# 14 (ADDL.) S.C.R. 348 GOVIND SINGH v. HARCHAND KAUR

- **Citation:** [2010] 14 S.C.R. 348
- **Court:** Supreme Court of India
- **Decided:** 2010-11-22
- **Case number:** Civil Appeal No. 2719 of 2006
- **Bench:** J.M. Panchal, Gyan Sudha Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/14-addl-s-c-r-348-govind-singh-v-harchand-kaur-26485
- **Pages:** 55

## Headnote

Representation of the People Act, 1951:
s. 123(1) r/w s. 100 (1) (b) ands. 83 - Corrupt practice -
Election of returned candidate as MLA to the State legislative
Assembly from reserved constituency - Challenged to on the
ground of indulgence in corrupt practice -
High Court
declaring election as void and set aside the same -
D Sustainability of - Held: Not sustainable - Any act performed
by a candidate prior to his becoming a candidate would not
amount to indulgence in corrupt practice - Corrupt practice
of bribery would be attracted only if such act had been
committed by a candidate after filing of his nomination paper
- However, if any illegal act was done by a candidate prior to
E
his filing of nomination which was not within the legal discharge
of duty, it would amount to corrupt practice ....: It cannot be said
that the election petition was fit to be rejected for the lack of
material facts and material particulars - Returned candidate
F
resigned as Social Security Minister and thereafter, filed
nomination -
Distribution of pension to old age/widow!
handicapped persons by returned candidate in discharge of
official duty as Minister as also appointment of some ladies
as Anganwadi workers when the returned candidate was
Social Security Minister, before filing his nomination, would
G not amount to indulgence in corrupt practice - Also he cannot
be instrumental in appointing applicants as Anganwadi
workers when he had ceased to be a Minister and had filed
his nomination -
As regards distribution of pension
H
348
GOVIND SINGH v. HARCHAND KAUR
349
immediately prior to the date of polling, the competent A
authorities did not support the case of defeated candidate that
the returned candidate committed any illegality - Evidence
of the competent authorities for distribution of pensionindependent witness more reliable than the prosecution
witnesses-interested witnesses - Charge of corrupt practice B
was to be proved beyond reasonable doubt and not merely
by preponderance of probabilities - Evidence relied upon by
the High Court cannot be held to be of such probative value
- Witnesses relied upon by the High Court not credible -
Thus, order passed by the High Court set aside - Election c
laws - Evidence - Conduct of Election Rules, 1961 - r. 94A.
Election laws: Election of a returned candidate -
Challenged - Allegation of corrupt practice - Onus of proof
- Held: Charge of corrupt practice is in nature of a quasiD
. criminal charge - Heavy onus lies on the election petitioner
seeking the setting aside of the election of a successful
candidate and, thus, he has to make out a clear case for such
relief both in the pleadings and at the trial - Onus of proof is
not discharged merely on preponderance of probabilities but E
the standard of proof required is akin to that of proving a
criminal or a quasi-criminal charge - Evidence Act, 1872.
Words and phrases: Material facts and material
particulars - Meaning of.
F
The election of MLA to the State Legislative
Assembly was to be held on 13.02.2002. The appellant
resigned as Social Security Minister on 12.01.2002 and
became a candidate for the election on 23.01.2002 by
filing his nomination as an independent candidate. G
Thereafter, the appellant was declared elected. The
respondent-defeated candidate filed an election petition
challenging the election of the appellant-returned
candidate alleging illegal acts of omission and
H
350
SUPREME COURT REPORTS [2010) 14 (ADDL.) S.C.R.
A
commission at the instance of the appellant which
amounted to indulgence in corrupt practice against him
within the meaning of Section 123(1) read with Section
100 (1) (b) of the Representation of the People Act, 1951.
The High Court declared the election of the appellant as
B MLA to the Punjab Legislative Assembly from the
reserved Assembly Constituency as void and set aside
the same. Therefore, the appellant filed the instant appeal.
Allowing the appeal, the Court
C
HELD: 1. In view of the unsatisfactory analysis of

## Text

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A
B
c
[2010] 14 (ADDL.) S.C.R. 348
GOVIND SINGH
v.
HARCHAND KAUR
(Civil Appeal No. 2719 of 2006)
NOVEMBER 22, 2010
[J.M. PANCHAL AND GYAN SUDHA MISRA, JJ.)
Representation of the People Act, 1951:
s. 123(1) r/w s. 100 (1) (b) ands. 83 - Corrupt practice -
Election of returned candidate as MLA to the State legislative
Assembly from reserved constituency - Challenged to on the
ground of indulgence in corrupt practice -
High Court
declaring election as void and set aside the same -
D Sustainability of - Held: Not sustainable - Any act performed
by a candidate prior to his becoming a candidate would not
amount to indulgence in corrupt practice - Corrupt practice
of bribery would be attracted only if such act had been
committed by a candidate after filing of his nomination paper
- However, if any illegal act was done by a candidate prior to
E
his filing of nomination which was not within the legal discharge
of duty, it would amount to corrupt practice ....: It cannot be said
that the election petition was fit to be rejected for the lack of
material facts and material particulars - Returned candidate
F
resigned as Social Security Minister and thereafter, filed
nomination -
Distribution of pension to old age/widow!
handicapped persons by returned candidate in discharge of
official duty as Minister as also appointment of some ladies
as Anganwadi workers when the returned candidate was
Social Security Minister, before filing his nomination, would
G not amount to indulgence in corrupt practice - Also he cannot
be instrumental in appointing applicants as Anganwadi
workers when he had ceased to be a Minister and had filed
his nomination -
As regards distribution of pension
H
348
GOVIND SINGH v. HARCHAND KAUR
349
immediately prior to the date of polling, the competent A
authorities did not support the case of defeated candidate that
the returned candidate committed any illegality - Evidence
of the competent authorities for distribution of pensionindependent witness more reliable than the prosecution
witnesses-interested witnesses - Charge of corrupt practice B
was to be proved beyond reasonable doubt and not merely
by preponderance of probabilities - Evidence relied upon by
the High Court cannot be held to be of such probative value
- Witnesses relied upon by the High Court not credible -
Thus, order passed by the High Court set aside - Election c
laws - Evidence - Conduct of Election Rules, 1961 - r. 94A.
Election laws: Election of a returned candidate -
Challenged - Allegation of corrupt practice - Onus of proof
- Held: Charge of corrupt practice is in nature of a quasiD
. criminal charge - Heavy onus lies on the election petitioner
seeking the setting aside of the election of a successful
candidate and, thus, he has to make out a clear case for such
relief both in the pleadings and at the trial - Onus of proof is
not discharged merely on preponderance of probabilities but E
the standard of proof required is akin to that of proving a
criminal or a quasi-criminal charge - Evidence Act, 1872.
Words and phrases: Material facts and material
particulars - Meaning of.
F
The election of MLA to the State Legislative
Assembly was to be held on 13.02.2002. The appellant
resigned as Social Security Minister on 12.01.2002 and
became a candidate for the election on 23.01.2002 by
filing his nomination as an independent candidate. G
Thereafter, the appellant was declared elected. The
respondent-defeated candidate filed an election petition
challenging the election of the appellant-returned
candidate alleging illegal acts of omission and
H
350
SUPREME COURT REPORTS [2010) 14 (ADDL.) S.C.R.
A
commission at the instance of the appellant which
amounted to indulgence in corrupt practice against him
within the meaning of Section 123(1) read with Section
100 (1) (b) of the Representation of the People Act, 1951.
The High Court declared the election of the appellant as
B MLA to the Punjab Legislative Assembly from the
reserved Assembly Constituency as void and set aside
the same. Therefore, the appellant filed the instant appeal.
Allowing the appeal, the Court
C
HELD: 1. 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, no conclusive inference could be drawn that the
respondent-defeated candidate who had secured only
D third position in the election succeeded in proving the
charge of corrupt practice against the appellant-returned
candidate and the same at best could be held to be
based on allegations which desperately required
unimpeachable evidence of trustworthy nature adduced
E
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
F
held to be of such probative value. It does 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 was elected. Thus, the judgment and order
of the High Court is set aside. [Para 67] [401-G-H; 402-AI G C]
.
.
2.1. 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,
the mandate of the people in a democracy as expressed
H by the result of the election must prevail and be
GOVIND SINGH v. HARCHAND KAUR
351
respected by the courts and, therefore, heavy onus lies A
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
pleadings and at the trial. The onus of proof is not
discharged merely on preponderance of probabilities but s
the standard of proof required is akin to that of proving
· a criminal or a quasi criminal charge. The electoral
process in a democracy undoubtedly is too sacrosanct.
to be permitted ()r allowed t() be polluted by corrupt
practice and if the court arrives at a finding of commissi<)n c
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 would be declared to be void
since the underlying principle is that the corrupt practice 0
having been committed, the result of the election does
not echo the direct voice of the people. [Para 31] [377-GH; 378-A-D]
R. P. Moidutty vs. P. T. Kunju Mohammad & Anr. 2000
(1) sec 481 - relied on.
E
2.2. A charge of corrupt practice is in the nature of a
quasi-criminal charge, as its consequence is not 9nly to
render the election of the returned candidate void but in
some cases (as in the instant one) might incur F
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 G
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. In the case of an election petition, H
352
SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A
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 proof is on the
candidate who alleges corrupt practice and that burden
B
does not shift. 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
c the record to rebut the case of the petitioner and
particularly Rrove such facts which are within the special
knowledge of the elected candidate. [Para 48] [390-C-H;
391-A]
Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe
D
1995 (5) SCC 360; Niha/ Singh v. Rao Birendra Singh & Anr.
1970 (3) SCC 239, Om Prabha Jain v. Charan Das 1975 (4)
SCC 849, Dau/at Ram Chauhan v. Anand Sharma 1984 (2)
SCC 64; ·Quamarul Islam v. S.K. Kanta 1994 Supp (3) SCC
5; Surinder Singh v. Hardial Singh 1985 (1) SCC 91; S.
E
Harcharan Singh v. S. Sajjan Singh 1985 (1) SCC' 370 .;...
F
Referred to.
3.1. As regards, the preliminary objection as to
whether the election petition filed by the respondent was
to be dismissed on the ground of the lack of material
facts and material particulars, if the election petition fails
to disclose any cause of action and there is noncompliance of the mandatory requirements of Section 83
of the Representation of the People Act 1951 which
requires that the election petition should contain material
G facts on which the petitioner relies, it should set forth full
particulars of any corrupt practice including full statement
of the names of the parties which is alleged to have been
committed alongwith the specific date and place of the
commission of such corrupt practice. Although the
H expression 'material facts' has neither been defined in the
GOVIND SINGH v. HARCHAND KAUR
353
Act of 1951 nor in the Code of Civil Procedure, it has been A
understood by the courtS in general terms to mean the
entire bundle of facts which would constitute a complete
cause of action. [Para 37] [381-D-G]
3.2. Material facts are facts upon which the plaintiff's B
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. Particulars,
on the other hand, are details in support of material facts C
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 0
take the opposite party by surprise. [Para 38] [382-G-H;
383-A-D]
.
3.3. The respondent categorically stated the date, time
and place of occurrence of the alleged corrupt practice
at the instance of the appellant and also gave out the E
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 F
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, ~9uld'.noft>e' -
~
· legally correct and justifi~d._Jfuv+tigh C.ourt in the G
impugned judgment-and-oroer did not even address the
issue as to whether the petition was fit to be rejected for
want of material facts and material particulars or not, but
the counsel for the appellant seems to have acquiesced
with the same. However, since the counsel for the parties H
..
354
SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.
A addressed this Court on the said issue which is clearly
in the nature of a preliminary objection, it is just and
appropriate to deal with this issue but for the reasons
stated it cannot be said that the election petition was fit
to be rejected for lack of material facts and material
8
particulars. [Para 40] [384-A-F]
Mahadeorao Sukaji Shivankar Vs. Ramaratan B_apu and
Ors. 2004 (7) SCC 181; Ram Sukh v. Dinesh Aggarwal 2009
(10) SCC 541, 548; Anil Vasudev Salgaonkar v. Naresh
Kushali Shigaonkar 2009 (9) SCC 310, Ananga Uday Singh
C Deo v. Ranga Nath Mishra & Ors. 2002(1) SCC 499; Azhar
Hussain v. Rajiv Gandhi 1986 (Supp) SCC 315; Ram
Sharan Yadav v. Thakur Muneshwar Nath Singh, 1984 (4)
SCC; Mohan Rawale v. Damodar Tatyaba @ Dadasaheb,
1994 (2) SCC 393, Mahadeorao Sukaji Shivankar v.
D Ramaratan Bapu and Ors. 2004 (7) SCC 181; Regu Mahesh
v. Rajendra Pratap Bhanj Dev AIR 2004 SC 42 - referred
to
4.1. Any act performed by a candidate prior to his
E becoming a candidate would not amount to "indulgence
in corrupt practice. 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. However, it cannot be endorsed that
even if any illegal act was done by a candidate prior to
F
his filing of nomination which was not within the legal
discharge of duty, would not amount to corrupt practice
so as to protect himself from the charge of corrupt
practice. [Paras 43 and 46] [387-A-C; 389-B-D]
G
4.2. On a careful analysis of the case and counter
case of the appellant-returned candidate and the
respondent-defeated candidate, 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
H relates to the distribution of pension which pertains to the
GOVIND SINGH v. HARCHAND KAUR
355
period prior to 12.1.2002 and the second part pertains to A
three dates which is 10/11112.2.2002 when the appellant
was a candidate for the election but was no longer a
Minister so as to distribute old age widow/handicapped
pensions. In factual aspects of the matter this clearly
indicates that even if the plea of the respondent - election B
petitioner with regard to the allegation of distribution of
pension amounting to corrupt practice which pertained
prior to the period of January 12.01.2002 is taken into
consideration, the same cannot, by any legal yardstick or
even ordinary prudence, constitute indulgence in corrupt . c
practice by the appellant a.s he was duly holding the
portfolio of Social Security Minister who had the legal .
authority to approve distribution of pension as part of his
official ·duty. The distribution of pension to the eligible
persons in the constituency or even outside the 0
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/ E
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. [Para 43] [386-D-H; 387-A-C]
Mohan Rawa/e v. Damodar Tatyaba @ Dadasaheb 1994
(2) SCC 392; Kona Prabhakara Rao v. M. Seshagiri Rao
1982 (1) sec 442 - referred to.
F
4.3. Sanction and approval for grant of pension as a G
Social Security Minister clearly would be within the ambit
of the authority of the Minister to get it distributed, as not
distributing the pension while discharging the functions
of a Minister would on the contrary amount to nonperformance on the part of the Minister in the State wh!ch H
356
SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A
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
B
contest and the same would amount to offer or promise
of any gratification, would be wholly unrealistic and a far
fetched allegation. 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
c 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. The appellant in discharge of his
0
official duty distributed, sanctioned, approved or
permitted the grant of old age/widow/handicapped
pension prior to the filing of his n_omination, it cannot be
construed as indulgence in corrupt practice and thus, he
cannot be held to have committed corrupt practice if he
had distributed pension amount even in his constituency
E
upto 12.01.2002 which was clearly within his legal and
official domain as he was not a candidate in the election.
[Paras 45 and 46] [388-C-H; 389-8-E]
4.4. The respondent - election petitioner also alleged
F
that even after filing his nomination on 23.01.2002 and
immediately before the date of polling on 13.2.2002, the
appellant went 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 would have
G a serious bearing on the allegatio11 of corrupt practice
against the appellant in case it is held to be proved, since
the distribution of money under the garb of pension
immediately prior to the date of polling, would have to be
treated clearly and unambiguously as corrupt practice
H
GOVIND SINGH v. HARCHAND KAUR
357
within the meaning of Section 123 of the Act of 1951. This
A
serious allegation would 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
B
practice. [Para 47] [389-F-H; 390-A-B]
4.5. As regards the allegation of appointment of some
ladies as Anganwadi workers, even if the Anganwadi
workers were appointed in the year 2001, the same C
cannot clearly be held to be illegal as the appellant was
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
D
the candidate in the election. 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. The appellant could not be
held to be instrumental in appointing the applicants as
E
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
F
nomination on 23.1.2002. [Para 64] [399-F-H; 400-A-C]
4.6. Serious infirmities and inconsistencies were
noticed in the evidence of PW-9, PW-10 and PW-11 relied
upon by the High Court in support of the case of the G
respondent. These witnesses could not be treated as
independent and trustworthy witnesses as against PW 1Child Development Project Officer; PW 2- Superintendent
Social Security in the office of District Programme Office;
PW 4- Assistant Manager, State Bank of Patiala; PW 5H
358
SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.
A District Social Security Officer; PW 6-C.D.P.O. Block and
PW 7-C.P.D.O. Block, who were the competent authorities
to sanction the pensions 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
B a candidate in the election, so as to brush aside their
evidence and prefer to rely upon the evidences of PW 9,
PW 10 and PW 11 which were extremely shaky,
subjective and fragile. The High Court clearly mixed up
the alleged charge of corrupt practice which pertains to
c the period prior to the filing of nomination of the appellant
which was on 25.1.2002 and 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
0 three witnesses only whose testimony were neither
independent nor free from inconsistencies and at the
most were general in nature. [Para 65] [400·0-H]
4.7. On a threadbare scrutiny of the evidence, the
election of the appellant could not have been set aside
E only on the testimony of PW 9, PW 10, PW 11 who 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 did not lead
to the irresistible conclusion that the appellant had
F 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
G 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
H
GOVIND SINGH v. HARCHAND KAUR ·
359
no reason for the appellant to ensure compliance of A
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
B
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, thus, ensuring compliance of formality of
filling up pension forms with the aid of PW 10- Sarpanch c
by pressurizing him to fill up pension forms made no
sense or reason so as to prove the charge of illegal
distribution of pension amounting to corrupt practice.
[Para 66] [401-A-F]
Ramakant Mayekar v Celine D'Silva (1996) 1 SCC 399;
D
M. Chinnasamy v K. C. Palanisamy (2004) 6 SCC 341;
Subhash Desai vs. Sharad J. Rao AIR 1994 SC 2277 -
referred to.
Case Law Reference:
E
2009 (10) sec 541, 548
Referred to.
Para 21, 35, 36
2009 (9) sec 310
Referred to.
Para 21, 35
2002(1 > sec 499
Referred to.
Para 21, 23, 35
F
1986 (Supp) sec 315
Referred to.
Para 21, 35
1996 (1) sec 399
Referred to.
Para 23·
2004 (6) sec 341
Referred to.
Para 23
AIR 1994 SC 2277
Referred to.
Para 30
G
2000 (1) sec 481
Relied on.
Para 31
2004 (7) sec 181
Referred to.
Para 38, 39
H
360 SUPREME COURT REPORTS [2010] 14 (ADDL.} S.C.R.
A
1994 (2) sec 393
Referred to.
Para 44
1982 (1) sec 442
Referred to. Para 45
1995 (5) sec 360
Referred to. Para 48
B
1910 (3) sec 239
Referred to. Para 48
1975 (4) sec 849
Referred to.
Para 48
1984 (2) sec 64
Referred to.
Para 48
1994 Supp (3) sec 5
Referred to.
Para 48
c
1985 (1) sec 91
Referred to.
Para 49
1985 c1) sec 310
Referred to.
Para 49
CIVIL APPEL,.lATE JURISDICTION : Civil Appeal No.
D 2719 of 2006.
From the Judgment & Order dated 28.4.2006 of the High
Court of Punjab & Haryana at Chandigarh in Election Petition
No.22 of 2004.
E
Vijay Hansaria, K.S. Sidhu Sneha Kalita, Ritesh Ratnam,
F
Jawahar Lal, Amit Kumar for the Appellant.
·
Kamini Jaiswal, Abhimanue Shrestha for.the Respondent.
The Judgment' of the Court was delivered by
GYAN SUDHA MISRA, J. 1. 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
G 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 82Sherpur (S.C.) Assembly Constituency was declared void and
H
GOVIND SINGH v. HARCHAND KAUR
361
[GYAN SUDHA MISRA, J.]
hence was set aside awarding a cost of Rs.50,000/- to the
A
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
B
polling, she challenged the election of the appellant alleging
corrupt practice against him within the meaning of Section 123
(1) (A) of the Act of1951.
3. The essential details of the Election petition which
formed the basis of challenge to the election of the appellant,
C
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 Puojab to constitute the Punjab Legislative Assembly. The
appellant-Govind Singh, at the relevant time was functioning as
D
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
E
election from the said Assembly Constituency. The Election
Commission published the election schedulewhich 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 . F
for withdrawal of candidature would be January 28, 2002 after
which the poll was to be held on February 13, 200:2 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
G
nominations for contesting the election for the reserved 82Sherpur (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.
H
362
SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A
5. The election to the concerned constituency was held as
per schedule on 13th 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
B 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
c whose favour 19439 votes had been polled. The total number
of votes polled was admittedly 90882 in the Assembly
Constituencywhere 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
D 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
E 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
F 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 challenging the
G 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/
H handicapped pensions in favour of the residents of Sherpur
GOVIND SINGH v. HARCHAND KAUR
363
[GYAN SUDHA MISRA, J.]
Constituency and this was clearly with a view to secure votes
A
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
8
of his Constituency employed as Anganwadi Workers for the
C
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
a!ongwith the true translated copy of one such appointment
D
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.
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
E
F
a victorious candidate. Elaborating further on this aspect, the
G
respondent lierein 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
H
364 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A 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
B 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.
c
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 his
supporters indulged in corrupt practice and offered bribery in
D 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 13th Februa..Y. 2002 deserves to be quashed and set
E 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
F
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
G 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
tt:ie affidavit had not been filed in support of the allegations of
.H
I•
GOVIND SINGH v. HARCHAND KAUR
365
[GYAN SUDHA MISRA, J.]
'
corrupt practice, in terms of the requirements of the Act of1951.
A
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 I 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
B
12, 2002. The appellant submitted that the sanction or release
of pensions was done by the District level authorities and the
appellant who was then a Minister at the most, had
recommended ac6eptance which was always subject to the
legal norms for such pension. It was further stated that all the c ·
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
D
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
F
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
G
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 in paras No. 12,13,14,17,18, 19, 20,
H
A
B
c
D
E
F
366
SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
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?
G
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
H Section 100 (1) (b) of the Act of 1951 wherein 'bribery' has
GOVIND SINGH v. HARCHAND KAUR
367
[GYAN SUDHA MISRA, J.]
been considered to be a corrupt practice i.e. any gift, offer or
A
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
B
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 c
or any other person with the consent of the returned candidatethe 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
0
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
elecforate in his constituency to vote for him so as to bring it
within the ambit and scope of corrupt practice laid down under
E
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 of ladies were recruited
as fresh Anganwadi Workers for a specific period by the
F
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
G
the Election petition therefore scrutinized the oral evidence led
by the contestirlg 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
H
368 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.
A payment of pension to bribe the voters. The learned Judge went
on to record tliat 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
s payment of cash named a·s 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 ;., the
submission of the election petitioner-the respondent herein to
the effect that the case concerning corrupt practices had been
c 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
0 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 123 (1) (A) of
the Act. The money in the name of pension was presented as
E 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.