The law relating to proof of corrupt practices under the Representation of People Act

The law relating to proof of corrupt practices under the Representation of People Act has been authoritatively declared by this Court in a long line of decisions starting with Sarju Pershad Ramdeo Sahu v. Raja Jwaleshwari Pratap Narain Singh and Ors., AIR 1951 SC 120. It is not, in our opinion, necessary to refer to all the decisions that have been delivered by this Court on the subject over the past six decades since Sarju Pershad’s case (supra). Reference to some of them only should suffice. From a conspectus of the pronouncements of this Court three distinct aspects emerge that need to be kept in view while dealing with an election dispute involving commission of corrupt practices. The first and foremost of these aspects to be borne in mind is the fact that a charge of corrupt practice is in the nature of a criminal charge and has got to be proved beyond doubt. The standard of proof required for establishing a charge of corrupt practice is the same as is applicable to a criminal charge. This implies that a charge of corrupt practice is taken as proved only if there is clear cut evidence which is entirely credible by the standards of appreciation applicable to such cases. (See Rahim Khan v. Khurshid Ahmed and Ors., (1974) 2 SCC 660; D. Vankata Reddy v. R. Sultan and Ors., (1976) 2 SCC 455 and Ramji Prasad Singh v. Ram Bilas Jha and Ors., (1977) 1 SCC 260.)

10. The second aspect that distinctly emerges from the pronouncements of this Court is that in an election dispute it is unsafe to accept oral evidence at its face value unless the same is backed by unimpeachable and incontrovertible documentary evidence. The danger underlying acceptance of such oral evidence in support of a charge of corrupt practice was lucidly stated by this Court in Rahim Khan’s case (supra) in the following words:

We must emphasize the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents. It must be remembered that corrupt practices may perhaps be proved by hiring half-a- dozen witnesses apparently respectable and dis-interested, to speak to short and simple episodes such as that a small village meeting took place where the candidate accused his rival of personal vices. There is no X-ray whereby the dishonesty of the story can be established and, if the Court were gullible enough to gulp such oral versions and invalidate elections, a new menace to our electoral system would have been invented through the judicial apparatus. We regard it as extremely unsafe, in the present climate of kilkenny-cat election competitions and partisan witnesses wearing robes of veracity, to upturn a hard won electoral victory merely because lip service to a corrupt practice has been rendered by some sanctimonious witnesses. The Court must look for serious assurance, unlying circumstances or unimpeachable documents to uphold grave charges of corrupt practices which might not merely cancel the election result, but extinguish many a man’s public life.

11. To the same effect is the decision of this Court in M. Narayana Rao v. G. Venkata Reddy and Ors., (1977) 1 SCC 771 where this Court observed:

A charge of corrupt practice is easy to level but difficult to prove. If it is sought to be proved only or mainly by oral evidence without there being contemporaneous document to support it, court should be very careful in scrutinizing the oral evidence and should not lightly accept it unless the evidence is credible, trustworthy, natural and showing beyond doubt the commission of corrupt practice, as alleged.

12. Reference may also be made to the decision of this Court in Dadasaheb Dattatraya Pawar and Ors. v. Pandurang Raoji Jagtap and Ors., (1978) 1 SCC 504 where this Court expressed a similar sentiment and Laxmi Narayan Nayak v. Ramratan Chaturvedi and Ors. : (1990) 2 SCC 173 where this Court upon a review of the decisions on the subject held the following principles applicable to election cases involving corrupt practices:

(I) The pleadings of the election petitioner in his petition should be absolutely precise and clear containing all necessary details and particulars as required by law vide Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, (1987) Suppl. SCC 93 and Kona Prabhakara Rao v. M. Seshagiri Rao, (1982) 1 SCC 442.

(II) The allegations in the election petition should not be vague, general in nature or lacking of materials or frivolous or vexatious because the court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue vide Manphul Singh v. Surinder Singh, (1973) 2 SCC 599; Kona Prabhakara Rao v. M. Seshagiri Rao Rao, (1982) 1 SCC 442 and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, (1987) Suppl. SCC 93.

(III) The evidence adduced in support of the pleadings should be of such nature leading to an irresistible conclusion or unimpeachable result that the allegations made, have been committed rendering the election void under Section 100 vide Jumuna Prasad Mukhariya v. Lachhi Ram, AIR 1954 SC 686 and Rahim Khan v. Khurshid Ahmed, (1974) 2 SCC 660.

(IV) The evidence produced before the court in support of the pleadings must be clear, cogent, satisfactory, credible and positive and also should stand the test of strict and scrupulous scrutiny vide Ram Sharan Yadav v. Thakur Muneshwar Nath Singh, (1984) 4 SCC 649.

(V) It is unsafe in an election case to accept oral evidence at its face value without looking for assurances for some surer circumstances or unimpeachable documents vide Rahim Khan v. Khurshid Ahmed, (1974) 2 SCC 660; M. Narayana Rao v. G. Venkata Reddy, (1977) 1 SCC 771; Lakshmi Raman Acharya v. Chandan Singh, (1977) 1 SCC 423 and Ramji Prasad Singh v. Ram Bilas Jha, (1977) 1 SCC 260.

(VI) The onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an election which has been concluded vide Rahim Khan v. Khurshid Ahmed, (1974) 2 SCC 660; Mohan Singh v. Bhanwarlal, AIR 1964 SC 1366 and Ramji Prasad Singh v. Ram Bilas Jha, (1977) 1 SCC 260.

13. The decision of this Court in Thakur Sen Negi v. Dev Raj Negi and Anr., (1993) 3 Suppl. SCC 645 also states the same proposition and highlights the danger underlying acceptance of oral evidence in an election dispute as witnesses in such disputes are generally partisan and rarely independent. This Court observed:

It must be remembered that in an election dispute the evidence is ordinarily of partisan witnesses and rarely of independent witnesses and, therefore, the court must be slow in accepting oral evidence unless it is corroborated by reliable and dependable material. It must be remembered that the decision of the ballot must not be lightly interfered with at the behest of a defeated candidate unless the challenge is on substantial grounds supported by responsible and dependable evidence.

14. The third aspect that is equally important and fairly well-settled is that while as a Court of first appeal there are no limitations on the powers of this Court in reversing a finding of fact or law which has been recorded on a misreading or wrong appreciation of the evidence or law, it would not ordinarily disregard the opinion by the trial Judge more so when the trial Judge happens to be a High Court Judge who has recorded the evidence and who has had the benefit of watching the demeanour of the witnesses in forming first-hand opinion regarding their credibility.

15. In Sarju Pershad’s case (supra) this Court stated the approach to be adopted in an appeal arising out of an election dispute in the following words:

The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is – and it is nothing more than a rule of practice – that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge’s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact.

16. Reference may also be made to the recent decision of this Court in P.C. Thomas v. P.M. Ismail and Ors., (2009) 10 SCC 239 where this Court observed:

This Court in Gajanan Krishnaji Bapat, (1995) 5 SCC 347 has observed that although being the court of first appeal, this Court has no inhibition in reversing such a finding, of fact or law, which has been recorded on a misreading or wrong appreciation of the evidence or the law, but ordinarily the appellate court attaches great value to the opinion formed by the trial Judge, more so when the trial Judge happens to be a High Court Judge, had recorded the evidence and had the benefit of watching the demeanour of witnesses in forming first-hand opinion of them in the process of evaluation of evidence. This Court should not interfere with the findings of fact recorded by the trial court unless there are compelling reasons to do so.

17. Coming to the facts of the case at hand the evidence adduced by the appellant to substantiate the charges leveled by him against the respondent comprises oral depositions of as many as 30 witnesses including the appellant himself. The High Court has critically evaluated the said evidence and given reasons why the same was insufficient to prove the charge of corrupt practice leveled against the respondent. The High Court noted, and in our opinion rightly so, that the evidence adduced by the appellant did not inspire confidence and was therefore insufficient to establish the charge of corrupt practice leveled against the respondent. We have been taken through the deposition of the witnesses examined by the parties at considerable length and we see no reason much less any compelling reason to take a view different from the one taken by the High Court regarding the credibility or the sufficiency of the evidence led by the appellant to prove the charge. We do not consider it necessary to discuss the deposition of each witness examined on behalf of the appellant for that exercise has been done by the High Court in detail which we find satisfactory. We may all the same note a few significant features that emerge from the deposition of the witnesses examined by the appellant and that impinge seriously upon the case of the appellant. The first and the foremost feature that needs to be noticed is the fact that neither the appellant nor his election agent (PW 30) claims to be a witness to any act of corrupt practice alleged against the respondent. The entire case of the appellant as set up before the High Court and even before us is that the acts of corrupt practice allegedly committed by respondent were reported to the appellant or his election agent by different individuals from time to time. The second aspect which is noteworthy is that the affidavit sworn by the witnessess in regard to each incident of alleged corrupt practice is a carbon copy of the other. The witnesses have admitted in their cross- examination that the affidavits were drawn by the counsel for the appellant in his chamber. A parrot like story has thus emerged from the depositions of the witnesses in regard to each one of the incidents which we consider unsafe to believe for purposes of setting aside an electoral process in which the appellant has lost the election by a huge margin of nearly 20000 votes.

18. The third aspect which we find noteworthy is that the witnesses examined by the appellant appear to be partisan in character. For instance PW-23 Smt. Gita Romoni has admitted in her cross-examination that she had come to depose before the Court at the instance of the election agent of the appellant. She has also admitted that she was a member of Naharkatia Sports Association of which the appellant is the President. She appears to have readily accepted the bribe offered to her but failed to report the matter to any authority except to the petitioner. Similarly, PW-23 Smt. Gita Romoni is also a sportsperson and plays football for Naharkatia Sports Association of which the appellant is the President. This is true even in regard to PWs 8 and 9 who happen to be father and daughter respectively, the latter being a football player associated with Naharkatia Sports Association. The incident of bribery alleged against the respondent at labour line of Desam ea Estate was not reported by these two witnesses to anyone and not even to the Manager of the tea garden concerned. So also PWs 15 and 16 are father and daughter whose testimony has been disbelieved by the High Court for good reasons while dealing with Issue No. 13 pertaining to the commission of corrupt practice of bribery by Shri Hiranya Mantri, the election agent of the respondent at Nabajyoti L.P. School premises. Suffice it to say that the deposition of the witnesses has been evaluated by the High Court and rejected for cogent reasons. In the absence of a palpable error in the appreciation of the said evidence we see no reason to strike a discordant note.

19. The last but not the least of noteworthy aspects to which we must refer at this stage is the absence of any documentary evidence to show that any complaints were filed by the appellant or his election agent before the Election Commission of India or any other authority upon receipt of reports regarding commission of the corrupt practice by the respondent. The appellant’s version in cross- examination and that given by his election agent is that such complaints were filed before the Chief Election Commission, the Chief Election Officer of the District, the Returning Officer and the Constituency Magistrate in writing and against proper acknowledgement. But neither any copy of complaint so made nor the acknowledgment regarding their receipt by the concerned authorities has been produced at the trial. What is important is that copies of the alleged complaints relating to the incident of bribery were said to be available with the election agent of the appellant but the same were not annexed to the petition or produced at the trial. The explanation offered for this omission on the part of the appellant and his election agent is that the election petition had been filed hurriedly. The High Court has, in our opinion, rightly rejected that explanation as totally unacceptable. Even assuming that the election petition had been filed hurriedly on account of constraints of period of limitation prescribed for the same, nothing prevented the appellant from placing the said complaints on record or having the same summoned from the concerned authorities to whom they were addressed. Non-production of the documents admittedly available with the appellant that would lend credence to the version set up by the appellant that the incident of corrupt practice was reported to him and/or to his election agent would give rise to an adverse inference against the appellant that either such complaints were never made or if the same were made they did not contain any charge regarding the commission of corrupt practices by the respondent in the manner and on the dates and the places alleged in the petition. We may in this regard refer to illustration (g) to Section 114 of the Evidence Act which permits the Court to draw an adverse presumption against the party in default to the effect that evidence which could be but is not produced would, if produced, have been unfavourable to the person who withholds it. The rule is contained in the well-known maxim: omniapraesumuntur contra spoliatorem. If a man wrongfully withholds evidence, every presumption to his disadvantage consistent with the facts admitted or proved will be adopted. We need to remind ourselves that in an election dispute where oral evidence is generally partisan in character as has been demonstrated in the present case, the non-production of documentary material that could lend support to the appellant’s charge of bribery against the respondent would assume great importance. Absence of a plausible explanation for non- production of the documentary evidence would completely discredit the version which the oral evidence attempts to support. [Pradip Buragohain Versus Pranati Phukan JT 2010 (6) SC 614 : (2010) 11 SCC 108 : (2010) 6 SCALE 384]