Punjab-Haryana High Court
Gura Singh vs Ajaib Singh Bhatti on 19 April, 2010
Election Petition No. 18 of 2007 -1-
*****
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Election Petition No. 18 of 2007
Date of decision : 19.4.2010
Gura Singh ....Petitioner
Versus
Ajaib Singh Bhatti ...Respondent
CORAM : HON'BLE MR. JUSTICE S. D. ANAND
Present: Mr. J.S.Puri, Advocate with
Mr. Sumit Puri, Advocate for the petitioner.
Mr. S.K.Garg Narwana, Advocate with
Mr. Vishal Garg, Advocate for the respondent
S. D. ANAND, J.
1. Pursuant to the issuance of a notification dated 18.1.2007 by the Election Commission of India ( hereinafter referred to as "the Commission"), elections were announced for electing the representatives to the Punjab Legislative Assembly. Petitioner herein, a nominee of the Shiromani Akali Dal, contested the election from the Nathana Assembly Constituency and ended up as the first runners up, loosing at the hustings to the respondent, a candidate who entered the fray as a nominee of the Indian National Congress. The petitioner polled 52207 votes; while the respondent obtained 58857 votes. Others performed poorly and lost their security deposits.
2. The petitioner herein has applied for the invalidation of Election Petition No. 18 of 2007 -2- ***** the result on an averment that the respondent had committed gross corrupt practices in terms of the provisions of Section 123 of the Representation of People Act, 1951 (hereinafter referred to as "the Act"). The petitioner cited the following clarificatory instances which, as per him, affected the election result and which, in turn, amounted to corrupt practices which (corrupt practices) would justify the invalidation of the impugned election.
3. The Dera Sacha Sauda, "a religion/community established about 50 years" ago and presently having its head office at Sirsa, has a following of over 20 lacs voters in the State of Punjab. The Dera Sacha Sauda has predominance essentially in the Malwa belt (consisting of Districts of Patiala, Sangrur, Bathinda, Mansa, Faridkot, Ferozepur, Roopnagar etc.) and its followers are uniformly available in all those districts. Each constituency "has approximately 25,000 followers". Even in the Nathana assembly constituency, the Dera Sacha Sauda has over 25,000 followers who (followers) are described as 'Premis'. A congregation attended by them is described as 'Sadh Sangat'. The Dera Sacha Sauda head is addressed as 'Pita jee' and the Premis "act according to his dictums and sermons." This religion i.e. Dera Sacha Sauda has its own "religious and cultural system", besides having its white coloured flag and own token/currency system which enables the followers to make purchases at the Dera Sacha Sauda. 'Sach Kahun', a daily published by the Dera Sacha Sauda, has a wide circulation amongst Election Petition No. 18 of 2007 -3- ***** its followers. The Dera Sacha Sauda has local congregation venues in the State of Punjab including a big dera in the area of village Salabatpura which, though a part of Rampura Phul constituency, is at a distance of about 15 Kilometers from the outer boundary of Nathana constituency. The religion aforementioned is distinct from the other religions (i.e. Hinduism, Sikhism, Islam, Christian, Parsi religion etc.) inasmuch as the former does not permit intermingling of the followers with other religions and the 'Premis' function within their own water-tight compartment; while things are otherwise in the other religions.
4. The Dera Sacha Sauda, " with a motive to help the Indian National Congress Party in the general elections held in the State of Punjab in February, 2007" decided to direct the Premis to cast their votes in favour of the Congress. For achievement of that purpose, the Dera constituted "a seven member political wing to supervise the said decision and to take further decisions in this matter." That wing, which was headed by one Ram Singh, organised various teams which were set in motion and headed towards various constituencies in the Malwa belt. In the Nathana constituency, the committee "actively and speedily organised its active workers to ask the Premis to vote for the respondent." The propaganda was conducted on individual to individual basis, besides addressing rallies, giving news items and advertisements etc. The active workers of the Dera sought votes from the Premis "with active Election Petition No. 18 of 2007 -4- ***** consent of respondent Sh. Ajaib Singh i.e. respondent and his agents." The respondent himself also asked the Premis "to vote for him and in pursuance of the decision taken by the dera itself and declared to be so by the political wing of the dera."
5. The political wing of the dera also published "a specific schedule of the plan of action of which such declaration is to be addressed in various constituencies for appealing to their followers to cast their votes in favour of a specific party namely Congress (I)." For the purpose of Nathana constituency, the announced schedule included the holding of a meeting at Dera Salabatpura on 4.2.2007. The assembly, which was presided over by Ram Singh aforementioned, was largely attended by Premis. Ram Singh also addressed the congregation "and made them aware of the decision taken to support and cast vote in favour of the respondent." Respondent-Ajaib Singh was also present in that meeting and he, besides addressing the Premis and soliciting their votes and support "in pursuance of the decision taken in this regard by their religious head and the political wing for Punjab," "consented to the actions and appeals made by the Chairman of the political wing of the dera."
6. Besides the above attribution, the respondent also appealed "to Teja Singh son of Parkash Singh, resident of village :
Kalyan Sukha, Tehsil and District Bathinda, Baldev Singh son of Natha Singh, resident of Nathpura, Tehsil and District Bhatinda and Jasbir Singh son of Sh. Harchand Singh, village Kalyan Sukha, Election Petition No. 18 of 2007 -5- ***** Tehsil and District Bhatinda" to vote for him in the name of religion i.e. the Dera Sacha Sauda.
7. Apart from the congregation at Salabatpura, a big function was held on 4.2.2007 at Rajgarh in Patiala which was attended by the then Chief Minister and a number of Ministers in that Government. There also, Ram Singh aforementioned addressed the gathering and appealed to the 'Premis' to vote for congress in their respective constituencies "in pursuance of the decision as aforesaid."
8. The respondent and the other members of political wing too, appealed to the voters to vote in favour of the respondent "on the ground of religion, race, caste and community." The members of the political wing of the Dera also made a similar appeal "with the consent of the respondent".
9. Besides the above quoted instances, the Dera Sacha Sauda inserted the various news items and advertisements in different newspapers, the detail whereof are as under:-
"1. On 4.2.2007, a declaration of decision with schedule was published in Daily Sach Kahun. Declaration with respect of Nathana constituency was to be held at village Salabatpura, District Bhatinda. This constitutes corrupt practice as defined in section 123 (2), (3) 3-A) of the R.P.Act.
2. On 8.2.2007, news item appeared in Punjabi Tribune stating that Premis of Sacha Sauda have Election Petition No. 18 of 2007 -6- ***** taken procession in favour of Congress (I) specially in Mandi Basti etc. of Nathana Constituency. This constitutes corrupt practice as defined in section 123 (2), (3) 3-A) of the R.P.Act.
3. On 11.2.2007, a big news item appearing in Punjabi Tribune stating that a new wave has arisen in favour of Congress due to support of Premis. Premis went to Chucho Mandi, Burj Kahan Singh Wala and Tungwali for getting votes from house to house. The respondent also gave confidence to voters in this regard. This constitutes corrupt practice as defined in section 123 (2), (3) 3-A) of the R.P.Act.
4. On 13.2.2007, an advertisement was published in Sach Kahun wherein Ram Singh, Chairman of the Political Wing of Dera Sacha Sauda announced that Sadh Sangat should be aware of false advertisements and that all sadh sangat is requested to vote for congress only. This constitutes corrupt practice as defined in section 123 (2), (3) 3-A) of the R.P.Act.
5. On 11.2.2007, a big advertisement was published in Punjabi Tribune whereby an appeal was made by the political wing of dera sacha sauda (Sirsa) that it Election Petition No. 18 of 2007 -7- ***** has been decided that all the followers/premis should cast their votes to the congress party. This constitutes corrupt practice as defined in section 123 (2), (3) 3-A) of the R.P.Act.
6. On 11.2.2007, a news item appeared in daily sach kahun that the respondent has been weighed with samosa, bananas, sugar, coins and ladoos. It is further mentioned that respondent said that he left his post of A.D.C. For the people and then thanks Premis for their support. On 11.2.2007 another advertisement appeared in Sach Kahun issued by the Congress to thanks Premis. This constitutes corrupt practice as defined in section 123 (2), (3) 3- A) of the R.P.Act.
7. On 12.2.2007, an advertisement appeared in Sach Kahun issued by Political wing for Punjab of Dera Sacha Sauda (Sirsa) appealing to the Premis that the decision take to cast votes in favour of congress is definite and therefore appealed the Premis to cast their voges for the congress. Oin the same day, another advertisement appeared in Spokesman issued by political wing of Dera Sacha Sauda appealing to Premis to vote for Congress. In yet another advertisement in Jagbai (Bathinda and Election Petition No. 18 of 2007 -8- ***** Mansa) issued by political wing on the same day, appealing the Premis to vote for Congress. This constitutes corrupt practice as defined in section 123 (2), (3) 3-A) of the R.P.Act.
8. On 13.2.2007, i.e. date of voting, a new item appeared in Sach Kahun that Sat Premis have said that they are determined on voting for Congress and in another advertisement, on the same day, by Ram Singh, under his signatures, calling and appealing the Premis to vote for Congress. This constitutes corrupt practice as defined in section 123 (2), (3) & (3-A) of the R.P.Act."
10. The averment of the petitioner herein is that the insertion of the news items//advertisements on behalf of the Dera Sacha Sauda constituted corrupt practices in terms of the provisions of the Act.
11. Two public servants(Manjit Singh Bakshi, DPRO, Bhatinda and Waheguru Pal Singh, APRO, Bhatinda) also asked a number of voters of that constituency to vote for the respondent. They did it at the behest of and "with active consent of the respondent." Those two public servants would call the voters to various places including Bibiwala Guest House at village Bibiwala and convince them to cast their votes in favour of respondent. On 25.1.2007, Manjit Singh Bakshi aforementioned called three voters Election Petition No. 18 of 2007 -9- ***** (Lachman Singh son of Sh. Jagar Singh, resident of village, Gobindpura, Tehsil and District Bhatinda, Labh Singh son of Sh. Buta Singh, resident of village Sema, Tehsil and District Bhatinda and Rajinder Singh son of Baldev Singh, resident of Poohli, Tehsil and District Bhatinda) and asked them to vote for the respondent. Besides them, one Bhag Singh (then posted as an Assistant Sub Inspector, at Nathana) also asked the residents of Nathana, "with active consent and connivance of the respondent", to vote for respondent " who is the friend." ASI Bhag Singh "pressurised Sh. Gursewak Singh son of Sh. Gurdev Singh, resident of village:
Dhalawan, Tehsil and District Bathinda and many other persons including Gurdev Singh, Ex. Sarpanch, resident of village :Giddar, Tehsil and District Bathinda to vote for the respondent. In this regard, the petitioner made a complaint to the Returning Officer, Nathana and thereafter, action was taken in this regard by the Election Commission."
12. The petitioner herein, on the basis of above allegations, applied to the Court to declare the election of respondent-Ajaib Singh Bhatti to the Punjab Assembly from the reserved 112-Nathana Vidhan Sabha Constituency, to be null and void.
13. The respondent, besides raising certain preliminary objections, denied the averments on the merits thereof. He denied that he had himself indulged in the averred corrupt practices. He also denied that the Dera Sacha Sauda is a religion. He averred, in Election Petition No. 18 of 2007 -10- ***** the context, that the Dera Sacha Sauda "is a spiritual and social organization" which engages itself in organising "spiritual satsangs and performs various noble acts, such as, organizing blood donation camps and drug and alcohol eradication programmes etc." It is for such acts that the name of the Dera Sacha Sauda is entered in the Guinness Book of World Records and Limca Book of Records.
While denying that the services of the averred public servants were utilised for extracting votes, the respondent proceeded to aver that the Dera Sacha Sauda, on the other hand, categorically announced to the Premis that it had no political ideology and that its followers could vote of their free volition and conscience and that Dera had further announced that no political party was to be supported by the Premis.
14. In the course of the re-joinder, the averments made in the course of the petition were reiterated.
15. The trial proceeded on the following issues:-
"1. Whether the respondent is guilty of having committed corrupt practices in terms of Section 123 of the Representation of People Act, as alleged in para Nos.5 and 6 of the petition?OPP
2. Whether the respondent is guilty of having committed corrupt practices in terms of Section 123 (7) of the Representation of People Act, as alleged in para No.7 of the petition?OPP Election Petition No. 18 of 2007 -11- *****
3. Whether the result of the election had been materially affected by the corrupt practices which are subject of issue Nos. and 2 ?OPP
4. Whether the election petition is liable to be dismissed for non-compliance with the provisions of Section 81(3) of the Representation of People Act, 1951? OPR
5. Whether the verification of the averments in the election petition is defective? If so, to what effect?OPR
6. Relief".
The following additional issues were framed on 27.8.2008:-
i) Whether election petition lacks material facts and material particulars, if so, its effect? OPR
ii) Whether the election petition discloses no cause of action, if so, its effect? OPR
iii) Whether the para Nos.3,4,5,6 and 6(1) (i) to (vii) and 7 of the Election Petition deserve to be struck out from the Election Petition under Order 6 Rule 16 CPC as mentioned in the preliminary objections of the written statement? OPR
16. In the evidence of affirmative character, the petitioner herein examined as many as 14 witnesses. Election Petition No. 18 of 2007 -12-
*****
17. The petitioner entered the witness box, as his own witness, as PW-1.
18. PW-2 Gurcharan Singh, Election Kanungo, office of the District Election Officer, Bathinda, made a record-based statement to the effect that two complaints dated 20.1.2007 and 25.1.2007, attested copies whereof were proved by him as Ex. PW2/A and Ex. PW2/B, had been received. Qua the former complaint, information had been received from the SSP, Bhatinda that the official under reference had been transferred from the present place of posting and he was in the process of being relieved. (This complaint purports to relate to ASI Bhag Singh and the only averment made in the course thereof was that he is a personal friend of respondent Ajaib Singh Bhatti and that he propagates through out that he would ensure the victory of the Congress candidate and that he used to terrorise workers of the Shiromani Akali Dal. Qua the other complaint, he testified that it was ordered to be 'filed' under the orders of the Returning Officer. He also placed on record Ex. PW2/D, a photocopy of the letter addressed by the Additional Deputy Commissioner (Development)-cum-Returning Officer, 112 Nathana Vidhan Sabha Constituency, Bhatinda to the District Election Officer, Bhatinda. Vide that communication, the Returning Officer recommended the 'filing' of the complaint which contained allegations against Manjit Singh Bakshi, DPRO and Waheguru Pal Singh, APRO.
Election Petition No. 18 of 2007 -13-
*****
19. PW-3 Teja Singh, who claimed to be a Premi, testified that Ram Singh aforementioned had addressed the Slabatpura congregation held on 4.2.2007 and had announced the factum of there being "an agreement between the Dera Sacha Sauda and the Congress Party and that, in terms thereof, not only that the each follower of the Dera Sacha Sauda should vote for Congress but he should also persuade five other persons per head to vote for Congress."
20. PW-4 Baldev Singh son of Natha Singh, also claiming to be a Premi, reiterated the statement made by PW-3 Teja Singh.
21. PW-5-Parkash Singh. Chief Editor and Administrator of "Sach Kahoon", proved original issues dated 4.2.2007, 11.2.2007, 12.2.2007 and 13.2.2007 of Sach Kahoon and testified that the first indicated news item i.e. news item appearing in issue dated 4.2.2007 had been published on its receipt from Ashok Verma, its Bhatinda- based Bureau Chief. It is in his statement that news item Ex. PW5/3 had been published on its receipt from Gurjit Singh, Bucho Mandi- based correspondent of the newspaper. He further testified that advertisement Ex. PW5/5 had been published in the issue dated 12.2.2007 at the instance of one Surjit Singh resident of Chab Bela Singh Wala and that Ex. PW5/6 had been published in the issue dated 13.2.2007 on its receipt from Gurjit Singh, Bucho Mandi-based correspondent of the newspaper.
22. PW-6 Som Nath Bajaj, an official posted in HRD Election Petition No. 18 of 2007 -14- ***** Department of the Punjabi Tribune, proved news items Ex. PW6/1 and Ex. PW6/2 and testified that these news items had been published on the basis of information supplied by Bhagwan Dass Garg, a stinger based at Bucho Mandi. Qua the advertisement aforementioned, it was testifed by him to have been booked through Elevations Advertising Private Limited, Sector 22-C, Chandigarh. He also testified that the name of the subscriber is noticed therein as 'Dera Sacha Sauda'.
23. PW-7- H.S.Bhatti son of Shri Kirpal Singh, an official of the Rojana Spokesman Newspaper claiming circulation of about 70000, proved an advertisement Ex. PW7/1 issued through Elevation Advertising Private Limited at the instance of Political Wing, Punjab, Dera Sacha Sauda.
24. PW-8 M.M.Ali son of M.N.Ali, Senior Executive (HR), in the employment of Indian Express, brought along the original issue dated 6.4.2007 of the newspaper and proved that news item Ex. PW8/1 had been published in that newspaper on the basis of information supplied by their reporter Mr. Vikas Kahol.
25. PW-9 Rakesh Jain son of Shri Kamal Jain, Billing Incharge, Jagbani, (Punjab Kesari Group), proved news item Ex. PW9/1 which had been published on the basis of a communication Ex.PW9/2 received from Verma News Agency, Bathinda.
26. PW-10 Jasbir Singh son of Shri Har Chand Singh resident of village Kalyan Sukha, District Bathinda, claimed to have Election Petition No. 18 of 2007 -15- ***** attended the Salabatpura congregation and testified that Ram Singh and one Bhatti delivered a lecture over there and appealed to the gathering to vote for the Congress candidates. It is in his testimony that they also told the gathering to garner 3-4 other votes per head as well. It is also in his testimony that after the address was over, the respondent told him that "pitaji had ordered the followers to vote for the congress party." He clarified that he (and also Teja Singh and were Baldev Singh, who were standing by his side and examined as PW-3 and PW-4 respectively) did not feel like voting according to the request "but the appeal was to that effect only."
27. PW-11 Gurdev Singh son of Sucha Singh, resident of village Giddar, District Bhatinda, a former Sarpanch of the village Giddar, testified that SI Bhag Singh (then posted at Police Station, Nathana) would come to the village and would tell people to refrain from voting for the Akali candidate and he also required them to vote for the congress candidate. He, however, clarified that he voted as per his own discretion.
28. PW-12 Rajinder Singh son of Shri Kaur Singh, resident of village Mehma Sarja, District Bathinda, also claimed to have attended the Salabatpura congregation held on 4.2.2007 and testified that Ram Singh announced to the audience that "if we wanted to attain salvation, we should be voting for the congress party or else we would be treated as sinners." It is also in his testimony that Ram Singh "further exhorted the audience that each Premi Election Petition No. 18 of 2007 -16- ***** should persuade atleast 4-5 persons to do likewise" and that "voting for the congress party candidates would be an act of 'goodness'."
29. PW-13 Sukhraj Singh son of Gubax Singh resident of village Mehma Sarja, District Bathinda, who claimed to be a follower of Sikh faith testified that there is no Dera in and around the area of which Nathana assembly constituency comprises. He was not subjected to any cross examination.
30. PW-14 Rakesh Kumar, Naib Tehsildar, Samana, testified that the congress party held a Rally in the area of village Rajgarh (Samana) on 4.2.2007 and that the venue of the Rally was under the occupation of Dera Sacha Sauda. He placed on record the original CD Ex. PW14/A of that function and also translations thereof in Punjabi and English which were exhibited Ex. PW14/B and Ex. PW14/C.
31. PW-15 Gurdeep Singh son of Baldev Singh, resident of village Kote Natha Singh wala, Tehsil and District Bathinda, who claimed to be a follower of Dera Sacha Sauda sect, testified that he subscribes to Rozana Ajit newspaper and to another newspaper which is published by Dera Sacha Sauda and that the contents of those newspapers affected "my thought process in the context of pattern of voting as Babaji made an appeal therein to vote for congress party as there had been a settlement between Dera Sacha Sauda and Congress Party."
32. The remaining witnesses, cited in the listed of witnesses, Election Petition No. 18 of 2007 -17- ***** were given up and the petitioner's evidence was closed by the learned counsel appearing on behalf of the petitioner on 21.8.2009.
33. RW-1 Gurdev Singh son of Prem Singh, resident of village Abloo, a follower of Sikh religion, testified that he watched Sant Gurmit Singh delivering discourse on the Television vide which he informed the followers of the Dera Sacha Sauda that the Dera had no political ideology and that the followers could vote as per their conscience.
34. RW-2 Saminder Singh son of Shri Punjab Singh, resident of village Ganga, also made a similar statement.
35. RW-3 Jaspal Singh son of Isher Singh, resident of village Abloo, besides reiterating the above televised discourse by the Dera Sacha Sauda head, also testified that the Dera had issued a press statement about two days prior to the holding of elections to the effect that the followers could vote as per their own conscience as it (Dera) had no political ideology.
36. RW-4 Manjit Singh Bakshison of Tirth Dass Bakshi, D.P.R.O., Sangrur (posted at Bathinda during the relevant period) and RW-5 Wahe Guru Pal Singh son of Onkar Singh, D.P.R.O., Bathinda (posted as APRO, Bathinda during the month of February, 2007 when elections to the Punjab assembly were held) denied the averments made by the petitioner that they had canvassed votes for the respondent.
37. RW-6 Manjinder Singh son of harbaksh Singh, resident of Election Petition No. 18 of 2007 -18- ***** village Mehmapur Bhagwana, testified that Sant Gurmit Ram Rahim Singh is the head of the Dera Sacha Sauda, who had appealed to his followers (by issuance of a press note in Daily Ajit newspaper) that they could vote as per their choice and that Dera has no political affiliation.
38. RW-7 Constable Sikender Singh (posted in the office of SSP, Bathinda) proved Ex. RW7/,1 an attested photocopy of the enquiry report in the context of the complaint against ASI Bhag Singh during the period elections to the Punjab assembly were held in the year 2007. That enquiry had been conducted by Inspector Harinder Singh, the then SHO, Nathana. He also proved Ex. RW7/2, an attested photocopy of a report furnished by Davinder Singh, the then DSP, Bathinda. He also brought along the original order dated 21.1.2007 vide which the then SSP, Bhatinda had ordered the 'filing' of that report. Besides proving Ex. RW7/3, an attested photocopy thereof, he claimed familiarity with the signatures of the SSP, Bathinda in official routine.
39. RW-8 Gopal Awasthi son of Anirudh Awasthi, Assistant Advertisement Manager, working in the Daily, Ajit Jalandhar, proved Ex. RW8/1, an appeal published in the newspaper issue dated 13.2.2007 of the daily Ajit, on the request of the customer.
40. RW-9 Shadi Lal son of Sardari Lal, Editor of Jagbani, a Newspaper published from Jalandhar, proved appeal Ex. RW9/1 which (appeal) had been published in the newspaper issue dated Election Petition No. 18 of 2007 -19- ***** 12.2.2007. He also proved Ex. RW-9/2 a bill representing deposit of the publication charges of appeal aforementioned. It is also in his testimony that the advertisement aforementioned had been booked by their Agent M/s Partners Chandigarh, SCO No.316, Sector 38-D, Chandigarh.
41. RW-10 Gurjant Singh son of Harbans Singh, an official posted in the office of District Election Officer, Bathinda, made a record-based statement to the effect that original complaint dated 25.1.2007 made by the petitioner Gura singh had been ordered to be 'filed' by the competent authority. It is also in his statement that complainant Gura Singh did not file an affidavit which he had been required to file by the enquiring authority.
42. RW-11 Jaspal Singh son of Teja Singh, Editor, Deshsewak, Sector 29-D, Chandigarh, proved advertisement Ex. RW-11/1 which had appeared in the issue dated 12.2.2007 of that newspaper.
43. RW-12 Avtar Singh son of Nachhatar Singh, resident of village Guniana Kalan, RW-13 Jaswinder Singh son of Bhora Singh, resident of village Goniana Mandi and RW-14 Balbir Singh son of Net Singh, resident of village Akhila Kalan also made statements in tune with the testimony of RW-1 Gurdev Singh and RW-2 Saminder Singh.
44. RW-15 Bohar Singh son of Virsa Singh, resident of village Naina Wala, testified that Dera is a social organisation. Election Petition No. 18 of 2007 -20-
*****
45. RW-16 is Ajaib Singh Bhatti (respondent), who entered the witness box, as his own witness, and denied all the averments made by the petitioner. He also denied having indulged in any corrupt practice in the course of election propaganda. He testified that he had watched the televised discourses of the Dera head and also read in the press that his followers "are entitled to follow religion and political ideology of their own choice". He also denied having authorised any one to canvass votes for him in the name of the Dera. It is also in his testimony that he did not authorise any public servant to canvass any vote for him on whatever account. The CD was described to be a false, fabricated and manipulated affair. Though, after watching the CD which was played in the Court, he could recognise only the then Chief Minister of the State of Punjab and other Ministers in his cabinet as the participants therein, he could neither identify the gentleman compering the programme nor the persons who were recorded in the CD to have sought votes in the name of the Dera.
46. RW-17 Teja Singh son of Major Singh, resident of Gidder testified on oath that the Dera Chief, in the course of televised programme and press coverage, propagated refrain from evil acts and drugs etc. that he advocated tree plantation and that he never propagated the casting of votes in favour of any candidate. He also testified that the Dera is a social organisation.
47. While reiterating the statements made by RW-1 Gurdev Election Petition No. 18 of 2007 -21- ***** Singh and RW-2 Saminder Singh, RW-17-A Ram Lal testified that no body requested him to vote in the name of Dera.
48. The statements made by RW-18 Harpal Singh son of Gurnam Singh, resident of village Ganga Kothe, District Bathinda, RW-19 Mohinder Singh son of Thakra Singh, resident of village Kalya Sukha, District Bathinda, RW-20 Gurtez Singh son of Sarwan Singh, resident of village Bhaini, RW-21 Joginder Singh son of Gurdev Singh, resident of village Nathana, RW-22 Harnek Singh son of Jagat Singh, resident of village Mari, District Bathinda, RW-23 Rattan Singh son of Gamdur Singh, resident of village Bucho Kalan, District Bathinda, RW-24 Gurmail Singh son of Balwant Singh, resident of village Lehra Sandha, RW-27 Sukhdev Singh son of Harnek Singh, resident of village Barnala, RW-28 Kulwant Singh son of Bogha Singh, resident of village Lehra Khanna, RW-29 Harbans Singh son of Thakur Singh, resident of village Baath, RW-30 Jarnail Singh son of Chand Singh, resident of village Guniana Khurd, RW-31 Ranjit Singh son of Sukhminder Singh, resident of village Bihar Vanju, RW-32 Dharam Singh son of Bhag Singh, resident of village Mari, RW-33 Gurmail Singh son of Jang Singh, resident of village Bodi Talla, RW-35 Bikram Singh son of Shiv Shanker Singh, resident of village Phulla, RW-36 Chamkaur Singh son of Nachhatar Singh, resident of village Phulli, RW-38 Gurcharan Singh son of Amolakh Singh, resident of village Chakh Bakhtu, RW-39 Tikka Ram son of Chanan Singh, resident of village Chak Bakhtu, RW-40 Kehar Singh Election Petition No. 18 of 2007 -22- ***** son of Tara Singh, resident of village Chakh Ram Singhwala, RW-43 Sukhbir Singh son of Karnail Singh, resident of village Kot Natha Singhwala and RW-44 Sukhdev Singh son of Karam Singh, resident of village Indersinghwala are in accord with the tenor of statements made by RW-1 Gurdev Singh and RW-2 Saminder Singh.
49. RW-25 Jagjit Singh son of Joginder Singh, resident of village Lehra Bega, testified that there are no followers of Dera Sacha Sauda in his village.
50. RW-26 Ram Pal son of Surjit Singh, resident of village Lehra Mohabat testified that there are no followers of Dera Sacha Sauda in village Lehra Mohabat.
51. RW-34 Surinder Pal Singh son of Dara Singh, resident of village Bajawana testified that there are no followers of Dera Sacha Sauda in village Bajwana.
52. RW-37 Resham Singh son of Kulwant Singh, resident of village Sema testified that there are no followers of Dera Sacha Sauda in village Sema.
53. RW-41 Ajit Singh son of Sher Singh, resident of village Joganand, and RW-42 Jagroop Singh son of Nand Singh, resident of village Tungwali, RW-46 Sukhpal Singh son of Lakhbir Singh, resident of village Kothe Indersinghwala, RW-47 Rachhpal Singh son of Baljinder Singh, resident of village Kothe Mala Singh, RW-48 Nachhatar Singh son of Amarjit Singh, resident of village Kothe Budh Singhwala and RW-49 Jagroop Singh son of Sarwan Singh, resident Election Petition No. 18 of 2007 -23- ***** of village Kothe Sandhuian Wale testified that nobody canvassed votes from them in the name of the Dera.
54. RW-45 Sukhminder Singh son of Karnail Singh, resident of village Kotha Ajitsinghwala, testified that there are no followers of Dera Sacha Sauda in village Kotha Ajitsinghwala.
55. RW-49-A Nahar Singh son of Jeet Singh, resident of village Bucho Kalan testified that none in the village is a Dera Premi.
56. RW-50 Sukhpal Singh son of Ginder Singh, resident of village Buchho Khurd testified that none out of 3200 enrolled voters in his village is a follower of the Dera and that none demanded vote from him in the name of the Dera.
57. RW-51 Jagsir Singh son of Karam Singh, resident of village Harangpura testified that none in the village is a Dera Premi.
58. RW-52 Gurtez Singh son of Malkeet Singh, resident of village Khamuana testified that there are no followers of Dera Sacha Sauda in his village.
59. RW-53 Hakam Singh Insan son of Rattan Singh, resident of village Mehma Sarja, who claimed to be Sikh by religion, a follower of Dera Sacha Sauda and also holder of a placement in hierarchy thereof, testified that the respondent Ajaib Singh Bhatti is neither a follower of Dera nor did he visit Dera Salabatpura. It is also in his statement that the Dera has no political wing, that the Dera advocates voting as per individual conscience and that there had never been a political understanding (between the Dera and the Election Petition No. 18 of 2007 -24- ***** Indian National Congress Party).
60. RW-54 Lakhwinder Singh Insan son of Harnek Singh, resident of village Mehma Sarkari, also claiming to be a Dera follower, testified that Dera is a social organisation, that he attended the gathering of Dera followers at Salabatpura on 4.2.2007, that gathering was for the purpose of Nam Charcha only and that the Guru advised the gathering to vote as per individual conscience.
61. It may be pointed out that it was agreed on 6.10.2009 that respondent Ajaib Singh Bhatti shall be examined on 23.10.2009 and further that the other witnesses shall be examined only thereafter. It is apparent from the record that no objection to the examination of other witnesses prior to the examination of the respondent had been taken.
62. The learned counsel for the respondent gave up the following cited witnesses as being unnecessary:-
63. Nachhatar Singh son of Pritam Singh, Ajmer Singh son of Santa Singh, Hardip Singh son of Charanjit Singh and Gursewak Singh son of Makhan Singh on 23.10.2009.
64. Nirmal Singh on 28.10.2009.
65. Kulwinder Singh son of Nirbhai Singh and Bachittar Singh son of Kartar Singh on 29.10.2009.
66. Balbir Singh son of Dalip Singh and Boota Singh son of Bant Singh on 3.11.2009.
67. Gurcharan Singh son of Sarjit, Baldev Singh son of Election Petition No. 18 of 2007 -25- ***** Chetan Singh and Kundan Singh son of Jang Singh on 6.11.2009.
68. Amrik Singh son of Sardara, Harbans Singh son of Bogha Singh and Sukhminder Singh son of Mogha Singh on 9.11.2009.
69. Avtar Singh son of Balwant Singh and Nachhatar Singh son of Karnail Singh on 10.11.2009.
70. Malkit Singh son of Gurdev Singh on 12.11.2009.
71. Kirpal Singh son of Nachhatar Singh, Harbans Singh son of Niranjan Singh, Gurdev Singh son of Jita Singh and Kuku Singh son of Mohinder Singh on 20.11.2009.
72. Sukhraj Singh son of Darshan Singh and Avtar Singh son of Natha Singh on 23.11.2009.
73. Karam Singh son of Gauda Singh, Sukhwinder Singh son of Sukhdev Singh, Gurpinder Singh son of Jaswant Singh, Gurdit Singh son of Phara Singh and Darshan Singh son of Nand Singh on 25.11.2009.
74. Mukhtiar Singh, Ex-Sarpanch, Gurdial Singh son of Jagir Singh and Gurmail Singh son of Major Singh on 26.11.2009.
75. Baljit Singh son of Basant Singh, Gurmeet Singh son of Nazar Singh and Malkiat Singh son of Kheta Singh on 27.11.2009.
76. Karamjit Singh son of Gurcharan Singh, Ranjit Singh sonof Balbir Singh and Gurlal Singh son of Baldev Singh on 30.11.2009.
77. Harminder Singh Sandhu son of Swaran Singh, Kuldeep Election Petition No. 18 of 2007 -26- ***** Singh son of Karnail Singh and Gurdip Singh son of Karam Singh on 7.12.2009.
78. The respondent's evidence was closed by the learned Counsel appearing on behalf of the respondent on 7.12.2009
79. Learned Counsel appearing on behalf of the petitioner made a statement that he does not want to produce any rebuttal evidence.
80. Before proceeding further, we may notice that the petitioner herein challenged the validity of the impugned election on the following precise averments:-
i) That the respondent canvassed votes in the name of Dera which (Dera) had also appealed to its followers to vote for the congress candidates in pursuance of an (electoral) understanding between the Dera and the Indian National Congress.
ii) For appealing to the followers, a congregation of the Premis had been held at Salabatpura on 4.2.2007 wherein the speakers including the respondent canvassed votes for the congress candidate in the name of the Dera. Certain press notes/appeals had also been issued in the various newspapers vide which the Dera, head and Ram Singh, the chief of Political Wing of the Dera, canvassed votes for the respondent in the name of the Dera.Election Petition No. 18 of 2007 -27-
*****
iii) Three Public servants ( Manjit Singh Bakshi, DPRO, Bhatinda and Waheguru Pal Singh, APRO, Bhatinda and ASI Bhag Singh, Police Station, Nathana) had canvassed votes for the respondent.
iv) Further averment made by the petitioner is that the acts done by the aforesaid three public servants and the various appeals issued by the Dera were at the instance of and with the active consent of the respondent herein.
81. Respondent denied having ever sought votes in the name of Dera or his having authorised any one to canvass votes in the name of the Dera. He also denied that the aforesaid three named public servants at all canvassed votes for him or that they had done so with his active consent or at his instance.
82. The testimony of PW-2-Gurcharan Singh, Election Kanungo (Office of the District Election Officer, Bathinda) pertains to the disposal of two complaints made by the petitioner herein.
83. PW-3 Teja Singh, PW-4 Baldev Singh, PW-10 Jasbir Singh, PW-12 Rajinder Singh testified to the proceedings of the Salabatpura congregation held on 4.2.2007.
84. PW-5 Parkash Singh, (Chief Editor and Administrator of "Sach Kahoon"), PW-6 (Som Nath Bajaj, an official posted in HRD Department of the Punjabi Tribune), PW-7 (H.S.Bhatti son of Shri Kirpal Singh, an official of the Rojana Spokesman Newspaper), PW- Election Petition No. 18 of 2007 -28-
***** 8 M.M.Ali son of M.N.Ali, (Senior Executive (HR), Indian Express) and PW-9 Rakesh Jain son of Shri Kamal Jain, (Billing Incharge, Jagbani, (Punjab Kesari Group)), deposed to the various press appeals/advertisements relied upon by the petitioner.
85. PW-11 Gurdev Singh, testified that ASI Bhag Singh had canvassed vote from him and his son Gursewak Singh and had further told them that they should refrain from voting for the Akali candidate and should instead vote for the congress candidate.
86. PW-15-Gurdeep Singh claimed that his thought process in the context of casting of votes, was influenced by the appeal issued by the Dera in Rozana Ajit newspaper.
87. PW-14 Rakesh Kumar (Naib Tehsildar, Samana) had proved the CD of a Rally held in the area of Rajgarh (Samana) on 4.2.2007.
88. Besides it, the petitioner herein entered the witness box as PW-1 and had reiterated all the averments made in the course of the petition challenging the election of the respondent herein.
89. RW-1 Gurdev Singh, RW-2 Saminder Singh, RW-3 Jaspal Singh, RW-12 Avtar Singh, RW-13 Jaswinder Singh and RW- 14 Balbir Singh testified having watched televised discourses given by the Dera Chief informing his followers that they could vote as per their conscience and that the Dera has no political ideology.
90. RW-4 Manjit Singh Bakshi, DPRO, Sangrur (posted at Bathinda during the relevant period) and RW-5 Wahe Guru Pal Election Petition No. 18 of 2007 -29- ***** Singh, D.P.R.O., Bathinda (posted as APRO, Bathinda during the relevant period) denied the averments made by the petitioner that they had canvassed votes for the respondent.
91. RW-6 Manjinder Singh testified that Dera head appealed to his followers (by issuance of a press note in Daily Ajit newspaper) that they could vote as per their choice and that Dera has no political affiliation.
92. RW-7 Constable Sikender Singh(posted in the office of SSP, Bhatinda) proved Enquiry report Ex. RW7/1 in the context of complaint against SI Bhag Singh. He also proved original order dated 21.1.2007 vide which the then SSP, Bhatinda had ordered the 'filing' of that report.
93. RW-8 Gopal Awasthi (Assistant Advertisement Manager, working in the Daily Ajit Jalandhar), RW-9 Shadi Lal (Editor of Jagbani, a Newspaper published from Jalandhar) and RW-11 Jaspal Singh (Editor, Deshsewak, Sector 29-D, Chandigarh) proved the factum of issuance of various appeals/advertisements in the news papers to which they belong.
94. RW-10 Gurjant Singh, (an official witness posted in the District Election Office, Bathinda) proved the 'filing' of the complaint dated 25.1.2007 made by petitioner Gura Singh.
95. RW-15 Bohar Singh and RW-17 Teja Singh testified that Dera is a social organisation.
96. RW-17 Ram Lal testified that no body requested him to Election Petition No. 18 of 2007 -30- ***** vote in the name of the Dera.
97. The statements made by RW-18 Harpal Singh, RW-19 Mohinder Singh, RW-20 Gurtez Singh, RW-21 Joginder Singh, RW- 22 Harnek Singh, RW-23 Rattan Singh, RW-24 Gurmail Singh, RW- 27 Sukhdev Singh, RW-28 Kulwant Singh, RW-29 Harbans Singh, RW-30 Jarnail Singh, RW-31 Ranjit Singh, RW-32 Dharam Singh , RW-33 Gurmail Singh, RW-35 Bikram Singh, RW-36 Chamkaur Singh, RW-38 Gurcharan Singh, RW-39 Tikka Ram, RW-40 Kehar Singh, RW-43 Sukhbir Singh and RW-44 Sukhdev Singh are in accord with the tenor of statements made by RW-1 Gurdev Singh and RW-2 Saminder Singh.
98. RW-25 Jagjit Singh, RW-26 Ram Pal, RW-34 Surinder Pal Singh, RW-37 Resham Singh, RW-45 Sukhminder Singh, RW- 49-A Nahar Singh, RW-50 Sukhpal Singh, RW-51 Jagsir Singh, RW- 52 Gurtez Singh testified that there are no followers of Dera Sacha Sauda in their villages.
99. RW-41 Ajit Singh, RW-42 Jagroop Singh, RW-46 Sukhpal Singh, RW-47 Rachhpal Singh, RW-48 Nachhatar Singh and RW-49 Jagroop Singh testified that nobody canvassed vote from them in the name of the Dera.
100. RW-53 Hakam Singh Insan, holder of a placement in hierarchy of the Dera Sacha Sauda. testified that the respondent Ajaib Singh Bhatti is neither a follower of Dera nor did he visit Dera Salabatpura. He further testified that the Dera has no political wing, Election Petition No. 18 of 2007 -31- ***** that Dera advocates voting as per individual conscience and that there had never been a political understanding between the Dera and the Indian National Congress.
101. RW-54 Lakhwinder Singh Insan, a Dera follower, testified that Dera is a social organisation, that he attended the gathering of Dera followers at Salabatpura on 4.2.2007, that the gathering was for the purpose of Nam Charcha only and that the Guru advised the gathering to vote as per individual conscience.
102. Insofar as the respondent is concerned, he appeared as his own witness as RW-16 and denied all the attributions in toto.
103. Insofar as the issues Nos.4 and 5 concerned, a plea made by the respondent herein for treating those as preliminary in character was negatived by this Court vide order dated 15.9.2008 and there is nothing on record to indicate that the order has been set aside by the Apex Court till date.
104. Before undertaking the adjudicatory exercise, it would be appropriate to pointedly notice the nature of proof required to be adduced by a petitioner to succeed in obtaining the invalidation of an election of this category.
105. In Borgaram Deuri Vs. Premodhar Bora and another JT 2004(1) SC 102, the Apex Court held as under:-
"The allegation of corrupt practices considered to be quasi-criminal in nature. The standard of proof required for proving corrupt practices for all intent and purposes Election Petition No. 18 of 2007 -32- ***** equated with the standard expected in a criminal trial. For the said purpose, the charges must proved beyond reasonable doubt and not merely by preponderance of probabilities as in civil action.
The difference between an election petition and a criminal trial is, whereas an accused has the liberty keep silence during the trial of an election petition, the returned candidate has to place before the Court his version and satisfy the Court that he had not committed the corrupt practices as alleged in the petition. The burden of the election petitioner, however, can be said to have been discharged only if and when he leads cogent and reliable evidence to prove charges levelled against the returned candidate."
106. Likewise, the following law was laid down by the Apex Court in the context in P.C.Thomas Vs. P.M.Ismail and others 2009(4) RCR (Civil) 293:-
"1. Charge of corrupt practice is akin to a criminal charge-The standard of proof thereof would not be preponderance of probabilities as in a civil action but proof beyond reasonable doubt as in a criminal trial.
2. The onus lies heavily on the election petitioner to make out a strong case for setting aside an Election Petition No. 18 of 2007 -33- ***** election.
3. The same evidence which may be sufficient to regard a fact as proved in a civil suit, may be considered insufficient for a conviction in a criminal action.
4. It is equally well settled that while insisting upon the standard of proof beyond a reasonable doubt, the Court are not required to extend or stretch the doctrine to such an extreme extent as to make it will nigh impossible to prove any allegation of corrupt practice."
107. In Quamarul Islam Vs. S.K.Kanta and others 1994 Supp. (3) Supreme Court Cases 5, it was held by the Apex Court that mere production of a copy of newspaper instead of the original manuscript cannot be treated as proof of the reports and messages/advertisements and further that the newspaper reports are only hearsay evidence. It was further held that the maker of the report must also depose before the Court about the contents of the publication before those could be accepted as legally admissible evidence.
108. It was likewise held in Harcharan Singh Brar Vs. Sukhdarshan Singh and others 2004(2) the Punjab Law Reporter 757, that judicial notice cannot be taken of the newspaper reports and that a news item, without any further proof of what had Election Petition No. 18 of 2007 -34- ***** actually happened through witnesses, is of no evidentiary value. It is, at best, a second hand and secondary evidence.
109. Insofar as the appreciation of oral evidence in an election petition is concerned, the law laid down by the Apex Court in Kanhaiyalal Vs. Mannalal and others AIR 1976 Supreme Court 1886 is extracted hereunder:-
"Oral testimony will have to be judged with the greatest care and an electoral victory cannot be allowed to be nullified by a mouthful of oral testimony without contemporaneous assurance of a reliable nature from an independent source.
An election dispute is not a private fend between one individual and another. The whole constituency is intimately involved in such a dispute. Shaky and wavering oral testimony of a handful of witness cannot still the dominant voice of the majority of an electorate."
110. Having noticed the respective stances of the parties in the context of the validity or otherwise of the impugned election, the nature of evidence adduced and burden of proof required therefor, I proceed to record the issue wise findings as under:-
Issue No.1
111. It would be evident from a conjunctive perusal of paras 5 and 6 of the petition that the crux of the subject is with regard to role of Dera Sacha Sauda in appealing to its followers to vote for the Election Petition No. 18 of 2007 -35- ***** candidates sponsored by Congress Party. The averment, in the context, is that in pursuance of above decision, a congregation of Dera followers was held at Salabatpura on 4.2.2007 wherein Ram Singh (who had been appointed to head a seven members Committee constituted by the Dera to execute the purpose aforementioned) also addressed the congregation and asked the Premis who had gathered over there to vote for the respondent who was a candidate sponsored by the Congress Party. It would require pertinent notice that there is not even a word in the course of the pleadings i.e. paras 5 and 6 beyond that the above appeal was announced to the Dera followers.
112. It was argued by the learned Counsel appearing on behalf of the petitioner that the above appeal itself amounted to a corrupt practice inasmuch-as it was to the notice of those appealing that Dera followers would not disobey the appeal. This, the argument proceeded, amounted to a corrupt practice inasmuch as it interferred with the exercise of discretion to vote as per one's conscience and it affected the outcome of the election.
113. The plea was resisted by the learned Counsel for the respondent who argued that the issuance of a mere appeal of the indicated category could not be said to amount to a corrupt practice inasmuch as religious leader or leaders of various sects are entitled to raise whatever appeal they want and it cannot be said to be sufficient to influence the mind of the followers. Election Petition No. 18 of 2007 -36-
*****
114. I have not been able to persuade myself to find any force in the plea on behalf of the petitioner. The following observations shall support this view of mine.
115. Like any other citizen, a religious or sect leader has the entitlement to use his influence amongst his followers and to make an appeal to them to vote for a particular candidate. If the appeal ends there only, the validity thereof cannot be faulted. However, if the appeal crosses bounds of persuasion and goes over to announce that the followers not complying with the appeal would incur any type of divine displeasure and ex-communication etc., it would amount to making it compulsive for the followers to respond in affirmative. It is, then, that the appeal could safely be described to be a corrupt practice and it could also be held that the religious sect leader had exercised undue influence over the followers in terms of provisions of Section 123 (2) of the Act.
116. A similar view was obtained by the Kerala High Court in P.R. Francis Vs. Raghavan Pozhakadavil and others AIR 1981 Kerala, 64, which is extracted hereunder:-
"As any other citizen can use his influence amongst such electors as those over whom he has influence, a man of religion is also entitled to use his influence amongst his followers over whom he has influence. However, in both cases wielding of such influence as each of them has over those within his sphere of influence will become an Election Petition No. 18 of 2007 -37- ***** abuse thereof amounting to the corrupt practice of undue influence within the meaning of S.123(2) if two conditions are obtained, namely, (i) if they pass the bounds of persuasion and use compulsion of any sort in any manner including appeal to the fears of divine displeasure, spiritual ensure, expulsion social ostracism or excomunication; and (ii) compulsion is so used with the consent of the candidate or his election agent."
117. Though, it cannot be denied on point of fact, that one of the witnesses examined by petitioner ( PW-12 Rajinder Singh) testified that the audience was told (by Ram Singh) that it should vote for candidate sponsored by the Congress Party, ("if we wanted to attain salvation, we should be voting for the congress party or else we would be treated as sinners."), this part of the testimony of Rajinder Singh cannot be read in evidence as being beyond the scope of pleadings. It is, even otherwise, not corroborated by other witnesses examined by the petitioner who (witnesses) claimed to have attended the Salabatpura congregation held on 4.2.2007.
118. Likewise, it is only some of the witnesses (PW-10 Jasbir Singh and PW-12 Rajinder Singh) who testified that the followers had been called upon not only to themselves vote for the candidates sponsored by the Congree Party but also to garner 3-4 other votes per head as well. That part of the evidence is also beyond the scope of pleadings and cannot be read in evidence. Apart therefrom, the Election Petition No. 18 of 2007 -38- ***** testimony of those two witnesses to the above effect is not cemented by other witnesses who, as already stated, claimed to have attended Salabatpura congregation.
119. I have, thus, no manner of hesitation in holding that the appeal issued at Salabatpura congregation cannot be said to amount to a corrupt practice in terms of provisions of Section 123 (2 of the Act.
120. Insofar as the news items testified to by PW-5 Parkash Singh, PW-6 Som Nath Bajaj, PW-7 H.S.Bhatti son of Shri Kirpal Singh, PW-8 M.M.Ali son of M.N.Ali, and PW-9 Rakesh Jain son of Shri Kamal Jain, (functionaries in the employment of the various newspapers at different hierarchal levels) are concerned, it requires to be noticed at the very outset, that the news items cannot be treated as substantive evidence of the facts contained therein inasmuch-as the correspondents, who were the resource persons thereof, were not examined at the trial and there also is no evidence on record to prove that those facts had actually occurred. For holding that view, I am supported by the law laid down by the Apex Court in Quamarul Islam's case (supra) and also the law laid down in Harcharan Singh Brar's case (supra).
121. It would be relevant and interesting to note that it is in the statement of none else or other than the petitioner himself that Dera sect did not issue any appeal to the Premis through the newspapers to vote for the congress candidates("In the newspaper, the Dera sec Election Petition No. 18 of 2007 -39- ***** chief did not issue any appeal to the 'Premis' to vote for the congress candidates.")
122. Insofar as the advertisements/appeals, purporting to have been issued on behalf of the Dera Sacha Sauda, are concerned, those too cannot be treated as substantive evidence in view of the fact that neither the persons, at whose instance those had been issued, were examined at the trial nor is there any other independent proof of the fact that those appeals had actually been issued on behalf of the Dera and/or with the active consent of or at the instance of the respondent.
123. Even otherwise, the petitioner cannot wish away the large volume of evidence in the testimony of RW-1 Gurdev Singh, RW-2 Saminder Singh, RW-3 Jaspal Singh, RW-12 Avtar Singh, RW-13 Jaswinder Singh and RW-14 Balbir Singh. RW-18 Harpal Singh, RW-19 Mohinder Singh, RW-20 Gurtez Singh, RW-21 Joginder Singh, RW-22 Harnek Singh, RW-23 Rattan Singh, RW-24 Gurmail Singh, RW-27 Sukhdev Singh, RW-28 Kulwant Singh, RW-29 Harbans Singh, RW-30 Jarnail Singh, RW-31 Ranjit Singh, RW-32 Dharam Singh , RW-33 Gurmail Singh, RW-35 Bikram Singh, RW-36 Chamkaur Singh, RW-38 Gurcharan Singh, RW-39 Tikka Ram, RW- 40 Kehar Singh, RW-43 Sukhbir Singh and RW-44 Sukhdev Singh to the effect that they had watched the televised discourses of the Dera sect head wherein he had informed his followers that they could vote as per their conscience and that the Dera had no political ideology. Election Petition No. 18 of 2007 -40-
*****
124. It would not be out of place to notice here that RW-8 Gopal Awasthi (Assistant Advertisement Manager, working in the Daily Ajit Jalandhar), RW-9 Shadi Lal (Editor of Jagbani, a Newspaper published from Jalandhar) and RW-11 Jaspal Singh (Editor, Deshsewak, Sector 29-D, Chandigarh) had duly proved the factum of issuance of various appeals/advertisements in the newspapers to which they belonged on behalf of the Dera Sacha Sauda to the effect that Dera had no political ideology and that the Dera followers ought to vote as per their conscience.
125. Insofar as the RW-25 Jagjit Singh, RW-26 Ram Pal, RW-34 Surinder Pal Singh, RW-37 Resham Singh, RW-45 Sukhminder Singh, RW-49 Nahar Singh, RW-50 Sukhpal Singh, RW-51 Jagsir Singh, RW-52 Gurtez Singh are concerned, they testified that there are no followers of Dera Sacha Sauda in their villages. There is nothing in their cross-examination which could impeach or shake their credit. Even otherwise, the petitioner has not, at all, been able to quantify the (electoral) influence which the Dera followers could exercise. As PW-1, the petitioner initially stated that he had not prepared any list of the Dera Premis owing allegiance to the Dera, that he cannot concede or deny if the number of 'Premis' in the State of Punjab could be one lac, five lacs or ten lacs, that he cannot give the exact/approximate district-wise breakup of the Premis in the State of Punjab and that the (exact) figure can be ascertained from the list maintained by the Election Petition No. 18 of 2007 -41- ***** Bhangidass. However, in a latter part of the cross-examination, he testified that "Those list containing the names of the 'Premis' were made available to me". He again falsified himself by conceding that "I had not personally seen State-wise and District-wise list of 'Premis' which had been prepared. These lists may be available at the Headquarter of Dera Sacha Sauda." The petitioner was, thus, trying to blow hot and cold in the same breath. On the one hand, he quantified the number of Premis in the Nathana assembly constituency at 25000 and also claimed that the list of Premis had been made available to him, he tried to beat a hasty retreat in the latter part of the cross-examination by stating that he had not personally seen those lists.
126. Insofar as the statements made by PW-3 Teja Singh, PW-4 Baldev Singh, PW-10 Jasbir Singh are concerned, those are not based on any documentation and are oral in character. Those cannot, perse, be relied upon to over turn the electoral verdict particularly in the absence of their having been buttressed by an independent source. The controversy about the value to be attached to oral testimony of this category came up for consideration before the Apex Court in Kanhaiyalal Vs. Mannalal and others AIR 1976 Supreme Court 1886. The observations made by the Court therein are extracted hereunder:-
"Oral testimony will have to be judged with the greatest care and an electoral victory cannot be allowed to be Election Petition No. 18 of 2007 -42- ***** nullified by a mouthful of oral testimony without contemporaneous assurance of a reliable nature from an independent source.
An election dispute is not a private fend between one individual and another. The whole constituency is intimately involved in such a dispute. Shaky and wavering oral testimony of a handful of witness cannot still the dominant voice of the majority of an electorate."
127. It is also argued by the learned counsel for the respondent that certain other candidates, who unsuccessfully contested 2007 assembly election as candidates of Shiromani Akali Dal had also levelled similar allegations against the winning candidates and some of those petitions were dismissed on merits; while few others came to be dismissed in default. Thus, it was argued, there is a tendency on the part of the candidates of the same hue to level averments which are either not established at the trial or those remained unestablished on account of the refrain on part of those candidates in pursuing the petitions filed by them.
128. It is apparent, from a perusal of the record, that the averments aforementioned made on behalf of the respondent are factually correct.
129. Ex. R/4 is a certified copy of order dated 10.8.2009 vide which the election petition No.11 of 2007 filed by Darshan Singh against Makhan Singh was ordered to be dismissed in default. Ex. Election Petition No. 18 of 2007 -43-
***** R-3, is a copy of the petition filed by the petitioner therein. It would be apparent from a perusal of para 4 to 7 thereof that allegations similar to those made by the petitioner herein had been made.
130. Likewise, Ex. R/6 is a certified copy of order dated 11.9.2009 vide which the election petition No.21 of 2007 filed by Sadhu Singh Rajeana against Darshan Singh Brar and others was ordered to be dismissed in default. Ex. R-5, is a copy of the petition filed by the petitioner therein. In that petition too, similar averments qua the influence used by the Dera had been made in the course of paras 7 to 18 and 20 of the petition.
131. Ex.R/8 is a certified copy of order dated 24.12.2008 vide which the election petition No.8 of 2007 filed by Harbant Singh Datewas against Mangat Rai Bansal was ordered to be dismissed in default. Ex. R-7, is a copy of the petition filed by the petitioner therein. It would be apparent from a perusal of paras 8 to 10-B thereof that allegations similar to those made by the petitioner herein had been made.
132. Ex. R/10 is a certified copy of order dated 21.3.2009 vide which the election petition No.9 of 2007 filed by Amarjit Singh Sidhu against Jeetmohinder Singh Sidhu was ordered to be dismissed on merits. Ex. R-9, is a copy of the petition filed by the petitioner therein. In that case too, similar averments had been made by the petitioner therein.
133. Be that as it may, this Court has observed in the Election Petition No. 18 of 2007 -44- ***** preceding paras that the petitioner has not been able to prove the allegations with regard to exercise of undue influence by Dera Sacha Sauda on the voters of Nathana Assembly Constituency.
134. I would, accordingly, decide issue no.1 against the petitioner and in favour of the respondent.
Issue No.2
135. In the context of this issue, the allegation made by the petitioner is that Manjit Singh Bakshi, DPRO, Bhatinda and Waheguru Pal Singh, APRO, Bhatinda) also asked a number of voters of that constituency to vote for the respondent and that they did it at the behest of and "with active consent of the respondent." Three persons (PW-3 Teja Singh, PW-4 Baldev Singh, PW-10 Jasbir Singh) were named as having been contacted by the two officials aforementioned. There is also an allegation in the context that ASI Bhag Singh ( then posted at Police Station, Nathana) had, with active consent and connivance of the respondent, "asked and extracted votes from the people of Nathana". In that context too, two persons were named. Further averment by the petitioner was that he had lodged a complaint about the facts aforementioned with the Election Commission.
136. Insofar as the the last named police official is concerned, it is apparent from a conjunctive perusal of the testimony of PW-2 Gurcharan Singh, Election Kanungo, office of the District Election Officer, Bathinda and RW-7 Constable Sikender Singh posted in the Election Petition No. 18 of 2007 -45- ***** office of SSP, Bathinda that no action came to be taken in that complaint as ASI Bhag Singh had been transferred from that Police Station in the meantime.
137. Insofar as Manjit Singh Bakshi, DPRO, Bhatinda and Waheguru Pal Singh, APRO, Bhatinda are concerned, they entered the witness box and denied the averments on oath. Though they did not dispute that they had been posted with the respondent when the latter was holding the post of Additional Deputy Commissioner, Bhatinda, they categorically denied having done the alleged act and there is nothing in course of their cross-examinations which could indicate any want of trust in their testimony. Insofar as the complaint made by the petitioner against Manjit Singh Bakshi, DPRO, Bhatinda and Waheguru Pal Singh, APRO, Bhatinda is concerned, it is in the record-based testimony of RW-10 Gurjant Singh that the complaint had been ordered to be 'filed' by the competent authority as the maker thereof ( i.e. petitioner in this case) did not opt to file an affidavit in support thereof. It is in evidence that the enquiring authority had called upon the petitioner herein (complainant in that case) to file an affidavit in support of the contents of the complaint but he did not comply and the complaint was ordered to be 'filed' on account thereof.
138. I have, thus, no reservations in holding that the petitioner has not been able to prove this issue which shall stand decided against the petitioner and in favour of the respondent. Election Petition No. 18 of 2007 -46-
***** Issue No.3
139. For want of an affirmative finding in favour of petition under issue no.2, this issue has to be decided against the petitioner and in favour of the respondent.
Issue No.4
140. The subject of this issue stands essentially discussed in the course of para Nos. 120 to 124. Even otherwise, the newspaper reports and the advertisements aforementioned cannot validly be relied upon by the petitioner in support of the allegations in the course of the petition in view of conceded position that copies thereof had not been made available to the respondent with the pleadings at the trial. It is also not a case wherein the contents of news items/advertisements had been reproduced verbatim in the pleadings made by the petitioner. A similar controversy came up before three Judges Bench of the Apex Court in Manohar Joshi Vs. Nitin Bhaurao Patil and another AIR 1996 Supreme Court 796. The following observations made by the Apex Court therein would be relevant to support this view of mine:-
"23. The distinction brought out in the above decisions is, that in a case where the document is incorporated by reference in the election petition without reproducing its contents in the body of the election petition, it forms an integral part of the petition and if a copy of that document is not furnished to the Election Petition No. 18 of 2007 -47- ***** respondent with a copy of the election petition, the defect is fatal attracting dismissal of the election petition under Section 86(1) of the R.P. Act. On the other hand, when the contents of the document are fully incorporated in the body of the election petition and the document also is filed with the election petition, not furnishing a copy of the document with a copy of the election petition in which the contents of the document are already incorporated, does not amount to non-compliance of Section 81(3) to attract Section 86(1) of the R.P. Act. In other words, in the former case the document filed with the election petition is an integral part of the election petition being incorporated by reference in the election petition and without a copy of the document, the copy is an incomplete copy of the election petition and, therefore, there is non-compliance of Section 81(3). In the other situation, the document annexed to the petition is mere evidence of the averment in the election petition which incorporates fully the contents of the document in the body of the election petition and, therefore, non-supply of a copy of document is mere non-supply of a document which is evidence of the everments in the election petition and, therefore, there is no non-compliance of Section 81(3). In U.S. Sasidharan Election Petition No. 18 of 2007 -48- ***** (supra), this distinction is clearly brought out as under:-
"........ The material facts or particulars relating to any corrupt practice may be contained in a document and the election petitioner, without pleading the material facts or particulars of corrupt practice, may refer to document. When such a reference is made in the election petition, a copy of the document must be supplied inasmuch as by making a reference to the document and without pleading its contents in the election petition, the document becomes incorporated in the election petition by reference. In other words, it forms an integral part of the election petition. Section 81(3) provides for giving a true copy of the election petition. When a document forms an integral part of the election petition and a copy of such document is not furnished to the respondent along with a copy of the election petition, the copy of the election petition will not be a true copy within the meaning of Section 81(3) and, as such, the court has to dismiss the election petition under Section 86 (1) for non-compliance with Section 81(3)."
"On the other hand, if the contents of the document in Election Petition No. 18 of 2007 -49- ***** question are pleaded in the election petition, the document does not form an integral part of the election petition. In such a case, a copy of the document need not be served on the respondent and that will not be non-compliance with the provision of Section 81(3). The document may be relied upon as an evidence in the proceedings. In other words, when the document does not form an integral part of the election petition, but has been either referred to in the petition or filed in the proceedings as evidence of any fact, a copy of such a document need not be served on the respondent along with a copy of the election petition."
141. I have, thus, no reservations in holding that the petitioner has not been able to prove this issue which shall stand decided against the petitioner and in favour of the respondent. Issue no.5
142. No arguments were addressed in respect of this issue which shall, accordingly, stand disposed of against the respondent and in favour of the petitioner.
Additional issue No. (i)
143. The fact of negativing of petitioner's plea on merits notwithstanding, there is nothing on the file to indicate that the petition lacked any material facts or particulars. This issue shall stand disposed of, accordingly, against the respondent and in favour Election Petition No. 18 of 2007 -50- ***** of the petitioner.
Additional issue No. (ii)
144. The petitioner herein challenged the validity of the election of the respondent on a precise averment that the latter had committed corrupt practices. That the allegations could not be proved is an altogether different facet. It cannot, thus, be said that the petitioner herein had no cause of action to file an election petition. This issue shall stand disposed of, accordingly, against the respondent and in favour of the petitioner.
Additional issue No. (iii)
145. It stands held under issue No.4 that the petitioner herein cannot validly rely upon the various newspaper reports/appeals. That finding notwithstanding, it cannot be said that those averments deserve to be struck out from the pleadings. This issue shall stand disposed of, accordingly, against the respondent and in favour of the petitioner.
Issue No.6(Relief)
146. In the light of foregoing discussion, the petition is held to be denuded of merit and shall stand dismissed accordingly, with costs quantified at Rs.5,000/-. The Security of Rs.2000/-, deposited by the petitioner, shall stand forfeited. The balance amount of Rs.3000/- shall be recovered from the petitioner.
April 19, 2010 (S. D. ANAND)
Pka JUDGE
Election Petition No. 18 of 2007 -51-
*****