election petition reveal that at each one of these polling stations the petitioner had deputed persons as his polling agents. However, while adducing evidence none of these persons have appeared as his witness to support the allegations levelled by the petitioner in paragraphs 5(a) to (i) of the petition. Thus, there is a solitary statement of the petitioner with regard to the corrupt practice of booth capturing. Concededly, the petitioner was not physically present at each one of these polling stations when the alleged act of booth capturing was performed by the respondent or at her behest by her supporters. In the absence of any corroborative evidence, I express my inability to accept the statement of the petitioner as a gospel truth. Otherwise too, the statement of the petitioner is discrepant as well as inconsistent in material particulars. Much reliance cannot be placed upon this solitary statement of the petitioner. The statement of the petitioner when examined threadbare brings out that the same is based on information given to him by his supporters/polling agents. Since no such person has been examined to support the version set up by the petitioner the deposition of the petitioner can be said to be hearsay evidence and hence not worthy of credence. Accordingly, this issue is decided against the petitioner.

Issue No. 2

To prove the charge of exerting undue influence by the respondent the petitioner''s evidence consists of statement of himself as PW1, Sat Pal Sharma, PW2 and Sarjit Singh, PW3. Allegation pertains to the visit by the respondent at the shop of M/s Nohar Chand Tarsem Chand owned by petitioner''s father where respondent is alleged to have threatened him with dire consequences in case his son does not desist from contesting the election. This threat is stated to have been given in the presence of PW2 and PW3. This assertion has been emphatically denied by the respondent. She has denied that she went to the shop of father of the petitioner on 15.2.1992 and threatened him with dire consequences unless petitioner withdraws from the contest. Sarvshri Sat Pal Sharma, PW2 and Sarjit Singh, PW3 are the two persons examined by the petitioner to prove that in fact a threat was given by the respondent to the petitioner''s father. Person who has been given threat has, however, not been examined. Shri Sat Pal Sharma, PW1, though had gone to procure oil from the shop of Bhushan Kumar but somehow reached at the shop of M/s Nohar Chand Tarsem Chand and so stated to have heard the threat given by the respondent. This witness in crossexamination has accepted that he has no commercial dealings with M/s Nohar Chand Tarsem Chand. The witness had gone to the shop of Bhushan Kumar. Witness when further crossexamined has, however, declined to state whether this Bhushan Kumar was election agent of the petitioner or not. He also even denied whether Bhushan Kumar was related to Nohar Chand. Much reliance cannot be placed upon the statement of Sat Pal Sharma, PW2 for the reason as it is difficult to believe that he was present at the shop of M/s Nohar Chand Tarsem Chand when some threat was given by the respondent to the father of the petitioner.

The statement of Sarjit Singh, PW3 is a hearsay evidence. He has merely heard while sitting at the shop of one Sohni that Mrs. Bhattal gave threat to Lalaji that he should desist his son from contesting against her.

Thus, the solitary statement made by the petitioner (who of course is not a witness to the occurrence) does not inspire confidence. This allegation of committing of corrupt practice of undue influence is not proved. Accordingly, issue No. 2 is also decided against the petitioner.

Issue No. 3

There is another charge of committing corrupt practice of bribery. As per allegations in the election petition, respondent contacted Shri Yash Pal, Painter, Shri Hukam Chand and Shri Rakesh Kumar, who belong to the organisation known as Gareeb Pariwar Fund, Punjab on 8.2.1992 and as they declined to vote for her unless she pays some amount to Gareeb Pariwar Fund, with a view to procure their votes donated a sum of Rs. 11,000/ towards this fund. It is on the deposit of this amount that these persons agreed to extend their support to her in the election. In fact, one Sudharshan Sharma announced on public address system that as respondent has already paid a sum of Rs. 11,000/ towards Gareeb Pariwar Fund, they would now support and vote for her.

This is a solitary statement of the petitioner in respect of the aforesaid allegation.

This allegation too has been emphatically denied by the answering respondent. Respondent in her statement whereas admitted that Sarvshri Yash Painter, Rakesh Kumar and Hukam Chand are the officebearers of a Society known as Gareeb Pariwar Fund and that Shri Yash Painter is known to her but denied the suggestion that she donated a sum of Rs. 11,000/ to Gareeb Pariwar Fund 10 days prior to the date of Assembly elections. Respondent also denied the suggestion that any function was arranged by the Society known as Gareeb Pariwar Fund. Except for the statement of the petitioner no other witness has been examined to support this allegation. Whether any amount was donated by the respondent to Gareeb Pariwar Fund or any member of the Society promised her that they would vote in her favour remains within the realm of conjectures. No attempt has been made by the petitioner to prove it. Who were the members of this Gareeb Pariwar Fund and what were their numbers is another point which has not been elaborated by the petitioner. This allegation is not only vague but lacks material particulars. In fact, no attempt has been made by the petitioner to lead cogent and reliable evidence in support of this allegation. Thus, there being no reliable evidence in respect of this issue I find no merit in this allegation of the petitioner. Resultantly, this issue too is decided against the petitioner.

Issue No. 4

To prove this issue petitioner has appeared as his own witness. It has been stated by him that about 2000 ballot papers were polled even without detaching the counterfoils. According to the petitioner these ballot papers did not contain the seal and signatures of the Presiding Officer. It has been further stated that despite the objection raised by the petitioner with regard to the reception of these invalid votes the same was brushed aside and on the other hand the votes have been taken to be validly cast in favour of the respondent.

This allegation is too vague to be probed. Petitioner has failed to give in detail the booth/booths where ballot papers were snatched and put in the boxes. No evidence has been adduced to prove that any such objection was raised by the petitioner or his polling agents before the Presiding Officer. No other evidence has also been adduced to substantiate this precise allegation that these 2000 ballot papers in fact were put in the boxes even without detaching the counterfoils. Had it been so, this fact again would have come to the notice of the Presiding Officer/Returning Officer when the votes were being counted. I find this objection too to be devoid of any substance and accordingly decide this issue against the petitioner.

Issue No. 5

In view of my finding on Issue No. 4, Issue No. 5 too is decided against the petitioner.

Accordingly, I hold that the petitioner has failed to prove any of the allegations of corrupt practices of (i) booth capturing; (ii) undue influence; and (iii) of bribery. The petitioner has also failed to prove that there has been any wrongful reception of votes in favour of the respondent. Petition being devoid of merit is consequently dismissed with costs. Costs quantified at Rs. 20,000/.