Pratap Singh v. Rajinder Singh & Anr.

Judgment

The Judgment of the Court was delivered by BEG, J.-Pritam Singh, the appellant before us under Section ll6A ot the Representation of the People Act, 1951 (hereinafter referred . to as 'the Ad), was elected at an election held on 11-3-1972 for the Haryana State Legislative Assembly, the result of which was declared ' · 7-470SCl/75 [1975] 3 s.c.n. on 12-3-1972. The Respondent Balbir Singh questioned this election by means of an election petition alleging that the election wa> void as the appellant had committed corrupt practices hit by Section 123. sub. s.4. 5 al1.d 6 of the Act. The petition was allowed by a learned Judge of the High Court of Punjab & Haryana, solely on the ground that the corrupt practice, provided for as follows, in Secfr.:m 123(5) of the Act, was committed by the appellant: "123(5).

The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person with the C'Onsent of a candidate or his election agent, or the use of such vehicle or vessel for the free c0nvcyance of any elector (other than the candidate himselr, the members of his family or his agent) to or from any po1ling station provided under section 25 or a place c fixed under sub-section (I) of section 29 for the poll : Provided that. the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purposes of conveying him or them to and from any such polling 3tation or place fixed for the poll shall not be ·deemed to be a corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical J)owcr :

Provided further that the use of any public transport vehicle or vessel or any tramcar or railway carriage by any elector at his own cost for the purpose of going to or coming from any such pQlling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause". The appellant assails the judgment of the High Court on th.: following main grounds with which ·.··c will deal scriatim :

1That, the High Court em:d in relying upon legally unproved .:ntrics in what is called a Pukar book or register showino: both the 11iring out and then payments for the use of certain trucks on 11-3- 1972, the date of election, for purposes of election.

2That~ the Register itself is inadmissible in evidence under a1w provisicn of the Evidence Act.

3That, the entries in the Pubr Register arc suspicious indicating that the Register itself, or, atleast, the entries involved were not contemporaneous but fabricated after the election was over.

4That, the High Court erred in relying upon the evidence of d13llans by the· police on 11-3-1972 of drivers oi trucks said to have been u~ed by tl:c appellant when the best evidence in th!.! possession of the police relatmg to :hese challans was not forthcoming so that the cha~ans a~pcarcd to have been manouvcred for the purpose 'Of supportmg a talse case. :i. That, the High Court erred in relying upon merely uncorroborated oral testimony of Motor u·uck drivers in acccptit1~ the respondent's case which was not r~ally cormborated as the alleged C..'rrnborative evidence was nt · cvi<lcnce at all in the eye of law. JI PRATAP SINGH v. RAJI~DER SINGH (Beg, J.)

6That, the High Court overlooked the well established principle that the charge of a corrupt practice in the course of an election must be treated as quasi-criminal in character which has to be proved beyond reasonable· doubt. We will deal with these objections in the reverse order, starting with the last mentioned ground of attack on the High Court's judgment. The judgment rests largely on appreciation of oral evidence. It could not, therefore, be easily disturbed by us as has been repeatedly pointed out by this Court even in first appeals on facts in election cases.

If the High Court overlooks serious infirmities in the evidence adduced to support the case accepted by it or misreads evidence· m ignores the principle that a charge of corrupt practice, in the coursl.! of :.\fl election, is a grave one which, if established, casts a seriousreflection and imposes a disability upon the candidate held guilty <•f it, so that the Court must be satisfl.cd beyond reasonable doubt about its veracity, this Court will not hesitate to interfere. Learned Counsel for the appellant has relied upon the decisi·on of this Court in Rahim Khan Kh11rshid Ahmed & Ors.,(') whm: Krishna Iyer, J., speaking for this Court, said (at p. 666) :~ "An election once held is not to be treated in a lighthearted manner and defeated candidates or disgruntled electors should not get away with it by filing election petitions on unsubstantial grounds and irresponsible evidence, thereby introducing a serious element of uncertainty in the verdict already rendered by the electorate.

An election is a politically sacred public act, not of one person or of one official, but of the collective will of the whole constituency. Courts naturally must respect this public expression secretly wri•tcn and show extreme reluctance to act aside or declare void an election which has already been held unless clear and cogent testimony compelling the Court to uphold the corrupt practice alleged against the returnecl candidate is adduced. Indeed, election petitions where c'0rrupt practices arc imputed must be rr.gar<lcd as proceedings of a quasi-criminal nature wherein strict proof is necessary. The burden is therefore heavy on him who assails an election which has been concluded". In Rahim Khan's case (supra) our learned brother Krishna Iyer also warned us in the words of Sydney Harris (at p. 666): "Once we assuage our conscience by calling something a ·necessary evil', it begins to look more and more necessary and Jess and less evil". He then proceeded to observe (at p. 666) :

"For this very reason the Court has to be stern so as induce in the canclidatcs, the parties and workers that temper and truthfulness so appropriate to the process ........ " I (1) 1974 2 sec p. 6<io@ r. 666. [1975J 3 S.C.R. After poiliting out the difficulty of laying down any ~ast iron or rigid rules for testing the veracity of witnesses, this Court said (at p. 672) there: "We regard it as extremely uJisafe, in the present climate of kilkenny-cat election co:npetitions and partisan witnesses wearing robes of veracity, to upturn a hard won eke- . toral victory merely because lip se:rvicc to a corrupt practice has he<!il. rendered by some sano:timonious witnesses. The Court must look for serious assurance, untying circumst2.nces or tJnimpeachablc documents to uphold grave charges of corrupt practice which might not merely cancel the clccti1)n result, but extinguish many a man's public life".

In that case, this Court found the charge of a corrupt practice to be established upon oral and documentary evidence given to support it. In . the case before us, we find that the High Court accepted the evidence of Uggar Sain, P.W. 24, because, i11ter a/ia, it was supported by a "Pukar Register" kept by the Union of truck drivers of trucks hired in the order said l!o be determined by their places in the Register. It relied on this evidence despite certain serious objections to the entries in the Register showing payments for the trucks said 1:1 have been used by the appellant. The High Court, however, held that the testimony of Uggar Sain found sufficient corroboration not only from _ the entries in Pukar Register but also from the testimony of Khandu Ram, P.W. 25, Harish Lal, P.W. 26, Jai Gopal, P.W. 27, Chokba Namad, P.W. 28, Gurbachan Singh, P.W. 37 and Rajindcr Si1 ;i1, P.\V. 38, each of whom had deposed that he was paid a sum of Rs. 150/- on 10-3-1972 for performing election duty for the appellant for carrying voters on 1 l-3-1972.

The learned Judge observed about these drivers: "None of them is shown to be interested in the petit.ioncr or ngainst the returned candidate nor was the deposition of any one of them shaken in cross-examination and I do 11ot see any good reason for discarding their sworn word. As would be seen later, they actually plied their trucks for the returned candidate on the 1 lth of March, 1972 ... a fact which clinches the matter against him". The denial of the returned candidate were rejected by the lear:ned Judge on the groWld that these were made by a highly interested party. After having been taken through the judgment we are not satisfied that the learned Judge did anything more than to rather mechanically accept the oral and documentary evidence given to support the charge. We cc:rtainly do not find there any consideration or cli5¢ussion of a number of infirmities which have been placed before us both in the oral and documemary evidence adduced to support the charge.

We think that this is so bccai:ise the learned Judge seems to have held the view that a mere consideration of probabilities without applyt.lg d strict standard of proof beyond reasonable do~bt to a . cha<ge of corrupt practice was enough here. II 0 PRATAP SINGH v. RAJINDER SINGH (Beg, I.) ~s 9 After going through the evidence relating to the use of each truck, and repeating, rather mechanically, that this evidence on. behalf of the petitioner was acceptable in each instance given, the learned Judge concluded : "As a result of the discussion of the evidence under this issue, I hold that the retumed candidate hired and used trucks · Nos. HRR 5155, HRR 5161, HRR 5077, HRR 5013, and HRR 597, for the free conveyance of electors to V'arious polling stations and thus committed the corrupt practice defined in clause ( 5) of scctio•,1 123 of the Act".

We find no indication anywhere in the judgment th_at the stricter standard of proof, which is ap~licable to such charges, was kept in view by ~e learned Judge. The fifth ground of objection set out above seems to proceed on the erroneous assumption· that oral testimony cannot be accepted when a corrupt practice is set up to assail an election unless it is corrob<J.. rated by other kinds of evidence in material particulars. We are not aware of any such general inflexible rule of !•aw orpractice which could justify a wholesale condenmation or rejection of a species of evidence which is legally admissible and can be acted upon under the provisions of Evidence Act in every type of case if it is, after proper scrutiny found to be reliable or worthy of acceptance. There is no presumption, either in this country or •anywhere else, that a witness, deposing on oath in the wiraess box, is untruthful unless he is shown to be, indubitably, speaking the truth.

On the other hand, the ordinary presumption is that a witness deposing solemnly on oath before a judicial tribunal is a witness of truth unless the contrary is show:i. It is not required by our law of evidence that a witness must be proved to b.:! a perjurer before his evidence is discarded. It may be enough if his evidence appears to be quite improbable or to spring from such tainted or biased or dubious a· source as to be unsafe to be acted i..pon without corroboration from evidence other than that of the witness himself. The evidence of every witness in an election case cannot be dubbed as intrinsically suspect or defective.· It cannot be equated with that of <an accomplice ii,1 a criminal case whose testimony has, according to a rule of practice though not of law, to be corroborated in material particulars before it is relied upon. TI1is Court pointed out in Rahim Khan's case (supra) that there arc no golden rules for <appraising human testimony.

In assessing its worth Judges can err honestly just as witness ca',1 make honestly mistaken statements under oath. The extraction of what should constitute the credible foundation of judicially sound judgment is an art which nothing except sound common sense and prudeace combined with experience can teach. A sound judgment must disclose a fair attempt to "separate the grain from the chaff" as it has often been said. · Section 3 of the Evidence Act lays down : "A fact is said to be proved when after considering the matters before it, the Court either believes it to c;xist or ~on- SUPRD!E COURT REPORTS [1975] 3 s,c.R, sidcrs its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". Hence it has sometimes been argued that the same standard of . proof applies to all types of cases. Such a contention seems plausible.

Hut, what has to be borne in mind is that, i'.1 judging the evidence o[ a grave charge, prudence dictates that the belief in its correctness should form the basis of a. judicial verdict of guilt only if that belief r1~aches a convU:tion beyond reasonable doubt. If prudence is the real tc!st, it prescribes differing standards of proof in differing circumstances. Its requirements preclude any Procrustcwa bed of uniformly rigid rules for each type of case. The circumstances under whic~ reasonable doub.t may or may not .::~ist in a case cannot possibly qc exhaustively catalogued. All that one can say is that in deciding whether the stricter stand•ard of proof is satisfied in a case of alleged corrupt practice, resting upon oral evidence only, the Courts should be particularly astute and not omit to examine fairly the effect of every existing substantial ground which could introduce a reasonable doubt in a case.

In doing so, the Court has also to beware of bare suspicion, based on popular prejudices o:r belief sought to be introduced merely to bias the Court against a witness or a partly of a particular type. In the case before us, we find that the learned Counsel for the ;1ppcllant has repeatedly referred to the fact that the respondent, whose cllcction petition succeeded before the learned J udgc, was a defeated former Minister of the ruling Congress party. Learned Counsel wanted us to infer that, because the respondent had been welcomed and garlanded by the President of the Motor Truck Drivers' Union of Ganaur, the evidence of motor drivers was easily available to him. In other words, we were asked to assume that the motor drivers would be prepared to conunit perjury, at tne instance rf the President of the Motor Truck Drivers' Union, only to please a former defeated Minister.

We do not think that: it is reasonable to carry such a suspicion to the extent of attributing; to every witness appearing in support of the respondent's case a tendency or desire to commit perjm y. The law docs not discriminate against or frown upon a former Minister, belonging to any party, whether in or out of power, so that it must view every witness produced by him with suspicion simply because he had been a Minister. On the! other hand, we think that it would not be unreasonable to believe that a person who has occu!Jied the responsible position of a Minister will be less inclined to suborn witnesses or conspire to produce perjured evidence just because he is defeated in an election which is not the only test of a person's worth or resoectab;litv in society. We think that a person who has held a responsible office will be. acting _imprud~ntly if he spoils his public image by deliberately producmg pequrcd evidence.

We are not pr~pared to uphold the 5th contention of the appellant that, eit1er as a general rule. in election cases, or on the :facts of this par•icular case, the evidence of the motor drhcrs must be ,necessarily rejected simply berruse it is oral tcstimonv of drivers of trucks who had formed a Union which had once invited Ii.' II PRATAP SINGH r. R,\JINDER SINGH (Beg,}.) aod garlanded the rcspo,ndent. We, however, think that tho evidence had to be more carefully scrutinized than the High Court wa!'. disposed to do it. As was pointed out in Rahim Klu111's case (supra), evidence considerc';J unsafe to be acted upon by a judicial Tribunal r.ccd not be necessarily false. Turning to the 4th ground of objection, relating the prosecutions of truck drivers by the Police for alleged offences said to have taken place on 11 . 3 . 1972, we find that the High Court accepted the allc · gation that the drivers were challancd on 11. 3.

19n without commeriting on some conflicting evidence as to the date on which the motor drivers were challaned. In reply, it has been contended that witnesses who could have given more evidence on this question were not only given up by the petitioner respondent but also by the appellant as. the date of chal!ans was accepted or not questioned on behalf of the ;;ippcllant. Our attention is invited to a Miscellaneous application No. 216-E/72 dated 19.10.1972 where learned Counsel for the appellant not merely stated that he did not want to examine either the Mohrir Constable of Police Station Ganaur or a Clerk of the office of the Superintendent of Police, Rohtak, but prayed that "the above two wit· ncsses may kindly be informed telegraphically not to appear on 23. 10. 72". It is, therefore, argued, not without force, that the date of the challans was not seriously disputed by the appellant before the High Co~Jrt so that this question should not be allowed to be argued before us.

It was also contended on behalf of the respondent that there had been some tamperin_g with the record in the Magistrate's Court which explained the contrary evidence given bv Subash Chander, P.W.11, the Ahalmad of a Magistrate's Court, showing that the chaltan was dated 17-3c 1972. It was orally prayed that \VC should summon and .:xamine, at this stag;c, the original record from the Court of the Magistrate concerned, However, as no argument appears to have been addressed on this questicn in the High Court we think that this as a matter which the High Court can and should itself examine after summoning the record from the Magistrate's Court as we propose to send the case back to it for reconsideration after taking some further evidence.

It has been argued on behalf of the respondent that there ~s enough evidence of the motor truck drivers and of the voters carried as weil as documentary evidence, i,ncluding a log book of a driver, to show that the truck used on behalf of the respondent were carrying V'1ters to the election booth, and were, therefore, challaned 0,1 11-3-1972 because carrying of passengers in truck was not permitted. It was admitted that no entry was made in the general diary of Ganaur Police Station, according to the rules, but this, it was contended for the respondent, is not conclusive as relevant entries relating to some petty offences are often missing. These arc, however some of the matters which the High Court can and should consider. It appears to us that a number of points, on the worth of various items of evidence, which have been raised for tht' 1st time t6 question SUPRUIE COURT REPORTS (1975)

3 S.C..R. the authenticity of the evidence relating to the prosecution of driver~ of trucks, said to have been carrying voters for the appellant were not advanced before the High Court. We think that we ought tt1 have the benefit of scrutiny of the whole evidence on this question by the High· Court and its findings thereon. We are not prepared to proceed on the assumptio!l that the respondent could easily get evidence fabri.cated as he had been n minister. We may now deal with the first three grounds cif objection, all relating to what is called the Pukar Register. 8 It is true that Uggar Sain, P.W. 24, who was called to prove the Pukar Register, did not actually depose in whose handwriting the entries in it were made or what could or could not be properly ente:rcd here. The trend of cross-examination, however, shows that it procee<led on the assumption that Uggar Sain, P.W. 24, was actual!v making entries in it.

But, neither this fact was proved in the cxamina:tion-in-chief nor was the course of business, according to which entries could be made in the Register, including entries of alleged payments by the respondent, proved. A number of question raised before us, throwing some suspicion on the authenticity of the entries in this Pukar R1!gister and the dates on which they could be or were made seem to us to be entirely new. They were not suggested to P.W. 24, Uggar Sain, who might have had some explanations for these suspicious features. Nor do all these defects seem to have been mentioned in the course of arguments before the High Court. For example, the truck numbers of trucks said to have been sent to the appellant do not appear against the name of the appellant but seem inserr.ed afterwards above the place where they would be expected to be found. The exact meaning or effect of such a feature could. only have been brought out by cross-examination of Uggar Sain, P.W. 24 on behalf of the appellant.

As regards the admissibility of the Pnkar Register and evidence of prosecution of the truck drivers, we are unable to accept the submission that these are inadmissible under the Evidence Act. Even though the course of business under which the Pukar Register was kept was not proved, we think that documents, such as the Pukar Regis1tcr all,d those -relating to the prosecutions of the drivers, who were said t() be ~ami11t voters on 11. 3 .1972, could be proved under section 11 of the E~ Act. We think that, in view of the importance of the evidence Ugg,ar Sain, P.W. 24 both his examination-in-chief and his cross-examination are must unsatisfactory. We may here observe that the election Trib1,mal is not powerless in such cases in the performance of its duty to ascertain the truth. There is not only Section 165 of the Evidence Act which enables the Court to put any question it likes IQ a witness. but there are also the provisions of order XVI, Rule 14, Civil Procedure Code which lay down :

"Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, .; PRATAP SINGH 1·. RAJL'IDER SINGH (Beg, J.) . 593 where the Court at any lime thinks it necessary to examine . any person other than a ·party to the suit am! not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness t<i give evidence, or to. produce any dcicument in his possessiOn, on a dav to be appointed, and may examine him as a v.itncss or require hini to produce such document". We think. that the ascertainment of a numb~r of essential facts relating to the· charge was n.eithcr regular nor sufficiently detailed in the case now before us. We find that the High Court proceeded on the assumption that facts which ought to have been technically proved had been sufficiently prqved.

It too 'readily accepted the evidence, both oral and documenL'lry, without examining all the. defects of it . which have been sought to be placed before us. We are left with an unavoidable impression that important aspects of the case were neither satisfactorily brought out clearly by the evidence in the case nor examined by the High Court despite the voluminous evidence led by the parties and the lenithy judgment delivered by the T'ibunal. · We also find that t~.e Court adopted a standard of proof which is not strict enough in appraising the worth of evidence produced to support a charge of corrupt' practice.

As it is not the practice of this Court to reassess evidence or to perform the duties of the Trial Court, even in election first appeals, un!ess no other course is left open to it, we think that this is a fit case in which we should send back the ·case for reconsideration by the High Court after recalling such witnesses as may be considered necessary by it, ';ind, in particular, Uggar Sain, P.W. 24, so that at least !he Pukar Register, assumed to have been duly proved, may be proved in accordance with law. We think that the objections to the proof of this. document, and of entries in it <lo not go beyond objections to the mode of proof. The entries in it could be accepted as sufficiently r~li~ble on1¥ after a much more rigorous examination of their maker than the parties or the Court subjected him to. W~ think that we should noil give a finding upon the reliabili~ of these entries before the ,allegedfy suspicious features have been specifically put to P.W. 24, Uggar Safn, who was assumed to have made the entries without even asking ·'him whether he did make them. . .

Jn the result,. we set aside the judgment .md order of the High- Co~rtt.!oo,,we t~~d the case to it f?r dispoShl in accordance with law after adtluctJo'!./lf such further evidence as may be necessary in the intereslO"bf:iustice, In view of our order remanding the case to the High Court it is unnecessary to consider the three Civil Miscellaneous Petitions for urging addition grounds, for condonation delay in filing the application for urging additional grounds, and for rcrmission to file a ct:rtified copy of the summary register for 2 !·3-1972 and 22-3-197'.?. of the Court of Judicial Magistrate 1st CJ.ass, Sonepa.t. These applications are, therefore, dismissed. Parties may, however, make appropriate applications in the High Court. 'fl1c costs of this litigation in the High Court as well as in this Court will abide the result. The appellant will continue to function as an elected member subject to the result of the Election Petition. P. It R. Appeal allowed