Karnataka High Court
A. Devegowda vs Puttanna And Ors. on 23 May, 2005
Equivalent citations: 2005(6)KARLJ311, AIR 2006 (NOC) 219 (KAR), 2005 A I H C 4600 (2005) 6 KANT LJ 311, (2005) 6 KANT LJ 311
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. Shylendra Kumar, J.
1. This election petition presented under Section 81 of the Representation of the People Act, 1951 (for short, 'the Act'), by an unsuccessful candidate in the biennial elections held to elect a representative to represent Bangalore Teachers' Constituency in the Karnataka Legislative Council, prays for a declaration that the election of first respondent, who has been declared elected from this constituency, is void and illegal, for not only having received void voters in his favour but also for having indulged in corrupt practices during the election and to further declare the petitioner as duly elected for the seat from the Bangalore Teachers' Constituency to the Karnataka Legislative Council. Petitioner has also prayed for awarding costs.
2. While the grounds urged in support of the petition for setting aside the election of first respondent are as contemplated in Section 100(l)(b) and also as provided for in Section 100(l)(d), particularly Clauses (i), (ii) and (iii) of this sub-section, and the petitioner has sought for a declaration that the election of the returned candidate is void, the petitioner has also sought for a further prayer to declare him to be the duly elected person in place of first respondent, particularly invoking the provisions of Section 101(b) of the Act.
3. Petition averments indicate that there were eleven candidates who had aspired for being declared elected from this constituency; that the system of voting is by single transferable preferential vote; that the returned candidate in terms of the certificate in Form 23 issued by the Returning Officer on 25-6-2002 giving the details of the pattern of voting and the voters secured by the candidates, indicates that at the end of the tenth round of counting, while the petitioner had managed to secure in all 3194 votes and was the last person i.e., tenth person to be eliminated, the first respondent - the winning candidate - had secured a total number of 3771 votes and was accordingly declared elected by the Returning Officer. The elections themselves were conducted on 23-6-2002 and the result was declared on 26-6-2002, while the notification notifying the calendar of events was issued on 29-5-2002. The calendar of events indicated that the nominations could be filed from 29-5-2002 and the last date for filing nominations was 5-6-2002, scrutiny was on 6-6-2002, last date for withdrawal was on 8-6-2002 and the polling was on 23-6-2002, as stated above.
4. While the returned candidate figures as first respondent, the other candidates in the fray figure as respondents 2 to 10 to the election petition. The election petition was presented on 9-8-2002 at 4.00 p.m. before the Registrar (Judicial) in the High Court. Summons were issued to the respondents on 13-8-2002.
5. The first respondent-returned candidate - on being served, has entered appearance through his Counsel and has contested the petition.
6. The first respondent has filed his written statement and had come up with an application in LA. No. I of 2002, for striking out the pleadings.
7. Amongst the other respondents, while ninth respondent was represented by a Counsel, no written statement was filed. Rest of the respondents though served, have remained unrepresented and have not contested the petition. The contest in effect is between the petitioner and the first respondent.
8. Learned Counsel for the petitioner on having taken time to file objections to LA. No. I for striking out pleading, has filed such objections. Sri G.V. Shantharaju, learned Senior Counsel, appearing for the first respondent and Sri Shivanand, learned Counsel for the petitioner, were heard on LA. No. I of 2002 and in terms of order passed on 22-7-2003, paragraphs 8, 9, 10, 11, 12, 13 and 14 containing the averments relating to improper reception of votes and such improper reception of votes having materially affected the outcome of the election, were ordered to be struck off. What really survived for consideration in this petition are the averments in paragraphs 15 and 16, relating to the allegation of corrupt practices.
9. In the light of the surviving averments of the petition in terms of the order dated 22-7-2003, and the averments made in the written statement, this Court framed the following issues on 14-8-2003:
1. Whether the petitioner proves that the first respondent has committed corrupt practice of bribery by distributing the hot cases and ball pens to the voters to vote for him, within the meaning of Section 123(1) of the Representation of the People Act, 1951?
2. Whether the petitioner proves that the corrupt practice of bribery is committed by the respondent's supporters with his consent by distributing hot cases and ball pens to the voters to vote for respondent 1?
3. Whether the petitioner proves that the election of 1st respondent is liable to be set aside under Section 100(l)(b) of the Representation of the People Act, 1951 and the petitioner is entitled to be declared as duly elected under Section 101 of the Representation of the People Act, 1951?
10. Parties went to trial on these issues. On behalf of the petitioners as many as 13 witnesses were examined, petitioner figuring as P.W.4, and as many as 4 documents - Exs. P. 1 to P. 24 were marked. First respondent has examined himself as D.W. 1 and no documents have been exhibited.
11. The only real issue that had survived in this election petition was as to whether the petitioner was able to bring home the allegation of corrupt practice of bribery by distribution of certain inducements such as hot cases and ball pens, to the voters by the first respondent to get their votes, and if so, as to whether the election of first respondent was liable to be set aside in terms of the provisions of Section 100(l)(b) of the Act.
12. At the conclusion of the recording of evidence and when the matter was taken up for arguments, Sri G.V. Shantharaju, learned Counsel for the first respondent, has raised a preliminary objection that even on a perusal of the averments made in paragraphs 15 and 16 of the election petition, relating to allegation of corrupt practices, and on which averments issues had been framed and parties had gone to trial, and contended that the averments in paragraph 15 lacked material facts as is required under Section 83(l)(a) of the Act; that the contents of paragraph 15 viz., that the first respondent along with his supporters had visited the residences and schools of the voters and while seeking their support and vote in his favour, had distributed hot cases and ball pens to the voters with the inscription: "With compliments from Puttanna" to them also did not provide full particulars of both Clauses (a) and (b) to Sub-section (1) of Section 83 of the Act and as such, the election petition was liable to be summarily dismissed. It is the specific argument of Sri G.V. Shantharaju, learned Counsel for the first respondent, that in the absence of full particulars such as place, time and date of committing of alleged corrupt practice and the averments not having named the persons who in effect had received the inducements such as gift articles either from the first respondent or his agents, the petition clearly lacks the full particulars contemplated in Clause (b) of Sub-section (1) of Section 83 of the Act.
13. The question is as to whether for examination of this contention, the evidence let in by the parties has to be looked into or even without examining such evidence, if the question can be answered in favour of the first respondent as to whether the petition could be dismissed as one not conforming to the requirement of Section 83 of the Act i.e., the argument was that if the petition lacks proper plea in terms of Section 83 of the Act itself, the question of making good the plea through supporting evidence does not arise at all. If this argument is to be accepted, then the evidence let in an behalf of the petitioner assuming that it is supportive of the plea, will not in any way further the petition averments. It is in this context Sri G.V. Shantharaju, learned Senior Counsel has placed reliance on the decision of the Supreme Court in the case of Daulat Ram Chauhan v. Anand Sharma . However, learned Counsel for the first respondent has also submitted arguments, touching upon the quality of evidence let in by the petitioner, that it is not trustworthy; that such evidence cannot be believed; that the petitioner has failed to cogently and categorically establish that the first respondent had in fact indulged in any corrupt practice; that the petitioner has miserably failed to prove beyond reasonable doubts the incidents of corrupt practice allegedly indulged in by the first respondent or his supporters; that the degree of proof required for proving a plea of corrupt practice in an election petition for setting aside the election of returned candidate is the same as in a criminal case; that the petitioner in this case has miserably failed to prove the alleged corrupt practice.
14. It is to be borne in mind that the parties had gone through the process of striking out the pleadings as contemplated under the provisions of Order 6, Rule 16 of the Code of Civil Procedure, 1908 and the petition averments as of now and on which the parties went to trial were those averments which had remained, after this Court had passed orders on the application filed under Order 6, Rule 16 of the CPC. In this regard, Sri G.V. Shantharaju, learned Counsel for the first respondent very fairly submitted that the stage of striking out the pleadings was over and argument made is not one for striking out the remaining pleadings, but the argument is only to demonstrate that the pleadings that survive now in the petition, particularly the pleading relating to allegation of corrupt practice failed to conform to the requirement of Section 83 of the Act, as that is the only ground on which the election petition had remained and survived for consideration and also that it lacked the full particulars of such corrupt practice as is contemplated in Clause (b) of Sub-section (1) of Section 83 of the Act and that the election petitioner has failed to satisfy both the requirements viz., the requirement of the petition pleadings containing concise statement of material facts and the further requirement of setting forth the full particulars of any corrupt practice, including the date and place of commission of each such corrupt practice.
15. While it is true that an election petition should definitely contain material facts and also particulars of corrupt practice against a returned candidate if one is alleged, it is not necessary that what can be established by letting in evidence also should have been pleaded. The distinction between the plea and the evidence should always be borne in mind and if the petition contains plea which can roughly conform to the requirement of Clause (b) of Sub-section (1) of Section 83 of the Act, then, it becomes necessary for the Court to evaluate the evidence that is placed before the Court in support of such plea and to arrive at a decision on the petition in the light of supporting evidence placed by the parties before the Court.
16. Paragraph 15 of the election petition reads as under:
"15. The petitioner submits that the 1st respondent has also committed corrupt practice of bribery within the meaning of Section 123(1) of the Representation of the People Act, 1951. The petitioner submits that on 21st and 22nd June, 2002 after the campaigning period came to an end, the 1st respondent along with his supporters went to the residence and the schools of the voters where they were working in the guise of soliciting votes either in the morning, during evening and during working hours of the school, distributed hot cases and ball pens to the voters which were carrying inscription "with compliments from Puttanna" to woo them. The 1st respondent has purchased multi colour hot cases of Cello brand work of Rs. 103/- and luxer ball pens worth Rs. 60/- were being distributed to woo the voters in the aforesaid election. The petitioner's political party i.e., Karnataka Pradesh Congress Committee had complained to the Election Commission of India through Chief Electoral Officer in Karnataka about the said distribution of hot boxes and luxer ball pens on 22-6-2002. The copy of the said complaint is produced herewith and marked as Annexure-K. Similarly, one Sri Rangaswamy has filed a complaint before the jurisdictional Kamakshipalya Police Station on 22nd June, 2002, complaining about the carrying of the above said hot case and luxer ball pen and being distributed to the teachers who are the voters of the constituency in Peenya, Kamalanagar, Hegnahalli, Laggere and Kamakshipalya area of Bangalore City and the same was being carried in a Tata Sumo vehicle bearing No. KA 05 N-6558. The said complaint filed by the above said Sri Rangaswamy is registered in Kamakshipalya Police Station, Vijayanagar Circle, Bangalore City, in Crime No. 214 of 2002 on 22-6-2002 and it is under investigation".
Further, paragraph 16 of the election petition reads thus:
"16. The petitioner submits that the above said complaint, the persons who are accused are: (1) Sri Kemparaju son of Mahimerangaiah, No. 23, Mahadeshwara Nagar, Herohalli Cross, Bangalore - 560 091; and (2) Sri Parvathaiah N.G. son of Gangaiah, No. 7/5, Doddanna Industrial Area, working at Deepashree High School, Visvanidham Post, Hegnahalli, Bangalore - 560 091, who are the supporters of the 1st respondent had the consent of the 1st respondent and at his instance the above said hot case and luxer ball pen was being distributed to the voters of the Bangalore Teachers Constituency. Thus the 1st respondent has committed corrupt practice of bribery. It is submitted that the said hot case and ball pen were distributed to one thousand voters of the Bangalore Teachers Constituency in the Bangalore District and the voters who have received such case have casted their votes in favour of the 1st respondent. Therefore, the petitioner had lost one thousand preferential votes, which he would have got. The list of some of the voters with address who were given the hot cases and luxer ball pens are furnished at Annexure-L".
17. As noticed above, the election petition survives for consideration of the allegation of corrupt practice as averred in paragraphs 15 and 16 of the petition. This does not mean that these paragraphs automatically contain and satisfy the requirements of Section 83 of the Act. No doubt, it is true that this Court had occasion to look into the petition averments once earlier while considering an application for striking out of pleadings and several paragraphs of the election petition have been deleted applying the principles of Order 6, Rule 16 of the Code of Civil Procedure. But, passing of such an order does not mean that in respect of the surviving paragraphs of the petition, the test of compliance with the requirements of Section 83 of the Act need not be applied any more. At any rate, in the present case, as the learned Counsel for the first respondent having pressed into service this argument viz., the petition not only lacks a concise statement of material facts on which the petitioner relies, but also it does not set forth the full particulars of the corrupt practice that the petitioner has alleged, as contemplated in Clause (b) of Sub-section (1) of Section 83 of the Act, it becomes necessary for the Court to examine this aspect.
18. The sum and substance of the allegation of corrupt practice is that the first respondent had indulged in distributing gifts items to the voters as an inducement to vote in his favour and that his supporters also had so distributed the gift items to the voters to solicit their votes, in favour of the first respondent. The gift items are hot cases and ball point pens with the inscription "With compliments from Puttanna".
19. In terms of the averments in paragraph 15 of the election petition, it is stated that the first respondent himself had gone to the residences and the schools of the voters where they were working and distributed the hot cases and ball point pens to the voters. The allegation is that the first respondent accompanied by his supporters had distributed the gift items to the voters. The plea does not indicate to which voter and precisely at which place and at what time, which gift article was given by the first respondent or his supporters. The further part of this paragraph indicates that the first respondent had purchased such gift items at the cost of Rs. 103/- for the Cello brand hot cases and the luxer ball point pens for Rs. 60/-, that even the party to which the petitioner belongs to had complained this aspect to the Election Commission by way of written complaint.
20. The further plea is that one Sri Rangaswamy had filed a complaint before the Kamakshipalya Police Station on 22-6-2004 complaining of the carrying of hot cases and luxer ball point pens in a vehicle for being distributed to the teachers who were voters in the constituency and in several places and that the articles were being carried in a Tata Sumo vehicle bearing registration No. KA 05 N-6558. This part of the plea, at best, is one to support the plea of commission of corrupt practice by the supporters of first respondent and does not constitute an independent plea of corrupt practice said to be committed by the first respondent.
21. However, a reading of the contents of paragraph 16 indicates that two persons named in the complaint are the supporters of first respondent and they had the consent of first respondent for the distribution of such gift items to the voters of the constituency and that this aspect is borne out by the complaint lodged with the Kamakshipalya Police Station on 22-6-2002. Assuming that this plea is to be understood as a plea of allegation of commission of a corrupt practice by the first respondent through his supporters and with his consent, the allegation again lacks full particulars of the act of corrupt practice namely which supporter had the consent of the first respondent to distribute the gift items in favour of which voter, at which time and place. Though the further plea in this paragraph does indicate that the hot cases and ball point pens were distributed to 1000 voters of Bangalore Teachers Constituency in the Bangalore District and the voters had received such gift items for casting their votes in favour of first respondent to the detriment of the petitioner and that a list of some voters with addresses, who were given the gift items is furnished in terms of Annexure-L to the election petition, the plea does not distinguish the voters who had received the gift items from the first respondent and the voters who had received such items from the supporters of the first respondent and with the consent of first respondent. The names and addresses are given in general and not with the plea that at the address given, the voter had received the gift item or which of the two gift items or from whom.
22. It is in this background, Sri G.V. Shantharaju, learned Counsel for the first respondent had contended that the petition averments do not conform with the requirements of Section 83(1)(b) of the Act. Submission of Sri Shantharaju is that the plea and the statement of facts in paragraphs 15 and 16 lack three essential ingredients that should constitute a plea of corrupt practice, as laid down by the Supreme Court in the case of Daulat Ram, which are: (i) Direct and detailed nature of corrupt practice as defined in the Act; (ii) details of every important particular must be stated giving time, place and names of persons, use of words and expression etc.; and (iii) it must clearly appear from the allegation that the corrupt practice alleged were indulged in by (a) a candidate himself; and (b) his authorised election agent or any other person with his express or implied consent.
23. Though it is ironic that in Daulat Ram's case, it was the returned candidate (respondent in the election petition) who had sought to contend that the election petition contains a plea of corrupt practice indulged in by some of the candidates in the election who had withdrawn from the contest and it was the stand of the election petitioner therein that the plea did not amount to allegation of corrupt practice, and the Supreme Court was examining the plea in the light of such controversy as between the election petitioner and the returned candidate, nevertheless, the Supreme Court had occasion to indicate as to what are the essential ingredients that are necessary and should be contained in a plea to constitute an allegation of corrupt practice and the test as indicated therein can apply to any other situation where the plea in the context of allegation of a corrupt practice is being examined. If this test is applied, assuming that the plea is by and large in compliance with the first of the three tests, it definitely fails on the second test viz., details of every important particular with time, place and names of persons etc. The particulars definitely are not specific, but general in nature to support the allegation of distribution of gift items to voters.
24. It is to counter this submission of learned Counsel for the first respondent, Sri Shivanand, learned Counsel for the petitioner had relied upon the decision of the Supreme Court in the case of R, Puthunainar Alhithan v. P.H. Pandian . This decision of the Supreme Court while does not show or lay down any law at variance or even to reduce the rigour of the test as laid down in Daulat Ram's case, it has to be considered as an authority for the purpose of testing as to what inference can be drawn with regard to the fact in dispute and in what manner can it be said that the fact is proved or established and what degree of proof is required for such purpose. The Supreme Court goes to record that the inference of proof of a fact could be drawn from the given objective facts and circumstances, which again depends on the nature and quality of supportive evidence. It is indicated that ultimately, it depends on the quality of evidence before the Court if it can inspire the confidence of the Court to believe a fact as proof or as in existence. This aspect of appreciation of evidence does not touch upon the contents of plea or presence of necessary ingredients in the plea to constitute the allegation of corrupt practice in an election petition.
25. This aspect of the petition pleading containing the full and proper particulars of corrupt practice indulged in by the returned candidate in an election petition for setting aside the election on the ground of commission of corrupt practice by the winning candidate has been noticed by the Supreme Court in several subsequent cases also and two such subsequent decisions can be usefully referred to in this regard.
26. Surinder Singh v. Hardial Singh , is one such case, wherein the Supreme Court had occasion to refer to requirements of a specific plea with regard to the allegation of corrupt practice and furnishing of material particulars and in the absence of material particulars, any evidence de hors the plea cannot be permitted, as noticed in paragraph 34 of the decision.
27. The other decision is Ram Singh v. Col. Ram Singh , wherein the Supreme Court had occasion to examine the aspect of furnishing of full particulars of corrupt practice in an election petition. In that case, though such particulars were furnished, in a subsequent statement of particulars, absence of such particulars as part of the petition was nevertheless taken note of and it was indicated that while that was a relevant factor in judging the truth of the particulars mentioned in the statement, it is also observed that the main part of the petition should necessarily contain some definitive and specific allegation regarding the nature of corrupt practice allegedly committed by the returned candidate or his supports,
28. If these tests are applied, in this case it has to be held that the petition plea is bereft of full particulars of corrupt practice, particularly precise date, place, time and names of persons as one to one while indulging in such corrupt practice.
29. The list of voters in which the names are given at Annexure-L to the petition only indicates that they are voters who have received gifts from first respondent, Puttanna. A combined reading of the pleadings of paragraphs 15 and 16 also does not reveal the particular supporter of the first respondent who had distributed particular gift item in favour of particular voter named in Annexure-L. In the complaint lodged at Kamakshipalya Police Station, which is marked as part of evidence of Ex. P. 3, it is only indicated that the occupants of a Tata Sumo vehicle bearing Registration No. KA 05 N-6558 on which was pasted wall posters soliciting votes in favour of first respondent, were distributing hot cases and other items to the voters; that on being questioned, the occupants of the vehicle tried to assault the complainant C.R. Rangaswamy; that the complainant followed the vehicle and intercepted it near the check-post near Kamakshipalya Police Station and apprehended the inmates of the vehicle and handed them over to the police along with the vehicle and goods therein and the complainant also informed that the occupants who were indulging in giving inducements to the teacher voters of the constituency were compelling them to vote in favour of the first respondent and as such suitable action was required to be taken as against them. The petition plea accordingly does not contain the full particulars as are indicated in Section 83(1)(b) of the Act even in respect of the allegation of indulgence of corrupt practice by the supporters of first respondent with his consent.
30. The parties having gone to trial with such pleadings and evidence having been recorded, it becomes necessary for this Court to examine the merits of the case also. However, this can be done by keeping in view the caution administered in the case of Quamarul Islam v. S.K. Kanta , particularly, keeping in mind that such evidence which may travel beyond the pleadings has to be eschewed while appreciating the evidence let in by the petitioner in the present case.
31. Petitioner apart from examining himself as P.W.4, has examined as many as 12 other witnesses and as many as 24 documents - Exs. P.1 to P. 24 were marked. While evidence of petitioner, who was examined as P.W.4, is supportive of the petition generally, it cannot constitute evidence to support the plea of allegation of corrupt practice as it is not the version of the petitioner that he was a witness to any incident of actual indulgence of corrupt practice by the first respondent. The allegation of corrupt practice is distribution of gift items such as hot cases and ball point pens.
32. Election petitioner has deposed that the first respondent had visited the residences and schools of the teacher voters and had distributed hot cases and ball point pens to voters requesting them to cast their votes in his favour; that the first respondent had also instructed his followers and supporters namely Kemparaju and Parvathaiah also to distribute hot cases and ball point pens. The petitioner had deposed that while he had not seen them, he came to know about this through some of the voters like Kalahonnaiah, who had told him that he had received ball point pens from Puttanna. Likewise, petitioner deposed that another voter Puttegowda had also shown him the ball point pens received from first respondent Puttanna and those ball point pens had been produced before the Court and marked as Ex. P. 18 through Puttegowda (P.W.8), who was at the relevant point of time working as Assistant Master (receipt of the evidence of this witness has been objected to by Sri G.V. Shantharaju, learned Counsel for the first respondent, on the ground that the evidence is not supportive of any plea in the petition. The evidence of this witness is therefore subject to a ruling in this regard). M.E. Puttegowda, P.W. 8, has deposed that he had received ball point pens from Puttanna (first respondent), P.W. 11 Shankar Prasad, who was working as Headmaster, Vidya Priya High School, Laggere, Bangalore, has deposed that the first respondent, Puttanna had given ball point pens at the time first respondent had been to their school for the purpose of campaigning to muster support to his candidature in the election. This witness has produced the ball point pen and the same was marked as Ex.P.22 (receipt of the evidence of this witness has been objected to by Sri G.V. Shantharaju, learned Counsel for the first respondent, on the ground that the evidence is not supportive of any plea in the petition. The evidence of this witness is therefore subject to a ruling in this regard). Likewise, P.W. 12, Puttaswamy Gowda, who was working as Headmaster at Sri Rajalakshmi High School, Kamalanagar, Bangalore, has deposed that on 22-6-2002, when first respondent had come to their school at 10.30 a.m., he had informed this witness that first respondent had come to the school to seek support of the teachers to his candidature in the election and that he wanted to meet all other teachers in the school and that this witness called the other teachers and when all of them assembled, first respondent had requested this witness and other teachers to cast their first preferential votes in his favour and at that time, first respondent handed over ball point pens to each of the teachers. This witness has produced a ball point pen that was still with him and the same was marked as Ex. P. 23.
33. The names of these three witnesses while do not figure in the original list of witnesses filed on 29-8-2003, names of P.W. 12-Puttaswamy Gowda and P.W. 8-Puttegowda, who were working as teachers, figure in the list of 27 names produced at Annexure-L to the petition, but the name of P.W. 11-Shankar Prasad did not figure in the said list either. None of these witnesses has deposed about either actual giving of any gift items to any teacher nor any other recipients before the Court.
34. While the petition averments indicate that two items namely hot cases and ball point pens were distributed as gifts to the voters to induce them to vote in favour of the first respondent, there is no evidence at all with regard to the giving or receiving of any hot cases by any of the witnesses. The factum of seizure of Tata Sumo vehicle with one luxer ball point pen and several hot cases and two bundles of publicity material in favour of first respondent in the election by the Kamakshipalya Police and the complaint lodged as per Ex. P.3 by one of the supporters of the petitioner as also the complaint by the Secretary, Karnataka Pradesh Congress Committee Sri A. Kenche Gowda, addressed to the Chief Election Commissioner, New Delhi through the Chief Electoral Officer in Karnataka, Bangalore, as per Ex. P. 1 and the complaint to the Kamakshipalya Police on 22-6-2002 by Rangaswamy (P.W. 6), seizure mahazar drawn by the police as per Ex. P. 4, first information report by the Kamakshipalya Police in C.C. No. 9738 of 2002, as per Ex. P. 5, information about recording the complaint under Section 171(d) of the Cr. P.C. and the permission from the jurisdictional Court for further investigation in terms of report of Kamakshipalya Police dated 22-6-2002 as per Ex. P. 6, spot mahazar at the place of seizure of Tata Sumo vehicle as per Ex. P. 7, statement of panch witnesses at Exs. P. 8 and P. 9, property list dated 22-6-2002 forwarded by the police to the jurisdictional Magistrate as per Ex. P. 10, charge-sheet filed in the said case on 24-8-2002 as per Ex. P. 13, which have all been marked through the depositions of relevant witnesses, are all sought to be relied upon as supporting circumstances in the acts of corrupt practice namely distribution of hot cases and ball point pens to the voters by the first respondent. None of these exhibits constitute documentary evidence of actual act of distribution of gifts to the voters by the first respondent or his supporters. It is only sought to the submitted that from the totality of the circumstances, it can be inferred that their evidence is supportive of the evidences of P.Ws. 8, 11 and 12 who deposed that they have actually received the gift items from the first respondent.
35. Unless the probative value of the deposition of P.Ws. 8, 11 and 12 is one that inspires the confidence of the Court to accept the same, rest of the materials placed before the Court by themselves are of no consequence. Nor does it in any way support the plea of the allegation of corrupt practice. It amounts that bereft of the deposition of P.Ws. 8, 11 and 12, who are themselves guilty of being a party to the corrupt practice viz., receiving of gifts as inducements for voting in favour of first respondent or accepting gift from a candidate in an election for voting in his favour, there is no other material placed by the petitioner to make good the plea of corrupt practice.
36. In this context, Sri G.V. Shantharaju, learned Senior Counsel appearing for the fist respondent, has vehemently contended that while the evidence let in is definitely not supported by the plea, even assuming for the sake of argument, but not conceding, that there is sufficient plea to constitute the allegation of corrupt practice in the election petition, the evidence is not either cogent or convincing or one that inspires the confidence of the Court to accept the same at its face value. Submission of Sri G.V. Shantharaju is that these witnesses themselves are tainted persons and any statement made by them in the witness-box cannot be accepted at its face value, particularly for the purpose of constituting the degree of proof required for proving the allegation of corrupt practice made in the election petition against the winning candidate. Submission of Sri Shantharaju, learned Counsel for the first respondent, is that there is an element of risk in accepting their evidence at its face value for a very serious purpose such as setting aside an election with serious adverse consequences on the first respondent and when such witnesses have not come forward to register any complaint against the first respondent as to the alleged act of corrupt practice at any point of time before so deposing before the Court in this case i.e., after a lapse of 1 to 11/2 years after the alleged incident and to the date of their evidence before this Court.
37. It is in this background of such petition plea and the evidence let in, the Court is required to examine the merit of the submissions on behalf of the learned Counsel for the petitioner as well as the first respondent. The first submission of Sri Shivanand, learned Counsel for the petitioner, is in the context of the plea particularly with regard to the contents in paragraphs 15 and 16 of the election petition vis-a-vis written statement filed on behalf of the first respondent.
38. Submission of Sri Shivanand, learned Counsel for the petitioner is that this Court had an occasion to examine the pleadings of the petition once earlier at the instance of the respondent 1; that applying the principles contained in Order 6, Rule 16 of the Code of Civil Procedure, paragraphs 8 to 14 have been struck out; that paragraphs 15 and 16 which have survived this scrutiny and test are relevant paragraphs containing the material facts and particulars of corrupt practices; that the allegation of corrupt practice, namely, the respondent 1 and his supporters had indulged in distributing gift items like ball point pens and hot cases to the voters to induce them to vote in favour of the respondent 1 has been specifically averred in these paragraphs; that the respondent 1 had purchased such items for the purpose of distribution to voters in the election is a specific plea in the paragraphs; that it is specifically averred that such an act amounted to bribery, an act within the meaning of this expression as in Section 123 of the Act; that the petitioner has also furnished the list of voters with addresses who had received such hot cases and luxer ball pens as at Annexure-L to the petition, which constituted particulars of corrupt practice; that if the petition averments as in paragraphs 15 and 16 contain both material facts as well as particulars of the allegation of corrupt practice, requirements of Section 83 of the Act are fully met and there is no question of further application of the principle of Order 6, Rule 16 of the Code of Civil Procedure; that when once evidence is let in, in support of such plea and particulars, it cannot be characterised that the evidence is not one which is acceptable for want of a proper plea; that the evidence should necessarily be looked into as adduced by the petitioner through P.W. 11-Shankar Prasad, P.W. 12-Puttaswamygowda and P.W. 13-M. Raveesha who have all spoken that they have received ball point pen from the respondent 1 and who have all produced the gift item ball point pen before the Court marked as Exhibits P. 22, P. 23 and P. 24 respectively; that the names of two of the witnesses namely, Puttaswamygowda, P.W. 12 and M. Raveesha, P.W. 13 did figure in the list of names contained in Annexure-L to the petition; that it is not as though the respondent 1 is taken by surprise by examining a person as a witness whose name did not figure at all earlier in the list; that the other circumstances and the evidences of other witnesses and other documents like the incident of seizure of the vehicle Tata Sumo Jeep bearing No. KA 05 N-6558 with the gift item and election publicity material in support of the candidature of the respondent 1, seizure documents, the mahazar, seized articles, the vehicle and the persons in it carrying on the activity of distribution of gift items of the voters, complaint to the election commission by the office-bearers of the party of the petitioner, all constitute supportive evidence to the depositions of the three witnesses, namely, P.Ws. 11, 12 and 13; that the election petitioner has made good the allegation of indulgence in the act of corrupt practice by the respondent 1; that the evidence is one that is acceptable and therefore election petition deserves to be allowed.
39. It is the further submission of Mr. Shivanand, learned Counsel for the petitioner that these witnesses are independent witnesses, they are educated persons who are teachers; that their evidence is natural and truthful; that there is not even a suggestion in the course of the cross-examination to impeach their creditworthiness. On the other hand, there is a clear admission on the part of the respondent 1 himself that he himself had visited the schools where these witnesses as also P.Ws. 4 and 8 worked for the purpose of soliciting voters of the teachers in the schools concerned; that there is absolutely no suggestion to any of these witnesses that the gift articles like the ball point pen which they stated to have received from the respondent 1 were not so received but had been given to them by the petitioner himself and requested to come and give such false evidence; that on such evidence, the petitioner has proved the allegation of acts of corrupt practice of bribery committed by the respondent 1 by distributing the gift items to the voters and as such issue 1 should be answered in favour of the petitioner.
40. Sri Shivanand, learned Counsel for the petitioner, further contends that inspite of the petitioner having discharged initial burden of placing material before the Court against the respondent 1 to prove the act of commission of corrupt practice on the part of the respondent 1, the respondent 1 having not taken any steps to rebut the same has not led any evidence in support or his denial; that though the respondent 1 had entered the witness-box and had while tried to blow his own trumpet by elaborating about his qualifications and achievements, points out that so-called compliant by the respondent 1 against the petitioner and the party of the petitioner namely, the Congress Party about any malpractice indulged by them is only as a counter blast to the complaint lodged by the petitioner; that the attempt to produce the copy of the complaint was one without any basis in the absence of a plea; that a mere denial of the allegations in the petition by itself will not exonerate the respondent 1 in the absence of rebuttal evidence led by the respondent 1 to get over the allegation of commission of corrupt practice; that the Exhibit R. 1-letter dated 24-6-2002, complaint said to have been lodged to the Election Commission that persons belonging to the Congress Party are indulging in false propaganda against the respondent 1 being only the copy of the letter and no effort having been made by the respondent 1 to secure the original by summoning the competent persons to depose before the Court and for production of the same; that a mere denial by the respondent 1 like the denial of an accused person in a criminal case in itself will not exonerate the respondent 1 of the charges as the petitioner had made good the charge of allegation of corrupt practice by producing necessary material through documentary evidence as well as through direct evidence of the recipients of the gift items; that the respondent 1 having not chosen to rebut the evidence let in by the petitioner, it amounts to clear admission on the part of the respondent 1 that he has, in fact, indulged in corrupt practice and as such, it is a clear case warranting petition to be allowed, election of the respondent 1 to be set aside and the petitioner declared as the elected candidate. Learned Counsel for the petitioner, in support of such arguments, placed reliance on the following decisions:
(a) R. Puthunainar Alhithan's case;
(b) M. Chenna Reddy v. V. Ramachandra Rao and Anr. XL ELR 390;
(c) Sushil Kumar v. Rakesh Kumar (2008)8 SCC 678;
(d) Samant N. Balakrishna v. George Fernandez and Ors. ;
(e) R.M. Seshadri v. G. Vasantha Pai ;
(f) Rajendra Prasad Jain v. Sheel Bhadra Yajee and Ors. ;
(g) Ganesh Lal v. State of Rajasthan ;
(h) Sheopat Singh v. Harish Chandra ;
(i) S. Harcharan Singh v. S. Sajjan Singh ;
(j) Ram Sharan Yadav v. Thakur Muneshwar Nath Singh ;
(k) Bishwanath Rai v. Sachhidanand Singh ;
41. Placing reliance on these decisions and ratio laid down therein, submission of Sri Shivanand, learned Counsel for the petitioner is that while a mere offer on the part of a candidate constitutes an act of corrupt practice, in the present case, there was much more. In fact, the giving of a gift item itself amounts to a bribe as an inducement to cast his vote; that it can definitely be inferred that the respondent 1 has by himself indulged in an act of corrupt practice by distributing the gift items to the voters; that it can also be inferred that the distribution by his supporters was with the consent and approval of the respondent 1; that the vehicle in which the seized articles and his supporters were found was the vehicle which was taken on hire by the respondent 1; that the available material on record clearly raises a presumption that the respondent 1 has indulged in the act alleged against him; that presumption having not at all being rebutted, the respondent 1 cannot escape from the conclusion that he has indulged in the act of corrupt practice and the petition should succeed.
42. Submission of Sri G.V. Shantharaju, learned Senior Counsel appearing for the respondent 1, on the other hand, is as discussed earlier, the contents of paragraphs 15 and 16 still lacks material facts as well as full particulars; that mere mention of the names of two of the witnesses in the list at Annexure-L still does not disclose the place, date arid the precise gift item given to a particular person and by whom. If this material particulars was not available, the evidence through P.Ws. 11, 12 and 13 cannot at all be looked into or in the absence of a supportive plea and if the evidence of these three witnesses is ignored, the rest of the material which even as admitted by the petitioner himself being in the nature of supportive or corroborative evidence cannot stand by itself and as such it should be held that the election petitioner has miserably failed to prove the allegation of corrupt practice and the petition deserves to be dismissed.
43. Submission of Sri Shantharaju is that mentioning of the giver and receiver of bribe, the actual subject-matter bribe is a material fact and if the petition does not by itself give this, it is a clear case of non-fulfillment of requirements of Section 83(l)(a) of the Act as non-mentioning of the place and time of distribution to a particular person is nothing short of not providing full particulars and therefore petition plea even as contained in paragraphs 15 and 16 fails the test of conformity with the provisions of Section 83(l)(a) and 83(l)(b) of the Act. In support of such submission, Sri Shantharaju has relied upon the decision of the Supreme Court in Daulat Ram's case, and further points out that while the petitioner's case through P.Ws. 8, 11, 12 and 13 is that these witnesses have received gift items from the respondent 1; that it was not the case of the petitioner that there was a person who had actually seen the incident but had learnt about the same. But, the petition plea is lacking in these particulars to enable them to come and depose before the Court about this aspect.
44. Further submission of Sri Shantharaju, learned Senior Counsel for respondent 1 is that though these witnesses were deposing much later after the incident itself and it can be reasonably presumed that the witnesses being educated persons knew that receiving gift items from the candidate for the purpose of casting vote in favour of such candidate amounts to giving of bribe, had nevertheless, not complained at all about the same to anyone at any point of time earlier; that none of the witnesses having complained about the incident clearly casts a serious doubt about the creditworthiness; that in fact, they being part of the offence by receiving bribe are not persons whose evidence that can be accepted at face value nor are persons whose evidence can inspire confidence of the Court in support of a serious matter like an allegation of corrupt practice in an election petition; that their testimony only deserves to be rejected even for the reason that it is not creditworthy. While degree of proof in an election petition for proving an allegation of corrupt practice has been consistently held by the Supreme Court could be one of truth beyond reasonable doubt and not mere preponderance of probabilities, in the present case, while the evidence by itself is not one which can be looked into by the Court in the absence of a proper plea, if such evidence is one that is suspect coming from persons who are themselves tainted; that it is rather strange that the incident of giving of a gift item by the respondent 1 and the act of receipt of the gift item by these witnesses namely P.Ws. 8, 11, 12 and 13 is not corroborated by any other person who has witnessed the same though it is claimed that the receipt of the items was either in the school where the teachers were working or at their residence where inevitably there will be other persons and that in itself betrays the hollowness of the claim and the falsity of the deposition.
45. Sri Shantharaju, learned Senior Counsel submits that with such suspect evidence, there is absolutely no possibility of the Court giving a finding of the respondent 1 having indulged in an act of corrupt practice and the petition deserves to be dismissed. It is in this regard, learned Counsel for the respondent 1 has placed reliance on the following decisions, namely.--
(a) Abdul Hussain Mir v. Shamsul Huda ;
(b) Surinder Singh's case;
(c) Samant N. Balakrishna's case;
(d) Sarat Chandra Rabha v. Khagendranath AIR 1961 SC 934;
(e) Thakur Sen Negi v. Dev Raj Negi and Anr.
(f) Rahim Khan v. Khurshid Ahmed ;
(g) V. Narayanaswamy v. C.P. Thirunavukkarasu
46. On an examination of the evidence on record, the submissions of the learned Counsel and on the touchstone of the principles laid down in the cases referred to above and relied upon by the learned Counsel for the petitioner and the respondent 1, it becomes clear that what remains in petition paragraphs 15 and 16 is that while an allegation of corrupt practice is present in these paragraphs namely that the respondent 1 has committed an act of bribery by distributing hot cases and ball pens to the voters with an inscription: "With compliments from Puttanna" to induce them to vote in favour of the respondent 1, the question is as to whether the said allegation also satisfies requirements of Section 83(l)(a) and 83(l)(b) of the Act notwithstanding the scrutiny once earlier by the Court. A close reading of the contents of paragraph 15 indicates that the commission of act of corrupt practice of bribery is only by the respondent 1. There is no allegation of commission of corrupt practice independently by the supporters of the respondent 1 though it is pleaded that the respondent 1 along with his supporters where they were working and while soliciting their votes had distributed hot cases and ball peris to the voters, it inevitably amounts that the respondent 1 was present with his supporters visited the schools of the teachers in which event the distribution is by the respondent 1 and not by his supporters. If the allegation is confined to the act of bribery on the part of the respondent 1, all other descriptions, evidence, documents, depositions etc., not relating to an act of bribery on the part of the respondent 1 himself clearly goes out of consideration. In this view of the matter, it is no more necessary to give a ruling on the objections raised by the learned Counsel for the respondents at the time of recording of the evidence of certain witnesses to the effect that the evidence is not-supportive of any plea in the petition and therefore should not be looked into, raised in the context of recording of the evidence of the particular witnesses.
47. Insofar as the act of bribery on the part of the respondent 1 is concerned, the petition averments is also lacking in material facts about the exact place and time of distribution of the gift items. The plea is one in general such as the respondent 1 and his supporters had been to the residence and the schools of the voters where they were working in the morning or in the evening and during the working hours of the school and distributed hot cases, ball pens to the voters etc. A plea of this nature can encompass the entire constituency and the entire electorate. While such is the plea, no further particulars are forthcoming to amplify this limited plea either. A particular gift item to a particular person, place and time is not pleaded at all.
48. While such is the position of the contents of the petition, the evidence through P.Ws. 8, 11, 12 and 13 in the absence of a supporting plea becomes useless. It is the well-established law in considering an election petition that particulars of corrupt practice should be available in the petition and if available it can be made good by supportive evidence. If particulars are lacking in the petition itself, supportive evidence is not one which can be looked into. While the evidence of P.Ws. 8, 11, 12 and 13 could have been generally characterised as evidence based on a general plea in any other type of civil proceedings, in an election petition, particularly, in the light of the requirements of Section 83(l)(b) of the Act, the evidence in my view is not one which is supportive of a plea of full particulars of an allegation of corrupt practice in an election petition and as such cannot be looked into at all.
49. Even assuming for argument sake, such evidence can be examined by the Court, even then the evidence is not one that inspires the confidence of the Court, particularly, coming from persons who are themselves party to the offence of accepting bribe, being persons who had kept silent about the act of bribery committed by the respondent 1 in the absence of any complaint by these witnesses to any Competent Authority and while all the witnesses have uniformly said that they have received only ball point pens, none any hot cases, the incident of receipt of this ball point pen being not supported by examining any other person who could have witnessed the incident as the act of giving a ball point pen is said to have taken place where all others were present is a further suspicious circumstance to accept the evidence at its face value. At any rate, the evidence is not one which inspires the confidence of the Court, particularly, as the evidence of such quality or of such accuracy for the purpose of rendering a finding of an act of corrupt practice on the part of the respondent 1, a finding which can be recorded after serious consideration of the material on record and only when the Court is fully satisfied that the evidence is one that can be accepted, the evidence does not inspire the confidence of the Court to accept at its face value. When once the evidence itself is not one that inspires the confidence of the Court to accept it, further question of the respondent 1 not leading any rebuttal evidence does not arise.
50. It is no doubt true that if not hot cases, at least, ball point pens were found freely flying around during the election period, Added to this, it carried the inscription: "With compliments from Puttanna" and some of them have come before the Court also. While the hot cases remained mute spectators, in the sense that, it is not the version of the petitioner that it had changed hands, the ball point pens is alleged to have been given by the respondent 1 to some of the witnesses who deposed before the Court. Even if any one of this ball point pen can stick to the respondent 1, in the sense that, the respondent 1 has given it to any voter for the purpose of inducing him to vote in his favour, that amounts to an act of bribery and an act of corrupt practice.
51. While it is true that indulgence in acts of corrupt practice is quite rampant, has become a matter of course and routine by the candidates in elections and no election is fought on principles of adhering to the requirements of law, we have not yet reached a stage where Courts can take judicial notice of such indulgence for the purpose of deciding an election petition. In fact, the law is otherwise; that until and unless an allegation of corrupt practice is proved beyond reasonable doubt, it cannot be held so by the Court in the context of an election petition for setting aside an election for the reason that winning candidate has indulged in an act of corrupt practice. Unfortunately for the petitioner, the petitioner has not been successful in ensuring that at least one of the ball point pen was able to stick to the respondent 1 to affect his success in the election. An election petition before the election Tribunal under the Act is a serious matter. More so, an allegation of corrupt practice said to have been indulged in on the part of a candidate who has been declared the winner in the election. Petition should contain proper and necessary pleas to make good an election petition as contemplated under the provisions of the Act. A casual, insufficient, inadequate plea does not take the petitioner anywhere. In the absence of proper pleas, while no progress will be achieved, even when necessary pleas are present, it should be made good by cogent, convincing and clinching evidence placed before the Court by the petitioner in support of such pleas. It is not because of any carelessness or negligence or even blurred admissions on the part of a respondent that an election petition can succeed, but only by the diligence of the petitioner in reconstructing the events before the Court to demonstrate the existence of an act of corrupt practice on the part of the winning candidate that can ensure success in an election petition! If the election petitioner had achieved this, perhaps the respondent 1 could have seen his Waterloo. But, as observed earlier, the election petitioner is not successful in his efforts. Necessary seriousness and requirements with the provisions of the Act are not met and it is therefore the petition fails. It is more like a person charged of an offence in a criminal case being acquitted and going scot-free because of the prosecution's inept and incompetent handling of the case and not making good the charges before the Court. Situation is more or less similar in this petition also.
52. In the absence of such success on the part of the petitioner, it is inevitable that issue 1 should be answered against the petitioner and in favour of the respondent 1. The second issue automatically goes against the petitioner as I have found that the petition does not even contain a precise plea that supporters of the respondent 1 had by themselves indulged in any act of corrupt practice. Issue 3 does not arise for consideration in the light of the answers to issues 1 and 2 having gone against the petitioner.
53. In the result, this election petition is dismissed. However, though normally cost follows the result, in this case, parties are left to bear their own costs.