JUDGMENT Sunil Ambwani, J.
1. This election petition filed by Sri Sushil Singh in person before Registrar General of the Court on 6.2.2002 challenges the election of Shri Prabhu Narayan Yadav, for Member of the Legislative Assembly, U.P. of constituency No. 221 Dhanapur, District Chandauli. The petitioner has prayed for declaring the election of Shri Prabhu Narayan Yadav-Respondent No. 1 as illegal; to conduct re-polling at Booth No. 291 and 292; to direct the respondents to recount the votes and to declare the petitioner as duly elected.
2. The averments in the election petition filed under Section 80 of the Representation of Peoples Act 1951 are that by a notification dated 26.12.2001 the elections of the Uttar Pradesh Legislative Assembly were declared. The programme "of election included the beginning of nominations on 16.1.2002; close of nominations on 23.1.2002; scrutiny of nominations on 24.1.2002 and withdrawal of the nominations paper on 28.1.2002. The polling was fixed on 21.2.2001, and 24.2.2002 was fixed for counting and declaration of result. Paragraphs 4, 5, 6, 7, and 8 and ground Nos. (b) and (e) of the election relevant for the purposes of this petition are quoted as below;
4. That it is relevant to mention here that on the day of polling the voters of the booth No. 291 & 292 namely Sisaura Kala reached to the booth to use their franchise but in collusion with the election officials the respondent No. 1 along with his goondas stopped the polling of the booth No. 291 & 292 through the voters requested the presiding officer of the booths to allow them to caste their votes, but the officer replies that they would not be allowed to cast the vote as they were going to cast their vote in the favour of B.S.P. Candidate. The petitioner himself condemn the policy of presiding officer and requested him for further polling who assured the petitioner but no carried the same.
5. That it is pertinent to mention here that after knowing the fact of repotting of the votes at booth No. 291 & 292 the petitioner contacted the High Officials and filed written complaint to the Chief Returning Officer Lucknow, U.P. A copy of the complaint was also sent to the Chief Election Commissioner, Government of India, New Delhi by the petitioner. The petitioner requested for repotting on the booths.
6. That it is relevant to mention here that the petitioner along with other contacted the High Officials with request of re-polling at the booth 291 and 292 on 22.2.2002. They assures the petitioner that repotting will take place.
7. That it is pertinent to mention here that after not getting any response the petitioner again contacted and District returning officer on 23.2.2002. Then he was told that the Chief Election Commissioner has not granted permission to re-polling, he further told that nothing would be done after going the Chief Election Commission.
8. That it is relevant to mention here that though the application/complaint of the petitioner was pending before the authority but the counting of the votes took place on 24.2.2002.
Ground
(b) Because corrupt practices has been committed by the winning candidate in collusion with the election officials stopping from casting their votes at booth No. 291 & 292.
(e) Because the repotting was not allowed at booth No. 291 & 292 having 1460 valid vote of the Dalit Community at large, through the voters as well as the petitioner himself complaint for repolling.
3. The election petitioner alleges in paragraphs 9, 10 and 11 that he was declared as winner by margin of 286 votes but on the request of Shri Prabhu Narayan Yadav-respondent No. 1, the declaration was stopped and re-totalling took place. After re-totalling the election petitioner was declared winner by margin of 135 votes. The petitioner sent fax messages and telephone calls and news papers published victory of the petitioner. On the direction of the District Returning Officer and in collusion with respondent No. 1, re-totalling took place for the third time and this time also the petitioner was declared winner by margin of 36 votes over respondent No. 1, but then the re-totalling was ordered for the fourth time, against which the petitioner sent written complaint to Chief Election Commissioner but without considering the objections of the petitioner, the District Returning Officer announced the result declaring respondent No. 1 to have won over the petitioner by a margin of 26 votes. This plea, however, was later on given up and no issue was framed on the question of re-totalling of votes.
4. All the records relating to the election of constituency in question were directed to be sealed under the supervision of the District Magistrate, Chandauli. He was required to permit inspections only after satisfying himself with the locus standi and object of inspections, with intimation of the Court.
5. An application was filed under Sections 81, 82, 83 and Section 86 of the Representation of People Act 1951 on 16.8.2002 read with Order 7 Rule 11 C.P.C and Section 151 C.P.C. to dismiss the petition as not maintainable. By another application six weeks' further time was sought to file written statement. The application under order 7 Rule 11 C.P.C. was rejected on 17.4.2003 and the matter was directed to be listed for framing of issues on 28.4.2003. A Special Leave to Appeal (Civil) No. 12186 of 2003 against the order dated 17.4.2003 was dismissed on 22.8.2003. It was pointed out to the Supreme Court that the application under Order 6 Rule 11 C.P.C is still pending. The Supreme Court made it clear in the order dated 22.8.2003 that application under Order 6 Rule 11 C.P.C. for striking of the pleadings shall be considered on its own merit, un-influenced by the order passed which was under challenge before the Supreme Court.
6. Application (A-24) under Order 6 Rule 16 C.P.C for striking of pleadings was rejected on 30.10.2003 with direction to the respondent to file written statement within one month. Against this order a Special Leave Petition No. 106 of 2004 filed by the defendant No. 1, was dismissed by Supreme Court on 12.1.2004. Thereafter an application was filed to extend the time to file written statement.
7. By order dated 20.1.2004 application to grant further time to file written statement was rejected on the ground that under the amended Order 8 Rule 1 C.P.C no such extension could be granted. The right of respondent No. 1 to file written statement was forfeited and the trial was directed to proceed ex parte.
8. The respondent No. 1 preferred Civil Appeal No. 1573-1574 of 2004 against the order dated 20.1.2004. The Supreme Court by order dated 12.3.2004 set aside the order and directed the written statement to be taken on record on depositing Rs. 20,000/- of which Rs. 15, 000/- was to be paid to State Legal Services Authority and remaining Rs. 5000/- to the counsel for the petitioner. The amount was deposited on 29.3.2004.
9. Both the parties filed their documents, and that on 31.3.2004 following issues was framed;
1. Whether respondent No. 1 in collusion with election officials along with his supporters prevented the voters to cast their votes at Booth No. 291 and 292, namely, Sisaura Kalan, and an such respondent No. 1 committed corrupt practice as defined under Section 123(2) and (8) of the Representation of the People Act 1951?
2. Whether the electorate recorded at polling station No. 291 and 292 boycotted the election and refused to record their votes on account of defective electoral list?
3. Whether there has been incorrect tabulation and re-totalling of votes secured by the petitioner and respondent No. 1, and it has materially affected the result of the election?
4. Whether petitioner secured majority of votes and is entitled to be declared elected?
5. Whether there has been violation of the provision of Sections 57 and 58A of the Representation of People Act 1951 in not allowing re-poll at Booth No. 291 and 292 namely Sisaura Kalan and this has materially affected the result of the election?
6. Whether there is a variance in pleading and proof, if so its effect.?
7. To what relief the petitioner is entitled.
10. The oral evidence of the election petitioner as P.W. 1 and other witnesses upto P.W. 20 was recorded from 23.4.2004 to 28.7.2004. Oral evidence of the respondent No. 1 was recorded from 6.4.2005. Shri Krishna Kumar Srivastava, Assistant District Election Officer, Chandauli and Shri Roop Narayan Verma, Parivekshak Krishi Rakshak Ekai Chandauli were examined as the official witnesses on 8.4.2005. D.W. 4 to D.W. 27 were cross examined upto 20.7.2005. By an order dated 8.8.2005 respondent No. 1 was permitted to bring on record the certified copy of voter list of Gram Panchayat Sisaura Kala of the year 1999. The final arguments of the counsel for the petitioner and respondent No. 1 were heard on 30.8.2005 and 30.9.2005 and judgement was reserved.
11. The election petitioner has filed list of voters of booth No. 291 and 292 (Ext. 14); certified copy of Form No. 20 ( round-wise) of 221 Dhanapur constituency (Ext. 1); certified copy of Form No. 20 (polling station wise) of 221 Dhanapur constituency (Ext. 2); certified copy of diary of Presiding Officer of 291 Primary Pathsala Sisaura Kalan of 221 of Dhanapur constituency (Ext. 3); certified copy of diary of Presiding Officer, 292 Primary Pathsala Sisaura Kalan of 221 Dhanapur constituency (Ext. 4); certified copy of appointment of counting agents (Ext. 5); certified copy of list of polling stations of 221 Dhanapur Legislative constituency (Ext. 6); certified copy of list of contesting candidates of 221 Dhanapur constituency (Ext. 7); certified copy of list of appointments of Assistant Returning officer of 221 Dhanapur constituency (Ext. 8); certified copy of list of counting supervisors deployed in counting for 221 Dhanapur constituency (Ext. 9); Election Programme (Ext. 10); certified copy of list of election observers (Ext. 11); certified copy of appointments of election agents of respondent No. 1 (Ext. 12); District Election Officer's letter and Presiding officer's diary (Ext. 13-A & B), voter's list of Gram Panchayat 1999 (Ext. 16)
12. The election petitioner examined himself as PW-1, Sanjai son of Ram Shanker PW-2, Ashok son of Parashu Ram PW-3, Bechan son of Shiv Poojan PW-4, Pratap son of Nanda PW-5, Manoj son of Awadh Behari PW-6, Manjeet son of Manrakhan PW-7, Ghanshyam son of Jagat Narayan PW-8, Manoj son of Shanker PW-9, Ajay son of Parashuram PW-10, Sudama son of Bindeswari PW-11, Kailash son of Amibika PW-12. Kamla son of Ambika PW-13, Bindu son of Keshav PW-14, Gorakh son of Kapil Dev PW-15, Jagat Narayan son of Parahu Singh PW-16, Ganesh son of Rama Kant PW-16, Sudama Singh son of Ram Lochan Singh PW-18, Ram Bachan son of Ram Bachan Singh PW-19 and Subedar son of Ram Chethar PW-20.
13. The respondent No. 1 examined himself as DW-1, Padam Prakash Singh son of Tej Bahadur Singh, Senior Clerk in the office of Chief Commercial Superintendent, Northern Railway, Varanasi, the Presiding Officer of polling station No. 291, Primary Pathsala Sisaura Kala as DW-2, Krishna Kumar Srivastava, Assistant District Election Officer, Chandauli as DW-3, Roop Narayan Verma, Agriculture Protection Inspector, Presiding Officer of polling booth No. 292 as DW-4, Hira Singh Yadav son of Rajai Yadav, Election Agent of respondent No. 1 as DW-5, Anand Prakash son of Mohan Prasad DW-6, Lallan Yadav, Son of Vishwanath Yadav, DW-7, Nand Lal Yadav son of Bal Krishun Yadav, DW-8, Ram Dular son of Nar Singh DW-9, Mool Chand Yadav son of Jagat Dev Yadav DW-10, Ram Ashish son of Pattu DW-11, Radhey Shyam son of Bal Kishun, DW-12, Ram Dayal son of Raja Ram DW-13, Ram Bachan son of Muddar DW-14, Doodh Nath Yadav son of Sukhdev Yadav DW-15, Jai Prakash Parjapati son of Mohan Prasad DW-16, Manish Kumar Yadav son of Dina Nath Yadav DW-17, Shanker Ram son of late Shri Ram Nath Ram, DW-18, Sadanand Jaiswal son of Sankatha Prasad Jaiswal DW-19, Rampati Ram son of Vishwanath Pal DW-20 Raj Dev Son of Suba DW-21.
14. Sri M. Islam assisted by Shri Himanshu Singh learned counsel appearing for the election petitioner did not press issue Nos. 3, and 4. He requested to decide the issue Nos. 1 and 2 together, and also to decide Issue No. 5. According to him paragraph No. 4 is most relevant paragraph with pleadings of corrupt practices to which reply is given in paragraphs 2, 5, 39, 42, 43 and 45 are relevant.
15. Sri M. Islam, learned counsel for the petitioner submits that the election of the returned candidate is liable to be declared as void on the ground of corrupt practices committed by the returned candidate. According to him, Sri Prabhu Narayan Yadav, the returned candidate and his supporters in collusion with election officials and policemen threatened and prevented the willing electors to cast their votes on polling booth No. 291 and 291 at village Sisaura Kalan. According to Sri M. Islam, there is overwhelming evidence that Sri Prabhu Narayan Yadav exercised undue influence. He relies upon Section 100(1)(b) of the Act of 1951 which provides that subject to provisions of Sub-section (2) if the High Court is of the opinion that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent, the High Court shall declare the election of the returned candidate to be void. He submits that Sub-section (2) of Section 100 is applicable as the corrupt practice in the present case was exercised by the returned candidate himself along with his supporters and that he was directly responsible for preventing the electors to cast their votes. According to Sri M, Islam, corrupt practice has been defined in Section 123 of the Act 1951 and that in the present case undue influence, in Sub-section (2) of Section 123 is attracted which means direct or indirect interference or attempt to interfere on the part of the candidate or his agent or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right.
16. He has also tried to bring his case within the ambit of 'booth capturing' which under Sub-section (8) of Section 123 amounts to corrupt practice, and is defined under Section 135A of the Act of 1951. Shri Islam submits that there is sufficient evidence to bring his case within explanation (c) of Section 135A' which includes threatening any elector and preventing him from going to the polling place or a place fixed for the poll to cast his vote.
17. The relevant provisions of the Act of 1951 relied upon by Sri M. Islam and noticed his argument are quoted as below;
100. Grounds for declaring election to be void.- (1) Subject to the provisions of Sub-section (2) if the High Court is of opinion -
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied-
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;
(b) (Omitted);
(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide the election of the returned candidate is not void.
123. Corrupt practices. The following shall be deemed to be corrupt practices for the purposes of this Act:-
(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:
Provided that-
(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who-
(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;
135-A. Offence of booth capturing.- Whoever commits an offence of booth capturing shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine, and where such offence is committed by a person in the service of the Government, he shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine.
Explanation- For the purposes of this section, "booth capturing" includes, among other things, all or any of the following activities, namely:-
(b) taking possession of a polling station or a place fixed for the poll by any person or persons and allowing only his or their own supporters to exercise their right to vote and prevent other from voting;
(c) threatening any elector and preventing him from going to the polling station or a place fixed for the poll to cast his vote;
18. Shri M. Islam submits that where a candidate is found to have influenced the elector in such a way so as to prevent him from making a free choice, will amount to corrupt practices and the High Court shall declare such election under Section 100(1)(b) of the Act to be void. In the present case there is a margin of only 26 votes between elected candidates and the election petitioner. He submits that the oral evidence and the notes of the Presiding Officers of polling booths clearly establish that the electors were prevented from casting their votes. The returned candidate Shri Prabhu Narayan Yadav was present in the morning of 21.2.2002 along with his goondas and with the help of police and he did not allow the voters to cast their vote. Not a single vote was cast at both the polling booth Nos. 291 and 292, which amounts to booth capturing and is a corrupt practice which has vitiated the election.
19. Shri Sushil Singh, P.W. 1 in his affidavit in evidence stated that Shri Prabhu Narayan Yadav, the returned candidate along with the Presiding Officers, did not allow the voters to cast their votes. Initially he asked them to go back and return after some time stating that the electoral list is not correct and thus the electors will not be allowed to vote. When the electors came back again to cast their votes, he made them run away with the help of police and his goondas. In his cross examination he did not admit that he was arrested on 20th April and that a wrong statement is published in 'Dainik Jagaran' that he was arrested by the police. He admitted that case crime No. 207/1997 under Section 307/504/506 IPC at P.S. Varanasi was registered against him. The case, however, is closed. He does not remember about case crime No. 50-A/98 under Section 147/302/504/506 IPC, crime case No. 69/1998 under Section 3 of Goondas Act is pending. In case crime No. 185 of 1999 under Section 302/307 IPC Chaubepur, Varanasi he has been exonerated. He has also been exonerated in case crime No. 144 of 1997 under Section 302/307/507/506 IPC at P.S. Chetganj, Varanasi and Section 7 of Criminal Law Amendment Act, case No. 85 of 1995 under Section 147/341/323/504 IPC Bhadoni, Varanasi and Crime No. 163/1998 under Section 364 IPC Suriyama Badhohi.
20. He admitted that case No. 82 of 1999 under Section 147/148/149/307 IPC and under Section 7 Criminal Law Amendment Act, case Crime No. 83 of 1999 and 26/27 of Arms Act, Nandganj, Ghazipur and case No. 24 of 1999 under Section 147/148/149/504 IPC are pending. He, however, stated that these were wrongly instituted against him. He admitted that Shri Brijesh Singh is his uncle but does not know how many cases have been instituted against him or that he is wanted. His father's name is Shri Udai Nath Singh Urf Chulbul Singh. In February 2002 when Mayawati formed the Government with the help of BJP, the Government lifted N.S.A. on him. He admitted that his signatures on Ext. 81, 82, 83 and 84 by which he had requested for re-polling. He did not remember the names of the persons who had come with Shri Prabhu Narayan Singh respondent No. 1 at booth Nos. 291 and 292 and admitted that he did not make any written complaint about threatening the voters and not allowing them to cast their vote. He denied that he has any such influence in the area, which may create a terror and admitted that document page 1 and 2 he has written that there was some defect (garbari) in the voters' list on account of which the voting was stopped.
21. Sanjay, PW-2, Ashok PW-3, Bechan PW-4, stated that they went to cast their vote at 08.00 AM and 10.00 AM. They could not cast their votes as they were told that there was some defect (garbari) in the voters' list. They were not allowed to cast their vote even at 10.00 AM also and were extended threats and made to run away by Shri Prabhu Narayan and his goondas and police. They denied that the voters had decided not to vote. PW-4 stated that Shri Abhai Singh, Inspector was present and was abusing and threatening them and asking them to run away. He was terrorised but die not make any complaint. Pratap PW-5 also made same statement.
22. Manoj PW-6 stated that he went to cast their vote at 10.00 AM where he was stopped from voting by Shri Prabhu Narayan Yadav and his goondas and also the police men. In the cross examination he stated that he is M.A., B.Ed and LLB and is registered as an Advocate. He, however, is a teacher and has not surrendered his registration. He stated that those present at the police station stated that there is some defect in the voters list. On a question put by the Court that as a registered advocate why he did not make any complaint on behalf of the electors on the same day and even thereafter, he replied that on the day of the elections he did not make any complaint on account of the pressure of the police and thereafter he did not make any complaint as he was told the matter has been reported to the Election Commission.
23. Manjeet PW-7 also gave same statements that he was made to run away by Shri Prabhu Narayan Yadav and his goondas and police. Ghanshyam PW-8 stated in his cross examination that he is a graduate. There was no such talk in the village that there was any tension at the polling booth. Sushil Singh was also present at the polling station. There was some people in police dress and also an Inspector, some Government vehicles were also there. The electors, however, did not make any written complaint. The other witnesses, also made similar statements. Kamla PW-13 has stated that Shri Abhai Singh, Inspector and other police men were present. He made a complaint at about 03.00 PM. He was present from 10.00 AM to 03.00 PM. He stated that all those who were present cannot be said to be goondas. Bindu PW-14 stated in his cross examination that he was not threatened by any one and was told at 08.00 AM that there is some defects in the voter list and to come after some time. Jagat Narayan PW-16 stated in his cross examination that at 10.00 AM Prabhu Narayan Yadav was present. The Inspector took out revolver and started threatening. He did not fire. He does not remember as to how many persons were there. He did not go back to cast his vote. Sudama Singh PW-18 stated that there was no tension at the police station. There were about 100 to 150 persons at the polling station. He stated that he is aware of the fact that a number of names were deleted from the voter's list and voters were not happy. According to the voters, the votes should have been allowed on the basis of the old voter list. This fact, however, has been denied by Ram Bhajan PW-19 in his cross examination. PW 19 stated that Prabhu Narayan Yadav was present inside the polling station at about 10.00 AM and that Sushil Singh was present outside. There was about 20 - 25 police men in and out of police station and when they started abusing and started beating, they ran away. At 05.00 PM Sushil Singh and Prabhu Narayan Yadav were present. Subedar PW-20 stated that when he went to cast his vote, Prabhu Narayan Yadav, his supporters and police men made then run away. On a question put to him as to why he did not make any complaint, he said that he did not know whom to complain. He further stated that he could not give the names of the persons whom he has stated to be goondas.
24. Shri Prabhu Narayan Yadav, DW-1 has given his itinerary of the day when polling took place. In his examination-in-chief he stated that after exercising his vote in village Ketawar, he went to polling station Papaura, Mathela, Chaharia, Ramauli and so on. He was informed by Shri Harendra Singh, Sector Magistrate at Awati polling station that voters have boycotted the election at polling station 291 and 292 village Sisaura Kala. He proceeded to Sisaura Kala at about 05.15 PM and reached there at 05.30 PM, when the polling was was over. He was told by Shri Doodh Nath Yadav that voters have boycotted the elections as voter list was defective. The polling officials also told same thing and further that the voters were asking to vote on the basis of old voters list. There are about 1400 - 1500 voters, of which most of them are Yadav and other backward class persons. He stated that he has no history sheet and has no crime is registered against him. He had won the pradhans election in Gram Panchayat Kelawar in 1989, and in the same year he was elected as Member of District Panchayat, Varanasi. He was again elected as Member, District Panchayat Varanasi in 1995 and in 1996 he was elected as Member of Legislative Assembly of Dhanapur constituency from Samajwadi Party. He is social and political worker. Shri Sushil Singh is son of Shri Chulbul Singh and nephew of mafia don Shri Brijesh Singh. He has requested for special security on which special arrangements were made under the leadership of DIG (Police) in the constituency and three observers were appointed. He had not gone to Sisaura Kalan in the morning from 08.00 to 11.00 AM.
25. Padam Prakash Singh, DW-2 Presiding Officer of polling booth of 291 stated that all arrangements were made for polling from 08.00 AM. Inspite of their request the voters did not come to cast their vote. There was total peace at polling station and no untoward incident took place. He wrote the diary of the Presiding Officer in his own hand writing. Shri Prabhu Narayan Yadav reached the polling station at 05.30 PM. He informed him that voters have boycotted the polling as the electoral list did not have names of all the electors. In cross examination he stated that the persons, who was deputed to prepare food for them had informed him that the voters are not casting their votes as the voter list was defective. He denied that the voters were made to run away. Similar statement was given by Roop Narayan Verma, DW-4, Presiding Officer of polling booth No. 292. In cross examination he admitted that by mistake he has written number of voters to be nil in para 10 (ga) of Presiding Officer's diary and further that he had written a note that the electors are stubborn (ziddi) and that they will not come to cast their votes even if re-polling is ordered. He denied that he did not allow the voters to caste their vote.
26. The other witnesses from DW-6 to DW-20 deposed that voter list did not have names of all the voters and thus the electors decided to boycott the polling. There was peace at polling stations and that inspite of repeated requests made by the authorities the electors did not cast their votes. Ram Dayal DW-13 stated that about 600 names were deleted from the voter's list. He had seen the voter's list on the evening before the polling date. Ram Bachan DW-14 stated that in the voter's list of prathan's election there were 2200 names, whereas in the new voter's list there were only 1400 names. Similar statements was given by Doodh Nath DW-15. Jai Prakash DW-16, Maneesh Kumar Yadav, DW-17, Shanker Ram, DW-18, Ram Pad Pal DW-19, Sada Nand Jaiswal DW-20 and Rajdeo DW-21 none of these witnesses could be shaken or made any inconsistent statements in their cross examination.
27. List of voters in the electoral list of Gram Panchayat Sisaura Kalan of 1999 (Ext. 16) has 2109 names and that electoral list of Vidhan Sabha Chhetra 221 Dhanapur (General) Lok Sabha Chhetra 51 Chandauli (General) 1999 has only 1405 names (866 in Bhag Sankhya 291, and 539 in Bhag Sankhya 292).
28. According to Shri T.P. Singh, learned Senior Advocate assisted by Shri N.K. Pandey, and Shri Sidhartha Singh, Advocates for respondent No. 1 the electors of village Sisaura Kala were not happy with the deletion of about 700 names from the voters list which was seen by them only a day before the polling and had decided to boycott the election. Not a single vote was cast at either of the polling booths and that the Presiding Officers had clearly written in their diaries that the voters did not come to cost their vote. There was no untoward incident at the polling station. Shri Prabhu Narayan Yadav has given his itinerary in examination-in-chief and has clearly stated that he had reached at polling station at about 05.30 PM after the close of polling time. There was absolutely no occasion for him to have threatened the voters. The statement given by plaintiff-witnesses do not establish that returned candidate or his supporters had extended any threat or created any such atmosphere which would have threatened the electors to cast their vote. He submits that they the electors had a right to vote but where they decided for any reason not to exercise their right of franchise the election cannot be declared to be void. He submits that the plaintiff have failed to establish any corrupt practices defined under Section 123 of the Act.
29. Sri T.P. Singh submits that booth capturing is an offence and has been defined under Section 135A of the Act, in the explanation appended to under Section 135A of the Act. Booth capturing includes amongst other things, taking possession of the polling station or a place fixed for polling by any person or persons and allowing only his or their own supporters to exercise their right to vote and prevent others from voting and threatening any electors and preventing him from coming to the polling stations or a place fixed for the polling to cast his vote. According to Shri T.P. Singh the plaintiff has not established any such fact which may fall within the meaning of booth capturing under Section 135A of the Act. He states that ingredient of corrupt practices namely undue influence under Section 123 has not been established. The oral evidence does not suggest that any elector was threatened with injury of any kind by the returned candidate or his election agent or by any other person. The other requirement that such corrupt practices should have been committed with the consent of the returned candidate or his election agent has also not been established.
29. In a participative democracy every elector, whatever position he holds in the society, should be able to participate in the political process. If an ordinary elector is not in a position to make his free choice, the election will never reflect the true and popular will of the people. A candidate may attempt to exert influence on the elector in such a way so as to prevent him from making a free choice. In order to avoid this evil the provisions of the Act of 1951 seek to prohibit candidates from exercising undue influence. In the law of contract, consent of parties obtained by undue influence is a ground to avoid an agreement. Where parties stand to one or another in a relation of confidence in which one of them is in a position to exercise undue influence over the other capable of being unfairly used is known as undue influence. Under Section 19A of the Contract Act 1872, in order to prove undue influence the party alleging undue influence is bound to establish, any of two conditions namely (1) where the other party has exercised undue influence in the sense of the domination over the other or (ii) where there is an abuse of the judgement of care and confidence which may be imposed on one party towards another.
30. In election law, however, none of these conditions are necessary to constitute undue influence as the 'term' has been defined differently. Under Section 123(2) of the Act of 1951 an influence may amount to undue influence if there is an interference or an attempt to interfere with the free exercise of the electoral right of a person. Sub-clause (a) of Sub-section (ii) of Section 123 deals with specific instances of undue influence and Sub-clause (b) considers the exceptional circumstances where allegations have been levelled and evidence is led by the petitioner to establish undue influence of preventing the elector to freely exercise their electoral right. It must be established that the electors were influenced in such a manner which would be found to be undue i.e. by creating an atmosphere which in fact prevented electors to cast their vote. There may be a situation where physical force has been used, or the situation at the polling booth was such that an ordinary and prudent elector was prevented from making his free choice and casting his vote. There may be varied situation which are not advisable to be put in a straitjacket.
31. In Ram Sharan Yadav v. Thakur Muneshwar Nath Singh and Ors. , considering the evidence led to establish undue influence, the Supreme Court held that there is no ritualistic formula nor any cut-and-dried test to lay down as to how a charge of undue influence could be proved but if all the circumstances were taken together lead to the irresistible inference that the voters were pressurised, threatened or assaulted at the instance of either the candidate or his supporters or agents with his consent or with his agents consent that should be sufficient to vitiate the election of the returned candidate. A rule of caution was added regarding the nature of approach to be made in cases where allegations of fraud or undue influence are made. While insisting on standard proof the court should not extend or stretch the doctrine to such an extreme extent as to make it well nigh impossible to prove an allegation of corrupt practice. Such an approach would defeat and frustrate the very laudable and sacrosanct object of the act in maintaining purity of the electoral process. In para 9 of this judgment the Supreme Court laid down tests for guidance, in appreciating or analysing the evidence. Para-9 of this judgement is quoted as under:-
9. By and large, the Court in such cases while appreciating or analysing the evidence must be guided by the following considerations:
1. the nature, character, respectability and credibility of the evidence,
2. the surrounding circumstances and the improbabilities appearing in the case,
3. the slowness of the appellate court to disturb a finding of fact arrived at by the trial court who had the initial advantage of observing the behaviour, character and demeanour of the witnesses appearing before it, and
4. the totality of the effect of the entire evidence which leaves a lasting impression regarding the corrupt practices alleged.
32. The influence of muscle power is increasing day by day in Indian election process. The practice of booth capturing virtually throttles free and fair elections. Section 135A is an inclusive definition and covers almost all the situations and does not leave any such instance from the purview of law. It also covers a situation in Sub-clause (c ) where an elector may be threatened and prevented from going to polling station or a place fixed for the poll to cast his vote.
33. A careful assessment of the oral evidence led by the parties in respect of the allegations of undue influence and that the electors were prevented in casting their vote, shows as follows;
1. Sri Prabhu Narayan Singh, the returned candidate was not present at the polling station at Sisaura Kalan in the morning of 21.2.2001 between 08.00 to 10.00 AM. He has explained his itinerary of that day and that the official witnesses have not supported the statement of the witnesses produced by the petitioner to establish that Sri Prabhu Narayan Singh along with his supporters was present at about 08.00 AM and told the electors at the polling station to come later as there were some irregularities in the voter's list and that at about 10.00/10.30 AM he along with his supporters threatened and did not allow any voters to cast their votes.
2. No vote was cast by any voter at the polling station at 297 and 292 at Sisaura Kala.
3. Not of single witness has stated that he was physically obstructed and was not allowed to cast his vote. All the plaintiffs witnesses have in a single voice stated that Sri Prabhu Narayan Singh and his supporters threatened them and made them to run away.
4. There is no evidence or even a suggestion by the plaintiffs-witnesses, of any such incident of violence, words spoken of threat or the presence of any unsocial elements or number of persons which may have scared the voters to run away. The polling officers were present upto 05.30 PM. Except for one or two witnesses who stated that they were present upto 05.30 PM not a single elector made an attempt to cast his vote after 10.30 AM and before 05.00 PM.
34. There is no evidence of any words spoken by returned candidate Sri Prabhu Narayan Singh. No one has stated that there were any persons armed with any weapons or firearms. There is no evidence of display of weapons and fire arms from the side of plaintiff witnesses. In the request for re-polling made by plaintiff vide paper No. P-1, P-2 and P-5 made on the next day there was no allegation that the returned candidate Sri Prabhu Narayan Singh and his supporters had threatended and did not allow the electors to cast their votes.
35. A brief discussion of the cases cited by Sri M. Islam shows that in Har Swaroop and Anr. v. Brij Bhushan Saran and Ors. AIR 1967 SC 836, the Supreme Court upheld the order dismissing the election petition on the ground that candidates who had threatened the electors had withdrawn his candidature and was not impleaded as party to the election petition. Some observations were made with regard to purity of elections but the evidence constituting undue influence was not discussed. In Ziyauddin Burhanuddin Bukhari , it was held that the returned Muslim League candidates had made speeches in the codes of election campaign calculated in attempts of belief in the electors that they will suffer divine displeasure or spiritual censure if they voted for Chagla Congress Party candidate. There were allegations of making speeches in sixteen elections meetings. The Supreme Court held that these were sufficient to prove the case under the definition of undue influence under Section 123(ii) of the Act of 1951 and that the High Court had rightly set aside the elections. In Pratap Singh v. Rajinder Singh and Anr. the Supreme Court set aside the judgment of High Court and remanded the matter for recording further evidence. The Supreme Court discussing the law with regard to standard of proof for proving act of undue influence held that a witness may not be proved to be a perjurer before his evidence is discarded. It may be enough if his evidence appears to be quite improbable or to springs from such tainted and biased, or dubious a force as to be unsafe to be acted upon without collaboration from the evidence other than that of the witness himself. In Avtar Singh Brar v. Tel Singh and Ors. respondents had falsely represented to the voters that Sri Roop Lal had withdrawn his candidature and any vote given to him (Tej Singh) would be deemed to be a vote for Roop Lal. The Supreme Court dismissed the petition. The Supreme Court, however, on the assessments of evidence held that the posters were printed in the press of Roshan Lal PW-4 for which the order was placed at the instance of Tej Singh, returned candidate. It was thus found that the returned candidate had misrepresented the electors which implied undue influence under Section 123(2) of the Act of 1951.
36. In Ram Sharan Yadav v. Thakur Moneshwar Nath Singh discussing the law with regard to threatening and preventing the voters and thus causing undue influence, the Supreme Court while upholding the judgement of the High Court, declaring the elections to be invalid, found that the High Court had rightly assessed the evidence which proved on record, that the voters were threatened, assaulted and even a bomb was hurled so that they may not cast their votes. The witnesses stated that all these was done in the presence of the appellant. The evidence against this was a bare denial of the allegations. The evidence was further collaborated by a FIR lodged at the Police Station since after the occurrence as a result of which the police reached the spot and found that there was a lot of trouble in the Burkunda booth where the voters were pressurised and intimidated. As a sample PW-39 stated that he was standing in the queue along with 20 - 25 other voters at 11.30 AM he saw the respondents at the booth and also knew the appellant, who had asked Ram Prasad Yadav to capture the booth and after giving instructions he left the place. Thereafter 300 - 400 men of the appellant surrounded the booth and removed the voters including the witness from the queue and that they could not cast their votes. The respondents could not be informed because he was surrounded by the mob. In S. Harcharan Singh v. Sajjan Singh and Ors. the Supreme Court, while setting aside the judgement of the High Court dismissing the election petition, held that respondent was guilty of corrupt practices under Sub-section (3) of Section 123 of the Act and set aside the elections. The charge of corrupt practice namely the plea on the ground of religion was upheld. The Supreme Court found that religious influence had entered the electoral field and the nature and consequence of said appeal was undue influence on the electors.
37. In Samant N. Balakrishna v. George Fernandez and Ors. the Supreme Court dismissed the appeal against an order of the election tribunal dismissing the election petition. The petitioner had failed to prove the consent of the returned candidate to establish the corrupt practices avoiding the election. It was held that in order to establish undue influence the petitioner has to not only establish that the false statement was made by the agent with regard to conduct and character of the defeated candidate, calculated to harm his chances which material effected the result of the election but also the consent on the part of the returned candidate. There must be some reasonable evidence from which an inference can be made, or at least tacit approval of the general conduct of the agent. If the petitioner does not prove the corrupt practice by the candidate or his election agent but relates on a corrupt practice committed by an agent other than an application agent he must additionally prove how the corrupt practice affected the result of the poll.
38. In S. Baldev Singh Mann v. S. Gurcharan Singh MLA and Ors. , it was held that allegations of corrupt practices within the meaning of Sub-section (1) to (8) of Section 123 of the Act are regarded quasi criminal in nature requiring proof of the same because the consequences are not only very serious but also penal in nature. It does not only result in the declaration of the election to be void but also disqualifies the returned candidate who may be punished for imprisonment under Section 135A of the Act. The Court, therefore, insists upon a proof of such allegations of corrupt practices and not to decide the case on preponderance of probabilities. The evidence thus has to be judged having regard to these settled principles. In Dr. (Mrs.) Vimal v. Bhaguji and Ors. , Supreme Court held that corrupt practices must be established by clinching and unimpeachable evidence. In Harsh Kumar v. Bhagwan Sahai Rawat , it was held that burden of proof of corrupt practice very heavily lies on the petitioner. The will of people cannot be likely to set aside though of course disbelieve to protect the purity of the election. In order to succeed on the ground of corrupt practices election petitioner has to lead cogent reliable and satisfactory evidence. The standard of proof required is not of preponderance of probabilities but proof beyond doubt. In Borgaran Deuri v. Premodhar Bora and Anr. , it was held that the allegations of corrupt practices are viewed seriously. They are considered to be quasi criminal in nature. The standard of proof required for proving corrupt practices for all intent and purport is equated with the standard exploited in a criminal trial. The difference between these election petition and a criminal trial is whereas the accused has the liberty to keep silent during the trial of an election petition, the returned candidate has to place before the court his version and to satisfy the court that he had not committed the corrupt practice as alleged in the petitioner. The burden of the election petition, however, can be said to have bee discharged only if and when he leads cogent and reliable evidence to prove the charges levelled against the returned candidate. For the said purpose the charges must be proved beyond reasonable doubt and not merely by preponderance of probabilities as in several occasion.
39. Examining the evidence led in this election petition, in the light of the law laid down by the Supreme Court, for proof of undue influence as corrupt practice, to vitiate the election, I find that the returned candidate Shri Prabhu Narayan Yadav was not present in the morning of 21.2.2001 at the polling station, Sisaura Kanan. The plaintiffs witnesses could not give the names of the persons, who were alleged to be present and told them to return and thereafter prevented them by extending threatening to cast their vote. Not a single vote was cast at both the polling booths. The official witnesses have not supported the story that returned candidate Shri Prabhu Narayan Yadav was present or that his polling agents or supporters had threatened the electors and thus prevented them from casting their votes. Not a single voter has stated that any such threat was extended which may have given him threat of life or liberty or would have obstructed him from casting the vote. All the plaintiffs witnesses have used the same phrase that they were threatened and made to run away.
40. There is no evidence whatsoever to establish physical obstructions, displaying of weapons or fire arms or creation of such an atmosphere, which may have reasonably caused apprehensions of any physical abuse or threat to the electors. There were many other contestants in the election and that both booths were opened upto 05.30 PM. Not a single elector has stated that he came back to cast his vote and was prevented by any person by threatening or otherwise in casting his vote.
41. Shri M. Islam has laid much emphasis on the entries made by Presiding Officers of the polling booths, to the effect that the electors were stubborn and even if re-polling was ordered they would not vote. He also laid emphasis upon their statements of Presiding Officers of the polling booths in cross examination that their cook had told them that the electors were not casting their vote on account of defects in the voters list. These entries and statements in my opinion do not help the election petitioner.
42. In the representation made by the election petitioner to the Chief Election Commissioner, Government of U.P. dated 22.2.2002 (P-1), Chief Election Commissioner, Government of India, New Delhi dated 22.2.2002 (P-2) and Chief Election Commissioner, Lucknow dated 24.2.2002 (P-3) as well as complaints to District Election Officer, Chandauli dated 24.2.2002 (P-4), it was no where stated that the returned candidate had threatened the electors and had not allowed them to cast their votes at polling booth Nos. 291 and 292 at Sisaura Kalan. In all these applications, made by the election petitioner he rather supported the stand of the defence witnesses and stated that there were only 1400 names in electoral list as against 2300 names of the electoral list of Gram Sabha Sisaura Kalan and further that on a request made by the electors to allow them to cast their votes on the basis of old electoral list, they were made to run away and were denied the right to cast their votes. The story, that Shri Prabhu Narayan Yadav was present in the morning and that he and his his election agents, and supporters along with election officers and police threatened and did not allow the electors to cast their votes, appears to be an after thought, and cooked up only for the purpose of filing the election petition.
43. From the aforesaid discussion of evidence I find that the electors of village Sisaura Kanan were not prevented by the returned candidate with his supporters to cast their votes at booth No. 291 and 292 on 21.2.2002 in the election of U.P. Legislative Assembly in constituency No. 221 Dhanapur, District Chandauli. The elections of village Sisaura Kalan were, in fact, boycotted by the electors, who had not recorded their votes on their own decision taken on account of defective electoral list. Issue No. 1 and 2 are accordingly decided against the election petitioner.
44. With the findings on issue No. 1 and 2 returned against the election petitioner, there is no violation of provisions of Section 57 and 58A of the Representation of People Act 1951. The electors are allowed free and fair right to vote in favour of a candidate. There is, however, no corresponding duty that the electors must exercise their franchise. In the present case, since the electors of village Sisaura Kalan did not choose to exercise their right, the fact that no polling was recorded at booth No. 291 and 292 at Sisaura Kalan on 21.2.2001, the poll was not required to be adjourned, will not materially affect the result of the election.
45. Sri T.P. Singh, learned counsel for returned candidate-respondent No. 1 has laid great emphasis on the fact that there was no evidence with regard to allegations of consent between the returned candidate and his supporters in preventing the electors to cast their vote. He submits that the pleadings are not only vague but are not supported by the documents annexed to the election petition and the documents filed by the election petitioner on record. He further submits that the election petitioner has not succeeded in establishing the allegations made in paragraph 4, and grounds (b) and (e) of the election petition.
46. While deciding issue No. 1 and 2, I have already held that the election petitioner has failed to prove that the electors were threatened or prevented by returned candidate or his supporters in casting their votes. There was great variance in the number of electors in electoral list of Gram Panchayat Sisaura Kalan of 1999, in which there were 2109, names and the electoral list of Vidhan Sabha Chhetra of 1999 in which there were only 1405 names. The residents of village Sisaura Kalan had decided to boycott the election on this account. On findings, the submissions of Shri T.P. Singh has substance and thus this issue is returned in favour of the returned candidate.
47. With the findings on issue Nos. 1, 2 and 5 recorded against election petitioner, he is not held entitled to any relief.
48. The election petition is accordingly dismissed with costs to returned candidate Shri Prabhu Narayan Yadav.