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2019 Supreme(Bom) 355
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S. PATEL, J.
VINOD RAMCHANDRA GHOSALKAR - Appellant
Vs.
MANISHA ASHOK CHAUDHARY- Respondent
Election Petition No. 26 of 2014
Decided on : 22-02-2019
Advocate Appeared:
V. Parikh, Adv., B.D. Joshi, Adv., Mukesh Vashi, Adv., Amarendra Mishra, Adv.
The mere seizure of cash from a candidate's vehicle, without any evidence of an offer or inducement to voters, does not constitute bribery under Section 123(1) of the RP Act.
Headnote:
ELECTION PETITION - CORRUPT PRACTICE - BRIBERY - SEIZURE OF CASH FROM CANDIDATE'S VEHICLE - BURDEN OF PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - INTERPRETATION OF SECTION 123(1) AND SECTION 100 OF THE REPRESENTATION OF THE PEOPLE ACT, 1951 - PRECEDENT - BINDING EFFECT - DISTINCTION OF FACTS - APPLICABILITY OF SECTION 100(1)(D)(IV) - NON-COMPLIANCE WITH RULES AND ORDERS - MATERIAL EFFECT ON ELECTION RESULT - DISMISSAL OF PETITION.
Fact of the Case:
In an election petition, the petitioner challenged the election of the respondent, alleging corrupt practice of bribery and non-compliance with the Election Commission's rules. The petitioner's main contention was that the seizure of Rs. 50 lakhs in cash from the respondent's official vehicle constituted a corrupt practice under Section 123(1) read with Section 100(1)(b) of the Representation of the People Act, 1951 (RP Act). The respondent denied the allegations and claimed that the cash belonged to the BJP and was intended for election expenses.
Finding of the Court:
The court held that the petitioner failed to prove the corrupt practice of bribery under Section 123(1) of the RP Act. The court relied on the decision in Balaram Dattatray Patil v Prashant Ram Thakur, where it was held that the mere seizure of cash from a candidate's vehicle, without any evidence of an offer or inducement to voters, does not constitute bribery. The court also held that the petitioner failed to prove that the non-compliance with the Election Commission's rules materially affected the election result, as required under Section 100(1)(d)(iv) of the RP Act.
Issues: 1. Whether the seizure of cash from the respondent's vehicle constituted a corrupt practice of bribery under Section 123(1) read with Section 100(1)(b) of the RP Act? 2. Whether the petitioner proved that the non-compliance with the Election Commission's rules materially affected the election result under Section 100(1)(d)(iv) of the RP Act?
Ratio Decidendi: 1. The court held that the petitioner failed to prove the corrupt practice of bribery under Section 123(1) of the RP Act. The court relied on the decision in Balaram Dattatray Patil v Prashant Ram Thakur, where it was held that the mere seizure of cash from a candidate's vehicle, without any evidence of an offer or inducement to voters, does not constitute bribery. The court also held that the petitioner failed to prove that the non-compliance with the Election Commission's rules materially affected the election result, as required under Section 100(1)(d)(iv) of the RP Act. 2. The court held that the petitioner failed to prove that the non-compliance with the Election Commission's rules materially affected the election result under Section 100(1)(d)(iv) of the RP Act.
Final Decision: The court dismissed the election petition under Section 98(a) of the RP Act.
G.S. Patel, J.
1. AMBIT OF THE CHALLENGE
The Petitioner was the nominated candidate of the Shiv Sena for the 2014 Maharashtra Legislative Assembly elections from the Dahisar Assembly Constituency No. 153. The Petition challenges the election of the Respondent, Smt Manisha Ashok Chaudhary, the official candidate of the Bharatiya Janata Party (“BJP”). In opposition to the Petitioner, amongst others, Smt Chaudhary secured 77,238 votes at the election. The Petitioner garnered 38,440 votes. Smt Chaudhary was declared elected [While the matter was pending in this court, it travelled to the Supreme Court at least once at the instance of the Respondent but without success. I do not think it is necessary to go into greater detail in that regard.].
2. When first filed in 2014, the Petition mounted the challenge to Ms Chaudhary's election on two grounds. First, that Smt Chaudhary's nomination papers were improperly accepted, and that her Affidavit required to be filed in accordance with the directives of the Election Commission of India was misleading. Specifically, the allegation was that the Affidavit, a photocopy of which is at Exhibit “B” to the Petition, did not mention in clauses 3(ii)(a) and (b) sufficient particulars of a previous criminal proceeding. I will pass over this very quickly at the forefront of this judgment for two reasons. First, it was not seriously canvassed at the final hearing. Second, it could not be seriously canvassed because the entire argument proceeded on this basis that the contents of that Affidavit were so vague that none could understand the true nature of the offence to which that portion of the Affidavit referred. This argument more or less defeated itself during the cross-examination of the Petitioner. Asked whether he himself fully understood the reference in that Affidavit, his answer was to say that he did. His allegation of insufficiency of the Affidavit and its particulars could not survive, once he agreed that the disclosure was sufficient.
3. The second and more significant challenge to the elections is in regard to an alleged electoral malpractice. The entire Petition, as we shall see, is focused on an interpretation of Section 123(1) read with Section 100 of the Representation of Peoples Act 1951 (“RP Act”). For convenience, and ready reference, I have reproduced Sections 100 and 123 in full in an annexure to this judgment.
B. FACTUAL BACKGROUND
4. The election was announced in 2014. Smt Chaudhary submitted her nomination papers on 27th September 2014 (along with the Affidavit to which I have earlier referred). Her nomination papers were found to be in order. The last date for withdrawal of nomination was 4th October 2014. The election results were declared on 19th October 2014. Ms Chaudhary won the election from that constituency. This puts us in the time frame of 5th October 2014, the day after the last date for withdrawal of nominations and 14th to 19th October 2014, the date of the election and the day when results were announced. This is the time window with which we are concerned.
5. The specific allegation in the Petition is that at about 5.47 pm on 9th October 2014, the Static Surveillance Team (“SST”) deployed at the Sudhir Phadke Flyover at Dahisar apprehended a vehicle supposedly with the number plate MH-48-M-3. There is no dispute that this was Smt Chaudhary's vehicle, and that it was this vehicle she had registered with the Election Commission as her official vehicle for use during campaigning at these elections.
6. When the SST apprehended the car it found in the vehicle some Rs.50 lakhs in cash in various bundles of denominations of Rs. 500/- and Rs. 1,000/-. The car was being driven by one Chandrakant Pande. Also in the vehicle was one Shashikant Kadam. Pande was Smt Chaudhary's driver, and Kadam was at some point the General Secretary for the BJP from the ward where th
