Sanjay Shukla v. Sudarshan Gupta & Ors.

The material allegations against the first respondent in his election petition alleging corrupt practice are as under:- “6. that on 21/11/2008 respondent no.1, returned candidate Shri Sudarshan Gupta through his election agent Shri Manikchand Sogani and/or other persons with consent of the returned candidate lodged FIR under section 188 of IPC and section 123(3) of the Representation of People Act, 1951 with the Police Station Sadar Bazar, Indore and the returned candidate as president of the Indore City Unit of Bharatiya Janta Party (Party in Power) misused his position and pressurize the S.H.O. P.S. Sadar Bazar to arrest the petitioner as to prevent him from 3 performing his duties as candidate and also to prevent him from making contacts with the voters, put stigma on the otherwise unblamishable record of the petitioner, thereby interfered with free exercise of electoral right and misused government machinery for furtherance of his prospectus at elections constituting corrupt practices under section 100(1)(b)(d)(ii) and (iv) and under Section 123(2) and 123(4) of the Representation of the People Act, 1951.

7. That on said false fabricated and concocted and defamatory FIR under the pressure of the returned candidate and/ or election agent and/or other person with consent of the returned candidate, his the petitioner was arrested by the S.H.O.Sadar Bazar, P.S. and produced before the Judicial Magistrate First Class, (JMFC), Indore who held that any offence under Section 188 is punishable with maximum imprisonment of one year and or fine of Rs.200/- and Section 123(3) is not an offence or any election offence for which any FIR can be competent and or FIR can be lodged but is covered under Part- VII Chapter-I as corrupt practices which also appears not to have been committed by the petitioner, therefore, the petitioner is enlarged on bail. A copy of Court order dated 21/11/2008 is annexed as Annexure/Exhibit-E.

8. That the aforesaid act of the returned candidate and/or his election agent Shri Manikchand Sogani and/or other persons with consent of returned candidate amounts to corrupt practice under Section 100(1)(b)(d)(ii)(iv) and under Section 123(2) and 123(7) of the Representation of People Act, 1951 and orders passed by the Election Commission of India thereby exercise undue influence and deemed to interfere with the free exercise of electoral rights and obtaining or procuring assistance of the members of the police force for furtherance of prospects of the returned candidate's election within the meaning of this clause. The petitioner filed complaint of commitment of the aforesaid corrupt practice committed by the returned candidate through his election agent and or other persons with the conseent of the returned candidate to the Chief Election Commissioner, Delhi; Chief Election Officer, Bhopal and District Election Officer, Indore on 26/11/2008. That the said act of the returned candidate any other person with his consent adversely affected the prospectus of the petitioner by prejudicing the mankind and interfering with free exercise of electoral right. A copy of complaint dated 26/11/2008 is annexed as Annexure/Exhibit-F. 4

9. That the respondent no.1, returned candidate, Shri Sudarshan Gupta through his election agent Shri Manikchand Sogani and or other persons with consent of the returned candidate published and distributed slips even without print line containing Bharatiya Janta Party symbol Lotus, photo of Shivraj Singh Chouhan, the then Chief Minister and distributed them on the date of election to the voters inducing them to vote for returned candidate in Madhya Pradesh Assembly Constituency No.204(Indore 1) constituting corrupt practice under section 100(1)(ii)(iv) and, 123(2) 123(3) and others passed by the Election Commission by exercising undue influence with the free exercise of the electoral right. Accordingly, complaint by election agent of the petitioner was lodged with the District Election Officer on 20/11/2008, a copy of which is annexed as Annexure/Exhibit-G.

4. Specific allegations against publication of advertisement dated

26.11.2008 appears in para 10 of the election petition as follows:- “10. That on 26 November, 2008 (Wednesday), the respondent no.1 returned candidate under his consent through Bharatiya Janta Party segment of Assembly Constituency NO.204 (Indore No.1), published advertisement in 'News Today', evening daily newspaper published from Indore under the caption as “vkvks djs fglkc rqEgkjk] vijk/kh Nfo tqeZ ntZ ^^vis a vis** lqn'kZu xqIrk lkQ lqFkjk O;fDrRo] csgn lgt ljy fuHkhZd vkokt] xyh eksgYys ls okLrk] gjsd ds nq%[k lq[k esa 'kkfeyA lcds fy;s lnk miyC/k**- The same advertisement was once again repeated and published in Dainik Bhaskar, a widely circulated daily published in Dainik Bhaskar, a widely circulated daily published in 42 editions on 27 November, 2008, the date of poll, (Thursday), by principal Tongya, other person (Bharatiya Janta Party worker), with consent of the returned candidate Shri Sudarshan Gupta and distributed in the early morning before commencement and during currency of the poll(election) thereby committing corrupt practice by exercising undue influence with the free exercise of electoral right under Section 100(b)(d)(ii)(iv) and under Section 123(2), 123(4) and orders passed by the Election Commission. The published advertisement read as under:- vkvks djsa-------- fglkc rqEgkjk------- vkijkf/kd Nfo------ tqeZ ntZ &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& lat; 'kqDyk mez 21 lky vYQkcsfVd fyLV ck.kxaxk 5 356 181 1994 1996 fyax iq:"k fo".kqizlkn 'kqDyk ck.kxaxk esujksM bUnkSj firk dk uke tUe dk o"kZ &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& vijk/k dzekad iz-lw-i- iz-lw-i- /kkjk,sa 279] 427] 323] 147] 149] 506 rkfg 353] 186] 147] 148] 149 rFkk fjiztsUVs'ku vkWQ fiiqYl dh /kkjk 135-,] 1951, 506 rkfg 324] 294 rkfg 147] 148] 307] 324] 34 rkfg 147] 148] 324] 336 rkfg 336] 427] 147 rkfg Hkk-na-fo- 147] 341 ---@---@---@ iz-lw-i- iz-lw-i- iz-lw-i- iz-lw-i- iz-lw-i- &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& && 1992 1996 1996 1996 2006 fooj.k 173 155 156 158 94 vYQkcsfVd fyLV ck.kxaxk firk dk uke tUe dk o"kZ &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& fo".kqizlkn 'kqDyk cM+s HkS;k nqxkZizlkn 'kqDyk 44] ck.kxaxk esujksM bUnkSj fyax iq:"k tkfr czkge.k vU; fooj.k mez 21 lky vijk/k dzekad 1988 192 1987 326 1999 120 1988 289 1988 306 1982 82 /kkjk,sa 447] 427 rkfg iz-lw-i- 147] 341] 188 rkfg iz-lw-i- 447 rkfg iz-lw-i- 353] 147] 323 rkfg iz-lw-i- 147] 142] 149] 302 rkfg iz-lw-i- iz-lw-i- 294] 506 rkfg &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& && fooj.k tkukiko ds fodkl esa fo".kq cMs ds vMaxs lqnZ'ku xqIrk lkQ&lqFkjk O;fDrRo csgn lgt&ljy fuHkhZd vkokt xyh eksgYys ls okLrk gj ,d ds lq[k nq[k ij'kqjke tUeLFkyh tkukiko egw ds lar cnzhizlkn ckck us sl izR;k'kh lat; 'kqDyk ds firk fo".kqizlkn 'kqDyk ij vkjksi yxk;k gS fd os ij'kqjke tUeLFkyh ds fodkl ds fy, djksM+ksa :i;s ljdkj us fn, gS] os gMiuk pkgrs gSaA lar cnzhizlkn ckck us i=dkjksa dks crk;k fd fo".kq 'kqDyk 20 yk[k :i;s ea=h vuwi feJk ls lM+d cukus ds uke ij yk, ysfdu 100 QhV Hkh lM+d ugha cuhA xkao ds yksxksa vkSj iapk;r ds inkf/kdkfj;ksa us fojks/k fd;k] rks mUgksaus dgk fd eSa rqEgkjh Nkrh ij lM+d cukmaxkA Hks:yky ikVhnkj us eafnj vkSj ikuh vLirky esa ejhtksa dh ds fy, lk<+s ukS yk[k :i;s dh jkf'k nh FkhA xkao okyksa ds euk nhu nqf[k;ksa dh enn djus ds ckn Hkh lM+d ij lLrs ikbZi Mky fn,A czkge.kksa ls xjhcksa ds vkijs'ku esa enn eafnj fuekZ.k dks ysdj pank bdV~Bk fd;k] ysfdu eafnj vkt rd ugha cuk;kA ckck cnzhizlkn us dgk fd eafnj ij mUgksaus dHkh HkaMkjk ugha fd;kA /kkfeZd izo`fRrA bUnzey xqIrk esa 'kkfey Copies of advertisements published in News Today on 26/11/2008 and Dainik Bhaskar on 27/12/2008 are annexed as Annexure/Exhibit H & I.

5. Allegations made in para 11 are also relevant which are reproduced hereunder: “11. That the returned candidate himself and/or through his electin agent and/or through other persons with consent of returned candidate committed corrupt 6 practices in terms of section 100(1)(b),100(1)(d)(ii) and 100(1)(d)(iv) and 123(2),123(4) and 123(7) of the Representation of the People Act, 1951 for furtherance of his prospectus at election of Madhya Pradesh Assembly Constituency NO.204 (Indore-1) by implicating the petitioner in false, fabricated, concocted and defamatory, FIR and publishing false news under full knowledge that the offence shown to have been committed by the petitioner have already been decided by the criminal courts of competent jurisdiction resulting in acquittal of the petitioner, whose details have already been submitted by the petitioner in the affidavits filed alongwith his nomination before the Returning Officer in complaince to order No.3/ER/2003/Nyayik-II dated 27.3.2000 passed by the Election Commission of India in exercise of powers vested in it under Article 324(1) of the Constitution of India. The publication in the news papers also defamed the father of the petitioner who was not a candidate to the election by committing corrupt practice for furtherance of chances at election of the returned candidate Shri Sudarshan Gupta, respondent no.1.

6. In nutshell the allegations made by the petitioner in this election petition are three fold i.e. (i) Shri Sudarshan Gupta through his election agent and/or any other person with his consent lodged FIR under Section 188 of the IPC and Section 123(3) of the Act with the police station, Sadar Bazar, Indore which was false and fabricated recorded under the pressure to the Returned candidate and as such with his consent. On account lof registration of the aforesaid FIR, the petitioner was apprehended because of which he could not perform campaign for his election and in this manner affected the prospects of the petitioner and inferring free exercise of electoral right. (ii) Election voter slips were distributed by the returned candidate through his election agent and/or any other persons with his consent even without print line containing BJP party symbol lotus, photo of Shivraj Singh Chouhan, the then Chief Minister and distributed them on the date of election thereby exercising undue incluence with the free exercise of the electoral right violative of Section 199(1)(ii)(iv) and 123(2) 123(3) of the Act. (iii) That on 26.11.2008 and on 27.11.2008 the news item was published in News Today and Dainik Bhaskar respectively with 7 the consent of the returned candidate Shri Sudarshan Gupta thereby committing corrupt practice by exercising undue influence with the free exercise of electoral right under Section 100(b)(d)(ii)(iv) and under Section 123(2), 123(4) of the Act. Publications are Ex.P-4 and P-5. In the nutshell it is submitted that by registration of the FIR by getting the petitioner arrested and by publishing false information, the respondent/returned candidate has committed corrupt practice within the meaning of Section 100(1)(b),100(1)(d)(ii) and 100(1)(d)(iv) and 123(2), 123(4) and 123(7) of the Act.

7. On th basis of the aforesaid allegations it was submitted that the votes were obtained by the returned candidate by aforesaid corrupt practices and non-compliance of the mandate of Article 324(1) of the Constitution of India and the provisions contained under Section 100(1)(b), 100(1)(d)(ii) and 100 (1)(d)(iv) and under Section 123(2), 123(4) and 123(7) of the Representation of People Act, 1951. It is submitted that but for the aforesaid corrupt practices, the petitioner would have obtained majority of valid votes and therefore the result of the returned candidate be declared as void and the petitioner be declared as duly elected for M.P. Assembly Constituency No.204 (Indore-1).

8. The election petition is supported with affidavit of Shri Sanjay Shukla, petitioner. He has supported the statement made in para 6,7,8,9,10,11 and 16 of the election petition.

9. The respondent opposed the election petition by filing a detailed written statement. The respondent has taken the following preliminary objections which reads as under:- “2. That the petitioner has challenge election of the answering respondent on the ground of corrupt practices stated in para 5,6,7,8,9,10, 11; 15 and 16 of the petition under Section 123 (2) (3)(4)(7) of the R.P.Act, 1950. 8

3. That, it is mandatory for the election petitioner under Section 83 (1) of the Act to plead all concise statement of material facts of the allegation in the election petition. It is also mandatory for the election petitioner to plead all full particulars of the alleged corrupt practice in the election petition. The petitioner has not pleaded all material facts and full particulars of the corrupt practices mentioned in Section 123(2)(3)(4) and (7) of the Act, in para 5,6,7,8,9,10,11,15 and 16 of the petition. Therefore the pleading stated in para 5,6,7,8,9,10,11,15 and 16 of the petition does not disclose any cause of action against the answering respondent under Section 83 and 123 (2)(3)(4) and (7) of the Act.”

10. In addition to preliminary objections, it is the specific stand of the returned candidate in the written statement qua paragraphs 6,7,8,9,10, and 11 as under:- “6. That, statement stated in para 6 are denied. It is not correct to say that petitioner through his election agent Shri Mankchand Sognai and/or other person with consent of the answering respondent lodged FIR under section 188 of IPC and Section 123(4) of the R.P. Act, with the police station Sadar Bazar. It is also denied that answering respondent as President of the B.J.P. misused his position and pressurized the S.H.O. P.S. Sadar Bazar to arrest the petitioner as to prevent him from performing his duty as candidate and also prevent him from making contacts with the voters, put stigma on the otherwise unblamishable record of the petitioner, thereby interfered with free exercise of electoral right and misused government machinery for furtherance of his prospectus at election constituting corrupt practices under Section 100 (1)(b)(d) (ii) and (iv) and under Section 123 (2) and under Section 123 (4) of the Representation of People Act. It is humble submission of the answering respondent that petitioner has not stated correct facts in this para. The petitioner has not disclosed who made a complaint against the petitioner with the P.S. Sadar Bazar. The petitioner has also not clearly stated whether the FIR was registered either as the instant of petitioner or his election agent or by whom. Therefore, the petitioner has not stated all material facts and material particulars in this para. Therefore, no cause of action has arise on the pleadings of para 6. Therefore the petition is liable to be dismissed solely on this ground. 7. That, statement stated in para 7 are denied. It is denied that a false, fabricated, concocted and defamatory FIR was registered against the petitioner 9 under pressure of the answering respondent, and/or election agent and/or other person with consent of the answering respondent. It is humble submission of the answering respondent that petitioner has not specifically stated in this para that whether alleged FIR was registered against the petitioner in pressure of either answering respondent, or his election agent or by whom with the consent of the answering respondent. It is also submission of the answering respondent that the petitioner has committed election offences during the election process and P.S. Sadar Bazar has taken action against the petitioner as per law. Therefore, the election of the answering cannot be challenge on the ground that police has taken action against the petitioner alleging that he has committed election offences during election process.

8. That, the statement stated in para 8 are denied. It is not correct to say that act of the answering respondent, and/or his election agent Shri Manakchand Sogani and/or other person with the consent of the answering respondent therefore answering respondent has committed corrupt practices under Section 100(1) (b)(d)(ii)(iv) and under Section 123(2) and 123(7) of the Act. It is not correct to say that by this act the answering respondent has interfered in exercise undue influence and deemed to interfere with the free exercise of electoral rights and obtained or procuring assistance of the members of the police force furtherance of prospects of the returned candidates. It is also denied that the petitioner has made any complaint with the election commission against the answering respondent. 9. That, the statement stated in para 9 are denied. It is denied that answering respondent through his election agent Shri Mankchand Sogani and/or other persons with consent of the answering respondent published and distributed slips even without print line containing B.J.P.Symbol louts, Photo of Shiraj Singh Chouhan, the then Chief Minister and distributed them on the date of election to the voters including them to vote for answering respondent. It is also denied that by this act the answering respondent as committed a corrupt practice 100(1)(ii)(iv) and 123(2),123(3) and orders passed by the election commission by exercising undue influence with the free exercise of the electoral right. It is also denied that petitioner has made any complaint in the regard against the answering respondent.

10. That, the statement stated in para 10 are denied. It is denied that on 26.11.2008 an advertisement was published in Evening News Paper (News today) with the consent of the answering respondent. It is also denied that same advertisement was again published on 27.11.2008 with the consent of 10 the answering respondent. It is humble submission of the answering respondent petitioner has not stated that contents of the advertisement are false. It is humble submission of the answering respondent that no cause of action has arise on a statement stated in para 10 of the petition.

11. That, the statement stated in para 11 are denied. The answering respondent has already denied earlier the statement of this para.

11. Section 83 of the Representation of People Act reads as under:- “83. Contents of petition. (1) An election petition- (a)shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908 .) for the verification of pleadings: [ Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.] (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.]” Section 123(2)(3)(4) and (7) of the Act reads as under:

123. Corrupt practices. (2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person 1[ with the consent of the candidate or his election agent], with the free exercise of any electoral right: Provided that- (a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who- (i) threatens any candidate or any elector, or any person in whom a candidate or an elector is 11 interested, with injury of any kind including social ostracism and ex- communication or expulsion from any caste or community; or (ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause; (b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause. (3) 1[ The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate: 2[ Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.] (3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.] (3B) 6[ The propagation of the practice or the commission of sati or its glorification by a candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. Explanation.- For the purposes of this clause," sati" and" glorification" in relation to sati shall have the meanings respectively assigned to them in the Commission of Sati (Prevention) Act, 1987 . (4) The publication by a candidate or his agent or by any other Person, 3[ with the consent of a candidate or his election agent], of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal 4[ of any candidate, 12 being a statement reasonably calculated to prejudice the prospects of that candidate' s election. (7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person 1[ with the consent of a candidate or his election agent], any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate' s election, from any person in the service of the Government and belonging to any of the following classes, namely:- (a) gazetted officers; (b) stipendiary judges and magistrates; (c) members of the armed forces of the Union; (d) members of the police forces; (e) excise officers; (f) 2[ revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and] (g) such other class of persons in the service of the Government as may be prescribed: 3[ Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any, facilities or does any other act or thing for to or in relation to any candidate or his agent or any other person acting with the consent of the candidate or his election agent, (whether by reason of the office held by the candidate or for any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate' s election]

12. The Court framed the following issues:- (i) Whether on 21/11/2008, the FIR under Section 188 of the IPC and Section 123(3) of the Representation of People Act was baselessly registered at P.S. Sadar Bazar, Indore at the instance of and with the consent of respondent no.1? (ii) Whether the respondent no.1 and his election agent Shri Manik Chandra Sogani and others with the consent of respondent no.1 distributed the slips containing the party symbol of BJP and photo of Chief Minister to induce voters to vote in his favour? (iii) Whether on 26/11/2008 in evening papers “News Today” 13 and on 27/11/2008 in “Dainik Bhaskar” the news as mentioned in the para-10 of the election petition was published with the consent of respondent no.1 to defame the petitioner and his father? (iv) Whether the above acts of respondent no.1 amounts to “corrupt practice” within the Representation of People Act? (v) Whether the election of respondent no.1 is liable to be set aside? (vi) Whether the petitioner is entitled for his declaration as the returned candidate in place of respondent no.1. (vii) Relief and costs.

13. Parties have led evidence their evidence. Petitioner has examined PW-1, Shri Sanjay Shukla, PW-2 Shri Om Bansal and PW-3 Manish Damele. Respondent examined RW-1 Shri Sudarshan Gupta, returned candidate and RW-2 Shri Princepal Tongia.

14. PW-1 in his deposition has admitted that the first respondent was elected from 204 Indore 1 Assembly Constituency of the State of Madhya Pradesh by about 8000 votes. He has alleged that he lost the election because Sudarshan Gupta was the city President of B.J.P. and the Government of M.P.was that of BJP. It is also his deposition that: “pquko ds igys fnukad 26-11-2008 dks Jh lqn’kZu xqIrk us U;wt VqMs lekpkj i= esa rFkk fnukad 27-11-2008 dks nSfud HkkLdj lekpkj i= esa esjh vkijkf/kd Nfo ds ckjs esa foKkiu fudyok;k Fkk bl dkj.k eq>s yxHkx 15]000 oksV de feys tcfd eS bu lHkh dslsl esa nks"keqDr gks pqdk FkkA ;g lekpkj i= dze’k% izn’kZ ih&4 o ih&5 gSaA blds vykok fnukad 21-11-2008 dks Jh lqn’kZu xqIrk vkSj muds pquko ,stsaV Jh ek.kd lkSxkuh us lnj cktkj Fkkuk esa esjs fo:) ,d fjiksVZ fy[kkbZ Fkh rFkk eq>s /kkjk & 188 vkbZ-ih-lh- esa fxjQ~rkj fd;k x;k vkSj eq>s dksVZ Hkstk x;k tgkWaa esjh tekur gqbZ A blls eq>s yxHkx 5000 oksVksa dk uqdlku gqvk vkSj eSa nks fnu pquko izpkj ugha dj ldkA ;g vkijkf/kd izdj.k vkxkeh rkjh[k is’kh dks U;k;ky; }kjk fujLr dj fn;k x;kA blds vykok pquko ds nks fnu igys iqfyl vf/ k{kd us iqfyl Hkstdj esjs fuokl LFkku dh ryk’kh djkbZ ml 4& 14 le; vkl&ikl dk ekgksy dQ~Z;w tslk gks x;k Fkk vkSj esjs ifjokj tu dagh ckgj ugha fudy ik jgs FksA ml le; Hkkjrh; turk ikVhZ dh ljdkj Fkh bl dkj.k eSa pquko gkj x;kA esus bl laca/k esa ,l-ih- o pquko vk;qDr dks f’kdk;r dh Fkh ftldh izfr tks izn’kZ ih&6 gSA blds izR;sd i`"B ij esjs gLrk{kj gSaA blds vykok ljdkj us esjs iqjs {ks= esa Hk; dk okrkoj.k cuk j[kk Fkk rFkk esjs dk;ZdrkZvksa dks pquko izpkj dk dk;Z ugha djus fn;k x;kA bl dkj.k eSa pquko gkj x;kA”

15. It may however be observed that in support of these allegations, the petitioner has not produced any evidence from the police department or from the State of Madhya Pradesh to prove that the report in question was lodged by Sudarshan Gupta or his election agent or any other person on his behalf or that the search and seizure of first respondent was done by the police at his instance. In this regard it may be observed that Sudarshan Gupta in his deposition while appearing as RW-1 has denied these allegations very specifically. The second part of the allegation of the petitioner are that two publications dated 26.11.2008 in News Today and 27.11.2008 in Dainik Bhaskar wherein depiction of the criminal image of the petitioner was got published by Sudarshan Gupta and his election agent Manikchand Sogani. To prove this allegation no further evidence has been led. Shri Sudarshan Gupta has specifically denied having published any such advertisement in his deposition. In this regard he as stated that: “27@11@2008 dks eSaus nSfud HkkLdj esa dksbZ foKkiu ugha fn;k FkkA ;g dguk xyr gS fd esjs fglkc esa 27@11@2008 ds fdlh foKkiu tks nSfud HkkLdj esa 15 fn;k x;k dk Hkh ftdz gS eSaus foKkiu izn'kZ ih@5 vkt dksVZ esa ns[kk gSA ij eSaus ;g ugha Niok;k gSA ;gh mRrj foKkiu izn'kZ ih@4 ds ckjs esa Hkh gSA esjk ;g dguk gS fd 27@11@2008 dk foKkiu ftldk ftdz esjs eq[; ijh{k.k gS og eSuas pquko ;kfpdk ds lkFk yxk gqvk ns[kk gSA ¼vksfjtuy vkt gh ns[kk gS½”

16. The witness who appeared for Sudarshan Gupta Shri Princepal Tongia has deposed that: “eSa Hkkjrh; turk ikVhZ dk lnL; gawA eSa nw/k dk dke djrk gaw rFkk esjh izsl Hkh gSA ftlds }kjk eSa ,d ekfld if=dk Nkirk gawA eSa Jh lqn'kZu xqIrk dks tkurk gwaA eSaus fnukad 26@11@2008 dks ,d foKkiu Jh lqn'kZu xqIrk tks fd fiNyh fo/kkulHkk esa Hkk-t-ik- ds izR;k'kh Fks] ds leFkZu esa ,d foKkiu Niok;k FkkA oks fOkKkiu izn'kZ ih@4 ugha gSA esjs }kjk fn;k x;k foKkiu tks mlh rkjh[k dks Nik Fkk eSa lkFk ysdj vk;k gawA ml foKkiu dh ,d izfr izn'kZ Mh@1 gSA ¼vkifRr dh xbZ½A blesa foKkiu izn'kZ Mh@2 gSA Jh lqn'kZu xqIrk dh rjQ ls nSfud HkkLdj esa & fnukad 27@11@2008 dks eSaus dksbZ foKkiu ugha Niok;k FkkA”

17. The last allegation made on behalf of the petitioner that slips were distributed in public by Sudarshan Gupta with election symbol of Lotus and photo of Shri Shivraj Singh Chouhan which has also been supported by Om Bansal, but without leading any evidence or placing on record any document to support the averment. The respondent in his deposition has stated that he did publish voters slip, but they were distributed only uptill 8 days prior to the holding of election and that he had not distributed any such slip on the date of election. To prove the allegation that those slips were distributed on the date of election there is no evidence. 16

18. It may also be observed that while in the entire evidence led on behalf of the petitioner, there is no whisper on account of corrupt practice as alleged by the petitioner, the result of the election in so far as it is concerned the returned candidate has been materially affected as per the requirement under Section 100(i)(d) of the Act.

19. Shri C.L.Yadav, learned counsel who appeared for the respondent has submitted that the allegation made in the election petition were not in accordance with the requirement of Section 83 and 123 of the Act inasmuch as in para 6 of the written statement, with respect to the allegation that FIR was lodged against the petitioner on 21.11.2008, the allegation of the petitioner are vague inasmuch as he has stated that on 21.11.2008 respondent-returned candidate through his election agent Manikchand Sogani and/or other person with consent of the answering respondent lodged FIR under Section 188 of IPC and Section 123(4) of the Representation of People Act, 1951. The first respondent has denied these allegations.

20. However, not even a copy of the FIR has been placed on record which could have reflected as to who has lodged the FIR. Moreover, the allegations are vague and there is no evidence to support the averments. Similarly with respect to his allegation that SHO, Sadar Bazar arrested the petitioner so as to prevent from performing his duties as candidate there is no evidence as to how the returned candidate pressurized the SHO to arrest him. Moreover, in so far as allegations made in para 8 are concerned they are also 17 vague inasmuch as nothing has been brought on record as to how either the returned candidate or his election agent or any other person with the consent of the returned candidate are responsible for lodging of the FIR, or the arrest of the petitioner.

21. Similarly with respect to para 9 of the election petition, there is no evidence led on behalf of the petitioner to prove that the publications (Ex.P-4 and Ex.P-5) were published at the instance of returned candidate through his election agent or any other person with his consent.

22. I have already referred to Section 83 of the Election Petition and Section 123 of the Representation of People Act in para 11 above. The law requires that in an election petition, the allegations have to be very specific and infact Section 86 permits dismissal of the election petition where the allegations are vague. The said Section for the sake of reference is reproduced hereunder:- “86. Trial of election petitions. (1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117. Explanation.- An order of the High Court dismissing an election petition under this sub- section shall be deemed to be an order made under clause (a) of section 98. (2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub- section (2) of section 80A. (3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the 18 same Judge who may, in his discretion, try them separately or in one or more groups. (4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent. Explanation.- For the purposes of this sub- section and of section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition.”

23. It may also be relevant to note the law laid down by the Hon'ble Supreme Court in the case Azhar Hussain Vs. Rajiv Gandhi AIR 1986 SC 1253 wherein it has been held that an election Tribunal even though there is no mention of Section 83 in Section 86 can exercise powers of rejection of the complaint or even striking of unnecessary pleadings and may dismiss a petition which does not contain necessary particulars as required under Section 83 of the Act on account of the mandate contained in Section 87 of the Act. Some observations made in this regard are reproduced hereunder: “9. The fact that Section 83 does not find a place in Section 86 of the Act does not mean that powers under the CPC cannot be exercised.

10. There is thus no substance in this point which is already concluded against the appellant in Hardwari Lal v. Kanwal Singh, (1972) 2 SCR 742 : (AIR 1972 SC 515) wherein this Court has in terms negatived this very plea in the context of the situation that material facts and particulars relating to the corrupt practice alleged by the election petitioner were not incorporated in the election petition as will be evident from the following passage extracted from the judgment of A. N. Ray, J. who spoke for the three- judge Bench : "The allegations in paragraph 16 of the election petition do not amount to any statement of material fact of corrupt practice. It is not stated as to which 19 kind or form of assistance was obtained or procured or attempted to obtain or procure. It is not stated from whom the particular type of assistance was obtained or procured or attempted to obtain or procure. It is not stated in what manner the assistance was for the furtherance of the prospects of the election. The gravamen of the charge of corrupt practice within the meaning of Section 123(7) of the Act is obtaining or procuring or abetting or attempting to obtain or procure any assistance other than the giving of vote. In the absence of any suggestion as to what that assistance was the election petition is lacking in the most vital and essential material fact to furnish a cause of action. Counsel on behalf of the respondent submitted that an election petition could not be dismissed by reason of want of material facts because Section 86 of the Act conferred power on the High Court to dismiss the election petition which did not comply with the provisions of Section 81, or Section 82 or Section 117 of the Act. It was emphasized that Section 83 did not find place in section 86. Under Section 87 of the Act every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable Linder the Code of Civil Procedure 1908 to the trial of the suits. A suit which does not furnish cause of action can be dismissed." 11. In view of this pronouncement there is no escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Code of Civil Procedure. So also it emerges from the aforesaid decision that appropriate orders in exercise of powers under the Code of Civil Procedure can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with. This Court in Samant's case (1969) 3 SCC 238 : (AIR 1969 SC 1201) has expressed itself in no unclear terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. So also in Udhav Singh's case (1977) 1 SCC 311 : (AIR 1977 SC 744) the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and 20 as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. Ali the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of, Section 83(1)(a). An election petition therefore can be and must be dismissed if it suffers from any such vice. The first ground of challenge must therefore fail. It would also be appropriate to take note of the observations made in para 12 which reads as under: “12. Learned counsel for the petitioner has next argued that in any event the powers to reject an election petition summarily under the provisions of the Code of Civil Procedure should not be exercised at the threshold. In substance, the argument is that the court must proceed with the trial, record the evidence, and only after the trial of the election petition is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which it is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary Civil litigation the Court readily exercises the power to reject a plaint if it does not disclose any cause of action. Or the power to direct the concerned party to strike out unnecessary, scandalous, frivolous or vexatious parts of the pleadings. Or such pleadings which are likely to cause embarrassment or delay the fair trial of the action or which is otherwise an abuse of the process of law. An order directing a party to strike out a part of the pleading would result in the termination of the case arising in the context of the said pleading. The Courts in exercise of the powers under the Code of Civil Procedure can also treat any point going to the root of the matter such as one pertaining to jurisdiction or maintainability as a preliminary point and can dismiss a suit without proceeding to record evidence and hear elaborate arguments in the context of such evidence, if the Court is satisfied that the action would terminate in view of the merits of the preliminary point of objection. The contention that 21 even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument. The powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the componetent Court so that the litigation comes to an end at the earliest and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. And so that they can adjust their affairs on the footing that the litigation will not make demands on their time or resources, will not impede their future work, and they are free to undertake and fulfil other commitments. Such being the position in regard to matters pertaining to ordinary Civil litigation, there is greater reason for taking the same view in regard to matters pertaining to elections. So long as the sword of Damocles of the election petition remains hanging an elected member of the Legislature would not feel sufficiently free to devote his wholehearted attention to matters of public importance which clamour for his attention in his capacity as an elected representative of the concerned constituency. The time and attention demanded by his elected office will have to be diverted to matters pertaining to the contest of the election petition. Instead of being engaged in a campaign to relieve the distress of the people in general and of the residents of his constituency who voted him into office, and instead of resolving their problems, he would be engaged in a campaign to establish that he has in fact been duly elected. Instead of discharging his functions as the elected representative of the people, he will be engaged in a struggle to establish that he is indeed such a representative, notwithstanding the fact that he has in fact won the verdict and the confidence of the electorate at the polls. He will have not only to win the vote of the people but also to win the vote of the Court in a long drawn out litigation before he can whole-heartedly engage himself in discharging the trust reposed in him by the electorate. The pendency of the election petition would also act as a hindrance if he be entrusted with some public office in his elected capacity. He may even have occasions to deal with the representatives of foreign powers who may wonder whether he will eventually succeed and hesitate to deal with him. The fact that an election petition calling into question his election is pending may, in a given case, act as a psychological fetter and may not permit him to act with full freedom. Even if he is made of stem metal, the constraint introduced by the pendency of an election petition may have 22 some impact on his subconscious mind without his ever being or becoming aware of it. Under the circumstances, there is greater reason why in a democratic set-up, in regard to a matter pertaining to an elected representative of the people which is likely to inhibit him in the discharge of his duties towards the Nation, the controversy is set at rest at the earliest if the facts of the case and the law so warrant. Since the Court has the power to act at the threshold the power must be exercised at the threshold itself in case the Court is satisfied that it is a fit case for the exercise of such power and that exercise of such power is warranted under the relevant provisions of law. To wind up the dialogue, to contend that the powers to dismiss or reject an election petition or pass appropriate orders should not be exercised except at the stage of final judgment after recording the evidence even if the facts of the case warrant exercise of such powers, at the threshold, is to contend that the legislature conferred these powers without point or purpose, and we must close our mental eye to the presence of the powers which should be treated as non-existent. The Court cannot accede to such a proposition. The submission urged by the learned counsel for the petitioner in this behalf must therefore be firmly repelled.”

24. The election of the returned candidate was challenged alleging that the returned candidate committed corrupt practices but the pleadings were found vague by the Apex Court. In this regard it has been observed as under:- “22. The principle laid down is that the pleading in regard to matters where there is scope for ascribing an alleged corrupt practice to a returned candidate in the context of a meeting of which dates and particulars are not given would tantamount to failure to incorporate the essential particulars and that inasmuch as there was a possibility that witnesses could be procured in the context of a meeting at a place or date convenient for adducing evidence, the High Court should not even have permitted evidence on that point. In other words, no amount of evidence could cure the basic defect in the pleading and the pleading as it stood must be construed as one disclosing no cause of action. In the light of the aforesaid principle laid down by the Supreme Court which has held the field for more than 15 years, the High Court was perfectly justified in reaching the conclusion called into question by the appellant.” 23

25. Paragraphs 23 to 28 are also relevant which again deals with the allegations of corrupt practices in that case to which were vague, the Hon'ble Supreme Court made the following observations: “23. Alleged corrupt practice as incorporated in Ground II (ii) reads as under :- "The respondent himself toured the constituency on the 12th and 13th December, 1984. On the night of the 11th as he was entering the constituency he was stopped by the petitioner's workers at Inhauna Kashah The walls there bore these slogans. The petitioner along with other workers stopped the respondent's vehicle and drew his attention to the so vulgar slogans. The respondent saw nothing objectionable in these slogans. He was requested to give instructions to the authorities that these should be removed and he contemptuously had the workers dismissed and dispersed. He declared that their leader (referring to Mrs. Maneka Gandhi) deserves nothing better. The respondent delivered several- speeches during the course of his visit. In none of these speeches did he repudiate these slogans. He repeatedly referred to the assassination of his mother and to the Anandpur Resolution saying that the opposition had encouraged seccessionist and violent elements and that the opposition conclaves in the past had given rise to the emotion that had eventually taken the Prime Minister, his mother's life. He insinuated that the assassins were Sikhs and then asked the audience to make up their minds whether they still wanted somebody from the same community to succeed in the election." Why the High Court held that material facts and particulars are absent and did not disclose a cause of action? 24. The High Court observed : "Learned counsel for the respondent correctly contends that these averments again are vague because they do not describe the petitioner's workers who stopped the respondent or furnish details of the speeches in which the respondent was expected to repudiate the slogans.. He has also correctly urged that the so-called request, if any, to the respondent for 'instructions to the authorities' was misconceived and did not establish any obligation of the respondent to direct the authorities under any provision of the election law." Whether the High Court was right in taking the aforesaid view : 25. In this case also; no time, date and' place of the 24 speeches delivered by the respondent have been mentioned. No exact extracts from the speeches are quoted. Nor have the material facts showing that such statements imputed to the respondent were indeed made been stated. No allegation is made to the effect. that it was in order to prejudice the election of any candidate or in order to further the prospects of the election of the respondent. The essential ingredients of the alleged corrupt practice have thus not been Spelled out. So far as the meeting is concerned, the principle1 laid down in Nihal Singh case (1970 (3) SCC2391 (supra) discussed in the context of the charge contained in ground II (i) is attracted. The view taken by the High Court is therefore unexceptionable. Ground II (iii) 1 "........ The pleading was so vague that it left a wide scope to the appellant to adduce evidence in respect of a meeting at any place on any date that he found convenient or for which he coluld procure witnesses. The pleading in fact, was so vague and was wanting in essential particulars that no evidence should have been permitted by the High Court on this point ......" 26. The alleged corrupt practice as incorporated in ground II (iii) reads as under :- "In line with the respondent's speeches, his workers with the knowledge and consent of the respondent and other agents of the respondent entrusted with the task of conducting the election campaign caused a poster of Hindi and Urdu to be affixed in all prominent places throughout the constituency. The said poster was in fact a page of the Blitz newspaper of 30-6-84 called the Id Special. The Id that year was on 1st July, 1984. The heading of the said poster which was underlined in red alleged conspiracy between the leader of the petitioner party and Bhindaranwale. Photographs of Mrs. Bhindaranwale appeared separately on left and right hand comers of the said advertisement. A literal English translation of the poster is given below :- A copy of the said poster will be filed as Exhibit B. The poster also purported to carry a fascimile copy of a letter dated the 10th September, 1983, purporting to be addressed by Shri Kalpnath Sonkar, a member of the Rashtriya Sanjay Manch, to Shri Bhindaranwale. The letter is a forgery and that it was forged was publicly stated by alleged author of the alleged letter and a criminal case is pending in the matter thereof. The letter was fabricated expressly for the express purpose of showing :- (a) that Mrs. Maneka Gandhi was in secret conspiracy with Bhindaranwale. (b) that Mrs. Maneka Gandhi illegally supplied arms Maneka Gandhi 25 Prominent to Bhindaranwale and other secessionists and terrorists. (c) that Maneka Gandhi was in sympathy with the creation of Khalistan and the division of the country and the use of violence to achieve that end. The said allegations are totally false and fabricated. The respondent knew them to be false. He did not and could not believe them to be true, That complaints were made to the District authorities about the obnoxious wall paintings and posters to which the attention of the respondent had been drawn. The said authorities while clearly admitting the R. S. M. election agents and workers as well as to they were the press correspondents objectionable took no steps to remove or obliterate them. newspapers and press correspondents continued to draw attention to those slogans and posters but the respondent or his workers took no steps whatsoever to stop their exhibition, circulation and use. The respondent condoned and sanctioned the exhibition and circulation of this poster. He did nothing to stop the use thereof by his workers. The wall painting mentioned above and this poster were paid out of Congress (I) Party's. These were therefore, his own expenses sanctioned by himself. Cutting of some of the newspaper reports will be filed as Exhibit C." Why the High Court held that material facts and particulars are absent and did not disclose a cause of action? 27. The High Court held : "...........It appears to me that if an averment of fact is an essential part of the pleading, it must be considered to be an integral part of the petition. If such an averment is not actually put in the election petition, the petition suffers from the lack of material facts and, therefore, the statement of cause of action would be incomplete. If it is stated in the election petition, either in the body of the petition itself or by way of annexure, but its copy is not furnished to the respondent, the election petition would be hit by the mischief of Section 81(3) read with Section 86(1) of the Act. In my opinion, the reference to the poster and its proposed translation in the election petition, which was never incorporated into it, are material facts under Section 83(1)(a) of the Act and their absence cannot now be made good by means of an amendment. The pleading as it stands, and even if it were permitted to be amended would suffer from lack of cause of action on this material fact and, therefore, is liable to be struck out. The newspaper cutting are not used by the petition as containing fact, but only as evidence to the extent amendment is allowed." 26 Whether the High Court was right in taking the aforesaid view? 28. It will be noticed that in the election petition it has been mentioned that a copy of the poster would be subsequently filed, and the cuttings of some newspaper reports would also be filed later on. The election petitioner sought an amendment to delete the averments on both these aspects. The High Court rejected the prayer in regard to poster (Ex. B), but granted the prayer in respect of the cuttings. The High Court has taken the view that the poster was claimed to be an integral part of the election petition and since it was not filed much less its copy furnished to the respondent) the pleading suffered from infirmity and noncompliance with Section 83(1) read with Section 86(1) of the Act. Non-filing of the poster is fatal to the election petition as in the absence thereof the petition suffers from lack of material facts and therefore the statement of cause of action would be incomplete. Nothing turns on the fact whether or not the words "a copy of the said poster would be filed as Exhibit B" are allowed to be retained in the election petition or are deleted as prayed for by the appellant. The fact remains that no copy of the poster was produced. It must also be realized that the election petitioner did not seek to produce the copy of the poster, but only wanted a reference to it deleted so that it cannot be said that the accompaniments were not produced along with the election petition. The fact remains that without the production of the poster the cause of action would not be complete and it would be fatal to the election petition inasmuch as the material facts and particulars would be missing. So also it could not enable the respondent to meet the case. Apart from that the most important aspect of the matter is that in the absence of the names of the respondents workers, or material facts spelling out the knowledge and consent of the respondent or his election agent, the cause of action would be incomplete. So much so that the principle enunciated by this Court in Nihal Singh's case, (1970 (3) SCC 239) (supra) would be attracted. And the Court would not even have permitted the election petitioner to lead evidence on this point. The High Court was therefore fully justified in taking the view that it has taken.

26. With respect to the allegations made in the present petition that two publications were published at the instance by Shri Sudarshan Gupta or his election agent or any other person with their 27 consent dealing with similar allegations with respect to publication in this case were circulated, the Hon'ble Supreme Court has taken objection about the manner in which the pleadings were made in that case to these publication and has observed as under:- “31. There is no averment to show that the publication was made with the knowledge or consent of the returned candidate when the book was published in June, 1983. In fact, in 1983 there was no question of having acted in anticipation of the future elections of 1985 and in anticipation of the respondent contesting the same. In the election petition even the offending paragraphs have not been quoted. The petitioner has set out in paragraphs (a) to (h) the inferences drawn by him or the purport according to him. This apart, the main deficiency arises in the following manner. The essence of the charge is that this book containing alleged objectionable material was distributed with the consent of the respondent. Even so strangely enough even a bare or bald averment is not made as to : i) whom the returned candidate gave consent; ii) in what manner and how; and iii) when and in whose presence the consent was given, to distribute these books in the constituency. Nor does it contain any material particulars as to in which locality it was distributed or to whom it was distributed, or on what date it was distributed. Nor are any facts mentioned which taken at their face value would show that there was consent on the part of the returned candidate. Under the circumstances it is difficult to comprehend how exception can be taken to the view taken by the High Court.”

27. Coming to the allegations that voters slips were distributed containing lotus symbol and photo of Shri Shivraj Singh Chouhan as has been alleged by he petitioner in this case, considering similar allegations in that case, the Hon'ble Supreme Court in para 34 made the following observations: “34. On a scrutiny of the averments made in the election petition it is evident that it is not pleaded as to who has distributed the pamphlets, when they were distributed, where they were distributed and to 28 whom they were distributed, in whose presence they were distributed etc. etc. Pleading is ominously silent on these aspects. It has not even been pleaded that any particular person with the consent of the respondent or his election agent distributed the said pamphlets, (In fact it has been stated by the learned counsel for the respondent that no election agent had been appointed by the respondent during the entire elections).

28. Thus, what can be inferred from this judgment is that firstly when allegations are made of corrupt practices, these allegations have to be very specific. Specific here means allegations must be of such kind which enables the returned candidate to answer them very specifically i.e. to say if some action has been done by particular person, then how that particular person was authorized and when he was authorized and what could be the evidence of such allegation must be specified in the pleadings so that a specific answer is given to these allegation by the returned candidate in the absence of such specific pleadings which would mean that the election petition was not in conformity with the provisions under Section 83 of the Act. To the same effect is the judgment delivered by the Apex Court in the case of Ram Sukh Vs. Dinesh Aggarwal reported in AIR 2010 SC

29. Learned counsel for the respondent has submitted that publication of false, fabricated, concocted and defamatory Ex.P-4 and Ex.P-5 with a view to electoral roll casting votes in favour of the petitioner where information which has potential of misleading signals and thus exercising corrupt practices on behalf of the respondent, elected candidate, reference has been made to a judgment delivered by Hon'ble Supreme Court in the case of 29 Peoples Union for Civil Liberties Vs. Union of India AIR 2003 SC

2363. Relevant paragraphs are quoted as under:- “119. As regards the first aspect, namely criminal record, the directives in Association for Democratic Reforms case are two fold :- "(i) whether the candidate is convicted/acquitted/discharged of any criminal case in the past if any, whether he is punished with imprisonment or fine and (ii) prior to six months of filing of nomination, whether the candidate is an accused in any pending case of any offence punishable with imprisonment for two years or more and in which charge is framed or cognizance is taken by the Court of law." As regards the second directive, the Parliament has substantially proceeded on the same lines and made it obligatory to the candidate to furnish information as to whether he is any offence punishable with accused of imprisonment for two years or more in a pending case in which a charge has been framed by the competent Court. However, the case in which cognizance has been taken but charge has not been framed is not covered by Cl. (i) of S. 33-A(1). The Parliament having taken the right step of compelling disclosure of the pendency of cases relating to major offences, there is no good reason why it failed to provide for the disclosure of the cases of the same nature of which cognizance has been taken by the Court. It is common knowledge that on account of variety of reasons such as the delaying tactics of one or the other accused and inadequacies of prosecuting machinery, framing of formal charges get delayed considerably, especially in serious cases where committal procedure has to be gone through. On that account, the voter/citizen shall not be denied information regarding cognizance taken by the Court of an offence punishable with imprisonment for two years or more. The citizen's right to information, when once it is recognised to be part of the fundamental right under Art. 19(1)(a), cannot be truncated in the manner in which it has been done. Clause (i) of S. 33-A(1) therefore falls short of the avowed goal to effectuate the right of information on a vital aspect. Cases in which cognizance has been taken should therefore be comprehended within the area of information accessible to the voters/citizens, in addition to what is provided for in Cl. (i) of S.33-A.

120. Coming to Cl. (ii) of S. 33-A(1) the Parliament broadly followed the pattern shown by the Court 30 itself. This Court thought it fit to draw a line between major/serious offences and minor/non-serious offences while giving direction No. 2 (vide para 48). If so, the legislative thinking that this distinction should also hold good in regard to past cases cannot be faulted on the ground that the said clause fails to provide adequate information about the candidate. If the Parliament felt that the convictions and sentences of the long past related to petty/non- serious offences need not be made available to electorate, it cannot be definitely said that the valuable right to information becomes a casuality. Very often, such offences by and large may not involve moral turpitude. It is not uncommon, as one of the learned senior counsel pointed out that the political personalities are prosecuted for politically related activities such as holding demonstrations and visited with the punishment of fine or short imprisonment. Information regarding such instances may not be of real importance to the electorate in judging the worth of the relative merits of the candidates. At any rate, it is a matter of perception and balancing of various factors, as observed supra. The legislative judgment cannot be faulted merely for the reason that the pro tempore directions of this Court have not been scrupulously followed. As regards acquittals, it is reasonable to take the view that such information will not be of much relevance inasmuch as acquittal prima facie implies that the accused is not connected with the crime or the prosecution has no legs to stand. It is not reasonable to expect that from the factum of prosecution resulting in the acquittal, the voters/citizens would be able to judge the candidate better. On the other hand, such information in general has the potential to send misleading signals about the honesty and integrity of the candidate.”

30. Learned counsel for the petitioner submitted that the publication about which reference has been made by him were the publication issued at the instance of Shri Sudarshan Gupta, his election agent or any other person with his consent and therefore the defence evidence led on behalf of the respondent that there was a different publication which infact had been issued by Sarva Brahma Yuva Sangathan was not the correct statement inasmuch as the estimate of expenditure as given by the respondent Shri Sudarshan 31 Gupta could not have been the expenditure of Sarva Brahma Yuva Sangathan.

31. However, as discussed above, there is no evidence available on record that the two publications Ex.P-4 and Ex.P-5 were published at the instance of the petitioner, inasmuch as no evidence from the press have been summoned which may establish that these two publications were published at the expenses of he petitioner. As regard the estimate, the respondent has given a plausible explanation and infact produced respondent no.2.

32. One another important aspect in this case is that neither it has been pleaded nor any evidence has been led as to how the allegations made by the petitioner affected the election prospects of the first respondent as required under Section 100(1)(d) of the Representation of People Act. The said Section for the sake of reference is reproduced hereunder:- “100. Grounds for declaring election to be void.- (1) Subject to the provisions of sub-section (2) if [the High Court] is of opinion- (a)........ (b)....... (c)....... (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected- (i) by the improper acceptance or any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or 32 orders made under this Act.”

33. In view of the aforesaid, it is held that issues no.1, 2 and 3 are decided against the petitioner. It is held that there is no evidence led on behalf of the petitioner to prove that the FIR in question was got registered at the instance of the first respondent-returned candidate through his election agent and/or any other person with the consent of the first respondent. It is also held that the advertisements in News today dated

26.11.2008 and Dainik Bhaskar on 27.11.2008 (Ex.P-4 and Ex.P-5) have not been proved to have been published with the consent of the first respondent so as to defame the petitioner. Similarly, it is also held that there is nothing on record that the voter slips containing the Lotus symbol of BJP and photo of Shri Shivraj Singh Chouhan, the then Chief Minister were distributed to the voters on the date of election. Accordingly, it is also held that the petitioner has failed to prove that the respondent is guilty of committing corrupt practices. Therefore, issues no.5 and 6 are also decided against the petitioner. Consequently, the election petition is dismissed. The cost deposited by the petitioner be given to the first respondent. C.C.as per rules. RJ/ (M.C.GARG) JUDGE