1999 Supreme(SC) 1237

1999(10) Supreme 99
Supreme Court of India
(From Punjab & Haryana High Court)
Dr. A.S. Anand, CJI., S. Rajendra Babu & R.C. Lahoti, JJ.
Jeet Mohinder Singh -Appellant
versus
Harminder Singh Jassi -Respondent
Civil Appeal No. 154 of 1999
Decided on 26-11-1999
Counsel for the Parties :
For the Appellant : Rajinder Sachar, M.J.S. Sethi, Sr. Advocates, S.K. Mehta, Dhruv Mehta, Fazlin Anam, Ms. Shobha, Advocates.
For the Respondent : P.P. Rao, Sr. Advocate, N.S. Gill, Mahesh Agrawa­la, Rishi Agrawala, Atul Sharma, E.C. Agrawala, Advocates.

Important points
(1) Any corrupt practice in order to vitiate an election of returned candidate must be shown to have been committed either by the candidate or his agent or election agent with the free consent of the candidate; further it should be shown that the result of election has been mate­rially affected by the said corrupt practice.
(2) Material facts and particulars not averred in the election peti­tion but in the replication for the first time, cannot be made subject matter issues.
(3) Production of the requisite document subsequent to the filing of the nomination paper but before the time of scrutiny so as to be available before the returning officer at the time of scrutiny would meet the requirement of Section 33(5).
(4) For accepting a nomination paper returning officer is not required to pass a speaking order; only in case of rejection of nomination paper reasoned order is required.

Headnote:(i) Representation of People Act, 1951-Section 36(6) r/w Section 35(5)-Nomination paper-Accept­ance/rejection of-For accepting nomi­nation paper no reasoned order required-For rejection reasoned order required.

       Held : On a plain reading of sub-section (6) of Section 36, it is clear that the Parlia­ment has chosen to treat the case of acceptance of nomination paper differently from the case of rejection. While a decision as to ac­cepting or rejecting has to be endorsed on each nomination paper, the reasons are required to be recorded in writing by making a brief statement thereof only in the case of rejection of nomination paper. In our opinion, the High Court has rightly held that there was no non-compliance with the provisions of Section 36(6) merely because the returning officer had simply endorsed acceptance on the respondent’s nomination paper without recording in writing a brief statement of his reasons for such acceptance. (Para 28)

       (ii) Representation of People Act, 1951-Section 33(5)-Filing of certified copy of electoral roll by candidate belonging to different constituency-Time and manner of production-Certified copy not filed along with nomination paper-Certified copy produced, before scrutiny of nomination paper, by someone on behalf of candidate and not by candidate himself-Plea that mandate of Section 33(5) not complied with since manner of production of certified copy not followed and as such nomination paper should not have been accepted-Not correct-Section 33(5) does not specifically provide who shall produce requisite document-If document is available on record at time of scrutiny, returning officer can look into such a document.

       Held : On the lan­guage of sub section (5) of Section 33 of the Act, it cannot be held that the time of presentation of the certified copy is a constituent of the ‘manner’ of compliance. Where the candidate is an elector of a different constituency, Section 33(5) prescribes the ‘manner’ of proving the factum of the candidate being an elector of a different constituency in one of the three modes : (i) by producing a copy of the electoral roll of that constituency or (ii) a copy of the relevant part thereof or (iii) a certified copy of the relevant entries in such roll. Any other mode of proof is excluded. So far as the time is concerned, as we will deal with shortly hereinafter the earliest and outer limits of time are prescribed. The requisite document has to be produced either with the nomination paper which is the earliest point of commencement of time limit or at the scrutiny of the nomination papers which is the outer limit. It is pertinent to note that Section 33(5) does not specifically provide who shall produce the requisite document before the returning officer. All that it provides for is that one of the three the documents must be produced. (Para 32)

       The object sought to be achieved by Section 33(5) is fulfilled if the requisite document is available before the returning officer at the time of scrutiny even if the same was not filed alongwith the nomination paper; meaning thereby the production of the requisite document subsequent to the filing of the nomination paper but before the time of scrutiny so as to be available before the returning officer at the time of scrutiny would meet the requirement of Section 33(5). It would have been better if the document required to be filed with the nomina­tion paper and not so filed was produced before the returning officer at the time of scrutiny because in that case the production would have been in the presence of all those who might have chosen to remain present at the time of scrutiny and that would have avoided all such insinuations being hurled at the returning officer and/or the returned candidate as is being done in the case at hand. But that does not mean that the document made available to the returning officer before the time of scrutiny cannot be looked into by him at the time of scrutiny for the purpose of satisfying himself of the compliance by a candidate with Section 33(5) of the Act. It is possible and permissible for the candidates to demand and inspect the nomination papers of their ri­vals and the Returning Officer is under an obligation to enable them to do so. Thus, there is no great sanctity in producing the Electoral Roll only at the time of scrutiny. Secondly, Manvesh Singh, the re­turning officer has deposed on oath that he had been supplied with the electoral roll of Pucca Kalan Constituency under the instructions of the Election Commission and that was available with him which could have been looked into for the purpose of satisfying himself whether the respondent was an elector of Pucca Kalan Constituency or not. The returning officer was not obliged to call for the electoral roll of different constituency and meet the deficiency in the nomination officer. But in the present case it was already available with him and as per his own statement he would have looked into it. The requirement of Section 33(5) as explained by the Constitution Bench in Ranjit Singh v. Pritam Singh & Ors., AIR 1966 SC 1626 would have been satisfied by looking into that electoral roll even if the disputed certified copy Ex. R-5/1 would not have been produced by the respondent. The statement on oath of the returning officer as to the availability of such voters list with him has not been disputed on behalf of the appellant by directing pin-pointed cross-exami­nation on this part of the statement. We have no reason to disbelieve the same. (Para 37)

       (iii) Representation of People Act, 1951-Sections 123 and 100 r/w Section 83-Corrupt practice-Pleadings and proof-Principles of.

       The success of a candidate who has won at an election should not be lightly interfered with. Any petition seeking such interference must strictly conform to the requirements of the law. Though the purity of the election process has to be safeguarded and the Court shall be vigilant to see that people do not get elected by flagrant breaches of law or by committing corrupt practices, the setting aside of an election involves serious consequences not only for the returned candidate and the constituency, but also for the public at large inasmuch as re-election involves enormous load on the public funds and administration.

       Charge of corrupt practice is quasi-criminal in character. If substantiated it leads not only to the setting aside of the election of the successful candidate, but also of his being disqualified to contest an election for a certain period. It may entail extinction of a person’s public life and political career. A trial of an election petition though within the realm of civil law is akin to trial on a criminal charge. Two consequences follow. Firstly, the allegations relating to commission of a corrupt practice should be sufficiently clear and stated precisely so as to afford the person charged a full opportunity of meeting the same. Secondly, the charges when put to issue should be proved by clear, cogent and credible evidence. To prove charge of corrupt practice a mere preponderance of probabilities would not be enough. There would be a presumption of innocence avail­able to the person charged. The charge shall have to be proved to hilt, the standard of proof being the same as in a criminal trial.

       The Appellate Court attaches great value to the opinion formed by the Trial Judge more so when the Trial Judge recording findings of fact is the same who had recorded the evidence. The Appellate Court shall remember that the jurisdiction to try an election petition has been vested in a Judge of the High Court. Secondly, the trial Judge may have had the benefit of watching the demeanour of witnesses and form­ing first-hand opinion of them in the process of evaluation of evi­dence. The Supreme Court may re-assess the evidence and come to its own conclusions on feeling satisfied that in recording findings of fact the High Court has disregarded settled principles governing the approach to evidence or committed grave or palpable errors.

       Section 83 of the Act requires every election petition to contain a concise statement of the material facts on which the appellant relies. If the election petition alleges commission of corrupt prac­tice at the election, the election petition shall set forth full particulars of any corrupt practice including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. Every election petition must be signed and verified by the appellant in the manner laid down for the verification of pleadings in the CPC. An election petition alleging corrupt practice is required to be accompanied by an affidavit in Form 25 read with Rule 94A of the Conduct of Election Rules, 1961. Form 25 contemplates the various particulars as to the corrupt practices mentioned in the election petition being verfied by the appellant separately under two headings : (i) which of such statements including particulars are true to appellant’s own knowledge, and (ii) which of the statements including the particulars are true to information of the appellant.

       The election petitioner is also obliged to disclose his source of information in respect of the commission of the corrupt practice so as to bind him to the charge levelled by him and to prevent any fishing or robing en­quiry, also be prevent the returned candidate from being taken by surprise. (Para 41)

       (iv) Representation of People Act, 1951-Sections 100 and 123 r/w Section 83-Corrupt practice-Averments of material facts and particu­lars-Must be in election petition-Material facts and particulars alleged for first time in replication and not forming part of aver­ments in election petition cannot be tried.

       Material facts and particulars as to commission of corrupt practice are required to be given in the elec­tion petition and not in the replication filed much after the expiry of period of limitation for filing election petition. The material facts and particulars alleged for the first time in the replication and not forming part of averments made in the election petition cannot be tried and cannot be made subject matter of issues framed by the Court. (Para 46)

       Where allegations of corrupt practice of distributing money and liquor for casting vote and also threatening voters were made and information were claimed to be not personal knowledge of the election petitioner and names of persons who were allegedly offered bribe and threatened were not given in the election petition but in the replication came out with particulars it was held that the election Judge rightly has taken care to frame the issues only by reference to the averments made in the election petition and not by referring to the averments made for the first time in the replication. Firstly, the respondent does not have an opportu­nity of denying the averments - whether facts or particulars, intro­duced for the first time in replication. Secondly, as already stated material facts and particulars as to corrupt practice are required to be supported by an affidavit in the prescribed proforma. The replica­tion is not supported by any affidavit in the prescribed proforma. (Paras 44 & 46)

       (v) Representation of People Act, 1951-Section 123(6) r/w Section 77 - Corrupt practice-Incurring or authorising of expenditure beyond prescribed limit-Returned candidate allegedly got printed, pasted and distributed posters, expenditure incurred for which exceeded limit prescribed-Dates between which posters distributed and pasted not mentioned in election petition-Section 77(3) not attracted in absence of specific allegation that expenditure incurred was between date of nomination and declaration of election.

       Held : From the averments made in the petition it cannot be deduced that the expenditure on account of the posters even if incurred by the respondent, was so incurred between the date of nomination and the date of declaration of result of the election. In the absence of the appellant having made a positive allegation of the alleged expenses having been incurred between the date of nomination of the respondent and the date of declaration of the result the applicability of sub-section (3) of Section 77 would not be attractive. (Para 52)

       (vi) Representation of People Act, 1951-Section 123(6) r/w Section 77(3)-Corrupt practice of incurring expenditure beyond prescribed limit-Expenditure on posters-Posters are generally distributed by political party in interest of party and candidates highlight achieve­ments - Such expenses could not be counted as expenses incurred by candidate.

       As per explanation 1 appended to sub-section (1) of Section 77 any expenditure incurred or authorised by a political or by any other association or body of persons or by any independent other than the candidate or his election agent is not be counted as of expenditure by the candidate or his election agent attracting applicability of Section 77. The posters were distributed generally in the interest of the political party and its candidates highlighting the achievements of the political party and its leadership, the expenses could not be counted as the expenses as that incurred by the res­pondent. (Para 53)

       (vii) Representation of People Act, 1951-Section 123(2) r/w Section 100(1)(d)(ii) and (2)(a)-Corrupt practice of undue influence-Allega­tion of removing flag of opposite candidate from house of voter and assaulting inmates for not removing flags-Returned candidate never visited village were incident occurred - Persons who were involved in incident not agent or election agent of returned candidate-No plead­ing in election petition about consent for commission of violence from returned candidate nor there was any proof-Allega­tion unsustainable.

       Under Section 100(1)(d)(ii) and 100(2)(a) of the Act any corrupt practice in order to vitiate the election of the returned candidate must be shown to have been committed either by the candidate or his election agent or by an agent other than his election agent in the interest of the returned candidate. Further it should be shown that the result of the election insofar as it concerns a returned candidate has been materially affected by the said corrupt practice. (Para 57)

       The requisite consent of the returned candidate or his election agent is a constituent part of the corrupt practices under sub-sections (3) and (3A) of Section 123 and an ingredient of the ground under Section 100(1)(b). Such consent has to be pleaded and proved. Implied consent of the candidate cannot be read into the provision. Whenever the requirement is of consent, it must be free consent given by the giver of the consent of his own volition. It must be specifi­cally alleged and positively proved. (Para 57)

        In the case at hand there are neither such pleadings nor proof as to the alleged violence having been committed by Sukhraj Singh and Ajaib Singh with the consent of the returned candidate or of his election agent. The findings arrived at by the learned Designated Election Judge negativing proof of alleged corrupt practices by the respondent is not for held only liable to be interfered with in this appeal. (Paras 57 & 58)