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SUPREME COURT OF INDIA
A. ALAGIRISWAMI, V.R. KRISHNA IYER AND R.S. SARKARIA, JJ.
Chanda Singh Appellant
Versus
Ch. Shiv Ram Varma and others, Respondents.
Civil Appeal No. 1185 of l973, D/-19-12-1974.
Advocates appeared
Mr. M. C. Bhandare, Sr. Advocate (M/s. Harbhagwan Singh, R. L Sharma. C. R. Ratnaparkhi and R. A. Gupta, Advocates. with him). for Appellant, Mr. W. S. Barlingay, Sr. Advocate, (MJs. S. K. Jain and S. S. Khaduja. Advocates with him), for Respondent No. 1.
– the Election Tribunals will do well to direct prosecutions of fabricators and perjurers when clearly established to be as such, as part of Operation clean-up of Elections , as held in Chanda Singh v. Shiv Ram, AIR 1975 SC 403.
– the finding of fact in election cases, as held in Chandra Singh v. Shiv Ram, AIR 1975 SC 403 and Chaitanya Kumar Adatiya v. Smt. Sushila Dixit, AIR 1975 SC 1718, will not be interfered with in appeal unless palpable errors are present. As held in Moti Lal v. Chandra Pratap Tiwari, AIR 1975 SC 1178, the Supreme Court is loathe to interfere with the findings of fact recorded by the High Court chiefly when such findings are based on appreciation of oral evidence. As held in Om Prabha Jain v. Charan Das, AIR 1975 SC 1417, it now well settled that the finding of fact recorded by the High Court should not be disturbed in an appeal under Section 116A of the Act unless there was some serious error in these findings. The findings based solely on the demeanour of the witnesses cannot be reversed in appeal, but the conclusion of facts reached upon a consideration of the probabilities can be tested to see if they contain any serious error. The Supreme Court in the case did not interfere with the findings of fact recorded by the High Court. As held in Bir Chandra Barman v. Anil Sarkar, AIR 1976 SC 603, in election appeals the Supreme Court will not interfere with the findings of fact recorded by the High Court unless there findings suffered from any grave and palpable error. In this case no such error could be found. As held in the case of Ram Jiwan Singh v. Sis Ram, AIR 1976 SC 932, unless the findings of fact recorded by the High Court suffer from any serious infirmity, the Supreme Court would not disturb such findings. It was held that on the evidence, the conclusions reached by the High Court seem to be perfect by legitimate and reasonable and there appeared no cause to take a different view. It has been held in the case of Shiv Charan Singh v. Maharaj Kumar Shri Brijendra Pal, AIR 1976 SC 785, that in an election appeal the Supreme Court should not interference with a finding of fact recorded by the High Court based upon the appraisement of evidence unless such findings is vitiated by some glaring infirmity. As held in Amolak Chand v. Bhagwan Das, AIR 1977 SC 813, the findings of fact recorded by the High Court in election cases except for strong and cogent reasons should not be disturbed. However, if these findings are arrived at disregarding well settled principles governing the approach to the evidence on record, the Supreme Court must come to its own conclusion on the evidence. Election petitions alleging corrupt practices are proceedings of a quasi-criminal nature and the onus is on the person who challenges the election to prove the allegations beyond reasonable doubt. Similarly held in Lakshmi Raman Aharya v. Chandan Singh, AIR 1977 SC 587, that the Supreme Court in an appeal under Section 116A will not interfere with the findings of fact recorded by the Trial Court except for very strong and cogent reasons. In the case of Raghunath Singh v. Krishna Chandra Sharma, AIR 1971 SC 1839, the Supreme Court refused to interfere with the finding of the High Court in the absence of some compelling reasons. In the case of Bishwanath Rai v. Sachhidanand Singh, AIR 1971 SC 1949, the Trial Court having the benefit of watching the demeanour of witnesses believed such evidence and reached a finding as to the commission of corrupt practice, it was held that the Supreme Court will not interfere with such a finding. Similarly held in Ranji Lal v. Ram Babu, AIR 1970 SC 2075, where the trial Court after carefully examining the evidence has came to the conclusion that the petitioners have failed to establish the corrupt practices pleaded by them. This is essentially a finding of fact. The Supreme Court ordinarily does not interfere with the findings of fact reached by the High Court in an election petition particularly when the High Court comes to the conclusion that the corrupt practices pleaded are not established. It was held that there were not sufficient grounds to warrant interference by the Supreme Court.As held in Sheodan Singh v. Mohanlal, AIR 1969 SC 1024, generally the Supreme Court accepts the findings of fact arrived at by the High Court. Election petitions are tried by experienced Judges of the High Court. They have the benefit of observing the witnesses when they gave evidence. Hence their appreciation of evidence is entitled to great weight.
–The Court cannot accept at face value witnesses who have no compunction in owning that they are conspirators in bribery for vote splitting, at the elections, as held in Chanda Singh v. Shiv Ram Varma, AIR 1975 SC 403.
– the paramount importance or excluding literary contamination of the election eve atmosphere is penally protected by the provisions of this section and statutory safeguards cannot be treated as printed jokes by citizens. This section is regarded not as an idle norm in the statute book but a legal mandate with a claw, as held in the case of Chandra Singh v. Ch. Shiv Ram Verma, AIR 1975 403. As observed in the case of Nepal Chandra Roy v. Netai Chandra Das, 1971(3) SCC 303, in cases where a candidate wants to have pamphlets or posters printed surreptitionsly for election purposes, the provisions of Section 127–A may not have been complied with. In the case of Virendra Kumar v. Vimal Kumar, AIR 1976 SC 2169, there was non–compliance with the provisions of sub–section (2) and made subject to prosecution for an offence under the section, but would not make him an accomplice or render his statement untrustworthy. As held in Amolak Chand v. Bhagwandas, AIR 1077 SC 813, this section requires inter alia a declaration as to the identity of the publisher of any election pamphlet or poster to be delivered to the printer thereof which the printer must send with a copy of the document within a reasonable time to the District Magistrate of the district in which it is printed or, where the document is printed in the capital of the State, to the Chief Electoral Officer.
Judgment
KRISHNA IYER, J.: - This election appeal is filed by the defeated candidate. set up by the Indian National Congress, challenging the election of the 1st respondent, the candidate of the Bharatiya Jan Sangh, after an unsuccessful election petition. The constituency is Nilokheri, in Haryana State. and the margin of difference was just 366 votes. The High Court negatived the petitioner s case and hence the appeal.
2. The facts of this case, along the customary course. are that the general elections to the Haryana Legislative Assembly including for the Nilokheri constituency, were held in March l972. Although ten persons filed nominations here, the contenders with muscles were the Congress and Jan Sangh candidates, victory according to the Returning Officers verdict going to the latter but given a close numerical chase by the former. (A vaguely worded application for recount on the spot was rebuffed and later a petition was filed in the case with more specificity to conform to the prescriptions gathered from the rulings of this Court). An election petition setting out the common plurality of grounds, was in due course filed some of which were discreetly abandoned at the trial and all of which were, on merits, negatived by the High Court. Before us, the fourfold issues pressed covered: (a) character assassination of the appellant; (b) communal appeal to influence the electorate; (c) bribery of some candidates, one a harijan, and another a barber by birth (an Indian caste phenomenon) and a third, a refugee from West Punjab - the game being to induce them to mock-contest and, by their caste appeal, split the solid blocks of traditionally Congress votes; (d) illegal and erroneous counting of votes fracturing the sure success of the appellant followed by the unjust refusal of a recount which would have revealed the real result.
3. We will proceed to examine each limb of this complex of challenges, although the highlight of Shri Bhandare s submissions was the justice and right of his demand for a recount, so we will finish with that plea first.
4. The genesis and subsequent development of the case warranting recount of the votes can be traced to the application of the defeated candidate Exhibit P.W. 4/1 presented to the Returning Officer on the date of the count, i.e., March 12, 1972. There in he stated:
"Sir, it is respectfully requested that I have some doubt about the correctness of the counting of the votes, in the above said constituency. Taking into account the small lead and the way of the counting it is expected that the recounting may effect the result otherwise. So your honour is requested an immediate recounting in the Nilokheri Constituency." (Emphasis, ours).
The significance of the hesitant and bald averments, keeping the option for additions and supplementary thinking open is manifest here. Some doubt, small lead and the way of the counting cannot even imagination playing, project anything definite, concrete, positive. Such vague fears and blurred anxieties cannot do duty for the actual requirements of this branch of the law, as we will presently explain. It is seen that R. 63 of the Conduct of Elections Rules 1961 obligates the candidate to state the grounds on which he demands such recount . It is plain that a mere doubt or small lead or unspecified blemish in the manner of the counting falls short of the needs of the said rule. Naturally, the Returning Officer found no difficulty in rejecting the application in the following terms:
"No grounds have been given and no particular Table number has been given where they have any suspicion. In view of the vague allegation and with no particulars, I don t find any ground to order recount."
Rule 63 certainly states that the demand for recount may be rejected if it appears to him (Returning Officer) to be frivolous or unreasonable and this requirement it is argued, has been violated. There is no special charm in phrases like frivolous or unreasonable . What is not rea
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