BORGARAM DEURI v. PREMODHAR BORA AND ANR

Citation: [2004] 1 S.C.R. 103

Court: Supreme Court of India

Bench: V.N. KHARE, S.B. SINHA

Case summary

BORGARAM DEURI v. PREMODHAR BORA AND ANR.pdf

Judgment text

BORGARAM DEUR! v. PREMODHAR BORA AND ANR. JANUARY 5, 2004 [V. N. KHARE, CJ AND S. B. SINHA, J. ] Representation ofthe People Act, /9jl~Sections 123(3), 123(3A) and 83-Eleclion petilion-Allegations ofcorrupt praclice-Spreading hatred on communal basis-High Court holding that charges not proved beyond reasonable doubt-Correctness of-Held: Allegations ofcorrupt practice must be pleaded strictly in lerms ofSection 83 and proved beyond all reasonable doubt-Election petilioner failed to prove charges ofcorrupt practice against re/urning candidate by adducing reliable and credible evidence-Hence order of High Courl justified. Legislative Assembly Elections were held and from one of the constituencies, the first respondent was declared elected. Appellant filed election petition alleging corrupt practice under Sections 123(3) and 123(3A) of the Representation of the People Act against respondent No. I. It was alleged that in various meetings respondent No.

I and his agents delivered speeches before the gathering appealing them to vote for respondent No. I and refrain from voting in favour of petitioner as he belonged to scheduled tribe community. High Court analyzing the evidence on record held that the charge was not proved beyond reasonable doubt and dismissed the petition. Hence the present appeal. Appellant contended that the High Court erred in observing that charge of corrupt practice was not proved beyond reasonable doubt; that the High Court even did not refer to the news item published in the newspaper which would prove the contents of the speech delivered by respondent No. I wherein the speakers asked the voters not to cast their votes in favour of the appellant which was made to spread hatred against members of a Scheduled Tribe amounting to corrupt practice; and that the interestedness of a witness cannot its. elf be a ground to disbelieve him as certain witnesses may also be interested in speaking the truth.

Dismissing the appeal, the Court HELD: I. The allegations of corrupt practice must conform to the provisions confained in Sections 123(3) and 123(3A) of the Representation of the People Act, 1951. It must be pleaded strictly in term~ of Section 83 of the Act and proved beyond all reasonable doubt. The allegations of corrupt practices are considered to be quasi-criminal in nature. The standard of proof required for proving corrupt practice for all intent and purport is equated with the standard expected in a criminal trial. The difference between an election petition and a criminal trial is, whereas an accused has the liberty to keep silence, during the trial of an election petition the returned candidate has to place before the Court his version and to satisfy the Court that he had not committed the corrupt practice as alleged in the petitiQn. The election petitioner must disclose the source of his information in the election petition fully.

His burden can be said to have been discharged only if and when he leads cogent and reliable evidence to prove the charges levelled against the returned candidate. The charges must be proved beyond reasonable doubt and not merely by preponderance of probabilities as in civil action. 1110-A-CI Gajanan Krishnaji Bapat and Anr. v. Dattaji Raghobaji Meghe and Ors. , AIR 119951 SC 2284; Surinder Singh v. Hardial Singh and Ors. , 119851 I SCR I059; R. P. Moidutty v. P. T. Kunju Mohammed and Anr. , 1200I] I SCC 481 and Mercykutty Amma v. Kadavoor Sivadasan and Anr. , 120031 AIR sew 6306, relied on. 2. In the instant case, the witnesses examined by the appellantelcction petition1! r in support of his allegation was found to be unworthy of any trust by,the High Court. No independent witness from the village had been examined by the election petitioner.

Spreading of hatred on communal basis is an offence, but the appellant did not lodge any First Information Report and no contemporaneous documentary evidence was brought on record. The contents of the news item was not proved by examining the reporter, the same could not have been exhibited legally on the statement of the witness that the report had been published in the newspaper. Therefore, was inadmissible in evidence. Even otherwise the manner iu which the alleged corrupt practice has taken place does not inspire confidence. Also the listed witness had not been examined. The names of the other witnesses examined by the appellant did not figure in the list of the witnesses filed earlier by the appellant. Furthermore, applying the test that the Court should be on its guard while evaluating the testimony of interested witnesses and they must be subjected to a closer scrutiny, High Court disbelieved the evidence of witness.

Therefore, the appellant had not been able to prove the charges of corrupt practice against the first respondent by adducing clear-cut evidence which can be said to be wholly credible and reliable. They failed to prove the charges of corrupt practice beyond reasonable doubt. Hence, the judgment of the High Court cannot be faulted with. (110-D-H; 111-F-G; 112-A-CJ Birbal Singh v. Kedar Nath, [19761 4 SCC 691, relied on. Quamarul Islam v. S. K. Kanta and Ors. , (19941 Supp. 3 SCC 5, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1300 of2003. From the Judgment and Order dated 19. 12. 2002 of the Gauhati High Court in E. P. No. 8 of 200 I. S. B. Sanyal, Manish Singhvi and Rameshwar Prasad Goyal for the Appellant. P. K. Goswami, Rajiv Mehta, Rajiv Malhotra and B. Aggarwala for the Respondents. The Judgment of the Court was delivered by S. B. SINHA, J. The election petitioner is the appellant herein. He filed the said petition questioning the election held on 10. 5.

2001 and the result whereof was declared on 13th May, 2001 declaring the first respondent herein as having been elected from I09 Bihpuria Constituency in the Assam Legislative Assembly General Elections. The appellant attributed corrupt practices against the first respondent herein purported to be under Section 123(3) and Section 123(3A) of the Representation of the People Act, 1951. The full particulars of alleged corrupt practices had been set forth in the petition which are as under : (i) "On 25. 4. 100! at about 2 P. M. when the petitioner was coming from Bahgora Deurigaon to Biphuria Town in a Tata Sumo (hired) vehicle accompanied by his wife and workers of the party Sri Lakhi Kanta Hazarika and Sri Giridhar Gohain after paying a .. visit to Shiv Mandir (Kundi Mama Mandir) the petitioner and his superiors on their way themselves saw a gathering of about 200 men who were being addressed by the respondent No.

I Sri Premodhar Bora from the stage platform of Rangamanch situated at Santhapur within Biphuria Police Station as a part ofhis election campaign. The petitioner halted there for a while and hear the respondent No. I, the returned candidate urging upon appealing to the gathering to vote for the respondent/ returned candidate and to refrain from voting for the petitioner on the ground that the petitioner belongs to the Scheduled Tribe Community, he fmther shouted a slogan "Biphuria Bachao". The respondent No. I also appealed to the members of the gathering to refrain from voting in favour of any candidate belonging to 'Scheduled Tribe Community'. The respondent No. I made this appeal to promote a feeling of enmity and hatred between different classes of the people of I09 Biphuria Legislative Assembly Constituency. It may be mentioned here that in the meeting aforesaid the respondent No.

I was accompanied by his agents namely Sri Ghanakanta Baruah and Sri Monoranjan Sharma and they also delivered speeches before the gathering with specific slogan to vote for the respondent No. I and to refrain from voting in favour of the petitioner on the ground that the petitioner belongs to Scheduled Tribe Community. The respondent No. I and his aforesaid two agents made the aforesaid slogan appealed to the members to caste vote for the respondent No. I and to refrain from voting in favour of the petitioner for furtherance of the prospect ofthe election of respondent No. I and for prejudicially affecting the election of the petitioner. (ii) On 1. 5. 2001, respondent No. I Sri Premadhar Boralong with Shri Monoranjan Sharma and Ghanakanta Baruah both are counting agents of Mr. Premodhar (Respondent No. I) and also Government servants both are teachers of Nehru Higher Secondary School, Jamuguri under Bihpuria Constituen·cy organized a meeting at village Raidongia Namghar at about I P.

M. where about 200 voters attended the meeting. In the meeting, the respondent No. I Sri Premodhar Bora and two other persons mentioned above delivered speeches in succession and appealed to the persons present in the meeting and to the people at large with the use of loud speakers to vote for him i. e. the respondent No. I and to refrain from voting in favour of the petiiioner on the ground that the petitioner belongs to Scheduled Tribe Community. This appeal was made by the respondent No. I and his two agents present there for the furtherance of the prospects ofthe election of respondent No. I and for prejudicially affecting the election of the petitioner, Sri Giridhar Gohain, Dlbyajyoti Bhuyan and other Congress workers witnessed the meeting and clearly saw the respondent No. I hurling the above language prejudicially affecting the prospect of the election of the petitioner. \ (iii) On 7. 5. 2001, respondent No.

I accompanied by Sri Ghanakanta Baruah and Monoranjan Sharma and others held a meeting at Bihpuria Town at Ward No. 4 in a market house at about 6 P. M. which was attended by about 150 voters of the said locality. In the said meeting respondent No. I specifically appealed to persons present in the meeting and the traders of the market to vote for him and to refrain from voting in favour of the petitioner on the ground that the petitioner is a S. T. candidate and if he is elected from the constituency, the constituency will be made reserved for S. T. Community. By this words respondent No. I promoted a feeling ofenmity and hatred between different classes ofpersons of that locality prejudicially affecting the election ofthe petitioner. One Sri Rohini Bhuyan, working President Block Congress Committee, Bihpuria and Sri Salauddin a Congress Worker witnessed the meeting and heard the speeches of Ghanakanta Barua and Monoranjan Shanna.

" The first respondent herein in his written statement denied and disputed the said allegations. The parties adduced their respective evidences before the High Court. The High Court proceeded on the basis that the allegations made in the election petition would amount to corrupt practice within the meaning of Sections 123(3) and 123(3)(A) of the Act. As regard the meeting dated 25. 4. 200 I, it was held: "8. An analysis of the evidence and counter evidence adduced by the parties in so far as the meeting held at Santapur Rang Manch on 25- 4-200 I and the alleged speeches made therein, are. concerned, reveals that the evidence of both sides are replete with inconsistencies and improbabilities. Certain unnatural aspects are noticeable in the evidence adduced by both the sides. There is nothing on record to make one version inherently improbable and the other version eminently acceptable.

The witnesses examined by both sides are also partisan in character and no independent witness has been examined by either party. Keeping in mind, the principles laid down in an earlier part of the judgment for determining the correctness of a charge of commission of corrupt practice by the returned candidate in an election and having regard to the fact that such charge must be proved beyond all reasonable doubt, I am of the considered view that the evidence on rec '. This Court in no uncertain terms stated that in a given case the Court would be justified in rejecting that evidence unless it is corroborated from an independent source. Applying the said test also, the evidence of P. W. 7 and P. W. 8 cannot be believed. The High Court itself while disbelieving the said witnesses noticed that they did not report to anybody about the meeting held at Bihpuria Bazar and • incriminating speeches made therein.

The findings of the High Court, therefore, are in consonance with the legal tests laid down by this Court in Birbal Singh (supra). On analyzing the materials on record, it is, therefore, evident that the appellant had not been able to prove the charges of corrupt practice against the first respondent herein by adducing clear-cut evidence which can be said to be wholly credible and reliable. The charges of corrupt practice were needed to be proved beyond doubt which the first respondent failed to do. It is beyond any cavil that the allegations of corrupt practice must be pleaded strictly in terms of Section 83 of the Representation of People Act and proved beyond all reasonable doubt. For the aforementioned reasons, we are ofthe opinion that the judgment of the High Court cannot be faulted. This appeal, therefore, being devoid of any merit is dismissed. No costs. N. J. Appeal dismissed.