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2004(1) Supreme 100
SUPREME COURT OF INDIA
(From Gauhati High Court)
V.N. Khare, CJI., S.B. Sinha, J.
Borgaram Deuri -Appellant
versus
Premodhar Bora & Anr. -Respondents
Civil Appeal No. 1300 of 2003
Decided on 5-1-2004
Counsel for the Parties :
For the Appellant : S.B. Sanyal, Sr. Advocate, Manish Singhvi, Rameshwar Prasad Goyal, Advocates.
For the Respondents : P.K. Goswami, Sr. Advocate, Rajiv Mehta, Rajiv Malhotra and B.A. Aggarwalla, Advocates.
Held : The allegations of corrupt practices must conform to the provisions contained in Sections 123(3) and 123(3)(A) of the Act. It is not in dispute that Section 83 of the Representation of People Act is mandatory in nature. It is imperative that the election petitioner must disclose the source of his information in the election petition fully. The allegations of corrupt practices are viewed seriously. They are considered to be quasi-criminal in nature. The standard of proof required for proving corrupt practice for all intent and purport is equated with the standard expected in a criminal trial. However, the difference between an election petition and a criminal trial is, whereas an accused has the liberty to keep silence, during the trial of an election petition the returned candidate has to place before the Court his version and to satisfy the Court that he had not committed the corrupt practice as alleged in the petition. The burden of the election petitioner, however, can be said to have been discharged only if and when he leads cogent and reliable evidence to prove the charges levelled against the returned candidate. For the said purpose, the charges must be proved beyond reasonable doubt and not merely by preponderance of probabilities as in civil action. (Paras 9 and 10)
Spreading of hatred on communal basis is an offence. The appellant herein did not lodge any First Information Report. No contemporaneous documentary evidence has been brought on record to show that the first respondent had spread hatred towards member of another community or caste. The contents of the news item whereupon Mr. Sanyal relied having not been proved by examining the reporter, the same could not have been exhibited legally on the statement of the witness that the report had been published in the newspaper. It was, therefore, inadmissible in evidence. (Para 12)
On analyzing the materials on record, it is, therefore, evident that the appellant had not been able to prove the charges of corrupt practice against the first respondent herein by adducing clear-cut evidence which can be said to be wholly credible and reliable. The charges of corrupt practice were needed to be proved beyond doubt which the first respondent failed to do. (Para 20)
JUDGMENT
S.B. Sinha, J.-The election petitioner is the appellant herein. He filed the said petition questioning the election held on 10.5.2001 and the result whereof was declared on 13th May, 2001 declaring the first respondent herein as having been elected from 109 Bihpuria Constituency in the Assam Legislative Assembly General Elections.
2. The appellant attributed corrupt practices against the first respondent herein purported to be under Section 123(3) and Section 123(3A) of the Representation of the People Act, 1951.
3. The full particulars of alleged corrupt practices had been set forth in the petition which are as under :
(i) "On 25.4.2001 at about 2 P.M. when the petitioner was coming from Bahgora Devrigaon to Biphuria Town in a Tata Sump (hired) vehicle accompanied by his wife and workers of the party Sri Lakhi Kanta Hazarika and Sri Giridhar Gohain after paying a visit to Shiv Mandir (Kundi Mama Mandir) the petitioner and his superiors on their way themselves saw a gathering of about 200 men who were being addressed by the respondent No. 1 Sri Premodhar Bora from the stage platform of Rangamanch situated at Santhapur within Biphuria Police Station as a part of his election campaign. The petitioner halted there for a while and hear the respondent No. 1, the returned candidate urging upon appealing to the gathering to vote for the respondent/returned candidate and to refrain from voting for the petitioner on the ground that the petitioner belongs to the Scheduled Tribe Community, he further shouted a slogan "Biphuria Bachao". The respondent No. 1 also appealed to the members of the gathering to refrain from voting in favour of any candidate belonging to `Scheduled Tribe Community . The respondent No. 1 made this appeal to promote a feeling of enmity and hatred between different classes of the people of 109 Biphuria Legislative Assembly Constituency. It may be mentioned here that in the meeting aforesaid the respondent No. 1 was accompanied by his agents namely Sri Ghanakanta Baruah and Sri Monoranjan Sharma and they also delivered speeches before the gathering with specific slogan to vote for the respondent No. 1 and to refrain from voting in favour of the petitioner on the ground that the petitioner belongs to Scheduled Tribe Community. The respondent No. 1 and his aforesaid two agents made the aforesaid slogan appealed to the members to caste vote for the respondent No. 1 and to refrain from voting in favour of the petitioner for furtherance of the prospect of the election of respondent No. 1 and for prejudicially affecting the election of the petitioner.
(ii) On 1.5.2001, respondent No. 1 Sri Premadhar Boar along with Shri Monoranjan Sharma and Ghanakanta Borua both are counting agents of Mr. Premodhar (Respondent No. 1) and also Government servants both are teaches of Nehru Higher Secondary School, Jamuguri under Bihpuria Constituency organized a meeting at village Raidongia Namghar at about 1 P.M. where about 200 voters attended the meeting. In the meeting, the respondent No. 1 Sri Premodhar Bora and two other persons mentioned above delivered speeches in succession and appealed to the persons present in the meeting and to the people at large with the use of loud speakers to vote for him i.e. the respondent No. 1 and to refrain from voting in favour of the petitioner on the ground that the petitioner belongs to Scheduled Tribe Community. This appeal was made by the respondent No. 1 and his two agents present there for the furtherance of the prospects of the election of respondent No. 1 and for prejudicially affecting the election of the petitioner. Sri Giridhar Gohain, Dibyajyoti Bhuyan and other Congress workers witnessed the meeting and clearly saw the respondent No. 1 hurling the above language prejudicially affecting the prospect of the election of the petitioner.
(iii) On 7.5.2001, respondent No. 1 accompanied by Sri Ghanakanta Baruah and Monoranjan Sharma and othe
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