BALDEV SINGH MANN v. SURJIT SINGH DHIMAN

Citation: [2008] 16 S.C.R. 540

Court: Supreme Court of India

Bench: DALVEER BHANDARI, H.S. BEDI

Case summary

BALDEV SINGH MANN v. SURJIT SINGH DHIMAN.pdf

Judgment text

[2008] 16 S. C. R. 540 ~ BALDEV SINGH MANN ~· v. . ' SURJIT SINGH DHIMAN (Civil Appeal No. 3700 of 2007) NOVEMBER 21, 2008 [DALVEER BHANpARI AND HAR:JIT SINGH 'BEDI, JJ. ] t Representation of People Act, 1951: s. 123(7) - Charge of corrup{practice - Burden to prove - Held: Is on the election petitioner - Mere preponderance of probabilities not enough - Allegation of corrupt practice should be clear and precise and charge should be proved to hilt as. criminal trial, by clear, cogent and credible evidence - On facts, . election petitioner ·tailed to prove basic ingredients of corrupt practice ·under s. 123(7) - Election petition ·rightly dismissed - Election laws - Election of elected candidate - Interference with. The appellant filed an election petition before the -I- High Court challenging the election of respondent on the ground that respondent had committed corrupt practices under s.

123(7) of the Representation of People Act, 1951 by obtaining and procuring assistance from ga~etted officers in the service of government for the furtherance of the prospects of his election. The High C. ourt held that the appellant failed to prove t- " the ingredients of corrupt practice contained in s. 123(7) of the Act; and that the evidence of cdrrupt practice was not strong enough to upset the. people's verdict in favour of the respondent. Hence the instant appeal. Dismissing the appeal, the Court •f J. . HELD: 1. The appellant failed to prove the basic inQredients of corrupt practices under s. 123(7) of the Representation of People Act, 1951. [Para 36] [599-8-C] 2. 1. The law is well-settled that charge of a corrupt practice in an election petition should be proved almost . like the criminal charge. The standard of proof is high and , the burden of proof is on the election petitioner. Mere · 8 preponderance of probabilities is not enough, as may be the case in a civil dispute.

Allegations of corrupt practices should be clear and precise and the charge should be · proved to the hilt as in a criminal trial by clear, cogent and credible evidence. [Para 24] [554-G-H; 555-A] ·· Jeet Mohinder Singh v. Harminder Singh Jassi (1999) 9 , SCC 386; Jagan Nath v. Jaswant Singh & Ors. 1954 SCR 892, Gajanan Krishnaji Bapat & Anr. v. Dattaji Raghobaji Meghe & Ors. (1995) 5 SCC 347; Quamarul Islam v. S. K. Kanta & Ors. (1994) Supp (3) SCC 5 F. A. Sapa & Ors. v. o Singora & Ors. (1991) 3 SCC 375, Manohar Joshi v. Damodar Tatyaba & Ors. (1991) 2 SCC 342;. Ram Singh &Ors. v. Col. Ram Singh (1985) Supp SCC 611; Kripa Shankar Chatterjee v. Gurudas Chatterjee &Ors. (1995) 5 SCC 1 and Ram Phal Kundu v. Kamal Sharma (2004) 2 SCC 759, relied on. ,E 2. 2. Charge of corrupt practice, if substantiated leads not only to the setting aside of the election of the successful candidate, but also of his being disqualified to contest an election for a certain period.

It may entail extinction of a person's public life and political career. A trial of an election petition though within the realm of civil law is akin to trial on a criminal charge. [Para 27) [555-G- H] . 3. The candidate who narrowly lost ordinarily makes all efforts and gather all kind of material against the elected candidate and level all kinds of allegations of corrupt practices whether substantiated or not. - In the instant case, this seemed to have happened. The respondent won by less than 1000 votes out of nearly 70000 polled votes. (Para 32) (558-A-B] 4. The will of the people is paramount in a democratic country an'd the election of elected candidate should not be lightly interfered with. At the same time, it is also ithe bounden ·duty and obligation of the court to ensure that purity of election process is fully safeguarded and s maintained. [Para 37] [559-C-D] Case Law Reference: f (1999) 9 sec 386 relied on Para·25 1954 SCR 892 r! i! lied on . P~re1 .

25 - vote and support Dhiman. (viii) February 3 at 3. 30 p. m. : Bachhi had contacted Jasbir Singh (PW 7), Dhanvir Singh, Gogi Singh in the house of Jasbir Singh and asked them to vote in favour of Dhiman. Mann was. informed about this by Jasbir Singh on the following day. (ix) February 5 at 5 p. m. : Bachhi held a meeting of voters of various villagers falling in Dirba constituency. The meeting was also attended by • ~ Dhiman. Many employees of the Board were also present at that meeting. Bachhi with the consent of Dhiman had ,·"· requested the persons present in the meeting to vote for Dhiman. The meeting was also addressed by Surjit Singh. , - . . · (x) February 6 at 10 a. m. : Bach hi asked PSEB employees to supply material out of turn for releasing t connection to the villagers of Chatha Nanhera and asked Thilu Singh to vote for Dhiman.

On February 6 itself Bachhi visited Dirba and in the present of Karnail Singh and Ruldu ir;ifbrmed about the work done by him for Thilu and others. Mann learnt about this from Karnail Singh and Ruldu . i' Singh at a rally addressed by Sukhbir Singh 13adal at Dirba. " 24. The mah question before the High Court was whether the aforementioned instances constituted corrupt practice as defined under section 123(7) of the said Act. In the impugned judgment the High Court came to the conclusion under subsection (7) of 123 of the said Act, it is obtaining or procuring of assistance for the furtherance of the prospects of the candidate which- constitutes main ing~edients of corrupt ~ practice. The_ assistance has to be procured from a pers_on who is in the government service and who additionally is a gazetted officer. In the impugned judgment the High Court had also discussed the legal position in detail.

The law is now well-settled that charge ofa co-rrupt practice in an election petition should be proved almost like the criminal charge. The standard of >-- ~· proof is high and the burden of proof is on the election petitioner. Mere preponderance of probabilities are not enough, as maybe the case in a civil dispute. Allegations of corrupt ---- .. practices should be clear and precise and the charge ·should be proved to the hilt as in a criminal trial by clear, cogent and credible evidence. ~ 25. A three-Judge Bench of this court in Je;et Mohinder Singh v. Harminder Singh Jassi (1999) 9 SCC ~86 has held 'B that the success of a candidate who has won at an election should not be lightly interfered with. Any petition seeking such interference must strictly conform to the requirements of the law. Though the purity of the election process h~s to be safeguarded and the court shall be vigilant to see tha.

t people do not get ;C elected by flagrant breaches of law or by committing corrupt practices, the setting aside of an election involves serious consequences not only for the returned candidate and the constituency, but also for the public at large inasmuch as reelection involves an enormous load on the public funds and -o administration. Similar opinion has been expressed in Jagan Nath v. Jaswant Singh & Others 1954 SCR 892, Gajanan Krishnaji Bapat & Another v. Dattaji Raghobaji Meghe & Others (1995) 5 SCC 347. The will of the people who have exercised their franchise in an election in favour of areturned candidate must be respected to protect the interest of the ·E returned candidate. 26. The court in. a. number of cases held :that charge of corrupt practice is a quasi-criminal in character and it has to be proved as a criminal charge and proved 'in the court. ~ 27.

In Jeet Mohinder Singh's ca$e (supra), the court ' observed as under:- "Charge of corrupt practice is quasi-criminal in character. If substantiated it leads not only to the setting aside of the, election of the successful candidate, but also. ofhis being ... --i disqualified to contest an election for a certain period. It may entail extinction of a person's public life and political career. A trial of a. n election petition though within. the realm of civil law is akin to trial on a criminal charge. Two consequences follow. Firstly, the allegations relating to commission of a corrupt practice should be sufficiently clear and stated precisely so as to afford the person charg~d a full opportunity of meeting the same. Secondly, the charg_es when put to issue should be proved by clear, cogent and credible evidence. To prove charge of corrupt practice a mere preponderance of probabilities would not be enough. There would be a presumption of innocence available to the person charged.

the charge shafl have to be proved to the hilt, the standard of proof being the same as in a criminal trial. " 28. The court has expressed similar opinion in the cases Quamarul Islam v. S. K. Kanta &Others (1994) Supp (3) SCC 5 F. A. Sapa & Others v. Singora & Others (1991) 3 SCC 375, Manohar Joshi v. Damodar Tatyaba & Others (1991) 2 SCC 342, Ram Singh &Ors. v. Col. Ram Singh (1985) Supp SCC 611 and Kripa Shankar Chatterjee v. Gurudas Chatterjee & Others (1995) 5 sec 1. 29. In Ram Phal Kundu v. Kamal Sharma (2004) 2 SCC 759, the court reiterated the principle of election jurisprudence and observed that the election of the returned candidate should not be lightly interfered with though at the same time the purity of the election process has to be maintained. 30. Now the crucial question arises for consideration is whether the evidence of the appellant on record is adequate to constitute corrupt practice within the meaning of secti on· 123 (7) of the said Act. 31.

Section 123 (7) of the Ac reads as under:- "(7) The obtaining or procuring of abetting or attempting to obtain Qr procure by a candidate or his agent or, by any other person [with the consent . of a candidate or his election. agent]', any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, from any person in the service of the ... A [DALVEER BHANDARI, J.

] ~ Government and belonging to any of the following classes, namely:- (a) gazetted officers; (b) stipendiary judges and magistrates; (c) members of the armed forces of the Union; ~, (d) members of the police forces; (e) excise officers; (f) revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and] (g) such other class of persons in the service of the Government as may be prescribed: [Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge-of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate • or his agent or any other person acting with the consent of the candidate or his election agent (whether by reason of the office held by the candidate or for any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the 'G prospects of that candidate's election].

" ..... ---f 32. In the instant case, the respondent won by less than 1000 votes out of nearly 70000 polled votes. In the impugned judgment, it is aptly observed that a candidate who loses by .. ~ such a slight margin finds it hard to accept defeat. Therefore, ~ the candidate who has narrowly lost would ordinarily· make all efforts and gather all kind of material ag~! nst the elected candidate and level all kinds of allegations of corrupt practices whether substantiated or not.. In the . instant case, this is what ·s seems to have happened. Allegatio. ns are that. the winner was moving from village to village asking for vote and in this process f he had often taken help of Bachhi a~d Sh~rgill for canvassing for votes in his favour. 33. In the impugned judgment, it is aptly observed: "Casting a vote or asking for it does not amount to obtaining any assistance. When a candidate meets a voter and ask him to vote, the voter may say "yes" or "no" or "may be".

In any event such conversation between a candidate and the voter would not ·amount to the voter giving assistance to the candidate. A persistent candidate or his agent may request the voters fo'r \tote and the voter may say "yes" simply to escape the candidate's persistence. Thi,s w9uld not amount to corrupt practice at all. There must be some positive and explicit proof on the part of voters belonging·to categories mentioned in section 123(7)(a)(g) to constitute corrupt practice. · 34. After carefully examining the entire evidence on record, the High Court came to the con'clusion that the appellant failed to prove the ingredients of corrupt practice contained in section ,. 123(7) of -th_e said Act. The High Court observed that the evidence of corrupt pr~ctice was not strong enough to upset the people's verdict in favour of the respondent. The High Court also observed that the appellant has failed to prove issue 5 and the additional issue framed by the High Court. 35.

This court in Gaja(lan Krishnaji Bapat (supra) t-- observed tbat that the appellate court attaches great valu. e to the opiniori formed by the Trial Judg~ more so when the Trial Judge recording 'findings of faCt is the. same whci had recorded the evidence. The Appellate Court shall remember that the A jurisdiction to try an election petition has been vested in a Judge of the High Court. Secondly, the trial judge had the benefit of watching the demeanour of witnesses and forming first-hand opinion of them in the process of evaluation of evidence. 8 36. We have carefully re-assessed and re-evaluated the entire evidence of record and we concur with the view which has been taken by the High Court. In our opinion, the appellant has failed to prove the oasic ingredients of corrupt practices under section 123(7) of the said Act. Consequently, the appeal being devoid of any merit is accordingly dismissed. C 37.

Before parting with the case, we would like to reiterate that in a democratic country the will of the people is paramount and the election of elected candidate should not be lightly interfered with. At the same time, it is also the bounden duty o and obligation of the court to ensure that purity of election process is fully safeguarded and maintained. D. G. Appeal dismissed.