Full Judgment Text
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PETITIONER:
DADASAHEB DATTATRAYA PAWAR & ORS.
Vs.
RESPONDENT:
PANDURANG RAOJI JAGTAP & ORS.
DATE OF JUDGMENT13/01/1978
BENCH:
SINGH, JASWANT
BENCH:
SINGH, JASWANT
CHANDRACHUD, Y.V.
KRISHNAIYER, V.R.
CITATION:
1978 AIR 351 1978 SCR (2) 524
1978 SCC (1) 504
CITATOR INFO :
R 1984 SC1516 (7)
F 1987 SC1577 (26)
ACT:
Election Petition-Corrupt practice as envisaged by S. 144-
1(3) of the Maharashtra Cooperative Societies Act, 1960,-
Burden of proof-Nature of proof to show the guilt under the
section is the same as that under S. 123 of the
Representation of the People Act, 1951.
HEADNOTE:
Shetkari Sahakari Sangh, a specified cooperative society as
defined in S. 144-A read with S. 73-G of the Maharashtra
Cooperative Societies Act, 1960, is duly registered
under the Act with the entire Kolhapur district as its area
of operation and has voting members of two types viz., (i)
individual members and (ii) cooperative societies. In the
election of the members of its Board of Directors, held in
the manner laid down in Chapter Xi A of the Act and the
rules made thereunder in the second half of the year 1973,
two groups are headed by Baba Nesarikar who was earlier the
Managing Director of the Sangh and another headed by one
Jagtap Guruji entered the election fray. In the said
election, all the three appellants in Appeal No. 41 and all
the six appellants in Appeal, No. 42 were declared elected
from the constituency of individual members numbering 25000
and the constituency of the cooperative societies affiliated
to the Sangh numbering 650 respectively. Baba Nesarikar was
himself returned unopposed from the combined constituency of
individual members and cooperative societies. TheNesarikar
group captured all the seats contested by it.Respondents 1
and 2filed two separate election petitions ’under s.
144-T of the Act read with Rule74 of the Maharashtra
Specified Cooperative Societies Elections to CommitteesRules,
1971, challenging the validity of the elections on a number
of grounds. The Commissioner Pune, by his common judgment
and order dated December 16, 1975, allowed them on the sole
ground that the appellants were guilty of corrupt practice
as envisaged by Section 144-1(3) of the Act, in that special
vehicles were hired with the knowledge and consent of the
appellants for the free conveyance of voters from Bhawani
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Mandap to the polling station and back and used as such on
the day of poll.
Allowing the appeals by special leave, the Court
HELD : (1) As Section 144-1 of the Maharashtra Cooperative
Societies Act, 1960, corresponds to S. 123 of the
Representation of the People Act, 1951 the same principles
must govern the adjudication of disputes relating to
elections under the latter Act. [528 A-B]
(ii)This Court has laid down the following principles and
tests under S. 12, of the Representation of the People Act,
1951
(a) In considering whether a corrupt
practice described in S. 123(5) of the Act is
committed, conveying of electors cannot be
dissociated from the hiring of a vehicle. [528
B]
Balwant Singh v. Lakshmi Narain [1960] 3
S.C.R. 91=AIR 1960 S.C. 770 applied.
(b) To establish the corrupt practice under
s. 123(5) of the Act, it is necessary for an
election petitioner to prove (i) that any
vehicle or vessel was hired or was procured,
whether on payment or otherwise, by the
returned candidate or by his election agent or
by any other person with the consent of the
candidate or of his election agent; (ii)that
it was used for the conveyance of the electors
to or from any polling station and (iii)that
such conveyance was free of cos to the
electors. Failure to substantiate any one of
these ingredien leads to the collapse of the
whole charge. [528 C-D]
52 5
Ch. Razik Ram Vs. Ch. J. S. Chauhan & Ors’.
[1975] 4. S.C.C. 769=A.I.R. 1975 S.C. 667
(Applied).
(c)The standard of proof required to
establish a corrupt practice is strict proof,
the proceedings against imputation of corrupt
practices, being quasi-criminal. [529 C]
Rahim Khan v. Khurshid Ahmed & Ors. [1975] 1
S.C.R. 643= [1974] 2 S.C.C. 660=A.I.R. 1975
S.C. 290; Ch. Razik Ram v. Ch.
J. S. Chouhan & Ors. [1975] 4 S.C.C. 769=
A.I.R. 1975 S.C. 667; Hem Raj v. Ramji Lal &
Anr. [1975] 4 S.C.C. 671=A.I.R. 1975 S.C. 382;
Om Prabha v. Charan Das [1975] Supp. S.C.R.
107; Amolak Chand Chhazad v. Bhagwandas Arya
(Dead) & Anr. [1977] 3 S.C.C. 566=A.I.R. 1977
S.C. 813; Lakshmi Raman Acharya v. Chandan
Singh & Ors. [1977] 1 S.C.C. 423=A.I.R. 1977
S.C. 587; Narendra Madivalapa Kheni v.
Manikrao Patil & Ors. [1977] 4. S.C.C.
16=A.I.R. 1977 S.C. 2171; Ramji Prasad Singh
v.Ram Bilas Jha & Ors. [1977] 1. S.C.C. 260,
applied and
(d) It is unsafe in an election dispute to
accept oral evidence at its face value unless
it is backed by unimpeachable and
incontrovertible documentary evidence.
[430 A]
Rahim Khan v. Khurshid Ahmed & Ors. [1975] 1 S.C.R. 643=
[1974] 2 S.C.C. 660=A.I.R. 1975 S.C. 290; M. Narayana Rao v.
G. Venkata Reddy & Ors. [1977] 1 S.C.R. 490 followed.
In the instant case : (i) The evidence led by the election
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petitioners falls far short of the requisite proof. It does
not at all establish that vehicles were procured by the
appellants or their election agents or with the consent of
anyone of them by any other person or that the same were
used for free conveyance of the voters to or from the
polling station; (ii) The Commissioner went wrong in law in
his approach to and assessment of the evidence adduced in
the case and arrived at unwarranted conclusions merely on
the basis of probabilities completely disregarding the
aforementioned well settled principles that election peti-
tions alleging commission of corrupt practices are
proceedings of a quasi criminal nature and the burden lies
heavily on those candidate to prove the charge beyond
reasonable sioner overlook the glaring infirmity that the
inasmuch as they (the election petitioners) constituting the
corrupt practice alleged lants and made no mention of the
essential who assail the election of a returned doubt; and
(iii) The Commissioner selection petitions suffered from,
omitted to set out the material facts to have been committed
by the appellant and no mention of the essential ingredient
that the electors were conveyed free of charge in the buses
procured by the appellants or their election agents or some
other persons with their consent. The story woven by PWs. 5
to 7 who are camp followers and sympathisers of PWs. 3 and
4, their testimony falling short of compelling degree of
proof, cannot be easily swallowed in the absence of
incontrovertible evidence and contemporaneous written
complaints to the concerned authorities. [532 H , 533 A-E]
Rahim Khan v. Khurshid Ahmed & Ors. [1975] 1 S.C.R.
643=[1974] 2 S.C.C. 660; A.I.R. 1975 S.C. 290; Kanahaiyalal
v. Mannalal & Ors. [1976] 3 S.C.C. 646; Amolak Chand Chhazad
v. Bhagwandas Arya (dead) & Anr. [1977] 3 S.C.C. 566=A.I.R.
1977 S.C. 813; Mohd. Yasin Shah v. All Akbar Khan [1977] 2
S.C.C. 23 followed.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 41 and 42
of 1977.
Appeals by Special Leave from the Judgment and Order dated
16-12-75 of the Commissioner, Pune Division, Poona in
Election Petition No. C.O.P./81(43) and C.O.P./81(42).
V.M. Tarkunde, (Miss) Manik Tarkunde, D. M. Rane and K.
Rajendra Chaudhuri, for the Appellants.
526
Y.S. Chitale, V. N. Ganpule and (Mrs.) V. D. Khanna for
Respondent No. 1 in both the appeals.
P.H. Parekh and Kailash Vasdev for Respondent No. 5 in
both the appeals.
V. D. Khanna for Respondents 12 in C.A. 42 and R. 18 in C.
A. 41.
M. N. Shroff for RR. 3 and 6 in CA 41 and RR 3 and 15 in
C.A. 42.
The Judgment of the Court was delivered by
JASWANT SINGH, J.-These appeals Nos. 41 and 42 of 1977 by
special leave are directed against a common judgment and
order dated December 16, 1975 made by the Commissioner,
Pune, Division Poona, in Election Petitions Nos. COP/81(43)
and COP/81(42) presented under section 144-T of the
Maharashtra Cooperative Societies Act, 1960 (hereinafter
referred to as ’the Act) read with Rule, 74 of the
Maharashtra Specified Cooperative Societies Elections to
Committees Rules, 1971 setting aside the election of the
appellants to the, Board of Directors of the Shetkari
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Sahakari Sangh Ltd., Kolhapur (hereinafter referred to as
’the Sangh’) on the ground that they were guilty of corrupt
practice as envisaged by section 144-1(3) of the Act in that
Special buses were procured on payment from the Kolbapur
Municipal Transport with the appellants’ knowledge and
consent and used for the whole day on November 20, 1973 i.e.
the day of poll for the free transport of the voters from
the Sangh’s head office in Bhawani Mandap to the polling
station in Market Yard and back.
The facts and circumstances giving rise to these appeals
which lie in a short compass are : The Sangh which is a
specified Cooperative Society as defined in section 144-A
read with section 73-G of the Act and was registered in or
about the year 1939 and as such is now deemed to be a
registered society under the Act with the entire Kolhapur
District as its area of operation has voting members of two
types viz. (1) individual members and (2) cooperative
societies. Being a society belonging to one of the
categories specified in section 73-G of the Act, election of
the members of its Board of Directors was held in the manner
laid down in Chapter XI-A of the Act and the rules made
thereunder in the second half of the year, 1973. In. the
said election two groups headed by Jagtap Guruji as
representing the respondents 1 and 2 who were the
petitioners in the aforesaid election petitions and the
other headed by Baba Nesarikar, who was the Managing
Director of the Sangh prior to the Election entered the
fray. In the said Election, all the three appellants in
Appeal No. 41 and all the six appellants in the sister
Appeal No. 42 were declared elected from the constituency of
individual members numbering 25000 and the constituency of
the cooperative societies affiliated to the Sangh numbering
650 respectively. Baba Nesarikar was himself returned
unopposed
52 7
from the combined constituency of individual members and
cooperative societies,Thus the Nesarikar group captured
all the seats contested by it. Aggrieved by the result
of the election in so far as it related to the aforesaid
two constituencies of individual members and the cooperative
societies, respondents 1 and 2 filed two separate election
petitions Nos. COP/81(43) and COP/81(42) under section 144-
of the Act read with Rule 74 of the Maharashtra Specified
Cooperative Societies Elections to Committees Rules, 1971
challenging the validity of the aforesaid elections to the,
Board of Directors of the Sangh. The said election
petitions though challenged on a number of grounds were
allowed by the Commissioner by his aforesaid judgment and
order on the sole ’ground that the appellants were guilty of
corrupt practice as envisaged by section 144-1(3) of the Act
in that special vehicles were hired with the knowledge and
consent of the appellants for the free conveyance of voters
from Bhawani Mandap to the polling station and back and used
as such on-the day of the poll. Section 144-1(3) of the,
Act under which the election of the appellants has been
declared void runs as follows :-
"144-
1...........................................
(3) The hiring or procuring, whether on
payment or otherwise, of any vehicle or vessel
by a candidate or his agent or by any other
person with the consent of a candidate or his
election agent, or the use of such vehicle or
vessel for the free conveyance of any elector
(other than the candidate himself, the members
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of his family or his agent) to or from any
polling station :
Provided that, the hiring of a vehicle or
vessel by an elector or by several electors at
their joint costs for the purpose of conveying
him or them to and from any polling station
shall not be deemed to be a corrupt practice
under this clause :
Provided further that, the use of any public
transport vehicle or vessel or railway
carriage by any elector at his own cost for
the purpose of going to or coming from any
polling station shall not be deemed to be a
corrupt pratice.
Explanation.-In this clause and in the next
succeeding clause, the expression "vehicle"
means any vehicle used or capable of being
used for the purpose of road transport,
whether propelled by mechanical power or
otherwise and whether used for drawing other
vehicles or otherwise."
Appearing, on behalf of the appellants, Mr. Tarkunde has
vehemently urged that on the evidence on the record, it
could not be justifiably ’held that the appellants committed
the corrupt practice imputed to them, that the Commissioner,
misdirected himself in setting aside the election of the
appellants ignoring the basic principles that in the trial
of an election petition, the burden ties heavily upon the
person who challenges the result of the election to
establish the commission by the returned candidate or his
agent of acts which he regards as corrupt and responsibility
therefor of the successful candidate
5 2 8
directly or through his agents or with his consent for its
practice not by mere preponderance of probability but by
cogent and reliable evidence beyond any reasonable doubt.
We have given our thoughtful consideration to the aforesaid
submissions of Mr. Tarkunde and are of the opinion that
there is considerable force in them. As section 144-1 of
the Act corresponds to section 123 of the Representation
of the People Act, 1951, thesame principles must
govern the adjudication of disputes relating tothe election
under the Act as it governs the adjudication of disputes in
relation to elections under the Representation of the People
Act,1951. In regard to section 123(5) of the Representation
of the People Act, 1951 which before its amendment by Act 47
of 1966 was identical in terms with section 144-1(3) of the
Act, it was held by this Court in Shri Balwant Singh v. Shri
Lakshmi Narain(1) that in Considering whether a corrupt
practice described in section 123(5) is committed, conveying
of electors cannot be dissociated from the hiring of a
vehicle.
It has also been held by this Court in Ch. Razik Ram v. Ch.
J. S. Chouhan & Ors.(2) that to establish the corrupt
practice under section 123(5) of the Representation of the
People Act, 1951, it is necessary for an election petitioner
to prove (i) that any vehicle or vessel was hired or was
procured whether on payment or otherwise by the returned
candidate or by his election agent or by any other person
with the consent of the candidate or of his election agent;
(ii) that it was used for the conveyance of the electors to
or from any polling station and (iii) that such conveyance
was free of cost to the electors. Failure to substantiate
any one of these ingredients leads to the collapse of the
whole charge. Let us now examine and scrutinize the
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evidence adduced in the case and find out whether the
aforesaid ingredients stand proved in the instant case or
not. Before doing so, it would be well to recall the
principles regarding the standard of proof required to
establish a corrupt practice which have been consistently
laid down in the decisions of this Court in Rahim Khan v.
Khurshid Ahmed & Ors.(3); Ch. Razik Ram v. Ch. J. S.
Chouhan & Ors. (supra); Hem Raj v. Ramji Lal & Anr. (4) ; Om
Prabha v. Charan Das(5); Amolak Chand Chhazad v. Bhagwandas
Arya (Dead) & Anr.(6); Lakshmi Raman Acharya v. Chandan
Singh & Ors.(7); Narendra Madivalapa Kheni v. Manikrao Patil
& Ors.(8) and Ramji Prasad Singh v. Rain Bilas Jha & Ors.
(9) which one or the other of us has been a party. In Rahim
Khan v. Khurshid Ahmed & Ors. (supra), it was observed by
this Court as under :-
(1) [1960] 3 S.C.R. 91A.I.R. 1960 S.C. 770.
(2) [19751 4 S.C.C. 769A.T.R. 1975 S.C. 667.
(3) [1975] 1 S.C.R. 643(1974) 2 S.C.C. 660 : A.I.R. 1975
S.C. 290.
(4) [1975] 4 S.C.C. 671A.I.R. 1975 S.C. 382.
(5) [1975] Supp. S.C.R. 107.
(6) [1977]3 S.C.C. 566A.I.R. 1977 S.C. 813.
(7) [1977]1 S.C.C. 423A.I.R. 1977 S.C. 587.
(8) [1977]4 S.C.C. 16A.I.R. 1977 S.C. 2171.
(9) [1977] 1 S.C.C. 260.
529
"We have therefore to insist that corrupt
practices, such as are alleged in this case,
are examined in the light of the evidence with
scrupulous care and merciless severity.
However, we have to remember another factor.
An election once held is not to be treated in
a light-hearted manner and defeated candidates
or disgruntled electors should not get away
with it by filing election petitions on
unsubstantial grounds and irresponsible
evidence, there by introducing a serious
element of uncertainty in the verdict already
rendered by the electorate. An election is a
politically sacred public act, not of one
person or of one official, but of the
collective will of the whole constituency.
Courts naturally must respect this public
expression secretly written and show extreme
reluctance to set aside or declare void an
election which has already been held unless
clear and cogent testimony compelling the
Court to uphold the corrupt practice alleged
against the returned candidate is adduced.
Indeed election petitions where corrupt
practices are imputed must be regarded as
proceedings of a quasi-criminal nature wherein
strict proof is necessary. The burden is
therefore heavy on him who assails an election
which has been concluded."
In Ch. Razik Ram v. Ch. J. S. Chouhan & Ors.
(supra) it was laid down by this Court as
follows :-
"A charge of corrupt practice is substantially
akin to a criminal charge. The commission of
a corrupt practice entails serious penal
consequences. It not only vitiates the
election of the candidate concerned but also
disqualifies him from taking part in elections
for a considerably long time. Thus, the trial
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of an election petition being in the nature of
an accusation, bearing the indelible stamp of
quasi-criminal action, the standard of proof
is the same as in a Criminal case. Just as in
a criminal case, so in an election petition,
the respondent against whom the charge of
corrupt practice is levelled, is presumed to
be innocent unless proved guilty. A grave and
heavy onus therefore rests on the accuser to
establish each and every ingredient of the
charge by clear, uneouivocal and unimpeachable
evidence beyond reasonable doubt
A charge of corrupt practice cannot be
established by mere balance of probabilities,
and, if, after giving due consideration and
effect to the totality of the evidence and
circumstances of the case, the mind of the
Court is left rocking with reasonable doubt-
not being the doubt of a timid, fickle or
vacillating mind-as to the veracity of the
charge, it must hold the same as not proved.
A court embarking upon an appreciation of
evidence, without this rudder and compass, is
apt to, find itself at sea, mistaking every
flotsam for shore, suspicion for proof and
illusion for reality."
Another principle which is also well established is that it
is unsafe in an election dispute to accept oral evidence at
its face value unless it is backed by unimpeachable and
incontrovertible documentary evidence. It would be
profitable in this context to refer to the two decisions of
this Court in Rahim Khan v. Khurshid Ahmed & Ors. (supra)
and M. Narayana Rao v. G. Venkata Reddy & Ors.(1) In Rahim
Khan v. Khurshid Ahmed & Ors. (supra), it was held as
follows
" We must emphasize the danger of believing at
its face value oral evidence in an election
case without the backing of sure circumstances
or indubitable documents. It must be
remembered that corrupt practices may perhaps
be proved hiring half-a dozen witnesses
apparently respectable and disinterested, to
speak to short of simple episodes such as that
a small village meeting took place where the
candidates accused his rival of personal
vices. There is no X-ray whereby the
dishonesty of the story can be established
and, if the Court were gullible enough to gulp
such oral versions and invalidate, elections,
a new menace to our electoral system would
have been invented through the judicial
apparatus. We regard it as extremely unsafe,
in the present climate of kilkenaycat election
competitions and partisan witnesses wearing
robesof veracity, to upturn a hard won
electroral victory merelybecause lip service
to a corrupt practice has been renderedby some
sanctimonious witnesses. The Court must look
forserious assurance, unlying circumstances or
unimpeachable documents to uphold grave
charges of corrupt practices which might not
merely cancel the election result, but
extinguish many a man’s public life."
In M. Naroyana Rao v. G. Venkata Reddy & Ors.
(supra), it was observed as follows :-
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"A charge of corrupt practice is easy to level
but difficult to prove. If it is sought to be
proved only or mainly by oral evidence without
there being contemporaneous documents to
support it, court should be very careful in
scrutinizing the oral evidence and should not
lightly accept it unless the evidence is
credible, trustworthy, natural and showing
beyond doubt the commission of corrupt
practice, as alleged."
Bearing in mind the principles quoted above, we would now
proceed to scan the evidence to find out whether it
establishes beyond reasonable doubt the ingredients of the
corrupt practice, vaguely and nebulously relied upon by the
election petitioners. Out of the seven witnesses produced
by the election petitioners, four have deposed in favour of
the appellants. Shankar Bajirao Gaikwad and Anantrao
(Yashwant Suryawanshi (P.Ws 1 & 2) who are the drivers of
the Kolhapur Municipal Transport have stated that on
November 20, 1973-the day of the poll-buses of the Kolhapur
Municipal Trans-
(1) [1977] 1 S.C.R. 490.
531
port which were taken on hire on contract basis made several
trips from the bus stand of Bhawani Mandap (where the head
office of the Sangh is situate) to Market Yard-a distance of
3 to 32-1/2 miles and back carrying people who were saying
that there was an election in the Market Yard’. These
witnesses who are independent and disinterested have
categorically affirmed in the course of their statements
that Sawant and Shinde who were present at the time of all
the trips and were seating the passengers in the, buses
"were taking money from every passenger".
Appasaheb Balwantrao Sawant (P.W. 3) and Ashok Mahadeo
Chinde (P.W. 4) who are transporters by profession have
unequivocally stated that hiring of buses by them from the
Kolhapur Municipal Transport on casual contract basis vide
applications Exhibits A-1 and A-5 dated November 19, 1973
were their own individual and personal transactions and
neither Nesarikar nor any other candidate sponsored by the
Sangh had anything to do with them; that they themselves
were present at the time of all the trips made by the said
buses from Bhawani Mandap to Market Yard and back on
November 20, 1973 and that every passenger was charged 50
paise per trip and no one was taken free of charge while
going to or returning from Market Yard.
The statement of Namdeo Govind Pawar (P.W. 5) who was serv-
ing as a clerk in the Sangh from November 4, 1964 to
November 30,, 1973 and who according to his own admission is
on friendly terms with Vishnu Bhau Patil who was set up as a
candidate for the election by Jagtap group is inter alia to
the effect that twice on the eve of the election held in
1973, he and other employees of the Sangh went about in
batches at the behest of Baba Nasarikar and Capt. Ghatge
who were Managing Director and Secretary respectively of the
Sangh ostensibly for the purpose of inspecting and auditing
the societies affiliated to the Sangh but in reality for
canvassing votes for Nesarikar group; that Nesarikar group
transported the voters on November 20, 1973 from Bhawani
Mandap to Market Yard in Kolhapur Transport Buses arranged
by it and urged them to cast their votes in favour of the
candidates put up by it. The witness has further stated
that "it was told that the money for bus should not. be
taken". The evidence of this witness about the free
conveyance of the voters from Bhawani Mandap to Market Yard
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and back is merely of a hearsay character as he has clearly
admitted that he remained all along in Bhawani Mandap and
did not go to the polling station by any of the buses
procured from the Kolhapur Municipal Transport for
transporting the voters.
Madhavrao Shripatrao Bhonsale (P.W. 6) has stated that being
an individual member of the Sangh, he was a voter for the
election which took place in the year, 1973; that the said
election was contested by two groups viz. Jagtap group and
Baba Nesarikar group-. that supporters of both the groups
were canvassing for their respective candidates; that he and
other voters went from Bhawani Mandap to Market Yard and
back in the city buses arranged by Nesarikar group:
532
that 25 to. 30 servants of the Sangh were seating the voters
in the causes and asking them to vote for the candidates of
Nesarikar group and that for the aforesaid bus travel,
"money was not taken from the voters". He has admitted that
he is in the service of the Market Committee of which
Vijayarao Yadav, who entered the election ’ray as a nominee
of Jagtap group, is a Member and his i.e. Vijayrao Yadav’s
father is the President. The testimony of this witness
being manifestly of an interested and partisan character is
not free from suspicion. That apart, the evidence of this
witness cannot be accepted it its face value for other
reasons as well. Although he has admitted that there were
30 to 40 people in the vehicle by which he was carried to
Market Yard, he has not been able to state if any person
present before the Commissioner at the time of his statement
was in that vehicle or not. It is also highly unlikely that
he should have come to Bhawani Mandap a day prior to the day
of the poll when according to his on admission, he could
have cast his vote by coming to Market Yard on the day of
poll itself and while coming from Vadgaon by any if the
routes, Market Yard comes first.
Kumbhar Ganpati Shankar who is the fast witness produced by
the election petitioners has stated that he was the
representative of Atigre Vikas Seva Society and a voter in
the constituency of the, cooperative societies; that the
election held in 1973 was contested by two groups viz.
Nesarikar group and Jagtap group; that he also fought the
election as an independent candidate; that on the day of the
Poll i.e. on November 20, 1973, be went to, Bhawani Mandap
where he found 15 to 20 employees of the Sangh seating the
voters in buses, distributing the pamphlets issued by Baba
Nesarikar group to them and familiarising them with the
names of candidates sponsored by hat group and that no,
money was demanded from or paid by the voters who were
carried in those buses to and fro the polling station. This
witness has admitted that he belongs to Atigre, residents
whereof enjoyed the facility of travel by bus to Kolhapur,
and that while so travelling one reaches Market Yard first,
then the city and then Bhawani Mandap. It is, therefore,
highly unlikely and improbable that the witness would go to
Bhawani Mandap and not direct to Market Yard which comes
first.
The evidence of the last three witnesses who have attempted
to support the election petitioners is clearly contradicted
not only by Appasaheb Balwantrao Sawant (P.W. 3) and Ashok
Mahadeo Chinde P.W. 4) but also by Shankar Bajirao Giakwad
(P.W. 1) and Anantrao Yashwant Suryewanshi (P.W. 2) who have
categorically stated hat fare at the rate of 50 paise per
trip was charged from every passanger carried by, them from
Bhawani Mandap to Market Yard and back on the day of poll
and that no, one was carried free.
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The evidence led by the election petitioners as analysed
above falls far short of the requisite proof. It does not
at all establish that vehicles were procured by the
appellants or their election agents or with the consent of
any one of them by any other person or that the same were
used for free conveyance of the voters to or fro the polling
533
station. The Commissioner manifestly went wrong in law in
his approach to and assessment of the evidence adduced in
the case and arrived at unwarranted conclusions merely on
the basis of probabilities completely disregarding the
aforementioned well settled principles that election
petitions alleging commission of corrupt practices are
proceedings of a quasi criminal nature and the burden lies
heavily on those who assail the election of a returned
candidate to, prove the charge beyond reasonable doubt. It
is also unfortunate that the Commissioner overlooked the
glaring infirmity that the, election petitions suffered from
inasmuch as they omitted to set out the material facts
constituting the corrupt practice alleged to have been
committed by the appellants and made no, mention of the
essential ingredient that the electors were conveyed free of
charge in the buses procured by the, appellants or their
election agents or some other person with their consent. It
appears, to us that in the roving inquiry that was launched
upon, the election petitioners tried to clutch at the afore-
said two applications made to the Kolhapur Municipal
Transport by Appasaheb Balwantrao Sawant (P.W. 3) and Ashok
Mabadeo Chinde (P.W. 4) and induced P.Ws 5 to 7 who appear
to be their camp followers and sympathisers to weave a story
which in view of the dictum laid down by this Court in Rahim
Khan v. Khurshid & Ors. (supra) and followed in Kanahaiyalal
v. Mannalal & Ors.(1), Amolak Chand Chhazad v. Bhagwandas
Arya (Dead) & Anr. (supra) and Mohd. Yasin Shah v. Ali
Akbar Khan(2) cannot be easily swallowed in absence of
incontrovertible evidence and contemporaneous written
complaints to the concerned authorities. May be P.Ws. 5 to
7 are not liars but, as already observed, their testimony
falls far short of the compelling degree of proof. Thus we
find it extremely difficult on the material on the record to
bold that the charge of corrupt practice levelled against
the appellants is made out. Accordingly we allow the
appeals and set aside the impugned judgment and order but
leave the parties to bear their own costs.
S.R.
Appeals allowed.
(1) [1976] 3 S.C.C. 646.
(2) [1977] 2 S.C.C. 23.
534