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NEW DELHI, JULY 2— JULY 8, 2017, SATURDAY/ ASADHA 11— ASADHA 17, 1939
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PART II—Section 3—Sub-section (iii)
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Orders and Notifications issued by the Central Authorities (Other than the Administrations of Union Territories)
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112 THE GAZETTE OF INDIA : JULY 8, 2017/ASADHA 17, 1939 [PART II—SEC. 3(iii)]
ELECTION COMMISSION OF INDIA
New Delhi, the 12th June, 2017
O. N. 28.—In pursuance of Section 106(a) of the Representation of the People Act, 1951
(43 of 1951), the Election Commission hereby published Order dated the 23rd March, 2017 of the
High Court of Judicature at Patna in Election Petition No. 2 of 2014.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Election Petition No. 2 of 2014
===========================================================
Satya Nand Sharma son of Ram Sagar Sharma resident of Mohalla Shivpuri, Navchetna
Path, P.S. Gardanibagh, P.O. Anishabad, Dist. Patna.
... Petitioner/s
Versus
1. Kaushlendra Kumar son of Kameshwar Garai village Haiderchak, P.O. Khorampur, P.S.
Islampur Dist. Nalanda.
2. Ashis Ranjan Singha son of Bindeshwari Prasad resident of A/34, Gandhi Bihar
Anishabad police colony, P.S. Gardanibagh, P.O. Anishabad, Dist. Patna.
3. Sanjay Kumar son of Shohrai Rabidash resident of village Pesaur, P.O. and P.S. Rahui
Dist. Nalanda
4. Dhirendra Kumar son of Sachchitanand Singh resident of village and P.O. Suhabanpur
Sudhi P.S. Islampur, Dist. Nalanda.
5. Nayab Ali son of Hasan Ali resident of Mohalla Kaggi P.O. and P.S. Biharsharif, Dist.
Nalanda.
6. Niraj Sharma son of Rajendra Sharma resident of village Kapsiyaba, P.O. Kapsiyaba P.S.
Hilsa, Dist. Nalanda.
7. Parnav Prakash son of Suresh Chandra resident of Mohalla G-82, P.C. Colony
Kankarbagh P.O. and P.S. Kankarbagh, Dist Patna-20
8. Pramod Kumar Nirala son of Chandeshwar Singh resident of village Takabigha, P.O.
Lakhanpura P.S. Bakhtiyarpur, Dist. Patna.
9. Bhola Shaw son of Raghu Sao resident of village Bikrampur P.O. and P.S. Ekangarsarai,
Dist. Nalanda.
10. Mahesh Paswan son of Suraj Paswan resident of village Nekpur, P.O. Nekpur, P.S
Chhabilapur, Dist. Patna.
11. Yogendra Prasad son of Krishna Prasad resident of village Rasalpur, P.O. Jagai P.S.
Aungahi, Dist. Nalanda.
12.
Rakesh Ranjan Singha son of Anil Kumar Singha resident of village Kudwapur, P.O. and
P.S. Ekangarsarai, Dist. Nalanda
13.
Lallu Ram son of Bindeshwar Ram resident of village Milkipar, P.O. Bali Belchi P.S.
Chandi, Dist. Nalanda.
14.
Shashi Yadav wife of Dhirendra Yadav resident of Mohalla Water Tower, Road No. 2
P.O. G.P.O. P.S. Kotwali dist. Patna.
II—
(iii)
113
15.
Shailesh Kumar son of Bhatu Kebat resident of Mohalla Bari Pahari town Biharsharif,
P.O. Sohsarai, P.S. Sohsarai, Dist. Nalanda.
16.
Awadh kumar son of Jamun Prasad resident of village and P.O. Diyawa, P.S. Karai
Parsurai, Dist. Nalanda.
17.
Naresh Prasad Singh son of Sidheshwar Prasad resident of Mohalla Naisharai Ward
No. 11 P.O. and P.S. Biharsharif, Dist. Nalanda
18.
Kaushal Kumar @ Kaushlendra Singh @ Bharat Manas son of Bindeshwar Prasad Singh
resident of village Jaishiv Bigha, P.O. Habipur, P.S. Parwalpur, Dist. Nalanda.
19.
Munna Prasad son of Ram Lakhan Prasad resident of village Chorbigha, P.O. Jagdishpur,
Tiyari, P.S. and District Nalanda
20.
Lata Singha W/o Pramod Kumar resident of village Sundibigha P.O. and P.S.
Ekangersarai, Dist. Nalanda.
21.
Vishwajeet Kumar Son of Kunali Prasad resident of village Rashalpur, P.O. Karai,
Parsurai, P.S.Karai, Parsurai, Dist. Nalanda.
...Respondent/s
Appearance :
For the Petitioner
:
Mr. S. N. P. Sharma Sr. Advocate Mr. Amrendra
Kumar Singh, Advocate
For the Respondent No. 1
:
Mr. Awadhesh Prasad Sinha, Advocate
For rest of the respondents
:
Mr. S.K. Verma, Advocate.
CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL CAV
JUDGMENT
Date: 23-03-2017
The present election petition filed under Sections 80, 80-A and 81 of the Representation of
People Act, 1951 (for short „the Act’) has been filed by Shri Satya Nand Sharma challenging the
election of the respondent No.1 Shri Kaushlendra Kumar (hereinafter referred “as the Returned
Candidate”) as a Member of the Parliament (Lok Sabha) from 29 Nalanda Parliamentary
Constituency for which election was held in 2014.
(2) The election petitioner contested the said election on being nominated by the Lok
Jansakti Party (LJP) whereas the Returned Candidate was nominated by the political party Janta Dal
United. The last date of filing nomination papers was 26.03.2014. The election petitioner, the
returned candidate and other respondents were validly nominated to contest the said election. They
all contested the said election for which the polls had taken place on 17.04.2014. The counting of
votes was undertaken on 16.05.2014 and the result thereof was published on the same day. The
Returned Candidate having secured 321982 valid votes was declared elected. The election petitioner
was the first runner up having polled 312355 valid votes. The election symbol of the election
petitioner was ‘Bungla/Jhopari’ whereas the JDU had contested the said election on the election
symbol of ‘Arrow’. It may be noted that respondent No.2 had contested the said election as the
official candidate of Indian National Congress who had secured 127270 valid votes. The difference
between valid votes polled by the respondent No.1 and the election petitioner was 9627. The above
winning margin being slender which gave cause to the election petitioner to file the present election
petition mainly on two counts as would seen from paragraph Nos. 12,15 and paragraph Nos.
13,14,16 and 17. The grounds of challenge can be bifurcated into two parts. Paragraph Nos. 12 and
15 of the election petition allege that during the said election the Returned Candidate involved
114 THE GAZETTE OF INDIA : JULY 8, 2017/ASADHA 17, 1939 [PART II—SEC. 3(iii)]
himself in corrupt practices as several voters/supporters of the election petitioner at booth No. 128,
located in Middle School, Kosut of 176 Nalanda assembly Constituency (one of the assembly
segments falling in 29th Nalanda Parliamentary Constituency) were scared away forcibly from the
booths in presence of the Returned Candidate himself by his supporters. Similarly, it is alleged that
in altogether 32 booths falling in 177 Harnaut Assembly Constituency the voters/workers of the JDU
candidate and local MLA procured illegal votes in favour of the JDU candidate. Second allegation
as seen from paragraph Nos. 13,14,16 and 17 of the election petition is that during the counting of
votes several irregularities and illegalities were committed to favour the Returned Candidate.
(3) On notice, written statement was filed by the Returned Candidate. The other respondents
also filed written statements in two sets. Upon written statement(s) being filed, the Court with the
agreement of both the sides, vide order dated 22.09.2014, framed the following issues:-—
1. “1. Whether the election petition is fit to be dismissed summarily under section 86(1)
of the Representation of Peoples’ Act, 1951 for non compliance of the mandatory
provision of sections 81, 82 and 117 of the said Act read with section 100 of the Act?
2. Whether the election petition is fit to be dismissed summarily under Order VII, Rule
11 of the Code of Civil Procedure?
3. Whether respondent No. 1 has committed corrupt practice of undue influence upon
the voters as alleged in the election petition and if so, whether the respondent No. 1 is
guilty of commission of corrupt practice of undue influence as alleged in the election
petition rendering the election of respondent No. 1 as void?
4. Whether the irregularities and illegalities were committed in the course of counting
of votes as allege in the election petition. If so, is the election petitioner entitled to be
declared elected after deducting 50,000 void votes counted in favour of respondent
No. 1?
5. Whether the election petitioner is entitled to get any other relief/reliefs.”
(4) The respondent No. 1 on issue Nos. (1) and (2) filed separate Interlocutory Applications (
I.A. No. 8422 of 2014 and I.A. No. 8423 of 2014) which was contested by the election petitioner.
Under order dated 21.01.2015, the Court, while rejecting those Interlocutory Applications, answered
those issues in favour of the election petitioner. The remaining two issues, namely, (3) and (4) relate
to the allegation of commission of corrupt practices and the allegation of commission of
irregularities and illegalities in the counting of votes. The related issue is whether upon answering
issue No.4 in favour of the election petitioner, is he entitled to further relief of declaring him duly
elected at the said election.
(5) In order to prove the allegations, the election petitioner adduced oral as well as
documentary evidence. As many as 13 witnesses were examined on behalf of the election petitioner,
namely, Satya Nand Sharma (election petitioner) PW-1, Dharam Bichar Paswan (PW-2), Sonu
Kumar (PW-3), Dilip Paswan (PW-4), Balmiki Paswan (PW-5), Niraj Sharma (PW6), Rajendra
Kumar (PW7), Yogendra Prasad (PW8), Lallu Ram (PW9), Munna Prasad (PW10), Dhirendra
Kumar (PW11), Shailesh Kumar (PW12) and Devendra Sharma (PW13).
The Returned Candidate examined 07 witnesses, namely, Shri Shiv Kumar Yadav @ Sardar
Jee (RW-1), Ranjeet Paswan (RW-2), Smt. Munni Devi (RW3), Ravindra Kumar (Official)(RW-4),
Md. Parwez Akhtar (Official ) (RW-5), Ram Bali Paswan (Official/Presiding Officer) (RW-6) and
Kaushlendra Kumar (RW-7)
(6) First, I would deal with the issue No. (3) which pertains to allegations of having indulged
in corrupt practices at the said polls by the Returned Candidate. The relevant pleadings made in this
regard by the election petitioner have already been noticed. The main allegation is that 07 voters of
the election petitioner who had stood up in the queue to cast their votes at booth No. 128, located in
II—
(iii)
115
Middle School Kosut of 176 Nalanda Assembly Constituency, were scared away forcibly from the
booth in presence of the Returned Candidate himself. They were, thus, not permitted to cast their
votes. In paragraph No. 15 of the election petition, it is alleged that at booth Nos. 14, 15 and 22
falling in 177 Harnaut Assembly Constituency, the workers and supporters of JDU and the MLA
illegally procured votes in favour of the Returned Candidate. In essence, the allegation is of
capturing those booths by the JDU candidate (Returned Candidate).
7) Before the Court delves into the issue and appraise the evidence/material brought on
record by the rival parties, it is apt to notice the relevant provisions of the Act which has relevance
in the case. Section 123(2) of the Act defines the corrupt practice.
“123. (2) Undue influence, that is to say, any direct or indirect interference or
attempt to interfere on the part of the candidate or his agent, or of any other person [with the
consent of the candidate or his election agent], with the free exercise of any electoral right:
Provided that—
(a) without prejudice to the generality of the provisions of this clause any such person as is
referred to therein who—
(i) threatens any candidate or any elector, or any person in whom a candidate or an elector
is interested, with injury of any kind including social ostracism and ex-communication or
expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person
in whom he is interested, will become or will be rendered an object of divine displeasure or
spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of
such candidate or elector within the meaning of this clause;…………….”
[(8) booth capturing by a candidate or his agent or other person.] Explanation.—(1) In this
section, the expression "agent" includes an election agent, a polling agent and any person
who is held to have acted as an agent in connection with the election with the consent of the
candidate.
(2) For the purposes of clause (7), a person shall be deemed to assist in the furtherance of
the prospects of a candidate's election if he acts as an election agent of that candidate.]
[(3) For the purposes of clause (7), notwithstanding anything contained in any other law, the
publication in the Official Gazette of the appointment, resignation, termination of service,
dismissal or removal from service of a person in the service of the Central Government
(including a person serving in connection with the administration of a Union Territory) or of
a State Government shall be conclusive proof—
(i) of such appointment, resignation, termination of service, dismissal or removal from
service, as the case may be, and
(ii) where the date of taking effect of such appointment, resignation, termination of service,
dismiss al or removal from service, as the case may be, is stated in such publication, also of
the fact that such person was appointed with effect from the said date, or in the case of
resignation, termination of service, dismissal or removal from service, such person ceased to
be in such service with effect from the said date.]
[(4) For the purposes of clause (8), "booth capturing" shall have the same meaning as in
section 135A……………..”
(8) PWs-2, 3, 4, 5 and 7 are the witnesses who amongst the 07 named in the election petition
were allegedly scared away or forbidden by the supporters/workers of the Returned Candidate in his
presence. Along with the election petition, the complaints filed by the election agent of the election
petitioner before the Returning Officer or the Election Commission of India have been enclosed.
They have been marked as Exhibits 6,7,8 and 9. There is some objection of the Returned Candidate
116 THE GAZETTE OF INDIA : JULY 8, 2017/ASADHA 17, 1939 [PART II—SEC. 3(iii)]
to their admitting in evidence which shall be dealt with at appropriate stage. Affidavited
examinations- in- chief on behalf of those witnesses have been filed. They were, however, subjected
to cross-examination by the Returned Candidate. All the aforesaid witnesses have stated almost
identically as per their examinations-in-chief. On the date of poll they were at the polling Station
located in the Middle School Kosut and were standing in the queue to vote when the supporters of
the Returned Candidate in his presence forced them to leave the polling booth without casting vote.
The Exhibits, referred to above, are the complaints/letters written to the Returning Officer or the
Election Commission of India (for short ‘The ECI’) by the Election Agent (PW-13) of the election
petitioner with regard to the said incident. To counter the said allegation the Returned Candidate
adduced oral evidence of RW-1 Shiv Kumar Yadav, RW-2 Ranjeet Paswan, RW-3 Munni Devi and
03 official witnesses, namely, RW-4 Ravindra Kumar, RW-5 Md. Parwej Akhtar, and RW-6 Ram
Bali Paswan who was the Presiding Officer on booth No. 128, Primary School, Kosut. The Returned
Candidate examined himself as RW-7 and denied the allegations. In his evidence, he has stated that
on the relevant day he had not visited the polling booth in-question. He remained throughout at his
house in his village.
(9) In order to consider the point at issue, I would first scan the relevant pleadings and the
oral evidence adduced by the parties. In paragraph No. 12 of the election petition, it is stated that on
the day of poll, the Returned candidate himself came to booth No. 128, located in Middle School
Kosut and said that voter standing in queue to cast their votes in favour of the election petitioner and
scared away forcibly from the booth in his presence. The election petitioner has named Balmiki
Paswan, Dilip Paswan, Sonu Kumar, Dharam Bichar Paswan, Upendra Paswan, Santosh Kumar and
Rajendra Kumar as voters who had queued up at the polling booth but were scared away by the
respondent No. 1 himself and his workers/supporters. In paragraph No. 15, it is stated that the
booths, in all 32, falling in 177 Harnaut Assembly Constituency were captured by the workers and
MLA of JDU and illegal votes were procured in favour of the Returned Candidate.
(10) In order to substantiate the aforesaid, the election petitioner adduced oral evidence of
himself (PW-1), Sri Dharam Bichar Paswan (PW-2), Sonu Kumar (PW-3), Dilip Paswan (PW-4),
Balmiki Paswan (PW-5), Rajendra Kumar (PW-7) and Devendra Sharma (PW-13) the election agent
of the election petitioner. In their respective examinations-in-chief they all have stated that on the
day of poll the Returned Candidate himself visited the booth No. 128 and directed/ordered to scare
away forcibly the voters standing in the queue and thereby they were forcibly prevented from
casting their votes. Almost every witness has named those 07 persons as the voters who were driven
away from the booth at the behest of the Returned candidate who was present at the booth.
However, in crossexamination the election petitioner (PW-1) has admitted that his evidence on the
point is only hearsay. He further admitted at the said booth he had polled the highest number of
votes whereas the Returned candidate polled only 41 votes.
PW-2, in his examination-in-chief, has deposed in the similar vein. During his cross-
examination, he has shown his inability to state about the total number of votes to be polled at Kosut
Primary School. About 12 to 15 persons were standing in the queue when some persons came and
chased them. He again named those voters who were scared away. Shri Kaushlendra Kumar
(Returned Candidate) was amongst the persons who had ordered and scared away persons. He could
not approach the police out of fear. He has, however, further admitted that he fled away from outside
the booth as he was not allowed to go inside the booth. He only informed the election agent (PW-
13). The evidence of PW-3 Sonu Kumar is also to the same effect. In his cross-examination, he too
has stated that 10-15 persons went together for the purpose of casting votes. He could not remember
the names of those persons except the seven who have been named by the election petitioner in the
election petition. As they were standing in the queue, they were obstructed from casting the votes.
He along with others were driven away from the queue. Thereafter this witness sat near a peepal tree
100 ft. away from the booth. About the occurrence he did not disclose to anybody except the party
workers. Surprisingly, he too does not know the name of the polling agent of the party who was
present at the booth.
II—
(iii)
117
PW-4, in his examination-in-chief, has stated about scaring away of himself and 06 other
voters when they were standing in queue to cast vote at booth No. 128. The respondent No.1 along
with his supporters/workers came at the said booth and respondent No.1 himself along with his
workers scared away the voters. In his cross-examination, he states that nobody was assaulted but
only driven away and thereafter those voters assembled under the peepal tree. He did not inform the
police officer or nobody regarding this incident. This was out of fear.
Balmiki Paswan (PW5) has similarly in his examination-in-chief stated about scaring away
the voters including himself by the Returned candidate and his supporters. He too says that police
was not informed out of fear. Only the election agent (PW-13) was informed regarding the
incidence. To the same effect Rajendra Kumar (PW-7) has deposed.
(11) In order to rebut the allegation, the Returned Candidate adduced oral evidence of RW-1
Shiv Kumar Yadav @ Sardar jee, RW-2 Ranjeet Paswan and RW-3 Munni Devi. In order to
demonstrate that the voting at the said booth was peaceful and there was adequate security
arrangement provided by the administration the evidence of official witness RW-5 Md. Parwej
Akhtar who was Sector-cum-Zonal Magistrate at Kosut and RW-6 Ram Bali Paswan, the Presiding
Officer of booth No. 128, Primary School Kosut have been examined.
RW-1 has stated in his examination-in-chief that he had gone to booth early in the
morning to cast his vote and remained around the polling booth till 5 pm. He could notice
Sonu Paswan, Dilip Paswan, Balmiki Paswan, Ram Bichar Paswan and Dharam Bichar
Paswan and few others standing ahead of him in the queue. There was no obstruction by
anyone in casting their votes. On the day of poll the Returned candidate had not visited the
polling booth nor his any supporter. From his cross-examination, it is apparent that he was
the voter in whose presence EVM machines used at the booth were sealed. After casting
votes, he stayed near the polling booth to help the polling agent of the Congress party. The
patrolling party consisting of six police personnel(s) visited the booth in the morning. 03
officers/ personnel(s) of the Government were present inside the polling booth. He could see
the Magistrate on duty in civil dress sitting with the patrolling party. He has, however,
admitted that he is Vice President of Congress party in Nalanda District.
RW-2 Ranjeet Paswan has similarly, in his examination-in-chief, has stated that he is
the registered voters at the said booth and he had actually cast his vote on the relevant date.
While casting vote nobody had disturbed any voter who had queued up for casting vote. On
the date of polling the Returned Candidate had not visited the said polling booth. In his
cross-examination, he has stated that his wife was desirous to contest the election from
Rajgir reserve Assembly Constituency as a JDU candidate. While he was at the booth, 25-30
voters were standing ahead of him. It took him nearly 1 and ½ hours to cast his vote. He has,
however, denied that the Returned candidate or his supporters had ever come to the booth on
the date of poll and scared the voters from the polling booth. Armed police personnel(s) were
stationed at the polling booth and patrolling party also used to visit the booths at intervals.
He has emphatically denied that any obstruction was ever put to the voters in casting their
votes. He himself is not a political worker. RW-3 Munni Devi has similarly stated in his
examination-in-chief that she is a voter of the said booth and had cast her vote. There was no
disturbance at the polling booth. No voter was obstructed by anyone. In her cross-
examination, she has admitted that she is a member of the Zila Parishad, Nalanda. She
wanted to contest the election as official candidate of JDU. She has denied the suggestion
that owing to her political allegiance she had come to depose in the case. She reached the
polling booth at about 11-12 A.M; stood up in the queue and waited for about 45 minutes
before she could enter the polling booth and cast her vote. After casting her vote she went to
the nearby village to persuade the female voters to cast their votes.
RW-5 (official) on the relevant date discharged the duty of Sector-cum-Zonal
Magistrate. He was in-charge of 22 polling booths including booth No. 128 at Primary
118 THE GAZETTE OF INDIA : JULY 8, 2017/ASADHA 17, 1939 [PART II—SEC. 3(iii)]
School, Kosut. At least on 3 or 4 occasions he had visited the said booth. No any incidence
of the obstruction of the voter was found in his presence. He had also not received any
complaint of this nature on this booth. In his crossexamination, he has stated that in course of
visit of the polling booth he used to stay 5 to 10 minutes at the booth.
RW-6 (official) was on the date of poll discharging the duties of the Presiding Officer
at booth No. 128. He has stated on the date of poll, there was no any ‘hungama’. No voter
was obstructed by anyone from casting vote. The Returned Candidate had not visited the
polling booth on the said date of poll. In cross-examination, he has stated that his substantive
post is Incharge Headmaster of Gorawan (Silao Block), Kosut booth, about 12 to 13 kms
from the school. He was inside the room whereas other officers assisting in poll were sitting
on the ‘verandah’. The polling was smooth and peaceful at the booth. He has denied the
suggestion that he too contributed in capturing the booth for the Returned Candidate. He has
also denied the suggestion that dishonestly he recorded in the Presiding Officer diary that the
polling at the booth was peaceful. To a question, the witness produced a paper and stated that
this will show his appointment as the Presiding Officer at the said polling station.
Shri Kaushlendra Kumar, the Returned Candidate also took the dock and deposed as
RW-7. He has stated that on the date of poll he had not visited any village like Kosut or any
other village in Harnaut Assembly Constituency. On the basis of his information he has
stated that none of his workers/supporters had gone to the polling booth in Kosut on the date
of poll. He had no personal information that any voters at Kosut polling booth was prevented
from casting vote. He had secured meager number of votes at the Kosut polling station. It
was the polling booth surrounded by the supporters of Sri Satya Nand Sharma, the election
petitioner. In his cross-examination, he has stated that he had appointed polling agents on all
booths including Kosut. He admits that where he was stationed on the date of poll was not
stated by him in his written statement.
Once the oral evidence adduced on behalf of the rival parties are scanned it becomes
explicit that there is allegation of scaring away the voters, few of them are named in the
election petition by the Returned Candidate and/or his supporters/workers whereas there is
complete denial of the said allegation through the oral evidence adduced by the Returned
Candidate.
(12) It has been submitted on behalf of the election petitioner on the basis of the Exts.6 to 9
that promptly the matter was reported to the Returning Officer as well as the ECI. There is,
thus, contemporaneous documents to show that scaring away of the voters by the Returned
Candidate and his supporters at the said polling booth was promptly reported. The Returning
Officer of the election has not been examined. The Returned Candidate has, however,
examined RW-4(official), namely, Mr. Ravindra Kumar who was then posted as the Deputy
Election Officer, Biharsharif and was associated with the general election held in 2014 from
the said Parliamentary Constituency. He has stated that a complaint cell was constituted
during the election. Apart from the complaint lodged before the Returning Officer as well as
before him or the election control room. Looking to the complaints lodged by the election
agent of the election petitioner (Exts. 6 to 9) which have also been annexed with the election
petition supported by affidavit, it is stated that none of the aforesaid communication
appended to the election petition were transmitted to and received in his office. To a Court
query, he has stated that he was stating so on the basis of the documents available in his
office. Any complaint received in course of poll was enquired into and result thereof
communicated to the Chief Electoral Officer, Bihar.
It is further found from the record that Annexure-1 to 4 of the election petition, on the
request of the election petitioner, were called for from the custodian(s) thereof but they were
not sent to and received, the explanation being that they were not filed and available on
record. In this context, the election petitioner filed I.A. No. 8114 of 2015 for accepting those
II—
(iii)
119
Annexure(s) as secondary evidence. Considering the fact that those Annexure(s) were
supported by the affidavit and filed along with the election petition for which foundation was
laid in the election petition the same was allowed and they were marked as Exhibits 6 to 9 as
those Annexure(s) were the integral part of the pleading which can always referred and relied
upon by the election petitioner whether marked Exhibits or not. The Court would only
highlight here that those documents were not furnished by the election authority on the
ground that they were not filed, and processed.
(13) Seen thus, is found that oral evidence on this point has been adduced by both the
parties. It has been submitted on behalf of the election petitioner that obstruction to the
voters in exercising his franchise is a glaring example of corrupt practice adopted at the
election covered by Section 123 (2) and (3) of the Act. If any voter is obstructed in casting
vote at the behest of the Returned Candidate or his supporter in his presence is proved to the
hilt, the election of the Returned candidate shall stand vitiated. Reliance in this regard is
placed on the case of Janak Sinha v. Mahant Ram Kishore Das reported in AIR 1972 SC 359
wherein the Apex Court, on a consideration of the attending facts and circumstances
appearing in the case, held that when a voter is prevented from exercising his votes by the
supporters of the appellant and in his presence and without any attempt made by latter to stop
his supporters from so doing, the only inference was that PW-44 was prevented from voting
by the supporters of the appellant with the latter‟ s consent. If that is so, it follows that there
has been a direct interference with the free exercise by the said witness of his electoral right
and the Returned Candidate (appellant) was guilty of corrupt practice of undue influence
under Section 123(2) of the Act. The aforesaid proposition of law was enunciated
considering the fact that it was an admitted position that on the booth number 57, the polling
was very seriously disturbed and the polling was postponed to some other date. The evidence
was also led by the respondent that he was assaulted by the appellant and his polling agent at
the said booth on the deferred date of poll. He was pushed out of the polling booth by the
appellant himself and his election agent and supporter and that he sustained injuries
regarding which complaints had been made to the police. Another incident had taken place
on the same day at 12 noon when the polling agent of the respondent was prevented from
discharging his duties and turned out from the polling booth by the appellant. The learned
trial Judge, on appreciation of evidence, had found that corrupt practice of undue influence
was committed at the said booth on the date of poll and the respondent was also assaulted.
Turning to the evidence led in by the parties in the present case, it is found that the
disturbance at the said booth on the date of poll by the Returned Candidate or his supporters
was not reported to any election authority or the police personnel supervising the poll at the
said booth. The respondents have led evidence to the effect that there was adequate number
of police personnel(s) deployed at the polling booth and the patrolling party consisting of
Magistrate and police personnel visited the booth intermittently. The witnesses of the
election petitioner claimed to have remained present near the polling booth sitting under the
Peepal tree for a quite long time but no such complaint or information was given to the
police personnel or the Magistrate stationed /visiting the polling booth. On the other hand,
they have stated that they did not disclose to anyone about what happened with them save
and except informing the election agent of the election petitioner about the incident. In Ram
Saran Yadav vs. Thakur Muneshwar Nath Singh & Ors. AIR 1985 SC 24, on which reliance
has been placed by the election petitioner, the Supreme Court found the plea of alibi of the
Returned Candidate unnatural and not satisfactory. The Apex Court also noticed that the
Returned Candidate had not stated in his written statement that he had not gone to the polling
booth in question. The explanation given by the Returned Candidate was lame explanation
which was held as an afterthought. It was found to be the one taken for the first time in Court
when he came in the witness box. It has, thus, been argued with much emphasis that the
present case is squarely covered by the enunciation of law made on this point by the Hon’ble
120 THE GAZETTE OF INDIA : JULY 8, 2017/ASADHA 17, 1939 [PART II—SEC. 3(iii)]
Apex Court. In the present case, it is found that in para-6 of the written statement of the
Returned Candidate while denying the allegation of having indulged in corrupt practice by
him, it has been stated that respondent No.1 (Returned Candidate) had never went on the
date of poll to booth No. 128. None of the electorates were scared either by the respondent
no.1 or his supporters at the said booth in his presence. It is, thus, not a case where the plea
of this nature while denying the allegation made by the election petitioner was taken by the
respondent quite abruptly only while deposing in the Court bereft of the pleading made in
this regard. It has been submitted by the election petitioner that the evidence of the Returned
Candidate (RW7) on this aspect is completely evasive as the Returned Candidate in his
deposition has not disclosed about the place where he was on the date of poll. He has only
stated that he remained at his village on the date of poll and did not visit the Kosut polling
station. The alibi taken by him, therefore, does not inspire confidence. It is an afterthought.
The witness ought to have disclosed the place where he was present on the date of poll.
There is no dispute at the Bar that allegation of using corrupt practice during the poll is akin
to the criminal charge. The first legal duty is on the allegator (election petitioner) to prove by
cogent evidence that actually the voters were scared away from the polling booth by the
Returned Candidate or his supporters in his Patna High Court E.P. No.2 of 2014 dt. 23-03-
2017 21/27 presence whereafter the onus would shift on the Returned Candidate. The Court
is, therefore, obliged to examine whether the burden of proof has been adequately discharged
by the election petitioner. As noticed, oral evidence and counter oral evidence has been led
on this point by both the parties. It is also apparent that no complaint of such scaring away of
those witnesses was lodged with the police personnel(s) or the patrolling party who had
visited on few occasions the polling booth or stationed thereat. The witnesses of the election
petitioner remained near the polling booth for a quite long time. Except informing the
election agent of the election petitioner they did nothing. The Magistrate overseeing the
smooth poll or the armed police personnel stationed at the booth were not informed. It is also
not a case of physical assault on any supporters/voters of the election petitioner which was
promptly reported to the police or armed police personnel(s) stationed at the booth. It has
been argued with reference to the Annexures 1 to 4 appended to the election petition (marked
as Exts. 6 to 9) that there are contemporaneous documents to show that the incident was
promptly reported to the Returning Officer as well as the E.C.I. I have already noticed that
those documents were not made available to the Court with an explanation that they were
never filed and are available on the record. Turning to the evidence of RW-4 (Deputy
Election Officer), it is found that any such complaint filed was processed and the result
thereof made available to the ECI. Thus, complaints in course of polling were supposed to
receive in the office of this witness which, however, were not received, processed and result
thereof communicated to the ECI. The allegation of having indulged in corrupt practice
being akin to a criminal charge was required to be demonstrated convincingly whereafter the
burden would shift on the Returned candidate. RW-6 was the Presiding Officer at the said
booth on the date of poll. He is required in law to maintain a diary. If any
illegality/irregularity or mis-happening occurs during the polls he is obliged to enter the
same in his diary. This witness has clearly stated that as no such incident had occurred, he
had not entered the same in the Presiding Officer’s diary.
It has been argued on behalf of the election petitioner and adopted by the other
respondents supporting the election petition that the oral evidence of RW-7, the Returned
Candidate on the plea of alibi is evasive and incomplete as he has not stated about the
place(s) were he had stayed on the date of poll in his written statement. I have already
noticed the relevant pleadings made on behalf of the Returned Candidate in the written
statement. In no uncertain term, it was stated by him (Returned Candidate) that on the date of
poll he had not personally visited polling booth at village Kosut. It was, thus, his complete
denial of the allegation of having exercised undue influence on the voters at the said booth
by preventing one or many voters from casting his/their vote by him or his
II—
(iii)
121
supporters/workers. It is easy to allege that the Returned Candidate himself or in his presence
his supporters got the voters scared away from the queue but difficult to prove the same.
Perhaps, the slender margin by which the Returned Candidate was declared elected
punctuated the election petitioner to allege so which has not been proved by convincing
materials placed on record. If the foundation is laid in the pleading the witness can always
supplement the same in course of deposition. Law in this regard is eloquently settled. Even
without delving into the much debated point whether Exts. 6 to 9 would constitute the
secondary evidence duly proved and brought on record it is found that the Kosut polling
booth was surrounded by the supporters of the election petitioner. Obviously, as per the
evidence, the election petitioner polled the highest number of votes at the said booth whereas
the Returned candidate polled only 41 votes. The election petitioner has himself admitted the
said position. The Court even after considering the same does not find, in view of other
relevant materials on record, that the charge of the Returned Candidate having himself
indulged in the corrupt practices of exercising undue influence on the voters in the manner
alleged by the election petitioner has not been proved to the hilt. The point at issue is decided
against the election petitioner.
With regard to the corrupt practice having been committed by the Returned
Candidate in procuring illegal votes as alleged in para 15 of the election petition, it is found
that a general allegation has been levelled that the workers of JDU and local MLA captured
the booths. However, the election petitioner has not disclosed the names of any of the
workers or even the MLA who did so and in what manner. None of the villagers or the voters
of those booths have come forward to support the allegation of booth capturing except the
election petitioner.
(14) The next point at issue relates to the illegalities and irregularities in the counting
of votes. Relevant pleadings in this regard have been made in paragraph nos. 13,14,16 and
17 of the election petition. The Returned Candidate, in paragraph no. 16,17,18, 19, 20, 21
and 22 of his written statement has denied those allegations. No oral evidence has, however,
been adduced on this point by the election petitioner. In support of the said allegation, the
election petitioner has cited examples of 02 booths, namely, 208, Panchayat Bhawan,
Tribhuwan Bigha and 69 Primary School Pendapur where polling percentage was 100% but
the counting result indicates that not a single vote was polled. This has been cited as a
glaring example of illegal counting of votes in favour of the Returned Candidate. PWs 7,8,9
and 10 have deposed in support of the said charge. Ext. A has been brought on record by the
respondent (Returned Candidate) which is the „Voter Turn Out Report’. Total number of
votes at the said booth has been shown as 485. The Final Result Sheet’ (Ext. B) displays the
Voter Turn Out as ‘0’. The respondent has relied in this regard on Ext. A ( marked without
objection) furnished by the District Magistrate Nalanda, under the R.T.I. Act wherefrom it is
explicit that ‘0’ number of votes were polled at the said polling booth as the voters of the
booth had completely boycotted the election. The Presiding Officer of the booth had
committed a mistake in entering Form 17-C. Similar is the case with regard to the booth no.
69. The election petitioner has admitted this fact in para 13 of the election petition that the
counting result indicates that not a single poll was polled on the said polling booth(s). Ext. B
corroborates the same. No vote was polled on the said booth which is a fact evident from the
above. It benefited none. With regard to the illegal counting or mis-counting of votes at
booth no. 69, I have carefully perused the oral evidence of PWs 7 to 11. They have in
general way supported the same. The charge being vague and general in the light of the
documentary evidence produced by the Returned candidate would not be accepted as proved.
It is stated that at booth no. 69 the polling percentage was 100% whereas the counting result
sheet also found the polling percentage 100% which was not the case. The final result sheet
(Annexure-B) however, shows the total number of valid votes polled thereat inclusive of
NOTA was 449. The Returned Candidate has explained in Para 22 of the written statement
122 THE GAZETTE OF INDIA : JULY 8, 2017/ASADHA 17, 1939 [PART II—SEC. 3(iii)]
that the total number of voters registered on the said booth was 977, the total number of
votes polled was 449 in which the Returned Candidate obtained 122 votes whereas the other
candidates including the election petitioner secured 237 votes. Ext. A also supports the same.
Similar allegation has been made by the election petitioner in paragraph no. 14 of the
election petition that on booth numbers 13 (upgraded middle School Mallikpur), 18 (Primary
school Amat) and 69 (Primary school Pendapur) the polling percentage was 100%. On these
booths there were several dead voters. The same has been replied by the Returned Candidate
in paragraph nos. 23 to 26 of the written statement. In paragraph no. 25 of the written
statement of respondent no.1 (Returned Candidate) it is stated on the basis of the final result
sheet (Annexure-B) that on each of the booth not more than 50% of the votes were actually
polled. There is no evidence much less convicting evidence with regard to the allegation that
votes were allowed to be polled of the dead voters on those booths. The allegation made in
this regard and the evidence adduced in support thereof are not convincing. Ext. C has been
brought on record by the Returned Candidate. On perusal whereof, it is evident that the dead
voters were deleted from the voter list. RW-4 (official witness) has stated that those voters
who were deleted from the voter list cannot vote. Their names had been deleted from the
voter list. The other pleadings on the said charge are simply vague. In the light of above, the
Court does not find any merit in the aforesaid submission of the election petitioner with
regard to the miscounting or illegal counting of votes on the booths alleged by him. In course
of argument no serious contention was also made on this aspect of the matter.
(15) The Court would not overlook the fact that votes polled at the election reflect the Will
of the electorate in a democracy. The Court can, however, nullify the election result only when the
allegation/charge of having indulged in corrupt practice by the election petitioner or his election
agent are proved by convincing evidence. In the name of purity of the election it can be done but
only when the charges/allegations are proved to the satisfaction of the Court. This is not the case in
hand. From the foregoing, it is manifest that the election petitioner has failed to prove the said point
at issue which is again answered against the election petitioner.
(16) The two crucial issues having been decided against the election petitioner results in non-
suiting the election petitioner. The election petition is dismissed.
(17) No cost(s).
Sd./-
(KISHORE KUMAR MANDAL, J)
[No. 82/BR-HP/ES-1/EP/(2/2014)/2017]
By Order,
SUMIT MUKHERJEE, Secy.
Uploaded by Dte. of Printing at Government of India Press, Ring Road, Mayapuri, New Delhi-110064
and Published by the Controller of Publications, Delhi-110054.
ALOK KUMAR
Digitally signed by ALOK KUMAR
Date: 2017.07.24 15:53:47 +05'30'