Baldev Singh Mann vs Surjit Singh Dhiman

government. He had also remained as the Additional Deputy 4

Commissioner, Sangrur for four years and belonged to

Rajpura, a village in Dirba Constituency.

8. According to the appellant, the role of Dhiman and

Bachhi which amounted to corrupt practices under section

123(7) of the said Act are as under:

(A) On 23.1.2002 respondent met Bachhi at the office of

Executive Engineer, Punjab State Electricity Board

(P.S.E.B), Dirba at 7 p.m. in the presence of Kirpal Singh,

Sarpanch of Ladbanjara Kalan and Gurtej Singh, Sarpanch

of Karyal and had asked Bachhi to help him in the

elections. After detailed deliberations Bachhi agreed to help

and support Dhiman. From 24.1.2002 to 26.1.2002, the

respondent and Bachhi were seen by Karnail Singh of

Chatha Nanhera, Upender Singh Honey and Teja Singh

Tiwana of Chajjli, Kashmira Singh of Karyal and Darshan

Singh, Nazam Singh and Labh Singh of Dirba jointly

contacting persons and asking them for their support in the

elections. They had also contacted Shamsher Singh of

Chatha Nanhera and Natha Singh and Harnek Singh of 5

Chajjli and sought their support. The appellant had come

to know about these facts on 27.1.2002 at 10 a.m. at Dirba

from Karnail Singh, Shamsher Singh, Natha Singh, Harnek

Singh, Upender Singh, Teja Singh Tiwana, Kashmira Singh

and others when Parkash Singh Badal, President SAD, had

come to Dirba on 27.1.2002 to address an election rally in

support of the appellant. The appellant and others

complained to him about the activities of Bachhi

whereupon Bachhi was expelled from the primary

membership of SAD for anti-party activities.

(B) Bachhi alongwith Dhiman visited Rajpura on 3.2.2002

at 11 a.m. and held a meeting at the house of Jarnail Singh

where Ram Karan, Sukhdev Singh and others had also

assembled. All these persons were voters of Dirba

Constituency. Bachhi had taken N.S. Bhullar, an

Assistant Engineer (PSEB) with him. The said Bhullar was

a relative of Jarnail Singh. Bachhi threatended Jarnail

Singh's relatives that in case they did not vote and support

the respondent he would create problems for their relative

Bhullar.

6

(C) On 4.2.2002, the appellant was informed by Naranjan

Singh and Mehar Singh of Kala Jhar that a day earlier at

about 2 p.m. Bachhi along with the respondent had met

them and asked for support and vote. Later, the appellant

was also informed by Jasbir Singh, Dhanvir Singh and Gogi

Singh that Bachhi had contacted them in their village on

3.2.2002 at 3.30 p.m. and canvassed for votes in favour of

the respondent. The appellant in his complaint to the

Election Commission had also complained that Bachhi had

been canvassing for votes in favour of the respondent at

Channo and Kala Jhar.

(D) On 5.2.2002, at 5 p.m. a meeting was convened at

Chandani Tourist Complex in Nadampur of the voters

belonging to Nadampur, Balad Kalan, Phuymanali and Turi.

The respondent was present at this meeting. Some officers

of the PSEB were also present. Names of some of the

persons who were present there at that time were

mentioned in the petition and names of the PSEB

employees were also mentioned. At this meeting, Bachhi

asked the persons present to vote and support the 7

respondent. The respondent also thanked Bachhi and

others for supporting him. The appellant came to know

about this meeting on 9.2.2002 from Gurmeet Singh and

Hakam Singh of Nadampur and Labh Singh of Phumanwali

and he immediately sent a fax message to the Chief Election

Commissioner. At the said meeting, the respondent had

introduced some persons of Chatha Nanhera to Bachhi and

asked him to help them in getting out-of-turn power

connection from the Board. The respondent told Bachhi

that if he is able to release the connection, that would

advance his prospects in the elections not only in his own

village but also in the surrounding villages. Bachhi asked

Thilu Singh to meet him in the office of SDO (Sub Urban)

Suman on 6.2.2002 at 10 a.m.

(E) The above meeting was held at the scheduled time and

Bachhi directed the PSEB official to supply material out of

turn for giving connections to the villagers of Chatha

Nanhera. He also asked Thilu Singh and others of that

village to vote and support the respondent. In the evening

at 5 p.m. Bachhi visited Dirba and in the presence of 8

Karnail Singh, Ruldu Singh of Chatha Nanhera informed

the respondent that Thilu Singh's work had been done. The

appellant came to know about this information from Karnail

Singh and Ruldu Singh on 8.2.2002 at 5 p.m. at an election

rally addressed by Sukhbir Singh Badal at Dirba.

Consequently, the appellant sent a complaint in this regard

to the Chief Election Commissioner.

9. Similarly, Shergill's role which attracted the provisions of

the said Act is as under:

As regards Shergill, the appellant pleaded that on

3.2.2002, the respondent and Bachhi had visited

Rajpura where they held a meeting in Jarnail

Singh's house. They also went to Shergill's house

who at that time was posted as Deputy Director,

Panchayats at Chandigarh. They met Shergill at 12

noon in the presence of Joginder Singh, Nachhattar

Singh and Chand Singh of Rajpura. The

respondent requested Shergill to spare some time 9

for helping him in the election as he had sufficient

influence in the area. Initially Shergill showed

reluctance to do so but the respondent with the

help of Bachhi succeeded in persuading Shergill to

render help in the elections. Thereafter, on

4.2.2002 at 9 a.m. both Shergill and Bachhi went to

Barroh and met Amarjeet Singh and asked him to

collect prominent persons of the village, whereupon

several persons came there and Shergill requested

them to vote for the respondent. Shergill also

reminded them of the favours he had been doing for

them when he was posted as ADC (Development) at

Sangrur. The appellant learnt about these details

from Amarjeet Singh of Barroh on 6.2.2002.

Similarly, Bachhi and Shergill went to Noorpur on

4.2.2002 and at Mastaan Singh's house, a number

of persons of Noorpur arrived. Shergill impressed

upon those persons to vote and support for the

respondent. The appellant learnt about this from

Jagjit Singh and Jasbir Singh when he went to 10

Noorpur on 6.2.2002 about 2 p.m. The appellant

immediately filed a complaint through fax before the

Chief Election Commissioner.

10. The appellant pleaded in the election petition that when

Bachhi came to know about the complaints lodged by the

appellant, he destroyed the log book of his car to conceal the

fact that he was touring Dirba during the assembly elections

to canvass for votes for the respondent. After the result was

declared, the respondent toured the villages falling in Dirba

Constituency to congratulate and thank his voters and

supporters. On 4.4.2002 and 5.4.2002, Bachhi also

accompanied him and visited about 33 villages in

Bhawanigarh. While addressing meetings in villages, the

respondent specially thanked Bachhi for the sacrifice made by

him. Bachhi also thanked the people for voting and

supporting the respondent. There was a news item in this

regard in the Punjabi Tribune dated 6.4.2002. 11

11. The respondent's conduct established that he had

obtained assistance from Bachhi and Shergill, both gazetted

officers in the service of the Government. These acts

constituted corrupt practices. According to the appellant, the

respondent had obtained assistance from Bachhi and Shergill

in furtherance of the prospects of his election. Hence, the

election was liable to be declared void. The respondent had

committed corrupt practices as detailed under section 123(7)

of the said Act. According to the appellant, the respondent is

clearly guilty under section 123(7) of the said Act.

12. The respondent filed written statement in which he had

taken five preliminary objections that :

(i) The election petition was not maintainable as the

affidavit attached to it was not an affidavit in the

eyes of law since it has not been properly verified;

(ii) The election petition does not contain material facts

on which the appellant relied upon; 12

(iii) The election petition was not a complete petition as

the alleged complaints and the news items have not

been attached therewith;

(iv) The appellant has no cause of action because

Bachhi, though a gazetted officer was not in the

service of the Government and Shergill though in

the service of the Government was not a gazetted

officer;

(v) The petition deserved to be dismissed because it did

not disclose the date, time and place when the

appellant's statement was recorded by Avtar Singh

and thus did not disclose any cause of action.

13. That the respondent submitted on merit that he was not

aware of the details of appointment of Bachhi as

Administrative Member of the Punjab State Electricity Board

as copy of the gazette notification has not been placed on

record. However, Bachhi was not in the employment of the

Punjab Government as Punjab State Electricity Board was an

autonomous body created under the Electricity (Supply) Act, 13

1948 and its employees are not in the service of the Punjab

Government.

14. According to the respondent, Shergill is not a gazetted

officer as Deputy Director in any of the departments of the

Punjab Government.

15. The respondent specifically pleaded that he had neither

sought nor got any assistance for any purpose, much less for

the furtherance of the prospects of his election either from

Bachhi or Shergill.

16. In the written statement, other allegations of taking

assistance or help from Bachhi or Shergill were specifically

denied. The allegations regarding destruction of car's log book

have been made on the basis of the information received from

Varinder Singh, Assistant, Punjab State Electricity Board.

According to the respondent, Varinder Singh was an ardent

supporter of the appellant. The allegations lacked material

particulars as regards date, place and time of the alleged 14

destruction of the log book. Allegations that Bachhi

addressed meetings after the election were also denied. It was

submitted that these activities cannot be taken into

consideration. Under election law only activities of the

returned candidate from the date of filing of the nomination

since declaration of the results were not relevant. The High

Court after completion of the pleadings framed the following

issues:-

"1. Whether the Election Petition and the affidavit in support of the election petition are not properly verified, if so, its effect?

2. Whether the Election Petition lacks in material facts, if so, its effect?

3. Whether the copy of Election Petition supplied to the answering respondent is not a complete copy of the election petition, if so, its effect?

4. Whether the Election Petition does not disclose any cause of action as mentioned in preliminary objections nos.4 and 5 of the written statement, if so, its effect?

5. Whether the returned candidate obtained the assistance of Mr. Gurbachan Singh Bachhi Administrative Member of P.S.E.B. for the furtherance of the 15

prospects of his election in the way and manner alleged in paragraph 4 and paragraphs 6-A to E and 7 of the election petition and thereby respondent committed corrupt practice as defined under section 123(7) of Representation of People Act, 1951? If so, its effect."

17. On October 17, 2003, an additional issue was framed

which reads as under:-

"Whether the returned candidates obtained assistance of Shri B.S. Shergill, Deputy Director, Panchayats, Punjab for the furtherance of his prospects of his election in the way and manner alleged in para nos.5 and 7 of the election petition and thereby committed corrupt practice as defined under section 123(7) of the Representation of People Act?"

18. Issues 1 to 4 were treated as preliminary issues.

19. On January 13, 2004, issues 1 to 4 were decided against

the respondent."

20. The appellant in support of his case submitted a list of

54 witnesses, but examined only 15.

16

21. Sumit Mukherjee, Under Secretary to the Election

Commission of India appeared as PW1 and testified in respect

of the complaints received by the Chief Election Commissioner

of India from the appellant during the process of election to

the Dirba Assembly Constituency. The four complaints were

dated February 4, 6 and 9, 2002 marked as PW1/A to PW1/D

respectively. The said complaints were inquired into by the

Chief Electoral Officer, Punjab and the report of the Chief

Electoral Officer including reports of the Department of Rural

Development and Panchayats and Additional Secretary,

Department of Power are marked as PW1/E to PW1/G. The

four complaints (Exhibits PW1/A to PW1/D) were in respect of

the incidents already referred to in the pleadings.

22. The appellant appeared as PW2 and submitted his

affidavit dated March 5, 2004 Exhibit PW2/1. The appellant

produced 15 witnesses and the respondent produced 9

witnesses.

17

23. The High Court after hearing learned counsel for the

parties and examining the relevant cases came to the

conclusion that it is difficult to hold that Bachhi was a

gazetted officer though he was in the service of the

Government. In this view of the matter it is necessary to

examine the specific allegations of corrupt practice and after

enumerating these incidents try and see if proof of allegations

either through direct, circumstantial or corroborative evidence

was forthcoming. There are allegations that on several

occasions Bachhi had agreed to support the respondent.

These are extracted from the examination-in-chief of the

appellant's sworn affidavit PW2/1.

"(i) January 23, 7 p.m. : On Dhiman's persuation Bachhi agreed to support him in the constituency. This incident had taken place in the presence of Kirpal Singh (PW-

3). Mann was informed about this at Dirba by Karnail Singh (PW-4) and others.

(ii) Between January 24-26 : Dhiman and Bachhi personally contacted prominent persons 18

of Dirba constituency for soliciting support for Dhiman.

(iii) They joined campaign for Dhiman. They were seen by Karnail Singh (PW4), Upinder Singh, Teja Singh Tiwana, Kashmira Singh, Darshan Singh, Nazam Singh and Labh Singh.

(iv) Bachhi and Dhiman contacted Shamsher Singh and Harnek Singh. These persons had told Mann about this fact.

(v) January 27-12 noon Parkash Singh Badal, President (SAD) came to Dirba to address an election rally in Man's support and Mann informed Badal about Bachhi's anti-party activities. This led to Bachhi's expulsion from the party.

(vi) February 3 : Bachhi and Dhiman visited Rajpura and met in Jarnail Singh's house in the presence of Ram Karan (PW 5). Jarnail Singh was the brother-

in-law of N.S. Bhullar, AEE, P.S.E.B. Bhullar was also present there. Persons present in the meeting were asked to vote for Dhiman. Bachhi even threatened Jarnail Singh that in case his relatives did not vote and support Dhiman, then Bhullar could be in trouble. Mann was informed about this on the following day by Ram Karan (PW 5).

(vii) February 4 at 2 p.m. : Bachhi and Dhiman met Niranjan Singh (PW 6) and Mehar Singh at their 19

houses at Kala Jhar and asked them to 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. : Bachhi asked PSEB employees to supply material out of turn for releasing 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 informed about the work done by him for Thilu and others. Mann learnt about this from Karnail Singh and Ruldu Singh at a rally addressed by Sukhbir Singh Badal at Dirba."

24. The main 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 20

judgment the High Court came to the conclusion under sub-

section (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 ingredients of corrupt

practice. The assistance has to be procured from a person

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 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 preponderance of probabilities are

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.

25. A three-Judge Bench of this court in Jeet Mohinder

Singh v. Harminder Singh Jassi (1999) 9 SCC 386 has held

that the success of a candidate who has won at an election 21

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 has to be

safeguarded and the court shall be vigilant to see that people

do not get 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

re-election involves an enormous load on the public funds and

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 a returned

candidate must be respected to protect the interest of the

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. 22

27. In Jeet Mohinder Singh's case (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 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. 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 charged a full opportunity of meeting the same. Secondly, the charges 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 shall 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 23

(1985) Supp SCC 611 and Kripa Shankar Chatterjee v.

Gurudas Chatterjee & Others (1995) 5 SCC 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 section 123

(7) of the said Act.

31. Section 123 (7) of the Act reads as under:-

"(7) The obtaining or procuring of abetting or attempting to obtain or 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 Government and belonging to any of the following classes, namely:- 24

(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 prospects of that candidate's election]."

32. In the instant case, the respondent won by less than

1000 votes out of nearly 70000 polled votes. In the impugned 25

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 against the elected

candidate and level all kinds of allegations of corrupt practices

whether substantiated or not. In the instant case, this is

what seems to have happened. Allegations are that the

winner was moving from village to village asking for vote and

in this process he had often taken help of Bachhi and Shergill

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 for vote and the voter may say "yes" simply to escape the candidate's persistence. This would 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. 26

34. After carefully examining the entire evidence on record,

the High Court came to the conclusion that the appellant

failed to prove the ingredients of corrupt practice contained in

section 123(7) of the said Act. The High Court observed that

the evidence of corrupt practice 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 Gajanan Krishnaji Bapat (supra)

observed that that the appellate court attaches great value to

the opinion formed by the Trial Judge more so when the Trial

Judge recording findings of fact is the same who had recorded

the evidence. The Appellate Court shall remember that the

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.

27

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 basic ingredients of corrupt

practices under section 123(7) of the said Act. Consequently,

the appeal being devoid of any merit is accordingly dismissed.

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 and obligation of the court to ensure that purity

of election process is fully safeguarded and maintained.

.................................J. (Dalveer Bhandari)

.................................J. (Harjit Singh Bedi) New Delhi;

November 21, 2008