DHARMESH PRASAD VERMA Vs. FAIYAZAL AZAM

JUDGEMENT

(1.) This election appeal is directed against the judgment of the Patna High Court dismissing Election Petition No. 4 of 1977 with costs of Rs. 1,000 The, appellant Dharmesh Prasad Verma, who is stated to have contested the election as Janata candidate had pleaded four items of corrupt practice in his election, petition filed, against the respondent Faiyazal Azam who is stated to have contested the election as a Congress-I candidate., The poll in this case was held on 12-6-1977 for the election of a member of the Bihar Legislative Assembly from No. 5. Sikta Constituency in West Champaran District, The appellant secured 1795 votes while the respondent secured 28324 votes and was declared elected on 15-6-1977. The election petition was filed on 18-7-1977. The Legislative Assembly was dissolved in 1980 and fresh election had been held in that year and the respondent is stated to have contested as a non-Congress-I candidate and to have been elected from the same constituency. The appellant is, however, interested in pursuing this election petition relating to the election of the year 1977 in order to prove corrupt practice on the part of the respondent.

(2.) Mr Shanti Bhushan, Senior Counsel, appearing for the appellant, restricted his arguments to the first charge alone and that too regarding the use of the jeep USJ 5226 which is alleged to have belonged to one Kabir Ahmed. That charge is that respondent committed the corrupt practice falling under S.123(5) of the Representation of the People Act, 1951 (hereinafter referred to as the "Act") by procuring and using the jeep for the free conveyance of voters to the polling station on the date of poll. The respondent denied the charge in his written statement and contended that the appellant had not complied with the mandatory provisions of Ss. 81, 82 and 83 read with Order VI, R. 15 of the Code of Civil Procedure and S. 117 of the Act and that the election petition is, therefore, liable to be dismissed.

(3.) The learned single Judge who tried the election petition, after observing that it is common knowledge that every politician realises the importance of vehicles during general elections, noticed this Court's observations in Rahim Khan v. Khurshid Ahmed, (1975) 1 SCR 643 that proceedings arising out of election petition are quasi-criminal in nature and that the evidence relating to corrupt practices should be scrutinized with scrupulous care and merciless severity, and then proceeded to consider the evidence adduced by the parties. On the evidence the learned Judge found that the jeep bearing No. USJ 5226 while carrying five ladies was seized by the District Magistrate and the Superintendent of Police of the District from a road near a canal situate about 11/2 or 2 miles away from the Sarkiatola booth on the date of the poll and that the five ladies including Muratiwa alias Deokalia (P.W. 10). Mehrunnissa (P.W. 11) and Rasulia (P.W. 42) were voters who were being carried free of cost for casting votes on behalf of the respondent. The learned Judge found that at the time of the seizure of the jeep it was driven by Kabir Ahmad's nephew Tabrez Ahmad and that Kabir Ahmad was a great friend of the respondent and he and his father worked for the respondent in the election and were present in the booth on the date of the poll and that the respondent's polling agent Manager Prasad stood surety for the release of the jeep. However, the learned Judge held that these facts are not sufficient by themselves to hold that the respondent himself procured the jeep from Kabir Ahmad. The learned Judge further found that since the jeep with the voters was caught not at the polling station but at some distance away from it, in any event, it was only a case of an attempt at corrupt practice and not corrupt practice itself as per S. 123 (5) of the Act. Thus the learned Judge rejected the appellant's case in regard to this instance of corrupt practice as also the other instances and dismissed the election petition.