Back
1991 Supreme(AP) 438
Andhra Pradesh High Court
Judges : V.NEELADRI RAO
Majji Narayana Rao` - Appellant
Versus
Gowth Shymasunder Shivaji - Respondent
Decided On : 10-09-91
The standard of proof required for proving the allegations of corrupt practice u/s. 123 of R. P. Act, is beyond reasonable doubt and it is unsafe to accept the oral evidence at its face value without looking for assurance from some surer circumstances or unimpeachable documents.
Headnote:
ELECTION PETITION - CORRUPT PRACTICES - BOOTH CAPTURING, RIGGING OF VOTES AND POLLING BY IMPERSONATION - STANDARD OF PROOF - BEYOND REASONABLE DOUBT - INSPECTION OF COUNTER-FOILS OF BALLOT PAPERS - CONDITIONS PRECEDENT - DISCRETION OF THE COURT - NOT TO BE EXERCISED TO ENABLE THE APPLICANT TO INDULGE IN A ROVING INQUIRY.
Fact of the Case:
The election petitioner challenged the election of R.1 on the grounds that the elections were not free and fair and the electorate could not exercise their electoral right and the right to vote was totally throttled, and booth No. 99 Pidi Mandasa, booth No. 89 Ambugam, booth nos. 91 and 92, Tallabhadra, booth No. 90 Ambugam Bodduluru, booth No. 109 kantragada, booth Nos. 63,64,65 and 66 Mandasa, booth No. 88 Lohari Banda, booth No. 87 Dunnuru and booth No. 153 Sariapalli werecaptured and the votes were rigged and polled by impersonation. It was also alleged that the S. I, of police Mandasa abused his power and committed various irregularities which materially affected the election and the election is vitiated. It was further pleaded that R. 1 obtained and procured the assistance of the said S. I, for the furtherance of the prospects of his election.
Finding of the Court:
The court found that the allegations of booth capturing, rigging of votes, and polling by impersonation in regard to polling booth No. 87 in Dunnuru, booth No. 88 in Lohari banda and in booth Nos. 63 to 66 in Mandasa are not proved. The court also found that the allegations as against the S. I. of Police Mandasa and about R. 1 procuring his assistence in para 8 of the election petition are not proved.
Issues: 1. Whether the election petition was not presented in the High Court in person. If so, whether it is contrary to Sec. 81 of the Representation of Peoples Act? 2. Whether para 7-a to 7-h and para 8 are lacking in material particulars? If so, whether they are liable to be struck down under Sec. 83 (b) of the Representation of Peoples Act. 3. Whether the Election Agent of R. 1 Mr. Bandalem Ramamurthy naidu, stayed away along with Agguna Jayaraju and others for threatening the voters, and as a result the voters were scared away at Polling Booth No. 99 of Pidi Mandasa? 4. Whether Mr. Bandalem Remamurthy Naidu, election agent of r. 1 instigated his men to drag the Congress-I polling agents from out of the polling Booth No. 99 of Pidi Mandasa. 5. Whether R. 1 and his men (specified in the election petition) captured the following booths, viz. , 63,64,65,66,87,88,89,90,91,92,99,109 and 153, rigged, and polled votes in favour of R. 1? 6. Whether Respondent No. 1 and his men indulged in threatening voters and further indulged in violence and thus created scare among the voters and thereby the electorate could not exercise their Electoral right? 7. Whether the first respondent has committed corrupt practices mentioned in Sections 123 (2) (b), 7 and 8 of the R. P. Act? 8. Whether the deposit of Rs. 2,000/- by the election petitioner is not in accordance with Section 117 of the R. P. Act and rules made thereunder? 9. Whether the election of the 1st respondent to Andhra pradesh Legislative Assembly from No. 2 of Sompeta Assembly Constituency is liable to be set-aside? 10. To what relief?
Ratio Decidendi: 1. The standard of proof required for proving the allegations of corrupt practice u/s. 123 of R. P. Act, is beyond reasonable doubt and it is unsafe to accept the oral evidence at its face value without looking for assurance from some surer circumstances or unimpeachable documents. 2. Before the court can order inspection of ballot papers, in an election petition, the following conditions are imperative: (i) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations. (ii) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts: (iii) The Court must be prima fade satisfied on the material produced before the Court regarding the truth of the allegations made for a recount; (iv) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties; (v) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to on void and (vi) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.
Final Decision: The election petition is dismissed.
( 1 ) THIS election petition was filed by one of the candidates who contested from No. 2 Sompeta Assembly constituency in the elections held in November, 1989. Besides the petitioner, R. 1 and R. 2 herein contested from the said constituency and R. 1 was declared elected. The election of R. 1 was challenged inter-alia on the grounds that the elections were not free and fair and the electorate could not exercise their electoral right and the right to vote was totally throttled, and booth No. 99 Pidi Mandasa, booth No. 89 Ambugam, booth nos. 91 and 92, Tallabhadra, booth No. 90 Ambugam Bodduluru, booth No. 109 kantragada, booth Nos. 63,64,65 and 66 Mandasa, booth No. 88 Lohari Banda, booth No. 87 Dunnuru and booth No. 153 Sariapalli werecaptured and the votes were rigged and polled by impersonation. It was also alleged that the S. I, of police Mandasa abused his power and committed various irregularities which materially affected the election and the election is vitiated. It was further pleaded that R. 1 obtained and procured the assistance of the said S. I, for the furtherance of the prospects of his election.
( 2 ) THE allegations in regard to booth capturing, rigging of votes, and polling by impersonation in regard to booth No. 87 in Dunnuru, booth No. 88 in Lohari banda and in booth Nos. 63 to 66 in Mandasa are referred to in paras 7 (f) to (h), and the allegations as against the S. I. of Police Mandasa and the procurement of his assistance by R. 1 are referred to in para 8 of the election petition.
( 3 ) R. 1 herein the elected candidate filed application No. 485/90 for striking off paras 7 and 8 of this election petition. By my order dt. 31-8-90 the paras 7 (f) to (h) and the allegations as against the S. I. of Mandasa and about R. 1 procuring his assistence in para 8 were struck off. Hense there is no need to further advert to the same in this election petition.
( 4 ) THE petitioner as P. W. 1 deposed about the capture of booths, rigging of votes and polling by impersonation in regard to polling booth No. 99 in Pidi mandasa, booth No. 89 Ambugam, booth Nos,91 and 92 Tallabhadra. He had not even deposed in regard to booths in Ambugam Bodduluru, Kantraguda and Sariapalli. Even in regard to booths in Ambugam and Tallabhadra, he deposed that he had no personal knowledge about the same and no one is examined for the petitioner in regard to the allegations of capturing booths etc in Ambugam and Tallabadhra. Hence the case of petitioner even in regard to booths in Ambugam and Tallabadra does not merit consideration.
( 5 ) HENCE for the consideration of this election petition the case of the election petitioner in regard to booth capturing etc. ,of booth No. 99 in Pidi Mandasa alone has to be adverted-
( 6 ) IT was pleaded by the election petitioner that P. W. 2 is his polling agent at booth No. 99 Pidi Mandasa and at about 7-45 A. M. R. W. 2 the election agent of r. 1 along with Shri Aggunna Jayaraju and others had come to Pidi Mandasa and threatened the voters and they were scared due to the violence resorted to by R. W. 2 and his followers and then P. W. 2 had given copy of Ex. A. 1 to the presiding Officer of booth No. 99 and requested him to stop the polling, It was further pleaded that then R. W. 2 grew wild and instigated his men to drag the polling agents of the petitioner from out of, the polling booth, and the polling agent (P. W. 2) of the petitioner was thrown out of the booth and he went to mandasa and reported the matter orally to Shri Ramesh (election agent of the petitioner) and then the petitioner sent telegrams as per Exs. A-2 to A-4 to the district Collector, Superintendent of Police, Election Commissioner of Andhra pradesh and Election Commissioner of India and requested them for stopping the poll and to order repoll later. The petitioner also reported the same to assistant Returning Officer at Sompeta as per Ex. A-5. It was further pleaded for the petitioner that at about 10-30 A. M. even P.
