# SH. DHARMVIR v. AMAR SINGH

- **Citation:** [1996] 2 S.C.R. 156
- **Court:** Supreme Court of India
- **Decided:** 1996-02-06
- **Bench:** J.S. Verma, K.S. Paripoornan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sh-dharmvir-v-amar-singh-13896
- **Pages:** 28

## Headnote

-
The Representation of People Act, 1951:
Section 100 (l)(d)-Election-Counting process-Ballot papers-In
c favour of rival candidate-Found double marked, defaced and mutilated-Thousands of votes cancelled and rendered invalid-Returned
---.
candidate's abetment, connivance and consent proved-Benefit of wrongful
-
rejection of votes derived by returned candidate alone--Retumed candidate's
election-Materially affected by improper rejection of votes obtained by rival
candidate-Returned candidate's election declared void.
D
Section 64-A-Not applicable as it deals with a situation where the
counting of votes is not complete-Sections 123(2) and (7)-Not applicable-As it deals· with comtpt practices indulged at a stage prior to the
casting of the votes-Applicable only to pre- voting stage and not post-voting
E stage.
Sections 123(8) and 135-A(d)-Not applicable-As these were inserted
long after elections and counting were over and have no retrospective effeet-Hence reliance placed on Section JOO(l)(b) read with Sections 123(2),
(7) or (8) and 135-A(d) misplaced.
F
Section 8-A-Disqualification---High Court not competent to order disqualification of a candidate for a period of six years.
Election Petition-Trial of-Findings of fact-Based on appreciation of
oral evidence-challenge of-Appellate Cowt should not nonnally inteif ere
G with it.
Election-Inspection and sc1utiny of ballot papers-Prayer f Ol'-votes
cast-In favour of 1ival candidate-found do~ble marked, def~ced or mu ti___...
lated-Held : High Cowt rightly declined to grant the prayer.
H
Section 101-Declaration of rival candidate as elected-No evidence to
156
-
DHARMVIR v. AMAR SINGH
157
enter finding that he received majority of valid votes-Held : such declaration A
could not be granted.
The appellant's election to the State legislative Assembly was
declared void and set aside by the High Court. The appellant was further
disqualified for a period of six years from seeking election. Aggrieved by B
the High Court's judgment the appellant preferred the present appeal.
On behalf of the appellant it was contended that the various acts of
hooliganism and nefarious activities at the time of counting of the votes
were not true and had not been proved : that the statutory provisions of
Sections 100, 123(2) and 123(7) of the Representation of People Act, 1951
did not apply; that only Section 64-A of the Act was applicable; that the
High Court was totally in error in disqualifying the appellant for a period
of six years from seeking election; and that under the Statute, the power
was vested with the President to determine the question as to whether any
person should be disqualified and if so, for what period.
On behalf of the respondents it was contended that there was abundant material in the case to show that the hooliganism and goondaism
preyailed during the counting of votes at the instance of the appellant; that
the nefarious and illegal activities stood amply proved by the evidence in
c
D
the case; that Sections 123(2) and 123(7) read with Section 100(1) and E
135-A(d) of the Act amply brought out the various corrupt practices
indulged in by the appellant; that it was true that in view of Section 8-A of
the Act the question regarding determination of disqualification was left
to the President and the High Court was not justified in pronouncing on
the matter; and that the rival candidate be declared as elected.
F
Dismissing the appeal, this Court
HELD : 1.1. Under the Statute, the High Court is incompetent to
order disqualification. Section 8-A of the Representation of People Act,
1951 concludes the matter. On this ground the finding of the High Court G
that the appellant is disqualified from contesting election for a period of
six years is set aside. [169-E]
1.2. The respondents have stated the details of the various acts of
hooliganism, threat, intimidation and other nefarious activities that were
indulged in by the appellant and his henchmen at the time of counting of H
158
SUPREME CO

## Text

_Characters 0–39,803 of 67,009. This is a partial read: ask again with offset=39803 for what follows._

'
A
SH. DHARMVIR
-
v.
AMAR SINGH
FEBRUARY 6, 1996
B
[J.S. VERMA, CJ. AND K.S. PARIPOORNAN, J.]
-
The Representation of People Act, 1951:
Section 100 (l)(d)-Election-Counting process-Ballot papers-In
c favour of rival candidate-Found double marked, defaced and mutilated-Thousands of votes cancelled and rendered invalid-Returned
---.
candidate's abetment, connivance and consent proved-Benefit of wrongful
-
rejection of votes derived by returned candidate alone--Retumed candidate's
election-Materially affected by improper rejection of votes obtained by rival
candidate-Returned candidate's election declared void.
D
Section 64-A-Not applicable as it deals with a situation where the
counting of votes is not complete-Sections 123(2) and (7)-Not applicable-As it deals· with comtpt practices indulged at a stage prior to the
casting of the votes-Applicable only to pre- voting stage and not post-voting
E stage.
Sections 123(8) and 135-A(d)-Not applicable-As these were inserted
long after elections and counting were over and have no retrospective effeet-Hence reliance placed on Section JOO(l)(b) read with Sections 123(2),
(7) or (8) and 135-A(d) misplaced.
F
Section 8-A-Disqualification---High Court not competent to order disqualification of a candidate for a period of six years.
Election Petition-Trial of-Findings of fact-Based on appreciation of
oral evidence-challenge of-Appellate Cowt should not nonnally inteif ere
G with it.
Election-Inspection and sc1utiny of ballot papers-Prayer f Ol'-votes
cast-In favour of 1ival candidate-found do~ble marked, def~ced or mu ti___...
lated-Held : High Cowt rightly declined to grant the prayer.
H
Section 101-Declaration of rival candidate as elected-No evidence to
156
-
DHARMVIR v. AMAR SINGH
157
enter finding that he received majority of valid votes-Held : such declaration A
could not be granted.
The appellant's election to the State legislative Assembly was
declared void and set aside by the High Court. The appellant was further
disqualified for a period of six years from seeking election. Aggrieved by B
the High Court's judgment the appellant preferred the present appeal.
On behalf of the appellant it was contended that the various acts of
hooliganism and nefarious activities at the time of counting of the votes
were not true and had not been proved : that the statutory provisions of
Sections 100, 123(2) and 123(7) of the Representation of People Act, 1951
did not apply; that only Section 64-A of the Act was applicable; that the
High Court was totally in error in disqualifying the appellant for a period
of six years from seeking election; and that under the Statute, the power
was vested with the President to determine the question as to whether any
person should be disqualified and if so, for what period.
On behalf of the respondents it was contended that there was abundant material in the case to show that the hooliganism and goondaism
preyailed during the counting of votes at the instance of the appellant; that
the nefarious and illegal activities stood amply proved by the evidence in
c
D
the case; that Sections 123(2) and 123(7) read with Section 100(1) and E
135-A(d) of the Act amply brought out the various corrupt practices
indulged in by the appellant; that it was true that in view of Section 8-A of
the Act the question regarding determination of disqualification was left
to the President and the High Court was not justified in pronouncing on
the matter; and that the rival candidate be declared as elected.
F
Dismissing the appeal, this Court
HELD : 1.1. Under the Statute, the High Court is incompetent to
order disqualification. Section 8-A of the Representation of People Act,
1951 concludes the matter. On this ground the finding of the High Court G
that the appellant is disqualified from contesting election for a period of
six years is set aside. [169-E]
1.2. The respondents have stated the details of the various acts of
hooliganism, threat, intimidation and other nefarious activities that were
indulged in by the appellant and his henchmen at the time of counting of H
158
SUPREME COURT REPORTS
[1996] 2 S.C.R.
A
the votes. As against the positive case so pleaded by the respondents, the
sole defence put up by the appellant was one of clear denial. There are no
two versions of the incident. From the pleadings and on the basis of the
evidence on record it was clear that various acts of hooliganism and other
nefarious activities did take place and there is material to support the said
B plea. The finding arrived at by the High Court that the appellant was guilty
of corrupt practice was pure findings of fact, based on appreciation of the
oral evidence adduced in the case. Conclusion of the High Court up held.
[169-F-H, 170-A-B]
Sa1ju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh and
C Others, (1951) SC 120, relied on.
2.1. Section 64-A of the Act deals with a situation where the counting
of votes is not complete and in case the irregularities mentioned there in
should occur, the powers detailed therein can be exercised by the Election
Commission. That section has no application of the present case. Sections
D 123(2) and 123(7) are also inapplicable. Sections 123(2) and 123(7) deal
with corrupt practices indulged at a stage prior to the casting of the votes.
Similarly. Section 123(7) refers to a corrupt practice done for the furtherance of the prospects of that candidate's election. Prima facie, these
two sub-sections will apply only to pre-voting stage and not post-voting
E
stage. [181·D·E]
2.2. Reliance placed on Section lOO(l)(b) read with Sections 123(2),
(7) or (8) and 135-A(d) is also misplaced. Section lOO(l)(d) is a general
provision and does not, in terms, refer to a corrupt or fraudulent act
practised by a candidate or his henchmen at the time of counting of votes
F and its impact on the results of the election. Section 123(8) deals with
booth capturing by a candidate or his agent. The said section was inserted
long after the elections and counting in the ·instance case were over. So
Section 123(8) is inapplicable. Similarly, Section 135-A(d) has no
retrospective affect since the election and the counting of votes and the
G declaration were over long before its insertion. [181-F-G]
3.1. The provisions of Section lOO(l)(d) of the Act were clearly
attracted on the facts this case. [181-H]
The ballot papers of the rival candidate were being double mark~d,
H defaced and mutilated with the abetment, connivance and consent of the
--
DHARMVIR v. AMAR SINGH
159
appellant and it was only the appellant who could benefit by the wrongful A
rejection of the votes cast by the electors in favour of the rival candidate.
The various acts of hooliganism and other fraudulent and nefarious acts
and activities committed by the appellant have been amply proved. The plea
to the contra is repelled. The result of the election, so far as it concerned
the appellant, has been materially affected by the improper rejection of the B
votes obtained by the rival candidate attracting Section lOO(l)(d) of the
Act. (182-B-C]
3.2. When it has been found that the votes caste in favour of the rival
candidate have been double-marked, defaced or mutilated resulting in their
cancellation, no further useful purpose would be served by inspection and C
scrutiny of the ballot papers. The High Court was justified in holding that
the scrutiny cannot conclusively determine as to which ballot papers bad
been initially marked in favour of which candidate. So also the High Court
rightly held that on the basis of the evidence, a finding can.not be entered
that in fact the rival candidate received a majority of the valid votes and
so, the prayer for declaring him as elected cannot be granted.
D
(182-H, 183-A-B]
CIVIL APPELLATE JURISDICTION : Civil appeal No. 2886
(NCE) of 1989 Etc.
From the Judgment and order dated 2.6.89 of the Punjab and E
Haryana High Court in E.P. No. 7of1987.
D.V. Sehgal, U.R. Lalit, R.K. Khanna, B.S. Malik, R. Bana, Surya
Kant and Prem Malhotra for the appearing parties.
The Judgment of the Court was delivered by
PARIPOORNAN, J. These are connected cases. The main appeal is
C.A. No. 2886 of 1989. The Civil Appeals and the Special Leave Petition
F
are preferred against the Judgment of the Punjab and Haryana High Court,
Chandigarh dated 2.6.1989 rendered in E.P. No. 7of1987. The validity of
election to the Haryana Legislative Assembly held in June, 1987 for the 67 G
- Toshan Legislative Assembly seat is in issue. Civil Appeal No. 2886 of
1989 is the appeal filed by the returned candidate Shri Dhararnvir, Lokdal
(B) - first respondent in E.P. No. 7of1987 (as amended). The respondents
therein are, petitioners 1 to 3 in the election petition, respondent No. 2 in
the election petition Shri Bansi Lal (Indian National Congress) and respondents 3 to 15 in the election petition - independent candidates, who H
160
SUPREME COURT REPORTS
[1996] 2 S.C.R.
A contested the election. Petitioners 1 to 3, respondent No: 2 and respon-
-
dents 3 to 15 in the election petition are arrayed as respondents 1 to 17 in
Civil Appeal No. 2886 of 1989. In Civil Appeal No. 2888 of 1989, the
>
appellants are respondents 1 to 3 in Civil Appeal No. 2886 of 1989
(petitioners in the election petition). Special Leave Petition No. 12196 of
1989 is one filed by a person who was not a party in the High Court. The
B petitioner therein was the Returning Officer PW 9. Shri M.L. Saiwan, who,
aggrieved by certain observations made against him, has sought special
leave to appeal against the judgment dated 2.6.1989. The election petition
was one filed under Section 80 to 84 and 100 of part VI. Chapter II of the
Representation of People Act, 1951 (hereinafter referred to as the Act).
C In short, the prayer in the petition was to declare the election of the
appellant (first respondent in the election petition) to the Haryana State
Assembly from 67-Toshan Legislative Assembly seat (hereinafter referred
to as the Assembly seat) held in June, 1987 ·as void and to declare the
fourth respondent herein (respondent No. 2 in the election petition) Shri
Bansi Lal (Indian National Congress) as elected. The High Court, by a
D detailed judgment dated 2.6.1989, held that the election of the appellant to
the Assembly seat is void and set aside the same. The appellant was further
disqualified for a period of six years from seeking election from the date
the judgment came into force. It is from the aforesaid judgment, the first
respondent in the election petition (Appellant herein) has filed this appeal
under Section 116-A of the Act.
E
2. For the sake of convenience, we will refer to the parties as they
are arrayed in the appeal - Civil Appeal No. 2886of1989. The election for
the Assembly seat was held on 17.6.1987. The counting of the votes took
place on 13.6.1987. The results were declared on 19.6.1987. Shri Devi Lal,
F
leader of Lok Dal (B) party was sworn in as Chief Minister of Haryana
State on 20.6.1987. the appellant polled 32,547 votes, as against 30,361
voters polled by the fourth respondent. The invalidated votes amounted to
3,128, out of which in 2,799 votes, there was double markings in the ballot
papers. In brief, the allegations to set aside the election are that the
appellant was guilty of commission of corrupt practice of undue influence
G as envisaged by Section 123(2) of the Act by direct or indirect interference
with the free exercise of electoral right. It was alleged that with the consent
of the appellant, his counting agents started creating terror and brow
-beating and threatening with physical injuries, the counting agents of other
candidates, that the ballot papers of the fourth respondent were spoiled by
H putting unauthorised rubber stamp, (a replica of the rubber stamp
DHARMVIR v. AMAR SINGH [P ARIPOORNAN, J.]
161
authorised by the Election Commission of India for marking the ballot A
papers), marks were cast on the ballot papers, which were in favour of the
fourth respondent to invalidate the votes, that at least 10 to 15 votes of
each polling booth cast in favour of the fourth respondent were included
in the bundles of ballot papers of the appellant, that instructions were given
to the counting agents that if any interference is made in the above, the
person should be severely dealt with and notwithstanding the complaint
made to the Returning Officer (PW-9) and the Observer (PW-12), no
action was taken against the above unauthorised acts and threats, that
unauthorised rubber seals were recovered by the Returning Officer from
Table No. 1 at the instance of police and votes spoiled on Table No. 2 were
brought to the Returning Officer for being rejected as invalid, etc. but
nothing was done to put an end to the above unauthorised acts. The
Returning Officer (PW-9) was physically dealt with and the appellant was
able to obtain an order of rejection of valid votes polled in favour of the
fourth resp6i1aent as invalid with the assistance of the Returning Officer
B
c
to further the prospects of his election and it was alleged that on these D
grounds, the election is liable to be set aside under Section lOO(l)(d)(l)
and (iii) of the Act. The votes cast in favour of the fourth respondent,
which were tempered with and rendered invalid, numbered to 3138. The
counting agents of the fourth respondent were not allowed to effectively
participate during the counting and there was suspension of the ~ounting
more than once. These and other allegations, by which the appellant E
furthered his prospects to invalidate the votes cast in favour of the fourth
respondent caused rejection of valid votes cast in favour of the fourth
respondent by affixing seal, unauthorisedly, and intimidation and physical
threats were administered to PW 9 Returning Officer in the course of
counting, etc. These averments are dealt with in paragraphs 7 to 9 of the
election petition in detail (Paper book Vol. II P. 196 to 201). As against
these allegations, the defence was one of total denial to the effect that no
such incident took place.
F
3. In the light of the pleadings of the parties, the High Court
condensed the electoral controversy into eleven issues, of which Issue Nos. G
1, 2, 4, 5 and 7 are material, for the purpose of this appeal. They are as
follows:
"l.
Whether respondent No. 1, his counting agents and supporters with his consent committed corrupt practices of H
162
A
B
c
D
SUPREME COURT REPORTS
(1996) 2 S.C.R.
undue influence, by direct or ind~rect interference or any
attempt to interfere in the free exercise of the electoral rights
as detailed in paragraph 6 of the election petition?
2.
Whether respondent No. 1, his counting agents and supporters with his consent committed corrupt practices of obtaining and procuring the assistance of a Returning Officer,
for the furtherance of his election, as detailed in paragraph
7?
.
4.
Whether the Returning Officer has improperly rejected the
valid votes, polled in favour of respondent No. 2, and if so,
what is its effect?
5.
Whether the Returning Officer permitted respondent No. 1,
his agents and his supporters to physically handle the valid
votes of respondent No. 2 and to tamper with the same in
violation of the Act and the Rules?
7. Whether Form 20 has been prepared subsequent to the declaration of election result on the basis of imaginary figures and if so,
what is its effect?. "
E The findings on the above issues are summarised in the appeal petition, at
pages 108 to 110, in the following terms :
(i)
Issue No.l - the agents and supporters of the appellant with
his consent put double marks, stamps, seals or thumb impresF
sions on the votes cast in favour of respondent No. 4 thereby
invalidating the same. The appellant was found guilty of
commission of corrupt practice of undue influence under
Section 123(2) of the Act.
(ii) Issue No. 2 - the appellant, his agents and supporters manG
handled the r:!turning officer and thus.obtained/procured the
assistance of the returning officer for the furtherance of his
election prospects and thus guilty under Section 123(7) of the
Act.
(iv) Issue No. 4 - returning officer improperly rejected votes which
H
had been caste in favour of respondent No. 4.
-
-
-~
DHARMVIR v. AMAR SINGH [PARIPOORNAN, J.]
163
(v) Issue No. 5 returning officer had permitted the appellant, his A
agents and supporters to tamper with the votes in favour of
respondent No. 4. ·
(vii) Issue No. 7 - election result in Form 20 had been prepared
on the basis of imaginary figures and is thus liable to be set B
aside."
4. The petitioners in the E.P. examined 15 witnesses and the appellant-1st respondent examined 9 witnesses. While discussing the evidence in
the case, the learned Judge of the High Court dealt with the official
witnesses examined on behalf of the parties at great length. The aforesaid
witnesses are 1) PW 9 M.L. Sharwan, Returning Officer, 2) PW 10 Shri
Sunil Shourie, Police Officer who was on duty during counting of votes 3)
c
PW 11 Shri Y ashpal Sharma, Deputy Superintendent of Police, who was
posted at the time of counting, 4) PW 12 Shri R.S. Mann, I.AS., Secretary,
Transport Department, Punjab, who was deputed as observer of the Elec- D
tion Commission, and 5) RW 4 K.O. Saha, Secretary, Election Commission
of India. The appellant examined himself as RW 1. There were other
formal witnesses also. The High Court observed that the statement of PWs
10, 11 and 12 find corroboration on material particulars from the contemporaneous documents. It was held that the above witnesses are senior and E
responsible Government officers, that they are wholly independent and disinterested witnesses, that they are not in any way biased against the
appellant and are not interested in the election petitioners or the fourth
respondent, and that all the three witnesses were present in the counting
hall on duty. The corroborative materials relied on by the High Court are F
PWs 9/5 6, 7, 8 and 10, PWs 14/1 and 2, PWs 6/3-A, 3-B, 4-A, 5 and 6,.
PW 3/1, PW 8/1, PW 13/1, PW 7/1 and PW 12/1. The evidence·of PWs 10,
11 and 12 were discussed at pages 42 to 47, 47 to 50 and 50 to 65
(Paperbook Vol. I). The Court also found that the evidence of respondent
No. 7 Joint Electoral Officer, Haryana lends support to the deposition of
PW 12. Similarly, the statements of PWs 8, 13, 14 and 15 were referred to G
show that they corroborate the statements of PWs 10, 11 and 12 (Paperbook Vol. I page 66). The evidence of PW 9 the Returning Officer was
examined at great length (pages 67 to 77 of Paperbook vol.I) and the Court
observed that his statement does not inspire confidence and that while
appearing as witness he was under great "pressure". The Court also ob- H
164
SUPREME COURT REPORTS
[1996] 2 S.C.R.
A
served that PW 9 has made a very crude attempt to help the returned
candidate (appellant) and it is difficult to believe an officer belonging to
the State Civil Services and of his standing, will be coerced and pressurised
to create documentary evidence for the success in an election petition. The
Court was also of the view that PW 9 was trying to get .out of the admissions
B · in his report. Ext. PW 9/6, which are demaging to the case of the appellant.
It was concluded that PW 9 is a self-confessed liar and that he had himself
prepared incorrect reports and ante-dated them and no reliance can be
placed on his statement made in Court. While discussing the evidence of
the defence, at pages 78 to 84, the Court stated that the defence evidence
is of negative nature and flies in the face of very cogent, convincing and
C blemishless evidence of PWs 10, 11 and 12, that the defence evidence
cannot be accepted in preference to the evidence of PW 10, 11 and 12, that
the facts and circumstances disclosed in the case run counter to the
statements of RW 4, Secretary, Election Commission of India, that the
report stated to have been submitted by him regarding his observation to
D the Chief Election Commission of India was not produced nor was available, that the evidence of RW 4 cannot be accepted in preference to the
statements of PWs 10, 11and12 and has to be rejected.
5. On an analysis of the evidence in the case, the Court entered the
E following findings :
F
G
H
"From the evidence of PWs. 10, 11 and 12 and the documents
referred to above, it is established that the supporters of Lok Dal
(B) candidates had created an atmosphere of awe, terror and
hooliganism in the counting hall during the very first round of
counting. Shr! Sat Pal respondent No. 15 and his counting agent
Diwan Singh were given beatings. The earthen pitchers were
broken, furniture was scattered and the counting agents of the
Congress (I) candidate were terrorised. Most of these counting
agents left the counting hall. The counting hall had been surrounded by supporters of Ch. Dharamvir respondent No. 1. Many
of them were armed with lethal weapons. They were not permitted
easy egress or ingress to the counting hall. Even the members of
the police party who were deputed to bring back the agents of the
Congress (I) candidate could get out of the hall only with great
difficulty. The mob did not permit the return of the counting agent
DHARMVIR v. AMAR SINGH [P ARIPOORNAN, J.]
165
of the Congress (I) candidate through two valiant efforts in this A
behalf were made by the jawans of the CRPF. During the process
of counting, duplicate markings were being put on the ballot papers
which had been cast by the electors in favour of Ch. Bansi Lal the
Congress (!) candidate. Thousand of votes were thus cancelled as
invalid. According to Shri R.S. Mann (PW12) on such ballot papers B
bearing multiple marking there was visibly clear stamp mark plf.t
against the Congress (!) candidate, while the second mark or thumb
impression or stamp impression was put against several other
candidates. Counterfeit stamps were recovered from the counting
hall. The Lok Dal (B) candidate was constantly moving from one
table to another carrying whispering conversation giving clear impres- c
sion that whatever was happening had his approval and was being
monitored by him. At about 11.00/11.15 a.m. Shri Shourie and Shri
Sharma Noticed a person sitting on a table at the end of the left row
aff1Xing stamps and def acing the ballot papers. They proceeded
towards that table. That person, on seeing them, threw the stamp D
on the floor Ch. Dharamvir respondent No. 1 who was standing
there, put his foot on the stamp. This clearly establishes that the
ballot papers of the Congress (I) candidates were being double
marked. Def aced and mutilated with the abetment, connivance and
consent of Ch. Dharmvir respondent No. 1. As the result indicates E
the contest was only between respondent No. 1 and respondent
No. 2. The remaining candidates had obtained very few votes. They
were present in the counting hall and were aware of this fact. None
of them could gain by spoiling the vote of respondents No. 2. It
was only respondent No. 1 who could benefit by the wrongful rejection of the votes cast by the electors in favour of respondent No. 2.
The counting agents of respondent No. 2 were not being permitted
to come to the counting hall so that the illegal activities of the Lok
F
Dal (B) candidate's agents should go on unhindered and unnoticed. Shri Sarwan in his first report Ext. PW 6/5 has clearly
written that he received complaints regarding the use of marking G
stamps on ballot papers. He verified this fact from various counting
supervisors and found that supervisors on tables No. 6 and 13 had
been using stamps (for double marking). He further stated that the
counting agents were being abused and coerced and they were
helpless and could not count the votes properly. He had found a H
A
B
c
D
E
F
G
H
166
SUPREME COURT REPORTS
[1996] 2 S.C.R.
stamp pad being used by counting agents for putting thumb impressions on the ballot papers and getting them cancelled. He
found that a substantial number of votes of C01zgress (I) candidates
was cancelled and that had resulted for systematic defacement of the
. ballot papers by the counting agents. His report Ex. PW 916 bristles
with the sordid details of the nefarious happenings in the counting
hall. The report opens with a lament that there is an abnormal
increase in the deliberate cancellation of votes of Congress (I)
candidate by various mischievous counting agents who had marking
stamps in their possession and had succeeded in spoiling ballot
papers in favour of Congress (I) candidate. Even the additional
supervisors deputed to oversee the counting of votes have also
become silent spectators because of the coercive methods being
deployed by the counting agents of opposition candidates (Respondent No. 1 was in real sense the opposition candidate against Ch.
Bansi Lal). He has given an instance that 200 votes out of 676 votes
of table No. 12 had been cancelled. He conceded that he was
unable to carry on the counting. He also observed that any such
trend of cancellation of votes for 8 Bhiwani Parliamentary Constituency was not there. He further stated that the counting supervisors on the various tables felt a sense of insecurity while counting
votes. They informed Shri Sarwan that they were helpless in view
of the menace of spoiling the genuine votes polled in favour of the
Congress (I) candidate~ He concluded that no free, fair and proper
counting of votes could be done. This was the view of the counting
supervisors and counting assistants and Shri Sarwan was also of
the same view. This document had come into existence at 2.00 a.m.
on June 19, 1987. On receipt of this, Shri K.C. Saha, Secretary,
Election Commission passed order Ex. PW 9/7 ~d directed that
counting may be temporarily suspended until 8.00 a.m. on June 19,
1987 and the counting must resume at 8.00 a.m.
Matter does not rest there. Ch. Dharamvir respondent No. 1
his election agent Pawan Kumar and his supporters threatened,
intimidated and even physically assaulted Shri Sarwan the Returning officer, when the latter directed that 150 to 200 votes of
Congress (I) candidates which had been but up for rejection before
him on account of multiple marking, be not rejected and be
credited to the Congress (I) candidate. More about it later. How-
-
DHARMVIR v. AMAR SINGH [PARIPOORNAN, J.]
167
ever, this fact also indicate that the double markings defacement A
and mutilation of ballot papers cast in favour of Congress (I)
candidate was done under the inspiration, with the abetment and
consent of Ch. Dharamvir respondent No. l."
(Emphasis supplied) B
6. Discussing the evidence of the defence, the Court held thus :
"In view of the above discussion, I hold that the agents and
supporter of Ch. Dharamvir respondent No. 1 with his consent and
connivance, put double marks, stamps, seals or thumb impressions C
on the valid ballot papers cast by the electors inf av our of Ch. Bansi
Lal, respondents No. 2 and as a result of this double marking, the
ballot papers were rejected. Ch. Dharamvir respondent No. 1 thus,
indirectly interfered with the free exercise of electoral rights of the
electors of 67 Toshan Assembly constituency and he is guilty of D
commission of corrupt practice of undue influence as defined in
Sub-section (2) of Section 123 of the Act. Issue No. 1 is therefore,
decided in favour of the petitioners and against respondent No. 1
I also hold that Ch. Dharamvir, his election agents Shri Pawan
Kumar and his supporters had manhandled and physically asE
saulted Shri M.L. Sarwan who is a Gazetted Officer in the service
of the State of Haryana when he (Shri Sarwan) directed that 150
or 200 ballot papers which have been put up before him for
rejection on the ground that they were bore multiple marking, be
counted in favour of the Congress (I) candidate and when he p
refused to entertain the application moved by Ch. Dharamvir,
respondent No. 1, for recount. As a result of this intimidation, Shri
Sarwan, Returning Officer, gave in and begged pardon and
promised that he would do what they wanted and thereafter he
continued initialling the ballot papers which were brought before
him for cancell~tion on the grounds of multiple markings. Thus G
Ch. Dharamvir, respondent No. 1, obtained/procured the assistance of Shri M.L. Sarwan for the furtherance of his election
prospects and he is guilty of the corrupt practice of obtaining/procuring the assistance of a gazetted officer within the meaning of sub section (7) of sections 123 of the Act. Issue No. 2 is H
A
B
c
D
E
F
168
SUPREME COURT REPORTS
[1996] 2 S.C.R.
thus, decided in favour of the petitioners and against respondent
No. 1.
xx
xx
xx
xx
It is evident from the statement of Shri M.L. Sarwan {PW 9)
that Part II of more than 50 forms 16 was blank and that the
account of votes counted relating to the polling booths was not
entered therein. The result in Form-20 is tabulated from the entries
in Part 11 of Form-16. Substantial number of these forms did not
have any entries of the votes counted. So, it can safely be held that
the election result in Form-20 had been prepared on the basis of
imaginary figures and is thus liable to be set aside. Thus issue No.
7 is decided in favour of the petitioners and against respondent
No. l.
{Emphasis supplied)
7. On the basis of the above findings. the Court concluded thus:
" ...... .I allowed this petition with costs and hold the election of Ch.
Dharamvir respondent No. 1 to the Haryana State legislative
Assembly from 67 Toshan Assembly Constituency to be void and
set aside they same. I further hold Ch. Dharamvir respondent No.
1 to be disqualified for a period of six years from seeking election
from.the date this order comes into effect. Respondent No. 1 shall
bear the costs of the petitioners, which are assessed at Rs. 5,000."
8. We heard Mr. R.K. Khanna, Advocate, who appeared for the
appellant and Mr. D.V. Sehgal, Senior Advocate, appeared for the fourth
respondent.
9. The appellant's counsel raised three main pleas. They are: (i) The
various acts of hooliganism and nefarious activities at the time of counting
of the votes, as stated in the election petition, are not true and have not
G been proved; (ii) The statutory provisions relied on section 123{2), section
123(3) or section 100 of the Act may not apply. It is only Section 64-A of
the Act, which is applicable to the facts disclosed in the case; and (iii) The ,
High Court was totally in error in disqualifying the appellant for a period
of six years from seeking election. Under the Statute, the power is vested
H with the President to determine the question as to whether any person
•
--·
DHARMVIR v. AMAR SINGH [PARIPOORNAN,J.]
169
should be disqualified and if so, for what period.
A
10. On the other hand, counsel for the respondents submitted his
reply to the above three pleas as hereunder. Counsel for the respondents
urged (i) there is abundant material in the case to show that the
hooliganism and goondaism prevailed during the counting of votes at the B
instance of the appellant and the nefarious and illegal activities alleged in
the election petition stand amply proved by the evidence in the case, more
particularly by the evidence afforded by the responsible officers and contemporaneous documents, (ii) Sections 123(2) and 123(7) read with Sections 100(1) and 135-A( d) amply bring out the various corrupt practices
indulged in by the appellant and his henchmen and the High Court was C
justified in holding so, and (iii) It is true that in view of Section 8-A of the
Act (enacted by Act 40of1975 with effect from 6.8.1975), that the question
regarding determination of disqualification is left to the President and the
High Court was not justified in pronouncing on the matter.
D
11. It is common ground that the High Court was not justified in
disqualifying the appellant for a period of six years from seeking election.
Under the Statute, the High Court is incompetent to order disqualification.
Section 8-A of Act 43/51 as amended by Act 40 of 1975 concludes the
matter. On this ground, the finding of the High court that the appellant is
·disqualified from contesting election for a period of six years should be set E
aside. We hereby do so.
12. Now we are concerned only with the first two points urged on
behalf of the appellant. Regarding the first point, we have to say, at the
outset, that the petitioner has stated the details of the various acts of F
hooliganism, threat, intimidation and other nefarious activities that were
indulged in by the appellant and his henchmen at the time of counting of
the votes in paras 7 to 9 of the election petition. As against the positive
case so pleaded by the petitioners in the election petition, the sole defence
put up by the main respondent in the election petition (appellant herein) G
was one of clear denial. In other words, there are no two versions of the
incident. In these circumstances, the only question that arises for consideration is, whether the incident, as alleged by the petitioners in the
election petition, stands proved. The High court has accepted the evidence
tendered by the petitioners in this regard and entered appropriate findings
holding that the appellant and his supporters put double markings, stamps, H
170
SUPREME COURT REPORTS
[1996) 2 S.C.R.
A seals or thumb impressions on the votes cast in favour of respondent No.
4 thereby invalidating the same. The High Court has also held that the
appellant, his agents and supporters manhandled the returning officer
(PW-9) and procured the officers assistance for the furtherance of his
election prospects, the Returning Officer improperly rejected the votes cast
B in favour of the fourth respondent and permitted the appellant and his
supporters to stamp the votes cast in favour of the fourth respondent. The
findings arrived at by the High Court have been extracted by us in paragraph 3 (supra). The findings so entered are pure findings of fact, based
on appreciation of the oral evidence adduced in the case. The golden rule
to be observed by the appellate court when findings of fact are challenged
C has been succinctly stated by this Court in Sarju Prasad Ramdeo Sahu v.
D
E
F
G
H
Jwaleshwali Pratap Narain Singh and Others, AIR (1951) SC 120. Delivering
·the judgment of the Bench, B.K. Mukherjee, J., at page 121 (para 7) stated
the law, thus :
"The question for our consideration is undoubtedly one of fact, the
decision of which depends upon the appreciation of the oral
evidence adduced in the case. In such cases, the appellate court has
got to bear in mind that it has not the advantage which the trial
Judge had in having the witnesses before him and of observing the
manner in which they deposed in court. This certainly does not
mean that when an appeal lies on facts, the appellate court is not
competent to reverse a finding of fact arrived at by the trial Judge.
The rnle is and it is nothing more than a rnle of practice that when
there is conflict of oral evidence of the parties on any mater in issue
and the decision hinges upon the credibility of the witnesses, then
unless there is some special feature about the evidence of a particular
witness which has escaped the trial Judge's notice or there is a
sufficient balance of improbability to displace his opinion as to
where the credibility lies, the appellate court should not interfere
with the finding of the trial Judge on a question of fact : vide Lord
Atkin's observations in WC. Macdonald v. Fred Latimer, AIR 16
(1929) PC 15 at p. 18): (112 I.C. 375). The gist of the numerous
decisions on the subject was clearly summed up by Viscount
Simon in Watt v. Thomas, (1947) AC 484 at p. 486: (1947-1 All
E.R. 582), and his observations were adopted and reproduced in
extenso by the Judicial Committee in a very recent appeal from
the Madras High Court: vide Veeraswami v. Talluri Narayya, AIR
•
--
.-
-
DHARMVIR v. AMAR SINGH [PARIPOORNAN,J.]
171
36 (1949) PC 32 (ILR 1949 Mad. 487). The observations are as A
follows:
"But if the evidence as a whole ca~ reasonably be regarded as
justifying the conclusion anjved at the tria4 and especially if,
that conclusion has been ar.ri\'.{ld at on conflicted testimony
by a tribunal which saw and h~ard the witnesses, the appelB
late court will bear in mind that it has not enjoyed this
opportunity and that the view of the trial Judge as to where
credibility lies is entitled to great weight. This is not to say
that the Judge of first instance can be treated as infallible in
determining which side i~ telling the truth or is refraining C
from exaggeration. Like other tribunals, he may go wrong on
a question of fact, but it is a cogent circumstance that a Judge
on first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of
appeal) of having the witnesses before him and observing the
manner in which their evidence is given."
D
(Emphasis supplied)
The same principle has been restated in Madhusudan Das v. Smt. Narayani
Bai and Others, AIR 1983 SC 114. This Court observed thus in paragraph E
8 of the jupgment :
·
" .......... .it would be right to refer to the general principle that, in
an appeal against a trial court decree, when the appellate court
considers an issue turning on oral evidence it must bear in mind
that it does not enjoy the advantage which the trial Court had in F
having the witnesses before it and of observing the manner in which
they gave their testimony. When there is a conflict of oral evidence
on any matter in issue and its resolution turns upon the credibility
of the witnesses, the general rule is that the appellate court should
permit the findings of fact rendered by the trial court to prevail G
unless it clearly appears that some special feature about the
evidence of a particular witness has escaped the notice of the trial
court or there is a sufficient balance of improbability to displace
its opinion as to where the credibility lies. In this connection,
reference may usefully be made to W.C Macdonald v.
Fred
Latimer, AIR (1929) PC 15, 18 whether the Privy council laid down H
172
A
B
c
D
SUPREME COURT REPORTS
[1996) 2 S.C.R.
that when there is a direct conflict between the oral evidence of
the parties, and there is no documentary evidence that clearly
affirms one view or contradicts the other, and there is no sufficient
balance of improbability to displace the trial court's findings as to
the truth of the oral evidence, the appellate. court can interfere
only on very clear proof of mistake by the trial court. In Watt v.
Thomas, (1947) AC 484, 486 it was observed: " ......... .it is a cogent
circumstance that a Judge of first instance, when estimating the
value of verbal testimony, has the advantage (which is denied to
courts of appeal) of having the witnesses before him and observing
the manner in which their evidence is given." This was adverted to
with approval by the Privy Council in Sara Veeraswami v. Tallwi
Narayya (deceased), AIR 1949 PC 32, and found favour with this
Court in Sarju Prashad v. Raja Jwaleshwmi Pratap Narain Singh,
[1950] SCR 781, 783=AIR (1951) SC 120 at p. 121. It seems to us
that this approach should be placed in the forefront in considering
whether the High Court proceeded correctly in the evaluation of
the evidence before it when deciding to reverse the findings of the
trial court. The principle is one of practice and governs the weight
to be given to a finding of fact by the trial court.. .... "
13. It will be useful to refer to the relevant statutory provisions relied
E on by the counsel for the parties before we adjudicate as to whether the
findings arrived at by the High Court in any way call for our interference,
The relevant statutory provisions are Sections 64-A(l), lOO(l)(b) and (d),
123(2), 123(7), 123(8) and 135-A of the Act, which read thus :
F
G
H
"64-A. Destruction loss, etc.