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IN THE HIGH COURT OF ALLAHABAD
SUNIL AMBWANI, J.
SUSHIL SINGH - Appellant
Versus
PARBHU NARAIN YADAV - Respondents
Election Petn 1 Of 2002
Decided On : 12/23/2005
ELECTION PETITION - UTTAR PRADESH LEGISLATIVE ASSEMBLY - CORRUPT PRACTICES - UNDUE INFLUENCE - BOOTH CAPTURING - BURDEN OF PROOF - STANDARD OF PROOF - APPRECIATION OF EVIDENCE - ELECTORAL LIST - DEFECTS - BOYCOTT OF ELECTION - VIOLATION OF SECTIONS 57 AND 58-A OF THE REPRESENTATION OF THE PEOPLE ACT, 1951 - VARIANCE IN PLEADINGS AND PROOF - RELIEF.
Fact of the Case:
The election petitioner alleged that the voters of polling booths 291 and 292 at Sisaura Kala were prevented from casting their votes due to collusion between the winning candidate and election officials. The petitioner requested re-polling at the booths and sought a recount of votes. The election was challenged on the grounds of corrupt practices, including undue influence and booth capturing. The petitioner also alleged that the electoral list was defective, leading to the boycott of the election by voters.
Finding of the Court:
The court found that the election petitioner failed to prove that the voters were threatened or prevented from casting their votes by the returned candidate or his supporters. The court also found that the electors of Sisaura Kalan had decided to boycott the election due to the defects in the electoral list. The court held that the returned candidate was not guilty of any corrupt practices and that the election was not vitiated.
Issues: 1. Whether the respondent No. 1 in collusion with election officials along with his supporters prevented the voters to cast their votes at Booth No. 291 and 292, namely, slsaura Kalan, and as such respondent No. 1 committed corrupt practice as defined under Section 123 (2) and (8) of the representation of the People Act 1951? 2. Whether the electorate recorded at polling station no. 291 and 292 boycotted the election and refused to record stheir votes on account of defective electoral list? 3. Whether there has been Incorrect tabulation and re-totalling of votes secured by the petitioner and respondent No. 1, and it has materially affected the result of the election ? 4. Whether petitioner secured majority of votes and is entitled to be declared elected? 5. Whether there has been violation of the provision of Sections 57 and 58-A of the representation of People Act 1951 in not allowing re-poll at Booth Nos. 291 and 292 namely sisaura Kalan and this has materially affected the result of the election? 6. Whether there is a variance in pleading and proof, if so its effect. ? 7. To what relief the petitioner is entitled.
Ratio Decidendi: 1. The burden of proof lies on the election petitioner to establish the allegations of corrupt practices beyond reasonable doubt. 2. The standard of proof required for proving corrupt practices is higher than the preponderance of probabilities. 3. The court must carefully assess the evidence and consider the surrounding circumstances, the credibility of witnesses, and the totality of the evidence to determine whether the allegations of corrupt practices have been established. 4. The mere fact that no polling was recorded at a particular booth does not necessarily mean that the election was vitiated. 5. If the electors decide to boycott the election on their own accord, the election will not be declared void.
Final Decision: The election petition was dismissed with costs to the returned candidate.
( 2 ) THE averments in the election petition filed under Section 80 of the representation of Peoples Act 1951 are that by a notification dated 26. 12. 2001 the elections of the Uttar Pradesh Legislative Assembly were declared. The programme of election included the beginning of nominations on 16. 1. 2002: close of nominations on 23. 1. 2002; scrutiny of nominations on 24. 1. 2002 and withdrawal of the nominations paper on 28. 1. 2002. The polling was fixed on 21. 2. 2001, and 24. 2. 2002 was fixed for counting and declaration of result. Paragraphs 4, 5, 6, 7, and 8 and ground Nos. (b)and (e) of the election relevant fo r the purposes of this petition are quoted as below;
"4. That it is relevant to mention here that on the day of polling the voters of the booth nos. 291. and 292 namely Sisaura Kala reached to the booth to use their franchise but in collusion with the election officials the respondent No. 1 along with his goondas stopped the polling of the booth Nos. 291 and 292 though the voters requested the presiding officer of the booths to allow them to caste their votes, but the officer replies that they would not be allowed to cast the vote as they were going to cast their vote in the favour of B. S. P. Candidate. The petitioner himself condemn the policy of presiding officer and requested him for further polling who assured the petitioner but no carried the same. 5. That it is pertinent to mention here that after knowing the fact of repelling of the votes at booth Nos. 291 and 292 the petitioner contacted the High Officials and filed written complaint to the Chief Returning Officer lucknow. U. P. A copy of the complaint was also sent to the Chief Election Commissioner, government of India, New Delhi by the petitioner. The petitioner requested for repolling on the booths. 6. That it is relevant to mention here that the petitioner along with other contacted the high Officials with request of re-polling at the booth 297 and 292 on 22. 2. 2002. They assures the petitioner that repolling will take place. 7. That it is pertinent to mention here that after not getting any response the petitioner again contacted and District Returning officer on 23. 2. 2002. Then he was told that the Chief Election Commissioner has not granted permission to re-polling, he further told that nothing would be done after going the Chief Election Commission. 8. That it is relevant to mention here that though the application/complaint of the petitioner was pending before the authority but the counting of the votes took place on 24. 2. 2002. Ground (b) Because corrupt practices has been committed by the winning candidate in collusion with the election officials stopping from casting their votes at booth Nos. 291 and 292. (c) Because the repolling was not allowed at booth Nos. 291 and 292 having 1460 valid vote of the Dalit Community at large, through the voters as well as the petitioner himself complaint for repolling. "
( 3 ) THE election petitioner alleges in paragraphs 9, 10 and 11 that he was declared as winner by margin of 286 votes but on the request of Shri Prabhu Narayan Yadav-respondent no. 1, the declaration was stopped and re-totalling took place. After re-totalling the election petitioner was declared winner by margin of 135 votes. The petitioner sent fax messages and telephone calls and news papers published victory of the petitioner, on the direction of the District Returning officer and in collusion with respondent no. 1, re
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