REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2719 OF 2006

Govind Singh ..Appellant

Versus

Harchand Kaur ..Respondent

J U D G M E N T

GYAN SUDHA MISRA, J.

This appeal has been preferred under Section 116A of the Representation

of People Act, 1951 (hereafter referred to as the Act of 1951) assailing the

Judgment and Order of the High Court of Punjab and Haryana dated April 28,

2006 delivered in Election petition No. 22/2002 as a consequence of which the

election of the appellant, Govind Singh as MLA to the Punjab Legislative

Assembly held on February 13, 2002 from the reserved 82-Sherpur (S.C.)

Assembly Constituency was declared void and hence was set aside awarding a

cost of Rs.50,000/- to the respondent Smt. Harchand Kaur.

2. The election of the appellant was challenged by the respondent- Smt.

Harchand Kaur who is the defeated candidate and although she had secured third

position in the polling, she challenged the election of the appellant alleging

corrupt practice against him within the meaning of Section 123 (1) (A) of the Act

of 1951.

3. The essential details of the Election petition which formed the basis of

challenge to the election of the appellant, disclose that on June 26, 2001 the

Governor of Punjab issued a notification under Section 15 of the Representation

of People Act, 1951 calling for election of MLAs from all constituencies in Punjab

to constitute the Punjab Legislative Assembly. The appellant-Govind Singh, at the

relevant time was functioning as a Minister of Social Security, Women and Child

Development and the party in power to which the appellant belonged was

Shiromani Akali Dal (Badal). However, the appellant admittedly resigned on

January 12, 2002 from the primary membership of Akali Dal as he was denied

party ticket to contest the election from the said Assembly Constituency. The

Election Commission published the election schedule which stated that the last

date for filing nomination would be January 23, 2002 and the date for scrutiny of

nominations was fixed for 24.01.2002. The schedule further indicated that the

last date for withdrawal of candidature would be January 28, 2002 after which the

poll was to be held on February 13, 2002 and finally the counting of votes on

February 24, 2002.

4. In view of the aforesaid schedule fixed by the Election Commission, the

appellant - Govind Singh and nine others filed nominations for contesting the

election for the reserved 82-Sherpur (S.C.) Assembly Constituency. The appellant

had filed nomination as an independent candidate since he had resigned from the

membership of the Shiromani Akali Dal (Badal) party.

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5. The election to the concerned constituency was held as per schedule on

13

th

February, 2001 and the process was finally complete on February 24, 2002

after counting of the votes when the appellant was declared elected to the

reserved 82-Sherpur (S.C.) Assembly Constituency since he had secured

highest number of votes which was 30132. The nearest rival to the returned

candidate i.e. the appellant-Govind Singh, was Piara Singh of the Shiromani Akali

Dal (Badal) in whose favour 26525 votes had been polled and the contesting

respondent - Smt. Harchand Kaur secured third position in whose favour 19439

votes had been polled. The total number of votes polled was admittedly 90882 in

the Assembly Constituency where all these three candidates had contested.

6. The Respondent - Smt. Harchand Kaur, having been defeated in the

election felt aggrieved of the election result as she apprehended, which obviously

was a late realisation on her part to the effect that the elected candidate i.e. the

appellant herein, Govind Singh, had indulged in corrupt practices in the election

process due to which she could not emerge as a victorious candidate. This

prompted her to file an Election petition in the High Court of Punjab and Haryana,

bearing Election petition No. 22/2002 wherein she challenged the petitioner’s

election alleging illegal acts of omission and commission at the instance of the

appellant which amounted to indulgence in corrupt practice within the meaning of

Section 123 (1) read with Section 100 (1) (b) of the Act of 1951.

7. Elaborating the details of her alleged plea of corrupt practice on the basis

of which the respondent Smt. Kaur had filed the Election petition in the High Court

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challenging the election of the appellant -Govind Singh, it was stated that the

returned candidate while holding the charge of Social Security Minister in the

State Cabinet misused his power with an intention to gain benefit in the election

2002 violating the procedure as he sanctioned and released the old

age/widow/handicapped pensions in favour of the residents of Sherpur

Constituency and this was clearly with a view to secure votes of the electorates in

the ensuing election. A list of 16 persons with their addresses was furnished

along with a few forms pertaining to those persons indicating that the petitioner

had sanctioned their pension directly.

8. The respondent herein Smt. Harchand Kaur further alleged that the

returned candidate, the appellant herein, while holding the post of Cabinet

Minister in charge of Social Security Department misused his power and got

various women voters of his Constituency employed as Anganwadi Workers for

the period upto 28.2.2002 and they were employed in service with a motive to

compel them to undertake the work of his election and cast their votes as also

manage other votes in his favour in the constituency in the election scheduled to

be held on 13.2.2002. A list of 13 women with their addresses was given

alongwith the true translated copy of one such appointment letter. Relying on

these facts, the respondent alleged that the appellant is guilty of committing

corrupt practice with a view to secure votes in the election which is covered under

Section 123 of the Act of 1951.

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9. The Respondent Smt. Harchand Kaur levelled a third allegation also

alleging corrupt practice by stating that the returned candidate Govind Singh- the

Appellant herein, distributed money among the voters in exchange of their

promise to vote for him directly as well as through his agents with his consent in

the presence of respectable village persons who stood surety on their behalf. The

appellant had also promised to facilitate construction of drains and many pacca

pavements and streets in case he was voted and emerged as a victorious

candidate. Elaborating further on this aspect, the respondent herein alleged that

the appellant Shri Gobind Singh paid cash at various places for getting votes as

informed by the respectable persons of that area, namely, Avtar Singh, S/o

Baldev Singh, Balbir Singh, S/o Budh Singh, both r/o village and Post Office

Ladda, Tehsil Dhuri, District Sangrur; Jaspal Singh, Sarpanch village Bir

Mamgarh, Tehsil Malekotla, District Sangrur and Ramzan Khan Sarpanch, village

Jatewal, Tehsil Malerkotla district Sangrur. However, only Balbir Singh out of

these persons was cited in the list of witnesses filed later on by the respondent in

her Election petition. He was subsequently cited as a witness who could not prove

the allegation of cash for votes but was cited as a witness only to prove the

allegation that the petitioner had delivered speeches at various places to promote

enmity on the ground of religion. He, however, was finally never examined by the

respondent.

10.Thus, the sum and substance of the entire allegations levelled by the

defeated candidate Smt. Harchand Kaur - the respondent herein, is to the effect

that the appellant-returned candidate Shri Gobind Singh with the active support of

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his supporters indulged in corrupt practice and offered bribery in the form of gift

and promise to give cash to those who voted in his favour. This vitiated the

election and hence he is guilty of committing corrupt practice which is covered

under Section 123 (1) A (b) and B (b) of the Act of 1951 due to which the election

held on 13

th

February, 2002 deserves to be quashed and set aside since the

corrupt practice at the instance of the appellant is covered under Section 123 of

the Act of 1951.

11.The appellant Shri Singh responded to the Election petition by filing his

written statements to the petition on August 12, 2002 wherein he initially took the

preliminary objection that no material facts and material particulars had been

pleaded in the petition concerning the allegations of corrupt practice and no time,

date and place had been mentioned and hence the contents were liable to be

struck off as no cause of action was disclosed by the petitioner/respondent

herein. It was further averred that no attested or true copy of the Election petition

had been served on the petitioner nor the verification of the petition was done as

per the 1951 Act as well as the Code of Civil Procedure due to which the same

was also defective as the affidavit had not been filed in support of the allegations

of corrupt practice, in terms of the requirements of the Act of 1951. In so far as,

the merits of the allegations in the petition are concerned, they were denied and it

was clarified that the returned candidate / the appellant herein had already

resigned from the Government as Minister of Social Security as also from the

primary membership of the Shiromani Akali Dal on January 12, 2002. The

appellant submitted that the sanction or release of pensions was done by the

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District level authorities and the appellant who was then a Minister at the most,

had recommended acceptance which was always subject to the legal norms for

such pension. It was further stated that all the documents annexed by the

respondent with her Election petition in the High Court pertained to the period

2001, and therefore, were irrelevant to the period of the election that is January

23, 2002 to February 24, 2002. The pass books of the pension receivers annexed

by the respondent merely showed the normal flow of pensions into the pension

accounts in 2001 without even a statement that these were sanctioned by the

petitioner in 2002 since this was inherently impossible after his resignation. It was

further stated therein that none of the allegations contained the relevant material

facts and the material particulars as to the date, time and place which could

substantiate the allegation.

12. The Respondent Smt. Harchand Kaur thereafter filed rejoinder to the

written statement wherein the facts stated in the Election petition were reiterated

in order to contend that the appellant in fact indulged in corrupt practice to ensure

his victory in the election.

13.The learned single Judge on the aforesaid case and counter case of the

contesting parties initially framed as many as nine issues but ultimately confined

to the following issues:

5. Whether the respondent is guilty of corrupt practices

committed by him or with his consent as enumerated

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in paras No. 12,13,14,17,18, 19, 20, 21, 22, 23, 24, 25

and 26 which materially affected the result of election

and his election deserves to be set aside.

6. Whether any corrupt practice (bribery, offer any gift or

money as a reward to an Elector for having voted or

refrain from voting, gives a gratification to any person

with the object of inducing him to exercise any other

Elector right) has been committed by returned

candidate or his election agent or any other person

with the consent of a returned candidate or his election

agent under Section 123 of the Representation of the

People Act, 1951?

7. Whether disbursement of money under the pretext of

old age pension etc. between the day of nomination

and polling day by the returned candidate or by his

consent by other persons through department of

Social Security Women and Child Development, of

which he was a Minister, to induce the electors in his

constituency to vote for him, amounts to a corrupt

practice under Section 100(1)(b)?

9. Whether the returned candidate himself or on his

behalf or with his consent, large number of fresh

appointments as Anganwari workers were issued for

specific period, by the department of Social Security

Women and Child Development to induce the voters in

his constituency to vote for him and thus committed a

corrupt practice under the Act?

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14.Thus, the High Court although initially framed nine issues on the basis of

the Election petition filed by the Respondent, the same was eventually confined to

the challenge to the election of the returned candidate only on the ground of

corrupt practices as envisaged under Section 123 (1) read with Section 100 (1)

(b) of the Act of 1951 wherein ‘bribery’ has been considered to be a corrupt

practice i.e. any gift, offer or promise by a candidate or his agent or by any other

person with the consent of a candidate or his election agent of any gratification, to

any person whomsoever, with the object, directly or indirectly inducing him to vote

or refrain from voting at an election or as a reward to an election for having voted

or refrain from voting. Hence, the analysis of oral and documentary evidence

made by the High Court has been confined to the issues nos. 5, 6, 7 and 9 quoted

hereinbefore as to whether the returned candidate is guilty of corrupt practices

alleged against him or has been committed by him or his election agent or any

other person with the consent of the returned candidate-the appellant herein. The

analysis made by the High Court also indicated that it took into consideration

issue no. 7, as to whether disbursement of money under the pretext of old age

pension etc. between the day of nomination and polling day by the returned

candidate or with his consent by other persons through The Department of Social

Security Women and Child Development of which he was a Minister, induced the

electorate in his constituency to vote for him so as to bring it within the ambit and

scope of corrupt practice laid down under Section 100 (1) (b) of the Act of 1951.

15.The High Court further proceeded to consider issue no. 9 as to whether

the returned candidate himself or on his behalf or with his consent, large number

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of ladies were recruited as fresh Anganwadi Workers for a specific period by the

Department of Social Security women and Child Development in order to induce

the voters in his constituency to vote for him and thus committed a corrupt

practice under the Act.

16.The learned single Judge of the High Court who tried the Election petition

therefore scrutinized the oral evidence led by the contesting parties as also the

documents produced and on its scrutiny in the light of the submissions advanced

by the contesting parties, recorded a finding that the returned candidate/the

appellant Gobind Singh had used the tool of payment of pension to bribe the

voters. The learned Judge went on to record that the election petitioner had

succeeded in establishing that the returned candidate had committed corrupt

practice within the meaning of Section 79 (2) of the Act by inducing the voters to

vote for him in consideration of payment of cash named as pension on 10.2.2002,

11.2.2002 and 12.2.2002 when the polls were to be held on 13.2.2002. The

learned Judge further found considerable merit in the submission of the election

petitioner-the respondent herein to the effect that the case concerning corrupt

practices had been sufficiently pleaded in the Election petition at paras 17 to 21,

24, 26 and 30. The learned Judge further proceeded to observe that the affidavit

in the prescribed form in support of the allegations of corrupt practice and the

particulars thereof which was required to be attached with the petition, had also

been done. The learned single Judge was therefore of the view that the broad

and basic features of the case of the election petition stands established and the

corrupt practice committed by the returned candidate is fully covered by Section

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123 (1) (A) of the Act. The money in the name of pension was presented as a gift

to the voters directly for inducing the voters to vote in favour of the returned

candidate which would be clearly covered by the aforementioned provision of the

Act.

17.The High Court was further pleased to observe that the resignation of the

appellant from the Cabinet or from the primary membership of the Shiromani Akali

Dal had no connection with the distribution of cash in the name of pension on

10.2.2002, 11.2.2002 and 12.2.2002 when voting was to take place on 13.2.2002.

Hence, the election of the returned candidate to 82-Sherpur (SC) Assembly

Constituency to which the appellant Gobind Singh had been declared elected,

was declared void and consequently was set aside. It was, therefore, directed

that the Election Branch of the Registry with regard to the disqualification of the

returned candidate to contest any further election be communicated. The

Election petition thus was allowed with cost which was determined at Rs.

50,000/-.

18.The returned candidate Shri Govind Singh-the appellant herein, obviously

felt aggrieved with the judgment and order of the High Court setting aside his

election and hence has preferred this appeal assailing the judgment and order of

the High court. However, we were informed that during pendency of this appeal,

the appellant has already completed his term as a member of the Legislative

Assembly but this appeal could not be treated as infructuous since the appellant

is bound to suffer the consequence of disqualification on account of the setting

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aside of his election on the alleged indulgence in corrupt practice in the previous

election which will affect his candidature to contest any election in future.

19.Assailing the judgment and order passed by the High Court, it was

submitted at the threshold by learned senior counsel for the appellant- Shri

Hansaria, that the allegation of the respondent herein, while challenging the

election of the appellant, relates to the acts attributed to the appellant as Minister

prior to filing his nomination on 23.1.2002 as in paragraphs 17, 18 and 19 the

respondent alleged that the appellant Shri Gobind Singh got released pension to

various persons by misusing his position as a Minister, Social Security

Department. In paragraph 20, it has been alleged that the appellant misused his

power as Social Security Minister and violated the procedure in

sanctioning/releasing the old age/widow/handicapped persons. In para 21 of the

election petition, the Respondent has further alleged that the appellant being the

Cabinet Minister holding the charge of Social Security Department misused his

power and got various women voters of his Constituency employed as anganwadi

workers.

20.In order to demolish the case of the respondent, a sure shot argument

advanced by the counsel for the appellant was that none of the aforesaid

allegations even if assumed to be correct - although the same are disputed, would

amount to corrupt practice within the meaning of Section 123 (1) (A) of the Act as

those acts related to the period when the appellant was holding the charge of the

Social Security Minister and the acts were in discharge of his official duties which

was perfectly legal and justified. In support of this submission, reliance was

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placed by the learned counsel on the decision delivered in the matter of Mohan

Rawale v. Damodar Tatyaba @ Dadasaheb,1994 (2) SCC 392, wherein it was

held that any allegation made with reference to a period prior to nomination as a

candidate, does not amount to corrupt practice. It was submitted that in the

instant case, the appellant resigned as a Minister on 12.1.2002 and became a

candidate for the election only on 23.1.2002 when he filed his nomination for

contesting the election as an independent candidate. Hence, it was contended

that any act attributed to the appellant in his capacity as a Minister, even if

assumed to be correct, although the same are disputed, would not come within

the ambit of the allegation of indulgence in corrupt practice. It was further averred

that the sanction, approval or grant of pension by a Minister does not amount to

bribery under clause (1) of Section 123 of the Act as it is not a gift, offer or

promise of any gratification which is sine qua non for attracting the said provision.

It was still further submitted that the act of approval of appointment of some

women as anganwadi workers by a Minister is also not covered by the provision

of Section 123 of the Act as there is no evidence on record, either oral or

documentary, that the appellant appointed any anganwadi workers. The only

material relied upon by the respondent in this regard is Exhibit PW-1/46 to PW-

1/70 which are applications for appointment of anganwadi workers. In

any event, all these 25 applications except 6 of them (Ext. PW-1/52,58,62,66,68

and 69) are undated. Even the 6 applications which bears date are from

22.2.2001 (Ext. PW1/62) to 24.12.2001 (Ext.PW1/69), i.e. prior to the appellant

becoming a candidate in the election. In addition, only 2 of 25 applications (Ext.

PW-1/50 and 70) bear endorsement by the appellant and both of them are

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undated. There is also no whisper in paragraphs 17 to 21 that the appellant

distributed any amount in cash by way of pension.

21.While challenging the finding recorded on corrupt practice, it was further

elaborated that the averments made at paragraph 24, 26 and 30 are vague and

lack in material facts with full particulars as section 83(1) (a) (b) of the Act

mandates that Election petition must contain material facts and if there are

allegations of corrupt practice, it must also contain full particulars. This is the

mandatory requirement of law and no election petition can be entertained without

full particulars of material facts. In order to substantiate this contention, it was

stated that in paragraph 24, 26 and 30 alleging that the appellant distributed

money in cash amongst voters, no particulars about the date, time and place

where money was allegedly distributed, nor the name of the people to whom it

was distributed have been mentioned. It was, therefore, contended that the

averments are vague, general and omnibus and hence the averments relating to

allegation of corrupt practice made in paragraph 24, 26 and 30 cannot be looked

into and are fit to be ignored. Reliance was placed by the learned counsel in

support of this submission, on the ratio of judgments delivered in the matter of

Ram Sukh Vs. Dinesh Aggarwal reported in 2009 (10) SCC 541, Anil Vasudev

Salgaonkar Vs. Naresh Kushali Shigaonkar reported in 2009 (9) SCC 310,

Ananga Uday Singh Deo Vs. Ranga Nath Mishra & Ors. reported in 2002(1) SCC

499 and Azhar Hussain Vs. Rajiv Gandhi reported in 1986 (Supp) SCC 315. It

was still further submitted that material facts as well as material particulars have

not been supplemented by the respondent election petitioner in spite of specific

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objection taken by the appellant in preliminary objections 1 and 2 and the

respondent having opportunity to supplement and amplify the material facts and

particulars not doing it could not have been allowed to adduce evidence beyond

the pleadings as the evidence which is led beyond the pleadings, is liable to be

ignored.

22.Objections have also been raised by the returned candidate-appellant

herein by placing reliance on Section 83 (1) (c) of the Act on the plea that this

provision requires that every petition shall be verified in the manner laid down in

the CPC and proviso thereof requires filing of an affidavit in the prescribed form in

support of the allegation of corrupt practice. Order VI Rule 15 (2) CPC requires

that the persons verifying shall specify, by reference to numbered paragraphs of

the pleading, what he verifies of his own knowledge and what he verifies upon

information and believed to be true. Rule 94A of the Conduct of Election Rules,

1961 provides that the affidavit in terms of proviso to Section 83 (1) shall be in

Form 25. Form 25 requires the Election petition to separately state which

allegations of the corrupt practice are true to his knowledge and which allegations

are true to his information. On these averment, it was submitted that the

respondent in the present case has stated in the verification of the Election

petition, that the contents of paragraph 17, 18, 20, 21, 24 and 30 are true to his

knowledge as well as information and contents of paragraph 19 and 26 are true

and correct being reproduction/reference to the provisions from the

Representation of People Act/Constitution of India/Registration of Electors Rules,

1960. It was, therefore, submitted that such a verification is no verification in the

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eye of law as the same facts cannot be both true to knowledge and also true to

information. It was further stated that paragraph 19 has not been verified at all as

the said paragraph does not contain any reproduction/reference of any provision

of law; whereas this paragraph contain specific averment regarding release of

pension by the appellant to ineligible persons.

23.In substance, it was contended that the issue of defective verification and

affidavit in the written statement in paragraph 4 and 5 are specific issues which

were framed by the High Court being issue No.3 and 4 as preliminary issues. Yet,

the High Court proceeded to record evidence without deciding the aforesaid

preliminary issues and recorded finding on merits. It was, therefore, submitted

that merely because the High Court has considered the case on merits, the same

is no ground to ignore defective pleading, verification and affidavit in the Election

petition so as to consider the evidence on merits. In support of this submission,

reliance was placed by learned counsel for the appellant on the ratio of the

decisions delivered in the matter of Ramakant Mayekar v. Celine D’Silva, 1996 (1)

SCC 399, Ananga Uday Singh Deo v. Ranga Nath Mishra, 2002 (1) SCC 499,

and M. Chinnasamy v. K.C. Palanisamy, 2004 (6) SCC 341.

24.Learned counsel finally submitted that in the present appeal, this Court is

exercising power under Section 116A of the Act, which is an appeal both on law

and fact as mentioned in the aforesaid section itself. Hence, the contention of the

respondent that this Court should be slow in interfering with the finding of fact

arrived at by the High Court is untenable. This Court, as the first appellate court,

is entitled to re-assess and re-appreciate the entire pleading and evidence on its

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own and come to an independent conclusion. In any event, the impugned

judgment of the High Court suffers from inherent legal infirmities and recorded

perverse findings and hence the judgment is liable to be set aside and the appeal

is fit to be allowed. Learned counsel therefore invited the attention of this Court to

the evidence of PWs 1, 2, 4, 5, 6 as also 9, 10, 11 and 12 relied upon heavily by

the Respondent and commented extensively on the value of the testimony of oral

evidence as well as documentary evidence.

25.Countering the submissions advanced on behalf of the appellant, learned

counsel for the respondent Ms. Kamini Jaiswal submitted that on a bare perusal

of the Election petition, it is apparent that the verification of the Election petition

was proper and the same was done on the proper format and in compliance of

the settled law on that issue. It specifically provided the paras which were based

on the knowledge and the paras which were based on the information gathered

from the various sources. The verification also provides the exact source of the

information which was mentioned in the appeal paper book. It was stated that the

election petition is in the appropriate format in form 25 as per the Rule 94 A of the

Conduct of Rule 1961. The format required the affidavit to state distinctly as to

which are the paragraphs of the Petition based on the knowledge and which are

the paragraphs based on the information and the same has been done in the

manner as required in the appeal paper book. It was, therefore, urged that the

Petition should be read in its entirety and not in isolation which disclosed that the

petitioner immediately before the dates of 25.01.2002 and 11.02.2002 was the

Cabinet Minister holding the charge of Social Security and Development

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Department and had exercised his influence over the officials to get amounts

released to the residents of his Constituency in the name of the pension for the

old aged, handicaps etc. The pension was not only released to the eligible

pensioners but the ineligible persons also who received money in the name of

pension. The Petitioner although had ceased to be a Minister and may not have

had the official authority to approve the grant of pension, he had enough clout as

he held the charge as a Minister for all these years and hence with a view to

allure the voters, he exercised his influence by recommending the applications of

the residents of his Constituency, during the period immediately before the

election which resulted in payment of money to as many as 27856 persons in the

Sherpur Constituency. PW-1 Smt. Paramjit Kaur- Child Development Officer,

Dhuri admitted that the petitioner during the period of January and February 2002,

had signed on the applications, approving them and this fact has not been

contested in cross-examination. Learned counsel asserted that PW-9, PW-10,

PW-11 had stated categorically that the public meetings were called and forms

were filled and the amount of Rs. 600 to 1200 were paid to various people in the

name of pension, during a public meeting. It was therefore submitted that the

grounds contended are not such that this Hon’ble Court in the exercise of its

appellate jurisdiction would set aside a well reasoned order of the High Court. The

said witnesses are truthful and would not come to make a false statement. The

witnesses are material and truthful which would be evident from the evidence of

PW-9, PW-10, PW-11 and the learned counsel also critically analysed the

evidence of these witnesses in support of the contention that these witnesses

who supported the plea of the respondent in regard to her allegation of corrupt

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practice, are reliable witnesses.

26. Learned counsel submitted that PW-9 Ram Singh who was a Tailor Master

deposed that in the gathering held on 13.2.2002 and 11.2.2002, Rs. 600 or Rs.

800 were paid and Shri Kanjla also gave Rs. 1200 to some of them. In his cross-

examination, he has further accepted that the amount of Rs. 1200 was given as

pension but he did not ask anyone in his family to accept Rs. 1200 for casting

votes. He has further also deposed that it is wrong to suggest that pension was

only for the old age pension but it was also for the handicapped persons like him.

This witness further has stated in his cross-examination that after the election was

held, he told Bibi Harchand Kaur that he would be prepared to appear as a

witness that the votes were cast in consideration of money. He accepted that he

was a frequent visitor to the House of Bibi Harchand Kaur whom he knew since

long. She also knew all his family members for the last 5/6 years. He further

accepted the fact that he alongwith Bibi Harchand Kaur had come in the car for

deposition and the whole expenses of travel as well as eatables had been born by

her. He also denied suggestion that being an associate with the party of Bibi

Harchand Karu and being related to her community, he was making a false

statement.

27.Learned counsel for the respondent further placed reliance on PW-10

Jaspal Singh son of Sarwan Singh who deposed that Shri Gobind Singh Kanjla

alongwith a group of people with him came for the purposes of filling up pension

forms. The pension forms were filled up on 12.2.2002, although he had been

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coming to his village earlier. The work of filing up the forms for pension was

executed opposite to State Bank of India, Sandhaur Branch at about 6.30 to 7.00

p.m. The Minister was calling the ladies and made the entries in the pension

books from Rs. 200/- to Rs. 600/-. This witness stated that payment used to be

made in cash and he claimed to identify this signatures of Shri Gobind Singh

Kanjla. The signatures of Exs. PW1/1 and PW1/3 in green ink were that of Shri

Gobind Singh Kanjla and signature on other documents also were of Shri Gobind

Singh Kanjla.

28.This witness stated that he was a Sarpanch and had been performing the

duties of attesting applications for fee concession and admission forms. He also

accepted that the old age pension forms were attested by the Sarpanch, he also

had been attesting the old age forms. This witness deposed that Shri Gobind

Singh Kanjla had directed him to attest certain forms and he denied that he was

attesting forms for money consideration. He deposed that Gobind Singh Kanjla

had been forcing him to attest those forms. Although, he was not a Minister but

still he was acting like a Minister. But he did not report this matter to any quarter

viz. the Police, D.G., S.D.M. or anywhere else with regard to forcible signature on

pension forms at the instance of Shri Gobind Singh Kanjla but he reported the

matter to Harchand Kaur-the election petitioner. The report could not be lodged

as he was physically beating the reporters. Nobody was coming forward to report

the matter against Shri Gobind Singh Kanjla. He also admitted that he did not

report the matter with regard to payment of certain amount of Rs. 200/- to Rs.

600/- to any quarter as it is a usual phenomena.

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29.Reliance was also placed by the Respondent on the evidence of PW-11,

Davinder Singh who deposed that Mr. Gobind Singh Kanjla the appellant/

returned candidate had visited his village before the election. Firstly, he came on

7.1.2002 and second time on 10.2.2002 to attend the Bhog of Akhand Path

Sahib. The Bhog Ceremony was kept by one Gurmail Singh, Zimindar. When he

came on 7.1.2002, he had opened the account of various persons and distributed

the copies concerning pensions like old age pension and handicap pension. On

10.2.2002, when he came for the second time, an announcement was made on

the loudspeaker inviting the villagers to come over and collect the pension and in

the form of pension Rs. 500 each was given to various persons. He denied having

given back this amount but he deposed that Shri Kanjhla was exhorting the voters

to cast their votes in his favour and the pension would be doubled from Rs. 500 to

Rs. 1500. He denied the suggestion that being a Congressman, he was deposing

falsely in support of the allegation that the amount of pension was distributed and

no passbooks were prepared.

30.The counsel for the Respondent submitted that all material facts and

material particulars were stated in the petition and what constitute material facts

and the material particulars depend on the facts of each case and no general

rules can be laid down.

Learned counsel placing reliance in this regard on the decision reported in

Mahadeorao Sukaji Shivankar v. Ramaratan Bapu & Ors., 2004 (7) SCC 181

21

submitted that if there are more than one allegations and the material facts are

sufficient with regards to one of such allegations, the petition is maintainable and

cannot be thrown out. Learned counsel also placed reliance on the case of

Subhash Desai Vs. Sharad J. Rao - AIR 1994 SC 2277 in support of his

submission. It was, therefore, contended that the findings arrived at by the High

Court are fit to be sustained and the appeal was fit to be dismissed.

31.In order to test the relative strength and weaknesses of the plea of the

contesting parties, while considering an election appeal which is directed against

a judgment and order by which the election of a returned candidate has been set

aside on the allegation of corrupt practice, it would be worthwhile to recollect at

this stage that although the High Court has the jurisdiction and competence to

declare the election of a returned candidate to be void on the allegation of corrupt

practice, it is well settled by now in view of the ratio laid down in a catena of

decisions of the Supreme Court that the mandate of the people in a democracy as

expressed by the result of the election must prevail and be respected by the

Courts and, therefore, heavy onus lies on the election petitioner seeking the

setting aside of the election of a successful candidate and therefore he has to

make out a clear case for such relief both in the pleading and at the trial. The

electoral process in a democracy undoubtedly is too sacrosanct to be permitted or

allowed to be polluted by corrupt practice and if the Court arrives at a finding of

commission of corrupt practice by a returned candidate or his election agent or by

any other person with the consent of a returned candidate or his election agent,

then the election of the returned candidate shall be declared to be void since the

22

underlying principle is that the corrupt practice having been committed, the result

of the election does not echo the direct voice of the people. But, at the same time,

it cannot be overlooked as was observed by the Supreme Court in the case of

R.P. Moidutty Vs. P.T. Kunju Mohammad & Anr. reported in 2000 (1) SCC 481

that the consequences flowing from the proof of corrupt practice at the election

are serious and hence the onus of establishing commission of corrupt practice

lies heavily on the person who alleges the same. The onus of proof is not

discharged merely on preponderance of probabilities but the standard of proof

required is akin to that of proving a criminal or a quasi criminal charge. Hence,

clear cut evidence, wholly credible and reliable is needed to prove beyond doubt

the charge of corrupt practice.

32.The aforesaid principle laid down by the Supreme Court in the aforesaid

authority has adequately been taken care of in the election petitions which are

filed alleging corrupt practice wherein utmost caution and care are applied while

dealing with the allegation of indulgence in corrupt practices at the instance of the

returned candidate, but in the process, misappreciation of evidence and hence

error of judgment in coming to a definite conclusion cannot be ruled out due to

which appeals are preferred against the judgment and order of the High Court

delivered in election petitions. The instant appeal also is one such appeal where

the election of the returned candidate has been set aside by the High Court vide

impugned judgment on the findings of corrupt practice which is under challenge

and hence we have carefully scrutinized the evidence led by the contesting

parties and critically considered the submissions of the counsel for the respective

23

parties in the light of the settled law laid down, before the election of a returned

candidate is allowed to be quashed and set aside.

33.The counsel for the appellant although has primarily challenged the

judgment and order of the High Court in order to assail the findings recorded on

the charge of corrupt practice, the counsel had also submitted that the respondent

had filed the Election petition without disclosing ‘material facts’ with ‘full

particulars’ which is envisaged under Section 83(1)(a)(b) of the Act which

mandates that the Election petition must contain material facts and it must also

contain full particulars. It was contended that this is the mandatory requirement of

law and no Election petition can be entertained without material facts with full

particulars in absence of which it is not fit to be entertained.

34.In our view, the submission of the counsel for the appellant to the effect

that the petition lacked material facts with material particulars, is clearly in the

nature of preliminary objection affecting maintainability of the Election petition and

hence we consider it appropriate to deal with this contention, before we proceed

further to examine the correctness of the pleas raised in regard to challenge to

the allegations of corrupt practice.

35.On the plea of lack of ‘material facts’ with ‘material particulars’, It was

submitted on behalf of the appellant that in paragraphs 24, 26 and 30 of the

Election petition, it has merely been stated that the appellant distributed money in

cash to the voters but no specific particulars about the date, time and place where

money was allegedly distributed, nor the name of the persons to whom it was

24

distributed have been mentioned. The counsel, therefore, had contended that the

averments of the election petitioner are vague, general and omnibus and thus

cannot be looked into and were fit to be ignored. Developing his arguments

further on this plea, it was submitted that material facts as well as material

particulars had not been supplemented by the respondent - election petitioner in

spite of specific objection taken by the appellant in his preliminary objections

bearing numbers 1 and 2. The respondent although had opportunity to

supplement and amplify the material facts and particulars, he failed to do the

same and hence the averments of the respondent-election petitioner should not

have been allowed to lead evidence beyond pleadings as the evidence which is

led beyond pleadings, is liable to be ignored. To reinforce this submission, the

counsel for the appellant relied upon several pronouncements of this Court which

include the matter of Ram Sukh v. Dinesh Aggarwal reported in 2009 (10) SCC

541, Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar reported in 2009 (9)

SCC 310, Ananga Uday Singh Deo v. Ranga Nath Mishra & Ors. reported in

2002(1) SCC 499 and Azhar Hussain v. Rajiv Gandhi reported in 1986 (Supp)

SCC 315.

36.The counsel for the respondent Ms. Jaiswal however countered the

aforesaid submission and submitted that the plea of the appellant regarding the

lack of ‘material particulars’ and ‘material facts’ is not sustainable and on this

count, it was submitted that the election petition should be read in its entirety and

not in isolation since the petition in question in fact categorically stated that the

appellant candidate immediately before the date of filing nomination on 25.1.2002

25

and prior to resigning from the portfolio of Minister holding the charge of Social

Security Department had exercised his influence over the officials to get amounts

released in his constituency in the name of pension for the old age widow and

handicapped people and the averments to that effect have specifically been

pointed out in para 17 of the Election petition. In the alternative, the counsel for

the respondent submitted that even if the Election petition lacked extensive

details regarding ‘material particulars’, the same was not enough to reject a

petition and in support of this submission, the counsel for the respondent on her

part also relied upon several authorities of the Supreme Court which are

Ram Sharan Yadav v. Thakur Muneshwar Nath Singh, 1984 (4) SCC at

page 649, Mohan Rawale v. Damodar Tatyaba @ Dadasaheb, 1994 (2) SCC at

page 393, Mahadeorao Sukaji Shivankar v. Ramaratan Bapu & Ors., 2004 (7)

SCC at page 181, Regu Mahesh v. Rajendra Pratap Bhanj Dev, AIR 2004 SC at

page 42 and 43 and Ram Sukh v. Dinesh Aggarwal, 2009 (10) SCC at page 548

and 549.

37.Dealing with this preliminary question as to whether the election petition

filed by the respondent was fit to be dismissed on the ground of the lack of

‘material facts’ with ‘material particulars’, we are fully conscious of the well-settled

legal position to the effect that if the election petition fails to disclose any cause of

action and there is non-compliance of the mandatory requirements of Section 83

of the Representation of People Act 1951 which requires that the election petition

should contain material facts on which the petitioner relies, it should set forth full

particulars of any corrupt practice including full statement of the names of the

26

parties which is alleged to have been committed alongwith the specific date and

place of the commission of such corrupt practice. But it would also be equally

appropriate to bear in mind that although the expression ‘material facts’ has

neither been defined in the Act of 1951 nor in the Code of Civil Procedure, it has

been understood by the courts in general terms to mean the entire bundle of facts

which would constitute a complete cause of action. Their Lordships of the

Supreme Court in 2009 (10) SCC at page 548 have observed thus:

“‘material facts’ are facts upon which the plaintiff’s

cause of action or the defendant’s defence depends.

Broadly speaking, all primary or basic facts which are

necessary either to prove the cause of action by the

plaintiff or defence by the defendant are ‘material

facts’. Material facts are facts which, if established,

would give the petitioner the relief prayed for. But

again what could be said to be material facts would

depend upon the facts of each case and no rule of

universal application can be laid down”.

This authority has also taken note of the ratio of the decision in the case of

Samant N. Balkrishna v. George Fernandez wherein the three Judge Bench

headed by the then Chief Justice M. Hidayatullah laid down five criteria which are

mandatory under Section 83 of the Act for determination as to whether the

Election petition discloses that it does not lack in material facts and particulars. It

was laid down therein that it is mandatory to first of all record a concise statement

of material facts and then the fullest possible particular. Any omission of even a

single material fact leads to an incomplete cause of action and statement of claim

would be treated as bad. The function of particulars is to present in full, a picture

27

of the cause of action and to make the opposite party understand the case he will

have to meet. The learned Judges further held therein that the ‘material facts’ and

‘material particulars’ are distinct matters and while the material facts will mention

statements of fact, the particulars will set out the names of persons with date, time

and place while stating the material facts as it will not be sufficient merely to quote

the words of the section since the efficacy of the material facts in that event would

be lost.

38.While dealing with the question of material facts and material particulars,

we also considered it appropriate to take into account the ratio of the decision

delivered in the case of Mahadeorao Sukaji Shivankar Vs. Ramaratan Bapu and

Ors. reported in 2004 (7) SCC 181 wherein the three Judge Bench of this Court

had been pleased to consider the question as to what would constitute material

facts and material particulars and also discussed its concept and the distinction

between the two. In this authority too, it was emphasized and held that what

particulars would amount to ‘material facts’ would depend upon the facts of each

case and no rule of universal application can be laid down. It was also held that

material particulars, on the other hand, are details in support of material facts and

the expression material facts although have not been defined in the Act nor in

CPC, it will have to be inferred that material facts are those facts upon which the

party relies for his claim or defence. In other words, material facts are facts upon

which the plaintiff’s cause of action or the defendant’s defence depend. But what

particulars ultimately will be said to be ‘material facts’ would depend upon the

facts of each case and no rule of universal application can be laid down.

28

Particulars, on the other hand, are details in support of material facts pleaded by

the party. This amplify, refine and embellish material facts by giving finishing

touch to the basic contours of a picture already drawn so as to make it full, more

clear and more informative. Thus, material particulars ensure conduct of fair trial

which would not take the opposite party by surprise.

39. The ratio that can be deduced from the aforesaid three authorities of the

Supreme Court has further been reiterated in the case of Samant N. Balkrishna v.

George Fernandez and latter on in Mahadeorao Sukaji Shivankar v. Ramaratan

Bapu & Ors., 2004 (7) SCC 181 as also in Ram Sukh (supra) wherein it has been

once again held that although, it is the legal requirement under Section 83 of the

Act of 1951 to clearly set out material facts and material particulars in the election

petition, ultimately it has been unequivocally held that there can be no rule of

universal application which can be laid down as to what would constitute ‘material

facts’ and ‘material particulars’ and ultimately it is the facts of each case which will

be relevant for determination as to whether the election petition was fit to be

rejected on the plea of lack of material facts and material particulars or it was fit to

be entertained if the same disclosed a cause of action for consideration by the

Court.

40.We have, therefore, carefully considered the correctness of the assertion of

the counsel for the appellant whether the election petition in the case at hand was

fit to be rejected for want of material facts and material particulars and we have

noticed that the respondent has categorically stated the date, time and place of

29

occurrence of the alleged corrupt practice at the instance of the appellant and has

also given out the names of the witnesses who were to support the election

petition filed by the respondent. But what exactly would be the worth of the

evidence of witnesses relied upon by the counsel was a matter to be considered

at the appropriate stage during trial, but to contend that the election petition

lacked in material facts and material particulars due to which the election petition

filed by the respondent was fit to be rejected on the ground of lack of material

facts and material particulars, would not be legally correct and justified. In fact,

we have noticed that the High Court in the impugned judgment and order has not

even addressed this issue as to whether the petition was fit to be rejected on this

ground or not, but the counsel for the appellant seems to have acquiesced with

the same. However, since the counsel for the parties have addressed this Court

on this issue which is clearly in the nature of a preliminary objection, we

considered it just & appropriate to deal with this issue but for the reasons stated

hereinbefore, we do not accept the contention of the counsel for the appellant that

the Election petition was fit to be rejected for lack of material facts and material

particulars.

41.The next question on which the entire edifice of the election petition rests,

which has been the core issue on which the counsel for the parties have

addressed this Court, is the question as to whether the appellant -returned

candidate had indulged in corrupt practice or not while contesting in the

Assembly Election of Sherpur Constituency. As already stated hereinbefore,

learned counsel had, first of all, submitted that the corrupt practice of bribery

30

defined in Section 123 (1) will be attracted only if it had been committed by the

candidate after filing his nomination paper. It was submitted that the appellant

had resigned as Social Security Minister on January, 12 2002 and filed his

nomination subsequently on 23

rd

January, 2002. Hence, there could be no

question of misuse of power by him after he resigned from the post of Social

Security Minister as also the party and subsequently became a candidate for the

election. Consequently, the allegation of corrupt practice of bribery is not made

out as the alleged action relates to the period when he was no longer holding the

charge of Social Security Minister. The counsel further elaborated on this aspect

and submitted that the period of misuse of power alleged by the respondent

herein pertain to the period between January 23, 2002 to 9

th

, 10

th

and 11

th

February, 2002 during which the petitioner was admittedly not a Minister. Hence,

the Petition has a fatal contradiction between the allegation and the time period to

which the allegation pertained as the petitioner had admittedly resigned as a

Minister on January 12, 2002. The counsel, therefore, submitted that the alleged

corrupt practice pertains to the period when the appellant herein was the Minister

which position he relinquished before becoming a candidate in the election and

hence, there could be no question of distribution of pension by him during the

election when he ceased to be a Minister. It was submitted that in the present

case none of the witnesses can be relied upon to come to a conclusion that the

appellant had committed corrupt practice as PW-9, Ram Singh was summoned to

prove that the appellant had delivered speeches at village Ladda promoting

feeling of enmity on the ground of religion, caste and community and further to

influence people not to vote for the party belonging to which the respondent

31

belonged. It was submitted that this witness did not depose for the purpose for

which he was called to give evidence which was the issue of illegal distribution of

pension by the appellant to his voters.

42.The counsel for the respondent, on the other hand, relied upon the

evidence of PWs - 9, 10 and 11 referred to hereinbefore and submitted that these

witnesses have stated categorically that the public meetings were called and

forms were filled and the amount of Rs. 600 to Rs. 1200 were paid to various

people in the name of pension during a public meeting. The counsel for the

respondent, therefore, urged that these three witnesses ought to be relied upon in

support of the plea that the appellant had misused his official position and got the

pension distributed which was clearly with a motive to influence the voters in his

favour. The counsel has taken us to the evidence of PW-9, Ram Singh and

cross-examination of PW-10, Jaspal Singh who was a Sarpanch of village

Ibrahimpur from 1992 to 2003 and had failed in the Assembly Election of 2002

which was held on 13.2.2002, as also in his cross-examination. The counsel

further has taken us through the evidence of PW-11, Davinder Singh who was a

voter in village Gathala which falls in Sherpur Constituency.

43.On a careful analysis of the case and counter case of the returned

candidate that is the appellant herein and the defeated candidate - respondent

herein, it is patently clear that the allegation of corrupt practice in regard to

distribution of pension can be divided into two parts – the first part relates to the

distribution of pension which pertains to the period prior to 12.1.2002 and the

32

second part pertains to three dates which is 10/11/12.2.2002 when the appellant

was a candidate for the election but was no longer a Minister so as to distribute

old age widow/handicapped persons. In factual aspects of the matter this clearly

indicate that even if the plea of the respondent - election petitioner with regard to

the allegation of distribution of pension amounting to corrupt practice which

pertained prior to the period of January 12, 2002 is taken into consideration, the

same cannot by any legal yardstick or even ordinary prudence would constitute

indulgence in corrupt practice by the appellant as he was duly holding the

portfolio of Social Security as Minister who had the legal authority to approve

distribution of pension as part of his official duty. It is not difficult to infer that the

distribution of pension to the eligible persons in the constituency or even outside

the constituency was part of the discharge of official duty as Minister and it is

nobody’s case that this distribution did not lie within the legal domain of the

Minister who could order distribution of pension to the eligible persons in the area

who were either old, handicapped or widow. Therefore, distribution of pension to

old age/widow/handicapped persons which was ordered or approved ensuring its

distribution could not possibly be inferred as an action which could amount to

indulgence in corrupt practice. We, therefore, find sufficient reason and force in

the plea of the counsel for the appellant to the effect that the corrupt practice of

bribery as defined in Section 123(1) would be attracted only if such act had been

committed by a candidate after filing of his nomination paper and the ratio of the

judgment relied upon by the counsel for the appellant in the case clearly adds

weight to his submission.

33

44.We, thus, do not agree with the High Court that although the appellant had

resigned as Social Security Minister on January 12, 2002, the same would not

have any bearing on his defence that he had not indulged in corrupt practice, at

least in so far as distribution of pension from to 12

th

January, 2002 is concerned

and the same would clearly be in favour of the appellant as any distribution of

pension that was made prior to the filing his nomination on 23

rd

January, 2002

whether in the capacity as a Minister or otherwise, would clearly not amount to

indulgence in corrupt practice. In the decision relied upon by the counsel for the

appellant delivered in the case of Mohan Rawale v. Damodar Tatyaba @

Dadasaheb – 1994 (2) SCC 392 also, it was held that the expression ‘candidate’

in Section 79(b) of the Act completely excludes the acts by a candidate up to the

date he is nominated as a candidate. Therefore, the allegations relating to the

period anterior to the commencement of the candidature cannot be relied upon to

establish corrupt practice proprio vigore.

45.Reliance was also placed by the counsel in the matter reported in Kona

Prabhakara Rao v. M. Seshagiri Rao -1982 (1) SCC 442 wherein it was

contended that any act attributed to the appellant in his capacity as a Minister,

even if assumed to be correct although the same are disputed, would not come

within the ambit of corrupt practice as sanction, approval or grant of pension by a

Minister during his tenure as a Minister cannot amount to bribery under clause (1)

of Section 123 of the Act as it is not a gift, offer or promise of any gratification

which is a sine qua non for attracting the said provision. Sanction and approval for

grant of pension as a Social Security Minister clearly would be within the ambit of

34

the authority of the Minister to get it distributed as not distributing pension while

discharging the functions of a Minister would on the contrary amount to non-

performance on the part of the Minister in the State which could also include his

constituency and to hold that even though the Minister had the authority to

sanction and approve old age/widow/handicapped pension the same was done in

order to lure the persons of his constituency so as to vote for him in any future

election which he might contest and the same would amount to offer or promise of

any gratification, would be wholly unrealistic and a far fetched allegation. In fact

it has not even been contended and rightly so, that the appellant herein who was

then a Minister, had no authority to sanction and approve the distribution of

pension although he was a Minister. What has been contended, is that the same

had been done with an oblique motive to influence the voters of his constituency

so that they would vote for him in the ensuing election. This allegation would be

difficult to accept and hold it as proved as the candidature of the appellant had not

even been announced in the year 2001 although it could be perceived as a mere

possibility that he might contest in future election. In any case, it was difficult to

anticipate from which constituency he would be contesting and whether he would

be contesting under the banner of any party or would be contesting as an

independent candidate. Hence, it is not difficult to hold that the allegation of

corrupt practice on the ground that he had distributed pension in his constituency

although he was holding the portfolio of a Social Security Minister upto 12

th

January, 2002 is illogical, bereft of reasoning and hence illegal.

35

46.As already recorded hereinbefore, this Court in a series of decisions out of

which two have been referred to hereinbefore, have taken the view that any act

performed by a candidate prior to his becoming a candidate would not amount to

indulgence in corrupt practice. However, we do not wish to be understood so as

to endorse that even if any illegal act has been done by a candidate prior to his

filing of nomination which is not within the legal discharge of duty, would not

amount to corrupt practice so as to protect himself from the charge of corrupt

practice. But where the appellant in discharge of his official duty distributed,

sanctioned, approved or permitted the grant of old age/widow/handicapped

pension prior to the filing of his nomination which was 23

rd

January, 2002 in the

case at hand, it cannot be construed as indulgence in corrupt practice and hence,

we find sufficient force in the contention of the counsel for the appellant on this

count to the effect that he cannot be held to have committed corrupt practice if he

had distributed pension amount even in his constituency upto 12

th

January, 2002

which was clearly within his legal and official domain as he was not a candidate in

the election.

47.However, the respondent - election petitioner has also alleged that even

after filing his nomination on 23

rd

January, 2002 and immediately before the date

of polling on 13.2.2002, the appellant had gone to his constituency and in brazen

defiance of the Code of Conduct of Election, distributed pension through his agent

on 10/11/12.2.2002 and this part of the allegation which may be treated as

second part of the allegation obviously would have a serious bearing on the

allegation of corrupt practice against the appellant in case it is held to be proved,

36

since the distribution of money under the garb of pension immediately prior to the

date of polling, will have to be treated clearly and unambiguously as corrupt

practice within the meaning of Section 123 of the Act of 1951.

But we have to bear in mind that this serious allegation will have to pass

through the litmus test in the light of the evidence of the witnesses led by the

respondent in support of his allegation so as to arrive at a conclusive finding

whether the witnesses are fit to be relied upon in order to uphold the allegation of

corrupt practice.

48.At this stage, it would be worthwhile to recollect the well-settled legal

position that a charge of corrupt practice is in the nature of a quasi-criminal

charge, as its consequence is not only to render the election of the returned

candidate void but in some cases (as in the instant one) might incur

disqualification from contesting even the next election. The evidence led in

support of the corrupt practice must therefore, not only be cogent and definite but

if the Election petition has to succeed, it must establish definitely and to the

satisfaction of the court, the charge of corrupt practice which the defeated

candidate levelled against the returned candidate. The onus lies heavily on the

election petitioner to establish the charge of corrupt practice and in case of doubt

the benefit goes to the returned candidate. It is well acknowledged that in the

case of an election petition, based on allegations of commission of corrupt

practice, the standard proof generally speaking is that of a criminal trial, which

requires strict proof of the charge beyond reasonable doubt and the burden of

37

proof is on the candidate who alleges corrupt practice and that burden does not

shift. This was the view expressed by their Lordships in the case of Gajanan

Krishnaji Bapat v. Dattaji Raghobaji Meghe reported in 1995 (5) SCC 360 wherein

their Lordships had placed reliance also on the case of Nihal Singh v. Rao

Birendra Singh & Anr. – 1970 (3) SCC 239, Om Prabha Jain v. Charan Das -

1975 (4) SCC 849, Daulat Ram Chauhan v. Anand Sharma – 1984 (2) SCC 64

and Quamarul Islam v. S.K. Kanta -1994 Supp (3) SCC 5 wherein the same view

had been taken. However, the Courts have been cautioned to hold that even

though the burden is on the petitioner to prove the charge of corrupt practice, it

should not be understood to mean or imply that the returned candidate is

absolved from his liability to bringforth the evidence on the record to revert the

case of the petitioner and particularly prove such facts which are within the

special knowledge of the elected candidate.

49.It was further held in the case of Surinder Singh v. Hardial Singh- 1985 (1)

SCC pg. 91 & 97 : AIR 1985 SC 89 that the charges of corrupt practice are to be

equated with criminal charges and proof thereof would not be preponderance of

probabilities, as in civil action, but proof beyond reasonable doubt and if after

balancing the evidence adduced, there still remains little doubt in proving the

charge, its benefit must go to the returned candidate. Various tests have been laid

down by the High Courts and by the Supreme Court to determine the burden of

proof required to establish a corrupt practice. The most well accepted test

however is that the charge must be established fully to the satisfaction of the

Court. But while insisting upon the standard of strict proof beyond a reasonable

38

doubt, the courts are not required to extend or stretch the doctrine to such an

extreme extent as to make it well nigh impossible to prove any allegation of

corrupt practice as was observed in the case of S. Harcharan Singh v. S. Sajjan

Singh – 1985 (1) SCC 370 : AIR 1985 SC 236 wherein it was held that such

approach would defeat and frustrate the very laudable and sacrosanct object of

the Act for maintaining purity of the electoral process.

50. Bearing the aforesaid principle and the aforesaid legal proposition of law

in mind, we have examined the evidence led by the election petitioner/the

respondent herein as to whether the allegation of distribution of pension on

10/11/12.2.2002 which was immediately prior to the date of polling has been held

to be proved or not. As already noted, the respondent in this context has relied

upon PW-9, PW-10 and PW-11 which has been extensively related hereinbefore.

51. However, when we scrutinized the evidence of PW-9, we have noticed that

PW-9 has not stated as to what are the entries that are made and who are the

persons for whom the entries have been made. This witness in his cross-

examination has merely stated that he disclosed to the respondent about

payment of Rs. 1200 after about a month of the incident and he was paid amount

to Rs.1200 but there is no evidence on record that PW-9 is a pension holder or is

entitled to grant of pension. No document has been produced to show that he is

entitled to pension as per Government policy or any pension was ever sanctioned

to him. Thus, there is no corroboration to the evidence of PW-9 to allege payment

of Rs. 1200. PW-9 has also stated in his cross- examination that he came to the

39

High Court to give evidence with the respondent in her car and the whole

expenses of travel as well as eatables were borne by her. It, therefore, cannot

be ruled out that PW-9 is a highly interested witness belonging to the village of

election petitioner who had been brought before the Court in the car of the

election petitioner.

52.The evidence by PW-10 Jaspal Singh is also not free from blemish. When

the first list of witness filed by the respondent Jaspal Singh was summoned to

prove that the appellant distributed cash at various places for getting votes, the

name of Jaspal Singh had been deleted in the revised list of witnesses and in any

event, there were no details as to the date and place of alleged distribution of

cash regarding which this witness was to depose. On perusal of the deposition

of this witness, it is evident that he has not stated the name of any person to

whom cash was allegedly paid as was claimed by him. No pension book entry

made by the appellant had been produced on record and the pension book which

was produced on record bearing Exhibit PW-4/1, PW-4/84 does not have any

entry made by the appellant. This witness has also not stated that the appellant

has made any entry in the aforesaid book produced on record and no other

pension book except aforesaid are on record. The witness also appears to be

highly interested as he admitted that he belongs to the party to which the

respondent belongs.

53.PW-11 had stated in his evidence that the appellant came to his village on

7.1.2002 and opened accounts of various persons and distributed copies of

40

passbook concerning pensions. It was submitted that opening of accounts and

or distribution of paper is not a corrupt practice even if such evidence is believed

it pertains to the period when the appellant was functioning as Minister and hence

was legally authorized to approve of the sanction. PW-11 has further deposed

that on 10.2.2002 appellant came to his village for the second time and invited the

villagers to come over and collect the pension in the form of Rs. 500 each. But

the names of persons by whom the alleged amount of Rs. 500 was given have

not been mentioned. This witness has not stated that any amount was given to

him. It was, therefore, submitted that no reliance ought to have been placed on

this vague statement by this witness that cash was given to person in the

absence of identity of those persons. This witness also appears to be highly

interested witness as he has admitted that his wife was given ticket for Panchayat

Samiti election by the party to which the respondent belongs. It was, therefore,

submitted by the counsel for the appellant that reliance ought not to have been

placed on the evidence of PW-9, PW-10 and PW-11 for recording of finding of

corrupt practice of testimony of these witnesses. It was also pointed out that PW-

12 the respondent herself has not given any evidence and her evidence is only

hearsay. Therefore, her evidence is of no worth or value so as to prove the

charge of corrupt practice.

54.In so far as the documentary evidence relied upon by the High Court is

concerned, it was submitted that Exhibit PW 1/1 to PW 1/45 are the applications

for grant of pensions. It was stated that these applications pertain to the period of

28.2.2001 to 4.12.2001 when the appellant was a Minister and the appellant

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became a candidate for the election on 23.1.2002 when he filed his nomination

paper and thus any action taken by him prior to this date cannot amount to

corrupt practice within the meaning of Section 123 of the Act. Furthermore, these

applications also bear the endorsements of (a) Village Sarpanch (b) Halka

Lambardar, (c) village Patwar, (d) Block Development Project Officer, (e) Clerk in

the office of the Sub Divisional Magistrate, and (f) Sub Divisional Magistrate, who

are the sanctioning authorities. It was, therefore, submitted that these exhibits

ought not to have been relied upon to conclude that the appellant had committed

corrupt practice.

55.From the aforesaid critical analysis made by the counsel for the contesting

parties on the evidentiary value of the witnesses for proving and disproving the

alleged charge of corrupt practice, it is evident that in so far as the alleged

distribution of cash on 10/11/12.2.2002 is concerned, the oral evidence of PW-9,

PW-10 and PW-11 alone are on record but the documentary evidence which has

been placed by the respondent has absolutely no connection and link in regard to

distribution of pension on 10/11/12.2.2002 and it is not difficult to notice the

reason for non-production of these documents as admittedly, the appellant had

ceased to be a Minister on that date. Hence, if any endorsement of the

distribution of pension even if it were made for 10/11/12.2.2002, the same cannot

be attributed to the appellant in order to prove the charge of corrupt practice

alleging distribution of cash to the voters. Thus, the allegation of the distribution of

cash on 10/11/12.2.2002 rests only on the oral testimony of PW-9, PW-10 and

PW-11 as even the defeated candidate Smt. Harchand Kaur PW-12 has not been

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able to state anything which would prove the charge of distribution of cash on

these three dates prior to the date of election.

56.But having analyzed the oral evidence relied upon by the High Court, we

have noticed that the High Court has placed heavy reliance on the evidence of

PWs-9, 10 and 11 but has failed to take into account the evidence of PW-1-Smt.

Paramjit Kaur, Child Development Project Officer, Dhuri, PW-2-Shri Devinder

Kumar, Superintendent Social Security in the office of District Programme Office,

Sangrur, PW-4 - N.K. Kapur , Assistant Manager, State Bank of Patiala, Ghanauri

Kalan, PW-5 - Shri Satish Kapur son of Shri Sohan Lal Kapu, District Social

Security Officer, Sangrur and PW-6 -Jagmail Singh, C.D.P.O. Block Malrerkotla-II

and PW-7 - Pritpal Singh, C.P.D.O. Block Sherpur. These witnesses have

deposed which unambiguously are in the nature of rebuttal of the evidence of

PW-9, PW-10 and PW-11 who have been relied upon by the High Court yet the

evidence of PW-1, PW-2, PW-4 and PW-6 have been brushed aside although

they were competent authorities for distribution of pension and hence

independent witnesses who were more trustworthy in comparison to the four

witnesses i.e. PW-9, PW-10 and PW-11 who are clearly interested witnesses as

they themselves have admitted their link to the Respondent Smt. Kaur.

57.On scrutiny of the evidence of PW-1 Smt. Paramjit Kaur who was the Child

Development Project Officer, Dhuri and had produced the record of old age

pension of voters of Sherpur Constituency in respect of 12 villages indicate that it

pertained to January/February, 2002 and had been exhibited as PW-1/1 to PW-

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1/4. This witness has deposed that old age pension is given to the males of 65

years and females of 60 years. The application in this regard had to be submitted

to the Child Development Project Officer for grant of pension which was to be

forwarded to the Sub-Divisional Magistrate who was the sanctioning authority.

The pension letters were issued after the sanction was accorded by the Sub-

Divisional Magistrate. The attention of this witness was drawn to the words

(Parwan) written in the Punjabi script which in English means approved and

underneath the words ‘Parwan’, the signatures were alleged to be of the appellant

herein Govind Singh. This signature was alleged to have appeared in all the

applications Exhibits PW-1/1 to PW-1/45 but this PW1-Child Development Project

Officer deposed that a Minister is not directly involved in sanctioning the old age

pension and if an applicant is not eligible and does not fulfill the requirement of

getting pension, then even on the asking of the Minister such a person cannot be

granted pension. She has further admitted familiarity with the returned candidate

as she had been meeting the appellant as a Minister in the official meetings.

Thus, this witness can clearly be treated as an independent witness who has not

supported the case of the respondent in regard to distribution of pension at the

hands of the appellant.

58.Similarly PW-2 Shri Devinder Kumar, Superintendent Social Security in

the office of District Programme Office, Sangrur has conceded in the cross-

examination that approval letters were in respect of the whole District of Sangrur

and not of Sherpur Constituency alone and the orders did not have the signatures

of the returned candidate.

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59.PW-4 Shri N.K. Kapur, Assistant Manager, State Bank of Patiala, who was

posted at Ghanauri Kalan Branch of the Bank had produced on record the original

ledger and photocopies of samples from the original ledger in respect of 84

persons belonging to village Ghanauri Kalan and Ghanauri Khurd. These

documents were exhibited as Exs. PW-4/1 to PW-4/84. This witness stated that

no other amount could be credited in these accounts except the pension received

by the person concerned from the Social Security Department. In his cross-

examination, this witness stated that those accounts were opened on 7.9.2001,

6.8.2001 and on some other dates. But this witness has further deposed that he

was not in a position to state whether any deposit had been made in these

accounts in the year 2002 and in one of the accounts no transaction has been

recorded showing any credit. In another account opened on 25.2.2002 he denied

the opening of account by him or the procedure for releasing the pension or

personal knowledge about the identity of any of the 84 persons.

60.PW-5 Shri Satish Kapur son of Shri Sohan Lal Kapur, District Social

Security Officer, Sangrur stated that pension was released from November 2001

to March 2002 and the payments have been made from August, 2001 to

February, 2002. He had produced copies of compilation made from originals as

well as the original themselves. He showed his inability to explain as to who had

sanctioned the pension by stating that he was not posted at Sangrur. The

compilation placed on record had been duly certified by the District Social Welfare

Officer, Sangrur.

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61.PW-6 Jagmail Singh, C.D.P.O. Block Malrekotla-II, had produced 92

applications in respect of pension out of which 86 belong to old age pension, 5 of

handicapped and only 1 belonged to widow category. These applications were

submitted before July, 2001 which was admitted by this witness himself. Similar

is the position with regard to the pension record pertaining to the year 2001 which

had been produced by PW-7 Pritpal Singh, C.P.D.O. Block Sherpur.

62.All the aforesaid witnesses namely PWs 1, 4, 5, 6 and 7 therefore who can

clearly be treated as non-partisan witnesses and were competent to depose as to

how the pension applications were sanctioned have not supported the case of the

respondent that any illegality had been committed by the appellant while

distributing pension which started from the year 2001 and continued up to March

2002. In spite of this, the High Court has not given any weightage to the

depositions of these witnesses but has chosen to rely only on the evidence of

PW-9 Ram Singh, PW-10 Jaspal Singh, PW-11 Devinder Singh and PW-12

Harchand Kaur who can clearly be treated as interested witnesses. The

depositions of these witnesses clearly stand contradicted by the evidence of PW-

1-Child Development Project Officer, Dhuri who had deposed and stated the

procedure and the manner in which the application for grant of pension had to be

approved. As indicated hereinabove, she has stated that the application had to be

submitted to the Child Development Project Officer for grant of pension and the

same was forwarded to the Sub-Divisional Magistrate who is the sanctioning

authority and after sanction was accorded by the Sub-Divisional Magistrate, the

46

pensions are issued. It is difficult to appreciate as to how the statement of this

witness can be treated less trustworthy than PW-10 Jaspal Singh who was the

Sarpanch and claims to have identified the signature of the appellant herein when

the competent authority PW-1- Child Development Project Officer could not

recognize the signature of the appellant. PW-1-Child Development Project Officer,

Dhuri in comparison to PW-10 was more competent who is a sarpanch and

cannot be treated to be the competent authority to sanction the application for

grant of pension who could be relied by the High Court when the competent

authority Child Development Project Officer has not supported the evidence of

PW-10. The sarpanch PW-10 Jaspal Singh as per his own version was a

supporter of the party to which the respondent belong and hence the credibility of

this witness cannot be more weighty than the credibility of PW-1 –Child

Development Project Officer who was competent to approve the application after

which it was forwarded to the Sub-Divisional Magistrate for grant of pension. The

value of the evidence of PW-10 definitely, therefore, cannot be treated to be more

weighty and worthy of credence than the evidence of PW-1.

63.PW-11 Devinder Singh although has supported the case of defeated

candidate Smt. Kaur in regard to grant of old age and handicapped pension but

he also has conceded that the election petitioner i.e. the defeated candidate Smt.

Kaur / respondent herein had helped his wife during the election and she secured

ticket for his wife. Thus this witness has also clearly admitted personal allegiance

to the respondent herein and hence his evidence cannot be treated to be more

trustworthy than the evidence of the officers who were PW-1, PW-2, PW-4, PW-5

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and PW-6 who have not supported the case of the respondent and Smt. Kaur

herself has not been able to depose anything which could improve her case in

any manner. Thus, while comparing the evidence of PW-9, PW-10, PW-11 and

PW-12 relied upon by the respondent Smt. Kaur with the evidence of PW-1, PW-

2, PW-4, PW-5 and PW-6, it is not possible to attach more weight to the

witnesses relied upon by the respondent herein as we cannot overlook the well-

settled position that the behaviour, character and demeanor of the witnesses who

had been examined at the stage of trial has to be taken into account and is of

prime consideration. In view of this position, the evidence of PW-1, PW-2, PW-4,

PW-5 and PW-6 is clearly more reliable than PW-9, PW-10 and PW-11.

64.In so far as the allegation of appointment of some ladies as Anganwadi

workers is concerned, PW-1-Child Development Project Officer, Dhuri who is Smt.

Paramjit Kaur had deposed that applications of various candidates who sought

appointment as Anganwadi workers which has been exhibited as Exs. 1/46 to

PW-1/70 were given appointments till 2002 and in her cross-examination she

further stated that she was not posted at Dhuri which covered the Constituency in

question when these appointments were made. She further deposed that a

Selection Committee on the basis of the instruction issued in the year 1988 was

constituted. The Child Development Project Officer as well as the Senior Medical

Officer used to be the members. The Anganwadi workers were required to be

selected from the village or at the most from the adjoining village. No MLA or

Minister was the member of the Selection Committee. She has given details of

marks which had been allocated in the interview. The witness was confronted with

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the instructions dated 31.5.2000 to show the allocation of marks for various

qualifications and the document was taken on record as Exs. PW-1/71, she has

candidly and unequivocally accepted that all applicants were appointed before

11.11.2001 and no one was appointed thereafter and it may be reiterated herein

that even if the Anganwadi workers were appointed in the year 2001, the same

cannot clearly be held to be illegal as the appellant was admittedly a Social

Security Minister at the relevant time and therefore any appointment made during

this period cannot be alleged to be indulgence in corrupt practice in order to

impress the voters as these appointments were made in the year 2001 much

before the appellant became the candidate in the election. We, therefore, find

substance in the plea that the exhibits relied upon by the appellant alleging illegal

appointment of the Anganwadi workers do not strengthen the case of the

respondent in any manner. As already stated hereinbefore, we fail to comprehend

as to how the appellant could be held to be instrumental in appointing the

applicants as Anganwadi workers when he had ceased to be a Minister and had

already declared his candidature as an independent candidate as he had no legal

authority to appoint Anganwadi worker after he had resigned from the post of

Minister on 12.1.2002 and had filed his nomination on 23.1.2002. The counsel for

the respondent also has not laid much emphasis on this plea and the arguments

that have been advanced by the counsel for the parties are primarily on the

allegation of corrupt practice regarding distribution of cash as pension amount

while he was a Minister and even after he had been declared as a candidate.

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65.Thus, we have noticed serious infirmities, inconsistencies in the evidence

of the three witnesses i.e. PW-9, PW-10 and PW-11 relied upon by the High Court

in support of the case of the respondent herein who could not be treated as

independent and trustworthy witnesses as against PW-1, PW-2, PW-4, PW-5 and

PW-6 discussed hereinbefore who were the competent authorities/officials to

sanction pension applications as also in regard to grant of appointment to

Anganwadi workers in the year 2001 when the appellant was a Social Security

Minister and not a candidate in the election so as to brush aside their evidence

and prefer to rely upon the evidence of PW-9, PW-10 and PW-11 which were

extremely shaky, subjective and fragile. Besides this, the High Court has clearly

mixed up the alleged charge of corrupt practice which pertains to the period prior

to the filing of nomination of the appellant which was on 25.1.2002 and had been

pleased to set aside the election of the appellant not after a careful and

meticulous scrutiny of the evidence but on an overall view that the appellant had

indulged in corrupt practice on the evidence primarily of three witnesses only

whose testimony were neither independent nor free from inconsistencies and at

the most were general in nature.

66.Thus, on a threadbare scrutiny of the evidence which we have carefully

analyzed, it is not difficult to notice that the election of the appellant could not

have been set aside only on the testimony of PW-9, PW-10, PW-11 who had

failed to stand the test of scrutiny to the extent that even though the appellant was

alleged to have indulged in corrupt practice, the same for the reasons assigned

hereinbefore do not lead to the irresistible conclusion that the appellant had

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indulged in corrupt practice merely on account of the fact that he had distributed

old age pension or handicapped and widow pension to the voters of his

constituency although he was the Minister holding the portfolio of Social Security

Minister within whose domain lay the approval and distribution of pension which

was in clear discharge of official duty. The alleged case that this was done even

after he ceased to be a Minister and after he had filed his nomination for

contesting election, could not be proved with unimpeachable evidence since there

was no reason for the appellant to ensure compliance of formality of filling

pension forms for distribution of cash as he had ceased to be a Minister on those

dates. As the specific case of the respondent is that pension was distributed to

influence the voters, then any distribution made in the capacity as a Minister could

not be legally faulted as long as the same was distributed during his tenure as

Minister and after the appellant had ceased to be a Minister, he was not legally

entitled to distribute the pension and hence ensuring compliance of formality of

filling up pension forms with the aid of PW-10- Sarpanch by pressurizing him to fill

up pension forms makes no sense or reason so as to prove the charge of illegal

distribution of pension amounting to corrupt practice.

67. In view of the unsatisfactory analysis of the evidence and erroneous

approach of the High Court while recording the finding on the issue of corrupt

practice, we consider this appeal fit to be allowed as no conclusive inference can

be drawn that the respondent Smt. Kaur who had secured only third position in

the election has succeeded in proving the charge of corrupt practice against the

returned candidate-the appellant herein and the same at best can be held to be

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based on allegations which desperately required unimpeachable evidence of

trustworthy nature adduced by independent witnesses which could not be treated

as tainted or evidence of doubtful nature. Since the charge of corrupt practice has

to be proved beyond reasonable doubt and not merely by preponderance of

probabilities, the evidence relied upon by the High Court cannot be held to be of

such probative value which do not reflect on the credibility of the witnesses relied

upon by the High Court, so as to interfere with the election result by which the

appellant had been elected. Consequently, we set aside the judgment and order

of the High Court and allow this appeal. However, the parties are left to bear their

own cost.

………………………………….J

(J. M. Panchal)

………………………………….J

(Gyan Sudha Misra)

New Delhi,

November 22, 2010

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