TMI Blog1984 (10) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court went wrong in accepting the case of the election petitioners that the appellant had committed corrupt practice for procuring the votes of Bagicha Singh, members of his family and his friends by getting the over-hanging electric wires removed. After all, if there be any scope for doubt, it must resolve in favour of the appellant who was facing a quasi-criminal charge. The appeal has to succeed. We accordingly reverse the decision of the High Court and uphold the election of the appellant. The finding of the High Court that he was guilty of corrupt practice under ss. 123(1) and (2) stands vacated. - Civil Appeal No. 463 of 1982 - - - Dated:- 29-10-1984 - RANGNATH MISRA, P. N. BHAGWATI AND V. BALAKRISHNA ERADI, JJ. For the Appellant : H.L. Sibbal, D.N. Mishra and K.K. Lahiri For the Respondent : Shanti Bhushan, Jitendra Sharma, Manjit Singh Khaira and Ms. Deepa Bhushan. JUDGMENT This appeal under section 116-A of the Representation of the People Act, 1951 ( Act for short), is directed against the judgment of the Punjab Haryana High Court setting aside the election of the appellant to the Punjab Legislative Assembly from Constituency No. 25 known as Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed candidate nor the election petitioners had any personal knowledge of the two incidents referred to above. Verification of the election petition indicated that the allegation in paragraph 5 was true to the information received from Gurmukh Singh, PW. 10 and Milkha Singh, PW, 11 while information relating to the Bagicha Singh episode was obtained from Darshan Singh, PW. 12. At the trial, Hardial Singh, election petitioner I was examined as PW.5. Respondent 3 was, however, not examined as a witness. The evidence in regard to both the incidents- Gandiwind meeting and Bagicha Singh episode-mainly consisted of oral statements of witnesses. Some documents, such as the FIR, injury reports, etc. and the deposit receipt in regard to Bagicha Singh episode do not throw any conclusive light inasmuch as they lack the material aspect of correlating the appellant with the events. The appellant had in his written statement denied the allegations in so far as they implicated him with the incidents. He examined himself and led other evidence to support his stand. The learned single Judge before whom the election petition came up for trial accepted the evidence of the election petitioners and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sive as in the case of an appeal from a matter disposed of in exercise of original civil jurisdiction of the High Court. Mr. Shanti Bhushan placed a series of decisions before us in support of his proposition regarding the extent of interference available in an appeal. The first of these cases is Sarju Prasad v. Raja Jwaleshwari Pratap Narain Singh and Ors. This was a regular civil appeal and not under the Act. This Court quoted with approval the observations of Viscount Simon in Watt v. Thomas. Viscount Simon had stated, inter alia: "But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great wight." Viscount Simon proceeded further to indicate: "This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sitions of law to be urged in support of the contentions of the party lodging the case and the authorities in support thereof. There is no reason to limit the provision of this rule only to those contentions which deal with the points found in favour of that party in the judgment appealed from. Apart from that we think that while dealing with the appeal before it this Court has the power to decide all the points arising from the judgment appealed against and even in the absence of an express provision like O. XLI, r. 22 of the Code of Civil Procedure it can devise the appropriate procedure to be adopted at the hearing. There could be no better way of supplying the deficiency then by drawing upon the provisions of a general law like the Code of Civil Procedure and adopting such of those provisions as are suitable. We cannot lose sight of the fact that normally a party in whose favour the judgment appealed from has been given will not be granted special leave to appeal from it. Considerations of justice, therefore, require that this Court should in appropriate cases permit a party placed in such a position to support the judgment in his favour even upon grounds which were negatived i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, we feel that the judgment of the High Court is erroneous both on fact and in law and although the appellate Court is extremely slow in disturbing the findings of fact, in the instant case, we are satisfied that the judgment of the High Court is against the weight of the evidence on record and preponderance of probabilities." In S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and Ors., it was again pointed out that if something is radically wrong with the approach of the learned Judge trying the election petition it would be for this Court to rectify the error. The jurisdiction to exercise in an appeal under the Act, therefore, appears to be as wide as in any other civil appeal. Section 116-A (1) of the Act clearly indicates that the appeal to this Court has to be disposed of by exercising the same jurisdiction as is exercised in an appeal against the original judgment of the High Court. In this view of the matter there can really be no rule, whether statutory or evolved by this Court by long usage as alleged, that the Court would not interfere with the findings of fact reached at the trial stage. Ordinarily a finding reached on assessment of the evidence particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ractice is undoubtedly on the person who sets it up, and the onus is not discharged on proof of mere preponderance of probability, as in the trial of a civil suit; the corrupt practice must be established beyond reasonable doubt by evidence which is clear and unambiguous." Hegde, J. in Guruji Shrihar Baliram Jivatode v. Vithalrao Ors., reiterated the proposition by saying: "It is trite to say that the burden of proving everyone of the ingredients of the corrupt practice alleged is on him who alleges it. If he fails to establish any one of them to the satisfaction of the Court he must fail." In Mahant Shreo Nath v. Choudhry Ranbir Singh, it was again observed: "A plea in an election petition that a candidate or his election agent or any person with his consent has committed a corrupt practice raises a grave charge, proof of which results in disqualification from taking part in elections for six years. The charge in its very nature must be established by clear and cogent evidence by those who seek to prove it. The Court does not hold such a charge proved merely on preponderance of probability: the Court requires that the conduct attributed to the offender is proved by evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence in civil and criminal proceedings is markedly different. The same evidence which may be sufficient to regard a fact as proved in a civil suit, may be considered insufficient for a conviction in a criminal action. While in the former a mere preponderance of probability may constitute an adequate basis of decision, in the latter a far higher degreed of assurance and judicial certitude is requisite for a conviction. The same is largely true about proof of a charge of corrupt practice, which cannot be established by mere balance of probabilities, and, if after giving due consideration and effect to the totality of the evidence and circumstances of the case, the mind of the Court is left rocking with reasonable doubt-not being the doubt of a timid, fickle or vacillating mind-as to the veracity of the charge, it must hold the same as not proved." To the same effect are the following decisions of this Court in Surya Kant Roy v. Imamul Hak Khan Nizamuddin Ahmed v. Narbada Prasad Ors; Venkata Reddy v. R. Sultan Ors; Bir Chandra Borman v. Anil Sarkar Ors. Romji Prasad Singh v. Ram Bilas Jha Ors; Lakshmi Raman Acharya v. Chandan Singh Ors Amolak Chand Chhazed v. Bhagwandas A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled weather. Unsettled weather is itself, of course, bound to cause uncertainty, but inevitably it precedes the acceptance of a change. Such a situation has not arisen yet and, therefore, a rethinking as suggested by Mr. Shanti Bhushan is not warranted. One more aspect should be referred to here before we proceed to examine the facts of the case. A five judge Bench of this Court in Jagannath v. Jaswant Singh Ors. Indicated that election disputes are not cases at common law or equity but are strict statutory proceedings and result of an election is not available to be interfered with lightly. It was said: "It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. This view has been reiterated by this Court in Venkata Reddy s case (supra). We have already taken note of the position that the election has been set aside in the present case on a finding of commission of two corrupt practices, one relating to the election meeting in Village Gandiwind on May 20, 1980, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or community; or (ii) ........shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause." We shall first deal with the Gandiwind incident of may 20, 1980. The election petition in paragraph 5 makes allegations with reference to this incident. For convenience the contents of the entire paragraph are extracted: "5. That the respondent No. 1 along with Gurdial Singh, Hardial Singh, Rachhpal Singh sons of Tara Singh, Kulwant Singh son of Sewa Singh, Gurnam Singh son of Jinda Singh hatched a conspiracy not to allow the akali candidate respondent No. 2 and his supporters to hold any meeting or do any canvassing at Village Gandiwind on 20.5.1980. They had collected at the house of Gurdial Singh at about 1. 30 P.M. where the abovementioned decision was taken. At about the same time the villagers were collecting for a meeting at the place known as Hadur-Shah and that meeting was to be addressed by S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be liable for the action of these five people would be if their act of disturbing the meeting was with his consent. There is evidence which the High Court has accepted that when PW. 7 arrived at the meeting place and slogans in favour of the candidate and PW. 7 were raised, Gurdial Singh and his group raised counter slogans. Soon disorder spread. When PW. 4 and Daya Singh wanted to pacify the situation with a view to making the holding of the meeting possible, Gurdial Singh opened fire from his rifle which hit Daya Singh on the forehead. Others who were armed with 12 bore guns also fired their arms and with pellets coming from their firearms many were injured. Though Mr. Sibal made a serious attempt to combat the finding of the High Court regarding the disturbance to the meeting, we are inclined to agree with the High Court that the meeting convened by the Akali Party in Village Gandiwind on may 20, 1980, where PW. 7 was to address the electors was disturbed by Gurdial Singh and others. The fact that firearms were freely used first by Gurdial Singh and his party and then by way of retaliation by Akali workers and gun shots resulted the death of Daya Singh and thus a grave situ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Village that subsequently it became very difficult and risky for anyone to canvass for respondent No. 2 in this village". Disturbing the meeting as alleged in paragraph 5 of the election petition in our view is not covered under sub-s. (2) of s. 123 of the Act and is clearly an electoral offence dealt with by s. 127 of the Act. The allegations contained in paragraph 6 of the election petition would perhaps come within s. 123 (2) (a) (i) of the Act. In paragraph 5 of the election petition the following fact had been pleaded: "Then the respondent No. 1 told them not to allow the meeting to proceed at any cost and himself stayed behind". If this statement of fact is accepted consent of the appellant for disturbing the meeting can be found but in the absence of any specific plea that it was appellant s instruction that the electors should be threatened, the facts alleged in paragraph 6 of the election petition cannot be accepted to have been with the consent of the appellant. Mr. Shanti Bhushan, learned counsel for respondents 1 and 2 has not disputed, and in our opinion rightly, that allegations of corrupt practice have to be strictly pleaded with material particulars and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e within the meaning of the Act. Evidence was led again without any material pleading that the appellant had used his influence to protect Gurdial Singh from police harassment as also to ensure that he was not arrested. It is not disputed that Gurdial Singh was an Akali supporter at previous elections and continued his allegiance to the Akali Party until a few months before the election of 1980. On account of personal disputes with some of the Akali members he switched over his support to the opposite faction. It is not in dispute, however, that Gurdial Singh was a supporter of the appellant and had even worked as his polling agent in the Gandiwind booth. To extend protection to a supporter, particularly, a fresh but powerful supporter, is normal human conduct. The fact that protection had been extended by the appellant to Gurdial Singh and members of his family even by raising quarrel with the local police inspector would not lead to a backward presumption of consent for the acts of Gurdial Singh. Consent is the life line to link up the candidate with the action of the other person which may amount to corrupt practice and unless it is specifically pleaded and clearly proved-in v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by itself did not constitute undue influence. For establishing the link between the disturbance of the meeting and the returned candidate the evidence is wholly oral in character and has to be scrutinised with greater rigour. Merely on the statement of some of the witnesses who were essentially Akali Party workers or supporters a charge of corrupt practice could not have been taken as proved. The approach of the learned trial judge to the matter is contrary to law as settled by decisions of this Court relating to corrupt practice and proof thereof. Even if the charge of this corrupt practice fails, if the other is accepted the decision of the High Court cannot be interfered with because one corrupt practice would be sufficient to have the election declared as void. We shall, therefore, now proceed to examine the material with reference to the Bagicha Singh episode. The requisite pleading for this part of the allegation is available in paragraphs 8 and 9 of the election petition. It is appropriate that we extract the same for convenience: "8. That on 28. 5. 1980 the respondent No. 1 visited villaged Chola-Sahib and there while requesting for votes, he went to the house of Mist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptember 13, 1978, notice was given to him by the Electricity Board that he should demolish his construction on the first floor as it was too close to the over-hanging electric wire. A second notice was given to the same effect on July 13, 1979. Within a week, i.e. on July 20, 1979, Bagicha Singh made the initial deposit of Rs. 100 with a view to shifting of the overhanging electric wires as such shifting would save the construction from being required to be demolished. The estimate had not been prepared notwithstanding the deposit of Rs. 100. When the matter stood at such stage, on May 28, 1980, appellant is alleged to have approached Bagicha Singh at his house in the course of election propaganda. The requisite pleadings in paragraphs 8 and 9 of the election petition were on the basis of disclosure made by PW. 12. That witness stated in his evidence: S. Surinder Singh Kairon and others including myself while canvassing for votes, reached the house of Bagicha Singh. Makian Singh was present in the house of Bagicha Singh. When S. Surinder Singh Kairon asked for his votes and for getting the votes of his Biradri, he replied that he had a bit of problem of getting the over-hanging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant ? On this material particular there is practically no evidence. We cannot accept the submission of Mr. Shanti Bhushan that in the facts of the case learned trial judge was right in accepting the case of the election petitioners that Surinder Singh deposited the money. We have already taken note of the fact that there was no clear plea in the election petition that the money had been deposited by Surinder Singh though in paragraph 8 it was stated that on 28.5.1980 appellant had told Bagicha Singh that he (Bagicha Singh) should not bother about the expenses involved. There is no oral evidence even to suggest that Surinder Singh caused the amount to be deposited. There is a presumption that the person is whose name the receipt been drawn up was the payer of the amount and burden lay on him who wanted to contend that the facts were otherwise. We cannot therefore, in these circumstances, accept the conclusion of the learned trial judge which is vehemently supported by Mr. Shanti Bhushan that Surinder Singh had got the estimated demand deposited with the authorities of the Board. A candidate is entitled to canvass for votes. One who is in the filed to be an electoral representative ..... X X X X Extracts X X X X X X X X Extracts X X X X
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