ORDER
1. Shri Baldev Singh Mann, claiming that he was elected as a Member of the Punjab Legislative Assembly from Dirba Assembly Constituency for three consecutive terms and had also been a Minister in the Council of Ministers in 1986-87, having lost the election to the Punjab Legislative Assembly held in February, 1992, has challenged the validity of the election of Sh. Gurcharan Singh, the returned candidate, through this election petition filed under S. 80 of the Representation of People Act, 1951 (for short, the Act), on twin grounds, viz., (i) booth capturing; and (ii) incurring expenditure in contravention of the provisions of Section 77 of the Act.
2. The election of the returned candidate can be challenged by an election petition presented in accordance with the provisions of Part VI of the Act. The grounds for declaring the election of a returned candidate to be void and the grounds for which a candidate other than the returned candidate may be declared to have been elected are contained in Sections 100 and 101 of the Act respectively. One of the grounds for declaring the election of a returned candidate as void is that any corrupt practice has been committed by the returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent. Section 123 mentions the corrupt pratices. The Representation of the People Act, 1950 and the Representation of the People Act, 1951 were amended by Act No. 1 of 1989 called the Representation of the People (Amendment) Act, 1988. Section 123 of the Act was amended and after clause (7) andbefore the Explanation, clause (8), namely, 'Booth capturing by a candidate or his agent or other person' was inserted. In the Explanation to Section 123, after clause (3), clause (4), namely, 'For the purposes of clause (8), 'booth capturing' shall have the same meaning as in Section 135A' was inserted. In the Statement of Objects and Reasons for which the amendments were introduced in Section 123 of the Act. 'booth capturing' was made an electoral offence under Section 135A, it was stated that booth capturing and rigging of elections had been on the increase in the recent past and to check this evil, booth capturing had been made an offence and also a corrupt practice.
3. The plea that the returned candidate had committed the corrupt practice of booth capturing within the meaning of Sections 123 and 135A of the Act, as stated in para 3 of the election petition, reads thus :--
'3. That the respondent No. 1 indulged in the commission of corrupt pratice of booth capturing himself and through his agents as defined under Section 123(8) and Section 135A of the Act:
(i) That the respondent No. 1 on 19-2-92 at about 7.30 A.M. in the company of 50 supporters came to the Govt. High School Building at Dirba where polling booths No. 62 to 69 were located. He threatened Joginder Singh, Polling Agent of the petitioner in the presence of some electors who were present there. Those present included Sh. Vasdev son of Sh. Kulwant Rai, Sardar Jora Singh son of Sardara Singh, Maghar Singh son of Gurbachan Singh and asked him not to go inside the polling station and not to raise objections regarding the identity of persons polling the votes in place of real electors. The respondent No. 1 and some of his supporters were armed also. On this Joginder Singh refused to comply and went inside the polling station No. 62.
(ii) That later at about 8 A.M., respondent No. 1 accompanied by most of those persons, went to polling booths No. 63 to 69 one by one. He captured those booths by intimidating the polling staff and the persons ac-companying him cast vostes in place of real electors in each of the polling stations and this way about 600 votes were got cast by respondent No. 1 through the persons accompanying him. All these votes were cast in place of real electors by men and women impersonating for the real electors. And thus, the respondent No. 1 is guilty of booth capturing, as well as of corrupt practice defined under Section 123(8) and these 600 votes are laible to be excluded from the votes polled by respondent No. 1.
(iii) That at about 11.30 A.M., the respondent No. 1 carried about 50 persons from Dirba who are registered as electors in part No. 63 in mini trucks to village Karrial booth No. 60 situated in the building of Middle School there. These persons cast their votes as some of them are registered there also. As they were earlier residing there. Some of them cast votes impersonating for the real electors also. This was done in the presence and at the behest of respondent No. 1 and thus he is guilty of having committed the corrupt practice as defined under Section 123(8). These votes are also liable to be excluded both from polling station No. 63 as well as polling station No. 60 from the votes cast in favour of respondent No. 1.
(iv) That at about 12.30 P.M. respondent No. 1 went to Kadar Nagar, Munshiwala along with about 10 others and at his behest they cast their votes at polling station No. 61. They were registerd both in the electoral rolls relating to part No. 63 Dirba as well as Part No. 61. In this village there was complete boycott and not a single vote was cast by any elector residing there as they were terrified because of posters put up in the village ostensibly on behalf of militants threatening death in case they caste their votes. These posters were put on the night between Feb. 17-18 in the village. Posters are Annexure P-1 and P-2 to this petition. These votes are liable to be excluded from the votes counted in favour of Respondent No. 1.
(v) That about 2.00 PM on 19th Feb., 1992, the respondent No. 1 came to village Dhan-doli Khurd along with about 50 persons. They cast votes in place of electors at pollingstation No. 31 after capturing the booth. Polling staff was threatened and about 100 votes were cast this way. And they are liable to be excluded from votes counted in favour of respondent No. 1.
(vi) That at village Shafipur Kalan polling station No. 89 Niranjan Singh a close relation (Son of mother's brother of respondent No. 1) of respondent No. I with the consent and connivance of respondent No. I arranged to cast bogus votes through impersonation in favour of respondent No. 1. This way, about 200 votes were illegally cast at this polling station in favour of respondent No. I. All these votes are liable to be excluded from the votes counted in favour of respondent No. 1.'
4. The contents of para 3(i) have been verified as true on information received from Joginder Singh son of Piara Singh, Ex-Sarpanch of village Dirba; contents of para 3(ii) are stated to be true on information received from Maghar Singh son of Gurba-chan Singh and Zora Singh son of Sardar Singh; contents of para 3(iii) are stated to be correct on information received from Kashmira Singh son of Gopal Singh of village Karrial and Vasu Dev son of Kulwant Rai of village Dirba; contents of para 3 (iv) are slated to be correct on information received from Kapoor Singh son of Tehal Singh, resident of village Munshianwala; contents of para 3(v) are stated to be correct on information received from Parshotam Lal and Surjit Singh of village Dhandori Kalan, and contents of para 3(vi) are stated to be correct on information received from Mewa Singh son of Gurnam Singh, Amar Singh son of Kehar Singh, Karnail Singh son of Kartar Singh and Sardara Singh son of Anoop Singh of village Shafipur Kalan.
5. The returned candidate denied the allegations in the written statement. He stated that there were very tight security arrangements by the police, Central Reserve Police Force (for short, the 'CRPF') Home Guards and military force at each polling booth and no complaint of any kind was lodged with any of the Presiding Officers of the Polling Booth. The returned candidate also took a preliminary objection that the election petitionerhad not pleaded material facts and given full particulars of the alleged corrupt practices as required under Section 83 of the Act and the election petition was liable to be dismissed under Order VII, Rule I. Civil Procedure Code, read with Section 87 of the Act.
6. It is also pleaded in para 4 of the election petition that the returned candidate had spent over Rs. two lakhs on his election in utter violation of the ceiling on expenses imposed under Section 77 of the Act, and that he has concealed some expenses and has not included several items of expenses incurred by him on his election. The details of the concealed items of expenditure are as under:--
'(i) That respondent No. 1 purchased cloth for mottoes which were used by him on the vehicles used for the purpose of election as well as at important places and intersections of the roads in the entire constituency. For this purpose, he purchased cloth worth more than Rs.8,000/- from M/s. Rajinder Kumar, Cloth Merchant, Dirba but has shown the purchase of cloth worth Rs. 3,210/- only. In addition he paid the standard charges of Rs. 7/- per meter as painting charges to the Painter which comes to about Rs. 5,600/- on the entire purchase and is Rs. 2,240/- on the cloth for which he has filed the Return. In addition he purchased strings so that the banners could be fixed. The strings were worth Rs. 500/- which were not shown in the Return.
(ii) That respondent No. 1 has not shown the cost of paint used for writing on the walls with the help of 'Marka Made' i.e. 'stencils'. This was very widely used and paint worth at least Rs. 2000/- was used for this purpose.
(iii) That the respondent No. 1 has not shown expenses incurred for petrol of 2 vehicles which he claims to have hired Vehicle No. DIL-344 has shown an expenditure of Rs. 7,700/- @ Rs. 550/- per day. In fact, this vehicle was engaged by him from the date of nomination i.e. 31-1-92 to the day of counting i.e. 20-2-92. There he has not included an amount of Rs. 3,750/- for 7 days paid as hire charges. In addition he has not included the expenditure on petrol for these days, whichin no way was less than Rs. 4,200/-@ Rs.200/- per day.
(iv)That respondent No. 1 has wrongly shown vehicle No. CH-326 engaged for only 6 days at a meagre cost of Rs. 1100/-, whereas no vehicle was available less than Rs. 550/-per day and thus he has concealed the expenditure of Rs. 2,200/- towards hire charges and another expenditure of at least Rs. 1200/-on petrol charges. This vehicle also was with him throughout from 31-1-92 to 20-2-92 and in fact the concealment of expenditure is much more than the sum mentioned above and in addition to the one mentioned above, he has concealed the expenditure on account of hire charges and Rs. 3,000/- spent on petrol.
(v) That respondent No. 1 had engaged 4 rickshaws for the purpose of fitting loudspeakers for making announcements in the area. He has shown expenditure for 12 days of the hire of rickshaws, but has shown the expenditure of one loudspeakers @ Rs. 100/-per day. He has concealed the amount paid for the use of loudspeakers to the tune of Rs. 2,600/- as hire charges for loudspeakers. He has not shown expenditure of several items used in the kitchen while showing the kitchen expenses. Items like milk, oil, wheat flour, fuel, etc. have not been shown amounting to Rs. 10,000/-.'
7. The contents of para 4 of the election petition have been stated to be verified on information received from Vas Dev and Joginder Singh. Their particulars have not been disclosed in the election petition. In support of this corrupt practice, the election petitioner has filed his affidavit dated April 3, 1992 and para 2 of the same reads thus:--
'That the statements made in paragraph of the said petition about the commission of corrupt practice as defined under S. 123(6) of the Act are true and correct to the best of my information as well as from the information received from Vas Dev and Joginder Singh, which are believed to be true.'
8. The allegacions contained in paragraph 4 of the election petition have been controverted by the returned candidate in hiswritten statement. It is stated therein that the returned candidate had purchased cloth worth Rs. 3,210/- only from M/s. Rajinder Kumar, Cloth Merchant, Dirba. The cloth was purchased vide Bills dated February 6, 1992, February 7, 1992 and February 9, 1992, for Rs. 1,200/-, Rs. 1,160/- and Rs. 850/-respectively. These bills were enclosed with the statement of expenses submitted by him to the District Election Officer, Sangrur on March 18, 1992. It was denied that he had paid Rs. 7/- per meter as painting charges to the painter and had paid Rs. 2,240/- to him as painting charges. It was denied that he had purchased strings worth Rs. 500/-. It was also denied that he had purchased paints worth Rs. 2,000/-. It was admitted by him that he had hired Taxi bearing Registration No. DIL-344 from February 6, 1992 to February 19, 1992 for 14 days at the rate of Rs. 550/- per day, including the cost of petrol and paid Rs. 7,700/- to Smt. Gomti Devi of Dirba, the owner of the said Taxi, in the presence of her son. It was denied that Taxi bearing Registration No. DIL-344 was hired by him from January 31, 1992 to February 20, 1992. It was admitted that Taxi bearing Registration No. CH-326 had been hired by him for two days i.e. February 14, 1992 and February 19, 1992 and Rs. 1100/- had been paid to Jarnail Singh of Dirba on February 19, 1992. It was denied that Taxi bearing Registration No. CH-326 was engaged by him for six days as alleged by the election petitioner and that he incurred expenditure of Rs. 2,200/- towards its hire Charges, including petrol expenses. It was admitted that four rickshaws were hired by the returned candidate from February 6, 1992 to February 17, 1992 tor 12 days and these were not used for making announcements and that no loudspeaker was fitted in those rickshaws. Only one loudspeaker was hired from February 6, 1992 to February 17, 1992 for 12 days @ Rs. 100/- per day and a sum of Rs. 1200/- was paid to Rai Dutt son of Parkash Chand of Diba. The kitchen expenses were stated to have been correctly shown in the statement of expenses submitted to the District Election Officer, Sangrur on March 18, 1992, by the returned candidate.
9. On the pleadings of the parties, thefollowing issues were framed on October 15, 1992:--
'(1) Whether the election of respondent No. 1 is liable to be declared void on the grounds pleaded in the petition? OPP
(2) Whether the petition is liable to be rejected for non-compliance of the provisions of Rule 12(f), Chapter 4-GG of the High Court Rules and Orders, Vol. V and Section 81(3) of the Representation of People Act? OPR
(3) Whether the petition does not disclose any cause of action? OPR
4) Relief.'
Issues Nos. 2 and 3 were treated as preliminary issues and these were answered against the returned candidate vide order dated January 28, 1993. It was held that the plea of corrupt practice of booth capturing taken in the election petition has to be construed in the light of the amendment introdued in the Act by Act No. 1 of 1989.
10. Thus, only issue No. 1 remains to be decided. My finding on this issue is as under:--
The plea taken in paragraph 3(i) of the election petition relates to the threat administered by the returned candidate to Joginder Singh, alleged election agent of the election petitioner, not to go inside the polling booth or raise objection regarding the identity of the persons who had come to the polling booth for casting votes. This allegation cannot be treated to be a corrupt practice of booth capturing. It is not disclosed in the election petition as to where the threat was administered to Joginder Singh. Administration of a threat to Joginder Singh not to enter the polling booth may be an offence punishable under the Municipal law of the land, but it cannot come within the ambit of a corrupt practice as mentioned in sub-section (8) of Section 123 of the Act.
11. In order to prove the alleged corrupt practice mentioned in para No. 3(ii) of the election petition, as stated supra, the election petitioner examined P. W. 6Zora Singh son ofSardara Singh and P.W. 7 Sher Singh son of Sohan Singh. P.W, 6 Zora Singh in his examination-in-chief stated that on the day of poll he had reached the polling station at about 7.30 a.m. The returned candidate came there in a van, while some other persons came in mini trucks. These people went towards the polling station. They had an altercation with Joginder Singh and they told him that they were going to impersonate. Central Reserve Police Force personnel pushed them out of the polling station, while the persons who came in trucks polled the votes of real electors. In his cross-examination, he stated that he was directed to go out of the polling station by the Central Reserve Police Force personnel at 7.30 a.m. and thereafter he did not enter the polling station. He did not lodge a written protest with anyone. Outside the polling station, army personnel. Central Reserve Police Force personnel and Punjab Police personnel were posted for security purposes. To a Court question he stated thus:--
'Inside the polling station there was a presiding officer, four clerks and in addition to that there were polling agents of the respective candidates. The CRPF personnel were inside the polling station and they pushed me out. I had gone inside the polling station to hand over my appointment letter to the Presiding Officer and after handing over the form, I came out. I do not know what happened inside the polling station thereafter.'
P.W. 7 Sher Singh in his examination-in-chief stated that the returned candidate came to the polling station at about 8.00 a.m. There were four vehicles. Out of these, two were occupied by the CRPF personnel and the remaining two by the local inhabitants. These people entered the polling station and wanted to poll votes forcibly. Joginder Singh and Zora Singh told them not to poll the votes forcibly. CRPF personnel pushed Joginder Singh and Zora Singh out. After polling votes these people had gone to other polling stations of Dirba, which were eight in number. In cross-examination, he admitted that he did not lodge protest with anybody. In reply to theCourt question 'Can you tell, who were the persons inside the polling station?' he replied that there were either police people or polling agents of the contesting candidates inside the polling station and there was nobody else inside the polling station.' The reply to the Court question belies the entire version of this witness stated in the examination-in-chief. To the contrary, it indicates that the witness had no knowledge of the procedure of conducting elections. The reply to the Court question indicates that he was not present at the police station as alleged.
12. The returned candidate examined R.W.2 Sh. Megh Raj, Sub-Divisional Magistrate, Mukerian, who was the Returning Officer of Dirba-87 Assembly Constituency in the election held on February 19, 1992. He produced the list of Presiding Officers and the attached staff of polling booths Nos. 31, 59 to 69 and 89 of Dirba Assembly Constituency. 62 to 69 were the polling booths at Dirba segment of the Assembly Constituency and Sarvshri Dial Chand, Gurmail Singh, Ram Parkash, Karam Singh, Sohan Singh, Chiranjit Julka, Gobinder Singh and Majit Singh were the Presiding Officer of Polling Booths Nos. 62 to 69 respectively. They were examined by the returned candidate as R.W.8, R.W.9, R.W. 10, R.W. 11, R.W. 12, R.W. 13, R.W. 14 and R.W. 15 respectively and they with one voice stated that polling at Polling Booths Nos. 62 to 69 of Dirba segment of the Dirba Assembly Constituency took place from 7.00a.m. to 4.00p.m. The polling was peaceful throughout the day. There were proper security arrangements outside the polling booths. No protest was lodged by any of the contesting candidate regarding illegal casting of votes. No untoward incident occurred during the poll. R.W.8, R.W.9, R.W. 13 and R.W. 15 also stated that the polling agents of the contesting candidates were inside the polling booths. None of them challenged the identity of the electors who had come to cast their votes. Shri Vinod Kumar Kaushal, Inspector in the office of the District Food & Supplies Controller, Sangrur was the Presiding Officer at Polling Booth No. 31 of Dirba-87 Assembly Constituency. He was examined as R. W. 4 and he also statedthat the polling was peaceful. A suggestion was put to this witness by the counsel for the election petitioner that at about 2.00 p.m. on February 19, 1992, the returned candidate along with about 50 other persons came to the polling station and polled illegal votes. To this, the witness replied as under:--
'If there had been any such incident, I would have immediately lodged the report with the police.'
The sworn testimony of these Presiding Officers receives corroboration from the evidence of the Returning Officer R. W. 2 Shri Megh Raj and R.W. 16 Shri Jaswinder Singh, Senior Superintending of Police, Sangrur. R.W. 2 Shri Megh Raj stated that he was the Returning Officer of Dirba-87 Assembly Constituency. He did not receive any complaint of any type during the poll in writing or otherwise. R.W. 16 Shri Jaswinder Singh also stated that he had checked up the record and there was no complaint regarding booth capturing, intimidation or illegal polling of votes by any of the contestants or by their supporters or by their polling agents/ election agents at the poll. The evidence of R.W. 8 to R.W. 15, R.W.2 and R.W. 16 amply establishes that the poll was peaceful and no untoward incident had happened and there was no complaint of booth capturing, intimidation or illegal polling as has been alleged in the election petition. Even otherwise, the evidence produced by the election petitioner does not even remotely suggest that the returned candidate or his election agent or any other person had indulged in corrupt practice of booth capturing.
13. To substantiate the contents of para 3(iii) of the election petition, the election petitioner examined P.W. 11 Kashmir Singh son of Gopal Singh and P.W. 12 Saadha Singh son of Lakha Singh. P.W. 11 stated that he along with Saadha Singh came to the polling station at about 9.00 a.m. to find out if the votes were being polled. They sat outside the school building. At about 11.00a.m., the returned candidate along with other persons, who were in mini trucks, came to the polling station. The occupants of mini trucks were Bazigars by caste. He could identify some ofthem. He shook hand with one of them whose name was Malak Ram. He asked him as to why he had come there since his name was entered in the electoral rolls of village Dirba. He told that he had already polled his vote at Dirba and since his name was borne on the electoral roll of village Karrial also, he would cast his vote there also. The CRPF personnel told the witness and Saadha Singh to withdraw and they withdrew. Thereafter, the persons who had come in mini trucks cast their votes. They were about 40/50 in number. P.W. 11 in his cross-examination stated that he was an old Akali worker and had been participating in all the Morchas and had offered arrest also. He, however, admitted that he and Saadha Singh were sitting outside the school building and the votes were being polled inside the school building and the distance between the polling booth and the place where they were sitting was approximately 30 yards. The votes were being polled inside the rooms and he did not know what had transpired inside the polling station. However, he saw those persons taking parchis from the Congress workers.
14. P.W. 12 Saadha Singh towed the line of P.W. 11. He stated that the returned candidate and the Bazigars alighted from the mini trucks. The returned candidate was ahead of the Bazigars. He knew those Bazigars since they belonged to his village Karrial. The people who had come in the mini trucks went inside the polling station and after casting their votes, they went back in the mini trucks. In cross-examination, he admitted that the school building had a boundary wall on all the four sides. The boundary wall is 6 high. He and P.W. 11 kashmir Singh sat on the land of Karnail Singh adjoining the school building. In reply to the Court question, 'whom did you tell about the irregular casting of votes?', he stated that he had told many persons, but he could not give their names. According to this witness, around all the four sides of the school building there is a boundary wall of 6 feet height and the votes were being polled in a room inside the school building by the Bazigars, who had come from another village, It is unbelievable that a person while sitting outside the schoolbuilding having a boundary wall of six feet height could see what was transpiring in a room of the school building. The evidence of P.W. 11 Kashmir Singh and P.W. 12 Saadha Singh does not inspire confidence. Apart from this, the evidence of these witnesses runs counter to the plea taken in paragraph 3(iii) of the election petition. The election petitioner does not say that the Bazigars, who were entered as electors in the electoral rolls of village Dirba had cast their votes at village Karrial.
15. The returned candidate examained R.W. 6 Shri Baldev Singh, Veterinary Officer, Maluka, District Bathinda, who was the Presiding Officer at Polling Booth No. 60 of village Karrial. He stated that the votes were being polled peacefully and the identity of none of the electors was challenged by any of the polling agents. The polling staff used to enquire from the polling agents if genuine persons were casting their votes. During the election process, no illegal votes were cast and no complaint of any type was made by any of the candidates or their polling agents. In cross-examination, he further stated that the polling staff did not allow any elector to cast his vote till his identity was established. He denied the suggestion that the persons who were entered as electors in village Dirba had cast their votes at Polling Booth No. 60 of village Karrial.
16. To substantiate the plea contained in paragraph 3(iv), the election petitioner examained P.W. 13 Kapoor Singh and P.W. 14 Tehal Singh of village Munshianwala, district Sangrur, P.W. 13 Kapoor Singh in his examination-in-chief stated that some former Sahnsis of village Munshianwala, who were residing at village Dirba, came in two trucks along with a truck carrying the security personnel and the returned candidate was occupying one of the vans. The Sahnsis cast their votes and he prevented them from casting their votes. The returned candidate asked him as to how he could prevent them from casting their votes. He raised a raula, upon which his brother, nephew, Tehal Singh and few others of his village came there, 8/9 votes were polled by the Sahnsis and there-after they returned in the trucks. P.W. 14 Tehal Singh in his examination-in-chief stated that during the last assembly election, there was a dispute about the casting of votes. Kapur Singh had told the people, who had come to cast their votes, to desist from doing so. They were Sahnsis who originally belonged to village Munshianwala but now resided at Dirba, Kapur Singh was pushed out of the school building. Thereafter people assembled. After casting votes, those people ran away. The people had come accompanied by two vehicles occupied by CRPF persons and the returned candidate was also with them.
17. The evidence of P.W. 13 and P.W. 14 is at variance with the allegations made in paragraph 3(iv) of the election petition. The election petitioner has not stated in the election petition that Kapoor Singh had objected to the casting of votes by the Sansis at the Polling Station at Munshianwala; that there was an altercation and the Sansis after casting 8/9 votes ran away. Their evidence does not even remotely prove the allegations made in paragraph 3 (iv) of the election petition.
18. To rebut the allegations contained in paragraph 3(iv), the returned candidate examined R. W. 7 Amarjit Singh, who was the Presiding Officer at Polling Booth No. 61 of village Munshianwala, district Sangrur. He stated in his examination-in-chief that the polling took place from 7.00 a.m. to 4.00 p.m. The polling was conducted strictly in accordance with the procedure prescribed. No illegal vote was polled at the polling booth where he was performing his duties as a Presiding Officer. The veracity of the statement of this witness was never challenged by the counsel for the election petitioner.
19. In support of the allegations contained in paragraph 3 (v) of the election petition, the petitioner examined P.W. 16 Surjit Singh. In his examination-in-chief P.W. 16 Surjit Singh stated that some people came in trucks and forcibly entered the polling booth despite their protest and they after polling their votes went away. In cross-examination, he admitted that a voter usedto enter the polling booth and after casting his vote used to go out. He had to go to the polling station whenever called. The witness does not even remotely support the allegations made in paragraph 3(v) of the election petition. In fact, the witness did not lodge any protest with anybody till he appeared in the Court. He even did not say in the examination-in-chief that he was present at the polling station when people came to cast their votes at Polling Booth No. 31 of Dhan-dauli Khurd. The returned candidate denied that he had ever gone to village Dhandauli Khurd in the company of certain persons. R. W. 2 Shri Megh Raj, the Returning Officer and P.W. 16 Shri Jaswinder Singh, Senior Superintendent of Police, Sangrur stated that they did not receive any complaint of any type regarding impersonation or illegal casting of votes during the election to the Dirba-87 Assembly Constituency.
20. To substantiate the allegations contained in paragraph 3(vi), the election petitioner examined R.W. 15 Jarnail Singh. In examination-in-chief, this witness stated that when he had gone to Polling Station, Shafipur Kalan, he noticed that his vote had already been polled. One Niranjan Singh met him outside the polling station. On his enquiry as to who had cast his vote, Niranjan Singh told him that he had cast his vote. Niranjan Singh is a Sarpanch of the village. In his cross-examination, he admitted that he did not lodge any written complaint either with the Presiding Officer or with the Polling Officer or with the police at the Police Station. The election petitioner does not say in paragraph 3(vi) of the election petition that P.W. 15 Jarnail Singh had come to the Polling Station and Niranjan Singh had told him that he had cast the vote of the witness.
21. The election petitioner has verified the allegations made in paragraphs 3(i) to 3(vi) on information received from Joginder Singh, Maghar Singh, Zora Singh, Kashmir Singh, Vas Dev, Kapur Singh, Parshotam Lal and Surjit Singh. Joginder Singh was not examined. Zora Singh was examined as P.W. 6, but he does not say that he had given the information to the petitioner about theallegations contained in paragraph 3(ii) of the election petition. Kashmir Singh, at whose information the contents of paragraph 3(iii) are verified, appeared as P.W. 11, but he did not say that he had given the information of the incident mentioned in this sub-para to the election petitioner. The allegations contained in paragraph 3(iv) are verified on the information given by Kapoor Singh, who was examined as P.W. 13. The witness does not say that he had given the information about the facts narrated in paragraph 3(iv) to the election, petitioner. The allegations contained in paragraph 3(v) are verified on the basis of the information given by Parshottam Lal and Surjit Singh of village Dhandauli Kalan. Parshottam Lal was not examined. Surjit Singh who appeared as P.W. 16 did not say that he had furnished the information contained in paragraph 3(v) to the election petitioner. The persons who gave the information regarding the incident mentioned in paragraph 3(vi) were not examined by the election petitioner. The election petitioner for the reasons best known also did not examine his polling agents, who were present at the polling booths, where the allegations of booth capturing have been made.
22. As observed earlier, the election petitioner has challenged the election of the returned candidate on the ground of corrupt practice of booth capturing as mentioned in S. 123(8) of the Act. For the purpose of sub-sec. (8) of S. 123, 'booth capturing' has the same meaning as in S. 135A of the Act. Section 135A of the Act has made 'booth capluring' as an offence. Explanation to S. 135A of the Act says that for the purpose of S. 135A, 'booth capturing', amongst other things, includes all or any of the following activities:--
(a) seizure of a polling station or a place fixed for the poll by any person or persons making polling authorities surrender the ballot papers or voting machines and doing of any other act which affects the orderly conduct of elections;
(b) taking possession of a polling station or a place fixed for the poll by any person or persons and allowing only his or their ownsupporters to exercise their right to vote and prevent others from voting;
(c) threatening any elector and preventing him from going to the polling station or a place fixed for the poll to cast his vote;
(d) seizure of a place for counting of votes by any person or persons, making the counting authorities surrender the ballot papers or voting machines and the doing of anything which affects the orderly counting of votes;
(e) doing by any person in the service of Government, of all or any of the aforesaid activities or aiding or conniving at, any such activity in the furtherance of the prospects of the election of a candidate.'
The activities which denote 'booth capturing' are not exhaustive. Nevertheless these activities have to be of the kind which are mentioned in clauses (a) to (e) under the Explanation to S. 135A of the Act. The evidence brought on record does not establish any of the activities mentioned in clauses (a) to (e) under the Explanation to S. 135A of the Act. As observed earlier, the election petitioner has stated in the election petition that he has challenged the election of the returned candidate on the ground of corrupt practice mentioned in S. 123(8) of the Act. The evidence as has been brought on record is to the effect that some people had polled votes in place of the real electors or some people had forcibly cast their votes. If an elector has cast his vote at two polling booths or genuine electors had not polled their votes, the offence of corrupt practice of booth capturing will not be established.
23. In support of the second charge of corrupt practice, namely, incurring of expenditure by the returned candidate in contravention of the provisions of S. 77 of the Act, the election petitioner examined P.W. 3 Tirath Ram, P.W. 4 Paramjit and P.W. 5 Naresh Kumar. A reference to the other evidence examined by him will be made after the evidence of the aforementioned three witnesses is analysed. P.W. 3 Tirath Ram stated that some persons came to him to get the material printed, which is reflected in Cash Memos, Exhibits P.3/1, P.3/2 andP.3/3. He stated that the payment of printing charges of Rs. 1,200/- and Rs. 250/- as reflected in Cash Memos, Exhibits P.3/2 and P.3/3 respectively was not made by the returned candidate. He further stated that cash memo, Ex.P.3/1 did not reflect that any payment was made in cash. It will be relevant to reproduce the statement of this witness in extenso and the same reads thus:--
'A volunteer came to me and requested me to print some pamphlets. I have brought the Cash Memos relating to the month of February, 1992. At Sr. Nos. 605, 619 and 630 are carbon copies of the Cash Memos which were prepared by me. These bear my initials. These are Exhibits P.3/1 to P.3/3. A person came to me to get the material printed which is reflected in the Cash Memos. I do not know his particulars. To a Court question: 1 do not possess the manuscript of the material printed by me.
Cross-examination by Sh. N. S. Gill,Advocate:
Ex.P.3/1 does not bear the endorsement that the printing charges were received in cash whereas Ex.P.3/2 and Ex.P.3/3 do have the endorsements that the printing charges had been received in cash. It is correct that the payments reflected in the Cash Memos Ex.P.3/2 and Ex.P.3/3 were not made by Sh. Gurcharan Singh, returned candidate.'
P. W. 4 Paramjit is a painter by profession. He stated that approximately 200 meters of cloth was painted by him and he was paid Rs. 2,000/- for it. His statement reads as under:--
'I am a painter by profession. I run a shop also for this purpose. I painted cloth banners during the last assembly elections. The rate of painting was Rs. 10/- per meter of cloth. I painted banners of Sh. Gurcharan Singh. Approximately 200 meters of cloth was painted. I charged Rs. 2,000/- for this job. I did this job twice or thrice. The payment was also made in three instalments of Rs. 1,000/-, Rs.500/- and Rs. 720/- respectively. The payment of Rs. 1,000/- and Rs. 500/- was made by a worker. The third payment of Rs. 720/- was made by the returned candidatethrough a person. The returned candidate was himself sitting in the car and asked some other person to make the payment. I do not maintain any cash memos but I issue receipts on my letter pad, if demanded.
Cross-examination by Sh. N. S. Gill, Advocate:
I have been working as a painter since 1984. The petitioner had also got the painting work done from me. The painting was done on a cloth measuring 40/45 meters. He also got a similar quantity of cloth painted for Legra Constituency. Congress-I candidate of Sher-pur Constituency got the cloth painted from me. I do not know the particulars of the person who made the payment to me on three occasions. The car in which S. Gurcharan Singh was sitting had been parked across the road. I did not rise from my seat to go to Sh. Gurcharan Singh. To a Court question: I did not see Shri Gurcharan Singh handing over the money to that person for making payment to me.'
P.W. 5 Naresh Kumar stated that he is a driver of Maruti Van bearing Registration No. CHK-5905; that this vehicle was hired for a day during elections and the hiring charges were Rs. 550/- per day, exclusive of petrol expenses. It will be useful to reproduce his statement in extenso:--
'I am a driver of Maruti Van bearing Registration No. CHK-5905. It was hired for a day during elections. During elections, hiring charges of the vehicle were Rs. 550/-per day. The petrol expenses were to be borne by the hirer. Petrol of the value of Rs. 200/-was consumed on the day when the vehicle was hired. The vehicle was hired on the day of polling. The vehicle was hired by the Congress candidate, namely, S. Gurcharan Singh. This vehicle was never hired earlier. The payment was made in the evening by S. Gurcharan Singh.
Cross-examination by Shri N. S. Gill, Advocate:
S. Gurcharan Singh other than the returned candidate was a Congress candidate for the Sangrur Parliamentary Constituency.
I am an illiterate. I do not know the distinction between the Member of Legislature Assembly and Member of Parliament. The van bearing registration No. CHK-5905 is not a taxi. Prem Chand is owner of this vehicle. To a Court question : Normally hiring charges of the van are Rs. 350/ - per day but during elections, the rates are increased.'
24. The evidence of P.W. 3 Tirath Ram, P.W. 4 Paramjit and P.W. 5 Naresh Kumar does not support the plea of the election petitioner. The election petitioner has not pleaded that the vehicle bearing Registration No. CHK-5905 was hired by the returned candidate. P.W. 5 says that the vehicle bearing Registration No. CHK-5905 was hired by Shri Gurcharan Singh. In his cross-examination, he admitted that Shri Gurcharan Singh other than the returned candidate was a Congress candidate from the Sangrur Parliamentary Constituency. The election petitioner has introduced this witness in order to connect the hiring of the aforementioned vehicle by the candidate who contested the Parliamentary election. Incidentally, he bears the same name as the returned candidate. P.W. 4 Paramjit only stated that he painted banners of cloth and charged painting charges @ Rs. 10/- per meter of cloth. The election petitioner says that the standard charges for painting the cloth banners were Rs. 7/- per meter. He does not say that the banners were painted by P.W. 4 Paramjit. The witness has admitted the painting of banners and for that he was paid. P.W. 3 Tirath Ram, who is a printer, had printed some election material. Cash Memos were got produced from him, but the witness categorically stated that the payments reflected in cash memos, Ex.P.3/2 and P.3/3 were not made by the returned candidate. These payments were sought to be fastened on the returned candidate, but the election petitioner could succeed in his mission.
25. Apart from the evidence P.W. 3, P.W. 4 and P.W. 5, the other witnesses have stated that they had seen some posters and banners in support of the returned candidate. From this evidence the election petitioner wants to draw an inference that the expenseson the banners and posters had been incurred by the returned candidate and the same were shown in the returns although this is not the case pleaded by him.
26. Section 83(1)(b) of the Act contains the mandatory provision that an election petition shall contain full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. In the instant case, full particulars were not pleaded in the election petition. No facts or circumstances at all were indicated either in the election petition or in the evidence from which even an inference can be drawn that the returned candidate had incurred expenditure beyond the prescribed limit. The allegations of corrupt practice are in the nature of a criminal charge. It is necessary that there should be no vaguenes in such allegations so that the returned candidate may know the case he has to meet. In the instant case, the allegations of corrupt practice levelled against the returned candidate are not only vague but indefinite. From the evidence brought on record, it cannot even be conceived that expenses beyond the prescribed limit were incurred by the returned candidate on his election. The election petitioner has failed to substantiate the corrupt practice alleged by him. Issue No. 1 is, therefore, answered against the petitioner and in favour of the returned candidate.
Issue No. 4 :
27. The election petitioner cooked up false pleas for setting aside the election of the returned candidate. He fabricated evidence with impunity to support the alleged charge of corrupt practices. He did not even hesitate from mis-quoting the Court's orders before the apex Court. It will be relevant to reproduce the observations made by the apex Court in its order dated October 28, 1993 while disposing of Special Leave to Appeal (Civil) No. 14425 of 1993 filed by the election petitioner against the order which was never passed by this Court:--
'By this petition, the petitioner seeks leave to appeal to this Court from the order dated 27th August, 1993 in C.M.P. No. 83 of 1993 of the High Court of Punjab and Haryana in Election Petition No. 13 of 1992.
We have heard learned counsel on both sides. A preliminary objection is taken by the respondents to the effect that the petitioner has rendered himself disentitled to relief owing to an attempt on his part to mislead the Court. Respondents point out that in para 2 of the memorandum of the petition (at page 10 of the paper-book) petitioner had stated that he 'has applied for the certified copy of the order of the above case and he did not get the same, and have obtained a photo copy of the same'. The order said to be a photocopy, so referred to, reads thus:
'One R. W. was examined and for the other witnesses bailable warrants were issued with the direction to the Senior Sub-Judge to submit daily progress of service to those witnesses further oral direction was that statement of that witness will be recorded on 3-9-1993 and thereafter argument in the case will be heard on the same day. Sd/- G. R. Majithia27-8-1993 Judge'
It now transpires that this is not the photo copy of the order, nor even a true summary of the purport of the order. It is now undisputed that the order made by the Court on that day is in the following terms:
'Mr. Nasib Singh, Advocate, counsel for Gurcharan Singh, has given up all the remaining witnesses mentioned in the list of witnesses except Gurcharan Singh shown at Sr. No. 6 of the list of witnesses. The service has been duty effected on him, but despite service, he has not put in appearance. Bailable warrants in the sum of Rs. 5,000/- be issued for 3-9-1993. The Chief Judicial Magistrate is directed to ensure compliance with the order. If in any event, he is unable to comply with the order, he is to send a report in this behalf. In the report, he will indicate the every day's steps taken by him to ensure compliance with the order.
To come up for arguments and recording the statement of Gurcharan Singh on 3-9-1993.'
Respondents say that the petition lacks candour and petitioner has not come to Court with ciean hands. In order to get over this embarrassment an application for amendment is stated to have been filed by the petitioner. That application is not registered in view of certain objections from the Registry. We ignore that application which, in any event, is not properly filed and is not before us.
In view of the conduct of the petitioner, which disentitles him to any discretionary relief, we dismiss this special leave petition with costs of Rs. 2,000/ - to be paid to the first respondent.
This is no reflection on the conduct of the learned counsel on record who, we have no reason to doubt, has merely acted on the instructions of the client and has filed the document furnished to him by the client.'
28. For the reasons stated above, the election petition fails and is dismissed with costs.
29. Petition dismissed.