Reserved on 2.9.2021 Delivered on 24.12.2021
Court No. - 39
Case :- ELECTION PETITION No. - 2 of 2016 Petitioner :- Jitendra Yadav Respondent :- Banwari Singh Yadav Counsel for Petitioner :- In Person,Arvind Kumar Mishra,Jitendra Yadav,K.R. Singh,N K Pandey Counsel for Respondent :- Rahul Yadav,Abhilasha Singh,Rahul Yadav,Vijendra Singh
Hon'ble Mrs. Sunita Agarwal,J.
1. Heard Sri N.K. Pandey and Sri K.R. Singh learned counsels for the election petitioner.
2. This election petition has been presented under Sections 80, 80-A/81 of the Representation of People Act, 1951 (In short as “the R.P. Act”) by Sri Jitendra Yadav (herein referred to as “the election petitioner”) who had lost in the biennial election of the Uttar Pradesh Legislative Council from Budaun Local Authority Legislative Council Constituency. The election was notified vide notification dated 29.1.2016 issued under Section 16 of the R.P. Act.
3. As per the election programme, polling was conducted on 3.3.2016. The election petitioner was a candidate of the Bhartiya Janta Party (B.J.P.) and the returned candidate was set up by the Samajwadi Party (S.P.). The election petitioner was the sitting member of the Legislative Council, Budaun Local Authority Council Constituency at the time of the election in question. The result of the election was declared on 6.3.2016 wherein the election petitioner had received 416 votes whereas 1723 votes were obtained by the returned candidate. Out of total 2168 votes, 29 votes were declared invalid resulting into 2139 valid votes.
4. The election petition has been filed on the grounds that the returned candidate, his election agent, polling agents, workers and supporters with the consent of the returned candidate and the election agent of the returned candidate had committed corrupt practices of Booth capturing as defined under Section 123(8) readwith Section 135-A of the R.P. Act within the meaning of Section 123(2) of the Act.
It is contended that the polling agents of the returned candidate at respective polling stations with the workers, supporters and other associates of the returned candidate with his consent and that of his election agent had captured the polling booths and forcibly snatched the ballot papers from the hands of the electors who went to cast their votes and recorded the votes in favour of the returned candidate by marking '1' and, thus, committed corrupt practices within the meaning of Section 123(8) readwith Section 135-A of the R.P. Act.
The second ground is that the returned candidate, his election agent, workers, supporters and polling agents with his consent had committed corrupt practice of causing undue influence by directly/indirectly interfering in the free and fair exercise of the electoral rights of the electors of the Constituency, by extending threat and creating an atmosphere of terror by forcibly lifting the electors from their houses and keeping them at a particular place and, thus, committed corrupt practice of undue influence within the meaning of Section 123(2) of the R.P. Act.
Apart from these two grounds, it was also contended that the returned candidate, his election agent, workers and supporters with his consent and the consent of his election agent had procured and attempted to procure the assistance of the State Government servants such as the District Panchayat Raj Officer, Budaun, the Block Development Officer and other subordinate employees of the respective Kshetra Panchayat of District Budaun, who were appointed/deployed as Presiding Officers/Polling Officers at respective polling stations/booths and also the police personnel of Districts Budaun and Bareilly for the furtherance of the prospectus of the election of the returned candidate and, thus, the returned candidate had committed corrupt practices within the meaning of Section 123(7) of the R.P. Act.
5. With the above contentions, it is prayed that the election petitioner is entitled for a declaration as contemplated under Section 101(b) of the R.P. Act to seek exclusion of the votes obtained by the returned candidate by corrupt practices of Booth capturing and undue influence and other corrupt practices as stated in the election petition. The reason is that the result of the election, insofar as it concerned the returned candidate has been materially affected by non-compliance of the provisions of the Constitution of India, R.P. Act, Rules and Orders framed under the R.P. Act as also the orders issued under the R.P. Act as also the orders issued by the Election Commission of India from time to time.
As a concise statement of material facts and particulars in respect of the grounds noted above, the averments have been made in paragraphs '10' onwards of the election petition.
6. Before adverting to the facts and the evidence before the Court, it may be pertinent to note here that on the presentation of the election petition, notices were issued to the returned candidate on 10.5.2016, whereafter, he had put in appearance through his Advocate on 30.6.2016. By the order dated 22.7.2016, it was directed that the copy of the election petition be provided to the counsel for the returned candidate. On filing of the application under Order VII Rule 11 C.P.C. as also the written statement by the returned candidate, vide order dated 30.9.2016, time was granted to the election petitioner to file his reply. However, before the matter could proceed further, on 20.3.2017, it was intimated by the learned counsel for the election petitioner that the returned candidate namely Sri Banwari Singh Yadav had died on 8.3.2017. The report submitted by the District Magistrate, Budaun dated 18.3.2017 reporting the factum of death of Sri Banwari Singh Yadav before the Chief Secretary, U.P. Legislative Council Secretariat (Administration), Lucknow had been supplied in the Court. It was, thus, directed that the factum of death of the returned candidate be published in the Official Gazette as per Section 116 of the R.P. Act. The office was also directed to intimate the Election Commission of India regarding the event of death of the sole respondent and the pendency of the present election petition. As per the office report, the gazette notification dated 15.4.2017 had been issued pursuant to the above direction but no one had put in appearance to oppose the election petition. The matter had, therefore, been proceeded ex-parte. After hearing the counsel for the election petitioner, the application under Order VII Rule 11 C.P.C. has been finally decided vide order dated 9.11.2017 and the matter was posted for filing of the original documents and framing of the issues.
7. Following issues were framed vide order dated 14.12.2017 with the assistance of the counsel for the election petitioner:-
“(1) Whether the returned candidate or his Election Agents, Polling Agents or Workers and Supporters had indulged in corrupt practices of Booth capturing within the meaning of Section 123(8) read with Section 135-A of the Representation of the People Act, 1951 with the consent of the returned candidate or with the consent of his Election Agent?
(2) Whether the returned candidate, his Election Agent, Polling Agents or Workers and Supporters had caused undue influence by creating an atmosphere of terror and by extending threat to the voters or by lifting them from their houses to vote and keeping them at a designated place/Farmhouse with the consent of the returned candidate or his agent, thereby interfering in free and fair exercise of electoral rights of the voters, thus, indulging in corrupt practices within the meaning of Section 123(2) of the Representation of People Act, 1951?
(3) Whether the returned candidate, his Election Agent or Workers and Supporters or his Polling Agents had committed corrupt practices of hiring and procuring assistance of Government employees on election duty for furtherance of the prospects of election of the returned candidate with his consent or of his Election Agent within the meaning of Section 123(7) of Representation of Peoples Act, 1951?
(4) Whether the votes obtained by the returned candidate by adopting such corrupt practices are liable to be excluded from counting?
(5) Whether the result of election of returned candidate is materially affected by non-compliance of the provisions of the Constitution of India, the Representation of the People Act, 1951, the Conduct of Election Rules, 1961 and orders issued by the Election Commission of India?
(6) Whether the election petitioner is entitled for declaration under Section 101(b) of the Representation of the People Act, 1951 after excluding the votes obtained by the returned candidate as a result of such corrupt practices of Booth capturing, undue influence and hiring and procuring assistance of Government employees on election duty?”
8. On presentation of the list of witnesses on each issues raised in the election petition, the counsel for the petitioner was permitted to file affidavits of the witnesses in evidence as per Order XIX Rule 1-A of the Code of Civil Procedure as the case is proceeding ex-parte. The election petitioner, however, was required to record his evidence in accordance with Order XVIII Rule 4 C.P.C. After filing of the affidavits, by the order dated 10.1.2020, in a random selection, two sets of witnesses detailed in the said order were directed to remain present in the Court on the dates fixed to corroborate their statements. The cross-examination of the witnesses present in the Court and that of the election petitioner was completed on 14.2.2020 and, thereafter, the matter was proceeded for hearing. The hearing was, however, interrupted severely on account of on set of COVID-19 and could be completed only on 2.9.2021.
9. It is pertinent to note that the evidence were led by the election petitioner only on two issues, namely issue no. (1) relating to Booth capturing and issue no. 2 pertaining to undue influence. No evidence was led on issue no. 3. Issue nos. 4, 5 and 6 are legal issues and further discussion thereon would depend upon the findings on issue nos. 1 and 2.
10. It would be apposite now to go through the pleading of the parties. The allegations with regard to Booth capturing are contained in paragraphs '40' to '51' of the election petition. Several instances have been given therein regarding the conduct of the polling agents of the returned candidate who allegedly had snatched the ballot papers from the hands of the electors who went to cast their votes at the polling stations in question and that their ballot papers were forcibly submitted in favour of the returned candidate. It is, thus, contended that the polling agents of the returned candidate had committed corrupt practices with the consent of the returned candidate.
In paragraphs '36' to '41', the allegations are of causing undue influence by the returned candidate and his election agents. It is contended therein that about 200 electors including Gram Pradhan, members of Kshetra Panchayat and Zila Panchayat, who were recorded as electors in the concerned Constituency were detained and kept at a Farmhouse situated at village Maanpur, Budaun which belonged to the returned candidate. Likewise, 250 electors were forcibly lifted and detained at Nausera Farmhouse house belonged to the returned candidate and 150 electors were forcibly detained at Zila Panchayat Kothi situated at Budaun. Thus about 900 electors were terrorized with the consent of the returned candidate and were regularly threatened by the agents of the returned candidate with his consent that if they did not cast their votes in favour of the returned candidate, they would face dire consequences. With this threatening, all the detained persons were released barely 3-4 hours before the start of the polling on 3.3.2016. The election petitioner has provided the details of about 452 such electors out of 900 alleged electors who were forcibly lifted from their houses on different dates allegedly with the help of the local police personnel and detained at different places such as Arjun Park Ram Nagar Bareilly, Farmhouse Maanpur, Budaun, Nausera Farmhouse, Budaun and Zila Panchayat Kothi Budaun. The description of these electors have been given in a chart appended to paragraph '41' of the election petition.
In paragraph '36' of the petition, it is stated that the returned candidate had held a meeting at his local residence known as Himanshu Bhawan, Shivpuram, Budaun on 10.2.2016 at about 8:00 PM and prepared a plan and mechanism as to how the electors of the constituency concerned would be manipulated. It was planned that the electors would be lifted from their houses and be kept at different places and would be released only on the date of the polling. It is, thus, contended by the election petitioner that the returned candidate had given his consent to his polling agents, workers, supporters and the election agent for commission of corrupt practices and to cause undue influence on his behalf. The said meeting was attended by the persons named in paragraph '36' including the District Panchayat Raj Officer and the police personnel (named therein) deployed in the security of the returned candidates and number of workers, supporters of the returned candidate including his polling agents and musclemen and several antisocial elements. The specific instance of few of the electors who were allegedly lifted at the instance of the returned candidate has been given in paragraphs '37' and '38'. In paragraph '39' of the election petition, it is stated that though paramilitary force was deployed but in all 16 polling stations local police was deployed inside the polling stations and the police personnel being under the control of the State Government run by the Samajwadi Party at that time, they were regularly and continuously helping the returned candidate and the local police personnel inside the polling station had nullified the effect of deployment of paramilitary force at each and every polling station.
In the written statement supported by the affidavit of the returned candidate, the averments in paragraphs '36' to '41' of the petition have been denied as being false, incorrect and concocted.
In reply to paragraph '36', it is categorically stated that no such meeting was held on 10.2.2016 at the residence of the returned candidate. The allegations of the deliberations alleged to have been made in the So-called meeting were also denied. It is stated that the said averment has been made to add colour to the case of the election petitioner. In paragraph '37' onwards, it is stated that two affidavits filed by persons named as Dr. Naresh Shakya and Devendra appended as Schedule (IX) to the election petition contained identical allegations and appeared to have been manufactured for the purpose of the election petition. The averments in those affidavits have been specifically denied having been incorrect and false. It is, then stated that false and general allegations have been made without giving any specific date, time and place and the manner of each incident of alleged corrupt practice. The allegations of forcibly lifting of the electors in absence of specific date, time and place of the incident cannot be treated to be sufficient material for the purpose of establishing the case of corrupt practice against the returned candidate. The complaints of forcibly lifting of electors, their detention at alleged various places were inquired into by the district police administration and all such complaints were found to be false. In an attempt to give specific material facts and particulars in the election petition, to establish the allegations of corrupt practices, false and concocted story has been narrated. The list of 452 electors who were allegedly detained and kept at different places on different dates and time, had been denied as being false. The allegations of Booth capturing and that the polling agents of the returned candidate had snatched ballot papers of the electors and cast their votes in favour of the returned candidate had been denied as being false, vague and incorrect. It is alleged that the names of polling agents have been given in the act of snatching of ballot papers from the electors of polling station Jagat which could be easily done from the voter list itself. None of them had lodged any complaint at the time of polling before the Presiding Officer. The allegations in the election petition are not corroborated by any reliable material. Similarly the names of polling agents of different polling stations with the names of voters had been given in the election petition falsely just to give colour to the allegations of corrupt practice of snatching ballot papers from the electors. All allegations in different paragraphs of the election petition have been denied being false and concocted and it was added that no complaint of Booth capturing was made to the Presiding Officer on the day of polling and false story has been concocted after the election petitioner had lost in the election. Other allegations of involvement of the State officials to help the returned candidate had also been denied though they may not be relevant for the decision of the present petition, inasmuch as, no evidence has been led on the said issue. Lastly, it is contended that the election petitioner had failed to furnish material facts and particulars to establish the alleged corrupt practices and the pleadings are unnecessarily scandalous, frivolous and vexatious which may tend to prejudice, embarrass or delay the fair trial of election petition. No relief as such can be granted to the election petitioner and the election petition is liable to be dismissed with cost.
11. List of documents has also been appended with the written statement of the returned candidate which contains the communications of the District Election Officer to the Chief Election Officer alongwith the enquiry report of the Senior Superintendent of Police, Budaun dated 1.3.2016, regarding the complaint of the election petitioner dated 27.2.2016; the report of the Additional Superintendent of Police (Rural), Budaun dated 20.2.2016 to the Officer Incharge (Complaint), Budaun regarding the complaint of Sri Harish Shakya, Disrict President B.J.P.; the report of the District Magistrate to the Chief Election Commissioner, U.P. dated 3.3.2016 in respect of the complaint available on Samadhan Portal moved by the election petitioner; the complaint of Mukesh son of Rajendra Singh to the Chief Election Commissioner, New Delhi bearing report of the Sector Magistrate, Ashifpur and that of the Presiding Officer; the complaint of the election petitioner to the Chief Election Commissioner, New Delhi dated 3.3.2016 bearing report of the Sector Magistrate, Ishlamnagar; the complaint of the election petitioner dated 3.3.2016 to the Chief Election Commissioner, New Delhi bearing report of the Presiding Officer, Quadar Chowk and the Sector Magistrate; the complaint of the election petitioner dated 3.3.2016 to the Chief Election Commissioner, New Delhi bearing reports of the Sector Magistrate; the complaint of the election petitioner dated 3.3.2016 to the Chief Election Commissioner bearing reports of the Presiding Officer and the Sector Magistrate, Shahsawan; the report of the District Magistrate dated 3.3.2016 regarding the complaints available on Samadhan Portal alongwith the report of the Additional District Magistrate/Up-Nirwachan Adhikari; the report of the District Magistrate/Zila Nirwachan Adhikari dated 27.2.2016 in respect of the complaint of Sri Harish Shakya, District President, B.J.P. dated 17.2.2016 alongwith the report of the Senior Superintendent of Police dated 28.2.2016 containing the detailed enquiry report and the complaint; the report of the Up-Zila Nirwachan Adhikari Badaun dated 3.3.2016 to the Chief Election Commissioner, U.P. in respect of the complaint letter dated 3.3.2016 of the election petitioner on Samadhan Portal; the report of the District Magistrate dated 3.3.2016 pertaining to complaint of the election petitioner regarding allegations of forcibly lifting of the electors and their detention alongwith the report of the Senior Superintendent of Police, Budaun dated 2.3.2016; the joint report dated 2.3.2016 of the Circle Officer and Up-Zila Adhikari, Sadar; the letter of Officer Incharge, as also the letter of the observer dated 1.3.2016 on the complaint of the election petitioner; the report of the District Magistrate dated 3.3.2016 to the Chief Election Commissioner, U.P. in respect to the complaint of the election petitioner regarding allegations of building pressure on the electors and allegations of Booth capturing. The enquiry reports of the District Magistrate and the communications made by him on various dates with regard to several complaints lodged by the election petitioner on Samadhan Portal; the report of the District Magistrate dated 1.3.2016 on four points including the complaint of Naresh Shakya pursuant to the telephonic conversation with Vishesh Karya Adhikari, the Chief Election Commissioner, U.P.; the report of the Up-Zila Adhikari, Budaun dated 20.2.2016 to the Additional District Magistrate, Budaun regarding the complaint of the District President, B.J.P. for alleged harassment of Naresh and Mahendra Singh, B.D.C. members alongwith the statement of Smt. Sunita wife of Mahendra Pal and that of Smt. Saroj wife of Sri Naresh; the reports of Up-Zila Adhikari Sahaswan dated 19.2.2020 to the District Nirwachan Adhikari in relation to Ex-B.D.C. member Naththu Ram alongwith statement in writing of his sons Pappu and Charan Singh. Diaries of the Presiding Officer of the polling stations.
It may be pertinent to note at the outset that the above noted documents were sought to be filed by the returned candidate in order to answer the allegations made by the election petitioner regarding Booth capturing and undue influence and participation of the officers of the District Administration and Police Authorities in favouring the returned candidate.
We may note that these documents could not be filed by him as before the matter could be proceeded, the returned candidate had died unfortunately. These documents, however, could have been obtained by the election petitioner from the office of the concerned authority but none of them have been filed as the contention of the counsel for the election petitioner was that the district authorities namely the police administrative authorities were under the influence of the returned candidate and hence they did not pay heed to the complaints of the election petitioner and other electors.
12. In the list of documents filed by the election petitioner exhibited as Exhibit 'P-1' to Exhibit 'P-17', the certified copy of the final result sheet, the list of polling stations, the list of Presiding Officer/Polling Officer, the electoral roll-2016, the extract of handbook for returning officer and the complaints and the representations of the election petitioner alongwith the affidavits of Sharad Gupta, the polling agent of the election petitioner at polling station Dahgawan, the affidavit of Naresh Shakya and Dharmendra Shakya (polling agent of Quadar Chowk), the representation of Harish Shakya, District President, B.J.P., the affidavit of Mukesh son of Rajendra dated 4.3.2016 sent to the Election Commissioner of India, photo copy of the Public Interest Litigation (PIL) No. 8156 of 2016 filed by Dr. Naresh Shakya and the order passed thereon have been filed alongwith the several other representations and complaints in support of the allegations in the election petition as noted above.
Apart from the documentary evidences, oral evidence in the nature of affidavits of the witnesses in examination-in-chief have been filed. From the list of total 81 witnesses dated 25.10.2018 was filed in the Court, 21 witnesses had been directed to appear to corroborate their statements who had appeared and were cross-examined by the Court.
13. The submissions in brief of the learned counsel for the election petitioner are that from the material particulars given in the election petition and the evidence in the shape of documentary and oral evidence of polling agents and electors, who are independent persons, it has been proved by the election petitioner that the polling agents of the returned candidate took the polling stations completely in their control and allowed to vote only those persons who were supporters of the returned candidate and prevented the others from free exercise of their right to vote, which amounts to Booth capturing within the meaning of Sections 128 and 135-A(b) of the Act. The aforesaid corrupt practice was committed with the consent of the returned candidate. There is evidence of the meeting called by the returned candidate prior to the date of poll to instruct his polling agents to ensure that the votes were cast in his favour and to frame the strategy to capture the Booth.
It is contended that on the date of polling also, the returned candidate had visited the polling stations and directed his polling agents personally to snatch the ballot papers from the electors who deny to vote for him and marked their ballot papers in favour of the returned candidate. It is contended that the statements in the examination-in-chief of PW-12, PW-14, PW-17, PW-19, PW-20 and PW-21 and their cross examination as also the affidavits in examination-in-chief filed as paper no. 'A-21' to paper no 'A-76' are in support of the pleadings of corrupt practices of Booth capturing contained in paragraph nos. '40' to '51' and pertaining to corrupt practice of undue influence in paragraph nos. 36 to 41.
It is contended that the credible evidence furnished by the election petitioner in the shape of the affidavits of the electors and polling agents and by presenting them in the Court for cross-examination, cannot be brushed aside only for the fact that no first information report was lodged by the electors or the polling agents or any other candidate.
14. It is argued that in view of the provisions of Section 28-A of the R.P. Act, 1951 and Article 324 of Constitution of India, all the powers of the district and police administration vests in the Election Commission of India from the date of notification of the election till the completion of the application. The Chief Electoral Officer of the State, the District Election Officer, the Returning Officer, the Assistant Returning Officer and the Presiding Officer, the Polling Officer and other officers deployed for the purpose of polling and counting of votes and conduct of election worked under the control and supervision and direction of the Election Commission of India from the date of the notification of the election till completion of the election. In view of the Model Code of Conduct being issued by the Election Commission of India, effective from the date of notification of election, any complaint brought in the notice of the Returning Officer, the Assistant Returning Officer, the Presiding Officer, Polling Officer, Observer or any other Officer deployed by the Election Commission of India or any other complaint relating to the election was to be dealt with by the Election Commission of India to take appropriate action against the concerned person or authority. It was the duty of the Election Commission of India, the Presiding Officer, the Polling Officer or the Returning Officer to lodge first information report in the concerned police station in case of any violence or electoral offence as mentioned in Chapter III of the R.P. Act. For the fact that the election petitioner or any elector had not registered a first information report for forcibly snatching the ballot papers of electors at a particular polling station, it cannot be said that the incident of Booth capturing or undue influence did not happen. The election petitioner sent representations to the Election Commission of India on its e-mail address and through FAX prior to and on the date of polling bringing to its notice about the circumstances of terror and fear created by the returned candidate and his workers and supporters with the help of police and district administration and commission of corrupt practices of Booth capturing and undue influence during polling on 3.3.2016.
15. It is contended that in spite of the representations given by the election petitioner, the Presiding Officer, Polling Officer, Observer or the Returning Officers or even the Election Commission of India did not take any effective step to prevent the abuse of election process nor any FIR was registered or any disciplinary action was taken against the erring officers. The polling was not held in free, fair and transparent manner on 3.3.2016. It is stated that the statement of the polling agent of the election petitioner deployed at the polling station block Jagat namely PW-2, Rajesh Kumar Singh Shakya about the Booth capturing is corroborated by the evidence of independent witnesses namely the electors who had appeared in the witness box as PW-10 and other electors whose statements are on record in the shape of their affidavits. It is not relevant as to from where and when the electors were lifted but the question is as to whether they were actually lifted and detained at a particular place which is proved from the evidence of PW-10 who remained intact in his cross-examination. Similarly, the statement of other witnesses produced by the election petitioner in support of the pleadings in paragraph nos. '44' to '51' relating to corrupt practice of Booth capturing by the polling agents of the returned candidate are intact during the course of their cross- examination. The factum of Booth capturing and undue influence, therefore, with the consent of the returned candidate are proved by cogent evidence put forth by the election petitioner. The statements of electors who are independent witnesses cannot be brushed aside as they remained intact during the course of cross examination made by the Court itself.
16. Having heard learned counsel for the election petitioner and perused the record, in the light of the pleadings and the evidence put forth by the election petitioner in support of his allegations of Booth capturing and undue influence to materially affect the result of the election, one fact reflected from the record is pertinent to be noted at the outset.
17. It has been brought on record that one Dr. Naresh Shakya son of Bhupal Shakya, residence of Gariya Muttalika, Noorpur, Block Quadar Chowk, Budaun had filed a Public Interest Litigation (PIL) No. 8156 of 2016, copy of the petition has been filed in the documentary evidence and marked as Exhibit P-17. The said petition was supported by affidavit of one Amit Kumar Singh, member of Block Development Council (BDC) and elector in the election in question from the constituency concerned. It was stated therein that the petitioner namely Dr. Naresh Kumar Shakya a member of Block Development Council and the elector (voter) for the election of M.L.C. of the constituency Budaun had filed the Public Interest Litigation on behalf of the electors who were looking forward to cast their votes in favour of candidates of their choice without any threat, to ensure the election being held in a free and transparent manner. It was stated that some anti-social elements including the local police were extending help to the candidate namely Banwari Singh Yadav (now returned candidate) and the police personnel were visiting the house of the electors accompanied by anti-social elements at the behest of the said candidate. The District President of B.J.P. namely Harish Shakya had also moved application on 16.2.2016 to the District Election Officer and the Chief Election Officer to take effective steps to ensure holding of elections without any threat or harassment of the voters. It was stated that the candidate namely Banwari Singh Yadav being the candidate of the ruling party, even the district administration and the police officials were acting at his instance with his connivance.
It was further stated that the petitioner therein namely Dr. Naresh Shakya was apprehended from his house by the local police on 12.2.2016, in order to detain him so that he may not tender his vote in the election and that he was still in the police custody though no criminal case had been registered against him. It was pleaded that an application dated 17.2.2016 was moved by the father of the petitioner before the District Election Officer and the Presiding Officer and the Chief Election Commissioner praying for immediate relief of his son and taking appropriate action against the erring officials. The copy of the said application was appended as Annexure '5' to the said writ petition.
A perusal of the said application indicates that the same was allegedly received in the office of the District Election Officer on 17.2.2016 itself. The affidavit in the said writ petition of the deponent was sworn on 18th February, 2016, a day after the application was allegedly moved by the father of the petitioner namely Naresh Shakya to report about the illegal detention of his son.
18. Alongwith the present election petition, a letter dated 26.2.2016 written by Naresh Shakya, the petitioner in the aforesaid PIL, has been appended at page '166' in support of the averments in paragraph '37' of the election petition. The said letter was written on the subject “with regard to the compliance of the judgment/order dated 23.2.2016 passed by the Hon'ble High Court in PIL No. 8156 of 2016”. In the said letter addressed to the Chief Election Commissioner, Election Commission of India, New Delhi, it was stated that after filing of the nomination of the Samajwadi Party candidate, most of the Government servants of Panchayat Raj Department as well as police department were working as workers and supporters of the Samajwadi Party candidate. Consequently all the voters in the said election had been terrorized by the Government servants. One Mr. Rajesh Yadav, District Panchayat Raj Officer (DPRO), Budaun who are also having charge of two blocks (Sahaswan and Ishlamnagar) was continuously calling the B.D.C. members as well as Pradhans (who were electors in the said election) to tell them to cast their votes only in favour of Samajwadi Party candidate or else they would face adverse consequences (enquiry). The directions of the Hon'ble High Court in the judgment and order dated 23.2.2016 were extracted, thereafter, and it was prayed therein that steps be taken to ensure free, fair and impartial election and to curb the illegal activities of the Samajwadi Party candidate.
It was, then, stated that:-
“1. At all the polling centers central forces should be deployed on the day of poll (03-03-2016) and same shall also be video graphed otherwise there is lest possibility free, fair and impartial election and the local police kept away from the election.
2. The DPRO Mr. Rajesh Yadav ought to be immediately transferred from the Distt. Budaun and take suitable legal action against him to ensure free, fair and impartial MLC (Local Bodies) 2016 of Budaun UP.
3. The helpers require to the voters should be their blood relation as required in law otherwise there every possibility the voters will under the threats of Samajwadi party candidate and their supporters.
4. As per information of the applicant many voters have been kept under the custody of Samajwadi party candidate at his farmhouse situated at Manpur as well as some voters were kept at Ramnagar, Faizganj Behta and Mau Ramnagar Situated at Arjun Park Aonla, Unnapur Police Station Ramnagar of Distt. Bareilly. under the supervision police of Distt. Budaun it may be inquired. Suitable action may also be taken to free the voters from custody of Samajwadi party candidate so the voters may be participated as per their choice to ensure the free, fair and impartial MLC (Local Bodies) 2016 of Budaun UP.”
A careful reading of the above representation made by the petitioner namely Naresh Shakya after order in the PIL (noted above), it is evident that there was no whisper of his detention by the police authority in order to restrain him to cast his vote as alleged in the PIL.
19. A perusal of the order passed by the writ Court further indicates that the petitioner was granted liberty to bring his specific grievances to the attention of the Election Commission of India who had been vested with the power of superintendence, direction and control over the elections.
20. Another undated representation given by the petitioner namely Dr. Naresh Shakya in 'Hindi' had also been appended at pages '168' and '169' of the election petition. The photo copy of the affidavit of Naresh Shakya dated 4.3.2016 has been filed in documentary evidence and is exhibited as Exhibit 'P-11', copy of which has also been appended with the election petition at page '176'. Paragraph nos. '4', '5', '6' and '7' of the said affidavit is relevant to be extracted hereunder:-
“4. यह िकि िदिनांकि 12.02.2016 किो प्राथी किो स०पा० किे प्रमुख क्षेत पंचायत किादिरचौकि श्री किौशल व सतीश गप्ता थाना किादिरचौकि किी पुिलस ने घर से जवरन उठा िलया और गाड़ी मे डालकिर अर्जरुन पाकिर रामनगर बरल किर िदिया। ी ले जाकिर बन्दि
5. यह िकि प्राथी किी पत्नी श्रीमती सरोज किा वोट, समाजवादिी पाटी प्रत्याशी किे पक्ष मे डालने किे उद्देश्य से उक्त व्यिक्तयों व पुिलस ने प्राथी किो घर उठाकिर उक्त स्थान पर ले जाकिर बन्धकि बनाया था प्राथी किे िपता द्वारा िशकिायत किरने पर प्राथी किो छोड़ एवं पनः िदिनांकि 26.02.2016 किो बन्धकि बना िलया और प्राथी िदिनांकि 03.03.2016 किो पत्नी किा मतदिान किराने वादि छोड़ा प्रािथरनी किो धमकिी दिी यिदि वोट स०पा० प्रत्याशी किे पक्ष मे नहीं िदिया तो मेरे पित किी हत्या किर दिेगे।
6. यह िकि इस प्रकिार उपरोक्त चनाव मे प्रशासिनकि अर्िधकिािरयों व पुिलस द्वारा औपचािरकिताएं िनभाई गयी ह। एवं स०पा० प्रत्याशी किो पक्ष मे जवरन वोटन डलावाये गये है उक्त चन
7. यह िकि मझु ाव िनष्पक्ष स्वतन्त व पारदिशी नहीं हुआ है। े बन्धकि बनाकिर रखा उस जगह पर अर्जरुन पाकिर रामनगर बरली किरीब 400-450 मतदिाताओं किो बन्धकि बनाकिर रखा िजसकिी 8 पुिलसकिमी किो तैनात किर रखा था।"
21. Having perused the evidence adduced by the election petitioner in the shape of affidavit of Dr. Naresh Shakya, the representation and the PIL filed by him, it is evident that this elector who came in support of the election petitioner herein had changed his stand from time to time. As per his contention in the election petition, he was lifted by the police personnel of Quadar Chowk police station from his house on 12.2.2016 and was detained in Arjun Park, Ram Nagar, Bareilly. It is not known as to how this person had managed to file a Public Interest Litigation raising the cause of the electors before this Court on 18.2.2016 while being in the alleged illegal detention of the returned candidate at a place known as Arjun Park Ram Nagar, Bareilly. In the affidavit dated 4.3.2016, this elector stated that he was released after a complaint was made by his father, but was again detained on 26.2.2016. This statement came for the first time in the notary affidavit prepared on 4.3.2016, after conclusion of the polling on 3.3.2016. The statement with regard to the alleged detention of this elector though was made before this Court in the PIL but there was no whisper of the same in the representation dated 26.2.2016 made by him to the Chief Election Commissioner. The statement in the said representation was only that as per the information of Mr. Naresh Shakya, many voters had been kept under the custody of Samajwadi Party candidate (returned candidate) at his Farmhouse situated at Manpur as well as some voters were kept at Ram Nagar, Faizganj Behta and Mau Ram Nagar situated at Arjun Park Aonla, Unnapur, Police station Ram Nagar of District Bareilly, under the supervision of police of the District Budaun. The prayer was that an enquiry be made and suitable action be taken to free the voters from the custody of the Samajwadi Party candidate so that they may participate in the election to elect a candidate of their choice, i.e. to ensure free, fair and impartial election. It is, thus, evident that there was no statement of the alleged illegal detention of Dr. Naresh Shakya in his representation made to the Chief Election Commissioner prior to the conduct of polling. The affidavit dated 4.3.2016 appears to be a result of afterthought. There is nothing on record to corroborate statement of this elector (Dr. Naresh Shakya). There is no affidavit of Dr. Naresh Shakya in the election petition to corroborate the documentary evidence brought on record by the election petitioner.
22. It is pertinent to note that alongwith the written statement filed by the returned candidate, in the list of documents, the reports of the concerned administrative and police authority on the complaints filed by the electors including Dr. Naresh Shakya has been mentioned. There is a reference of the report of the Additional Superintendent of Police (Rural) addressed to the Officer Incharge (Complaints) regarding the complaint of Bhupal Shakya father of Dr. Naresh Shakya relating to the allegations of harassment of Dr. Naresh Shakya alongwith the report of the Circle Officer, Ujhani, the complaint, the direction of Incharge Complaints and the Senior Superintendent of Police to enquire into the matter. There is also a reference of the report of the Up-Zila Adhikari, Budaun dated 20.2.2016 submitted to the Additional District Magistrate, Budaun regarding the alleged harassment of Dr. Naresh Shakya on the complaint of the District President, B.J.P. namely Mr. Harish Shakya alongwith the statement of wife of Dr. Naresh Shakya. There is reference of several such reports in the list of documents submitted by the returned candidate. These reports appears to have been prepared and submitted to the competent authority on the complaints made by the electors including the election petitioner. None of the said reports have been brought on record of the present election petition. The bald assertion of the election petitioner that nothing had been done by the Administrative Authorities though the complaints regarding lifting of the electors and Booth capturing had been registered before them, therefore, is found absolutely false.
The election petitioner was also cross-examined by the Court on the issue as to whether he has filed the copy of the PIL instituted by Dr. Naresh Shakya and his affidavit in the documentary evidence after verification of the facts narrated therein. On the said questions, he has simply denied that he did not know anything about the statements in the PIL. The result is that he did not verify the factum of truth of the allegations at his own ends and simply filed the copy of the PIL and affidavit of of Dr. Naresh Shakya on the allegations that he was lifted and detained on the instructions of the returned candidate, in the documentary evidence without verification of facts. The election petitioner has further stated that the information regarding filing of the writ petition by Dr.
Naresh Shakya was got by him from the office of the District Magistrate when he reached there. It is, thus, evident from the documentary evidence and oral evidence that the allegations pertaining to the alleged harassment of Dr. Naresh Shakya, i.e. that he was lifted by the local policemen at the behest of the returned candidate could not be found proved.
Apart from Dr. Naresh Shakya, the affidavits of other electors have also been filed in support of the pleading on the allegations of Booth capturing and lifting of the relatives or the electors in order to put pressure on them to cast their votes in favour of the returned candidate. Some of the electors namely Smt. Kalawati has been examined as PW-12 who states that her husband was lifted by the workers and supporters of the Samajwadi Party (S.P.) candidate and he was detained for 15 to 20 days at a place known as Arjun Park Ram Nagar Bareilly. She then stated that when she went to cast her vote, but her ballot paper was snatched by the polling agent of the Samajwadi Party candidate and her vote was entered in favour of the returned candidate against her wishes. In cross- examination, when it was asked as to whether she is an elected Gram Pradhan, PW-12 has stated that she had won the election of Gram Pradhan but was discharging duties of Gram Pradhan on the instructions of her son since after the death of her husband. She further stated that she remains busy in her household work during day time. PW-12, however, stated that she was well aware of the work and responsibility of the Gram Pradhan. On a query made by the Court as to with whom she had come to depose in the Court, her reply was that many people had come and she came alongwith them.
23. Considering the statement of PW-12 in the examination-in-chief and the cross-examination, she does not appear to be an independent witness. It is also difficult to believe that the elected Gram Pradhan could not lodge complaint to the police about abduction of her husband for about 15 to 20 days. From her statement in the cross-examination, it is evident that she came to depose before this Court on the instructions of someone else and it was not her independent decision. All other persons who had come alongwith her as per her own submission as also the election petitioner may have influenced her decision of submitting statement in favour of the election petitioner. The statement of this witness cannot be accepted as a proof of allegations of Booth capturing and undue influence so as to set aside the election of the returned candidate.
24. Likewise, PW-9, PW-10, PW-11, PW-13, PW-14, PW-15, PW-16, PW-17, PW-19 and PW-20, who have been cross-examined by the Court are electors who were either elected B.D.C. members or Gram Pradhan.
PW-9 has stated that she went to the police station alongwith husband at about 10:00 AM and after entering her signature in the register on the instructions of the polling officer, she had received ballot paper. However, the polling agent of Samajwadi Party candidate namely Sri Rakesh Gupta had snatched the ballot paper from her and entered her vote in favour of the returned candidate. In the examination-in-chief though she has stated that she made an objection but the Presiding Officer did not pay heed and stated nothing could be done, thereafter. She then made an oral objection to the agent of B.J.P. candidate but his voice was also not heard. PW-9 stated that she intended to cast vote in favour of the election petitioner. In the cross-examination, specific question was put as to what was her action after her ballot paper was snatched, her reply is that she did not do anything as no one was there to pay heed to her complaint.
PW-10, Shankar Lal deposed in his examination-in-chief that she was lifted by the supporters of the Samajwadi Party candidate about two weeks prior to the polling and was kept at different places such as Kothi Maanpur, Nausera Farmhouse and lastly Arjun Park Ram Nagar, Bareilly. He was instructed to cast his vote in favour of returned candidate and on the date of polling, he was brought to the polling station block Jagat in a Jeep from Arjun Park Bareilly when he had received his ballot paper on the polling Booth, which was snatched by the polling agent of the Samajwadi Party candidate. Because of the entire sequence of event, he was so terrified and he could not make any complain to anyone. In the cross-examination, this witness was questioned as to whether he had given information to his family members about his abduction and illegal detention. He has simply replied that nothing could be done even by his family members because of the Ruling Party. In his affidavit in the examination-in-chief, though he has stated that he was lifted from his house but in the cross-examination, he has stated that he was lifted from his agricultural field. There is contradiction in the statement of this witness and his version in the examination-in-chief does not seem to be independent. A casual statement has been made regarding his lifting and detention by the supporters of the returned candidate. This witness could not even specify the place wherefrom he was lifted forcibly. No complaint whatsoever has been made by him or his family members about his illegal detention, which according to him lasted for fifteen continuous days.
PW-11 Jagwati stated that her ballot paper was snatched by the polling agent of the returned candidate. In the cross-examination, she was asked as to how her ballot paper was snatched, she replied that there was a lot of crowd when she went to cast her vote and in that commotion her ballot paper was snatched and she was told that her vote had been entered. She was also asked as to why she did not make any complaint to anyone, her reply was that though she agitated but no one heard her.
PW-13 Chiraunji Lal is the witness of allegations of undue influence and threatening by the workers and supporters of returned candidate. PW-13 was an elected Gram Pradhan. He has stated that polling agent of the Quadar Chowk polling Booth namely Dharmendra Kumar Shakya was already taken in the police custody and there was no occasion for him to make any complaint regarding snatching of his ballot paper. However, he gave information to the election petitioner about the said fact.
PW-14, Smt. Lakshmi also stated that her ballot paper was snatched by the polling agent of the returned candidate, she made a complaint but no one paid heed.
PW-15, Smt. Omwati stated that her son was lifted for 13 days prior to the polling, who however, returned back within 4 days.
The contention is that her son was lifted in order to put pressure upon her to cast vote in favour of the returned candidate. On the date of polling, i.e. 3.3.2016, she went to the polling station, block Quadar Chowk alongwith her younger son to cast her vote. The polling officers had instructed her to enter “1” in the ballot paper as against the name of the returned candidate. Later her ballot paper was snatched and her vote was entered in favour of the returned candidate, when she protested, she was shun away.
PW-16 and PW-17 have alleged that they were lifted and illegally detained and were brought to the polling station from the place of detention where their ballot papers were snatched and their votes entered in favour of the returned candidate. Both these witnesses were asked as to why they did not raise any protest being the responsible members of the village Panchayat and having held positions of Sadasya Kshetra Panchayat and B.D.C. member. They had not been able to give any reply to the said query. When asked, they admitted that they did not make any effort to meet any officer raising their complaint regarding illegal detention or undue influence.
PW-19 who was a Sabhasad (सभासदि) had stated that her ballot paper was snatched and when she made complaint, police personnel threw her out.
PW-20 is a B.D.C. Member and stated that she and her husband both were forcibly lifted and kept under detention in Kothi Maanpur alongwith other voters. On the date of the polling, she was brought to the polling station when she was told that her vote was entered in favour of the returned candidate. In cross-examination, she stated that she was kept under detention for two days and 4-5 persons came to lift her.
25. From the statements of the electors, the witnesses noted above, it is evident that almost all of the electors who claimed to have been lifted and detained in order to put pressure upon them or whose ballot papers were allegedly snatched did not lodge any complaint either at the polling station or before any Administrative Authority, who was the Incharge of holding of the election. None of them had made complaint that their voting rights had been infringed. The electors were all either the sitting Gram Pradhan or B.D.C. members and some of them were even
Corporaters (सभासदि). It is difficult to believe that such persons who were holding influential positions were so helpless or threatened that they did not assert themselves at all before any of the authority/Incharge of the
elections. The independence of these witnesses is also doubtful. Similar allegations have been made by the other electors who have filed affidavits in the examination-in-chief in support of the election petitioner. The statements of these persons are almost similar and all of them have come forward to assert the allegations of booth capturing for the first time in the present election petition.
The contention of the counsel for the election petitioner that all the electors are independent persons and their statements being in favour of the election petitioner, no other enquiry is required, is found unsustainable.
26. Apart from the above, PW-1 to PW-8 and PW-18 are the polling agents who have been produced to prove the charge of Booth capturing by the polling agents of the returned candidate. In their affidavits, they have asserted that the ballot papers of many electors had been snatched by the polling agents of the returned candidate at different polling stations, wherein they were posted and the votes were entered in favour of the returned candidate.
27. On a query of the Court as to whether they had informed about booth capturing to any of the administrative officials, the reply of all these persons was simply 'No'. They tried to assert that they were not in a position to give information to the administrative officials as they were all under the influence of the returned candidate.
28. From the careful reading of the statements of these polling agents, it is evident that they were all been assigned the duty to ensure that no untoward incident occurred during the course of election.
PW-18 Dharmendra Shakya who was the polling agent of the election petitioner was in active politics. He remained a member of the Zila Panchayat and was also elected as the Member of Legislative Assembly (M.L.A.) as a candidate of Bhartiya Janta Party (B.J.P.) in the year 2017. It is difficult to believe that a person having such a background being the polling agent could not make a complaint with regard to the Booth capturing. It is further relevant to note that PW-18 in the cross- examination has admitted that he had political rivalry with the son of the returned candidate. The bald allegations of the polling agents of booth capturing by snatching of ballot papers of the electors, therefore, is not believable.
29. At the cost of the repetition, it is pertinent to note that the polling agents who were produced to depose the allegations of Booth capturing, i.e. of snatching of ballot papers by the polling agents of the returned candidate admitted that they did not even give any intimation or complaint regarding the Booth capturing and gave intimation only to the election petitioner or the agent of the election petitioner when the polling was over. It is difficult to believe that the electors who were holding the positions of Gram Pradhan, B.D.C. member and were assigned the task of looking after the complaints of the villagers were so helpless that they could not approach the District Administrative Authority or the police for asserting their own voting rights. The allegations in the election petition that 900 B.D.C. members, Gram Pradhans and Sabhashads were forcibly lifted from their houses and detained at different places by the returned candidate could not be proved from the bald statements on the affidavits of the electors and the polling agents filed before this Court.
30. As regards the documentary evidence noted above, enquiries were made by the concerned officers such as the District Magistrate and the Senior Superintendent of Police on the complaints which have been filed in evidence in the present election petition. The copy of not a single such report has been brought before the Court so as to give a clear picture as to what had actually happened on the date of polling, i.e. 3.3.2016. As noted above, the independence and impartiality of the electors produced before the Court is doubtful as almost all of them had baldly denied the question put by the Court and could not specify as to why they did not make any complaint before the administrative authority when their ballot papers were snatched or they and/or their relatives were lifted. Almost all of them have only stated that they were power less and could not do anything as the entire District administration was under the influence of the Samajwadi Party leader, i.e. the returned candidate.
31. The Court may also take note that the returned candidate is not alive. The loyalty of the voters on the death of the returned candidate may also change as they do not remain answerable to the person in favour of whom they had submitted their votes.
32. In the light of the above material facts and on consideration of the evidence on record, both oral as well as documentary, this Court finds that the allegations of Booth capturing and undue influence to challenge the election of the returned candidate could not be proved by the election petitioner. Booth capturing is a serious offence and mere assertion in the election petition of the allegation or instances of Booth capturing by bringing the electors before this Court would not be sufficient to prove the same. The participation of Officers of the State Department such as District Administration and the police personnel though alleged in the election petition but could not be proved and the issue framed in this respect has not been pressed nor any evidence has been lead on the same.
33. From the conspectus of the evidence on record, in light of the pleadings of the parties, we do not find it a fit case for interference.
The decisions relied upon by the learned counsel for the election petitioner are distinguishable in the facts and circumstances of the present case.
No case for interference as such is made out.
The election petition is, dismissed , accordingly.
(Sunita Agarwal,J.) Order Date :- 24.12.2021 Brijesh