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Satya Nand Sharma vs Kaushlendra Kumar & Ors on 23 March, 2017 cites

Ram Sharan Yadav vs Thakur Muneshwar Nath Singh And Ors on 30 October, 1984

In Ram Saran Yadav vs. Thakur Muneshwar Nath Singh & Ors. AIR 1985 SC 24, on which reliance has been placed by the election petitioner, the Supreme Court found the plea of alibi of the Returned Candidate unnatural and not satisfactory. The Apex Court also noticed that the Returned Candidate had not stated in his written statement that he had not gone to the polling booth in question. The explanation given by the Returned Candidate was lame explanation which was held as an afterthought. It was found to be the one taken for the first time in Court when he came in the witness box. It has, thus, been argued with much emphasis that the present case is squarely covered by the Patna High Court E.P. No.2 of 2014 dt. 23-03-2017 20/27 enunciation of law made on this point by the Hon‟ble Apex Court. In the present case, it is found that in para-6 of the written statement of the Returned Candidate while denying the allegation of having indulged in corrupt practice by him, it has been stated that respondent no.1 ( Returned Candidate) had never went on the date of poll to booth no. 128. None of the electorates were scared either by the respondent no.1 or his supporters at the said booth in his presence. It is, thus, not a case where the plea of this nature while denying the allegation made by the election petitioner was taken by the respondent quite abruptly only while deposing in the Court bereft of the pleading made in this regard. It has been submitted by the election petitioner that the evidence of the Returned Candidate (RW7) on this aspect is completely evasive as the Returned Candidate in his deposition has not disclosed about the place where he was on the date of poll. He has only stated that he remained at his village on the date of poll and did not visit the Kosut polling station. The alibi taken by him, therefore, does not inspire confidence. It is an afterthought. The witness ought to have disclosed the place where he was present on the date of poll. There is no dispute at the Bar that allegation of using corrupt practice during the poll is akin to the criminal charge. The first legal duty is on the allegator (election petitioner) to prove by cogent evidence that actually the voters were scared away from the polling booth by the Returned Candidate or his supporters in his Patna High Court E.P. No.2 of 2014 dt. 23-03-2017 21/27 presence whereafter the onus would shift on the Returned Candidate. The Court is, therefore, obliged to examine whether the burden of proof has been adequately discharged by the election petitioner. As noticed, oral evidence and counter oral evidence has been led on this point by both the parties. It is also apparent that no complaint of such scaring away of those witnesses was lodged with the police personnel(s) or the patrolling party who had visited on few occasions the polling booth or stationed thereat. The witnesses of the election petitioner remained near the polling booth for a quite long time. Except informing the election agent of the election petitioner they did nothing. The Magistrate overseeing the smooth poll or the armed police personnel stationed at the booth were not informed. It is also not a case of physical assault on any supporters/voters of the election petitioner which was promptly reported to the police or armed police personnel(s) stationed at the booth. It has been argued with reference to the Annexures 1 to 4 appended to the election petition (marked as Exts. 6 to 9) that there are contemporaneous documents to show that the incident was promptly reported to the Returning Officer as well as the E.C.I. I have already noticed that those documents were not made available to the Court with an explanation that they were never filed and are available on the record. Turning to the evidence of RW-4 (Deputy Election Officer), it is found that any such complaint filed was processed and the result thereof made available to the ECI. Thus, Patna High Court E.P. No.2 of 2014 dt. 23-03-2017 22/27 complaints in course of polling were supposed to receive in the office of this witness which, however, were not received, processed and result thereof communicated to the ECI. The allegation of having indulged in corrupt practice being akin to a criminal charge was required to be demonstrated convincingly whereafter the burden would shift on the Returned candidate. RW-6 was the Presiding Officer at the said booth on the date of poll. He is required in law to maintain a diary. If any illegality/irregularity or mis-happening occurs during the polls he is obliged to enter the same in his diary. This witness has clearly stated that as no such incident had occurred, he had not entered the same in the Presiding Officer‟s diary.
Supreme Court of India Cites 7 - Cited by 46 - S M Ali - Full Document
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