# D. D. PAWAR v. P. R. JAGTAP

- **Citation:** [1978] 2 S.C.R. 524
- **Court:** Supreme Court of India
- **Decided:** 1978-01-13
- **Case number:** Civil Appeals Nos. 41 and 42 of 1977
- **Bench:** Y. V. Chandrachud, V. ·R. Krishna Iyer, Jaswant Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/d-d-pawar-v-p-r-jagtap-7412
- **Pages:** 10

## Headnote

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Election Petition-Corrupt practice as envisaged by
S.
144-!(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.
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 individu3.l members numbering 25000 and the constituency of the cooperative societies affiliated
to the Sangh numbering 650 respectively.
Baba Nesarikar '\Vas himself returned
unopposed from the combined constituency of individual members and cooperative societies. The Nesarikar gioup captured all the
seats contested by
it.
Respondents 1 and 2 filed tv;,ro separate election petitions under s. 144-T of the
Act read with Rule 74 of the Maharashtra Specified Cooperative Societies Elections to Committees Rules, 1971, challenging the validity of the elections on a
number ot grounds. The Commissioner Pune, by his common judgment and
order dated December 16, 1975, allowed them on the sole
ground
that the
appellants v..1ere guilty of corrupt practice as envisaged by Section 144-1(3) ot
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 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-BJ
(ii) This Court bas laid down the following principles and tests under S. 123
of the Representation of the People Act, 19 51
(a)
(b)
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]
Ba/want Singh v. Lakshmi Narain [1960] 3 S.C.R. 9l=AIR 1960
S.C. 770 applied.
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 cost
to the electors. Failure to substantiate any one of these ingredients
leads to the collapse of the whole charge. [528 C·D]
'
•
D. D. PAWAR V. P. R. JAGTAP
525
Ch. Razik Ram Vs. Ch. J. S. Chauhan & Ors. [1975] 4. S.C.C.
A
769=A.i.R. 1975 S.C. 667 (Applied).
(c) The stanOard of proof required to establish a corrupt practice
is
strict proof, the proceedings against imputation of corrupt practices,
being quasi-criminal. [529 CJ
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.
B
J. S. Chauhan & Ors. [1975] 4 S.C.C. 769= A.J.R. 1975 S.C. 667;
Hem Rai v. Ramii Lal & Anr. [19751 4 S.C.C. 671=A.I.R. 1975
S.C. 382; Om Prabha v. Charan Das [1975]

## Text

524
A
DADA_SAHEB DATTATRAYA PAWAR & ORS.
1'.
PANDURANG RAOJI JAGTAP & ORS.
January 13, 1978
B
(Y. V. CHANDRACHUD, V. ·R. KRISHNA IYER & JASWANT SINGH, JJ.J
c
D
E
F
G
H
Election Petition-Corrupt practice as envisaged by
S.
144-!(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.
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 individu3.l members numbering 25000 and the constituency of the cooperative societies affiliated
to the Sangh numbering 650 respectively.
Baba Nesarikar '\Vas himself returned
unopposed from the combined constituency of individual members and cooperative societies. The Nesarikar gioup captured all the
seats contested by
it.
Respondents 1 and 2 filed tv;,ro separate election petitions under s. 144-T of the
Act read with Rule 74 of the Maharashtra Specified Cooperative Societies Elections to Committees Rules, 1971, challenging the validity of the elections on a
number ot grounds. The Commissioner Pune, by his common judgment and
order dated December 16, 1975, allowed them on the sole
ground
that the
appellants v..1ere guilty of corrupt practice as envisaged by Section 144-1(3) ot
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 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-BJ
(ii) This Court bas laid down the following principles and tests under S. 123
of the Representation of the People Act, 19 51
(a)
(b)
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]
Ba/want Singh v. Lakshmi Narain [1960] 3 S.C.R. 9l=AIR 1960
S.C. 770 applied.
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 cost
to the electors. Failure to substantiate any one of these ingredients
leads to the collapse of the whole charge. [528 C·D]
'
•
D. D. PAWAR V. P. R. JAGTAP
525
Ch. Razik Ram Vs. Ch. J. S. Chauhan & Ors. [1975] 4. S.C.C.
A
769=A.i.R. 1975 S.C. 667 (Applied).
(c) The stanOard of proof required to establish a corrupt practice
is
strict proof, the proceedings against imputation of corrupt practices,
being quasi-criminal. [529 CJ
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.
B
J. S. Chauhan & Ors. [1975] 4 S.C.C. 769= A.J.R. 1975 S.C. 667;
Hem Rai v. Ramii Lal & Anr. [19751 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.l.R.
1977 S.C.
813;
Lakshmi
Raman
Aclrarya v. Chandan Singh & Ors. [1977] 1 S.C.C. 423=A.l.R. 1977
S.C. 587; Narendra Madivalapa Klkeni v. Manikrao Patil & Ors.
[1977] 4. S.C.C. 16=A.l.R. 1977 S.C. 2171; Ramii Prasad
Singh
v.Ram Bilas Iha & Ors. [1977] I. S.C.C. 260, applied and
C
(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.
f430 Al
Rahim Khan v. Khurshid Ahmed & Ors. [1975] 1 S.C.R.
643=
[1974] 2 S.C.C. 660=A.1.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 petitioners falls far
short of the requisite proof. It does not at all establish that vehicles
were
procured by the appelfants 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 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; and (iii) The Commissioner overlook the glaring infirmity that the election petitions suffered from,
inasmuch as they (the election petitioners) omitted to set out the material facts
constituting the corrupt J?factice alleged to have been comD_litted 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 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-El
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. Manna/al & Ors. [1976] 3
S.C.C. 646; Amolak Chand Clihazad v. Bhagwandas Arya (dead) & Anr. 119771
3 S.C.C. 566=A.l.R. 1977 S.C. 813; Mohd. Ya.,i11 Shah v.
Ali Akbar Khan
[1977] 2 S.C.C. 23 followed .
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 PetiD
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tion No. C.O.P./81 ( 43) and C.0.P,/81 ( 42).
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V. M. Tarkunde, (Miss) Manik Tarkunde, D. M. Rane and K.
Rajendra Chaudhuri, for the Appellants.
A
526
SUPREME COURT REPORTS
[1978] 2 S.C.R.
Y. S. Chitale, V. N. Ganpule and (Mrs.) V. D. Khanna for Respondent No. 1 in both the appeals.
P. If. Parekh and Kai/ash Vasdev for Respondent No. 5 in both.
the appeals.
B
. V. D. Khanna for Respondents 12 in C.A. 42 and R. 18 in Ct\.
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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, 197 5 made by the Commissioner, Pune, Division Poona,
in Election Petitions Nos. COP/81(43) and COPi81(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 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 Kolhapur 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 categori~s 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 lhe year, 1973.
In the said election two
groups--0ne 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
•
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D. D. PA WAR v. P. R. JAGTAP (Jaswant Singh, !.)
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-T
of the Act read with Rule 7 4 of the Maharashtra Specified Cooperative Societies Elections to Committees Rules, 1971 challenging the vaLdity 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 gronnd that the appellants were guilty of corrupt
practice as envisaged by section_l44-I(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 nuder 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 candicjate 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 candid_ate himself,
the members 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
\vhether used for drawing other vchdes 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 :lield that the appellants committed the corrupt practice im- ·
puted to them; that the Commissioner, misdirected himself in setting
aside the election of ihe appellants ignoring the basic principles that
in the trial of an election petition, the burden lies 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 successf)1l candidate
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528
SUPREME COURT REPORTS
[1978] 2 S.C.R.
directly or through his agents or with his consent for its practice not
by mere preponderance of probability but by cogent and reliable e\'ldence 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-I of the Act corresponds to
section 123 of the Representation of the People Act, 1951, the same
principles must govern the adjudication of disputes relating to
the
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
tem1s, with section 144-J ( 3) of the Act, it was held by this
Court
in Shri Ba/want Singh v. Shri Lakshmi Narain(') that in considering
whether a corrupt practice described in section 123(5) is committed,
conveying of elecfors cannot be dissociated from the hiring of a vehicle.
It has also been held by this Court in Ch. Razik Ram v. Ch. !. S.
Chauhan & Ors.(') that to establish the corrupt practice under section 123(5) of the Representation of the People Act, 1951, it is
D '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
E
the whole charge.
Let us now examine and scrutinize the evidence
adduced in the case and find out whether \he 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 J.).roOf 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. Chauhan & Ors. (supra); Elem
F
Raj v. Ramji Lal & Anr.(4); Om Prabha v. Charan Das(5); Amolak
Chand Chhazad v. Bhagwandas Arya (Dead) & Anr.( 6); Lak.<hmi
Raman Acharya v. Chandan Singh & Ors. (7); Narendra Madivalapa
Kheni v. Manikrao Patil & Ors.( 8) and Ramii Prasad Singh v. Rlim
Bi/as Jha & Ors.(•) which one or the other of us has been a party. In
Rahim Khan v. Khurshid Ahmed & Ors. (snpra), it wa·s observed by
this Court as under :-
(I) [1960J 3 S.C.R. 91 : A.T.R. 1960 S.C. 770.
(2) [1975] 4 S.C.C. 769 : A.l.R. 1975 S.C. E67.
(3) [1975] 1 S.C.R. 643 : (1974) 2 S.C.C. 660 : A.LR. 1975 S.C. 290.
(4) [1975] 4 S.C.C. 671 : A.T.R. 1975 S.C. 382.
(5) [1975! Supp. S.C.R. 107.
(6) [1977] 3 S.C.C. 566 : A.T.R. 1977 S.C. 813,
(7) [1977! 1 S.C.C. 423 : A.l.R. 1977 S.C. 587.
(8) [1977] 4 S.C.C. 16 : A.l.R. 1977 S.C. 2171.
(9) [1977] l s.c.c. 260,
•
D. D. PAWAR v. P. R. JAGTAP (Jaswant Singh, !.)
529
•.
"We have therefore to insist that corrupt practices, such
as ure 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. Chauhan & 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 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 crimina,J 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 esta:·
blish each and every ingredient of the charge by clear, unequivocal and unimpeachable evidence beyond reasonable doubt.
A
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A charge of corrupt practice cannot be established by a
mere balance of probabilities, and, ,if, after giving due consiG
deration 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,
w1thou~ this rudder and compass, is apt to find itself at sea,
H
llllstakmg every flotsam for shore suspicion for proof and
illusion for reality."
'
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SUPREME COURT REPORTS
(1978] 2 S.C.R.
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)
aud M. Narayana Rao v. G. Venkata Reddy & Ors.(')
In Rahim
Khan v. Khurshid Ahmed & Ors. (supra), it was held as follows :--
"W c must emphasize the danger of believing at its face
value oral evidence in an election case without the backing
of snre 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 robes of veracity, to upturn a hard won electroral
victory merely because lip service to a corrupt practice has
been rendered by some sanctimonious witnesses. The Court
must look for serious 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. Narayana Rao v. G. Venkata Reddy & Ors. (supra), it was
observed as follows :-
"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."
G
Bearing in mind the principles qnoted above,
we would
now
/
proceed to scan the evidence to find out whether it establishes beyond
reasonable donbt the ingredients of the corrupt practice vaguely and
nebnlously relied upon by the election petitioners.
Out of the seven
witnesses produced by the election petitioners, four have deposed in
favonr of the appellants.
Shankar Bajirao Gaikwad and
Anantrao
,i.J
1Yashwant Suryawanshi (P.Ws 1 & 2) who are the drivers
of the
H
Kolhapur Municipal Transport have stated that on November 20,
1973-the da[_ of the poll-buses of the Kolhapur Municipal Trans-
(!) [19771 I S.C.R. 490.
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D. D. PAWAR v. P. R. JAGTAP (Jaswant Singh, !.)
531
port which were taken on h're 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 3 t miles and back
'carrying people who were saying that ,there was an election in the
Market Yard'. Th,ese 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 individnal and personal transactions and neither N esarikar 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 serving 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 lo the effect that twice on the eve of
the election held in 1973, he and ot'her 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
~stensibly for the purpose of inspecting and auditing the societies affiliated to the Sangh but in reality for canvassing votes for N esarikar
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 and back is merely of a hearsay character
as he has cle"!lY admitted that h~ remained all along in Bhawani
Mandap and did not go to the pollmg sta,tion by any of the buses
procured from the Kolhapur Municipal Transport for transporting the
voters.
A
B
c
D
E
F
G
_M'8;d~avrao Shripatrao Bhonsale (P.W. 6) has stated that being
an .md1V1dual member of the Sangh, he was a voter for the electio;
which took place in the year, 1973; that the said election was contested by two groups viz. Jagtap group and Baba Nesarikar group;
that ~upporters of both the groups were canvassing for their respective · H
candidates; that he and. other ~oters went from Bhawani Mandap to .
Market Yard and back m the city buses arranged by Nesarikar group;
A
B
D
E
F
G
H
532
SUPREME COURT REPORTS
(1978] 2 S.C.R.
that 25 to 30 servants of the Sangh were seating the voters in the
buses 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
fray 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
at 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 qwn 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
of the routes, Market Yard comes first.
Kumbhar Ganpati Shankar who is the last 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 candid•ate; that on the day of the poll
i.e. on November 20, 1973, he 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 Nesarikllr group to them
and familiarising them with the names of candidates sponsored by
that 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 Surycwanshi (P.W. 2)
who have categorically stated
ihat fare at the' rate of 50 paise per trip was charged from every
passanger carried by them from Bll'awani Mandap to Market Yard
and back on the day of poll and that no one was carried free.
The evidence led by the election petitioners as analysed above
falls far short of the requ;site 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
D. D. PAWAR v. P. R. JAGTAP (Jaswant Singh, J.)
533
station. The Commissioner manifestly went wrong in Jaw
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
n:vaterial 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 aforesaid two applications made to the Kolhapur Municipal Transport by
Appasaheb Balwantrao Sa want (P.W. 3) 'and Ashok Mahadeo 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(') 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 hold 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.
(l) 11976] 3 s.c.c. 646.
(2) [1977] 2 s.c.c. 23.
Avpeals a/lowed.
A
B
c
D