Holding

The election of the returned candidate could not be set aside as the nomination was validly accepted and the petitioner failed to prove any corrupt practice, excess expenditure, or undue influence with the requisite specificity and evidence.

Summary

The Supreme Court dismissed Civil Appeal No.154 of 1999 filed by Jeet Mohinder Singh challenging the election of Harminder Singh Jassi. The Court held that the respondent's nomination paper was validly accepted because the required copy of the electoral roll was produced before scrutiny, and the returning officer was not required to give a reasoned order for acceptance. Allegations of bribery, undue influence, and excess election expenditure were found unproved as they lacked specific particulars, clear evidence, and were not pleaded in the election petition as required by Sections 83, 77 and 123 of the Representation of the People Act. The Court reiterated that setting aside an election is a serious step, the burden of proof lies on the petitioner, and corrupt practice charges must be proved to the hilt. Consequently, the appeal was dismissed and the High Court's decision upheld.

Issues considered

Whether the respondent's nomination paper was illegally accepted for failing to produce a copy of the electoral roll under Section 33(5) and for the lack of a reasoned order under Section 36(6).
Whether the returning officer was specially transferred to favor the respondent.
Whether the respondent committed bribery under Section 123(1) by distributing money and liquor and threatening voters.
Whether the respondent exceeded the prescribed election expenditure limit under Section 77 and thereby committed corrupt practice under Section 123(6).
Whether the respondent engaged in undue influence under Section 123(2) by the beating of ladies and removal of party flags, and whether such act materially affected the election result.
Whether the High Court's findings can be interfered with, given the standards of appellate review in election petitions.

Legislation cited

Conduct of Election Rules, 1961s. Form 25, s. Rule 94-A
Representation of the People Act, 1951s. 100(1)(d)(ii), s. 100(2)(a), s. 123(1), s. 123(2), s. 123(3), s. 123(3A), s. 123(6), s. 33(5), s. 36(2)(b), s. 36(4), s. 36(5), s. 36(6), s. 77(1), s. 77(3), s. 81(3), s. 83, s. 86, s. 87

Subjects

election petitioncorrupt practiceRepresentation of the People Actnomination paperelectoral rollbriberyundue influenceelection expensesburden of proofappellate review

Judgment

JEET MOHINDER SINGH A
v.
HARMINDER SINGH JASS!

. ·-... OCTOBER 26, 1999

[DR. A.S. ANAND, C.J., S. RAJENDRA BABU AND B
R.C. LAHOTI, JJ.]

Representation of the People Act, 1951 :

Election-Judicial review-Court's interference with-Held : The C
returned candidate's election should not be lightly interfered with-The
serious consequences must be kept in mind while interfering with an election.

Sections 83 and 123-Election-Election Trial-Corrupt practice-
Nature of-Proof-Held : Charge of corrupt practice is quasi-criminal in D
character-Such a charge should be sufficiently clear and precisely stated-
lt should be proved to the hilt by clear, cogent and credible evidence-Mere
preponderance of probabilities not enough.

Sections 116 and 123-Election-Appea/-lnterference with-By
appellate court-Justification of-Held : Opinion for111ed by the High Court E
should be given great value-Supreme Court will interfere only if the High
Court has disregarded principles governing the approach to evidence or
committed grave or palpable errors.

Sections 81(3), 83 and 123-Election-Corrupt practice-Contents
and form of-Verification Nature of-Explained-Conduct of Election Rules, F
1961, R. 94-A and Form 25.

Election-Nomination-Illegal acceptance of-Allegation of Returning
Officer having been specially brought by transfer on the eve of election at
the instance of the returned candiqate (Ex-Minister)-Va/idity of-Held: G
Transfer and postings are ordinary incidents of service and are made to
satisfy administrative exigencies of service-Merely because the government
servant happens to be posted twice at the particular station within a short
range of time does not lead to an interference that he has been "brought"
to that station for a particular purpose-Service Law. Election-Election
H
33
34 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

A Trial-Burden of proof-Held : The onus of proving the averments made in
the election petition lies on the election petitioner-It is for him to examine
a witness to prove his case-He cannot bank upon the plea of non-examination
of that witness by the returned candidate.

Sections 86, 87 and 123-Pleadings in Election-Election petition-
B Replication-Material facts and particulars not given in the election petition--
But stated for the first time in replication-Effect of-Held : Material facts
and particulars are required to be given in the election petition itself and
not for the first time in replication-Hence, non-consideration of the same
while framing issues justified.
c Section 33(5)-Election~Electoral roll or copy thereof-Filing or
production-Provision regarding-Held : Mandatory-Non-compliance of
the provision will entail the rejection of the nomination paper, non-compliance
being a defect of a substantial character.

D Section 33(5)~cope of-Held: Prescribes the manner of compliance
when the candidate is an elector of a different constituency-Mode ofproof-
(i) By producing a copy of the electoral roll of that constituency-or (ii) A
copy of relevant part thereof~! (iii) A certified copy of the relevant entries
in such roll-One of it may be produced at any time after filing of the
E nomination but before the time of scrutiny-The provision does not specify
as to who should produce it~The Section prescribes only the earliest and
the outer limits for producing the requisite document-It does not specifY
that such document be produced only with the nomination paper or at the
time of scrutiny-Returning Officer already in possession of the electoral roll
of that other constituency, can look into it to satisfy himself that the candidate
F is an elector of that constituency.

Section 36(6)-Election-Nomination paper-Accepting of-Held:
Need not be supported by a reasoned order. Reasons in writing are required
in case of rejection. Election-Election Trial-Pleadings-Written Statement-
Presence of persons-At the time of scrunity-Pleadings of-Held: who was
G present at the time of scrutiny of nomination paper is not required to be
pleaded in the wrirten statement unless in the facts and circumstances of the
case it may.be such a material fact as must be pleaded-There is nothing
unnatural about the person who himself has filed his nomination paper being
present at or around the office of the Returning Officer so as to learn what
H was transpiring thereat and what was the result of the scrutiny.
J.M. SINGH v. H.S. JASS! 35
Section 123(1)-Cor;upt practice~Bribe~Returned candidate along A
with SHO distributed money and liquor to voters and threatened them with
dire consequences if they did not cast their votes for him-Names of persons
who allegedly gave money and liquor and those who were threatened not
•• given-Allegations denied by SHO and the returned candidate-Opinion of
election observer, an independent witness, based on his enquiry, demolished B
the case of the election petitioner-Held: Under these circumstances allegation
of corrupt practice. of bribery not made out.

Sections 77(3) and 123(6)-Corrupt practice-Expenditure-Jn excess
ofprescribed limit-Incurring of-False return of expenses-Filing of-Held,
Positive allegations of the alleged expenses having been incurred between C
the date of nomination of the returned candidate and the date of declaration
of the result must be made in the election petition-In the absence of such
allegation S. 77(3) not attracted.
Section 77(1) Explanation-Election-Posters-Distributed generally
in the interest of the political party and its candidates highlighting its D
achievements and those of its leadership-Held: The expenses incurred in

- such activities cannot be counted as the expenses incurred by the returned
candidate.
Sections JOO(J)(b), JOO(J)(d)(ii), 100(2){a). and 123(2)-Election-
Corrupt practice-Undue influence-Beating of ladies and forcible removal
·offlags of a political party from their houses by supporters of the returned E
candidate-Such supporters not shown to be agents of the returned
candidate-No material to infer that result of election was materially affected
by beating of ladies-Held: Free consent of the returned candidate or his
election agent in respect of undue influence must be specifically alleged and
positively proved-Merely from the fact that one of the said supporters was F
later appointed as a counting agent of the returned candidate it cannot be
inferred that the returned candidate was aware of the said incident and that
he condoned the act of the said supporters by appointing one of them as his
counting agent thereby owning responsibility of the violence committed by
that supporter-There is no specific pleading or proof as to the alleged
violence having been committed with the consent of the returned candidate G
or his election agent-Jn the circumstances of the case, the election petitioner
. failed in making out a case for setting aside the election of the returned
candidate on the ground of corrupt practice.
The appellant-defeated candidate filed an election petition before the High .
Court challenging the election of the respondent-returned candidate (an ex- H
36 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A Minister) to the State Legislative Assembly, which was dismissed. Hence f 1is
appeal

On behalf of the appellant it was contended that the Returning Officer
was specially brought by transfer on the eve of the election at the instance of
B the respondent; that the respondent who was an elector of a different
constituency did not produce a copy of the electoral roll of that constituency
under Section 33(5) of the Representation of the People Act, 1951 and,
therefore, his nomination paper was illegally accepted; that the acceptance of
.. the nomination paper was not supported by a reasoned order; that the
respondent along with the SHO distributed money and liquor to the voters
C and threatened them of dire consequences if they did not cast their votes to
the respondent which amounted to a corrupt practice of bribery under Section
123(1) of the Act; that the respondent incurred expenditure in excess of that
provided under Section 77 of the Act and thus committed corrupt practice
under Sections 123(1) and 12(6) of the Act; that the supporters of the
respondent had beaten two ladies and removed flags of the appellant's party
D from their houses which amounted to a corrupt practice of undue influence
under Section 123(2); and that one of the said supporters was later appointed
as a counting agent of the respondent.

Dismissing the appeal, the Court
E
HELD : 1. The following are well-settled legal principles in the field of
election jurisprudence:

(i) The success of a candidate who has won at an election should not be
lightly interfered with. Any petition seeking such interference must strictly
F conform to the requirements of the law. Though the purity of the election
process has to be safeguarded and the court shall be vigilant to see that people ...
do not get elected by flagrant breaches of law or by committing ;;orrupt
practices, the setting aside of an election involves serious consequences not
only for the returned candidate and the constituency, but also for the public
G at large inasmuch as re-election involves enormous load on the public funds.
and administration. (63-F, G, H; 64-A)
Jagan Nath v. Jaswant Singh, AIR, (1954) SC 210 and Gajanan
Krishnaji Bapat v. Dattaji Raghobaji Meghe, [1995) 5 SCC 347, relied on.

(ii) Charge of corrupt practice is quasi-criminal in character. If
H
J.M. SINGH v. H.S. JASSI 37
substantiated it leads not only to the setting aside of the election of the A
successful candidate, but also of his being disqualified to contest an election
for a certain period. It may entail extinction of a person's public life and
political career. A trial of an election petition though within the realm of civil
law is akin to trial on a criminal charge. Two consequences follow. Firstly,
the allegations relating to commission of a corrupt practice should be B
sufficiently clear and stated precisely so as to afford the person charged a
full opportunity of meeting the same. Secondly, the charges when put to issue
should be proved by clear, cogent and credible evidence. To prove the charge
of corrupt practice a mere preponderance of probabilities would not be enough.
There would be a presumption of innocence available to the person charged.
The charge shall have. to be proved to the hilt, the standard of proof being the C
same as in a criminal trial. {64-B, C, DJ

Quamarul Islam v. S.K Kanta, AIR (1994) SC 1733; F.A. Sapa v. Singora,
AIR (1991) SC 1557; Manohar Joshi v. Damodar Tatyaba @ Dada Saheb
Rupwati, (1991] 2 SCC 342 and Ram Singh v. Col. Ram Singh, AIR (1996) D
SC 3, relied on.

,. (iii) The appellate court attaches great value to the opinion formed by
the Trial judge more so when the Trial Judge recording findings of fact is
the same one who had recorded the evidence. The Appellate Court shall
remember that the jurisdiction to try an election petition has been vasted in E
a Judge of the High Court. Secondly, the trial judge may have had the benefit
of watching the demeanour of witnesses and forming first-hand opinion of
them in the process of evaluation of evidence. The Supreme Court may re-
assess the evidence and come to its own conclusions on feeling satisfied that
in recording findings of fact the High Court has disregarded settled principles
governing the approach to evidence or committed grave or palpable errors. F
(64-E-, F, G)

Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe, [1996) 5 SCC
347 and Kripa Shankar Chatterji v. Gurudas Chatterjee, (1995) 5 SCC 1,
relied on. G
(iv) Section 83 of the Representation of the People Act, 1951 requires
every election petition to contain a concise statement of the material facts on
which the appellant relies. If the election petition alleges commission of
corrupt practice at the election, the election petition shall set forth full
" particulars of any corrupt practice including as full a statement as possible H
38 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

A of the names ofthe parties alleged to have committed such corrupt practice
and the date and place· of the commission of each such practice. Every election
petition must be signed and verified by the appellant in the manner laid down
for the verification of pleadings in the Code of Civil Procedure, 1908. An
election petition alleging corrupt practice is required to be accompanied by
B an affidavit in Form 25 read with Rule 94-A of the Conduct of Election Rules,
1961. Form 25 contemplates the various particula:-s as to the corrupt practices
mentioned in the election petition being verified by the appellant separately
under two headings: (i) which of such statements including particulars are
true to appellant's own knowledge, and (ii) which of the statements including
the particulars are true to information of the appellant. It has been held in
C Gajanan Krishnaji Bapat 's case that the election petitioner is also obliged to
disclose his source of information in respect of the commission of the cor1rupt
practice so as to bind him to the charge levelled by him and to prevent any
fishing or roving enquiry, also to prevent the returned candidate from being
taken by surprise. (64-H, 65-A, B, CJ

D Gajanan Krishna.ii Bapat v. Dattaji Raghobaji Meghe, [1995) 5 SCC
347, relied on.

2. Transfers and postings are ordinary incidents of service and
ordinarily any transfer or posting is presumed to have been made to satisfy
E the administrative exigencies of service. Merely because a government
servant happens to be posted twice at a particular station within a short range
of time, an inference as to his having been 'brought' to a particular station
for a particular purpose cannot be drawn. The documentary evidence goes to
show that the Chief Minister of the State had directed certain postings/
transfers of the officers. There were as many as 24 transfers and not that
F the Returning Officer alone was transferred for the purpose of being
accommodated or posted to fulfil somebody's demand. (49-B, C, D)

3. Section 33(5) of the Act clearly lays down that a copy of the electoral
roll of the respondent's constituency or a certified copy thereof has to be
G produced 'i:ierore the Returning Officer aUhe time of scrutiny. The provision
is mandatory. A failure to satisfy the requirement of this provision would 'entail
the rejection of nomination paper, non-compliance being a defect of a
substantial character. [51-B-C)

4. The onus of proving the averments made in the election petitfo1n did
H lie on the appellant. It was for the appellant to have examined a witness. If the
J.M. SINGH v. H.S. JASSI 39
appellant has failed in discharging his own onus, he cannot bank upon the A
· plea of non-examination of a witness by the respondent which witness was
essentially a witness to be examined by the appellant in the facts and
circumstances of the case. The appellant cannot be permitted to derive strength
. " from the weakness, if any, of the respondent. (57-A, BJ

5. On a plain reading of Section 36(6), it is clear that the Parliament B
has chosen to treat the case of acceptance of nomination paper differently
from the case of rejection. While a decision as to accepting or rejecting has
to be endorsed on each nomination paper, the reasons are required to be
recorded in writing by making a brief statement thereof only in the case of
rejection of nomination paper. There was no non-compliance with the C
provisions of Section 36(6) merely because· the Returning Officer had simply
endorsed acceptance on the respondent's nomination paper without recording
in writing a brief statement of his reasons for such acceptance. (58-A, BJ
'·
6. Who was present at the time of sc"rutiny of nomination papers is not
required to be pleaded in the written statement unless in the facts and D
circumstances of the case it may be such a material fact as must be pleaded.
There is noting unnatural about the person who himself had filed his
nomination paper being present at or around the office of the Returning
Officer so as to learn what was transpiring thereat and what was the result
of the scrutiny. (58-G-H; 59-A) E
7.1. Material facts and particulars as to commission of corrupt practice
are required to be given in the election petition and not in the replication
filed much after the expiry of period of limitation for filing election petition.
The material facts and particular alleged for the first time in the replication
and not forming part of the ave rm ents made in the election petition cannot be F
tried and cannot be made subject matter of issues framed by the Court for the
following reasons:-

(a) Firstly, the respondent does not have an opportunity of denying the
averments-whether facts or particulars, introduced for the first time in G
replication.

(b) Secondly, material facts and particulars as to corrupt practice are
required to be supported by an affidavit in the prescribed proforma. The
replication is not supported by any affidavit in the prescribed proforma.
(67-G, H; 68-AI H
)
40 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A 7.2. The Designated Election Judge has rightly taken care to fn1me the
issues only by reference to the averments made in the election petition and
•
not by referring to the averments made for the first time in the replication.
(67-GJ

8.1. On the language of Section 33(5) of the Act, it cannot be h1eld that
B the time of presentation of the certified copy is a constituent of the 'manner'
of compliance. Where the candidate is an elector of a different constituency,
Section 33(5) prescribes the 'manner' of proving the factum of the candidate
being an elector of a different constituency in one of the three modes. (i) By
producing a copy of the electoral roll of that constituency-()r (ii) A copy of
C relevant part thereof-()r (iii) A certified copy of the relevant entries in such
roll. Any other mode of proof is excluded. So far as the time is concerned the
earliest and outer limits of time are prescribed. The requisite document has
to be produced either with the nomination paper which is the earliest point of
commencement of time limit or at the scrutiny of the nomination papers which
is the outer limit. Section 33(5) does not specifically provide who shall 11roduce
D the requisite document before the Returning Officer. All that it provides for
is that one of the three documents must be produced. (60-8-C-D)

Ranjit Singh v. Pritam Singh, AIR (1966) SC 1626, followed.

E 8.2. The object sought to be achieved by Section 33(5) is fulfilled if the
requisite document is available before the Returning Officer at the time of
scrutiny even if the same was not filed along with the nomination paper;
meaning thereby the production of the requisite document subsequent to the
filing of the nomination paper but before the time of scrutiny so ~as to be
available before the Returning Officer at the time of scrutiny would meet the
F requirements of Section 33(5). It would have been better if the do1mment
required to be filed with the nomination paper and not so filed was produced
before the Returning Officer at the time of scrutiny because in that case the
production would have been in the presence of all those who might have chosen
to remian present at the time of scrutiny and that would have avoided all such
G insinuations being hurled at the Returning Officer and/or the n:turned
candidate as is being done in the case at hand. But that does not mean that
the document made available to the Returning' Officer before the time of
scrutiny cannot be looked into by him at the time of scrutiny for the purpose
of satisfying himself of the compliance by a candidate with Section :13(5) of
the Act. It is possible and permissible for the candidates to demand and inspect
H the nomination papers of their rivals and the Returning pfficer is under an x
J.M. SINGH v. H.S. JASS! 41
obligation to enable them to do so. Thus, there is no great sanctity in producing A
the Electoral Roll only at the time of scrutiny. [62-D, E, F, GI

Parmar Himatsingh Jugatsingh v. Patel Harmanbhai Narubhai, AIR
(1974) SC 951; Narbada Prasadv. Chhaganla/, AIR (1969) SC 395; Sri Babu
Ram v. Smt Prasanni, (1959) SCR 1403; Rattan Amolsingh v. Atma Ram,
(1955) 1 SCR 499 and Birad Mal Singhvi v. Anand Purohit, AIR, (1988) SC B
1796, relied on.

8.3. Further, the Returning Officer has deposed on oath that he had been
supplied with the electoral roll of that other Constituency under the
instructions of the Election Commission and that was available with him which C
could have been looked into for the purpose ofsatisfying himself whether the
respondent was an elector of that Constituency or not. The Returning Officer
was not obliged to call for the electoral roll of different constituency and meet
the deficiency in the nomination paper. But in the present case it was already
available with him and as per his own statement he would have looked into it.
The requirement of Section 33(5) would have been satisfied by looking into D
that electoral roll even if the disputed certified copy would not have been
produced by the respondent. (62-H; 63-A, BJ

Ranjit Singh v. Pritam Singh, AIR (1966) SC 1626, followed.

9. The allegations regarding distribution of money and liquor by the
E
respondent along with the SHO and threatening the voters with dire
consequences if they did not cast their votes for the respondent are denied by
the respondent and the SHO. Moreover, the names of the persons who
allegedly gave money and liquor and those who were threatened are not given.
Further the opinion of the election observer, an independent witness, based F
on his enquiry, demolishes the case of the appellant. Therefore, allegations
of corrupt practice of bribery within the meaning of Section 123(1) of the Act
are not made out. (67-B. C; D, E)

10. The appellant has not made a positive allegation of the alleged excess
expenses having been incurred between the date of nomination of the G
respondent and the date of the result. In the absence of such positive allegation
Section 77(3) of the Act will not be attracted. (72-H; 73-A)

11. The posters were distributed generally in the interest of the political
party and its candidates highlighting the achievements of the political party H
42 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

A and its leadership and, therefore, the expenses incurred in such activities ,
could not be counted as the expenses incurred by the respondent. (73-C-D]

12.1. Under Sections IOO(l)(d)(ii) and 100(2)(a) of the Act any corrupt
practice in order to vitiate the election of the returned candidate must be
B shown to have been committed either by the candidate or his election agent or
by an agent other than his election agent in the interest of the returned
candidate. Further, it should be shown that the result of the election in so far
as it concerns a returned candidate has been materially affected by the said
corrupt practice. None of the supporters has been shown much less proved to
be agents of the respondent. There is no material brought on record to infer '-
C the result of the election having been materially affected by the beating of the
two ladies. The appellant has been rightly held by the Designated Election
Judge to have failed in making out a case for setting aside the election of the
respondent on the ground of the said corrupt practice involving the beating of
the two ladies. The mere fact that one of the said supporters was later appointed
as a counting agent by the respondent does not lead to the inference that the
D respondent was in the knowledge of the incident, which had happened, and
that he had condoned the act of that agent by appointing him as a counting
agent and thereby owned the responsibility of the violence committed by that
agent. [74-:E, F, G, H; 75-A, BJ

E Manohar Joshi v. Nitin Bhaurao Patil, [1996] l sec 169, relied on.

12.2. The requisite consent of the returned candidate or his dection
agent is a constituent part of the corrupt practices under Sections 123(3)
and (3A) and in ingredient of the ground under Section lOO(l)(b). Such
consent has to be pleaded and proved implied consent of the candidatf' cannot
F be read into the provision. Whenever the requirement is of consent, it must
be free consent given by the giver of the consent of his own volition. It must
be specifically alleged and positively proved. In the case at hand there are
neither such pleadings nor proof as to the alleged violence having been
committed by the supporters with the consent of the returned candidate or of
G his election agent. (75-D-E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 154 of
1999.

From the Judgment and Order dated 18.9.98 of the Punjab and Haryana
H High Court in E.P. No. 9 of 1997.
J.M. SINGH v. H.S. JASS! [R.C. LAHOTI, J.] 43
1' RajinderSachhar, M.J.S. Sethi, S.K. Mehta, Dhruv Mehta, Fazlin Anam A
and Ms. Shobha for the Appellant.

P.P. Rao, N.S. Gill, Mahesh Agrawala, Rishi Agrawala, Atul Shanna and
E.C. Agrawala for the Respondent.

The Judgment of the Court was delivered by B

R.C. LAHOTI, J. This is an appeal under Section l 16A of the
Representation of the People Act, 1951 preferred by the appellant (petitioner
\)> before the High Court) feeling aggrieved by the judgment of the learned
~~
Designated Election Judge of the High Court of Punjab and Haryana, dismissing
the election petition laying challenge to the election of the respondent.
c
Legislative Assembly elections in the State of Punjab inclusive of'l09-
Talwandi Sabo' Constituency, took place in the months of January and
February, 1997 as per the election schedule announced by the Election
Commission of India. The nomination papers were to be filed from 13 .1.1997 D
to 18.1.1997. The scrutiny of nomination papers was to take place on 21.1.1997
-4> at l lA.M. The constituency was to go for polls on 7.2.1997. The counting
of votes was to take place on 9.2.1997. The respondent filed his nomination
papers on 16.1.1997. The appellant filed his nomination papers on 18.1.1997.
At the scrutiny held on 21.1.1997, the nomination papers of the appellant and
the respondent both were accepted. There were four other candidates whose
E
nomination papers were also accepted. In all. 92,586 votes were cast out of
which 1226 votes were rejected as invalid. The appellant got 33,290 votes
whereas the respondent got 36,483 votes. The respondent was declared
elected by a margin of 3, 193 votes. Other candidates namely S/Shri Jagdeep
Singh, Jaspal Singh, Surjit Singh Thekedar and Gurucharan Singh got 11463, F
8088, 1906 and 133 votes respectively. The appellant was the official candidates
... of Shiromani Akali Dal. The returned candidate. i.e., the respondent was
official candidate of Indian National Congress. The other four were the
candidates of BSP, Janta Dal and independents.

According to the appellant, the nomination paper filed by the respondent
G.

-- was invalid and therefore should have been rejected. The respondent was
also guilty of various acts of commission and omission which amounted to
corrupt practices within the meaning of Section 123 of the Representation of
the People Act, 1951 (hereinafter the ACt, for short) and therefore his election
-J was liable to be declared void and set aside. The learned Designated Election H
44 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A Judge of the High Court has found none of the allegations made by the
appellant proved. Consequently, the election petition has been held liable to
be dismissed. Here itself, it may be stated that though a number of corrupt
practices were alleged as having been committed by the respondent in the
election petition, however, at the time of hearing of the appeal, Shri Ra,jendra
Sachhar, the learned counsel for the appellant has made his submissions only
B as regards some of the corrupt practices which in his submission should have
been held proved as having been committed by the respondent. The main
thrust of the submissions of the learned senior counsel for the appellant has
been towards the illegal acceptance of the nomination papers of the
respondents as regards which submissions have been made in very many 4
C details. In the succeeding paragraphs, we will notice the pleadings confined
to the submissions made before us at the time of hearing.

The findings recorded on the following issues only are subject matter
of this appeal :-

D Issue No. 1 Whether the election of the respondent is liable to be
declared void for the reasons enumerated by the petitioner
in para No. 6(a) to 6(h) of the petition?........ OPA.

Issue No. 3. Whether the returned candidate is guilty of corrupt
practices of bribery within the provisions of Section 123(1)
E and also alleged undue influence under Section 123(2) of
the Representation of People Act, as alleged in Paras
Nos. 8(a) to (c) of the election petition? ....... OPA.

Issue No. 5 Whether the returned candidate has incurred expenditure
excess than the authorised expenditure as provided under
F Section 77 of the Representation of People Act and thus
allegedly committed corrupt practices within the purview
of Section 123(1) and 123(6) of the Representation of
People Act, as alleged in para No. IO(a) to (g) of the
election petition? If so, to what effect? ..... OPA.

G Issue No. 6. Whether the returned candidate has committed corrupt
practices of undue influence as defined under Section
123(2) of the Representation of People Act, as alleged in
para No. I l(a) to (f) of the election petition? ....... OPA.

H Issue No. 12. Relief.
J.M. SINGH v. H.S. JASS! [R.C. LAHOTI, J.] 45
The pleadings relevant to these issues insofar as necessary for the A
purpose of deciding this appeal shall be suitably extracted and reproduced
at their appropriate places hereinafter.

We will take up for consideration and deal with the submissions made
by learned counsel for the parties issue wise.
B
Issue No. I : As to whether the nomination paper of the respondent
was illegally accepted?

. According to the appellant, the returning officer Manvesh Singh was
specially brought by transfer as the Sub Divisional Magistrate, Talwandi Sabo C
on 9th December, 1996 i.e., on the eve of the election at the instance of the
respondent. He was earlier also posted at Talwandi Sabo and had developed
contacts with the returned candidate who was an influential Minister in the
Congress Government having been a Minister of State for Co-operation.
Before 9th December, 1996 the returning officer was posted at Bhatinda where
his wife was also serving as lecturer in government college. The returning D
officer having been thus specially brought to Talwandi Sabo for favouring the
respondent did oblige him by making false entries as to presentation of
papers before him and thereby illegally accepted the nomination papers of the
respondent which were otherwise liable to be rejected.
E
Undisputedly the respondent was not an elector of Talwandi Sabo
Assembly Constituency. He was registered as an elector in the electoral roll
of Pucca Kalan Assembly Constituency. As required by sub section (5) of
Section 33 of the Act, the respondent was required to file alongwith the
nomination paper a copy of the electoral roll of that Constituency (i.e., Pucca
Kalan Assembly Constituency) or of the relevant part thereof or a certified F
copy of the relevant entries in such roll which the respondent had not done
at the time of presentation of the nomination paper on 16.1.1997. However,
such a document though not filed alongwith the nomination paper, could be
produced before the returning officer at the time of scrutiny. The election
petition alleges that the returning officer conducted scrutiny of nomination G
papers at 1I A.M. on 21.1.1997. The appellant and some other candidates
..... i:vere present at the time of scrutiny in the office of the returning officer. The
respondent or his election agent or any other person on his behalf was not
present at the time of scrutiny. The returning officer did not exhibit all the
nomination papers at the time of scrutiny nor allowed inspection thereof. He
only announced that all the nomination papers were accepted. lbe appellant's H
46 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A specific request for inspection of the nomination papers was not allowed by
the returning officer who said that there. was no need of such inspection.

The. averments made in the election petition as regards the illegal
acceptance of the nomination papers of the respondent as set out in the
B election petition (the relevant parts thereof) are extracted and reproduced
hereunder:

Para 6

(f) That, in fact a certified copy of the electoral roll was applied for 4:
c · on January 21, 1997 in the office of the Deputy Commissioner, B'hatinda,
who was the District Election Officer. The Election Office is located
near Railway Station, Bhatinda, in the old Tehsil Complex, whiich is at
a distance of about 40 kilometres from Talwandi Sabo. After completing
all the formalities and passing through various dealing hands, the
copies were reported to have been delivered on January 21, 1997. This
D' certified copy was then carried to Talwandi Sabo and handed over to
the Returning Officer some time after the scrutiny was over, may be
on the next day. The Returning Officer favoured the returned candidate
and recorded the receipt time at 10.00 A.M. on nomination papers. No
copy could possibly be produced at 10.00 A.M. when it had been
applied for on January 21, 1997 at Bhatinda. This Hon'ble Court would
E
appreciate that copy must have been obtained during usual office
hours and following the usual procedure. Thereafter the distance of
40 kms, was covered from Bhatinda to Talwandi Sabo. The route also
includes busy bazars of four kilometers with two railway crossings.

F (g) That the Returning Officer who was the Sub-Divisional Magistrate,
Talwandi Sabo, was available to the returned candidate inasmuch as
he was specially brought by transfer to Talwandi Sabo just on the eve
of election on December 9, 1996. The gentleman had already served
at Talwandi Sabo earlier and had developed close contracts with the
returned candidate who was an influential Minister in the then Congress
G Government as Minister of State for Cooperation. He was posted at
Bhatinda and his wife was also serving there as Lecturer in Government
College, Bhatinda, yet he was specially got transferred to Talwandi
Sabo at the instance of the returned candidate. This was apparently
a wrong entry to validate the nomination papers of the returned
...
H candidate by inserting the words "Received at 10.00 A.M. on
J.M. SINGH v. H.S. JASS! [R.C. LAHOTI, J.] 47
21.1.1997". In fact, upto the time of scrutiny, there was no such copy A
produced before the Returning Officer, and thus his nomination papers
were liable to be rejected.

(h) That since the returned candidate is a person whose nomination
papers were wrongly accepted by the Returning Officer and, therefore, B
the result is materially affected so far as the returned candidate is
concerned and the election is liable to be declared void."

All the material averments made in the election petition have been
denied by the respondent in his counter/written statement. As to the production
of the certified copy of the electoral roli it is stated by the respondent that C
the certified copy showing the name· of the respondent as entered in the
electoral roll of Pucca Kalan Constituency was produced before the returning
officer of Talwandi Sabo at 10 A.M. on 21.1.1997 i.e., one hour before the
commencement of scrutiny of nomination papers and thus at the time of
scrutiny the certified copy was very much there before the returning officer
and thus the mandate of Section 3 3 of the Act was fully comp lied with. It is D
specifically denied that the certified copy was handed over to the returning
officer at any time after the scrutiny was over. The distance of the election
.. office Bhatinda from Talwandi Sabo is hardly 24 kms. and it does not take
more than half an hour to cover this distance by car. The returned candidate
had applied for the certified copy of the relevant entry at 9 A.M. on 21.1.1997 E
in the election office at Bhatinda which was supplied to him within l 5-20
minutes and thereafter the returned candidate immediately rushed in his car
from District Election Office to Talwandi Sabo to produce the said certified
copy in the office of the returning officer which he succeeded in handing over
to the returning officer in his office at 10 A.M. It was denied that the returning
officer was brought by the returned candidate to Talwandi Sabo by getting F
him transferred on 9.12.1996. The allegations as to any corrupt practice having
been committed by the returned candidate was denied. It was submitted that
the respondent had correctly filed the return to expenses. It was further
submitted that the observer never took possession of any printed posters
from the office complex of the respondent. The posters referred to in para 10 G
(t) of the election petition was got printed and distributed by the Block
Congress Committee Talwandi Sabo and Maur Mandi in routine in the 3rd
week of December i.e., much earlier to filing of nomination papers by the
respondent. The poster was never distributed by the respondent during
election process as alleged by the appellant. The respondent had got printed
3500 posters of different sizes and types from Satguru Printing Press for Rs. H
48 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A 2800 @ 80 paise per poster. The respondent also got printed 2000, 1800, 1500
posters for Rs. 1800, Rs. 1875 and Rs. 900@90 paise, Rs. 1.25, Rs. 3.90 per
poster respectively depending on the size and type of different posters. Hand
bills in campaigning were I0,000 got printed at the cost of Rs. I000 only. The
total expenditure thus incurred by the respondent on the printing of posters
B was Rs. 10,275 which was correctly shown in the return of the expenses. ·It
is wholly wrong to say that the cost of the two posters mentioned in the
election petition was Rs. 1,40,000.

The learned Designated Election Judge has found the allegation made
by the election petitioner not proved. He has held that the certified copy Ext.
C R-5/1 was duly obtained on 21.1.1997 and produced by the respondent at JO <
A.M. before the returning officer. It was a.vailable with the returning officer
at the time of scrutiny of the nomination papers which was held at the
appointed time i.e.;! I AM on 21.1.1997. The learned senior counsel for the
appellant has vehemently attacked the correctness of the findings so anived
at.
D
Whether Manvesh Singh, the returning officer was deliberately brought
to and posted at Talwandi Sabo to favour the returned candidate, i.e., the
respondent? Manvesh Singh, was posted as Secretary to the Regional Transport
Authority, Patiala when he was examined in the Court (on 1.7.1998). At the
E time of election, he was posted as Sub-Divisional Magistratt> of Talwimdi
Sabo.

The averments niade in the election petition vide para 6(g) setting out
the alleged reason for transfer are verified to be true to the personal knowledge
of the appellant. In his deposition before the Court the only fact stated by
F the appellant is that Manvesh Singh had enjoyed one posting earlier also at
Talwandi Sabo and he was posted for the second time just on the eve of
election. This factual part is not denied even by Manvesh Singh himself who
admitted that once earlier also between 25.8.1995 and 24.8.1996 he had remained
posted at Talwandi Sabo as SOM. His wife was a lecturer in Bhatinda. Jn
September, 1996, he had sought for a transfer to Bhatinda so as to join his
G wife which request was allowed by the State Government. However, the St-ate
Government transferred him back to Talwandi Sabo on 17/18.12.1996. He had
not made any representation for transferring him back. In between there was
a change in the leadership of the State Government. In October, 1996 Smt.
Rajender Kaur Bhattal became the Chief Minister of the State in place of Shri
H Harcharan Singh Brar. Beyond these facts, there is no other shred of evidence
•
J.M. SINGH v. H.S. JASSI (R.C. LAHOTI, J.] 49

brought on record enabling an inference being drawn that the returned A
candidate or Manvesh Singh, the returning officer or any one else in particular
was instrumental in bringing Manvesh Singh to Talwandi Sabo. Transfers and
postings are ordinary incidents of service and ordinarily any transfer or
posting is presumed to have been made to satisfy the administrative exigencies
of service. Merely because a government servant happens to be posted twice B
at a particular station within a short range of time, an inference as to his
having been 'brought' to a particular station for a particular purpose cannot
be drawn. The documentary evidence brought on record by the appellant
himself through Karam Singh (PW 11 ), Superintendent of Punjab, Civil
Secretariat, goes to show that Smt. Rajender Singh Bhattal, the Chief Minister
> of the State had passed an order Ex. A/12 on 10.12.96 directing certain C
postings/transfers of PCS officers. There were as many as 24 transfers and
not that Manvesh Singh alone was transferred for the purpose of being
accommodated or posted to fulfil somebody's demand.

On the principal controversy as to whether the certified copy of the
relevant extract from the voters list of Pucca Kalan Constituency showing the D
respondent as an elector entered therein was available or not before the
returning officer at the tin1e of scrutiny of nomination papers at 11 A.M. on
21.1.I 997, the case sought to be made out by the appellant at the trial is at
variance with the one set out in the election petition. We cannot resist
observing that both the parties have twisted the facts in this regard; while E
the appellant has trie_d to develop a case far too away from the truth; the
respondent too in his anxiety to defend himself and playing very safe has
gone on to making exaggerations. However, the truth lies somewhere in
between and has been brought out in the testimony of Manvesh Singh, the
returning officer whom we find a witness of truth giving a natural and
unembellished version of the events as they had happened. His testimony F
also finds support from documentary evidence.

The relevant legal provisions around which revolves the controversy
are contained in sub-section (5) of Section 33 and sub-sections {I), (4), (5),
(6) and (8) of Section 36 of the Act. The same are extracted and reproduced G
hereunder :-

"33 (5). Where the candidate is an elector of a different constituency,
a copy of the electoral roll of that constituency or of the relevant part
thereof or a certified copy of the relevant entries in such roll, unless
it has been filed along with the noll}ination paper, be produced before •H
•
so SUPREME COURT REPORTS (1999) SUPP. 4 S.C.R.

A the returning officer at the time of scrutiny.

36 (I). On the date fixed for the scrutiny of nominations under section
30, the candidates, their election agents, one proposer of each
candidate, and one other person duly authorised in writing by each
candidate, but no other person, may attend at such time and place as
B the returning officer may appoint; and thereturning officer shall give
them all reasonable facilities for examining the nomination papers of
all candidates which have been delivered within the time and in the
manner laid down in section 33.

xxx xxx.
c <
(4) The returning officer shall not reject any nomination paper on the
ground of any defect which is not of a substantial character.

(5) The returning officer shall hold the scrutiny on the date appointed
in this behalf under clause (b) of section 30 and shall not allow any
D adjournment of the proceedings except when such proceedings are
interrupted or obstructed by riot or open violence or by causes
beyond his control :

Provided that in case [an objection is raised by the returning
officer or is made by any other person] the candidate concerned may
E be allowed time to rebut it not later than the next day but one
following the date fixed for scrutiny, and the returning officer shall
record his decision on the date to which the proceedings have been
adjoined.

(6) The returning officer shall endorse on each nomination paper his
F decision accepting or rejecting the same and, if the nomination paper
is rejected, shall record in writing a brief statement of his reasons for
such rejection.

xxx

G (8) Immediately after all the nomination papers have been scrutinised
and decisions accepting or rejecting the same have been recorded, the
returning officer shall prepare a list of validly nominated candidates,
that is to say, candidates whose nominations have been found valid,
and affix it to his notice board."
H As we have already stated it is the common case of the parties that the
J.M. SINGH v. H.S. JASS! [R.C. LAHOTI, J.] 51
. .f::I
~'
respondent being not an elector of Talwandi Sabo Constituency, but of Pucca A
Kalan Constituency-a different constituency within the meaning of sub-section
(5) of Section 33, a copy of the electoral roll ofPucca Kalan Constituency or
of the relevant part thereof or a certified copy of the relevant entries in
electoral roll of Pucca Kalan Constituency was required to be filed along with
the nomination papers or produced before the returning officer at the time of
scrutiny. The provision is mandatory. A failure to satisfy the requirement of
B
this provision would entail the rejection of nomination paper, non-compliance
being a defect of a substantial character.

A perusal of the averments made in the election petition goes to show
that the scrutiny of the nomination papers was conducted by the returning c
officer at 11 A.M. on 21st January, 1997 whereas the appellant and some other
candidates were present for the purpose of scrutiny. It is not pleaded, not
·- even suggested in the election petition, that the scrutiny did not take place
at the appointed time as was attempted to be proved by the appellant in his
deposition before the Court. The second important fact discernible from the
averments made in the petition is that the certified copy of the requisite
D

].. electoral roll was applied for on 21st January, 1997 and was available with the
respondent on that day itself though according to the appellant it could not
have been produced before the returning officer on that day at IO A.M. i.e.,
the time at which it purports to have been produced before the returning
officer according to the endorsement made under his hand on such certified E
copy. The certified copy bears an endorsement at the top of it and reads as
-"received at 10.00 A.M. on 21.1.1997" in the hand of the returning officer
Manvesh Singh. According to the appellant no such copy was produced
upto the time of the scrutiny and apparently the said endorsement was falsely
made to validate the nomination paper of the returned candidate and hence
F
... the nomination papers filed by the respondent were liable to the rejected .

The certified copy is Ex. R-5/1. It was issued by the District Election
Officer, Bhatinda on an application Ex. 'R/6' moved by one Bhupinder Singh
(RW 17) who is sister's son (Bhanja) ofHarminder Singh Jassi, the returned
candidate. Ext. A/33 is the official receipt showing the deposit of the copying
G
- charges. Ext. A/32 is the copying register which has an entry showing the
receipt of the copying application and delivery of the certified copy. The
witnesses relevant in this connection are Satpal (PW 39) who had issued the
certified copy Ext. R-5/i and Yadwinder Singh Bhalla (PW 41) in-charge Naib-
f Tehsildar (Elections) in the office of District Election Office, Bhatinda under
? - H
whose signature the copy was certified and then issued. Other than these,
52 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

A the ·witnesses whose testimony would need to be scrutinised in connection
with the preparation and delivery of certified copy from the District Election
Office are the appellant, the respondent and Bhupinder Singh (RW 17).

The endorsements made by the copying department which are in the
shape of a rubber stamp with columns filled in by hand on the certified copy
B of the electors roll, Ext. R-5/1, show the application for copy having been
presented on 21.1. 1997 and the certified copy having been prepared and
delivered on 21.1.1997. The application for certified copy Ext. 'R/6' bears the
date "20.1.1997" under the signature of the applicant Bhupender Singh. In the
register of copies Ext. 'A/32' the date of receipt of application is shown as
C 20.1.1997. In the column meant for recording the number and date of receipt
the entry is 399456 (receipt number) and 20.1.1997 (the date). The receipt Ext.
'A/33' bears the serial number 399456. It is dated 21.1.1997. According to this
receipt the amount of Rs. 12 being on account of copying fee was received -'
on 21.1.1997. It is borne out from the testimony of Satpal (PW 39) that the
D copying application Ext. 'R-6' was presented to Shri Rajkumar Gupta who was
the Tehsildar. Shri Rajkumar Gupta was the best person to disclose the exact
time and date of the presentation of the application and how it was dealt
thereafter but the appellant has chosen not to produce him as a witness. The
appellant has felt satisfied by examining Satpal (PW 39) and Yadwinder Singh
Bhalla (PW 41) in this regard.
E
Bhupender Singh (RW 17) has stated that in the early hours of 20th
· January, 1997 he received a message from the respondent asking him to obtain
certified copy of the requisite entry of the electoral roll by making a proper
application. He went to the District courts (where the District Election Office
F is .situated) at about 1.30 p.m. and moved the application for certified copy
some time in the later part of the day. The dealing clerk asked him to pay Rs.
12 on account of copying charges which he did. He was asked to collect the
certified copy either in the evening of 20th January, 1997 or in the morning
of 21st January, 1997. He went to the District Election Office at about 8.30 a.m.
on 21st January, 1997. He was accompanied by the respondent who kept
G waiting in his car outside the office premises. He obtained the certified copy
and gave it to the respondent who examined it. Thereafter both rushed in the
car of the respondent from the District Election Office to Talwandi Sabo, went
straight to the office of the returning officer, i.e., the SDM, Talwandi Sabo and
-
presented the certified copy to him at about I 0 A.M. To the same effect is
H the testimony of the respondent Harminder Singh Jassi in this regard.
J.M. SINGH v. H.S. JASS! [R.C. LAHOTI, J.] 53
Bhupender Singh has further stated that the receipt for Rs. 12 was given to A
him by the clerk concerned along with the certified copy on 21st January,
1997.

The learned senior counsel for the appellant has invited attention of the
Court to many other copying applications and entries in that regard contained B
in the copying register and other papers which go to show that similar
applications for certified copies made by some other applicants or candidates
were. received and copies delivered on the same day. A substantial part of
submissions made by the learned counsel for the appellant is directed towards
the inconsistency in the dates appearing on the documents Ext R-5/1, Ext. 'RI
6', Ext. 'A/32' and Ext. 'A/33'. It was submitted that ifthe application for C
certified copy was made on 20th January, 1997 accompanied by a tender by
Bhupender Singh of Rs. 12 towards copying charges as to which the receipt
was also prepared, there is no reason why the receipt would have been
prepared and issued on 21.1.1997. The receipt should have been issued on
20.1.1997 itself and the amount lodged in Government treasury as was done D
in respect of other applications for copies. Any amount of money tendered
to government treasury for a particular purpose cannot be retained by any
one without a receipt and proper entry made in books. Thus a false record
appears to have been brought into existence at the behest of the respondent
..... to falsely support the plea of the application having been made on 20.1.1997
and certified copy pursuant thereto having been delivered on 21.1.1997. E

The learned counsel for the appellant has tried to borrow strength in
support of his submission_from the statement ofYadwinder Singh Bhalla (PW
41) who has stated that he used to come to his office at about ten or quarter-
past-ten in the morning everyday. The certified copy could not be issued F
except under his signatures. He did not sign any paper at his residence and
whatever official work he did, he used to do in the office only. It was
submitted by the learned counsel for .the appellant that the certified copy
issued under the signature of Yadvinder Singh Bhalla (PW 41) could .have
been so issued only after I 0 or I 0.15 A.M. Then it was impossible to produce G
the same at IO A.M. on the same day before the returning officer in his office

-
situated at a distance of about 40 kilometers.

On behalf of the appellant reliance was also placed on the statement of
M.L. Mina (PW 49) an official of the Railways who had brought the record
of opening and closing of railway crossing Kartar Singh Wala and the statement H
j
54 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A of R.C. Singhal (PW 42) Executive Engineer, Roads and Bridges. According
to M.L. Mina (PW 49) Kartar Singh Wala railway crossing was closed from
9.12 a.m. to 9.32 a.m. and IO.I! a.m. to 10.23 a.m. on 21st January, 1997 as per
the entry Ext. 'A/50'. made in the relevant record maintained for the purpose.·
According to R.C. Singhal (PW 42) the distance between the election office;
B Bhatinda and the office of SDM, Tal~andi Sabo is 31.30 kilometers. l'here is
an alternate route also which is via Anaj Mandi. ffhe length of the distance
via that alternate route between the two points stated herein above is 30.79
kilometers. The width of the road connecting the two points is 18 feet to 40
feet. The entire road is well maintained. If the railway crossings are open, in
the opinion of the witness, it would take hardly 30 minutes to reach Talwandi 4 .
C Sabo from the election office. It was stated by learned counsel for the
appellant that assuming the time of presentation of the certified copy to the
returning officer as I 0 A.M. on, 21.1.1997, as per the endorsement made by
the returning officer thereon, and calculating the time backwards by adjusting
tb:e commuting time, the certified copy should have been delivered before 9
D a.m. which certainly was not done as per the oral testimony of the officials
associated with the preparation and delivery of the certified copy.

Two other submissions made by learned senior counsel for the appellant
may also be noted. Firstly, it is submitted that the plea taken by the respondent ..[
in his written statement in response to the averments made in sub-paras (f)
E (g) and (h) of para 6 of the election petition is that the distance between
election office, Bhatinda and Talwandi Sabo is hardly 24 kilometers which
does not take more than half an hour to cover by car. The returned candidate
had applied for the certified copy at 9 A.M. on 21.1.1997. It was supplied to
him within 15 to 20 minutes whereafter ;h~ returned candidate immediately
F rushed in his car to Talwandi Sabo so as to produce the same before the
returning officer at I 0 A.M. The evidence adduced on behalf of the respondent
is that the certified copy was applied for on 20th January, 1997 which being
at variance from the plea taken in the written statement is liable to be discarded.
Secondly, the plea taken in the written statement is of the respondent himself
having applied for the certified copy while the evidence adduced is of
G Bhupender Singh having moved the application which evidence being again
contrary to the pleadings, is liable to the excluded from consideration. It was
submitted by the learned senior counsel for the appellant that the story of
the certified copy having been applied for at 9 A.M. on 21.1.1997, the same .
having been prepared and delivered within 15-20 minutes and thereafter having
H been produced before the returning officer at I 0 A.M. in spite of the railway
J.M. SINGH v. H.S. JASS! [R.C. LAHOTl, J.) 55
crossing gate having remained closed for some time is a 'fantastic story', not A
liable to be accepted even for a moment by the Court.

It is true that Yadvinder Singh Bhalla has stated his practice of being
used to coming to the office everyday at about 10 or 10.15 A.M. The witness
has merely stated his usual practice. He was not asked any question about
the time of his arrival in the office on the eventful day of 21st January, 1997. B
In the examination-in-chief itself he has stated that though ordinarily such
copies were issued after two days but sometimes in view of emergency the
copies were issued within half-an-hour. In view of the elections and consequent
rush of work, the office used to be opened at 9 A.M. from 16.1.1997 and also
used to be kept open by sitting till late in the office. The witness went on C
to say that the application Ext. 'R/6' was received by Shri Rajkumar Gupta on
20.1.97 as per the endorsement and the signature in the hand of Shri Rajkumar
Gupta which he identified. The witness was not able to state the time at which
Shri Rajkumar Gupta had actually received the application. We have already
observed that the appellant should have examined Rajkumar Gupta to make
the position clear and throw light on the grey areas which the appellant has D
not done. There is some inconsistency as to the actual date of receipt ·of
copying application Ex. A/33 between the entry in copying register Ext. 'Al
• 32' and the entry on receipt Ext. 'A/33' which could also have been best
explained by Rajkumar Gupta alone. Satpal (PW 39) has stated that the
copying application along with the copying fee of Rs. 12 was handed over E
by Rajkumar Gupta to him on 21.1.97 and that is why the date of receipt of
copying application has been mentioned by him on the certified copy Ext. R-
5/1 as 21.1.97. He was confronted with entries as to dates in Ext. 'A/32' which
he refused to explain as those entries were not in his hand and he had no
direct or personal knowledge thereof. Here also, the non-examination of
Rajkumar Gupta by the appellant assumes significance. The possibility of F
application for certified copy having been moved on 20th January, 1997
cannot be ruled out from the evidence adduced on behalf of the appellant.
We have to take a realistic and practical view of the things as they happen.
In spite of the office timings being fixed, it is clear from the testimony of
Yadvinder Singh Bhalla (PW 41) that to cope with the extraordinary rush of G
work on account of election, the office was opened before the appointed time
and was kept opened beyond the appointed closing hours. It appears that the
returned candidate had instructed Bhupender Singh who is his sister's son
to move an application for certified copy which was done late in the day of
20th January, 1997. The person who received the copying application
accompanied by the copying fee kept the application and the amount with him H
56 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A so as to have it brought on record as the first item soon on the office getting
functional on 21.1.97. The candidate, i.e., the respondent being in dire need
of the certified copy was waiting on his legs accompanied by Bhupender
Singh and took care to see that the certified copy was prepared and delivered
in right earnest immediately on the concerned copying staff being available
B in the District Election Office in the early hours of the day. Probably he used
his influence in expediting the delivery of the certified copy and then rushed
to produce the same before the returning officer. In the early hours of the day
and January being in winter, there would not have been much crowd or traffic
on the way. In spite of the railway crossing being closed, the respondent and
Bhupender Singh reaching the returning office at I0 a.m. is not a feat impossible ·~-

C of performance. We have no reason to doubt the independence and
trustworthiness of Manvesh Singh as a returning officer who was the Sub-
Divisional Magistrate and entrusted by the election commission with the task
of performing his duties as one of the returning officers in the legislative
assembly elections. In the performance of his official duties, he has made an
endorsement on the certified copy certifying the date and time of the receipt
D thereof by him. In the absence of weighty and trustworthy evidence to the
contrary the correctness of the endorsement made by the returning officer
cannot be doubted. On the evidence adduced by the appellant, on whom did
lay the onus of proving the incorrectness of the endorsement made by the
returning officer, the onus has not been discharged. The correctness of the "·
E time endorsed on the certified copy has been deposed to on oath by the
Returning Officer and we are not inclined to doubt the same. In our opinion,
the High Court has not erred in recording a finding that the certified copy was
produced by the respondent before the returning officer on 21.1.97 at 10
A.M., i.e., an hour before the appointed time of scrutiny of the nomination
papers.
F
It was submitted by the learned senior counsel for the appellant that the
respondent had summoned Rajkumar Gupta Tehsildar alongwith the record
but the witness was given-up without being examined. He submitted that an
adverse inference should be drawn against the respondent for non-examination
G of witness summoned by him. The learned senior counsel for the respondent
has pointed out that the witness was given-up being unnecessary. We have
already observed that the onus of proving the averments made in the election
petition did lay on the appellant. It was for the appellant to have examined
Rajkumar Gupta. If the appellant has failed in discharging his own onus, he ,;·
cannot bank upon the plea of non-examination of a witness by the respondent
H which witness was essentially a witness to be examined the appellant in the
J.M. SINGH v. H.S. JASS! [R.C. LAHOTI, J.] 57
~ , facts and circumstances of the case. The appellant cannot be permitted to A
derive strength from the weakness, if any, of the respondent.

The learned counsel for the respondent has rightly submitted that there
was no need for the respondent to have exercised his influence for managing
or procuring ante-timing of the production of certified copy before the returning
officer. Though as the nomination papers filed by the respondent were not
B
accompanied by the certified copy of the electoral roll, as per the Act itself
the respondent had time to produce the certified copy upto 11 a.m. on 21.1.97

-- by which time the certified copy could have been conveniently procured and
produced. There is no reason why the respondent would have gone on to the
extent of pressurising the returning officer to ante-time the receipt of the c
certified copy and there is no reason why the returning officer would have
obliged him. We find substance in the submission of the learned counsel for
the respondent.

The learned counsel for the appellant submitted that the order of the
D
returning officer made on the nomination paper of the respondent is a bald
"accepted" which does not satisfy the requirement of sub-section (6) of
Section 36. Inasmuch as the nomination paper was not accompanied by
certified copy of the electoral roll and the certified copy was produced
subsequently, the returning officer should have passed a speaking order on
the nomination paper wherefrom it could be clearly spelt out that the certified E
copy h\ld been subsequently produced and the defect in the nomination
paper as initially filed had stood rectified and therefore the nomination was
being accepted, submitted the learned senior counsel. In his submission,
failure on the part of the returning officer to pass a reasoned or speaking
order has a dual effect. Firstly, it probabilises the appellant's case that the F
certified copy was not available before the returning officer at the time of
scrutiny. Secondly, it is non-compliance with the mandatory provisions of
sub-section (6) of Section 36 which vitiates the acceptance of the nomination
papers of the returned candidate. This submission has been stated only to
be rejected summarily. On a plain reading of sub-section (6) of Section 36, it
is clear that the Parliament has chosen to treat the case of acceptance of G
nomination paper differently from the case of rejection. While a decision as
to accepting or rejecting has to be endorsed on each nomination paper, the
reasons are required to be recorded in writing by making a brief statement
thereof only in the case of rejection of nomination paper. In our opinion, the
High Court has rightly held that there was no non-compliance with the H
~
58 SUPREME COURT REPORTS [1999) SUPP. 4 S.C.R..

A provisions of Section 36 (6) merely because the returning officer had simply
endorsed acceptance on the respondent's nomination paper without recording
in writing a brief statement of his reasons for such acceptance.

According to Manvesh Singh (RW 2) neither the appellant nor the
B respondent was present at the time of scrutiny of nomination papers though
the election agent of the appellant was present. He had made a
contemporaneous record of the presence of persons who were actually present
at the time of scrutiny. On behalfofthe respondent, Niranjan Singh (RW 13)
who too was a candidate at the election has been examined. He has stated
that he had visited the office of the returning officer at about 9.40 A.M. on
C 21st January, 1997. He had continued to remain present thereat until the
scrutiny of the nomination papers. was over. According to him, n:spondent
and Bhupender Singh had come to the office of the returning officer at about
9.45 or 10 A.M. In the presence of the witness the respondent had handed
over a paper to the returning officer which was certified copy of the entry in
D the voter's list. The scrutiny took place at 11 A.M. i.e., the appointed time.
Neither the appellant nor the respondent were present at the time of the
scrutiny. The reason assigned by the witness for his presence at the election
office is that he was curious to know whether the respondent filed the
certified copy of the entry in the voters list because if the resjpondent' s
nomination would have been rejected then he would have been granted the
E Congress ticket as he himself was a Congressite and an aspirant for 1:ontesting
the election as a Congress candidate. We do not find any reason to disbelieve
the presence of this witness around and in the office of the returning officer
as stated by him. We do not agree with the learned senior counsel for the
appellant in his criticism of credibility of the witness on the ground that the
p factum of such presence of Niranjan Singh has not been pleaded in the
written statement filed by the respondent. Who was present at the time of
scrutiny of nomination papers is not required to be pleaded in the written
statement unless in the facts and circumstances of the case it may be such
a material fact as must be pleaded. There is nothing unnatural about the
person who himself had filed his nomination paper being present at or around
G the office of the returning officer so as to learn what was transpiring there
at and what was the result of the scrutiny. On the other hand, the appellant
has made a departure from his averments in the election petition. We have .
already noticed that though it was not the case of the appellant as pleaded
that the scrutiny did not take place at the appointed time still he has deposed
H before the court that the scrutiny had taken place beyond the time appointed
J.M. SINGH v. H.S. JASS! [R.C. LAHOTI, J.] 59
for the purpose and the returning officer 'l'(as not present in his office at the A
appointed time for scrutiny and had reached there only at about 11.15 A.M.
whereafter the scrutiny was held.
~

Inasmuch as we find that the appellant was not present before· the
returning officer at the time of scrutiny of nomination papers we see no
substance in his plea that. he had asked for inspection of all the nomination B
papers and yet the returning officer had denied the same to him.

It was submitted in the alternative by the learned senior counsel for the
appellant that even if the appellant's case that the certified copy of the
relevant entry from the electoral roll of Pucca Kalan Constituency was not C
produced by the respondent until the scrutiny was over was held liable to
be discarded, the appellant was still entitled to succeed on the case· set up
by the respondent himself. According to the respondent, the said certified
copy was filed by him at IO A.M. on 21.1.97. According to Section 33 (5) such
certified copy can be produced only either with the nomination paper or at
the time of scrutiny. The statute does not contemplate any other time for D
production of such copy. Placing reliance on Parmar Himatsingh Jugatsingh
v. Patel Harmanbhai Narubhai, AIR (1974) SC 951, Narbada Prasad v.
Chhaganla/, AIR (1969) SC 395, Sri Babu Ram v. Smt. Prasanni and Ors.,
[1959] SCR 1403, Rattan Amolsingh v. Atma Ram, [1955] l SCR 499, Birad Mal
Singhvi v. Anand Purohit and AIR (1988) SC 1796, the learned senior counsel E
submitted that if the law prescribes the manner of doing a particular thing in
a particular way then the thing shall be done either in that manner or not at
· all. The provisions of Section 33(5) are mandatory in character. Consequences
of non-compliance are provided in Section, 36(2)(b). The manner of compliance
therefore ceases to be technical or as a matter of mere formality. Any deficiency
therein would be deadly. Inasmuch as on the own showing of the respondent F
C> the certified copy was filed neither as accompanying the nomination paper
nor at the time of scrutiny, it should be held that the certified copy was not
filed at all and therefore the nomination paper of the respondent should have
been rejected. Illegal acceptance of the nomination paper of a returned
candidate implies the result of election having been materially affected and G
therefore the election of the respondent is liable to be set. aside.

For two reasons the submission has to fail. Firstly, on the language of
sub section (5) of Section 33 of the Act, it cannot be held that the time of
presentation of the certified copy is a constituent of the 'manner' of compliance.
Where the candidate is an elector of a different constituency, Section 33 (5)· H
60 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.
'
A prescribes the 'manner' of proving the factum of the candidate being an
elector of a different constituency in one of the three modes : (i) by producing
a copy of the electoral roll of that constituency or (ii) a copy of the relevant
part thereof or (iii) a certified copy of the relevant entries in such roll. Any
other mode of proof is excluded. This has been explained by the Constitution
B Bench of this Court in Ranjit Singh v. Pritam Singh and others, AIR (1966)
SC 1626. So far as the time is concerned, as we will deal with shortly hereinafter
the earliest and outer limits of time are prescribed. The requisite document has
to be produced either with the nomination paper which is the earliest point
of commencement of time limit or at the scrutiny of the nomination papers
which is the outer limit. It is pertinent to note that Section 33(5) does not
C specifically provide who shall produce the requisite document before the
returning officer. All that it provides for is that one of the three the documents
must be produced.

In Ranjit Singh 's case (supra) the candidate had filed three nomination
papers. With one of them he had attached a copy of a part of the electoral
D roll. No such copy was attached with the other two nomination papers. The
nomination paper with which a copy of part of the roll had been filed was
rejected on the ground that the name of the parliamentary constituency, the
name of the village and the assembly constituency and the part number of
the electoral roll of the candidate were not mentioned and also because the
E name of the parliamentary constituency (House of the People) of the proposer
was not given. The other two nomination papers were rejected on the ground
that a copy of the electoral roll of the constituency concerned or of the
relevant part thereof or a certified copy of the relevant entries had not been
filed alongwith each of those nomination papers. The returning officer refused
to look into the copy of a part of the electoral roll made the candidate had
F filed alongwith his nomination paper which had stood already rejected when
the other two nomination papers were taken up for scrutiny. When the matt~r
came up before this court, the Constitution Bench stated the object of Section
33(5) in the following words :

"The object of this provision obviously is to enable the returning
G officer to check whether the person standing for election is qualified
for the purpose. The electoral roll of the constituency for which the
returning officer is making scrutiny would be with him, and it is not
necessary for a candidate to produce the copy of the roll of that
constituency. But where the candidate belongs to another constituency
H. the returning officer would not have the roll of that other constituency
'
J.M. SINGH v. H.S. JASSI [R.C. LAHOTI, J.) 61
-.- with him and therefore the provision contained in S. 33(5) has been A
made by the Legislature to enable the returning officer to check that
the candidate if qualified for standing for election. For that purpose
the candidate is given the choice either to produce a copy of the
electoral roll of that other constituency, or of the relevant part thereof
or a certified copy of the relevant entries in such roll before the
returning officer at the time of the scrutiny if he has not already filed
B
such copy with the nomination paper."

Repelling the argument of the opposite party that the compliance of
Section 33(5) must be made as regards each of the nomination papers, the
Constitution Bench opined that it would be enough if the candidate has one
copy with him at the time of the scrutiny and shows it again and again as
c
each nomination paper is taken up for scrutiny by the returning officer and
hence where a number of nomination papers have been filed and a copy has
been filed with one of them that is enough compliance of Section 33(5). The
returning officer is not prevented by Section 33(5) from looking at the copy
filed with one nomination paper inspite of its having been rejected because D
'the purpose of filing the copy is to ensure that the returning officer is able
to check whether the candidate concerned is qualified or not and that purpose
would be effectively served even if only one copy is filed with one nomination
paper and no copies are filed with the other nomination papers.' The
Constitution Bench went on to observe that may be that for certain purpose
E
each nomination paper stands by itself but so far as filing of a copy with the
nomination paper under Section 33(5) is concerned, we must look at the object
behind the provision and if that object is served by filing a copy with one
nomination paper, we see no sense in requiring a copy being filed with each
nomination paper where they are more than one.
F
.. ,. As to the manner of compliance with Section 33(5) the Constitution
Bench expressed itself as under :

" ..........the object of producing the copy under S. 33 (5) is to enable
the returning officer to check whether the candidate and the proposer
are qualified or not, one for the purpose of standing and the other for G
the purpose of proposing. In order to check this, the returning officer
must have a complete copy of the relevant part. If the copy is not a
complete copy it is possible that a name which may have been included
in the draft or in the first amendment may have been excluded in the
.,. second amendment made on the basis of an order of the appellate
officer. Therefore to enable the returning officer to decide whether a H
62 SUPREME COURT .REPORTS [1999] SUPP. 4 S.C.R.

A candidate is qualified to stand or whether a proposer is qualified to
propose he must have a complete copy of the relevant part of the roll.
If he has not a complete copy he will not be able to decide whether
the candidate or the proposer has the necessary qualification." (para
12)

B The Court however upheld the rejection of nomination paper because
the copy of electoral roll produced was incomplete and that was a defect of
a substantial character.

Applying the abovesaid statement of law to the facts of the case at
C hand two inferences follow. Firstly, the obje_ct sought to be achieved by
Section 33(5) is fulfilled if the requisite docuniertt is available before the
returning officer at the time of scrutiny even if the ·same was not filed
alongwith the nomination paper; meaning thereby the production of the
requisite document subsequent to the fiHing of the nomination paper but
before the time of scrutiny so as to be available before. the returning officer
D at the time of scrutiny would meet the requirement of Section 33(5} . It would
have been better if the document required· to be filed with the nomination
paper and not so filed was produced before the returning officer at the time
of scrutiny because in that case the production would have bc:en in the
presence of all those who might have chosen to remain present at the time
E of scrutiny and that would have avoided all such insinuations being hurled
at the returning officer and/or the returned candidate as is being dlone in the
case at hand. But that does not mean that the document made available to
the returning officer before the time of scrutiny cannot be looked into by him
at the time of scrutiny for the purpose of satisfying himself of the compliance
by a candidate with Section 33(5) of the Act.. It is possible and permissible
F for the candidates to demand and inspect the nomination papers of itheir rivals
·. and the Returning Officer is under an obligation to enable them to do so..
Thus, there is no great sanctity in producing the Electoral Roll. only at the
time of scrutiny. Secondly, Manvesh Singh, the returning officer has deposed
on oath that. he had been supplied with the electoral roll of Pucca Kalan
G Constituency under the instructions of the Election Commission arnd that was
available· with him which could have been looked into for the purpose of
satisfying himself whether the respondent was an elector of Pucca .Kalan
Constituency or not. The n;turning officer was not obliged to call for the
electoral roll of different constituency and meet the deficiency in the nomination
officer." But in the present case it was already available with him and as per
H his own statement he would have looked into it. The requirement of Section \
J.M. SINGH v. H.S. JASS! [R.C. LAHOTI, J.) 63
33(5) as explained by the Constitution Bench in Ran) it Singh 's case (supra) A
would have been satisfied by looking into that electoral roll even if the
disputed certified copy Ex. R-5/1 would not have been produced by the
respondent. The statement on oath of the returning officer as to the availability
of such voters list with him has not been disputed on behalf of the appellant
by directing pin-pointed cross-examination on this part of the statement. We B
have no reason to disbelieve the same.

We are therefore clearly c:ifthe opinion that the .nomination papers filed
by the respondent cannot be said ~o have been illegally accepted by the
returning officer: We uphold the finding recorded by the learned Designated
Election Judge on this issue. C
Having dealt with' the principal plea Of ihe appellant relating to illegal
acceptance of. the respondent's nomination papers we would now tum to
examining how far the appellant has. succeeded in proving the allegations as
to corrupt practice (to the extent to which they have been pressed for decision D
in this appeal by the. learned senior counsel· for the appellant.

Before we may proceed to deal, in exercise of our appellate jurisdiction,
with the pleas raised on behalf of the petitioner-appellant canvassing
commission of corrupt practices by the respondent which in the opinion of
the High Court the election petitioner has failed in proving, we would like to. E
state a few well-settled legal principles in the field of election jurisprudence
and relevant to our purpose. They are :

(i) The success of a candidate who has won at an election should not
be lightly interfered with. Any petition seeking such interference must strictly
conform t.o the. requirements of the law. Though the purity of the election F
process has to be safeguarded and the Court· shall be vigilant to see that
people do not get elected by flagrant breaches of I.aw or by committing
corrupt practices, the setting aside of an election involves serious
consequences not only for the returned candidate and the constituency, but
also for the public at large inasmuch as re-election involves enormous load G
on the public funds and administration [See : Jagan Nath v. Jaswant Singh,
AIR (1954) SC 210; Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe,
[I995J 5 sec 347.

(ii) Charge of corrupt practice is quasi-criminal in character. If
· substantiated ~t leads ·not only to the setting aside of the election of the H
64 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

A successful candidate, but also of his being disqualified to contest an election
for a certain period. It may entail extinction of a person's public life and
political career. A trial of an election petition though within the realm of civil
law is akin to trial on a criminal charge. Two consequences follow. Firstly, 1:he
allegations relating to commission of a corrupt practice should be sufficiently
B clear and stated precisely so as to afford the person charged a full opportunity
of meeting the same. Secondly, the charges when put to issue should be
proved by clear, cogent and credible evidence. To prove charge of corrupt
practice a mere preponderance of probabilities would not be enough. There
would be a presumption of innocence available to the person charged. The
charge shall have to be proved to hilt, the standard of proof being the same
C as in a criminal trial. [See Quamarul Isam v. S.K. Kanta, AIR (1994) SC 1733,
F.A. Sapa v. Singora, AIR (1991) SC 1557, Manohar Joshi etc. v. Damodar
Tatyaa@ Dada Saheb Rupwati etc., (1991] 2 SCC 342, Ram Singh v. Col.
Ramsingh, AIR (1986) SC 3.

D (iii) The Appellate Court attaches great value to the opinion formed by
the Trial Judge more so when the Trial Judge recording findings of fact is the
same who had recorded the evidence. The Appellate Court shall remember
that the jurisdiction to try an election petition has been vested in a Judge of
the High Court. Secondly, the trial judge may have had the benefit of watching
the demeanour of witnesses and forming first-hand opinion of thein in the
E process of evaluation of evidence. The Supreme Court may re:-assess the
evidence and come to its own conclusions on feeling satisfied that in recording
findings of fact the High Court has disregarded settled principles governing
the approach to evidence or committed grave or palpable errors. [See : Gajanan
Krishnaji Bapat v. Dattaji Raghobaji Meghe, (1995] 5 SCC 347; Kripa Shankar
p Chatterji v. Gurudas Chatterjee, [1995] 5 SCC I.

(iv) Section 83 of the Act requires every election petition to contain a 4t ·
concise statement of the material facts on which the appellant relies. If the
election petition alleges commission of corrupt practice at the election, the
election petition shall set forth full particulars of any corrupt practice including
G as full a statement as possible of the names of the parties alkged to have
committed such corrupt practice and the date and place of the commission
of each such practice. Every election petition must be signed and verified by
the appellant in the manner laid down for the verification of pleadings in the
CPC. An election petition alleging corrupt practice is required to be
H accompanied by an affidavit in Form 25 read with Rule 94A of the Condi; ct
J.M. SINGH v. H.S. JASSJ [R.C. LAHOTI, J.] 65
-~
of Election Rules, 1961. Form 25 contemplates the various particulars as to the A
corrupt practices mentioned in the election petition being verified by the
appellant separately under two headings: (i) which of such statements including
particulars are true to appellant's own knowledge, and (ii) which of the
statements including the particulars are true to information of the appellant.
It has been held in Gajanan Krishnaji Bapat's case (supra) that the election
B
petitioner is also obliged to disclose his source of information in respect of
the commission of the corrupt practice so as to bind him to the charge levelled
by him and to prevent any fishing or roving enquiry, also be prevent the
returned candidate from being taken by surprise.

With so much statement of law we proceed to deal with the relevant
' c
issues relating to corrupt practices.

Issue No. 3 Allegations of bribery?

The case as to corrupt practice of bribery committed by the respondent
is to be found mentioned in para 8 of the election petition which is extracted
b
and reproduced hereunder :-

"8. That the returned candidate is also guilty of corrupt practice of
bribery within the purview of Section 123 (I) of the Act and also of
undue influence under Section 123(2) of the Act the material facts and E
particulars thereof constituting the above corrupt practices are as
under:-
(a) That on February 6, 1997 at about 11.00
, P.M., Sarvshri Harpal
Singh son of Kirpal Singh and Chamkaur Singh son ofHakam Singh,
residents of Gandhi Basti, Maur Mandi, came to the camping site of F
. the petitioner and reported that the returned candidate accompanied
by Shri Sangram Singh, Station House Officer, Police Station Maur
Mandi and others were distributing cash and liquor to the voters in
Gandhi Basti.
(b) That the Station House Officer also threatened the voters to G
vote for Shri Harminder Singh Jassi, Respondent, and in case they do
not vote for Shri Jassi, he will teach them a lesson.
(c) That on getting this information the petitioner immediately
telephoned the observer at Bhatinda at about 11.45 P.M. the observer
replied that he will take due care of it. However, he arrived in the Maur H
t>
66 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.
.~

A Mandi after a short while and sent for the petitioner. Sarvshri Harpal
Singh and Chamkuar Singh, Gora Lal and Ashok Kumar accompanied
the observer to Gandhi Basti, the place where the above incident
occurred. When they arrived at Gandhi Basti at about 1.45 A.M. the
returned candidate accompanied by the Station House Officer and

B others was seen leaving the Basti, and this was pointed out to the 1
i
observer. He went to the. spot and made enquiries from various
residents of that place. The petitioner believes that he verified about
the distribution of cash and liquor and threats of the Station House
Officer to the Voters as explained above, in the presence of the
.P returned candidate. The petitioner further believes that the observer
c sent a report in this regard to the Election Commission of India. It
further transpired that the returned candidate with the Station House
Officer contacted Shri Roop Singh son of Shri Sadhu Singh and Shri
Roshan Singh son of Shri Baljit Singh, residents of Gandhi Basti,
Maur during their visit in. the area on the night of February 6, 1997
I) and offered them Rs. 200 per vote. They declined to accept the illegal
gratification offered to them. This happened at about 11.30 P.M. On
February 6, 1997 in their houses in Gaud.hi Basti Maur. They were
influential persons in the Basti. Shri Sangram Singh, Station Hoµse
Officer, was specially got posted as Station House Officer, Police
Station Maur Mandi, at the instance of the returned candidate on the
E eve of elections, i.e., on January 3, 1997. For this coveted post, he was
naturally beholden to the returned candidate and willing to help him
in any manner. Infact, he helped him to further his election prospects.
It may further be mentioned that the transfer of Shri Sangram Singh,
Station House Officer, Police Station Maur was in violation of the
F Model Code of Conduct issued by the Election Commission of India
which prohibited all transfers after announcement of the elections in
Punjab. The petitioner reported this matter to the Election Commission .
of India, New Delhi and the Chief Electoral Officer, Punjab, Chandigarh
on January 12, 1997 through Fax.
G Thus, the returned candidate is guilty of corrupt practices of
bribery within the meaning of Section 123(1) and undue inflw~nce
under Section 123(2) of the Act."

A perusal of para .8 of the election petition shows that_ the· factum of
H the respondent accompanied by Sangram Singh, .SHO distributing cash and
J.M. SINGH v. H.S. JASS! [R.C. LAHOTI, J.] 67
.... liquor to the voters in Gandhi Basti is alleged to have been brought to the A
knowledge of the appellant by S/Shri Harpal Singh (PW6) and Dr. Chamkaur
Singh (PWS). Sub-para (a) and (b) of para 8 of the election petition do not
set out the names of the persons who were offered cash and liquor. A reading
...,"') of sub-para (c) of para 8 of the election petition especially looking at the
manner in which the averment has been made gives an impression that Roop
Singh and Resham Singh having been offered the bribe of Rs. 200 each for
B

J casting their votes in favour of the returned candidate was an information
gathered by the observer. The petition does not allege such names of the
persons who were allegedly offered the bribe to have been brought to the
knowledge of the appellant by any one directly. The petition does not give
any particulars of the names of the persons threatened by SHO and the time c
'
and place of thereat to the voters. In the affidavit ~ccompanying the petition
it is stated that the facts stated in paras S(a), S(b) and S(c) of the petition are
based on the information received from Harpal Singh and Chamkaur Singh
who have been examined at the trail as PW6 and PWS respectively.

The averments made in. the petition have been specifically denied in the D
written statement filed by the respondent.

The appellant filed replication to the written statement filed by the
respondent. It is in the replication that the appellant has come out with an
averment (vide para 8) that some amongst the electors who were threatened E
by Shri Sangram Singh, SHO were Jagseer Singh (not examined), Dharminder
Singh; PW 13, Jawsant Singh (not examined), Jagraj Singh (not examined), and
.:,
Mander Singh (not examined). Here itself, we may observe that material facts
and particulars as to commission of corrupt practice are required to be given
in the election petition and not in the replication filed much after the expiry
of period of limitation for filing election petition. The material facts and F
particulars alleged for the first time in the replication and not forming part of
averments made in the election petition cannot be tried and cannot be made
subject matter of issues"framed by the Court. The learned Designated Election
Judge has taken care to frame the issues only by reference to the averments
rnade in the election petition and not by referring to the averments made for G
.the first time in the replication. Firstly, the respondent does not have an
.... opportunity of denying the averments-whether facts or particulars, introduced
for the first time in replication. Secondly, as already stated, material facts and
particulars as to corrupt practice are required to be supported by an affidavit
in the prescribed proforma. The replication is not supported by any affidavit
-~ in the prescribed proforma. H
68 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A The learned Designated Election Judge has discussed the relevant
pleadings and the evidence adduced by the parties in the High Court. He has ,
assigned reasons for arriving at the finding that the corrupt practices alleged
in para 8 of the election petition were not proved. We have carefully perused
the findings so recorded. Upon an independent evaluation of the evidence
adduced by the parties through which we have been taken by the learned
B counsel for the parties, we find ourselves in entire agreement with the view
taken by the High Court. While recording our general agreement with the
finding arrived at by the learned Designated Election Judge, still we would (
briefly assign the reasons for finding the allegation as to corrupt practice not
proved.
c '
Harpal Singh (PW6) stated that Dr. Chamkaur Singh had come lo his
house and at about 10 p.m. on 6.2.97 he had accompanied Dr. Chamkaur Singh
to see him off upto his house. On the way the two saw the respondent
accompanied by SHO Sangram Singh offering money and liquor to about 50-
60 persons standing inside a boundary wall situated at a distance of about
D one furlong from his house. He accompanied by Dr. Chamkaur Singh informed
the appellant who in his tum informed the observer Shri R. Bhardwaj (PW 43)
who promptly reached there. The observer reached the place of the incident
and made enquiries from Sher Singh Goldy and Sharvan Singh who were
present. Rest of the persons had fled away. The persons present were in
E possession of liquor and told the observer that the liquor was supplied to
them by the respondent and SHO, Sangram Singh. Room Singh and Resham
Singh had· told the observer that the respondent had given them the offer of
paying Rs. 200 per vote cast in his favour. Dr. Chamkaur Singh (PW8) deposed
generally on the same lines as Harpal Singh (PW6). Room Singh (PW 12)
deposed to having been offered a bait of bribe and liquor by respondent. He
F also deposed to the SHO having threatened him with dire consequences if
he did not arrange votes for the respondent though he did not give out the
name of the SHO. In cross-examination he stated that he did not know the
appellant at all. He further stated that he had not accepted either the liquor
or the money from the respondent nor did the threat given to him bring out
G any result. He has positively stated that he gave this information to the
observer and the latter had noted his name in a diary. Dharminder Singh (PW
13) also deposed on similar lines as Roop Singh (PW 12). He further stated
that he had made a complaint to the observer as regards the threat given to
him and the observer had noted his name also in his diary. The observer is
-
Shri R. Bhardwaj (PW 43). He was an additional commissioner of income-tax,
H Patiala. He stated that at about I 1.30/J 1.45 p.m. on 6.2.1997 he received a·
J.M. SINGH v. H.S. JASS! [R.C. LAHOTI, J.] 69
. telephonic call from the appellant that liquor and money were being distributed A
by the respondent in order to purchase the voters and one S.I. Sangram Singh
was accompanying the respondent. Looking at the seriousness of the
allegation made, he immediately rushed to village Mor Mandi as per the
information given by the appellant. He did not find the respondent though
SHO Sangram Singh did meet him. He visited Gandhi Basti, the place forming
subject matter of the complaint. He did not find any corroborative evidence B

J to substantiate the allegations of the appellant that money and liquor were
distributed. He interviewed about 7 to I 0 persons in order to verify the
allegations made by the appellant in Gandhi Basti but none substantiated the
allegations so made. No specific complaint was made against the conduct of
SHO Sangram Singh though the observer as deposed to by him, was eager C
to enquire about his conduct keeping in view the seriousness of allegations
levelled against him. The only thing objectionable which the observer found
in the conduct of Sangram Singh was that he was found to be moving in a
-- private Maruti car and could not explain why it was so. However, the election
petition does not raise any grievance about the SHO moving in a private
Maruti car and we cannot uphold the allegations as to corrupt practice D
substantiated merely because the person accused of committing corrupt
practice was an SHO moving in a private Maruti car. Nothing has been
brought on record to show to whom the Maruti car belonged. In our opinion
the statement ofR. Bhardwaj (PW 43), the observer examined on behalf of the
appellant, is by itself enough to demolish the case of the appellant as regards E
the corrupt practice alleged in para 8 of the election petition. The testimony
ofDharminder Singh and Roop Singh (PW 12 & 13) stands contradicted and
its effect demolished by the testimony of R. Bhardwaj (PW 13) who is an
independent witness. Harminder Singh, the returned candidate who appeared
in the witness box as RWI and Sangram Singh, SI (RW5) have denied the
averrnents as to corrupt practice made in the election petition as also those F
,. - deposed to by Harpal Singh (PW6), Chamkaur Singh (PWS) Roop Singh,
(PW12) and Dharminder Singh (PW13).

Issue No. 5 : As to respondent having incurred expenditure in excess
of the prescribed limit and filed false return of expenses? G
Issue No. 5 is based on the averments made in para l 0 of the election
petition. According to the appellant, the respondent incurred and authorised
expenditure over and above the limit prescribed by Section 77 of the Act read
with Rules 86 and 90 of the Conduct of Election Rules, I 96 l and thereby
~· committed a corrupt practice within the meaning of Section 123(6) of the Act. H
70 SUPREME COURT REPORTS (1999) SUPP. 4 S.C.R.

A According to Section 77{1) every candidate at an election shall either by
•.
himself or by his election agent keep a separate and correct account of all
expenditure in connection with the election incurred or authorised by him or
by his election agent between the date on which he has been nominated and
the date of declaration of the result thereof, both days inclusive. According
B to Section 77(3), the total of the said expenditure shall not exceed such
amount as may be prescribed. The incurring or authorising of expenditure in
contravention of Section 77(3) amounts to corrupt practice under sub-sec:tion
(6) of the Section 123 of the Act. The maximum election expenses which the [
respondent could have incurred, as per Rule 90 is Rs. 1,35,000. The respondent
filed his nomination papers on 16. LI 997. The result of the election was
C declared on 10.2.1997. For the purpose of Section 77 read with Section 123(6)
of the Act the expenses relevant are those incurred by the respondent between
16.1.97 and 10.2.97, both days inclusive.

The grievance of the appellant related to expenses incurred by the
respondent in maintaining lunger (common kitchen) for the electors of the
D constituency, the expenses incurred on vehicles engaged and utilised by the
respondent for the purposes of the election and the expenditure incurred on
posters and stickers used as a part of canvassing programme of the respondent.
The learned senior counsel for the appellant has very fairly stated the though
all the averments made in the petition were put to trial and evidence was
E adduced by the appellant but at this stage he would press for decision only
the alleged expenses incurred Jn account of the posters which were got
printed, distributed and pasted in the constituency by the respondent. The
relevant part of the averments made vide para 10 of the election petition to
the extent to which pressed for decision before this Court are extracted and
reproduced hereunder :
F
10. That the returned candidate has incurred and authorised expenditure
over and above the prescribed limit, provided under Section 77 of the
Act, and thus committed a corrupt practice within the purview of
Section 123(6) of the Act. The material facts and particulars are given
G hereunder :

(a) That the limit in Section 77 of the Act for expenses for an Assembly
Constituency in Punjab is Rs. 1.35 lakhs. This limit equally applies to
109-Talwandi Sabo Constituency. However, the return of expenses
filed by the returned candidate does not conform to Rule 86 of the
H Conduct of Election Rules, 1961.
J.M. SINGH v. H.S. JASS! [R.C. LAHOTI, J.) 71

(b) That as per the return of expenses filed by the returned candidate, A
the total expenditure shown by him is Rs. 44,832 only. But, in fact, he
incurred expenditure manifold higher than the prescribed limit under
Section 77 of the Act.

... -_. "(d) That from the office complex of the respondent, the observer also
took certain pointed posters, which did not carry any printline on B
them. Such posters were stickers of two types, one round and the
other rectangular. Another poster carrying the photograph of the
returned candidate and the then Chief Minister of Punjab, Smt. Rajinder
Kaur Bhattal. The petitioner was informed that the observer sent a
report to the Election Commission of India in this regard." C
xxx xxx xxx

(f) That the returned candidate also got published various posters and
....
hand bills. One such poster has the Caption "Pichhle Panj Saalan
which Harminder Singh Jassi Walon Talwandi Sabo Hatke which Karwai D
Gai Vikas Karjan Da Verva" (The development achievements of Shri
Harminder Singh Jassi in Talwandi Sabo Constituency during the last
five years.) This poster was widely distributed and affixed in the
constituency in all the villages and towns. The estimate is that this
poster was printed and published to the extent of 50,000. The cost of
such posters is Rs. 50,000. The other posters utilised were with the E
Caption "Vidhan Sabha Hatke Talwandi Sabo Taon Congress (I) De
Umeedwar" with printed photographs of the returned candidate and
the then Chief Minister of Punjab, Smt Rajinder Kaur Bhattal. This
poster is without any printline and the observer had taken hold of
these posters from the office complex of the returned candidate at
Talwandi Sabo. Similarly, another poster was also affixed and distributed F
all over the Constituency with the same Caption, but carried only
photo print of the respondent with his election symbol. This of course,
is with the print line of the press as Sat Guru Press. These posters
were freely distributed and affixed and the estimate is that both these
' posters were printed and published to the tune of 50,000 each the cost G
of the two posters comes to Rs. 1,40,000 as per the market rate. The
returned candidate has shown in all expenditure on these posters as
Rs. 8,375. There is substantial difference between the actual cost and
the one shown in the return of expenses to the tune of Rs. 1,81,625.

xxx xxx xxx H
72 SUPREME COURT REPORTS (1999) SUPP. 4 S.C.R.

.A (g) .............. Thus the returned candidate has incurred much more
expenditure and authorised the same over and above the one prescribed
under Section 77 of the Act and committed a corrupt practice within
the purview of Section 123 (6) of the Act.

xxx xxx xxx \ .
B
The averments made by the appellant have been denied in the written
statement. It is denied that the respondent at any time incurred or authorised
the expenditure beyond the amount of Rs. 44,832 as stated in the return of
expenses. It was denied that the observer had taken in possession certain
C posters from the office complex of the respondent in his presence. As to the
poster with the caption "pichhle panj slan which ..... " the respondent stated
that the poster was got printed and distributed by the block congress
committees of Talwandi Sabo and Mor Mandi in routine in the third week of
December, i.e., much before the filing of nomination paper by the respondent. .
The said poster was neither got printed nor distributed nor pasted by the
D respondent or on his behalf in the constituency. The respondent had got
printed 3500 posters of different sizes and types from Satguru Printing Press
for Rs. 2800. He had also got printed 2000, 1500 and 1000 posters respectively
for Rs. 1800, 1875 and 900 and handbills ten thousands in numbers for Rs.
1000 only. The total expenditure incurred by the respondent on the printing
E of posters was Rs. 10275 which has been correctly shown in the return of the
expenses.

Here itself, we may state that as per the affidavit filed in support of the
election petition the averments made in sub-para (a) (b) and (e) of the para
10 are stated to be true to the personal knowledge of the appellant while the
F contents of sub-paras (c) (d) (f) and (g) are stated to be based on information
received from Pratipal Singh Bhindal and believed by the appellant to be true.
The infirmity with which the averments made in the election petition suffer
from is that the dates between which the posters are alleged to have been
distributed and pasted in the constituency are not mentioned in the election
G petition. From the averments made in the petition it cannot be deduced that
the expenditure on account of the posters even if incurred by the respondent,
was so incurred between the date of nomination and the date of declaration
of result of the election. In the absence of the appellant having made a
positive allegation of the alleged expenses having been incurred between the
date of nomination of the respondent and the date of declaration of the result
H the applicability of sub-section (3) of Section 77 would not be attractive.
J.M. SINGH v. H.S. JASS! [R.C. LAHOTI, J.] 73
.... _:,.
;
Pratipal Singh Bhindal has been examined as PW 48. In his statement A
without giving any dates he has simply stated that in his estimation about
1,50,000 posters like Al to A3 were pasted/exhibited in the constituency. One
of the impugned poster does not refer to the respondent or to his activities
in the constituency. As per explanation I appended to sub-section (I) of
Section 77 any expenditure incurred or authorised by a political or by any B
other association or body of persons or by any independent other than the
candidate or his election agent is not be counted as of expenditure by the
candidate or his election agent attracting applicability of Section 77. The
posters were distributed generally in the interest of the political party and its
candidates highlighting the achievements of the political party and its
leadership, the expenses could not be counted as the expenses as that C
incurred by the respondent.

Shri R. Bhardwaj, PW 43, the election observer had visited the election
office of the respondent on 4.2.97. He had also taken into possession some
election material in the shape of posters, stickers, pamphlets, small flags etc.
(Exts. A/42 to A/49). In his estimation, about 60000 posters were pressed into D
service on behalf of the congress party and similar quantity was pasted by
the appellant also. He has merely given an estimate of the quantity of posters
and that too as made use of by Congress party. The respondent has in his
own statement substantiated the plea taken in the written statement. Surinder
Singh (RW 16), the proprietor ofM/s Satguru Printing Press has been examined E
on behalf of the respondc:nt who too has supported the statement of the
respondent consistent with the plea taken in the written statement and has
also proved the concerning vouchers.

In the above state of evidence no inference can· be drawn that the
statement of expenses and the vouchers as filed by the respondent were false F
or that the expenditure incurred on the posters had resulted into crossing the
prescribed limit of expenditure. We agree with the findings recorded by the
learned Designated Election Judge that issue no. 7 is not proved.

Issue no 6 : Allegations as to undue influence?
G
Another corrupt practice amounting to undue influence as defined in
section 123(2) of the Act argued and pressed at the time of hearing by the
learned senior counsel for the appellant is found alleged in para I I of the
election petition. The gist of the averment made is that one Sukhraj Singh
'')- Sarpanch of village Natt was a strong supporter of the respondent. He H
74 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

A accompanied by Ajaib Singh went to the houses of Pirthi Singh and Niranjan
Singh. Only ladies were present at the houses. They were asked to remove
the flags of Shiromani Akali Dal from their houses which the ladies refused
to do whereupon Sukhraj Singh and Ajaib Singh gave merciless beating to
the ladies, Smt. Amarjeet Kaur and Smt. Gyan Kaur. The ladies suffered
B multiple injuries. The assailants forcibly removed the flags from their houses.
The incident was reported to the police. The injured ladies were medically
examined. The election observer also submitted his report on the incident to
the Election Commission. The allegations have been denied in the written
statement filed by the respondent. The respondent has denied having anything
to do with Sukhraj Singh and Ajaib Singh. The learned Designated Election
C Judge has extensively dealt with the evidence adduced by the parties and
found the incident as to beating of the two ladies and removal of flags from
their houses proved. The learned Judge has also found the involvement of
Sarpanch Sukhraj Singh and Ajaib Singh also proved. However, the learned
Judge has also recorded a finding that there was no iota of evidence to prove
the respondent having at any time visited village Natt in order to shield the
D two persons involved in the incident. The learned Judge has also found that
there was "sheer exaggeration" and "faint attempt" made by the appellant to
connect the respondent with the incident. In the opinion of the learned
Designated Election Judge the inciA:Jent appeared to be an outcome of the zeal
of the Sarpanch Sukhraj Singh and the other person Ajaib Singh who did so
E of their own and was probably an act of over enthusiasm in politics but there
was no reliable evidence not even any facts or circumstances to· infer the
involvl'lment of the respondent in the incident or to hold the act of Sukhraj
Singh and Ajaib Singh having been committed at the behest of the respondent.
It is riot the case of the appellant that Sukhraj Singh or Ajaib Singh was an
agent or election agent of the respondent. During the course of hearing
F nothing was brought to our notice so as to persuade us to interfere with the
finding arrived at by the learned Designated Election Judge.

Under Sections 100 (l)(d)(ii) and 100(2)(a) of the Act any corrupt practice
in order to vitiate the election of the returned candidate must be shown to
G have been committed either by the candidate or his election agent or by .an
agent other than his election agent in the interest of the returned candidate.
Further it should be shown that the result of the election insofar as it
concerns.a returned candidate has been materially affected by the said corrupt
practice. We have already stated that neither Sukhraj Singh nor Ajaib Singh
has been shown much less proved to be agent of the respondent: There is
fl no material brought on record to infer the result of the election having been -~
J.M. SINGH v. H.S. JASS! [R.C. LAHOTJ, J.] 75
materially affected by the beating of the two ladies. The appellant has been A
rightly held by the learned Designated Election Judge to have failed in making
out a case for setting aside the election of the respondent on the ground of
the said corrupt practice involving the beating of the two ladies. The learned
counsel for the appellant submitted that Sukhraj Singh was later appointed
as a counting agent by the respondent. Merely from this fact it cannot be
inferred that the respondent was in the knowledge of the incident which had B
happened at village Natt and that he had condoned the act of Sukhraj Singh
by appointing him as a counting agent and thereby owned the responsibility
of the violence committed by Sukhraj Singh: In Manohar Joshi v. Nitin
Bhaurao Patil and Anr., [1996] I SCC 169 this Court has held that the
requisite consent of the returned candidate or his election agent is a constituent C
part of the corrupt practices under sub-section (3) and (3A) of Section 123
and an ingredient of the ground under Section lOO(l)(b). Such consent has
to be pleaded and proved. Implied consent of the candidate cannot be read
into the provision. Whenever the requirement is of consent, it must be free
consent given by the giver of the consent of his own volition. It must be
specifically alleged and positively proved. In the case at hand there are D
neither such pleadings nor proof as to the alleged violence having been
committed by Sukhraj Singh and Ajaib Singh with the consent of the returned
candidate or of his election agent.

We are clearly of the opinion that none of the findings arrived at by the E
learned Designated Election Judge negativing proof of allegi:d corrupt practices
by the respondent is liable to be interfered with in this appeal. The findings
are confirmed.

As an upshot of the above discussion, the appeal is held liable to be
dismissed and is hereby dismissed with cost quantified at Rs. 10,000. F
v.s.s. Appeal dismissed.