Rajasthan High Court - Jaipur
Smt Shanti vs Smt Durgesh Nandini And Anr on 9 August, 2017
Author: Alok Sharma
Bench: Alok Sharma
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JAIPUR BENCH
ORDER
(S.B. Civil Writ Petition No.8306/2017)
Smt. Shanti wife of Purushottam, by caste Meena, R/o Jorawarpura, Tehsil Pipalda,
District Kota, at present Sarpanch Gram Panchayat Jorawarpura, District Kota.
--- Petitioner-Non-applicant
Versus
1. Smt. Durgesh Nandini wife of Khadgendra, by caste Rajput, R/o Khedali Berisal, Tehsil
Pipalda, District Kota.
--- Non-petitioner-applicant
2. District Election Officer (Collector) Panchayat Kota.
--- Non Petitioner-Non-applicant.
Date of Order: August 9th, 2017.
PRESENT
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. S.C. Gupta, for the petitioner.
Mr. Sunil Kumar Jain] for the respondent.
Mr. Surya Prakash ]
BY THE COURT:
The petitioner-returned candidate (hereinafter `the RC') is aggrieved of the judgment dated 20-5-2017 passed by Senior Civil Judge Kota, the Election Tribunal (hereinafter `the Election Tribunal') in Election Petition No.23/2015 (11/2016), titled Smt. Durgesh Vs. 2 Shanti & Another, whereby the election petition filed by the respondent-election petitioner (hereinafter `the EP') was allowed, election of the RC as Sarpanch of Gram Panchayat Jorawarpura, Panchayat Samiti Itawa District Kota set aside and directions issued to conduct fresh election on the resultant vacant post of Sarpanch.
The facts of the case are that election for the post of Sarpanch of Gram Panchayat Jorawarpura, Panchayat Samiti Itawa District Kota was held in 1-2-2015 as per the provisions of the Rajasthan Panchayati Raj Act, 1994 (hereinafter `the Act of 1994') and the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter `the Rules of 1994') Result thereof was declared and the RC, who secured 949 votes as against 775 votes cast for the EP, was declared elected as Sarpanch. The EP then challenged the RC's election on the ground that she was not qualified for contesting the election having not passed class VIII and that the transfer certificate/ marks sheet of class VIII submitted by her along with the nomination paper were forged as apparent from the fact that mark sheet purportedly issued by Sant Ramkrishna Senior Secondary school Vigyan Nagar, Kota (SRSSS) evidencing the RC purportedly passing class VIII therefrom in 1978- 79 were not signed by the Head Master of the school nor verified by the District Education Officer or any other authorised officer of the Department of Education. The TC suffered similar anomalies. Both 3 documents were thus suspect. It was alleged that even in the Bhamashah card the RC had used her thumb impression and declared herself illiterate. So too in the bank account of the RC with the Central Bank of India, branch Itawa where the RC had put her thumb impression clearly evidencing that she was an illiterate woman. It was further stated that FIR No.47/2015 for offences under Sections 420, 467, 468, 471 and 120B IPC was lodged by the EP's husband against the RC with regard to forgery of her purported educational qualifications of class VIII pass whereupon following an investigation challan had been filed against the RC in the court of Judicial Magistrate Itawa for offences alleged.
On service of the election petition, the RC filed a reply of denial. She claimed that her putting thumb impression on the Bhamashah card and bank account did not by itself prove that she did not have the requisite minimum qualification of class VIII pass. The Returning Officer filed reply to election petition and submitted that the RC's nomination form was accepted on documents submitted before him in support thereof and that no objection with regard to the RC's alleged lack of educational qualification was made by the EP at the relevant time.
On the basis of pleadings of the parties the Election Tribunal framed five issues as under:-
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1- vk;k pquko ;kfpdk ds pj.k Øe 6¼d½ esa vafdr dkj.kksa ls izfri{kh Øe 1 Jherh "kkafr fuj{kj efgyk gS! blfy, mldk xzke iapk;r tksjkojiqjk iapk;r lfefr bVok ds ljiap in ij gqvk fuokZpu voS/k o izHkk"kqU; ?kksf'kr fd;k tk;s\ &&izkfFkZ;k 2- vk;k izkfFkZ;k xzke iapk;r tksjkojiqjk iapk;r lfefr bVkok ds ljiap in ij fuokZfpr ?kksf'kr fd;s tkus ;ksX; gS\ &&izkfFkZ;k 3- vk;k izkfFkZ;k us vizkfFkZ;k Øe 1 ds uke funsZ"ku i= dh tk¡p djrs le; fjVfuZax vf/kdkjh ds le{k izfri{kh Øe 1 ds fuj{kj gksus ds lEcU/k esa dksbZ f"kdk;r is"k ugha dh! blfy, pquko ;kfpdk lkjghu gksus ls [kkfjt gksus ;ksX; gS\ &&izfri{kh Øe 2 4- vk;k izfri{kh Øe 2 izkfFkZ;k ls fo"ks'k gtkZ 50 gtkj #i;s izkIr djus dk vf/kdkjh gS\ &&izfri{kh Øe 2 5- vuqrks'k\ The EP examined two witnesses including herself and exhibited 16 documents. The returned candidate did not produce any evidence oral or documentary.
On consideration of the evidence on issues No.1and 2 the trial court noticed Ex.13, the challan filed by the Police against the RC for offences under Sections 420, 467, 468, 471 IPC which showed that her mark-sheet (Ex.8) of passing class VIII from the SRSSS Vigyan Nagar, Kota and the Transfer Certificate (Ex.9) thereafter purportedly issued to the RC therefrom were forged. Further the letter dated 12- 3-2015 issued by the District Education Officer Kota (Ex.1) stated that as per office record there presently was no school by the name of 5 SRSSS Vigyan Nagar, Kota and further that the report of the Postman on letter addressed by his office to SRSSS Vigyan Nagar, Kota similarly indicated that no such school existed. On the aforesaid evidence and consideration of the mark-sheet and TC propounded by the RC as proof of her class VIII pass, the trial court concluded that both the mark-sheet (Ex.8) and transfer certificate (Ex.9) were false, fabricated and forged. More so the EP's substantial evidence remained uncontroverted for failure of the RC to lead any contra evidence. Resultantly the trial court held that the RC was not duly educationally qualified to contest the election to the post of Sarpanch of Jorawarpura, Panchayat Samiti Itawa, District Kota. Issues No.1 and 2 were thus decided against the RC.
Issue No.3 pertaining to the election petition itself being liable to be dismissed for reason of the EP having failed to raise any objection with regard to lack of requisite minimum qualification of the RC before the Returning Officer was decided against the RC holding that mere failure of the EP to raise such objection before the Returning Officer was not sufficient for a peremptory dismissal of the election petition.
Issue No.4 regarding RC being entitled to costs of Rs.50,000/- against the EP for the alleged false election petition was obviously 6 decided against the RC in view of finding on issues No.1 and 2. Resultantly, the EP's petition was allowed and the election of the RC to the post of Sarpanch of Jorawarpura, Panchayat Samiti Itawa District Kota was set aside.
Inevitably, this petition, impugning the trial court's judgment dated 20-5-2017.
Mr. S.C. Gupta, counsel for the RC submitted that the finding of the trial court on issues No.1 and 2 are beyond the pleadings and evidence of the EP. He submitted that the case set up by the EP was based on mere suspicion of mark-sheet (Ex.8) and transfer certificate (Ex.9) being fabricated and not on the assertion of their actual fabrication and falsity. Mr. SC Gupta submitted that the challan (Ex.13) filed by the police against the RC for offences under Sections 420, 467, 468, and 471 IPC on conclusion of its investigation that the mark-sheet (Ex.8) and TC (Ex.9) were fabricated and forged was no evidence in the eyes of law, nor could it be reckoned for in the trial court's findings. It was submitted that a "challan" is only an opinion of the Investigating Officer and not a finding of the court. In support of his contention Mr.S.C. Gupta relied on K.Veeraswami Vs. Union of India [(1991)3 SCC 655], Rajinder Singh Vs. State of UP [AIR 2007 SC 2786], Baldev Singh Vs. State of Punjab [AIR 1991 SC 31] and Dandu 7 Lakshmi Reddy Vs. State of A.P. [AIR 1991 SC 3255]. Mr. S.C. Gupta further submitted that even otherwise a finding of the criminal court has not evidentiary value in civil proceedings. In support of his contention Mr. S.C. Gupta relied on Seth Ramdayal Jat Vs. Laxmi Prasad [AIR 2009 SC 2463], Anil Behari Ghosh Vs. Smt. Latika Bala Dassi [AIR 1955 SC 566] and Shanti Kumar Panda Vs. Shakuntala Devi [(2004)1 SCC 438]. Mr. S.C. Gupta further submitted that Ex.1, i.e. the letter sent by the District Education Officer Kota to the husband of the EP one Khadgendra Sal was also of little probative worth, inasmuch as therein the District Education Officer Kota had therein only stated that the Postman had endorsed on the letter addressed by his office to SRSSS Vigyan Nagar, Kota (Ex.2) that no such school existed and further that as per the office records available no such school presently obtained. Mr. S.C. Gupta submitted that there is nothing on record to establish from the Ex.1 or for that matter the Ex.2 that SRSSS Vigyan Nagar, Kota did not exist in 1976- 77, 1977-78 and 1978-79 when the RC read there and passed class VI, VII, and VIII. Mr. S.C. Gupta then drawing on the principle that elections reflecting the popular will should not be lightly interfered submitted that elections to a public office have high sanctity and should not be set aside except where clinching evidence of high probative worth is available. And he hastened to add that such evidence is absent in the present case. The trial court having yet set 8 aside the RC's election on mere suspicion founded upon evidence of little probative worth, the illegality be corrected by this court in the exercise of its superintending jurisdiction under Article 227 of the Constitution of India and the impugned judgment be set aside.
Mr. Sunil Kumar Jain, appearing for the EP supported the impugned judgment and submitted that it is well considered and rendered on the basis of uncontroverted evidence in the form of Ex.1, Ex.2 and Ex.13. No interference therewith is warranted by this court.
Heard. Considered.
I find no force in the contention of Mr.S.C. Gupta counsel for the RC that there was no evidence of probative worth before the trial court that the RC did not have the minimum educational qualification of having passed class VIII. Ex.13 the challan submitted by the police following a detailed investigation showed that the RC had not passed class VIII from the SRSSS Vigyan Nagar Kota and both her mark-sheet (Ex.8) and TC (Ex.9) were forged and fabricated. A police report submitted to a court is a public document within the meaning of Section 74 of the Evidence Act, 1872. The contents thereof when they relate to a fact in issue before the trial court are relevant facts within Section 35 of the Evidence Act. Besides, Ex.13, the Ex.1, the letter sent by the District Education Officer Kota to 9 Khadgendra Sal husband of the EP and Ex.2, the Postman's endorsement on the letter sent to SRSSS Vigyan Nagar, Kota and returned undelivered to the District Education Officer's office were evidence as defined under the Evidence Act, 1872 of relevant facts pointing out to the non-existence of SRSSS Vigyan Nagar, Kota. As against these evidences, the RC did not lead any evidence oral or documentary before the trial court. No doubt the burden of proof in an election petition is on the EP. But once the initial burden is discharged on evidence led by the EP, the onus of proof shifts on the RC to dispel the effect of evidence brought on record prima facie making out a case against him. It cannot be the RC's case that despite not leading the best evidence in the instant case to bring before the court, the Head Master of the SRSSS School from where she claimed to have passed class VIII, or evidence of closure of the said school with reference to date of such closure and of the school being recognized when the RC purportedly studied there, she can seek dismissal of the election petition, overlooking the EP's evidence brought on record. It is on record that the RC did not have even the courage to enter the witness box or to produce any witness to lead evidence in defence of her case.
In P.C. Purushothama Reddiar Vs. S. Perumal [(1972)1 SCC 9], a three judge bench of the Apex Court had the occasion to consider a 10 contention as to whether the police report exhibited before the court was admissible in evidence despite the Head Constable, who submitted it, not being examined. In the context of the aforesaid specific question formulated, the Apex Court held that the police report having been exhibited without objection, it was admissible in evidence. And a document having been properly exhibited the contents thereof were also admissible in evidence and the court free to rely thereon. The Apex Court also specifically dealt with the relevance of such a police report in paras 21 to 24, thus:-
"21. It was lastly contended that the evidence afforded by the Police reports is not relevant. This again is untenable contention. Reports in question were made by Government officials in the discharge of their official duties. Those officers had been deputed by their superiors to cover the meetings in question. Obviously they were deputed in connection with the maintenance of law and order which is the special responsibility of the police. Hence, the question whether those reports were made in compliance with any particular provision of law is irrelevant.
22. The first part of Section 35 of the Evidence Act says that an entry in any public record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty is relevant evidence. Quite clearly the reports in question were made by public servants in discharge of their official duty.
23. The issue before the Court is whether the respondent had arranged certain election meetings on certain dates. The police reports in question are extremely relevant to establish that fact. Hence they come within the ambit of the 1 st part of Section 35 of the Evidence Act. In this connection were would like to refer to the decision of the Madras High Court in Navaneetha Krishna Thevar v. Ramaswami Pandia Thelavar [ILR 40 Mad 871]. Therein the 11 learned Judge observed thus:
"As however the case may not stop here, we think it right to allow the petitioners in civil Miscellaneous Petitions Nos.845 and 1655 of 1915 for the admission of certain documents rejected by the Subordinate Judge, namely:(1) the decree of the Zilah Court of Tinnevelly, dated May 31, 1859, in Original Suit No.4 of 1859, (2) the Takid of the Collector to the Muzumdar on the death of Raja in 1850, (3) the reply of the Muzumdar's widow as to the conduct of Maruthappa Thevar who according to the plaintiff's case was the father of Gananapurani's mother. They will accordingly be marked as Exhibits XXXIV, XXXV, XXXVI, and XXXVII respectively and incorporated in the record. The learned Advocate General did not support the exclusion of the last three on the ground that the copies of correspondence kept in the Collector's and Taluka offices were not signed but contended that they were not admissible under Section 35 of the Indian Evidence Act. We think, however, that copies of actual letters made in registers of official correspondence kept for reference and record are admissible under Section 35 as reports and records of acts done by public officers in the course of their official duty and of statements made to them, and that in the words of their Lordships in Rajah Muttu Ramalinga Setupati v. Periyanayagam Pillai [[(1874) LR1 IA 209] they are entitled to great consideration in so far as they supply information of material facts and also in so far as they are relevant to the conduct and acts of the parties in relation to the proceedings of Government founded upon them.
24. We are in agreement with the view taken by the Madras High Court in that case."
Aside of aforesaid, I have perused mark-sheet (Ex.8) and the transfer certificate (Ex.9) purportedly issued by SRSSS Vigyan Nagar, Kota in purported proof of the RC having passed class VIII in 1978- 12
79. The mark-sheet (Ex.8) does not bear any counter signature of the District Education Officer or any other officer of the Education department. It is not a printed mark-sheet of the school, but a format available in market and thereon only a rubber stamp of the purported SRSSS Vigyan Nagar, Kota has been appended. More importantly the mark-sheet does not bear the date of its issue. Similarly the transfer certificate (Ex.9) purportedly issued by SRSSS Vigyan Nagar, Kota is also a format available in market and only a rubber stamp of the school has been appended thereon. And while the RC claims to have passed class VIII from the SRSSS Vigyan Nagar, Kota in 1978-79, yet the transfer certificate was issued on 15-7-1988 after a hiatus of about 9 years. These facts in the contest of other evidences of the EP on record unquestioned by any defence evidence by the RC assumed great significance in the appreciation of evidence by the court on the test of preponderance of probabilities and its conclusion that both Exhibits 8 and 9, the mark-sheet of class VIII and TC stating to the RC having passed class VIII were forged and fabricated.
Reliance placed by counsel for the RC, Mr. S.C. Gupta on various judgments of the Apex court is misplaced. The ratios in the aforesaid judgments have little relevance to the question before this court, i.e. whether on appreciation of admissible evidence before the trial court on the standard of preponderance of probabilities the trial 13 court has committed a perversity or illegality in coming to its finding that the RC did not have the minimum educational qualification of class VIII pass from a recognized school to be eligible to contest the election to the post of Sarpanch.
Under the Evidence Act, 1872 the word "proved" is defined as "a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
With reference to the above definition, a three judgment bench of the Apex Court in Chhedi Ram Vs. Jhilmit Ram [(1984)2 SCC 281] held that under the Indian Evidence Act, a fact is said to be proved when after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. If having regard to the facts and circumstances of a case, the reasonable probability is all one way, a court must not lay down an impossible standard of proof and hold a fact as not proved. The above enunciation applies fully to the instant case where the issue before the trial court was not one of corrupt practice at an election where proof beyond reasonable doubt is 14 required, but one whether the RC had the requisite eligibility to contest the election to the post of Sarpanch, where standard of proof required was only preponderance of probabilities.
The upshot of the above discussion is that the EP proved her case, from the evidence on record laid by her i.e. Ex.1, 2 and 13 and the analysis of Ex.8 and 9. That was compounded by a complete failure of the RC to lead any defence evidence and not even entering the witness box. The trial court has committed no perversity, illegality or error of jurisdiction in concluding on its appreciation of evidence that the RC did not have the requisite minimum eligibility to contest the election to the post of Sarpanch, for reason of which her election as such was liable to be set aside.
I find no force in the petition. Dismissed.
(Alok Sharma), J.
arn/ 15 All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.